It's time. Time for tinkerers, security researchers, hackers, and fellow nerds to gather together in signature black hoodies and utilikilts to beat the heat in Las Vegas for the summer security conferences: BSidesLV, Black Hat USA, and DEF CON.

EFF's lawyers, activists, and technologists are excited, as always, to support this community of folks that push computer security forward. If you're attending the conference and have any legal concerns about an upcoming talk or sensitive infosec research—during the Las Vegas conferences or anytime—don't hesitate to reach out to info@eff.org where our intake team is ready to assist! Share a brief summary of the issue, and we'll do our best to connect you with the right resources. You can also learn more about our work supporting technologists on our Coders' Rights Project page.

Be sure to swing by the expo areas at all three conferences to say hello to your friendly neighborhood EFF staffers! You'll probably spot us roaming the conference halls, but we'd love for you to stop by our booths to catch up on our latest work, get on our action alerts, and become an EFF member! For the whole week, we'll have our limited-edition DEF CON 34 t-shirt on hand. We're excited to see them—and other EFF gear—take over each conference!

EFF Staff Presentations Privacy's Defenders: How Hackers Helped and Can Do So Again

Hackers have a long history standing up for justice and that history has a lot to teach and inspire the hackers of today as we face a world with 360-degree surveillance that is increasingly marshaled against us by both companies and governments. My talk will tell background and stories from my book, Privacy's Defender, that tells the story of my 30 years working with EFF to try to protect security and privacy in the digital age. Cards on the table: I'm trying to recruit you to join in the fight.
WHERE: Florentine F | BSides Las Vegas
WHEN: Monday, August 3 @ 11:00
WHO: Cindy Cohn - Former EFF Executive Director 

Ask EFF at BSidesLV

Panelists from the EFF Staff will give brief updates on key topics in their expertise before turning it over to BSides attendees to ask their burning questions about policy, advocacy and making the future of tech brighter. It's a dynamic session fostering engaging discussions on digital rights featuring an EFF staff attorney, activist, and public interest technologist.
WHERE: Florentine F | BSides Las Vegas
WHEN: Tuesday, August 4 @ 14:00
WHO: EFF's Rory Mir, Kenyatta Thomas, Alexis Hancock, Haley Pederson, and Cindy Cohn

What Election Security Researchers Need to Know about Section 1201 of the Digital Millennium Copyright Act

WHERE: Voting Village | DEF CON
WHEN: Friday, August 7, 10:30-11:00
WHO: EFF Staff Attorney Tori Noble

Privacy's Defender: How Hackers Protected the Internet Before and Can Do It Again

EFF's Outgoing Executive Director Cindy Cohn' presents her first-person stories from her recently published book, Privacy's Defender, that take you Inside the privacy battles that have shaped today's Internet. It includes the hackers who helped free up encryption technology from US governmental control, allowing us to have the still imperfect privacy and security we now have online, and the battles to stop the mass NSA spying and eternal gag orders that arose from the governments formerly secret mass spying programs in the aftermath of the 9/11 attacks. She then draws from that long career of legal activism to the fights of today and tomorrow, featuring the role that hackers can play in helping to bring about a better, more just future.
WHERE: Creator Stage 1 | DEF CON
WHEN: Friday, August 7, 15:00-16:30
WHO: Former EFF Executive Director, Cindy Cohn

Why Mandatory Age Verification Keeps Us All Less Safe

WHERE: Creator Stage 7 | DEF CON
WHEN: Saturday, August 8, 13:30-14:30
WHO: EFF Director of Engineering Alexis Hancock & EFF Social Media and Video Manager Kenyatta Thomas

ESP32 As A Counter-Surveillance Platform

Privacy should be accessible to all. Historically, counter-surveillance tools have been expensive, complex, and inaccessible to most individuals, often limited to well-funded researchers and costly hardware configurations. The ESP32 offers a transformative alternative. This presentation will demonstrate how an affordable microcontroller has become the foundation for a growing suite of open-source, user-friendly anti-surveillance tools. We will discuss the technical features that make the ESP32 a compelling choice for these applications, including passive 802.11 and Bluetooth monitoring, OUI-based device fingerprinting, and robust cryptographic capabilities. Applications include detecting police body cameras in operational environments, mapping Flock Safety automatic license plate recognition (ALPR) infrastructure, identifying unauthorized drones, detecting radio frequency jamming across 2.4GHz, 5GHz, and cellular bands, and tracking autonomous robots operating with known-vulnerable firmware. These tools are cost-effective and freely available. We will also consider future developments in accessible counter-surveillance hardware, such as the ESP32-S5 with 5GHz support, GPS, displays, haptics, etc. Advancing anti-surveillance culture requires designing devices that individuals are motivated to use and carry.
WHERE: Main Track 1 | DEF CON
WHEN: Sunday, August 9, 10:00-11:00
WHO: EFF Senior Staff Technologist Cooper Quintin

Tactical Advocacy: Panel & Peer Sessions with EFF

WHERE: Policy Village | DEF CON
WHEN: Sunday, August 9, 12:30-14:00
WHO: EFF's Thorin Klosowski, Cooper Quintin, Alexis Hancock, Tori Noble, Rory Mir & Cindy Cohn

EFF Contests at DEF CON 34 EFF Benefit Poker Tournament

We’re going all in on internet freedom. Take a break from hacking the Gibson to face off with your competition at the tables—and benefit EFF! Your buy-in is paired with a donation to support EFF’s mission to protect online privacy and free expression for all. Join us on Friday, August 7 at 12:00 at theHorseshoe Poker Room. Play for glory. Play for money. Play for the future of the web.
WHERE: Horseshoe Poker Room, 3645 S Las Vegas Blvd, Las Vegas, NV 89109
WHEN: Friday, August 7, 12:00-15:00

Beard and Mustache Contest

Yes, it's exactly what it sounds like. Join EFF at the intersection of facial hair and hacker culture. Spectate, heckle, or compete in any of four categories: Full beard, Partial Beard, Moustache  Only, or Freestyle (anything goes so create your own facial apparatus!). Prizes! Donations to EFF! Beard oil!
WHERE: Contest Stage (near the entrance to Hall 1)
WHEN: Friday, August 7, 13:00-14:00

Tech Trivia Contest

Join us for some tech trivia on Saturday, August 8! EFF's privacy and security experts have crafted a new trivia challenge for DEF CON 34! Compete as a team in our no-holds-barred showdown to prove mastery over the obscure facts of digital security, online rights, and internet culture. The First Place team wins a set of custom Cybertiger Champion Badges and EFF swag. Second and third place teams will also win Badges and EFF gear. Invite your friends OR show up and make new friends! Did someone say BRIBES? The world is unfair! You too could influence the judges to add a point or two to your team's tally. Overall Bribe winner also wins a custom badge!
WHERE: Contest Stage (near the entrance to Hall 1)
WHEN: Saturday, August 8, 17:00-20:00

Privacy's Defender Book Signing with Cindy Cohn

Grab a copy of former EFF Executive Director Cindy Cohn's new book, Privacy's Defender—and get it signed—while at DEF CON 34!
WHERE: Exhibit Hall West 4 (Book Signings)
WHEN: Saturday, August 8, 11:00-12:00 AND 13:00-14:00 

Join the Cause!

