Deeplinks

In 2023, the State of Washington enacted one of the strongest consumer data privacy laws in recent years: the “my health my data” act (HB 1155). EFF commends the civil rights, data privacy, and reproductive justice advocates who worked to pass this law.

This post suggests ways for legislators and advocates in other states to build on the Washington law and draft one with even stronger protections. This post will separately address the law’s scope (such as who is protected); its safeguards (such as consent and minimization); and its enforcement (such as a private right of action). While the law only applies to one category of personal data – our health information – its structure could be used to protect all manner of data.

Authors of every consumer data privacy law must make three decisions about scope: What kind of data is protected? Whose data is protected? And who is regulated?

The Washington law protects “consumer health data,” defined as information linkable to a consumer that identifies their “physical or mental health status.” This includes all manner of conditions and treatments, such as gender-affirming and reproductive care. While EFF’s ultimate goal is protection of all types of personal information, bills that protect at least some types can be a great start.

The Washington law protects “consumers,” defined as all natural persons who reside in the state or had their health data collected there. It is best, as here, to protect all people. If a data privacy law protects just some people, that can incentivize a regulated entity to collect even more data, in order to distinguish protected from unprotected people. Notably, Washington’s definition of “consumers” applies only in “an individual or household context,” but not “an employment context”; thus, Washingtonians will need a different health privacy law to protect them from their snooping bosses.

The Washington law defines a “regulated entity” as “any legal entity” that both: “conducts business” in the state or targets residents for products or services; and “determines the purpose and means” of processing consumer health data. This appears to include many non-profit groups, which is good, because such groups can harmfully process a lot of personal data.

The law excludes government from regulation, which is not unusual for data privacy bills focused on non-governmental actors. State and local government will likely need to be regulated by another data privacy law.

Unfortunately, the Washington law also excludes “contracted service providers when processing data on behalf of government.” A data broker or other surveillance-oriented business should not be free from regulation just because it is working for the police.

The most important part of Washington’s law requires either consent or minimization for a regulated entity to collect or share a consumer’s health data.

The law has a strong definition of “consent.” It must be “a clear affirmative act that signifies a consumer’s freely given, specific, informed, opt-in, voluntary, and unambiguous agreement.” Consent cannot be obtained with “broad terms of use” or “deceptive design.”

Absent consent, a regulated entity cannot collect or share a consumer’s health data except as necessary to provide a good or service that the consumer requested. Such rules are often called “data minimization.” Their virtue is that a consumer does not need to do anything to enjoy their statutory privacy rights; the burden is on the regulated entity to process less data.

As to data “sale,” the Washington law requires enhanced consent (which the law calls “valid authorization”). Sale is the most dangerous form of sharing, because it incentivizes businesses to collect the most possible data in hopes of later selling it. For this reason, some laws flatly ban sale of sensitive data, like the Illinois biometric information privacy act (BIPA).

For context, there are four ways for a bill or law to configure consent and/or minimization. Some require just consent, like BIPA’s provisions on data collection. Others require just minimization, like the federal “my body my data” bill. Still others require both, like the Massachusetts location data privacy bill. And some require either one or the other. In various times and places, EFF has supported all four configurations. “Either/or” is weakest, because it allows regulated entities to choose whether to minimize or to seek consent – a choice they will make based on their profit and not our privacy.

Data brokers harvest our location information and sell it to anyone who will pay, including advertisers, police, and other adversaries. Legislators are stepping forward to address this threat.

The Washington law does so in two ways. First, the “consumer health data” protected by the consent-or-minimization rule is defined to include “precise location information that could reasonably indicate a consumer’s attempt to acquire or receive health services or supplies.” In turn, “precise location” is defined as within 1,750’ of a person.

Second, the Washington law bans a “geofence” around an “in-person health care service,” if “used” for one of three forbidden purposes (to track consumers, to collect their data, or to send them messages or ads). A “geofence” is defined as technology that uses GPS or the like “to establish a virtual boundary” of 2,000’ around the perimeter of a physical location.

This is a good start. It is also much better than weaker rules that only apply to the immediate vicinity of sensitive locations. Such rules allow adversaries to use location data to track us as we move towards sensitive locations, observe us enter the small no-data bubble around those locations, and infer what we may have done there. On the other hand, Washington’s rules apply to sizeable areas. Also, its consent-or-minimization rule applies to all locations that could indicate pursuit of health care (not just health facilities). And its geofence rule forbids use of location data to track people.

Still, the better approach, as in several recent bills, is to simply protect all location data. Protecting just one kind of sensitive location, like houses of worship, will leave out others, like courthouses. More fundamentally, all locations are sensitive, given the risk that others will use our location data to determine where – and with whom – we live, work, and socialize.

Other safeguards in the Washington law deserve attention from legislators in other states:

A law is only as strong as its teeth. The best way to ensure enforcement is to empower people to sue regulated entities that violate their privacy; this is often called a “private right of action.”

The Washington law provides that its violation is “an unfair or deceptive act” under the state’s separate consumer protection act. That law, in turn, bans unfair or deceptive acts in the conduct of trade or commerce. Upon a violation of the ban, that law provides a civil action to “any person who is injured in [their] business or property,” with the remedies of injunction, actual damages, treble damages up to $25,000, and legal fees and costs. It remains to be seen how Washington’s courts will apply this old civil action to the new “my health my data” act.

Washington legislators are demonstrating that privacy is important to public policy, but a more explicit claim would be cleaner: invasion of the fundamental human right to data privacy. Sadly, there is a nationwide debate about whether injury to data privacy, by itself, should be enough to go to court, without also proving a more tangible injury like identity theft. The best legislative models ensure full access to the courts in two ways. First, they provide: “A violation of this law regarding an individual’s data constitutes an injury to that individual, and any individual alleging a violation of this law may bring a civil action.” Second, they provide a baseline amount of damages (often called “liquidated” or “statutory” damages), because it is often difficult to prove actual damages arising from a data privacy injury.

Finally, data privacy laws must protect people from “pay for privacy” schemes, where a business charges a higher price or delivers an inferior product if a consumer exercises their statutory data privacy rights. Such schemes will lead to a society of privacy “haves” and “have nots.”

The Washington law has two helpful provisions. First, a regulated entity “may not unlawfully discriminate against a consumer for exercising any rights included in this chapter.” Second, there can be no data sale without a “statement” from the regulated entity to the consumer that “the provision of goods or services may not be conditioned on the consumer signing the valid authorization.”

Some privacy bills contain more-specific language, for example along these lines: “a regulated entity cannot take an adverse action against a consumer (such as refusal to provide a good or service, charging a higher price, or providing a lower quality) because the consumer exercised their data privacy rights, unless the data at issue is essential to the good or service they requested and then only to the extent the data is essential.”

We still desperately need comprehensive federal consumer data privacy law built on “privacy first” principles. In the meantime, states are taking the lead. The very worst thing Congress could do now is preempt states from protecting their residents’ data privacy. Advocates and legislators from across the country, seeking to take up this mantle, would benefit from looking at – and building on – Washington’s “my health my data” law.

Keeping up on the latest digital rights news has never been easier. With a new look, EFF's EFFector newsletter covers the latest details on our work defending your rights to privacy and free expression online.

EFFector 37.7 covers some of the very sneaky tactics that Meta has been using to track you online, and how you can mitigate some of this tracking. In this issue, we're also explaining the legal processes police use to obtain your private online data, and providing an update on the NO FAKES Act—a U.S. Senate bill that takes a flawed approach to concerns about AI-generated "replicas." 

And, in case you missed it in the previous newsletter, we're debuting a new audio companion to EFFector as well! This time, Lena Cohen breaks down the ways that Meta tracks you online and what you—and lawmakers—can do to prevent that tracking. You can listen now on YouTube or the Internet Archive.

Listen TO EFFECTOR

EFFECTOR 37.7 - META'S SECRET SPYING SCHEME

Since 1990 EFF has published EFFector to help keep readers on the bleeding edge of their digital rights. We know that the intersection of technology, civil liberties, human rights, and the law can be complicated, so EFFector is a great way to stay on top of things. The newsletter is chock full of links to updates, announcements, blog posts, and other stories to help keep readers—and listeners—up to date on the movement to protect online privacy and free expression. 

Thank you to the supporters around the world who make our work possible! If you're not a member yet, join EFF today to help us fight for a brighter digital future.

