The rapidly escalating conflict between Anthropic and the Pentagon, which started when the company refused to let the government use its technology to spy on Americans, has now gone to court. The Department of Defense retaliated by designating the company a “supply chain risk” (SCR). Now, Anthropic is asking courts to block the designation, arguing that the First Amendment does not permit the government to coerce a private actor to rewrite its code to serve government ends.

We agree.

As EFF, the Foundation for Individual Rights and Expression, and multiple other public interest organizations explained in a brief filed in support of Anthropic’s motion, the development and operation of large language models involve multiple expressive choices protected by the First Amendment. Requiring a company to rewrite its code to remove guardrails means compelling different expression, a clear constitutional violation. Further, the public record shows that the SCR designation is intended to punish the company both for pushing back and for its CEO’s public statements explaining that AI may supercharge surveillance practices that current law has proven ill-equipped to address.

As we also explain, the company’s concerns about how the government will use its technology are well-founded. The U.S. government has a long history of illegally surveilling its citizens without adequate judicial oversight based on questionable interpretations of its Constitutional and statutory obligations. The Department of Defense acquires vast troves of personal information from commercial entities, including individuals’ physical location, social media, and web browsing data. Other government agencies continue to collect and query vast quantities of Americans’ information, including by acquiring information from third party data brokers.

A growing body of social science research illustrates the chilling effects of these pervasive activities. Fearing retribution for unpopular views, dissenters stay silent. And AI only exacerbates the problem. AI can quickly analyze the government’s massive datasets or combine that information with data scraped off the internet, purchased through the commercial data broker market, or from local police surveillance devices and use all of that data to construct a comprehensive picture of a person’s life and infer sensitive details like their religious beliefs, medical conditions, political opinions, or even sex partners. For example, an agency could use AI to infer an individual’s association with a particular mosque based on data showing that they visited its website, followed its social media accounts, and were located near the mosque during religious services. AI can also deanonymize online speech by using public information to unmask anonymous users.

It is easy to conceive how an agency, a government employee with improper intent, or a malicious hacker could exploit these capabilities to monitor public discourse, preemptively squelch dissent, or persecute people from marginalized communities. Against this background and absent meaningful changes to the governing national security laws and judicial oversight structure, it is entirely reasonable for Anthropic—or any other company—to insist on its own guardrails.

Without action from Congress, the task of protecting your privacy has fallen in large part to Big Tech—something no one wants, including Big Tech. But if Congress won’t do it, companies like Anthropic must be allowed to step in, without facing retribution.

In honor of International Women’s Day, we asked five women at EFF about women in digital rights, freedom of expression, technology, and tech activism who have inspired us.  

Anna Politkovskaya 

Jillian York, Activist 
This International Women’s Day, I want to honor the memory of Anna Politkovskaya, the Russian investigative journalist who relentlessly exposed political and social abuses, endured harassment and violence for her work, and was ultimately killed for telling the truth. I had just started my career when I learned of her death, and it forced me to confront that freedom of expression isn’t an abstract principle but rather something people risk—and sometimes lose—their lives for. 

Her story reminds me that journalism at its best is an act of moral courage, not just a profession. In the face of threats, poison, and relentless pressure to stay silent, she chose to continue writing about what she saw, insisting that ordinary people’s lives were worth the world’s attention. She refused to compromise with power, even when she knew it could cost her life. To me, defending freedom of expression means defending those like Anna who bear witness to injustice, prioritize truth, and hold power to account for those whose voices are silenced.  

Cindy Cohn 

Corynne McSherry, Legal Director 
There are so many women who have shaped tech history—most of whom are still unsung heroes—that it’s hard to single out just one. But it’s easier this year because it’s a chance to celebrate my boss, Cindy Cohn, before she leaves EFF for her next adventure.  

Cindy has been fighting for our digital rights for 30 years, leading EFF’s legal work and eventually the whole organization. She helped courts understand that code is speech deserving of constitutional protections at a time when many judges weren’t entirely sure what code even was. She led the fight against NSA spying, and even though outdated and ill-fitting doctrines like the state secrets privilege prevented courts from ruling on the obvious unconstitutionality of the NSA’s mass surveillance program, the fight itself led to real reforms that have expanded over time.   

I’ve worked closely with her for much of her EFF career, starting in 2005 when we sued Sony for installing spyware in millions of computers, and I’ve seen firsthand her work as a visionary lawyer, outstanding writer, and tireless champion for user privacy, free expression, and innovation. She’s also warm and funny, with the biggest heart in the world, and I’m proud to call her a friend as well as a mentor.  

