EFF Updates

In Memoriam: Barry Steinhardt

Fri, 16 Oct 2026 05:07:22 +0000

Barry Steinhardt, a lifelong privacy champion and an early leader in the battle for digital civil liberties who served as EFF’s president in 1998-99, died last week at age 73. A Connecticut native, Steinhardt led the Vermont and Pennsylvania affiliates of the American Civil Liberties Union before becoming associate director of the national ACLU. There, he helped spearhead the fight to overturn much of the Communications Decency Act, resulting in the U.S. Supreme Court’s landmark Reno v. ACLU ruling in 1997. When the internet was still young, Steinhardt became one of the first attorneys to specialize in the intersection of technology and privacy. In early 1998 he took a leave of absence from the ACLU to become EFF’s president, and then returned to the ACLU in 1999. In 2002 he founded the ACLU’s Program on Technology and Liberty. After retiring from the ACLU, he continued on as a senior advisor to London-based Privacy International. Steinhardt chaired the 2003 Computer Freedom and Privacy Conference and served on a wide variety of significant panels and boards, including the Department of Transportation’s Negotiated Rule Making on national driver’s license standards, the Advisory Committee to the US Census, and the Blue Ribbon Panel on Genetics of the National Conference of State Legislatures. He also was selected to be a member of the US delegation to the G-8 Government and Private Sector Tokyo conference on Cyber Crime and served as an advisor to the Czech Helsinki Committee. “Barry led many critical technology and civil liberties fights and was an important mentor to me and others in the field,” said EFF Executive Director Nicole Ozer. “Barry’s influential work across strategy to defend and advance privacy rights and safeguard people against surveillance has made its mark on the law and policy of our digital world and protected the rights and safety of people across the United States and around the world.”

https://www.eff.org/deeplinks/2026/10/memoriam-barry-steinhardt

Our Lawsuit Against the Trump Administration’s Social Media Surveillance Moves Forward. Here’s What the Court Said.

