Potential Government Coercion Raises First Amendment Concerns

SAN FRANCISCO – The Electronic Frontier Foundation (EFF) sued the departments of Justice (DOJ) and Homeland Security (DHS) today to uncover information about the federal government demanding that tech companies remove apps that document immigration enforcement activities in communities throughout the country. 

Tech platforms took down several such apps (including ICE Block, Red Dot, and DeICER) and webpages (including ICE Sighting-Chicagoland) following communications with federal officials this year, raising important questions about government coercion to restrict protected First Amendment activity.

"We're filing this lawsuit to find out just what the government told tech companies," said EFF Staff Attorney F. Mario Trujillo. "Getting these records will be critical to determining whether federal officials crossed the line into unconstitutional coercion and censorship of protected speech."

In October, Apple removed ICEBlock, an app that allows users to report Immigration and Customs Enforcement (ICE) activity in their area, from its App Store. Attorney General Pamela Bondi publicly took credit for the takedown, telling reporters, “We reached out to Apple today demanding they remove the ICEBlock app from their App Store—and Apple did so.” In the days that followed, Apple removed several similar apps from the App Store. Google and Meta removed similar apps and webpages from platforms they own as well. Bondi vowed to “continue engaging tech companies” on the issue. 

People have a protected First Amendment right to document and share information about law enforcement activities performed in public. If government officials coerce third parties into suppressing protected activity, this can be unconstitutional, as the government cannot do indirectly what it is barred from doing directly.

Last month, EFF submitted Freedom of Information Act (FOIA) requests to the DOJ, DHS and its component agencies ICE and Customs and Border Protection. The requests sought records and communications about agency demands that technology companies remove apps and pages that document immigration enforcement activities. So far, none of the agencies have provided these records. EFF's FOIA lawsuit demands their release.

For the complaint: https://www.eff.org/document/complaint-eff-v-doj-dhs-ice-tracking-apps

For more about the litigation: https://www.eff.org/cases/eff-v-doj-dhs-ice-tracking-apps

Viewpoint-based Online Surveillance of Permanent Residents and Visa Holders Violates First Amendment, Lawsuit Argues

NEW YORK—The United Automobile Workers (UAW), Communications Workers of America (CWA), and American Federation of Teachers (AFT) filed a lawsuit today against the Departments of State and Homeland Security for their viewpoint-based surveillance and suppression of protected expression online. The complaint asks a federal court to stop this unconstitutional surveillance program, which has silenced and frightened both citizens and noncitizens, and hampered the ability of the unions to associate with their members and potential members. The case is titled UAW v. State Department.

Since taking power, the Trump administration has created a mass surveillance program to monitor constitutionally protected speech by noncitizens lawfully present in the U.S. Using AI and other automated technologies, the program surveils the social media accounts of visa holders with the goal of identifying and punishing those who express viewpoints the government doesn't like. This has been paired with a public intimidation campaign, silencing not just noncitizens with immigration status, but also the families, coworkers, and friends with whom their lives are integrated.

As detailed in the complaint, when asked in a survey if they had changed their social media activity as a result of the Trump administration's ideological online surveillance program, over 60 percent of responding UAW members and over 30 percent of responding CWA members who were aware of the program said they had. Among noncitizens, these numbers were even higher. Of respondents aware of the program, over 80 percent of UAW members who were not U.S. citizens and over 40 percent of CWA members who were not U.S. citizens said they had changed their activity online.

Individual union members reported refraining from posting, refraining from sharing union content, deleting posts, and deleting entire accounts in response to the ideological online surveillance program. Criticism of the Trump administration or its policies was the most common type of content respondents reported changing their social media activity around. Many members also reported altering their offline union activity in response to the program, including avoiding being publicly identified as part of the unions and reducing their participation in rallies and protests. One member even said they declined to report a wage theft claim due to fears arising from the surveillance program.

Represented by the Electronic Frontier Foundation (EFF), Muslim Advocates (MA), and the Media Freedom & Information Access Clinic (MFIA), the UAW, CWA, and AFT seek to halt the program that affects thousands of their members individually and has harmed the ability of the unions to organize, represent, and recruit members. The lawsuit argues that the viewpoint-based online surveillance program violates the First Amendment and the Administrative Procedure Act.

"The Trump administration's use of surveillance to track and intimidate UAW members is a direct assault on the First Amendment—and an attack on every working person in this country," said UAW President Shawn Fain. "When they spy on, silence, and fire union members for speaking out, they're not just targeting individuals—they're targeting the very idea of freedom itself. The right to protest, to organize, to speak without fear—that's the foundation of American democracy. If they can come for UAW members at our worksites, they can come for any one of us tomorrow. And we will not stand by and let that happen."

