Deeplinks

This post was written by EFF legal intern Alexa Chavara.

Black box technology has no place in the criminal legal system. That’s why we’ve once again filed an amicus brief arguing that the both the defendant and the public have a right to information regarding face recognition technology (FRT) that was used during an investigation to identify a criminal defendant.

Back in June 2023, we filed an amicus brief along with Electronic Privacy Information Center (EPIC) and the National Association of Criminal Defense Lawyers (NACDL) in State of New Jersey v. Arteaga. We argued that information regarding the face recognition technology used to identify the defendant should be disclosed due to the fraught process of a face recognition search and the many ways that inaccuracies manifest in the use of the technology. The New Jersey appellate court agreed, holding that state prosecutors must turn over detailed information to the defendant about the FRT used, including how it works, its source code, and its error rate. The court held that this ensures the defendant’s due process rights with the ability to examine the information, scrutinize its reliability, and build a defense.

Last month, partnering with the same organizations, we filed another amicus brief in favor of transparency regarding FRT in the criminal system, this time in the New Jersey Supreme Court in State of New Jersey v. Miles.

In Miles, New Jersey law enforcement used FRT to identify Mr. Miles as a suspect in a criminal investigation. The defendant, represented by the same public defender in Arteaga, moved for discovery on information about the FRT used, relying on Arteaga. The trial court granted this request for discovery, and the appellate court affirmed. The State then appealed to the New Jersey Supreme Court, where the issue is before the Court for the first time.

As explained in our amicus brief, disclosure is necessary to ensure criminal prosecutions are based on accurate evidence. Every search using face recognition technology presents a unique risk of error depending on various factors from the specific FRT system used, the databases searched, the quality of the photograph, and the demographics of the individual. Study after study shows that facial recognition algorithms are not always reliable, and that error rates spike significantly when involving faces of people of color,  especially Black women, as well as trans and nonbinary people.

Moreover, these searches often determine the course of investigation, reinforcing errors and resulting in numerous wrongful arrests, most often of Black folks. Discovery is the last chance to correct harm from misidentification and to allow the defendant to understand the evidence against them.

Furthermore, the public, including independent experts, have the right to examine the technology used in criminal proceedings. Under the First Amendment and the more expansive New Jersey Constitution corollary, the public’s right to access criminal judicial proceedings includes filings in pretrial proceedings, like the information being sought here. That access provides the public meaningful oversight of the criminal justice system and increases confidence in judicial outcomes, which is especially significant considering the documented risks and shortcomings of FRT.

The European Commission has taken an important step toward protecting minors online by releasing draft guidelines under Article 28 of the Digital Services Act (DSA). EFF recently submitted feedback to the Commission’s Targeted Consultation, emphasizing a critical point: Online safety for young people must not come at the expense of privacy, free expression, and equitable access to digital spaces.

We support the Commission’s commitment to proportionality, rights-based protections, and its efforts to include young voices in shaping these guidelines. But we remain deeply concerned by the growing reliance on invasive age assurance and verification technologies—tools that too often lead to surveillance, discrimination, and censorship.

Age verification systems typically depend on government-issued ID or biometric data, posing significant risks to privacy and shutting out millions of people without formal documentation. Age estimation methods fare no better: they’re inaccurate, especially for marginalized groups, and often rely on sensitive behavioral or biometric data. Meanwhile, vague mandates to protect against “unrealistic beauty standards” or “potentially risky content” threaten to overblock legitimate expression, disproportionately harming vulnerable users, including LGBTQ+ youth.

By placing a disproportionate emphasis on age assurance as a necessary tool to safeguard minors, the guidelines do not address the root causes of risks encountered by all users, including minors, and instead merely focus on treating their symptoms.

Safety matters—but so do privacy, access to information, and the fundamental rights of all users. We urge the Commission to avoid endorsing disproportionate, one-size-fits-all technical solutions. Instead, we recommend user-empowering approaches: Strong default privacy settings, transparency in recommender systems, and robust user control over the content they see and share.

The DSA presents an opportunity to protect minors while upholding digital rights. We hope the final guidelines reflect that balance.

Read more about digital identity and the future of age verification in Europe here.

U.S. sanctions on Syria have for several decades not only restricted trade and financial transactions, they’ve also severely limited Syrians’ access to digital technology. From software development tools to basic cloud services, Syrians were locked out of the global internet economy—stifling innovation, education, and entrepreneurship.