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Jane

Sarah Hamid, Activist 
When talking about women in tech, we usually mean founders, engineers, and executives. But just as important are the women who quietly built the practices that underpin today’s movement security culture. 

For as long as social movements have organized in the shadow of state surveillance, women have been designing the protocols, mutual aid networks, and information flows that keep people alive. Those threats feel ever-escalating: fusion‑center monitoring of protests, federal agencies infiltrating and subpoenaing encrypted Signal and social media chats, prosecutors mining search histories.  

In the late 1960s and early 1970s, the underground Jane abortion counseling service—formally the Abortion Counseling Service of Women’s Liberation—built what we would now recognize as a feminist infosec project for abortion access. Jane connected an estimated 11,000 people with safer abortions before Roe v. Wade, using a single public phone number—“Call Jane”—paired with code names, compartmentalized roles, and minimal records so no one person held the full story of who needed care, who was providing it, and where. When Chicago police raided the collective in 1972, members destroyed their index‑card files rather than let them become a ready‑made map of patients and helpers—an analog secure‑deletion choice that should feel familiar to anyone who has ever wiped a phone or locked down a shared drive. 

The lesson we should take from Jane is a set of principles that still hold in our encrypted‑but‑insecure present: Collect less, separate what you do collect, and be ready to burn the file box. When a search query, a location ping, or a solidarity post can become evidence, treating information as both lifeline and liability is not paranoia—it is care work.  

Ebele Okobi

Babette Ngene, Director of Public Interest Technology 
In the winter of 2013, I had just landed my first job at the intersection of tech and human rights, working for a prominent nonprofit and I was encouraged to attend regular tech and policy events around town. One such event on internet governance was happening at George Washington University,  focusing on multi-stakeholder engagement on internet policy and governance issues, with companies, nonprofits, and government representatives in attendance. I was inexperienced with these topics, and I’ll admit I was a bit intimidated. 

Then I saw her. She was the only woman on the opening panel, an African woman, an accomplished woman. Not only was she a respected lawyer at Yahoo at the time, but her impressive background, presence, and confident speaking style immediately inspired me. She made me feel like I, too, belonged in that room and could become a powerful voice. 

Ebele Okobi would go on to become one of the most powerful and respected voices in the tech and human rights space, known for her advocacy for digital rights and responsible innovation across Africa and the broader global majority during her tenure at Facebook. Beyond her corporate advocacy, Ebele has consistently championed ethical technology and social justice. She embodies the leadership qualities I value most: empathy, speaking truth to power, integrity, and authenticity. 

I remain in the tech and human rights space because I saw her, because seeing her made me feel seen. Representation truly does matter.  

Ada Lovelace 

Allison Morris, Chief Development Director 
I’m not a lawyer, activist, or technologist; I’m a fundraiser and a lover of stories. And what storyteller at EFF couldn’t help but love Ada Lovelace? The daughter of Lord Byron—the human embodiment of Romanticism—Ada was an innovator in math and science and, ultimately, the writer of the first computer program.  

Lovelace saw the potential in Charles Babbage’s theoretical General Purpose Computer (which was never actually built) and created the foundations of modern computing long before the digital age. In creating the first computer code, Lovelace took Babbage’s concept of a machine that could perform mathematical calculations and realized that it could manipulate symbols as well as numbers. 

Given the expectations of women in her time and the controversy of what work should be attributed to Lovelace as opposed to the man she often worked with, I can’t help but be inspired by her story.  

Women in tech deserve more and brighter spotlights. At EFF, we’ve had the honor of celebrating some of our heroes at our annual EFF Awards, including many women who are leading the digital rights community. For International Women’s Day, we also highlighted the contributions of just a few of these recipients from the last decade, whose work to protect privacy, speech, and creativity online has had a global impact.

OpenAI, the maker of ChaptGPT, is rightfully facing widespread criticism for its decisions to fill the gap the U.S. Department of Defense (DoD) created when rival Anthropic refused to drop its restrictions against using its AI for surveillance and autonomous weapons systems. After protests from both users and employees who did not sign up to support government mass surveillance—early reports show that ChaptGPT uninstalls rose nearly 300% after the company announced the deal—Sam Altman, CEO of OpenAI, conceded that the initial agreement was “opportunistic and sloppy.” He then re-published an internal memo on social media stating that additions to the agreement made clear that “Consistent with applicable laws, including the Fourth Amendment to the United States Constitution, National Security Act of 1947, [and] FISA Act of 1978, the AI system shall not be intentionally used for domestic surveillance of U.S. persons and nationals.”