"Every worker should be alarmed by the Trump administration’s online surveillance program," said CWA President Claude Cummings Jr. "The labor movement is built on our freedoms under the First Amendment to speak and assemble without fear retaliation by the government. The unconstitutional Challenged Surveillance Program threatens those freedoms and explicitly targets those who are critical of the administration and its policies. This policy interferes with CWA members’ ability to express their points of view online and organize to improve their working conditions."

"Free speech is the foundation of democracy in America," said AFT President Randi Weingarten. "The Trump administration has rejected that core constitutional right and now says only speech it agrees with is permitted—and that it will silence those who disagree. This suit exposes the online surveillance tools and other cyber tactics never envisioned by the founders to enforce compliance with the administration’s views. It details the direct harms on both the target of these attacks and the chilling effect on all those we represent and teach."

"Using a variety of AI and automated tools, the government can now conduct viewpoint-based surveillance and analysis on a scale that was never possible with human review alone," said EFF Staff Attorney Lisa Femia. "The scale of this spying is matched by an equally massive chilling effect on free speech."

"The administration is hunting online for an ever-growing list of disfavored viewpoints," said Golnaz Fakhimi, Legal Director of Muslim Advocates. "Its goal is clear: consolidate authoritarian power by crushing dissent, starting with noncitizens, but certainly not ending there. This urgent lawsuit aims to put a stop to this power grab and defend First Amendment freedoms crucial to a pluralistic and democratic society."

"This case goes to the heart of the First Amendment," said Anthony Cosentino, a student in the Media Freedom & Information Access Clinic. "The government can’t go after people for saying things it doesn’t like. The current administration has ignored that principle, developing a vast surveillance apparatus to find and punish people for their constitutionally protected speech. It is an extraordinary abuse of power, creating a climate of fear not seen in this country since the McCarthy era, especially on college campuses. Our laws and Constitution will not allow it."

For the complaint: https://www.eff.org/document/uaw-v-dos-complaint

For more about the litigation: https://eff.org/cases/united-auto-workers-v-us-department-state

Contacts:
Electronic Frontier Foundation: press@eff.org
Muslim Advocates: golnaz@muslimadvocates.org

Simply using extra electricity to power some Christmas lights or a big fish tank shouldn’t bring the police to your door. In fact, in California, the law explicitly protects the privacy of power customers, prohibiting public utilities from disclosing precise “smart” meter data in most cases. 

Despite this, Sacramento’s power company and law enforcement agencies have been running an illegal mass surveillance scheme for years, using our power meters as home-mounted spies. The Electronic Frontier Foundation (EFF) is seeking to end Sacramento’s dragnet surveillance of energy customers and have asked for a court order to stop this practice for good.

For a decade, the Sacramento Municipal Utilities District (SMUD) has been searching through all of its customers’ energy data, and passed on more than 33,000 tips about supposedly “high” usage households to police. Ostensibly looking for homes that were growing illegal amounts of cannabis, SMUD analysts have admitted that such “high” power usage could come from houses using air conditioning or heat pumps or just being large. And the threshold of so-called “suspicion” has steadily dropped, from 7,000 kWh per month in 2014 to just 2,800 kWh a month in 2023. One SMUD analyst admitted that they themselves “used 3500 [kWh] last month.”

This scheme has targeted Asian customers. SMUD analysts deemed one home suspicious because it was “4k [kWh], Asian,” and another suspicious because “multiple Asians have reported there.” Sacramento police sent accusatory letters in English and Chinese, but no other language, to residents who used above-average amounts of electricity.

In 2022, EFF and the law firm Vallejo, Antolin, Agarwal, Kanter LLP sued SMUD and the City of Sacramento, representing the Asian American Liberation Network and two Sacramento County residents. One is an immigrant from Vietnam. Sheriff’s deputies showed up unannounced at his home, falsely accused him of growing cannabis based on an erroneous SMUD tip, demanded entry for a search, and threatened him with arrest when he refused. He has never grown cannabis; rather, he consumes more than average electricity due to a spinal injury.

Last week, we filed our main brief explaining how this surveillance program violates the law and why it must be stopped. California’s state constitution bars unreasonable searches. This type of dragnet surveillance — suspicionless searches of entire zip codes worth of customer energy data — is inherently unreasonable. Additionally, a state statute generally prohibits public utilities from sharing such data. As we write in our brief, the Sacramento’s mass surveillance scheme does not qualify for one of the narrow exceptions to this rule. 

Mass surveillance violates the privacy of many individuals, as police without individualized suspicion seek (possibly non-existent) evidence of some kind of offense by some unknown person. As we’ve seen time and time again, innocent people inevitably get caught in the dragnet. For decades, EFF has been exposing and fighting these kinds of dangerous schemes. We remain committed to protecting digital privacy, whether it’s being threatened by national governments – or your local power company.