EFF has for many years pushed for sanctions exemptions for technology in Syria, as well as in Sudan, Iran, and Cuba. While civil society had early wins in securing general licenses for Iran and Sudan allowing the export of communications technologies, the conflict in Syria that began in 2011 made loosening of sanctions a pipe dream.

But recent changes to U.S. policy could mark the beginning of a shift. In a quiet yet significant move, the U.S. government has eased sanctions on Syria. On May 23, the Treasury Department issued General License 25, effectively allowing technology companies to provide services to Syrians. This decision could have an immediate and positive impact on the lives of millions of Syrian internet users—especially those working in the tech and education sectors.

For years, Syrians have found themselves barred from accessing even the most basic tools. U.S. sanctions meant that companies like Google, Apple, Microsoft, and Amazon—either by law or by cautious decisions taken to avoid potential penalties—restricted access to many of their services. Developers couldn’t access GitHub repositories or use Google Cloud; students couldn’t download software for virtual classrooms; and entrepreneurs struggled to build startups without access to payment gateways or secure infrastructure.

Such restrictions can put users in harm’s way; for instance, not being able to access the Google Play store from inside the country means that Syrians can’t easily download secure versions of everyday tools like Signal or WhatsApp, thus potentially subjecting their communications to surveillance.

These restrictions also compounded the difficulties of war, economic collapse, and internal censorship. Even when Syrian tech workers could connect with global communities, their participation was hampered by legal gray zones and technical blocks.

Under General License 25, companies will now be able to provide services to Syria that have never officially been available. While it may take time for companies to catch up with any regulatory changes, it is our hope that Syrians will soon be able to access and make use of technologies that will enable them to more freely communicate and rebuild.

For Syrian developers, the impact could be transformative. Restored access to platforms like GitHub, AWS, and Google Cloud means the ability to build, test, and deploy apps without the need for VPNs or workarounds. It opens the door to participation in global hackathons, remote work, and open-source communities—channels that are often lifelines for those in conflict zones. Students and educators stand to benefit, too. With sanctions eased, educational tools and platforms that were previously unavailable could soon be accessible. Entrepreneurs may also finally gain access to secure communications, e-commerce platforms, and the broader digital infrastructure needed to start and scale businesses. These developments could help jumpstart local economies.

Despite the good news, challenges remain. Major tech companies have historically been slow to respond to sanctions relief, often erring on the side of over-compliance to avoid liability. Many of the financial and logistical barriers—such as payment processing, unreliable internet, and ongoing conflict—will not disappear overnight.

Moreover, the lifting of sanctions is not a blanket permission slip; it’s a cautious opening. Any future geopolitical shifts or changes in U.S. foreign policy could once again cut off access, creating an uncertain digital future for Syrians.

Nevertheless, by removing barriers imposed by sanctions, the U.S. is taking a step toward recognizing that access to technology is not a luxury, but a necessity—even in sanctioned or conflict-ridden countries.

For Syrian users, the lifting of tech sanctions is more than a bureaucratic change—it’s a door, long closed, beginning to open. And for the international tech community, it’s an opportunity to re-engage, responsibly and thoughtfully, with a population that has been cut off from essential services for too long.

Join us for our next EFFecting Change livestream this Thursday! We're talking about emerging laws and platform policies that affect the digital privacy and free expression rights of the LGBT+ community, and how this echoes the experience of marginalized people across the world.

Join our panel featuring EFF Senior Staff Technologist Daly Barnett, EFF Legislative Activist Rindala Alajaji, Chosen Family Law Center Senior Legal Director Andy Izenson, and Woodhull Freedom Foundation Chief Operations Officer Mandy Salley while they discuss what is happening and what should change to protect digital freedom.

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.

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State, federal, and international regulators are increasingly concerned about the harms they believe the internet and new technology are causing to users of all categories. Lawmakers are currently considering many proposals that are intended to provide protections to the most vulnerable among us. Too often, however, those proposals do not carefully consider the likely unintended consequences or even whether the law will actually reduce the harms it’s supposed to target. That’s why EFF supports Rep. Sara Jacobs’ newly reintroduced “My Body, My Data" Act, which will protect the privacy and safety of people seeking reproductive health care, while maintaining important constitutional protections and avoiding any erosion of end-to-end encryption. 