Fri, 16 Oct 2026 01:08:58 +0000

No one should have to choose between speaking freely and protecting their immigration status. Yet that’s precisely the choice the Trump administration’s mass surveillance of online speech forces on noncitizens living in the U.S. Last fall, we sued on behalf of three major labor unions to stop this surveillance program. And just this month, we won our first major ruling: A federal district court denied the government’s motion to dismiss our lawsuit. This means the case can move forward—a win for free speech and a critical step in protecting our First Amendment rights online. We’ve already explained why this is a big deal for our clients, so let's take a closer look at the court’s reasoning. Our Lawsuit Since taking power, the Trump administration has used AI and other automated tools to broadly surveil the social media and online speech of visa and green card holders, with the goal of identifying and punishing people who express views it opposes. The government is targeting a broad range of views, including criticism of the Trump administration; support for Palestine or criticism of Israel; “rationalizing or making light of” Charlie Kirk’s murder; and anything nebulously “hostile” to American culture, founding principles, “traditional American views,” or “our way of life.” It has paired that surveillance with a public intimidation campaign. High-ranking officials have explicitly threatened to punish noncitizens for their online speech, then followed through with a series of terrifying viewpoint-driven enforcement actions. This has led to a significant chilling effect on speech, not just for noncitizens, but also for their families, coworkers, and friends. In response, three major labor unions—the United Auto Workers (UAW), the Communications Workers of America (CWA), and the American Federation of Teachers (AFT)—sued the Departments of State and Homeland Security alleging that this viewpoint-based surveillance program violates the First Amendment and the Administrative Procedure Act (APA).  The unions are represented by EFF, Muslim Advocates (MA), and the Media Freedom & Information Access Clinic (MFIA). The government moved to dismiss our lawsuit, arguing first that federal immigration law prevents federal district courts from hearing the case, and second, that the unions don’t have “standing” to sue. Judge Alvin K. Hellerstein of the Southern District of New York rejected both arguments and allowed the case to proceed. At this stage in the litigation, the court accepted all of the facts in our complaint as true and analyzed the law based on those facts. We will now prove these facts as the case proceeds. Federal Immigration Law Doesn’t Block Our Lawsuit The government first argued that the court had no power to hear our case at all. It pointed to three provisions of the Immigration and Nationality Act (INA) that restrict when federal courts can review immigration matters. The district court disagreed and rejected each provision in turn. The first provision, 8 U.S.C. § 1252(b)(9), is often called the “zipper clause.” It bars federal courts from hearing challenges that arise from efforts to deport someone, except through review of an individual’s final removal order. The government claimed the zipper clause applies here because our lawsuit is really an effort to stop it from initiating adverse immigration actions. The district court wholly rejected this argument. Relying on the Second Circuit’s decision in Ozturk v. Hyde, it held that the zipper clause bars only challenges to a particular individual’s removal proceedings, not a lawsuit like ours that challenges the constitutionality of the surveillance program itself. That the surveillance program might affect someone’s immigration proceeding down the line doesn’t turn our lawsuit into a removal challenge. The court similarly rejected the government’s argument that § 1252(g) and § 1252(f)(1) prevent federal courts from hearing this case. Our suit, the court explained, “challenges the constitutionality of a government policy that is collateral to any active removal proceedings,” so § 1252(g) doesn’t apply. And § 1252(f)(1) only limits what kind of relief a court can give. So while the court may not be able to stop a particular person’s removal proceedings, it can still block “an unlawful surveillance program that suppresses free speech.” The Unions Have Standing to Sue To sue in federal court, a plaintiff must show that it has “standing” to bring its claims. This requires a plaintiff to show an “injury in fact” that is, among other things, “concrete.” That’s often a high bar in surveillance cases, where plaintiffs can’t easily see what the government is doing behind the scenes. And the Supreme Court has held that a person’s mere subjective fear of surveillance is too speculative to confer standing. Even so, our plaintiffs cleared the bar. The court held that the unions alleged concrete injuries, including a chill on members’ speech that is objectively reasonable, not just subjectively felt. It found that the unions had established standing in two ways: “organizational standing,” based on the unions’ own injuries, and “associational standing,” based on injuries the unions’ members have suffered. Organizational Standing The court first held that our plaintiffs had successfully alleged an injury to the unions themselves (injury was the only aspect of organizational standing the government disputed). The surveillance program has harmed the unions’ ability to carry out their core responsibilities, including “organizing their members and advocating for the unions’ goals.” The court made two key points: 1. Unions Are Injured When Members Go Silent As we explained in our complaint, the surveillance program has caused members to step back from union leadership roles; stop participating in union activities online and in person; remove their names from union webpages; and avoid filling out bargaining surveys. Members who might otherwise spread the unions’ message and raise awareness of union issues are staying quiet, hampering the unions’ ability to organize. The court said this amounts to a concrete injury for purposes of standing. 2. Surveillance Doesn’t Need to Target Pro-Union Speech The court also rejected the government’s claim that members’ retreat from union activities was “essentially an overreaction,” because the surveillance doesn't target pro-union views. The court said this misunderstands the issue: “the question is whether the Government’s conduct would deter a person of ordinary firmness from engaging in protected activity, not whether the specific expression a member forgoes is itself among the viewpoints the Government disfavors.” Here, the surveillance program monitors noncitizens’ online activity indiscriminately, and members “cannot reliably predict which of their activities will be captured” and attributed to a disfavored viewpoint. What’s more, the court noted, the unions’ organizing often happens alongside the very advocacy the government is alleged to target, “including pro-Palestine and anti-ICE activism on college campuses.” That makes members’ retreat from union activity a foreseeable consequence of the program. Associational Standing The court also held that the unions established associational standing to sue on behalf of their members. Of the three requirements for associational standing, the government challenged only two. It argued that members lacked sufficiently concrete injuries to sue in their own right, and that the claims aren’t “germane” to the unions’ purpose. The court disagreed and found associational standing for every claim but one: members’ right to receive information. That claim survives anyway, because the unions’ organizational standing covers it. Along the way, the court made several important rulings. 1. The Ongoing Surveillance Is a Present Injury As a threshold matter, the government argued that our case is a “pre-enforcement challenge,” meaning we sued before the government actually punished anyone. That would trigger a different test, and the government argued we failed it because we hadn’t alleged a sufficiently imminent threat of prosecution. The court disagreed, explaining that “Plaintiffs’ allegations are of an ongoing surveillance program that is actively chilling the speech of their members and otherwise causing harm.” That chilling effect is a First Amendment injury even if there isn’t a direct prohibition on speech. And when government conduct is actively chilling speech right now, a challenge to it isn’t pre-enforcement. 2. Surveillance + Public Threats Reasonably Chills Speech The court rejected the government’s argument that we alleged only a generalized, subjective, speculative fear of surveillance, explaining that “the chilling effect” of the program can “itself be an injury when the plaintiffs are surveilled.” Here, plaintiffs have alleged that their members are under active surveillance, which has had objective chilling effects on their speech. And the government is targeting certain disfavored viewpoints, making it “viewpoint discrimination” that is “presumptively unconstitutional.” The chill is also objectively reasonable, the court held, because the government has extensively publicized the surveillance program through public statements and social media posts, making clear that noncitizens who post disfavored views will be targeted for removal. Notably, the court agreed with us that the “threat of adverse immigration consequences, under a government whose harsh immigration crackdowns has been heavily publicized and reported on, is certainly enough to deter a person of ordinary firmness from the exercise of First Amendment rights.” This is a concrete injury sufficient for standing. 3. Demanding Social Media Handles Also Causes Harm Under the surveillance program, applicants for certain immigration benefits must disclose all social media handles they have used during the preceding five years and, in some instances, maintain public social media accounts. The district court held that this too amounts to a First Amendment injury, undermining the rights to anonymity and freedom of association. The judge pointed to one CWA member we identified, a lawful permanent resident with a pending naturalization application who is subject to the five-year disclosure requirement. The member has deleted one social media account, set another to private, and removed past posts expressing disfavored views. These allegations, the court said, show an actual and objectively reasonable injury due to the government’s surveillance program. 4. General, Public Threats Can Still Be Coercive We also argued that the Trump administration is waging a campaign of coercive threats to suppress disfavored speech, which the First Amendment prohibits. The court agreed that this campaign can be an actionable injury of its own. Notably, the court held that it didn’t matter that the government’s statements were not specifically targeted at certain individuals, and were instead made on social media or to the public. In this case, the court explained, “the number, severity, and high-profile examples of action upon those threats are such that a reasonable person would perceive the communication as coercive.” That means it’s reasonable that the unions’ members “would, and did, limit their public speech on disfavored viewpoints” in response. That the threats were made to the general public “does not diminish this injury,” as the very purpose of the challenged surveillance program is to intimidate noncitizens into silence. 5. Free Speech is Central to Union Functioning The court also found that the unions met the second prong of associational standing. It held that the unions’ interests in protecting their members’ rights to speak freely, organize, and advocate, are “germane” to the unions’ missions. The court put it plainly: The freedom of Plaintiffs’ members to speak, associate, and appear publicly is not incidental to union work, but rather is the mechanism through which unions recruit, organize, communicate, and bargain. A program alleged to silence members and drive them from the unions’ rolls therefore strikes at the unions’ representational function itself. Next Steps When the government surveils what people post online and threatens to punish them for their viewpoints, the result is exactly what our clients have experienced. Members have deleted their accounts, scrubbed posts, and withdrawn from union activities. The government must now answer our complaint and we will move forward with the discovery process, in which we anticipate getting more information from the government about its surveillance program. We look forward to continuing to prove our case.