The cryptography that protects our privacy and security online relies on the fact that even the strongest computers will take essentially forever to do certain tasks, like factoring prime numbers and finding discrete logarithms which are important for RSA encryption, Diffie-Hellman key exchanges, and elliptic curve encryption. But what happens when those problems – and the cryptography they underpin – are no longer infeasible for computers to solve? Will our online defenses collapse? 

(You can also find this episode on the Internet Archive and on YouTube.) 

Not if Deirdre Connolly can help it. As a cutting-edge thinker in post-quantum cryptography, Connolly is making sure that the next giant leap forward in computing – quantum machines that use principles of subatomic mechanics to ignore some constraints of classical mathematics and solve complex problems much faster – don’t reduce our digital walls to rubble. Connolly joins EFF’s Cindy Cohn and Jason Kelley to discuss not only how post-quantum cryptography can shore up those existing walls but also help us find entirely new methods of protecting our information. 

In this episode you’ll learn about: 

Deirdre Connolly is a research and applied cryptographer at Sandbox AQ with particular expertise in post-quantum encryption. She also co-hosts the “Security Cryptography Whatever” podcast about modern computer security and cryptography, with a focus on engineering and real-world experiences. Earlier, she was an engineer at the Zcash Foundation – a nonprofit that builds financial privacy infrastructure for the public good – as well as at Brightcove, Akamai, and HubSpot. 

Resources: 

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DEIRDRE CONNOLLY: I only got into cryptography and especially post quantum quickly after that. further into my professional life. I was a software engineer for a whil,e and the Snowden leaks happened, and phone records get leaked. All of Verizon's phone records get leaked. and then Prism and more leaks and more leaks. And as an engineer first, I felt like everything that I was building and we were building and telling people to use was vulnerable.
I wanted to learn more about how to do things securely. I went further and further and further down the rabbit hole of cryptography. And then, I think I saw a talk which was basically like, oh, elliptic curves are vulnerable to a quantum attack. And I was like, well, I, I really like these things. They're very elegant mathematical objects, it's very beautiful. I was sad that they were fundamentally broken, and, I think it was, Dan Bernstein who was like, well, there's this new thing that uses elliptic curves, but is supposed to be post quantum secure.
But the math is very difficult and no one understands it. I was like, well, I want to understand it if it preserves my beautiful elliptic curves. That's how I just went, just running, screaming downhill into post quantum cryptography.

CINDY COHN: That's Deirdre Connolly talking about how her love of beautiful math and her anger at the Snowden revelations about how the government was undermining security, led her to the world of post-quantum cryptography.
I'm Cindy Cohn, the executive director of the Electronic Frontier Foundation.

JASON KELLEY: And I'm Jason Kelley, EFF's activism director. You're listening to How to Fix the Internet.

CINDY COHN: On this show we talk to tech leaders, policy-makers, thinkers, artists and engineers about what the future could look like if we get things right online.

JASON KELLEY: Our guest today is at the forefront of the future of digital security. And just a heads up that this is one of the more technical episodes that we've recorded -- you'll hear quite a bit of cryptography jargon, so we've written up some of the terms that come up in the show notes, so take a look there if you hear a term you don't recognize.

CINDY COHN: Deidre Connolly is a research engineer and applied cryptographer at Sandbox AQ, with a particular expertise in post-quantum encryption. She also co-hosts the Security, Cryptography, Whatever podcast, so she's something of a cryptography influencer too. When we asked our tech team here at EFF who we should be speaking with on this episode about quantum cryptography and quantum computers more generally, everyone agreed that Deirdre was the person. So we're very glad to have you here. Welcome, Deirdre.

DEIRDRE CONNOLLY: Thank you very much for having me. Hi.

CINDY COHN: Now we obviously work with a lot of technologists here and, and certainly personally cryptography is near and dear to my heart, but we are not technologists, neither Jason nor I. So can you just give us a baseline of what post-quantum cryptography is and why people are talking about it?

DEIRDRE CONNOLLY: Sure. So a lot of the cryptography that we have deployed in the real world relies on a lot of math and security assumptions on that math based on things like abstract groups, Diffie-Hellman, elliptic curves, finite fields, and factoring prime numbers such as, uh, systems like RSA.
All of these, constructions and problems, mathematical problems, have served us very well in the last 40-ish years of cryptography. They've let us build very useful, efficient, small cryptography that we've deployed in the real world. It turns out that they are all also vulnerable in the same way to advanced cryptographic attacks that are only possible and only efficient when run on a quantum computer, and this is a class of computation, a whole new class of computation versus digital computers, which is the main computing paradigm that we've been used to for the last 75 years plus.
Quantum computers allow these new classes of attacks, especially, variants of Shore's algorithm – named Dr. Peter Shore – that basically when run on a sufficiently large, cryptographically relevant quantum computer, makes all of the asymmetric cryptography based on these problems that we've deployed very, very vulnerable.
So post-quantum cryptography is trying to take that class of attack into consideration and building cryptography to both replace what we've already deployed and make it resilient to this kind of attack, and trying to see what else we can do with these fundamentally different mathematical and cryptographic assumptions when building cryptography.

CINDY COHN: So we've kind of, we've secured our stuff behind a whole lot of walls, and we're slowly building a bulldozer. This is a particular piece of the world where the speed at which computers can do things has been part of our protection, and so we have to rethink that.

DEIRDRE CONNOLLY: Yeah, quantum computing is a fundamentally new paradigm of how we process data that promises to have very interesting, uh, and like, applications beyond what we can envision right now. Like things like protein folding, chemical analysis, nuclear simulation, and cryptanalysts, or very strong attacks against cryptography.
But it is a field where it's such a fundamentally new computational paradigm that we don't even know what its applications fully would be yet, because like we didn't fully know what we were doing with digital computers in the forties and fifties. Like they were big calculators at one time.

JASON KELLEY: When it was suggested that we talk to you about this. I admit that I have not heard much about this field, and I realized quickly when looking into it that there's sort of a ton of hype around quantum computing and post-quantum cryptography and that kind of hype can make it hard to know whether or not something is like actually going to be a big thing or, whether this is something that's becoming like an investment cycle, like a lot of things do. And one of the things that quickly came up as an actual, like real danger is what's called sort of “save now decrypt later.”

DEIRDRE CONNOLLY: Oh yeah.

JASON KELLEY: Right? We have all these messages, for example, that have been encrypted with current encryption methods. And if someone holds onto those, they can decrypt them using quantum computers in the future. How serious is that danger?

DEIRDRE CONNOLLY: It’s definitely a concern and it's the number one driver I would say to post-quantum crypto adoption in broad industry right now is mitigating the threat of a Store Now/Decrypt Later attack, also known as Harvest Now/Decrypt Later, a bunch of names that all mean the same thing.
And fundamentally, it's, uh, especially if you're doing any kind of key agreement over a public channel, and doing key agreement over a public channel is part of the whole purpose of like, you want to be able to talk to someone who you've never really, touched base with before, and you all kind of know, some public parameters that even your adversary knows and based on just the fact that you can send messages to each other and some public parameters, and some secret values that only you know, and only the other party knows you can establish a shared secret, and then you can start encrypting traffic between you to communicate. And this is what you do in your web browser when you have an HTTPS connection, that's over TLS.
This is what you do with Signal or WhatsApp or any, or, you know, Facebook Messenger with the encrypted communications. They're using Diffie-Helman as part of the protocol to set up a shared secret, and then you use that to encrypt their message bodies that you're sending back and forth between you.
But if you can just store all those communications over that public channel, and the adversary knows the public parameters 'cause they're freely published, that's part of Kerckhoff’s Principle about good cryptography - the only thing that the adversary shouldn't know about your crypto system is the secret key values that you're actually using. It should be secure against an adversary that knows everything that you know, except the secret key material.
And you can just record all those public messages and all the public key exchange messages, and you just store them in a big database somewhere. And then when you have your large cryptographically relevant quantum computer, you can rifle through your files and say, hmm, let's point it at this.
And that's the threat that's live now to the stuff that we have already deployed and the stuff that we're continuing to do communications on now that is protected by elliptic curve Diffie Hellman, or Finite Field Diffie Hellman, or RSA. They can just record that and just theoretically point an attack at it at a later date when that attack comes online.
So like in TLS, there's a lot of browsers and servers and infrastructure providers that have updated to post-quantum resilient solutions for TLS. So they're using a combination of the classic elliptic curve, Diffie Hellman and a post-quantum KEM, uh, called ML Kem that was standardized by the United States based on a public design that's been, you know, a multi international collaboration to help do this design.
I think that's been deployed in Chrome, and I think it's deployed by CloudFlare and it's getting deployed – I think it's now become the default option in the latest version of Open SSL. And a lot of other open source projects, so that's TLS similar, approaches are being adopted in open SSH, the most popular SSH implementation in the world. Signal, the service has updated their key exchange to also include a post quantum KEM and their updated key establishments. So when you start a new conversation with someone or reset a conversation with someone that is the latest version of Signal is now protected against that sort of attack.
That is definitely happening and it's happening the most rapidly because of that Store now/Decrypt later attack, which is considered live. Everything that we're doing now can just be recorded and then later when the attack comes online, they can attack us retroactively. So that's definitely a big driver of things changing in the wild right now.