Come find our table at BSidesLV (Middle Ground), Black Hat USA (back of the Business Hall), and DEF CON (Vendor Hall) to learn more about the latest in online rights, get on our action alert list, or donate to become an EFF member. We'll also have our limited-edition DEF CON 34 shirts available starting Monday at BSidesLV! These shirts have a puzzle incorporated into the design. Snag one online for yourself starting on Tuesday, August 4 if you're not in Vegas!

Join EFF

Support Security & Digital Innovation

California lawmakers have amended A.B. 1709, but the core problem remains: the bill is still a ban on social media access for youth under 16, and it still threatens the privacy and First Amendment rights of all Californians.

Proponents of the bill may argue that the recent amendments represent a compromise, but a close look at the text shows no major changes. As the bill moves forward in the Senate, we must continue to urge lawmakers to vote NO.

Take Action: Tell Your Senator to OPPOSE A.B. 1709

A "Compromise" That Still Denies Access

Under the newly amended Section 22683, platforms are prohibited from offering "addictive features" to users under 16. A platform can allow a minor to keep an account only if it strips away these features, which include what the bill calls "addictive feeds," auto-play, and anything else the Attorney General designates in future rulemaking.

However, the bill defines "addictive feeds" so broadly that it covers virtually every functional recommendation algorithm. The bill applies this label to any presentation of user-generated content recommended "in whole or in part, on information provided by the user." That includes basic inputs like who a user follows, what posts they like, or their self-expressed interests. By calling these basic tools and features “addictive," the bill also makes broad conclusions about the unsettled science behind social media use, youth, and addiction.

Because almost every major social media service uses automated feeds to deliver content, the end result of AB 1709 remains the same: young people under 16 will be denied access to major social media services as they currently exist.

Even if a platform attempts to comply by stripping away recommendation systems for minors, this still violates the First Amendment. Recommendation systems are the primary tools that users rely on to find speech and disseminate their own. Forcing young people onto a stripped-down, dysfunctional version of social media burdens their constitutional right to access information and participate in public discourse.

AB 1709 Still Forces Invasive Age Verification

The amendments do not eliminate the privacy threats posed by age gating. Although the bill references the age-signaling framework in AB 1043, Section 22684 explicitly states that a covered platform "shall verify the age of a user” and makes platforms liable every time a person under 16 makes it through an age check. 

Because AB 1043 does not actually specify how verification should occur without requiring additional proof, AB 1709 will, in practice, force platforms to implement the strictest forms of age verification. To comply, platforms will likely require users to upload government-issued IDs or submit to biometric scanning. Forcing users to turn over their personal information will create massive honeypots of sensitive personal data, destroying online anonymity and exposing users of all ages to security breaches. And relying on biometric systems to verify users’ ages is problematic because the systems have historically had high error rates estimating ages across race and gender lines.

Take Action: Tell Your Senator to OPPOSE A.B. 1709

Lawmakers Must Reject AB 1709

The amendments to AB 1709 also introduce legal confusion, creating provisions that conflict with already enacted legislation like SB 976. Rather than providing clarity or protecting young people, AB 1709 creates a tangled regulatory scheme that sacrifices constitutional rights for political grandstanding.

Denying minors access to digital forums—or stripping those forums of the basic tools needed to navigate them—is censorship. California should not set a national precedent of cutting young people off from digital lifelines, communities, and speech.

We need to keep the pressure on as AB 1709 moves through the Senate. Contact your state senator today and tell them that minor tweaks to a bad bill do not make it good policy.

The Senate Commerce Committee is set to consider S. 737, the SCREEN Act, a sweeping age-verification bill that would require online services to verify users’ ages before they can access any sexually explicit content. If this bill passes, it will force millions of adult internet users to give up their anonymity, privacy, and security before they access lawful speech.  

Unlike many state-age verification laws—which have been harmful in their own right—the SCREEN Act has no requirement that a significant portion of the website consist of sexually explicit content that is harmful to minors. The bill requires nearly any service hosting even a single piece of sexually explicit content to verify the ages of its users. The result is that the bill would apply not only to adult content sites like PornHub or OnlyFans, but also streaming services like Netflix, and social media platforms like Reddit, Discord, or Bluesky, if they host any adult content.

The SCREEN Act does not merely require users to attest they are adults. It specifically states that “requiring a user to confirm that the user is not a minor shall not be sufficient.” In practice, that means platforms would have to verify users’ ages using methods tied to their real identities. Providing proof of age online is dramatically different, and far more invasive, than showing your ID at the door to a bartender or bouncer. In the physical world, the bouncer at the door looks at your ID card, confirms you’re old enough, and gives it back to you. Under the SCREEN Act, the “bouncer” will be a digital age-verification service that captures your personal information and saves it to a database for an unspecified amount of time. 

The consequences of the bill won’t be limited to minors. If websites and apps are expected to reliably identify teenagers, adults will be asked to prove they are adults. 

Even worse, the SCREEN Act is a privacy and data security nightmare. One provision of the bill requires services to take reasonable steps to protect the data collected and to not maintain for longer than is necessary. But these are terribly weak protections that impose no meaningful collection, use, or retention limits on services collecting people’s private information. 

In other words, the third parties tasked with verifying a user’s age on a platform could sweep up a lot of personal info they don’t actually need and then could use that information for any number of purposes, so long as they deem their actions reasonable. Companies would then be allowed to keep the information users have been compelled to turn over for as long as possible, raising security and privacy issues along the way.

The SCREEN Act Attacks Your Right To Use VPNs

The SCREEN Act also targets virtual private network (VPN) users and providers. The bill requires covered websites to verify users' ages based on their IP addresses unless the service can determine that the user is outside the United States, and specifically requires age verification on traffic coming from known VPN addresses. In practice, this discourages the use of VPNs and proxy servers, which millions of people rely on for legitimate purposes such as protecting personal privacy, securing public Wi-Fi connections, safeguarding journalists and activists, and preventing data tracking. 