https://www.eff.org/deeplinks/2026/10/our-lawsuit-against-trump-administrations-social-media-surveillance-moves-forward

We’re Asking the Wisconsin Supreme Court to End Warrantless ALPR Searches

Thu, 15 Oct 2026 04:21:37 +0000

Today, EFF joined the ACLU of Wisconsin in filing a petition to the Wisconsin Supreme Court, asking it to rule that the state’s constitution requires a warrant for retrospective searches of ALPR databases used by law enforcement in four cities: Milwaukee, Racine, Kenosha, and Green Bay. We represent a religious organization, the Wisconsin Council of Churches, as well as an individual pastor in Green Bay. As the petition explains: Right now, Automated License Plate Readers (“ALPRs”) are recording the movements of vast numbers of Wisconsin drivers as they seek medical care, attend 12-step recovery meetings, attend religious services, participate in protests, attend political meetings, and engage in many other private, sensitive activities. Law enforcement entities throughout Wisconsin collect, store, share, and aggregate this ALPR data. Then they search it, retrospectively tracking the movements of individuals and entire communities in ways that would have been prohibitively costly, if not outright impossible, before the advent of ALPR technology. We all deserve to be free of warrantless mass surveillance. We all deserve to live in a country where surveillance vendors cannot help police upend our system of individualized suspicion. Religious organizations and officials like our clients have a heightened interest in protecting their location privacy because of the range of expressive associations their work entails, including facilitating gatherings for religious worship, as well as offering pastoral care, confidential counseling, and community support. Likewise, the people who visit houses of worship have a strong right to privacy against police monitoring of when they pray, seek addiction counseling, or attend a domestic violence survivor meeting. This is our second lawsuit challenging warrantless ALPR searches, following SIREN v. San Jose. Earlier this month, a federal court in Oklahoma became the first to rule that ALPRs are a “type of indiscriminate mass surveillance” and suppress evidence from a warrantless ALPR search. We hope the Wisconsin Supreme Court will agree. Read the Wisconsin Supreme Court petition Read the press release Related Cases: Wisconsin Council of Churches v. Milwaukee, Racine, Kenosha & Green Bay

https://www.eff.org/deeplinks/2026/10/were-asking-wisconsin-supreme-court-end-warrantless-alpr-searches