JASON KELLEY: Okay. I'm going to throw out two parallels for my very limited knowledge to make sure I understand. This reminds me a little bit of sort of the work that had to be done before Y2K in, in the sense of like, now people think nothing went wrong and nothing was ever gonna go wrong, but all of us working anywhere near the field know actually it took a ton of work to make sure that nothing blew up or stopped working.
And the other is that in, I think it was 1998, EFF was involved in something we called Deep Crack, where we made, that's a, I'm realizing now that's a terrible name. But anyway, the DES cracker, um, we basically wanted to show that DES was capable of being cracked, right? And that this was a - correct me if I'm wrong - it was some sort of cryptographic standard that the government was using and people wanted to show that it wasn't sufficient.

DEIRDRE CONNOLLY: Yes - I think it was the first digital encryption standard. And then after its vulnerability was shown, they, they tripled it up to, to make it useful. And that's why Triple DES is still used in a lot of places and is actually considered okay. And then later came the advanced encryption standard, AES, which we prefer today.

JASON KELLEY: Okay, so we've learned the lesson, or we are learning the lesson, it sounds like.

DEIRDRE CONNOLLY: Uh huh.

CINDY COHN: Yeah, I think that that's, that's right. I mean, EFF built the DES cracker because in the nineties the government was insisting that something that everybody knew was really, really insecure and was going to only get worse as computers got stronger and, and strong computers got in more people's hands, um, to basically show that the emperor had no clothes, um, that this wasn't very good.
And I think with the NIST standards and what's happening with post-quantum is really, you know, the hopeful version is we learned that lesson and we're not seeing government trying to pretend like there isn't a risk in order to preserve old standards, but instead leading the way with new ones. Is that fair?

DEIRDRE CONNOLLY: That is very fair. NIST ran this post-quantum competition almost over 10 years, and it had over 80 submissions in the first round from all over the world, from industry, academia, and a mix of everything in between, and then it narrowed it down to. the three that are, they're not all out yet, but there's the key agreement, one called ML Kem, and three signatures. And there's a mix of cryptographic problems that they're based on, but there were multiple rounds, lots of feedback, lots of things got broken.
This competition has absolutely led the way for the world of getting ready for post-quantum cryptography. There are some competitions that have happened in Korea, and I think there's some work happening in China for their, you know, for their area.
There are other open standards and there are standards happening in other standards bodies, but the NIST competition has led the way, and it, because it's all open and all these standards are open and all of the work and the cryptanalysis that has gone in for the whole stretch. It's all been public and all these standards and drafts and analysis and attacks have been public. It's able to benefit everyone in the world.

CINDY COHN: I got started in the crypto wars in the nineties where the government was kind of the problem and they still are. And I do wanna ask you about whether you're seeing any role of the kinda national social security, FBI infrastructure, which has traditionally tried to put a thumb on the scales and make things less secure so that they could have access, if you're seeing any of that there.
But on the NIST side, I think this provides a nice counter example of how government can help facilitate building a better world sometimes, as opposed to being the thing we have to drag kicking and screaming into it.
But let me circle around to the question I embedded in that, which is, you know, one of the problems that that, that we know happened in the nineties around DES, and then of course some of the Snowden revelations indicated some mucking about in security as well behind the scenes by the NSA. Are you seeing anything like that and, and what should we be on the lookout for?

DEIRDRE CONNOLLY: Not in the PQC stuff. Uh, there, like there have been a lot of people that were paying very close attention to what these independent teams were proposing and then what was getting turned into a standard or a proposed standard and every little change, because I, I was closely following the key establishment stuff.
Um, every little change people were trying to be like, did you tweak? Why did you tweak that? Did, like, is there a good reason? And like, running down basically all of those things. And like including trying to get into the nitty gritty of like. Okay. We think this is approximately these many bits of security using these parameter and like talking about, I dunno, 123 versus 128 bits and like really paying attention to all of that stuff.
And I don't think there was any evidence of anything like that. And, and for, for plus or minus, because there were. I don't remember which crypto scheme it was, but it, there was definitely an improvement from, I think some of the folks at NSA very quietly back in the day to, I think it was the S boxes, and I don't remember if it was DES or AES or whatever it was.
But people didn't understand at the time because it was related to advanced, uh, I think it was a differential crypto analysis attacks that folks inside there knew about, and people in outside academia didn't quite know about yet. And then after the fact they were like, oh, they've made this better. Um, we're not, we're not even seeing any evidence of anything of that character either.
It's just sort of like, it's very open letting, like if everything's proceeding well and the products are going well of these post-quantum standards, like, you know, leave it alone. And so everything looks good. And like, especially for NSA, uh, national Security Systems in the, in the United States, they have updated their own targets to migrate to post-quantum, and they are relying fully on the highest security level of these new standards.
So like they are eating their own dog food. They're protecting the highest classified systems and saying these need to be fully migrated to fully post quantum key agreement. Uh, and I think signatures at different times, but there has to be by like 2035. So if they were doing anything to kind of twiddle with those standards, they'd be, you know, hurting themselves and shooting themselves in the foot.

CINDY COHN: Well fingers crossed.

DEIRDRE CONNOLLY: Yes.

CINDY COHN: Because I wanna build a better internet and a better. Internet means that they aren't secretly messing around with our security. And so this is, you know, cautiously good news.

JASON KELLEY: Let's take a quick moment to thank our sponsor.
“How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.
We also want to thank EFF members and donors. EFF has been fighting for digital rights for 35 years, and that fight is bigger than ever, so please, if you like what we do, go to eff.org/pod to donate. Also, we’d love for you to join us at this year’s EFF awards, where we celebrate the people working towards the better digital future that we all care so much about. Those are coming up on September 12th in San Francisco. You can find more information about that at eff.org/awards.
We also wanted to share that our friend Cory Doctorow has a new podcast. Listen to this.  [Who Broke the Internet trailer]

JASON KELLEY: And now, back to our conversation with Deirdre Connolly.

CINDY COHN: I think the thing that's fascinating about this is kind of seeing this cat and mouse game about the ability to break codes, and the ability to build codes and systems that are resistant to the breaking, kind of playing out here in the context of building better computers for everyone.
And I think it's really fascinating and I think it also for people I. You know, this is a pretty technical conversation, um, even, you know, uh, for our audience. But this is the stuff that goes on under the hood of how we keep journalists safe, how we keep activists safe, how we keep us all safe, whether it's our bank accounts or our, you know, people are talking about mobile IDs now and other, you know, all sorts of sensitive documents that are going to not be in physical form anymore, but are gonna be in digital form.
And unless we get this lock part right, we're really creating problems for people. And you know, what I really appreciate about you and the other people kind of in the midst of this fight is it's very unsung, right? It's kind of under the radar for the rest of us, but yet it's the, it's the ground that we need to stand on to, to be safe moving forward.

DEIRDRE CONNOLLY: Yeah, and there's a lot of assumptions, uh, that even the low level theoretical cryptographers and the people implementing their, their stuff into software and the stuff, the people trying to deploy, that there's a, a lot of assumptions that have been baked into what we've built that to a degree don't quite fit in some of the, the things we've been able to build in a post-quantum secure way, or the way we think it's a post-quantum secure way.
Um, we're gonna need to change some stuff and we think we know how to change some stuff to make it work. but we are hoping that we don't accidentally introduce any vulnerabilities or gaps.
We're trying, but also we're not a hundred percent sure that we're not missing something, 'cause these things are new. And so we're trying, and we're also trying to make sure we don't break things as we change them because we're trying to change them to be post quantum resilient. But you know, once you change something, if there's a possibility, you, you just didn't understand it completely. And you don't wanna break something that was working well in one direction because you wanna improve it in another direction.