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Tell Congress to Protect Reproductive Health Data

Privacy fears should never stand in the way of healthcare. That's why this common-sense bill will require businesses and non-governmental organizations to act responsibly with personal information concerning reproductive health care. Specifically, it restricts them from collecting, using, retaining, or disclosing reproductive health information that isn't essential to providing the service someone requests.

The bill would protect people who use fertility or period-tracking apps or are seeking information about reproductive health services.

These restrictions apply to companies that collect personal information related to a person’s reproductive or sexual health. That includes data related to pregnancy, menstruation, surgery, termination of pregnancy, contraception, basal body temperature or diagnoses. The bill would protect people who, for example, use fertility or period-tracking apps or are seeking information about reproductive health services. 

We are proud to join Planned Parenthood Federation of America, Reproductive Freedom for All, Physicians for Reproductive Health, National Partnership for Women & Families, National Women’s Law Center,  Center for Democracy and Technology, Electronic Privacy Information Center, National Abortion Federation, Catholics for Choice, National Council for Jewish Women, Power to Decide, United for Reproductive & Gender Equity, Indivisible, Guttmacher, National Network of Abortion Funds, and All* Above All in support of this bill. 

In addition to the restrictions on company data processing, this bill also provides people with necessary rights to access and delete their reproductive health information. Companies must also publish a privacy policy, so that everyone can understand what information companies process and why. It also ensures that companies are held to public promises they make about data protection and gives the Federal Trade Commission the authority to hold them to account if they break those promises. 

The bill also lets people take on companies that violate their privacy with a strong private right of action. Empowering people to bring their own lawsuits not only places more control in the individual's hands, but also ensures that companies will not take these regulations lightly. 

Finally, while Rep. Jacobs' bill establishes an important national privacy foundation for everyone, it also leaves room for states to pass stronger or complementary laws to protect the data privacy of those seeking reproductive health care. 

We thank Rep. Jacobs and Sens. Mazie Hirono and Ron Wyden for taking up this important bill, H.R. 3916, and using it as an opportunity not only to protect those seeking reproductive health care, but also highlight why data privacy is an important element of reproductive justice. 

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A Senate bill re-introduced this week threatens security and free speech on the internet. EFF urges Congress to reject the STOP CSAM Act of 2025 (S. 1829), which would undermine services offering end-to-end encryption and force internet companies to take down lawful user content.   

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Tell Congress Not to Outlaw Encrypted Apps

As in the version introduced last Congress, S. 1829 purports to limit the online spread of child sexual abuse material (CSAM), also known as child pornography. CSAM is already highly illegal. Existing law already requires online service providers who have actual knowledge of “apparent” CSAM on their platforms to report that content to the National Center for Missing and Exploited Children (NCMEC). NCMEC then forwards actionable reports to law enforcement agencies for investigation. 

S. 1829 goes much further than current law and threatens to punish any service that works to keep its users secure, including those that do their best to eliminate and report CSAM. The bill applies to “interactive computer services,” which broadly includes private messaging and email apps, social media platforms, cloud storage providers, and many other internet intermediaries and online service providers. 

The bill makes it a crime to intentionally “host or store child pornography” or knowingly “promote or facilitate” the sexual exploitation of children. The bill also opens the door for civil lawsuits against providers for the intentional, knowing or even reckless “promotion or facilitation” of conduct relating to child exploitation, the “hosting or storing of child pornography,” or for “making child pornography available to any person.”  

The terms “promote” and “facilitate” are broad, and civil liability may be imposed based on a low recklessness state of mind standard. This means a court can find an app or website liable for hosting CSAM even if the app or website did not even know it was hosting CSAM, including because the provider employed end-to-end encryption and could not view the contents of content uploaded by users.

Creating new criminal and civil claims against providers based on broad terms and low standards will undermine digital security for all internet users. Because the law already prohibits the distribution of CSAM, the bill’s broad terms could be interpreted as reaching more passive conduct, like merely providing an encrypted app.  

Due to the nature of their services, encrypted communications providers who receive a notice of CSAM may be deemed to have “knowledge” under the criminal law even if they cannot verify and act on that notice. And there is little doubt that plaintiffs’ lawyers will (wrongly) argue that merely providing an encrypted service that can be used to store any image—not necessarily CSAM—recklessly facilitates the sharing of illegal content.  