VPNs mask your real location by routing your internet traffic through a server somewhere else. When you visit a website through a VPN, that website only sees the VPN server's IP address, not your actual location. It's like sending a letter through a P.O. box so the recipient doesn't know where you really live. VPNs are a privacy and security tool used by millions of internet users every day, and their use should not be treated as suspect. It is particularly galling that the SCREEN Act forces users who intentionally take steps to protect their privacy to identify themselves.

The SCREEN Act creates onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize the data security and privacy of all internet users. 

Artificial intelligence is rapidly changing education, and the way people search for information. Parents, teenagers, teachers, and schools are struggling with tough questions about when AI should, and should not, be used. It makes sense for Congress to hold hearings and examine how AI should be used by minors. But the recently introduced CHATBOT Act answers those questions with a one-size-fits-all mandate governing how teenagers access AI through federally prescribed parental monitoring systems. 

The Bill Requires AI Companies To Build Family Monitoring Systems 

Parents are approaching AI in different ways. Some closely supervise how their children use chatbots, while others might set more general rules about technology. Many families are still figuring out what role AI should play in schoolwork and everyday life. 

The CHATBOT Act would take that decision away from families and AI providers. Instead of letting families and AI providers decide what parental controls should look like, Congress would require every covered AI chatbot to build the same federally prescribed “family account” system. 

As part of the required parental-consent process for teens, AI companies must offer parents a "family account" that provides access to a "full record of the conversations and activity" of teen users and tools to "monitor, analyze, and understand, at scale" those conversations. They must also send alerts if a teen attempts to bypass or disable parental controls. 

This isn’t simply an optional parental-control feature. The bill requires every covered AI provider to build this monitoring infrastructure, and present it as part of the parental consent process. Congress is prescribing a single, highly invasive model of how families should supervise teenagers’ use of AI. 

The CHATBOT Act Creates New Privacy Risks For Families 

Parents and families have different ideas about how much independence teenagers should have. Understandably, they also have very different expectations for 8-year olds, 13-year-olds, and 17-year-olds. The CHATBOT Act effectively requires AI providers to build the same monitoring architecture for users of very different ages. 

And this mandated data collection will create new privacy and security risks. Once Congress requires AI companies to create a permanent, centralized record of teen AI conversations for parental review, that will be a valuable vault of extremely personal information. That raises serious questions about what would happen in cases where someone else gains access to it through account compromise, family disputes, or other security failures. 

The vast archives of conversations created by the government-mandated family accounts won't be interesting only to parents. They will become valuable targets for hackers, identity thieves, civil litigants, and anyone else seeking access to the deeply personal information of others. The CHATBOT Act requires the records to exist, but addresses none of those risks. 

Families are still figuring out what role AI should play in schoolwork and everyday life. Congress shouldn’t freeze one answer into federal law by requiring every AI company to build the same prescribed monitoring system. 

The CHATBOT Act Applies A Children’s Law To Teenagers 

The CHATBOT Act takes the basic structure of COPPA, a nearly 30-year-old law that applies to children aged 12 and under, and applies the same “verifiable parental consent” to older teenagers. 

That’s a dramatic expansion of the law. Congress enacted COPPA to prevent kids from handing over detailed personal information to online services without making sure parents approved. For nearly three decades, Congress has required parental consent before websites collect personal information from any user under 13. COPPA is not simple to comply with, which is why so many internet companies, large and small, simply bar kids under 13 from having accounts. That includes major social media sites and AI. Facebook, Instagram, TikTok, X, YouTube, Snapchat, Discord, Spotify, and blogging platforms like WordPress all keep out users under 13. Children under 13 are also not allowed to use Microsoft Co-Pilot, Google Gemini, or ChatGPT. Anthropic does not allow users under 18 to use its AI model, Claude. In cases where younger kids maintain social media accounts despite the rules, studies show the vast majority of them are creating those accounts with parental consent.  

In short, COPPA’s protections against collecting personal information from minors without parental consent already apply to the AI services CHATBOT Act seeks to regulate. Worse, the CHATBOT Act takes COPPA’s privacy protections and inverts them—it will result in AI services likely collecting more information about young users. 

But the CHATBOT Act extends that model to high school students using AI assistants that are rapidly becoming tools for learning, research, writing, coding, and creative work. It then mandates specific, invasive surveillance tools that go well beyond anything COPPA requires. 

The bill requires providers to offer these “family accounts,” with these specific features, as a default for teenagers. By doing so, CHATBOT effectively treats a high school senior the same way it treats an elementary school student. 

Supporters may argue that parents of teens don’t have to create a family account. But every family with a teenager will still have to go through the bill’s parental-consent process before a teenager can use a covered AI system. Providers will need practical ways to verify that an adult is, in fact, the teenager’s parent. And parents of kids under 13 have no option to consent to their kids’ use of an AI system—the bill’s only option is to create a family account.

Congress should not extend the COPPA parental-permission model to millions of older teenagers, and it would be harmful to do so. The government does not require COPPA-style parental permission before a 17-year-old checks out a library book, uses Wikipedia, types search terms into Google, or reads a newspaper online. It shouldn’t require parental permission simply because the same question gets asked of an AI assistant. 

The CHATBOT Act Will Pressure AI Companies To Check Users’ Ages 

The bill says it doesn’t require age verification. But like many recent “kids online safety” bills, it imposes obligations that depend on a company knowing whether a user is under 18. 

Specifically, the bill requires AI systems to either disable access to young kids, get parental consent, or the creation of a family account if a service has reason to believe a user is a minor. The standard means that services don’t need to have actual knowledge of a user’s age to be later held liable for improperly letting them use their AI tools. That creates a practical problem. Given the potential liability of getting something wrong, AI companies will likely require stricter forms of age verification to figure out who is under 13, a teenager, and who is a parent. Some providers might ask for government-issued identification.  Other companies may rely on age estimation systems that use facial scans or other signals to guess a user’s age. Neither of these approaches is good for users’ privacy or security. One collects more information than is necessary, and the other inevitably makes mistakes. 

Congress shouldn’t force companies into that choice, or families into this position. In the name of protecting children, the CHATBOT Act will result in online services collecting even more information from kids and families, creating privacy and security risks. Parents who want family accounts like those described in the bill should be free to choose AI services that offer them. But Congress shouldn’t pressure every provider to collect more information about everyone’s age simply to comply with the law. 