CINDY COHN: And that's why I think it's important to continue to have a robust community of people who are the breakers, right? Who are, are hackers, who are, who are attacking. And that is a, you know, that's a mindset, right? That's a way of thinking about stuff that is important to protect and nurture, um, because, you know, there's an old quote from Bruce Schneider: Anyone can build a crypto system that they themselves cannot break. Right? It takes a community of people trying to really pound away at something to figure out where the holes are.
And you know, a lot of the work that EFF does around coders rights and other kinds of things is to make sure that there's space for that. and I think it's gonna be as needed in a quantum world as it was in a kind of classical computer world.

DEIRDRE CONNOLLY: Absolutely. I'm confident that we will learn a lot more from the breakers about this new cryptography because, like, we've tried to be robust through this, you know, NIST competition, and a lot of those, the things that we learn apply to other constructions as they come out. but like there's a whole area of people who are going to be encountering this kind of newish cryptography for the first time, and they kind of look at it and they're like. Oh, uh, I, I think I might be able to do something interesting with this, and we're, we'll all learn more and we'll try to patch and update as quickly as possible

JASON KELLEY: And this is why we have competitions to figure out what the best options are and why some people might favor one algorithm over another for different, different processes and things like that.

DEIDRE CONNOLLY: And that's why we're probably gonna have a lot of different flavors of post-quantum cryptography getting deployed in the world because it's not just, ah, you know, I don't love NIST. I'm gonna do my own thing in my own country over here. Or, or have different requirements. There is that at play, but also you're trying to not put all your eggs in one basket as well.

CINDY COHN: Yeah, so we want a menu of things so that people can really pick, from, you know, vetted, but different strategies. So I wanna ask the kind of core question for the podcast, which is, um, what does it look like if we get this right, if we get quantum computing and, you know, post-quantum crypto, right?
How does the world look different? Or does it just look the same? How, what, what does it look like if we do this well?

DEIRDRE CONNOLLY: Hopefully to a person just using their phone or using their computer to talk to somebody on the other side of the world, hopefully they don't notice. Hopefully to them, if they're, you know, deploying a website and they're like, ah, I need to get a Let’s Encrypt certificate or whatever.
Hopefully Let's Encrypt just, you know, insert bot just kind of does everything right by default and they don't have to worry about it.
Um, for the builders, it should be, we have a good recommended menu of cryptography that you can use when you're deploying TLS, when you're deploying SSH, uh, when you're building cryptographic applications, especially.
So like if you are building something in Go or Java or you know, whatever it might be, the crypto library in your language will have the updated recommended signature algorithm or key agreement algorithm and be, like, this is how we, you know, they have code snippets to say like, this is how you should use it, and they will deprecate the older stuff.
And, like, unfortunately there's gonna be a long time where there's gonna be a mix of the new post-quantum stuff that we know how to use and know how to deploy and protect. The most important, you know, stuff like to mitigate Store now/Decrypt later and, you know, get those signatures with the most important, uh, protected stuff.
Uh, get those done. But there's a lot of stuff that we're not really clear about. How we wanna do it yet, and kind of going back to one of the things you mentioned earlier, uh, comparing this to Y2K, there was a lot of work that went into mitigating Y2K before, during, immediately after.
Unfortunately, the comparison to the post quantum migration kind of falls down because after Y2K, if you hadn't fixed something, it would break. And you would notice in usually an obvious way, and then you could go find it. You, you fix the most important stuff that, you know, if it broke, like you would lose billions of dollars or, you know, whatever. You'd have an outage.
For cryptography, especially the stuff that's a little bit fancier. Um, you might not know it's broken because the adversary is not gonna, it's not gonna blow up.
And you have to, you know, reboot a server or patch something and then, you know, redeploy. If it's gonna fail, it's gonna fail quietly. And so we're trying to kind of find these things, or at least make the kind of longer tail of stuff, uh, find fixes for that upfront, you know, so that at least the option is available.
But for a regular person, hopefully they shouldn't notice. So everyone's trying really hard to make it so that the best security, in terms of the cryptography is deployed with, without downgrading your experience. We're gonna keep trying to do that.
I don't wanna build crap and say “Go use it.” I want you to be able to just go about your life and use a tool that's supposed to be useful and helpful. And it's not accidentally leaking all your data to some third party service or just leaving a hole on your network for any, any actor who notices to walk through and you know, all that sort of stuff.
So whether it's like implementing things securely in software, or it's cryptography or you know, post-quantum weirdness, like for me, I just wanna build good stuff for people, that's not crap.

JASON KELLEY: Everyone listening to this agrees with you. We don't want to build crap. We want to build some beautiful things. Let's go out there and do it.

DEIRDRE CONNOLLY: Cool.

JASON KELLEY: Thank you so much, Deirdre.

DEIRDRE CONNOLLY: Thank you!

CINDY COHN: Thank you Deirdre. We really appreciate you coming and explaining all of this to, you know, uh, the lawyer and activist at EFF.

JASON KELLEY: Well, I think that was probably the most technical conversation we've had, but I followed along pretty well and I feel like at first I was very nervous based on the, save and decrypt concerns. But after we talked to Deirdre, I feel like the people working on this. Just like for Y2K are pretty much gonna keep us out of hot water. And I learned a lot more than I did know before we started the conversation. What about you, Cindy?

CINDY COHN: I learned a lot as well. I mean, cryptography and, attacks on security is always, you know, it's a process, and it's a process by which we do the best we can, and then, then we also do the best we can to rip it apart and find all the holes, and then we, we iterate forward. And it's nice to hear that that model is still the model, even as we get into something like quantum computers, which, um, frankly are still hard to conceptualize.
But I agree. I think that what the good news outta this interview is I feel like there's a lot of pieces in place to try to do this right, to have this tremendous shift in computing that we don't know when it's coming, but I think that the research indicates that it SI coming, be something that we can handle, um, rather than something that overwhelms us.
And I think that's really,it's good to hear that good people are trying to do the right thing here since it's not inevitable.

JASON KELLEY: Yeah, and it is nice when someone's sort of best vision for what the future looks like is hopefully your life. You will have no impacts from this because everything will be taken care of. That's always good.
I mean, it sounds like, you know, the main thing for EFF is, as you said, we have to make sure that security engineers, hackers have the resources that they need to protect us from these kinds of threats and, and other kinds of threats obviously.
But, you know, that's part of EFF's job, like you mentioned. Our job is to make sure that there are people able to do this work and be protected while doing it so that when the. Solutions do come about. You know, they work and they're implemented and the average person doesn't have to know anything and isn't vulnerable.

CINDY COHN: Yeah, I also think that, um, I appreciated her vision that this is a, you know, the future's gonna be not just one. Size fits all solution, but a menu of things that take into account, you know, both what works better in terms of, you know, bandwidth and compute time, but also what you know, what people actually need.
And I think that's a piece that's kind of built into the way that this is happening that's also really hopeful. In the past and, and I was around when EFF built the DES cracker, um, you know, we had a government that was saying, you know, you know, everything's fine, everything's fine when everybody knew that things weren't fine.
So it's also really hopeful that that's not the position that NIST is taking now, and that's not the position that people who may not even pick the NIST standards but pick other standards are really thinking through.

JASON KELLEY: Yeah, it's very helpful and positive and nice to hear when something has improved for the better. Right? And that's what happened here. We had this, this different attitude from, you know, government at large in the past and it's changed and that's partly thanks to EFF, which is amazing.

CINDY COHN: Yeah, I think that's right. And, um, you know, we'll see going forward, you know, the governments change and they go through different things, but this is, this is a hopeful moment and we're gonna push on through to this future.
I think there's a lot of, you know, there's a lot of worry about quantum computers and what they're gonna do in the world, and it's nice to have a little vision of, not only can we get it right, but there are forces in place that are getting it right. And of course it does my heart so, so good that, you know, someone like Deirdre was inspired by Snowden and dove deep and figured out how to be one of the people who was building the better world. We've talked to so many people like that, and this is a particular, you know, little geeky corner of the world. But, you know, those are our people and that makes me really happy.

JASON KELLEY: Thanks for joining us for this episode of How to Fix the Internet.
If you have feedback or suggestions, we'd love to hear from you. Visit EFF dot org slash podcast and click on listener feedback. While you're there, you can become a member, donate, maybe even pick up some merch and just see what's happening in digital rights this week and every week.
Our theme music is by Nat Keefe of BeatMower with Reed Mathis
How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology.
We’ll see you next time.
I’m Jason Kelley…

CINDY COHN: And I’m Cindy Cohn.