While the bill includes an affirmative defense that a provider can raise if it is “technologically impossible” to remove the CSAM without “compromising encryption,” it is not sufficient to protect our security. Online services that offer encryption shouldn’t have to face the impossible task of proving a negative in order to avoid lawsuits over content they can’t see or control. 

First, by making this protection an affirmative defense, providers must still defend against litigation, with significant costs to their business. Not every platform will have the resources to fight these threats in court, especially newcomers that compete with entrenched giants like Meta and Google. Encrypted platforms should not have to rely on prosecutorial discretion or favorable court rulings after protracted litigation. Instead, specific exemptions for encrypted providers should be addressed in the text of the bill.  

Second, although technologies like client-side scanning break encryption, members of Congress have misleadingly claimed otherwise. Plaintiffs are likely to argue that providers who do not use these techniques are acting recklessly, leading many apps and websites to scan all of the content on their platforms and remove any content that a state court could find, even wrongfully, is CSAM.

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Tell Congress Not to Outlaw Encrypted Apps

The bill allows a new type of lawsuit to be filed against internet platforms, accusing them of “facilitating” child sexual exploitation based on the speech of others. It does this by creating an exception to Section 230, the foundational law of the internet and online speech. Section 230 provides partial immunity to internet intermediaries when sued over content posted by their users. Without that protection, platforms are much more likely to aggressively monitor and censor users.

Section 230 creates the legal breathing room for internet intermediaries to create online spaces for people to freely communicate around the world, with low barriers to entry. However, creating a new exception that exposes providers to more lawsuits will cause them to limit that legal exposure. Online services will censor more and more user content and accounts, with minimal regard as to whether that content is in fact legal. Some platforms may even be forced to shut down or may not even get off the ground in the first place, for fear of being swept up in a flood of litigation and claims around alleged CSAM. On balance, this harms all internet users who rely on intermediaries to connect with their communities and the world at large. 

California lawmakers are continuing to promote a bill that will reinforce the power of giant AI companies by burying small AI companies and non-commercial developers in red tape, copyright demands and potentially, lawsuits. After several amendments, the bill hasn’t improved much, and in some ways has actually gotten worse. If A.B. 412 is passed, it will make California’s economy less innovative, and less competitive. 

A.B. 412 masquerades as a transparency bill, but it’s actually a government-mandated “reading list” that will allow rights holders to file a new type of lawsuit in state court, even as the federal courts continue to assess whether and how federal copyright law applies to the development of generative AI technologies. 

The bill would require developers—even two-person startups— to keep lists of training materials that are “registered, pre-registered or indexed” with the U.S. Copyright Office, and help rights holders create digital ‘fingerprints’ of those works—a technical task with no established standards and no realistic path for small teams to follow. Even if it were limited to registered copyrighted material, that’s a monumental task, as we explained in March when we examined the earlier text of A.B. 412. 

The bill’s amendments have made compliance even harder, since it now requires technologists to go beyond copyrighted material and somehow identify “pre-registered” copyrights. The amended bill also has new requirements that demand technologists document and keep track of when they look at works that aren’t copyrighted but are subject to exclusive rights, such as pre-1972 sound recordings—rights that, not coincidentally, are primarily controlled by large entertainment companies. 

The penalties for noncompliance are steep—up to $1,000 per day per violation—putting small developers at enormous financial risk even for accidental lapses.

The goal of this list is clear: for big content companies to more easily file lawsuits against software developers, big and small. And for most AI developers, the burden will be crushing. Under A.B. 412, a two-person startup building an open-source chatbot, or an indie developer fine-tuning a language model for disability access, would face the same compliance burdens as Google or Meta. 

It’s critical to remember that AI training is very likely protected by fair use under U.S. copyright law—a point that’s still being worked out in the courts. The idea that we should preempt that process with sweeping state regulation is not just premature; it’s dangerous.

It’s also worth noting that copyright is governed by federal law. Federal courts are already working to define the boundaries of fair use and copyright in the AI context—the California legislature should let them do their job. A.B. 412 tries to create a state-level regulatory scheme in an area that belongs in federal hands—a risky legal overreach that could further complicate an already unsettled policy space.

A.B. 412 is a solution in search of a problem. The courthouse doors are far from closed to content owners who want to dispute the use of their copyrighted works. There are multiple high-profile litigations over the copyright status of AI training works that are working their way through trial courts and appeal courts right now. 