Trouble is, the U.S. government doesn’t believe “consistent with applicable laws” means “no domestic surveillance.” Instead, for the most part, the government has embraced a lax interpretation of “applicable law” that has blessed mass surveillance and large-scale violations of our civil liberties, and then fought tooth and nail to prevent courts from weighing in. 

"After all, many of the world’s most notorious human rights atrocities have historically been “legal” under existing laws at the time."

“Intentionally” is also doing an awful lot of work in that sentence. For years the government has insisted that the mass surveillance of U.S. persons only happens incidentally (read: not intentionally) because their communications with people both inside the United States and overseas are swept up in surveillance programs supposedly designed to only collect communications outside the United States. 

The company’s amendment to the contract continues in a similar vein, “For the avoidance of doubt, the Department understands this limitation to prohibit deliberate tracking, surveillance, or monitoring of U.S. persons or nationals, including through the procurement or use of commercially acquired personal or identifiable information.” Here, “deliberate” is the red flag given how often intelligence and law enforcement agencies rely on incidental or commercially purchased data to sidestep stronger privacy protections.

Here’s another one: “The AI System shall not be used for unconstrained monitoring of U.S. persons’ private information as consistent with these authorities. The system shall also not be used for domestic law-enforcement activities except as permitted by the Posse Comitatus Act and other applicable law.” What, one wonders, does “unconstrained” mean, precisely—and according to whom? 

Lawyers sometimes call these “weasel words” because they create ambiguity that protects one side or another from real accountability for contract violations. As with the Anthropic negotiations, where the Pentagon reportedly agreed to adhere to Anthropic’s red lines only “as appropriate,” the government is likely attempting to publicly commit to limits in principle, but retain broad flexibility in practice.

OpenAI also notes that the Pentagon promised the NSA would not be allowed to use OpenAI’s tools absent a new agreement, and that its deployment architecture will help it verify that no red lines are crossed. But secret agreements and technical assurances have never been enough to rein in surveillance agencies, and they are no substitute for strong, enforceable legal limits and transparency.

OpenAI executives may indeed be trying, as claimed, to use the company’s contractual relationship with the Pentagon to help ensure that the government should use AI tools only in a way consistent with democratic processes. But based on what we know so far, that hope seems very naïve.

Moreover, that naïvete is dangerous. In a time when governments are willing to embrace extreme and unfounded interpretations of “applicable laws,” companies need to put some actual muscle behind standing by their commitments. After all, many of the world’s most notorious human rights atrocities have historically been “legal” under existing laws at the time. OpenAI promises the public that it will  “avoid enabling uses of AI or AGI that harm humanity or unduly concentrate power,” but we know that enabling mass surveillance does both.     

OpenAI isn’t the only consumer-facing company that is, on the one hand, seeking to reassure the public that they aren’t participating in actions that violate human rights while, on the other, seeking to cash in on government mass surveillance efforts.  Despite this marketing double-speak, it is very clear that companies just cannot do both. It’s also clear that companies shouldn’t be given that much power over the limits of our privacy to begin with. The public should not have to rely on a small group of people—whether CEOs or Pentagon officials—to protect our civil liberties.

Who should be directly liable for online infringement – the entity that serves it up or a user who embeds a link to it? For almost two decades, most U.S. courts have held that the former is responsible, applying a rule called the server test. Under the server test, whomever controls the server that hosts a copyrighted work—and therefore determines who has access to what and how—can be directly liable if that content turns out to be infringing. Anyone else who merely links to it can be secondarily liable in some circumstances (for example, if that third party promotes the infringement), but isn’t on the hook under most circumstances.

The test just makes sense. In the analog world, a person is free to tell others where they may view a third party’s display of a copyrighted work, without being directly liable for infringement if that display turns out to be unlawful. The server test is the straightforward application of the same principle in the online context. A user that links to a picture, video, or article isn’t in charge of transmitting that content to the world, nor are they in a good position to know whether that content violates copyright. In fact, the user doesn’t even control what’s located on the other end of the link—the person that controls the server can change what’s on it at any time, such as swapping in different images, re-editing a video or rewriting an article.