MUSIC CREDITS: This podcast is licensed creative commons attribution 4.0 international, and includes the following music licensed creative commons attribution 3.0 unported by its creators: Drops of H2O, The Filtered Water Treatment by Jay Lang. Sound design, additional music and theme remixes by Gaetan Harris.

We're wishing EFF a happy birthday on July 10! Since 1990, EFF's lawyers, activists, analysts, and technologists have used everything in their toolkit to ensure that technology supports freedom, justice, and innovation for all people of the world. They've seen it all and in this special edition of our EFFecting Change livestream series, leading experts at EFF will explore what's next for technology users.

Join EFF Executive Director Cindy Cohn, EFF Legislative Director Lee Tien, EFF Director for International Freedom of Expression Jillian C. York, and Professor / EFF Board Member Yoshi Kohno for this live Q&A. Learn what they have seen and how we can fuel the fight for privacy, free expression, and a future where digital freedoms are protected for everyone. 

We hope you and your friends can join us live! Be sure to spread the word, and share our past livestreams. Please note that all events will be recorded for later viewing on our YouTube page.

Want to make sure you don’t miss our next livestream? Here’s a link to sign up for updates about this series:eff.org/ECUpdates.

Two recent statements from the surveillance company—one addressing Illinois privacy violations and another defending the company's national surveillance network—reveal a troubling pattern: when confronted by evidence of widespread abuse, Flock Safety has blamed users, downplayed harms, and doubled down on the very systems that enabled the violations in the first place.

Flock's aggressive public relations campaign to salvage its reputation comes as no surprise. Last month, we described how investigative reporting from 404 Media revealed that a sheriff's office in Texas searched data from more than 83,000 automated license plate reader (ALPR) cameras to track down a woman suspected of self-managing an abortion. (A scenario that may have been avoided, it's worth noting, had Flock taken action when they were first warned about this threat three years ago).

Flock calls the reporting on the Texas sheriff's office "purposefully misleading," claiming the woman was searched for as a missing person at her family's request rather than for her abortion. But that ignores the core issue: this officer used a nationwide surveillance dragnet (again: over 83,000 cameras) to track someone down, and used her suspected healthcare decisions as a reason to do so. Framing this as concern for her safety plays directly into anti-abortion narratives that depict abortion as dangerous and traumatic in order to justify increased policing, criminalization, control—and, ultimately, surveillance.

Flock Safety has blamed users, downplayed harms, and doubled down on the very systems that enabled the violations in the first place.

As if that weren't enough, the company has also come under fire for how its ALPR network data is being actively used to assist in mass deportation. Despite U.S. Immigration and Customs Enforcement (ICE) having no formal agreement with Flock Safety, public records revealed "more than 4,000 nation and statewide lookups by local and state police done either at the behest of the federal government or as an 'informal' favor to federal law enforcement, or with a potential immigration focus." The network audit data analyzed by 404 exposed an informal data-sharing environment that creates an end-run around oversight and accountability measures: federal agencies can access the surveillance network through local partnerships without the transparency and legal constraints that would apply to direct federal contracts.

Flock Safety is adamant this is "not Flock's decision," and by implication, not their fault. Instead, the responsibility lies with each individual local law enforcement agency. In the same breath, they insist that data sharing is essential, loudly claiming credit when the technology is involved in cross-jurisdictional investigations—but failing to show the same attitude when that data-sharing ecosystem is used to terrorize abortion seekers or immigrants. 

In growing from a 2017 startup to a $7.5 billion company "serving over 5,000 communities," Flock allowed individual agencies wide berth to set and regulate their own policies. In effect, this approach offered cheap surveillance technology with minimal restrictions, leaving major decisions and actions in the hands of law enforcement while the company scaled rapidly.

And they have no intention of slowing down. Just this week, Flock launched its Business Network, facilitating unregulated data sharing amongst its private sector security clients. "For years, our law enforcement customers have used the power of a shared network to identify threats, connect cases, and reduce crime. Now, we're extending that same network effect to the private sector," Flock Safety's CEO announced. 

Flock Safety wooing law enforcement officers at the 2023 International Chiefs of Police Conference.

The company is building out a new mass surveillance network using the exact template that ended with the company having to retrain thousands of officers in Illinois on how not to break state law—the same template that made it easy for officers to do so in the first place. Flock's continued integration of disparate surveillance networks across the public and private spheres—despite the harms that have already occurred—is owed in part to the one thing that it's gotten really good at over the past couple of years: facilitating a surveillance social network. 

Employing marketing phrases like "collaboration" and "force multiplier," Flock encourages as much sharing as possible, going as far as to claim that network effects can significantly improve case closure rates. They cultivate a sense of shared community and purpose among users so they opt into good faith sharing relationships with other law enforcement agencies across the country. But it's precisely that social layer that creates uncontrollable risk.

The possibility of human workarounds at every level undermines any technical safeguards Flock may claim. Search term blocking relies on officers accurately labeling search intent—a system easily defeated by entering vague reasons like "investigation" or incorrect justifications, made either intentionally or not. And, of course, words like "investigation" or "missing person" can mean virtually anything, offering no value to meaningful oversight of how and for what the system is being used. Moving forward, sheriff's offices looking to avoid negative press can surveil abortion seekers or immigrants with ease, so long as they use vague and unsuspecting reasons. 

The same can be said for case number requirements, which depend on manual entry. This can easily be circumvented by reusing legitimate case numbers for unauthorized searches. Audit logs only track inputs, not contextual legitimacy. Flock's proposed AI-driven audit alerts, something that may be able to flag suspicious activity after searches (and harm) have already occurred, relies on local agencies to self-monitor misuse—despite their demonstrated inability to do so.

Flock operates as a single point of failure that can compromise—and has compromised—the privacy of millions of Americans simultaneously.

And, of course, even the most restrictive department policy may not be enough. Austin, Texas, had implemented one of the most restrictive ALPR programs in the country, and the program still failed: the city's own audit revealed systematic compliance failures that rendered its guardrails meaningless. The company's continued appeal to "local policies" means nothing when Flock's data-sharing network does not account for how law enforcement policies, regulations, and accountability vary by jurisdiction. You may have a good relationship with your local police, who solicit your input on what their policy looks like; you don't have that same relationship with hundreds or thousands of other agencies with whom they share their data. So if an officer on the other side of the country violates your privacy, it’d be difficult to hold them accountable. 

ALPR surveillance systems are inherently vulnerable to both technical exploitation and human manipulation. These vulnerabilities are not theoretical—they represent real pathways for bad actors to access vast databases containing millions of Americans' location data. When surveillance databases are breached, the consequences extend far beyond typical data theft—this information can be used to harass, stalk, or even extort. The intimate details of people's daily routines, their associations, and their political activities may become available to anyone with malicious intent. Flock operates as a single point of failure that can compromise—and has compromised—the privacy of millions of Americans simultaneously.

Rather than addressing legitimate concerns about privacy, security, and constitutional rights, Flock has only promised updates that fall short of meaningful reforms. These software tweaks and feature rollouts cannot assuage the fear engendered by the massive surveillance system it has built and continues to expand.

A typical specimen of Flock Safety's automated license plate readers.

Flock's insistence that what's happening with abortion criminalization and immigration enforcement has nothing to do with them—that these are just red-state problems or the fault of rogue officers—is concerning. Flock designed the network that is being used, and the public should hold them accountable for failing to build in protections from abuse that cannot be easily circumvented.

Thankfully, that's exactly what's happening: cities like Austin, San Marcos,  Denver, Norfolk, and San Diego are pushing back. And it's not nearly as hard a choice as Flock would have you believe: Austinites are weighing the benefits of a surveillance system that generates a hit less than 0.02% of the time against the possibility that scanning 75 million license plates will result in an abortion seeker being tracked down by police, or an immigrant being flagged by ICE in a so-called "sanctuary city." These are not hypothetical risks. It is already happening.

Given how pervasive, sprawling, and ungovernable ALPR sharing networks have become, the only feature update we can truly rely on to protect people's rights and safety is no network at all. And we applaud the communities taking decisive action to dismantle its surveillance infrastructure.

Follow their lead: don't stop de-flocking.