DHS Inspector General Finds That TSA is Not Properly Safeguarding Passenger Facial Recognition Data

Thu, 15 Oct 2026 01:27:13 +0000

EFF legal intern Gabrielle Ladun was the principal author of this post. The Department of Homeland Security Office of Inspector General (DHS OIG) has published a summary of findings from its audit of the Transportation Security Administration’s (TSA) facial recognition technology. While the detailed findings are classified, the summary states that the OIG’s audit uncovered a “significant weakness” in the technology’s ability to protect the privacy of passenger data. This has massive privacy implications for the millions of passengers who travel and don’t opt out of the TSA’s biometric surveillance technology verification process. TSA uses facial comparison technology for identity verification of airline passengers. A camera takes a photo of passengers to verify that their provided identification matches their live photo. Although TSA states that it is “committed to protecting traveler privacy,” the audit highlights that this has not been the case. The OIG found that TSA’s Credential Authentication Technology 2’s (CAT-2) vendor “was able to access and extract sensitive passenger information, including driver’s license and passport images, during system troubleshooting and enhancements, without TSA’s knowledge.” The OIG further admonished the agency: TSA lacked clear policies, did not track when this data was extracted, could not verify that extracted information was properly deleted, and did not notify passengers when their biometric and biographic information may have been stored. As a result, although passenger information was generally protected during routine operations, weaknesses in vendor oversight created a risk that sensitive personal information could be retained or exposed. We hope the TSA will fix these issues. The OIG summary states: We issued one finding and three recommendations to strengthen controls, improve oversight, and ensure transparency and the proper handling of passenger data. TSA concurred with all three recommendations. Two recommendations are open and resolved, and one remains open and unresolved. Why EFF Opposes the Government’s Use of Facial Recognition Technology EFF has a long history of opposing governmental use of facial recognition technology. As the OIG’s audit underscores, this technology presents privacy risks associated with unsecured data, unauthorized access, and data breaches. The government’s use of this technology also creates a mass surveillance system and facilitates the creation of warrantless biometric records for unconsenting parties. The biometric data captured by this technology is not without errors. There have been multiple instances of law enforcement agencies using facial recognition technology to misidentify and arrest innocent individuals. Reminder: Opting Out of TSA Photos Is Possible Given that facial recognition technology is prone to mistakes, combined with the OIG’s audit revealing significant privacy weaknesses, it is imperative that travelers remember that opting out is possible. TSA’s own website emphasizes that travelers who wish to decline to have their photo taken for facial comparison can do so without any delay, disruption, or recourse. Considering the data protection weaknesses exposed by the OIG’s audit, EFF will continue to oppose this governmental system of mass surveillance and spread awareness to ensure that no one is forced to relinquish their biometric data without consent.

https://www.eff.org/deeplinks/2026/10/dhs-inspector-general-finds-tsa-not-properly-safeguarding-passenger-facial

🗣 A Victory for Freedom of Speech Online | EFFector 38.18

Wed, 14 Oct 2026 21:25:23 +0000

No one should have to think twice before criticizing the government online. But a mass surveillance program known as "Catch and Revoke" was created to make millions do just that. EFF and other defenders of free speech are fighting back. In our latest EFFector newsletter, we're talking about a key court win for our lawsuit challenging this unconstitutional surveillance program. JOIN OUR NEWSLETTER For over 35 years, EFFector has been your guide to understanding the intersection of technology, civil liberties, and the law. This issue covers our Opt Out October guides for ditching Big Tech, a win in the fight against anti-VPN laws, and a court ruling allowing the lawsuit against "Catch and Revoke" to move forward. Prefer to listen in? EFFector is now available on all major podcast platforms. This time we're talking to EFF's Lisa Femia about how the government is using AI to suppress protected speech online—and the important lawsuit she and others are working on to stop it. You can find the episode and subscribe on your podcast platform of choice: %3Ciframe%20height%3D%22200px%22%20width%3D%22100%25%22%20frameborder%3D%22no%22%20scrolling%3D%22no%22%20seamless%3D%22%22%20src%3D%22https%3A%2F%2Fplayer.simplecast.com%2F1f21c2ee-32ed-41ab-b0a8-eb86edda26ed%3Fdark%3Dfalse%22%20allow%3D%22autoplay%22%3E%3C%2Fiframe%3E Privacy info. This embed will serve content from simplecast.com Want to protect your right to digital privacy? Sign up for EFF's EFFector newsletter for updates, ways to take action, and new merch drops. You can also fuel the fight for privacy and free speech online when you support EFF today!

https://www.eff.org/deeplinks/2026/10/victory-freedom-speech-online-effector-3818