Rather than narrowing its focus to make compliance more realistic, the latest amendments to A.B. 412 actually expand the scope of covered works. The bill now demands documentation of obscure categories of content like pre-1972 sound recordings. These recordings have rights that are often murky, and largely controlled by major media companies.

The bill also adds “preregistered” and indexed works to its coverage. Preregistration, designed to help entertainment companies punish unauthorized copying even before commercial release, expands the universe of content that developers must track—without offering any meaningful help to small creators. 

Ironically, the companies that will benefit most from A.B. 412 are the very same large tech firms that lawmakers often claim they want to regulate. Big companies can hire teams of lawyers and compliance officers to handle these requirements. Small developers? They’re more likely to shut down, sell out, or never enter the field in the first place.

This bill doesn’t create a fairer marketplace. It builds a regulatory moat around the incumbents, locking out new competitors and ensuring that only a handful of companies have the resources to develop advanced AI systems. Truly innovative technology often comes from unknown or small companies, but A.B. 412 threatens to turn California—and anyone who does business there—into a fortress where only the biggest players survive.

A.B. 412 is becoming an increasingly extreme and one-sided piece of legislation. It’s a maximalist wishlist for legacy rights-holders, delivered at the expense of small developers and the public. The result will be less competition, less innovation, and fewer choices for consumers—not more protection for creators.

This new version does close a few loopholes, and expands the period for AI developers to respond to copyright demands from 7 days to 30 days. But it seriously fails to close others: for instance, the exemption for noncommercial development applies only to work done “exclusively for noncommercial academic or governmental” institutions. That still leaves a huge window to sue hobbyists and independent researchers who don’t have university or government jobs. 

While the bill nominally exempts developers who use only public or developer-owned data, that’s a carve-out with no practical value. Like a search engine, nearly every meaningful AI system relies on mixed sources — and developers can’t realistically track the copyright status of them all.

At its core, A.B. 412 is a flawed bill that would harm the whole U.S. tech ecosystem. Lawmakers should be advancing policies that protect privacy, promote competition, and ensure that innovation benefits the public—not just a handful of entrenched interests.

If you’re a California resident, now is the time to speak out. Tell your legislators that A.B. 412 will hurt small companies, help big tech, and lock California’s economy in the past.

Once upon a time we were promised flying cars and jetpacks. Yet we've arrived at a more complicated timeline where rights advocates can find themselves defending our hard-earned freedoms more often than shooting for the moon. In tough times, it's important to remember that your vision for the future can be just as valuable as the work you do now.

Thirty-five years ago, a small group of folks saw the coming digital future and banded together to ensure that technology would empower people, not oppress them—and EFF was born. While the dangers of corporate and state forces grew alongside the internet, EFF and supporters like you faithfully rose to the occasion. Will you help celebrate EFF’s 35th anniversary and donate in support of digital freedom?

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Together we’ve won many fights for encryption, free speech, innovation, and privacy online. Yet it’s plain to see that we must keep advocating for technology users whether that’s in the courts, before lawmakers, educating the public, or creating privacy-enhancing tools. EFF members make it possible—you can lend a hand and get some great perks!

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The Markup revealed in its reporting last month that New York City’s Administration for Children’s Services (ACS) has been quietly deploying an algorithmic tool to categorize families as “high risk". Using a grab-bag of factors like neighborhood and mother’s age, this AI tool can put families under intensified scrutiny without proper justification and oversight.

ACS knocking on your door is a nightmare for any parent, with the risk that any mistakes can break up your family and have your children sent to the foster care system. Putting a family under such scrutiny shouldn’t be taken lightly and shouldn’t be a testing ground for  automated decision-making by the government.

 This “AI” tool, developed internally by ACS’s Office of Research Analytics, scores families for “risk” using 279 variables and subjects those deemed highest-risk to intensified scrutiny. The lack of transparency, accountability, or due process protections demonstrates that ACS has learned nothing from the failures of similar products in the realm of child services.

The algorithm operates in complete secrecy and the harms from this opaque “AI theater” are not theoretical. The 279 variables are derived only from cases back in 2013 and 2014 where children were seriously harmed. However, it is unclear how many cases were analyzed, what, if any, kind of auditing and testing was conducted, and whether including of data from other years would have altered the scoring.

What we do know is disturbing: Black families in NYC face ACS investigations at seven times the rate of white families and ACS staff has admitted that the agency is more punitive towards Black families, with parents and advocates calling its practices “predatory.” It is likely that the algorithm effectively automates and amplifies this discrimination.