Today’s decision in Free Speech Coalition v. Paxton is a direct blow to the free speech rights of adults. The Court ruled that “no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” This ruling allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy. These are real and immense burdens on adults, and the Court was wrong to ignore them in upholding Texas’ law.  

Importantly, the Court's reasoning applies only to age-verification rules for certain sexual material, and not to age limits in general. We will continue to fight against age restrictions on online access more broadly, such as on social media and specific online features.  

Still, the decision has immense consequences for internet users in Texas and in other states that have enacted similar laws. The Texas law forces adults to submit personal information over the internet to access entire websites that hold some amount of sexual material, not just pages or portions of sites that contain specific sexual materials. Many sites that cannot reasonably implement age verification measures for reasons such as cost or technical requirements will likely block users living in Texas and other states with similar laws wholesale.  

Importantly, the Court's reasoning applies only to age-verification rules for certain sexual material, and not to age limits in general. 

Many users will not be comfortable sharing private information to access sites that do implement age verification, for reasons of privacy or concern for data breaches. Many others do not have a driver’s license or photo ID to complete the age verification process. This decision will, ultimately, deter adult users from speaking and accessing lawful content, and will endanger the privacy of those who choose to go forward with verification. 

In the 6-3 decision, the Court ruled that Texas’ HB 1181 is constitutional. This law requires websites that Texas decides are composed of “one-third” or more of “sexual material harmful to minors” to confirm the age of users by collecting age-verifying personal information from all visitors—even to access the other two-thirds of material that is not adult content.   

In 1997, the Supreme Court struck down a federal online age-verification law in Reno v. American Civil Liberties Union. In that case the court ruled that many elements of the Communications Decency Act violated the First Amendment, including part of the law making it a crime for anyone to engage in online speech that is "indecent" or "patently offensive" if the speech could be viewed by a minor. Like HB 1181, that law would have resulted in many users being unable to view constitutionally protected speech, as many websites would have had to implement age verification, while others would have been forced to shut down.  

In Reno and in subsequent cases, the Supreme Court ruled that laws that burden adults’ access to lawful speech are subjected to the highest level of review under the First Amendment, known as strict scrutiny. This level of scrutiny requires a law to be very narrowly tailored or the least speech-restrictive means available to the government.  

That all changed with the Supreme Court’s decision today.  

The Court now says that laws that burden adults’ access to sexual materials that are obscene to minors are subject to less-searching First Amendment review, known as intermediate scrutiny. And under that lower standard, the Texas law does not violate the First Amendment. The Court did not have to respond to arguments that there are less speech-restrictive ways of reaching the same goal—for example, encouraging parents to install content-filtering software on their children’s devices.

The court reached this decision by incorrectly assuming that online age verification is functionally equivalent to flashing an ID at a brick-and-mortar store. As we explained in our amicus brief, this ignores the many ways in which verifying age online is significantly more burdensome and invasive than doing so in person. As we and many others have previously explained, unlike with in-person age-checks, the only viable way for a website to comply with an age verification requirement is to require all users to upload and submit—not just momentarily display—a data-rich government-issued ID or other document with personal identifying information.  

This leads to a host of serious anonymity, privacy, and security concerns—all of which the majority failed to address. A person who submits identifying information online can never be sure if websites will keep that information or how that information might be used or disclosed. This leaves users highly vulnerable to data breaches and other security harms. Age verification also undermines anonymous internet browsing, even though courts have consistently ruled that anonymity is an aspect of the freedom of speech protected by the First Amendment.    

This Supreme Court broke a fundamental agreement between internet users and the state that has existed since its inception

The Court sidestepped its previous online age verification decisions by claiming the internet has changed too much to follow the precedent from Reno that requires these laws to survive strict scrutiny. Writing for the minority, Justice Kagan disagreed with the premise that the internet has changed: “the majority’s claim—again mistaken—that the internet has changed too much to follow our precedents’ lead.”   

But the majority argues that past precedent does not account for the dramatic expansion of the internet since the 1990s, which has led to easier and greater internet access and larger amounts of content available to teens online. The majority’s opinion entirely fails to address the obvious corollary: the internet’s expansion also has benefited adults. Age verification requirements now affect exponentially more adults than they did in the 1990s and burden vastly more constitutionally protected online speech. The majority's argument actually demonstrates that the burdens on adult speech have grown dramatically larger because of technological changes, yet the Court bizarrely interprets this expansion as justification for weaker constitutional protection. 

This Supreme Court broke a fundamental agreement between internet users and the state that has existed since its inception: the government will not stand in the way of people accessing First Amendment-protected material. There is no question that multiple states will now introduce similar laws to Texas. Two dozen already have, though they are not all in effect. At least three of those states have no limit on the percentage of material required before the law applies—a sweeping restriction on every site that contains any material that the state believes the law includes. These laws will force U.S.-based adult websites to implement age-verification or block users in those states, as many have in the past when similar laws were in effect.  

Rather than submit to verification, research has found that people will choose a variety of other paths: using VPNs to indicate that they are outside of the state, accessing similar sites that don’t comply with the law, often because the site is operating in a different country. While many users will simply not access the content as a result, others may accept the risk, at their peril.   

We expect some states to push the envelope in terms of what content they consider “harmful to minors,” and to expand the type of websites that are covered by these laws, either through updated language or threats of litigation. Even if these attacks are struck down, operators of sites that involve sexual content of any type may be under threat, especially if that information is politically divisive. We worry that the point of some of these laws will be to deter queer folks and others from accessing lawful speech and finding community online by requiring them to identify themselves. We will continue to fight to protect against the disclosure of this critical information and for people to maintain their anonymity. 

That said, the ruling does not give states or Congress the green light to impose age-verification regulations on the broader internet. The majority’s decision rests on the fact that minors do not have a First Amendment right to access sexual material that would be obscene. In short, adults have a First Amendment right to access those sexual materials, while minors do not. Although it was wrong, the majority’s opinion ruled that because Texas is blocking minors from speech they have no constitutional right to access, the age-verification requirement only incidentally burdens adult’s First Amendment rights.  

But the same rationale does not apply to general-audience sites and services, including social media. Minors and adults have coextensive rights to both speak and access the speech of other users on these sites because the vast majority of the speech is not sexual materials that would be obscene to minors. Lawmakers should be careful not to interpret this ruling to mean that broader restrictions on minors’ First Amendment rights, like those included in the Kids Online Safety Act, would be deemed constitutional.  

Free Speech Coalition v. Paxton will have an effect on nearly every U.S. adult internet user for the foreseeable future. It marks a worrying shift in the ways that governments can restrict access to speech online. But that only means we must work harder than ever to protect privacy, security, and free speech as central tenets of the internet.  

A Georgia court has decided that private non-profit Atlanta Police Foundation (APF) must comply with public records requests under the Georgia Open Records Act for some of its functions on behalf of the Atlanta Police Department. This is a major win for transparency in the state. 

 The lawsuit was brought last year by the Atlanta Community Press Collective (ACPC) and Electronic Frontier Alliance member Lucy Parsons Labs (LPL). It concerns the APF’s refusal to disclose records about its role as the leaser and manager of the site of so-called Cop City, the Atlanta Public Safety Training Center at the heart of a years-long battle that pitted local social and environmental movements against the APF. We’ve previously written about how APF and similar groups fund police surveillance technology, and how the Atlanta Police Department spied on the social media of activists opposed to Cop City.  

This is a big win for transparency and for local communities who want to maintain their right to know what public agencies are doing. 

Police Foundations often provide resources to police departments that help them avoid public oversight, and the Atlanta Police Foundation leads the way with its maintenance of the Loudermilk Video Integration Center and its role in Cop City, which will be used by public agencies including the Atlanta and other police departments. 

ACPC and LPL were represented by attorneys Joy Ramsingh, Luke Andrews, and Samantha Hamilton who had won the release of some materials this past December. The plaintiffs had earlier been represented by the University of Georgia School of Law First Amendment Clinic.  

The win comes at just the right time. Last Summer, the Georgia Supreme Court ruled that private contractors working for public entities are subject to open records laws. The Georgia state legislature then passed a bill to make it harder to file public records requests against private entities. With this month’s ruling, there is still time for the Atlanta Police Foundation to appeal the decision, but failing that, they will have to begin to comply with public records requests by the beginning of July.  

We hope that this will help ensure transparency and accountability when government agencies farm out public functions to private entities, so that local activists and journalists will be able to uncover materials that should be available to the general public. 