A Better Way Forward

Congress doesn't have to choose between doing nothing and creating a sweeping new federal parental-monitoring mandate. Existing law allows regulators to police deceptive AI products, protect children's privacy under COPPA, and hold companies accountable when they market unsafe or misleading products to families. 

Lawmakers have urged the FTC to crack down on AI-enabled toys that make unsubstantiated educational claims or illegally collect children's data. Those are regulatory actions that can be taken right now. 

Finally, the FTC is currently investigating how AI companies test their products, protect children and teens, comply with COPPA, and enforce age restrictions. The results of that inquiry could be useful guidance to Congress, and to the public debate around these issues. 

Cracking down on bad actors, while learning more about how families are already making decisions about AI use, is a much better path forward than building one, federally-prescribed model of parenting or product design.

This post is available as a printable one page handout in English and Spanish.

Recordings of law enforcement, whether by bystanders or by those directly encountering officers, can be powerful tools of government accountability and can support movements for social change. But recording officers can come with risks. Below are important legal and practical considerations related to recording the police and other law enforcement officers.

Can I legally record the police or immigration officers?

Yes. All Americans have a First Amendment right to record law enforcement. This includes local police and federal officers such as those from Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Although the Supreme Court has not squarely ruled on the issue, nine different federal appellate courts have recognized and affirmed this right, relying on decades of Supreme Court precedent.

Courts typically frame the right to record law enforcement as the right to record officers exercising their official duties in public. This right extends to bystanders as well as people recording their own interactions with law enforcement, such as livestreaming their own traffic stops. The right also applies to private places where the recorder has a legal right to be, such as in their own home.

You may take photos, or record video and audio. Courts have held that wiretap laws, which generally protect private conversations, do not prohibit civilians from audio recording law enforcement. That’s because officers exercising their official duties, particularly in public, do not have a reasonable expectation of privacy. Neither do civilians in public places who speak to law enforcement in a manner audible to passersby.

What are some limitations on the right to record law enforcement?

Courts have been clear that behavior that obstructs or interferes with effective law enforcement or the protection of public safety is not protected. Officers can't order you to move because you are recording, but they may order you to move for public safety reasons even if you are recording.

If the law enforcement officer is off-duty or is in a private space that you don’t also have a right to be in, your right to record the officer may be limited. For example, a Los Angeles jury in 2026 found two women guilty of felony stalking after they followed an ICE agent to his home and livestreamed the pursuit.

What are some other considerations when recording officers?

Even if you believe you are appropriately exercising your First Amendment right to record law enforcement, officers may nevertheless escalate the situation and/or retaliate against you. Below are some things to keep in mind.

• Stay calm and courteous.
• If you are a bystander, stand at a safe distance from the scene that you are recording. But note that officers may approach and confront you, closing that distance in an effort to accuse you of interfering with and possibly also assaulting a federal officer.
• Be alert and mindful of the possibility that officers may illegally retaliate against you in a number of ways, including arrest, destruction of your device, and bodily harm. They may also try to retaliate by harming the person being arrested. 
• Consider the sensitive nature of recording in the context of an arrest. For example, the person being arrested or their loved ones may be concerned about exposing their immigration status, so think about obtaining consent or blurring out faces in any version you publish to focus on ICE/CBP conduct (while still retaining the original video). 
• Law enforcement may not search your cell phone or other device without a warrant based on probable cause from a judge, even if you are under arrest. Thus, you may refuse a request from an officer to review or delete what you recorded. You also may refuse to unlock your phone or provide your passcode.

What can I do to protect my footage?

How well protected your photos or video footage are depends on both the device and the way you’re recording. If you’re uploading video to a livestreaming service, it can save that video to the cloud if you enable that setting. But what if you want to protect your recordings  stored locally?

Modern smartphones generally protect data, including videos, using encryption. This means if your phone is locked and protected by a strong passphrase, it is more difficult for an officer to delete what you’ve stored on the device. Removing biometrics such as face and fingerprint unlock can protect your device contents further. You can check your settings by following the steps in our Surveillance Self-Defense guides (see below) to ensure device encryption is turned on.

Want more information?

• Read more about your right to record law enforcement: https://www.eff.org/issues/right-record
• Read EFF’s Surveillance Self-Defense technical guide: https://ssd.eff.org

Watches, bands, and rings—if you want to digitally monitor your fitness, more companies than ever are selling devices to do it. And more Americans than ever now own at least one wearable health device. But what are the companies that make fitness trackers doing to protect our sensitive data from prying eyes? A lot less than they could be, it turns out. We're explaining what companies can do to protect your health data, and more, with our EFFector newsletter. 

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 the rapid rise of police drone programs, a disappointing ruling on electronic device searches at the U.S. border, and how fitness trackers are falling down when it comes to protecting our health data.

Prefer to listen in? EFFector is now available on all major podcast platforms. This time, we're chatting with EFF Senior Security and Privacy Activist Thorin Klosowski about the health fitness tracker landscape and your privacy. You can find the episode and subscribe on your podcast platform of choice:

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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!

The concept of “surveillance pricing” is just one part of a much larger problem and business model: corporations maximizing their profits by invading our privacy. The all-too-common business model is to systematically harvest, collate, and store as much of our personal data as possible, and then monetize it through use and sale. When it comes to surveillance pricing, that looks like corporations offering the same product to two different people at two different prices, based on harvested personal information. That's why EFF supports A.B. 2654, authored by Assemblymember Chris Ward, which bans this harmful practice. 

As an organization based in San Francisco, EFF was proud to learn that the San Francisco Board of Supervisors had also introduced a resolution to similarly support the legislation. However,  we were disappointed to learn the San Francisco Board of Supervisors has since stalled a vote on the resolution stating their own support for A.B. 2654 after receiving an email from the San Francisco Chamber of Commerce criticizing the bill using well-worn and debunked concerns. We’ve sent the Supervisors a letter asking them to reconsider.

Banning surveillance pricing would be good for consumers. The FTC has found that companies will set higher prices based on personal information. “For instance,” the FTC found last year, “if a consumer is profiled as a new parent, the consumer may intentionally be shown higher-priced baby thermometers on the first page of their in-app search results, based on their residential zip code and time of purchase.” Let's say that again: the U.S. government has found that companies may seek to use surveillance pricing to charge parents searching for a thermometer in the middle of the night more money in a time of need.