Despite the disturbing lack of transparency and accountability, ACS’s usage of this system has subjected families that this system ranks as “highest risk” to additional scrutiny, including possible home visits, calls to teachers and family, or consultations with outside experts. But those families, their attorneys, and even caseworkers don't know when and why the system flags a case, making it difficult to challenge the circumstances or process that leads to this intensified scrutiny.

This is not the only incidence in which usage of AI tools in the child services system has encountered issues with systemic biases. Back in 2022, the Associated Press reported that Carnegie Mellon researchers found that from August 2016 to May 2018, Allegheny County in Pennsylvania used an algorithmic tool that flagged 32.5% of Black children for “mandatory” investigation compared to just 20.8% of white, all while social workers disagreed with the algorithm's risk scores about one-third of the time.

The Allegheny system operates with the same toxic combination of secrecy and bias now plaguing NYC. Families and their attorneys can never know their algorithmic scores, making it impossible to challenge decisions that could destroy their lives. When a judge asked to see a family’s score in court, the county resisted, claiming it didn't want to influence legal proceedings with algorithmic numbers, which suggests that the scores are too unreliable for judicial scrutiny yet acceptable for targeting families.

Elsewhere these biased systems were successfully challenged. The developers of the Allegheny tool had already had their product rejected in New Zealand, where researchers correctly identified that the tool would likely result in more Māori families being tagged for investigation. Meanwhile, California spent $195,273 developing a similar tool before abandoning it in 2019 due in part to concerns about racial equity.

Governmental deployment of automated and algorithmic decision making not only perpetuates social inequalities, but removes mechanisms for accountability when agencies make mistakes. The state should not be using these tools for rights-determining decisions and any other uses must be subject to vigorous scrutiny and independent auditing to ensure the public’s trust in the government’s actions.

There has been a crescendo of states attempting to criminalize the wearing of face coverings while attending protests. Now the President has demanded, in the context of ongoing protests in Los Angeles: “ARREST THE PEOPLE IN FACE MASKS, NOW!”

But the truth is: whether you are afraid of catching an airborne illness from your fellow protestors, or you are concerned about reprisals from police or others for expressing your political opinions in public, you should have the right to wear a mask. Attempts to criminalize masks at protests fly in the face of a right to privacy.

Anonymity is a fundamental human right.

In terms of public health, wearing a mask while in a crowd can be a valuable tool to prevent the spread of communicable illnesses. This can be essential for people with compromised immune systems who still want to exercise their First Amendment-protected right to protest.

Moreover, wearing a mask is a perfectly legitimate surveillance self-defense practice during a protest. There has been a massive proliferation of surveillance camera networks, face recognition technology, and databases of personal information. There also is a long law enforcement’s history of harassing and surveilling people for publicly criticizing or opposing law enforcement practices and other government policies. What’s more, non-governmental actors may try to identify protesters in order to retaliate against them, for example, by limiting their employment opportunities.

All of this may chill our willingness to speak publicly or attend a protest in a cause we believe in. Many people would be less willing to attend a rally or march if they know that a drone or helicopter, equipped with a camera, will take repeated passes over the crowd, and police later will use face recognition to scan everyone’s faces and create a list of protest attendees. This would make many people rightfully concerned about surveillance and harassment from law enforcement.

Anonymity is a fundamental human right. EFF has long advocated for anonymity online. We’ve also supported low-tech methods to protect our anonymity from high-tech snooping in public places; for example, we’ve supported legislation to allow car owners to use license plate covers when their cars are parked to reduce their exposure to ALPRs.

A word of caution. No surveillance self-defense technique is perfect. Technology companies are trying to develop ways to use face recognition technology to identify people wearing masks. But if somebody wants to hide their face to try to avoid government scrutiny, the government should not punish them.

While members of the public have a right to wear a mask when they protest, law enforcement officials should not wear a mask when they arrest protesters and others. An elementary principle of police accountability is to require uniformed officers to identify themselves to the public; this discourages officer misconduct, and facilitates accountability if an officer violates the law. This is one reason EFF has long supported the First Amendment right to record on-duty police, including ICE officers.

For these reasons, EFF believes it is wrong for state legislatures, and now federal law enforcement, to try to criminalize or punish mask wearing at protests. It is especially wrong, in moments like the present, where government it taking extreme measures to crack down on the civil liberties of protesters.