Things are speeding up in generative AI legal cases, with two judicial opinions just out on an issue that will shape the future of generative AI: whether training gen-AI models on copyrighted works is fair use. One gets it spot on; the other, not so much, but fortunately in a way that future courts can and should discount.

The core question in both cases was whether using copyrighted works to train Large Language Models (LLMs) used in AI chatbots is a lawful fair use. Under the US Copyright Act, answering that question requires courts to consider:

In both cases, the judges focused on factors (1) and (4).

In Bartz v. Anthropic, three authors sued Anthropic for using their books to train its Claude chatbot. In his order deciding parts of the case, Judge William Alsup confirmed what EFF has said for years: fair use protects the use of copyrighted works for training because, among other things, training gen-AI is “transformative—spectacularly so” and any alleged harm to the market for the original is pure speculation. Just as copying books or images to create search engines is fair, the court held, copying books to create a new, “transformative” LLM and related technologies is also protected:

[U]sing copyrighted works to train LLMs to generate new text was quintessentially transformative. Like any reader aspiring to be a writer, Anthropic’s LLMs trained upon works not to race ahead and replicate or supplant them—but to turn a hard corner and create something different. If this training process reasonably required making copies within the LLM or otherwise, those copies were engaged in a transformative use.

Importantly, Bartz rejected the copyright holders’ attempts to claim that any model capable of generating new written material that might compete with existing works by emulating their “sweeping themes, “substantive points,” or “grammar, composition, and style” was an infringement machine. As the court rightly recognized, building gen-AI models that create new works is beyond “anything that any copyright owner rightly could expect to control.” 

There’s a lot more to like about the Bartz ruling, but just as we were digesting it Kadrey v. Meta Platforms came out. Sadly, this decision bungles the fair use analysis.

Kadrey is another suit by authors against the developer of an AI model, in this case Meta’s ‘Llama’ chatbot. The authors in Kadrey asked the court to rule that fair use did not apply.

Much of the Kadrey ruling by Judge Vince Chhabria is dicta—meaning, the opinion spends many paragraphs on what it thinks could justify ruling in favor of the author plaintiffs, if only they had managed to present different facts (rather than pure speculation). The court then rules in Meta’s favor because the plaintiffs only offered speculation. 

But it makes a number of errors along the way to the right outcome. At the top, the ruling broadly proclaims that training AI without buying a license to use each and every piece of copyrighted training material will be “illegal” in “most cases.” The court asserted that fair use usually won’t apply to AI training uses even though training is a “highly transformative” process, because of hypothetical “market dilution” scenarios where competition from AI-generated works could reduce the value of the books used to train the AI model..

That theory, in turn, depends on three mistaken premises. First, that the most important factor for determining fair use is whether the use might cause market harm. That’s not correct. Since its seminal 1994 opinion in Cambell v Acuff-Rose, the Supreme Court has been very clear that no single factor controls the fair use analysis.

Second, that an AI developer would typically seek to train a model entirely on a certain type of work, and then use that model to generate new works in the exact same genre, which would then compete with the works on which it was trained, such that the market for the original works is harmed. As the Kadrey ruling notes, there was no evidence that Llama was intended to to, or does, anything like that, nor will most LLMs for the exact reasons discussed in Bartz.

Third, as a matter of law, copyright doesn't prevent “market dilution” unless the new works are otherwise infringing. In fact, the whole purpose of copyright is to be an engine for new expression. If that new expression competes with existing works, that’s a feature, not a bug.

Gen-AI is spurring the kind of tech panics we’ve seen before; then, as now, thoughtful fair use opinions helped ensure that copyright law served innovation and creativity. Gen-AI does raise a host of other serious concerns about fair labor practices and misinformation, but copyright wasn’t designed to address those problems. Trying to force copyright law to play those roles only hurts important and legal uses of this technology.

In keeping with that tradition, courts deciding fair use in other AI copyright cases should look to Bartz, not Kadrey.

This week, EFF joined EDRi and nearly 50 civil society organizations urging the European Commission’s President Ursula von der Leyen, Executive Vice President Henna Virkunnen, and Commissioners Michael McGrath and Hadja Lahbib to take immediate action and defend human rights in Hungary.

The European Commission has a responsibility to protect EU fundamental rights, including the rights of LGBTQ+ individuals in Hungary and across the Union

With Budapest Pride just two days away, Hungary has criminalized Pride marches and is planning to deploy real-time facial recognition technology to identify those participating in the event. This is a flagrant violation of fundamental rights, particularly the rights to free expression and assembly.

On April 15, a new amendment package went into effect in Hungary which authorizes the use of real-time facial recognition to identify protesters at ‘banned protests’ like LGBTQ+ events, and includes harsh penalties like excessive fines and imprisonment. This is prohibited by the EU Artificial Intelligence (AI) Act, which does not permit the use of real-time face recognition for these purposes.

This came on the back of members of Hungary’s Parliament rushing through three amendments in March to ban and criminalize Pride marches and their organizers, and permit the use of real-time facial recognition technologies for the identification of protestors. These amendments were passed without public consultation and are in express violation of the EU AI Act and Charter of Fundamental Rights. In response, civil society organizations urged the European Commission to put interim measures in place to rectify the violation of fundamental rights and values. The Commission is yet to respond—a real cause of concern.

This is an attack on LGBTQ+ individuals, as well as an attack on the rights of all people in Hungary. The letter urges the European Commission to take the following actions:

There's no question that, when EU law is at stake, the European Commission has a responsibility to protect EU fundamental rights, including the rights of LGBTQ+ individuals in Hungary and across the Union. This includes ensuring that those organizing and marching at Pride in Budapest are safe and able to peacefully assemble and protest. If the EU Commission does not urgently act to ensure these rights, it risks hollowing out the values that the EU is built from.

Read our full letter to the Commission here.

Can the cops get your online data? In short, yes. There are a variety of US federal and state laws which give law enforcement powers to obtain information that you provided to online services. But, there are steps you as a user and/or as a service provider can take to improve online privacy.

Law enforcement demanding access to your private online data goes back to the beginning of the internet. In fact, one of  EFF’s first cases, Steve Jackson Games v. Secret Service, exemplified the now all-too-familiar story where unfounded claims about illegal behavior resulted in overbroad seizures of user messages. But it’s not the ’90s anymore, the internet has become an integral part of everyone’s life. Everyone now relies on organizations big and small to steward our data, from huge service providers like Google, Meta, or your ISP, to hobbyists hosting a blog or Mastodon server. 

There is no “cloud,” just someone else's computer—and when the cops come knocking on their door, these hosts need to be willing to stand up for privacy, and know how to do so to the fullest extent under the law. These legal limits are also important for users to know, not only to mitigate risks in their security plan when choosing where to share data, but to understand whether these hosts are going to bat for them. Taking action together, service hosts and users can curb law enforcement getting more data than they’re allowed, protecting not just themselves but targeted populations, present and future.

This is distinct from law enforcement’s methods of collecting public data, such as the information now being collected on student visa applicants. Cops may use social media monitoring tools and sock puppet accounts to collect what you share publicly, or even within “private” communities. Police may also obtain the contents of communication in other ways that do not require court authorization, such as monitoring network traffic passively to catch metadata and possibly using advanced tools to partially reveal encrypted information. They can even outright buy information from online data brokers. Unfortunately there are few restrictions or oversight for these practices—something EFF is fighting to change.

Below however is a general breakdown of the legal processes used by US law enforcement for accessing private data, and what categories of private data these processes can disclose. Because this is a generalized summary, it is neither exhaustive nor should be considered legal advice. Please seek legal help if you have specific data privacy and security needs.

Type of data

Process used

Challenge prior to disclosure?

Proof needed

Subscriber information

Subpoena

Yes

Relevant to an investigation

Non-content information, metadata

Court order; sometimes subpoena

Yes

Specific and articulable facts that info is relevant to an investigation

Stored content

Search warrant

No

Probable cause that info will provide evidence of a crime

Content in transit

Super warrant

No

Probable cause plus exhaustion and minimization

The laws protecting private data online generally follow a pattern: the more sensitive the personal data is, the greater factual and legal burden police have to meet before they can obtain it. Although this is not exhaustive, here are a few categories of data you may be sharing with services, and why police might want to obtain it.