Privacy is a human right, not something that people should understand as a currency to give away or protect based on how it will impact the price of groceries. EFF has long opposed pay-for-privacy schemes, in which a company charges a higher price to a customer who refuses to submit to processing of their personal data. Surveillance pricing is another version of that practice. You should never have to worry that your privacy rights depend on how much you make.

At a time when prices for everyday goods continue to climb, some surveillance pricing defenders note that using personal information could lead to lower prices for some consumers. Yet some recent studies indicate there will be losers and winners  based on factors such as whether a consumer is willing or able to switch products. Who loses or wins also will turn on the accuracy of the underlying data – yet surveillance pricing is often based on false information.

That said, even if surveillance pricing has the capability to lead to lower prices (which it often doesn't) we oppose it as just another way that corporations try to make customers pay for their privacy.

The San Francisco Chamber of Commerce’s concerns are fully addressed in the text of A.B. 2654. The Chamber raises questions about how businesses will comply with the law. But the bill is quite clear: “a retailer shall not engage in surveillance pricing.” It also has a clear definition of what “surveillance pricing” is. The banned practice is defined as: “[i] a customized price for a good for a specific consumer or group of consumers, [ii] based, in whole or in part, on personally identifiable information collected through electronic surveillance,” including if that information is “acquired from a third party.” In other words, “surveillance pricing” is a customized price based on personal information.

The SF  Chamber’s letter also asks about the bill's “treatment of discounts and loyalty programs.” In this way, too, A.B. 2654 is quite clear. The bill includes three broad carveouts that ensure it doesn't disrupt loyalty programs and discounts:

• First, for price differences “based solely on costs associated with providing the good to different consumers.”
• Second, for a discount offered to a consumer who is taking steps to terminate a service.
• Third, for a discount, conspicuously posted on a retailer’s website, that is uniformly available based on (1) criteria anyone can meet, such as signing up for a mailing list, (2) membership in a broadly defined group, such as seniors, or (3) participation in a loyalty program.

An opt-in senior discount to the movies is not the problem. The systematic collection of all of our personal information to determine whether someone is a senior and if so whether they should pay more or less for that matinee is. 

As we said in our blog post outlining our support for this bill:

Surveillance pricing is very similar to online behavioral advertising, a business practice that EFF urges governments to ban. Both practices incentivize all businesses to collect as much of our personal data as possible, in order to later monetize it. Both practices lead some businesses to collate and store our data into dossiers about us for later use. Both practices use these surveillance-based dossiers to manipulate and limit our economic choices, by altering the advertisements and prices we see online.

We urge the San Francisco Board of Supervisors to join the coalition of groups that support A.B. 2564, and stand against companies mining our personal information to charge us different prices for the same thing. 

You can read our letter to the Supervisors here.

Recent reports have raised alarm about the use of PatronScan, an ID-checking and face-scanning system, at multiple LGBTQ+ bars in San Francisco’s Castro neighborhood. Much of the attention has focused on reports that the system photographs patrons as they enter venues and questions about whether those images are used for facial recognition.

A broader privacy concern also deserves scrutiny. For years, PatronScan has marketed itself not just as an ID-verification tool, but as a system that allows bars and clubs to identify patrons, keep records about them, and share information across venues. As one news article published in 2019 documented, PatronScan built a network that allowed participating bars to flag patrons and share information about them with other establishments. 

And in California, it’s not at all clear how PatronScan’s business model of scanning IDs and sharing the information from those scans with other bars comports with the law. California’s ID privacy law, which was amended in 2018 to add ID “scans,” states that no businesses shall “retain or use” any information from a scanned ID card except for limited purposes such as to verify age, comply with a legal requirement, or prevent fraud. 

A venue cannot claim to be a safe space while feeding its patrons’ data to a third party database.

Californians should be deeply concerned about businesses that collect information from government-issued IDs and use it to build databases about where people go, whom they associate with, and whether they should be allowed into other public gathering places. That concern is especially strong in LGBTQ+ spaces, which have long served as refuges for people to go without being tracked, monitored, or put on lists. 

We reached out to Patronscan with questions regarding their practices and their views on California ID law. They referred us to their published FAQ question “Is Patronscan privacy compliant in California?” which claims that the use of Patronscan kiosks is legal in California. They also said “Patronscan does not do facial recognition in North America, or any kind of automated analysis of the ID or the live photo image.” 

The California Legislature Has Investigated PatronScan’s Business Model 

In 2018, the California Legislature published bill analyses that went into detail about PatronScan’s business. Reviewing PatronScan's own materials, the California Senate Judiciary Committee found that the company had collected and retained information on 561,087 customers in Sacramento alone during the first five months of 2018—a remarkable figure for a city whose population had only recently topped 500,000.

Lawmakers also found that at that time, PatronScan retained information for at least 90 days or longer in some cases, shared information among participating bars, and maintained bans that lasted an average of more than 19 years. A PatronScan “Public Safety Report” used 10,000 scans collected on a single day to report on “where customers live, how far they have traveled, and how many different venues the customers patronized.” 

This was not simply checking IDs at the door. PatronScan was building a database. 

An immigrants’ rights group, the Coalition for Human Immigrant Rights (CHIRLA), wrote about its concern at the time with these growing ID databases, saying that “placing individuals on a database that labels them a "threat to public safety" has “significant immigration consequences that could lead to deportation, revoking of current status, or denial of future immigration relief.” 

Today, Patronscan states that it retains personal information about all customers for 21 days, and about flagged customers for up to five years. This includes the customer’s name, date of birth, photograph, gender, and zip code. It also includes the dates and times that the customer entered particular bars. Such databases are a grave privacy threat. Personal data is routinely stolen by thieves, misused by a company’s employees, seized by government agencies, and diverted to new purposes by a company’s executives. 

California Law Still Bans ID-Scan Databases, And Bars Should Follow That Law

In 2018, California lawmakers closed what they viewed as a loophole. Existing law already prohibited businesses from retaining or using information obtained when they “swiped” a driver's license, except for the narrow purposes of legal requirements (like a judicial warrant) or “preventing fraud, abuse, or material misrepresentation.” 

After reviewing companies like PatronScan, the Legislature amended the law to make clear that the same restrictions that apply to businesses that “swipe” ID cards also apply when those IDs are “scanned.” PatronScan opposed that change, arguing it wanted to preserve the ability to share information among bars so participating venues could decide whether to admit patrons.

The bill became law anyway. Yet PatronScan continues to market and sell a system that apparently retains information from scanned IDs, and allows participating venues to flag patrons and share information across its network. 

At a minimum, that raises serious questions about how those practices fit with California's existing ID privacy law. Bar and nightlife venue owners who utilize PatronScan should think twice about its effects on their customers, and consider going back to standard, visual ID checks. These physical checks have been effective at keeping underage patrons out of 21-and-over venues for decades, and don’t present the serious privacy dangers of creating a private database of bar patrons. 

For venues serving vulnerable communities like immigrants or the LGBTQ+ community, the stakes of using this technology are even higher. It’s disappointing and alarming to see some of California’s more well-known LGBTQ+ nightlife spots instead lining up as PatronScan’s early adopters. A venue cannot claim to be a safe space while feeding its patrons’ data to a third party database. These businesses should reject PatronScan, return to the standard ID checks that every other bar has been able to utilize, and prove to their customers that their privacy and security still matters. 

EFF’s first EFFecting Change livestream was all the way back in July of 2024. Maybe you've caught each stream, or maybe you’ve only caught a few. Or maybe you’re like me and prefer to listen to conversations like these on your daily commute! Either way, if you want to stay on top of these monthly conversations, you can now subscribe to our new podcast feed for EFFecting Change—starting with our conversation on the Right to Repair movement with Adam Savage and iFixit CEO Kyle Wiens:

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For years, John Deere had actively made repairing their tractors near-impossible for anyone but itself and the few "authorized" repair shops—regardless of the ability of its customers to actually visit such shops. Now, in a major win for farmers and right to repair advocates, John Deere must soon provide farmers with not just the tools and resources to finally repair their own John Deere equipment, but also access to future updates for said equipment.

In 2025, the Federal Trade Commission (FTC) brought a suit against farm equipment manufacturer John Deere, alleging John Deere used their control over equipment repair tools and resources to limit the ability of farmers and independent repair providers (IRPs) to repair John Deere equipment. Earlier this month, John Deere reached a settlement with the FTC in which they will immediately make available a tranche of repair resources, then continue to make further resources available until the end of the year. Five states joined the FTC in this suit, and over the next 10 years these states will work alongside the FTC to ensure John Deere complies with this settlement. 

It is worth noting there is a second, farmer-initiated antitrust lawsuit against John Deere, also concerning a farmer’s right to repair their own equipment. In April, John Deere agreed to a $99 million settlement in that case, which also includes right to repair provisions.

This fight is just one example of how, as machines become increasingly computerized, companies like John Deere restrict your ability to repair machines behind software subject to legal regimes that don’t just lock down repair, but make unauthorized repair a potential criminal offense. 

John Deere’s market dominance in farm equipment led to an extraordinary power over access to the tools and resources of repair. John Deere actively restricted who had access to repair tools, and monopolized who could do the repair. This revenue stream—and control of it—is built into the business models of a lot of the technology we buy today. It also encourages companies to move away from the kinds of devices that can be easily fixed at home to ones that offer bells and whistles no one wants but makes repair difficult—like app-enabled toasters. 

This whole saga with John Deere has been an exemplar of the greater need for right to repair laws, policy, and enforcement.  There was a time when you bought a tractor and with some know-how and a manual could fix it yourself. It is easy to envision why someone with John Deere farm equipment might find it inconvenient to wait for John Deere approved repairpeople to come and fix any broken equipment. Especially when it meant waiting for days or weeks. Especially if it meant their crop was withering on the vine. This settlement will help ensure this is no longer the case. 

But it’s not just about farm equipment; If you can’t fix it, you don’t own it. While some might feel more willing to agree they “shouldn’t” futz with laptops or smartphone, it still stands that — whether it’s farm equipment, a car, a laptop, or even your phone — if you legally cannot fix it yourself, if you must go hat in hand to an “approved provider,” you are at the mercy of a corporation. It is why EFF continues to support right to repair laws that ensure people truly own what they buy. And it is why EFF continues to fight for exemptions to the law that makes it most difficult to tinker and repair your own devices.

Police departments across the country are lining up to launch drone-as-first-responder (DFR) programs, and hundreds have cleared a necessary hurdle toward making deployment a reality, expanding aerial surveillance and data collection even in areas patrol officers typically can't reach.

As of February 2026, over 1,000 public safety agencies—including police, fire, and other emergency management agencies—had received Federal Aviation Administration (FAA) waivers needed to automate drone operations and launch a DFR program, according to a recent Freedom of Information Act (FOIA) release listing agencies that have obtained Part 91 waivers since the FAA streamlined and sped up the process in April 2025.

The changes led to a massive increase in the number of waivers issued. Only 976 DFR waivers had been granted since the first DFR program launched in 2018 through April 2025, according to an FAA representative. The agency issued more waivers between April 2025 and February 2026 than it had in the previous seven years combined.

A map illustrating the locations of police departments and other public safety agencies that have received Part 91 waivers, making it possible for them to launch drone-as-first-responder programs. (This map image links to Google Maps, which is governed by Google's privacy policy)

The new FAA process for waivers and the rush of police departments to obtain them signifies a shift in law enforcement's use of drones: from human-operated aerial surveillance to AI-based autonomous drone use. 

Typically, a drone operator is only permitted to fly in areas that can still be seen by the pilot, and that drone pilot needs to be certified under FAA Part 107. To fly drones “Beyond Visual Line of Sight” (BVLOS) requires additional approval from the FAA, as do flights above 200 feet, due to the risk of colliding with planes and other aircrafts. Without such approval, an officer could not pilot a drone from a desk inside a building and fly it to a call across the city because they could not possibly have line of sight on the drone. 

FAA rules for police drones also required a human operator to manually fly the device to a scene, but DFR technology has become a more common and more automated police technology. DFR programs increasingly rely on artificial intelligence to automate drone flights from launchpads placed around the city, often atop municipal buildings, and make it possible for one drone operator to “fly” multiple devices at once. Though not every police department that has received BVLOS has launched a DFR program yet, by going through this process, every department on this list has signified it has strong enough interest to clear the necessary regulatory hurdles.

Police departments and the companies that sell DFR equipment claim that these drones make it easier for officers to establish “situational awareness” of a scene before they arrive. Early drone adoption centered on similar claims, particularly related to high-risk situations like vehicular accidents or incidents involving an armed suspect. However, these kinds of situations may make up only a small portion of deployments, which often occur in response to low-risk calls for service related to unhoused people, mental health concerns, and loud music, as a Government Technology analysis of the system in Chula Vista, California, found. 

DFR programs have become important sources of revenue for companies like Flock Safety and Axon, the latter of which reported that its DFR platform has become one of the company’s fastest growing sectors. Axon is also known for products like the TASER and the Fusus camera system that lets police integrate viewing of public and private cameras. 