• Subscriber Data: Information you provide in order to use the service. Think about ID or payment information, IP address location, email, phone number, and other information you provided when signing up. 
  • Law enforcement can learn who controls an anonymous account, and find other service providers to gather information from.
• Non-content data, or "metadata": This is saved information about your interactions on the service; like when you used the service, for how long, and with whom. Analogous to what a postal worker can infer from a sealed letter with addressing information.
• Law enforcement can use this information to infer a social graph, login history, and other information about a suspect’s behavior.

• Stored content: This is the actual content you are sending and receiving, like your direct message history or saved drafts. This can cover any private information your service provider can access. 
• This most sensitive data is collected to reveal criminal evidence. Overly broad requests also allow for retroactive searches, information on other users, and can take information out of its original context. 
• Content in transit: This is the content of your communications as it is being communicated. This real-time access may also collect info which isn’t typically stored by a provider, like your voice during a phone call.
  • Law enforcement can compel providers to wiretap their own services for a particular user—which may also implicate the privacy of users they interact with.

When US law enforcement has identified a service that likely has this data, they have a few tools to legally compel that service to hand it over and prevent users from knowing information is being collected.

Subpoenas are demands from a prosecutor, law enforcement, or a grand jury which do not require approval of a judge before being sent to a service. The only restriction is this demand be relevant to an investigation. Often the only time a court reviews a subpoena is when a service or user challenges it in court.

Due to the lack of direct court oversight in most cases, subpoenas are prone to abuse and overreach. Providers should scrutinize such requests carefully with a lawyer and push back before disclosure, particularly when law enforcement tries to use subpoenas to obtain more private data, such as the contents of communications.

This is a similar demand to subpoenas, but usually pertains to a specific statute which requires a court to authorize the demand. Under the Stored Communications Act, for example, a court can issue an order for non-content information if police provide specific facts that the information being sought is relevant to an investigation. 

Like subpoenas, providers can usually challenge court orders before disclosure and inform the user(s) of the request, subject to law enforcement obtaining a gag order (more on this below). 

A warrant is a demand issued by a judge to permit police to search specific places or persons. To obtain a warrant, police must submit an affidavit (a written statement made under oath) establishing that there is a fair probability (or “probable cause”) that evidence of a crime will be found at a particular place or on a particular person. 

Typically services cannot challenge a warrant before disclosure, as these requests are already approved by a magistrate. Sometimes police request that judges also enter gag orders against the target of the warrant that prevent hosts from informing the public or the user that the warrant exists.

Police seeking to intercept communications as they occur generally face the highest legal burden. Usually the affidavit needs to not only establish probable cause, but also make clear that other investigation methods are not viable (exhaustion) and that the collection avoids capturing irrelevant data (minimization). 

Some laws also require high-level approval within law enforcement, such as leadership, to approve the request. Some laws also limit the types of crimes that law enforcement may use wiretaps in while they are investigating. The laws may also require law enforcement to periodically report back to the court about the wiretap, including whether they are minimizing collection of non-relevant communications. 

Generally these demands cannot be challenged while wiretapping is occurring, and providers are prohibited from telling the targets about the wiretap. But some laws require disclosure to targets and those who were communicating with them after the wiretap has ended. 

Many of the legal authorities described above also permit law enforcement to simultaneously prohibit the service from telling the target of the legal process or the general public that the surveillance is occurring. These non-disclosure orders are prone to abuse and EFF has repeatedly fought them because they violate the First Amendment and prohibit public understanding about the breadth of law enforcement surveillance.

This process isn't always clean-cut, and service providers must ultimately comply with lawful demands for user’s data, even when they challenge them and courts uphold the government’s demands. 

Service providers outside the US also aren’t totally in the clear, as they must often comply with US law enforcement demands. This is usually because they either have a legal presence in the US or because they can be compelled through mutual legal assistance treaties and other international legal mechanisms. 

However, services can do a lot by following a few best practices to defend user privacy, thus limiting the impact of these requests and in some cases make their service a less appealing door for the cops to knock on.

Paramount is the service provider's willingness to stand up for their users. Carving out exceptions or volunteering information outside of the legal framework erodes everyone's right to privacy. Even in extenuating and urgent circumstances, the responsibility is not on you to decide what to share, but on the legal process. 

Smaller hosts, like those of decentralized services, might be intimidated by these requests, but consulting legal counsel will ensure requests are challenged when necessary. Organizations like EFF can sometimes provide legal help directly or connect service providers with alternative counsel.

It’s not uncommon for law enforcement to overreach or make burdensome requests. Before offering information, services can push back on an improper demand informally, and then continue to do so in court. If the demand is overly broad, violates a user's First or Fourth Amendment rights, or has other legal defects, a court may rule that it is invalid and prevent disclosure of the user’s information.

Even if a court doesn’t invalidate the legal demand entirely, pushing back informally or in court can limit how much personal information is disclosed and mitigate privacy impacts.

Unless otherwise restricted, service providers should give notice about requests and disclosures as soon as they can. This notice is vital for users to seek legal support and prepare a defense.

It is important for users to understand if a host is committed to pushing back on data requests to the full extent permitted by law. Privacy policies with fuzzy thresholds like "when deemed appropriate" or “when requested” make it ambiguous if a user’s right to privacy will be respected. The best practices for providers not only require clarity and a willingness to push back on law enforcement demands, but also a commitment to be transparent with the public about law enforcement’s demands. For example, with regular transparency reports breaking down the countries and states making these data requests.

Social media services should also consider clear guidelines for finding and removing sock puppet accounts operated by law enforcement on the platform, as these serve as a backdoor to government surveillance.

You can't be compelled to disclose data you don’t have. If you collect lots of user data, law enforcement will eventually come demanding it. Operating a service typically requires some collection of user data, even if it’s just login information. But the problem is when information starts to be collected beyond what is strictly necessary. 

This excess collection can be seen as convenient or useful for running the service, or often as potentially valuable like behavioral tracking used for advertising. However, the more that’s collected, the more the service becomes a target for both legal demands and illegal data breaches. 

For data that enables desirable features for the user, design choices can make privacy the default and give users additional (preferably opt-in) sharing choices. 

As another minimization strategy, hosts should regularly and automatically delete information when it is no longer necessary. For example, deleting logs of user activity can limit the scope of law enforcement’s retrospective surveillance—maybe limiting a court order to the last 30 days instead of the lifetime of the account. 

Again design choices, like giving users the ability to send disappearing messages and deleting them from the server once they’re downloaded, can also further limit the impact of future data requests. Furthermore, these design choices should have privacy-preserving default

Depending on the service being hosted there may be some need to rely on another service to make everything work for users. Third-party login or ad services are common examples with some amount of tracking built in. Information shared with these third-parties should also be minimized and avoided, as they may not have a strict commitment to user privacy. Most notoriously, data brokers who sell advertisement data can provide another legal work-around for law enforcement by letting them simply buy collected data across many apps. This extends to decisions about what information is made public by default, thus accessible to many third parties, and if that is clear to users.

Now that HTTPS is actually everywhere, most traffic between a service and a user can be easily secured—for free. This limits what onlookers can collect on users of the service, since messages between the two are in a secure “envelope.” However, this doesn’t change the fact the service is opening this envelope before passing it along to other users, or returning it to the same user. With each opened message, this is more information to defend.

Better, is end-to-end encryption (e2ee), which just means providing users with secure envelopes that even the service provider cannot open. This is how a featureful messaging app like Signal can respond to requests with only three pieces of information: the account identifier (phone number), the date of creation, and the last date of access. Many services should follow suit and limit access through encryption.

Note that while e2ee has become a popular marketing term, it is simply inaccurate for describing any encryption use designed to be broken or circumvented. Implementing “encryption backdoors” to break encryption when desired, or simply collecting information before or after the envelope is sealed on a user’s device (“client-side scanning”) is antithetical to encryption. Finally, note that e2ee does not protect against law enforcement obtaining the contents of communications should they gain access to any device used in the conversation, or if message history is stored on the server unencrypted.

As outlined, often the security of your personal data depends on the service providers you choose to use. But as a user you do still have some options. EFF’s Surveillance Self-Defense is a maintained resource with many detailed steps you can take. In short, you need to assess your risks, limit the services you use to those you can trust (as much as you can), improve settings, and when all else fails, accessorize with tools that prevent data sharing in the first place—like EFF’s Privacy Badger browser extension.

Remember that privacy is a team sport. It’s not enough to make these changes as an individual, it’s just as important to share and educate others, as well as fighting for better digital privacy policy on all levels of governance. Learn, get organized, and take action.