Footage from drone flights is streamed back to a police office, and it can be stored, shared, and analyzed like other video. Turning drone footage into fodder for automated license plate reader (ALPR) networks, for example, requires very little additional software, and Flock Safety was quietly able to turn its drones into “flying ALPRs” last year. 

The normalization of police DFR programs jeopardizes privacy in communities across the country. As flying cameras, drones can capture footage from areas typically inaccessible to a casual patrol officer—backyards, roofs, through windows—at distances that leave subjects of surveillance completely unaware of the spy in the sky. A recent leak of drone footage from the San Francisco Police Department illustrated the ease with which surreptitious drone flights could observe innocent individuals for minutes without them realizing it. EFF's Atlas of Surveillance contains a list of police departments with drones, including those with DFR programs.

While daytime DFR use grows, police departments are exploring other ways to expand overhead surveillance. In October 2024, the Campbell Police Department in California announced it had received the first FAA approval for BVLOS operations at night, claiming it was the “first to incorporate radar technology with electro-optical sensors to enhance airspace monitoring, enabling a single remote pilot to safely deploy drones both day and night.”  

As communities consider drone use, it’s crucial that they have a say in whether the program is acquired at all, not just how it's run once purchased. Throughout the process, police should be transparent with the community and comply with local regulations about its adoption.

Many cities provide portals that log the flight paths and reasons for each drone flight, often in real time, an important transparency practice. In California, under AB 481, police departments are required to provide advance notice of intent to acquire drones, establish policies before they’re procured, and provide annual updates on their uses—giving communities and city councils the opportunity, before any contract is signed, to weigh in or object to the acquisition itself. 

For police departments and communities considering drone use, clear policies on appropriate use, transparency around deployment, and regular re-evaluation—including the choice to discontinue a program that isn't working—are all vital for protecting people’s privacy and security. 

Legal intern Suzanne Castillo was the principal author of this post.

The Fourth Circuit issued a disappointing opinion in U.S. v. Belmonte Cardozo, a case in which EFF filed an amicus brief, alongside the national ACLU, its Maryland, North Carolina, South Carolina, and Virginia affiliates, and the National Association of Criminal Defense Lawyers (NACDL).

We argued that electronic device searches at the border should require a warrant based on probable cause, but at minimum, regardless of whether an officer searches by hand or with forensic software that plugs into a device and downloads its entire contents for search, the same Fourth Amendment standard should apply to all device searches at the border.

Unfortunately, the court rejected that argument and ruled that a lower standard applies to manual searches, allowing the government to conduct extraordinarily invasive electronic device searches without any suspicion of wrongdoing, simply because the border officer chooses to search by hand rather than with a forensic tool.

The Border Search Exception Meets Your Phone

The Fourth Amendment requires that government searches of persons or property be reasonable, which usually means obtaining a warrant based on probable cause from a judge.

But a warrantless search can still be reasonable if it falls within an exception to the warrant requirement, including the exception that allows officers to search your belongings at the border. The border search exception allows warrantless searches of persons or property crossing the U.S. border, including the functional equivalent of the border such as international airports, given the government’s interests in controlling who and what may enter the country.

Historically, courts have categorized border searches of luggage, vehicles, and personal effects as “routine” and thus reasonable even if conducted without any suspicion that the traveler has engaged in wrongdoing; courts have also held that more invasive “nonroutine” searches, such as certain body searches and searches that damage property, require reasonable suspicion.

But a person’s privacy interests in the personal data on a phone or laptop are extraordinarily different than their limited privacy interests in the contents of their suitcase.

The Supreme Court addressed cell phone privacy in Riley v. California (2014), holding that the search-incident-to-arrest exception to the warrant requirement did not apply to cell phones, thereby generally requiring a warrant for phone searches, at least at the interior of the country. The court recognized the unprecedented privacy interests people have in their cell phones and how even brief manual searches can reveal the “sum of an individual’s private life,” including our political affiliations, religious beliefs, sexuality, and more. Accordingly, the Supreme Court held that because electronic device searches bear “little resemblance” to searches of bags or physical containers, they should be evaluated differently.

Following Riley, the Fourth Circuit considered two border device search cases involving forensic searches, in which border officers used external software to extract and analyze a device’s data.

In U.S. v. Kolsuz (2018), the Fourth Circuit held that a forensic search of a cell phone at the border “must be considered a nonroutine border search, requiring some measure of individualized suspicion” of a transnational offense, but the court declined to decide whether the standard is only reasonable suspicion or instead a probable cause warrant.

Then in U.S. v. Aigbekaen (2019), the Fourth Circuit held that a forensic device search at the border in support of a purely domestic law enforcement investigation requires a warrant. The court also reiterated the general Kolsuz rule for a forensic border-related device search: the “Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.”

In Belmonte Cardozo, manual searches were finally before the court.

A Disappointing Decision

Jose Belmonte Cardozo was already on the U.S. government’s radar when he traveled from Bolivia to the U.S. and was met by a U.S. Customs and Border Protection (CBP) officer at Washington Dulles International Airport. The officer manually searched his cell phone and found child sexual abuse material (CSAM), considered “digital contraband,” leading to Belmonte Cardozo’s arrest and criminal prosecution.

At issue on appeal was what standard should apply to manual device searches at the border. The Fourth Circuit held that, unlike forensic searches, manual searches are “routine” and thus reasonable under the Fourth Amendment without a warrant or individualized suspicion.

The court’s holding hinged on four differences between manual and forensic searches: (1) in a manual search, a person does the searching, not a machine; (2) a manual search’s breadth depends on the officer’s time and energy, while forensic searches are comprehensive; (3) manual searches reveal only what a user can typically access, while forensic searches can uncover deleted files, cached fragments, metadata, and more; and (4) manual searches are subject to an officer’s fading memory or imperfect notes, while forensic searches create a permanent copy.

But in identifying these technical differences, the court never explains why they justify a lower standard for manual searches.

The Fourth Circuit’s holding is problematic because, as we argued in our amicus brief, manual searches reach the same categories of data as forensic searches—data that can reveal highly personal aspects of our identities and our lives. It does not matter if a search is conducted by an agent’s thumbs or by software: the end result is equally as invasive, therefore all device searches should fall under the warrant requirement, or at least the same Fourth Amendment standard.

The court repeatedly emphasized that the search here lasted only two minutes, suggesting that the time-limited search was not privacy-invasive. But an individual’s privacy interests in their personal data don’t change based on how their phone is searched or how long. Scrolling for two minutes through someone’s personal text messages or photos is an invasion of privacy that may reveal intimate details about the person even in that short period of time.

Moreover, as devices’ native search functions improve, manual searches can surface personal information in seconds through keyword searches, even for photos, where it might have taken an hour of scrolling to find the same information, further showing that a time-limited search is not necessarily less privacy-invasive. What matters is not the breadth of the search itself, but the unprecedented (and growing) breadth of data on our phones.

A Silver Lining

There’s one silver lining: by relying on the fact that the search lasted two minutes, the Fourth Circuit left open the possibility that lengthier manual searches could trigger heightened suspicion requirements. But until a clear line is drawn, border officers within the Fourth Circuit’s jurisdiction can use manual searches to sidestep heightened Fourth Amendment standards that would otherwise apply. In the meantime, EFF will keep fighting against extraordinarily invasive warrantless, suspicionless device earches at the border, and for robust privacy standards to protect our most personal data.

Intermediary liability laws around the world recognize that social media platforms, search engines, and other online service providers have become an integral part of our lives: they shape how we access information, communicate with others and participate in public debate, and foster innovation online. These laws generally shield platforms, to varying degrees, from legal liability for user content: the responsibility for unlawful speech should rest primarily with the speaker, not with those who merely host it.  

These liability protections are not a gift for platforms. They exist so that platforms are not encouraged to proactively monitor and filter what we say online, or to remove even lawful speech simply to avoid legal risk. 

This is why a recent judgment by the EU Court of Justice, Coyote System (Joined Cases C-188/24 and C-190/24), is concerning: it could deprive online platforms of liability protection because of how they organize and disseminate user content. The consequences for freedom of expression could be significant. 

Liability Protections in the EU 

The European Union has long embraced a system of limited liability for online service providers. Under the e-Commerce Directive and now the Digital Services Act (DSA), platforms benefit from liability exemptions for user content. To discourage censorship, they also cannot be required to generally monitor user content or actively search for illegal activity. But that liability protection comes with qualifications: Platforms lose this benefit if they play an "active role" such that they have knowledge of, or control over, user-provided information (Recital 42 ECD, Recital 18 DSA, and case law, for example para. 113 in L’Oréal v eBay). For hosting services, providers must remove or disable content they know to be illegal. The DSA has introduced extensive due diligence obligations for platforms but left these foundational immunities intact. The message is clear: platforms bear responsibility for proper systems and processes, but generally not for users' speech. 

Coyote System, however, could undermine this balance. Confronted with a case about restrictions on navigation systems that transmit information to drivers about roadside checks, the Court formulated a general test for when an intermediary ceases to be a "neutral" host and therefore loses the hosting liability exemption. In essence, the Court held that where an intermediary's algorithm goes beyond merely categorizing and indexing user information to determine, "under what conditions, how and in which order of priority" (para. 122) information is disseminated, the intermediary "controls" that information and is deprived of protection under the e-Commerce Directive. 

Let's be clear: the case is not about a service that ranked or recommended user-generated content in the way social media platforms do. It is about the collection and real-time relay of user alerts about roadside checks. However, the Court's reasoning is not confined to navigation services. Recommendation algorithms determine how and in what order user content is disseminated across virtually every major online platform. Should such platforms now cease to qualify as neutral intermediaries and lose the protection of the hosting liability exemption? The answer should be no. 

The Meaning of Control 

Control has never been understood this broadly. Nor should it be. Every hosting service provider, think of Facebook, Amazon or Bluesky, will have some control over users’ content. If that ability alone ruled the analysis, the liability exemption would become largely meaningless. Instead, the disqualifying “active role” must relate to the actual content itself, not merely the technical means by which that content is organised or disseminated. 

The Court’s own case law reinforces this conclusion: In YouTube and Cyando, it examined a platform that categorises, ranks and recommends user content through algorithms, yet still proceeded on the basis that it could generally benefit from the hosting liability exemption. To be sure, the Court was mainly addressing specific knowledge of illegal content rather than the separate category of control. Even so, the underlying premise is clear: those features do not, by themselves, place a platform outside of protection. Advocate General therefore explained that what matters is the providers "intellectual control of that content" (para 152). The relevant question is who controls the information itself, makes it their own, not who determines how it appears. 

That is precisely where Coyote System breaks new ground and offers a dangerous change of emphasis. By equating algorithmic organisation with content control, the ruling risks excluding social networks and other platforms from the liability exemption and encouraging proactive monitoring of what users say online and removal of lawful content. 

That outcome would have terrible consequences for freedom of expression in the EU. It’s also difficult to reconcile with the structure of the DSA, which certainly does not treat recommendation algorithms as incompatible with intermediary immunity. On the contrary, it accepts them as a defining feature of modern platforms, regulates them extensively through dedicated due diligence obligations, and still leaves the hosting liability regime untouched (it even integrated the YouTube ruling in its preamble!).  

This was no accident: During the DSA negotiations, proposals to deprive platforms of the hosting liability exemption if they optimize, classify, organize or otherwise promote online content were rejected, following successful advocacy by EFF and allies. Would the Court have decided this case differently under the DSA? Probably not. It’s more plausible that the EU judges were influenced by the specific nature of the service, which could explain why the judgment says remarkably, and sadly, little about why intermediary liability exists in the first place and the fundamental rights it serves. Coyote System did not merely transmit user reports but aggregated them into what the Advocate General described as a new "information layer," a distinction omitted by the Court. 

Chipping Away at Intermediary Liability Protections 

The danger is that the Court's broad language on algorithmic curation reaches well beyond that narrow category and, unintentionally or not, chips away at one of the most important safeguards for freedom of expression online.  

Unfortunately, Coyote System does not stand alone. It is the latest in a line of judgments that have gradually narrowed intermediary liability protections. Recently, in Russmedia, the Court privileged preventive content control in the name of data protection, paying little regard to the possibility of reconciling both regimes and the privacy costs of increased monitoring of user content. And in AGCOM, concerning Google's liability for YouTube videos uploaded by creators participating in its Partner Programme, the Court appears to leap from eligibility reviews to specific knowledge of illegal content. 

There is a political risk too. While the top court’s reasoning will be applied by national courts and further refined over time, the European Commission has shown little hesitation in incorporating landmark rulings into legislation. Just recently, in its digital omnibus proposal, it selectively restated part of a recent Court of Justice judgment to justify narrowing privacy rights of users. 

If these trends continue, freedom of expression online will become collateral damage in the EU.