But a news publisher, Emmerich Newspapers, wants the Fifth Circuit to reject the server test, arguing that the entity that embeds links to the content is responsible for “displaying” it and, therefore, can be directly liable if the content turns out to be infringing. If they are right, the common act of embedding is a legally fraught activity and a trap for the unwary.

The Court should decline, or risk destabilizing fundamental, and useful, online activities. As we explain in an amicus brief filed with several public interest and trade organizations, linking and embedding are not unusual, nefarious, or misleading practices. Rather, the ability to embed external content and code is a crucial design feature of internet architecture, responsible for many of the internet’s most useful functions. Millions of websites—including EFF’s—embed external content or code for everything from selecting fonts and streaming music to providing services like customer support and legal compliance. The server test provides legal certainty for internet users by assigning primary responsibility to the person with the best ability to prevent infringement. Emmerich’s approach, by contrast, invites legal chaos.

Emmerich also claims that altering a URL violates the Digital Millennium Copyright Act’s prohibition on changing or deleting copyright management information. If they are correct, using a link shortener could put users at risks of statutory penalties—an outcome Congress surely did not intend.

Both of these theories would make common internet activities legally risky and undermine copyright’s Constitutional purpose: to promote the creation of and access to knowledge. The district court recognized as much and we hope the appeals court agrees.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

In the Netflix/Spotify/Amazon era, many of us access copyrighted works purely in digital form – and that means we rarely have the chance to buy them. Instead, we are stuck renting them, subject to all kinds of terms and conditions. And because the content is digital, reselling it, lending it, even preserving it for your own use inevitably requires copying. Unfortunately, when it comes to copying digital media, US copyright law has pretty much lost the plot.

As we approach the 50th anniversary of the 1976 Copyrights, the last major overhaul of US copyright law, we’re not the only ones wondering if it’s time for the next one. It’s a high-risk proposition, given the wealth and influence of entrenched copyright interests who will not hesitate to send carefully selected celebrities to argue for changes that will send more money, into fewer pockets, for longer terms. But it’s equally clear that and nowhere is that more evident than the waning influence of Section 109, aka the first sale doctrine.

First sale—the principle that once you buy a copyrighted work you have the right to re-sell it, lend it, hide it under the bed, or set it on fire in protest—is deeply rooted in US copyright law. Indeed, in an era where so many judges are looking to the Framers for guidance on how to interpret current law, it’s worth noting that the first sale principles (also characterized as “copyright exhaustion”) can be found in the earliest copyright cases and applied across the rights in the so-called “copyright bundle.”

Unfortunately, courts have held that first sale, at least as it was codified in the Copyright Act, only applies to distribution, not reproduction. So even if you want to copy a rented digital textbook to a second device, and you go through the trouble of deleting it from the first device, the doctrine does not protect you.

We’re all worse off as a result. Our access to culture, from hit songs to obscure indie films, are mediated by the whims of major corporations. With physical media the first sale principle built bustling second hand markets, community swaps, and libraries—places where culture can be shared and celebrated, while making it more affordable for everyone.

And while these new subscription or rental services have an appealing upfront cost, it comes with a lot more precarity. If you love rewatching a show, you may be chasing it between services or find it is suddenly unavailable on any platform. Or, as fans of Mad Men or Buffy the Vampire Slayer know, you could be stuck with a terrible remaster as the only digital version available

Last year we saw one improvement with California Assembly Bill 2426 taking effect. In California companies must now at least disclose to potential customers if a “purchase” is a revocable license—i.e. If they can blow it up after you pay. A story driving this change was Ubisoft revoking access to “The Crew” and making customers’ copies unplayable a decade after launch. 

On the federal level, EFF, Public Knowledge, and 15 other public interest organizations backed Sen. Ron Wyden’s message to the FTC to similarly establish clear ground rules for digital ownership and sales of goods. Unfortunately FTC Chairman Andrew Ferguson has thus far turned down this easy win for consumers.

As for the courts, some scholars think they have just gotten it wrong. We agree, but it appears we need Congress to set them straight. The Copyright Act might not need a complete overhaul, but Section 109 certainly does. The current version hurts consumers, artists, and the millions of ordinary people who depend on software and digital works every day for entertainment, education, transportation, and, yes, to grow our food. 

We realize this might not be the most urgent problem Congress confronts in 2026—to be honest, we wish it was—but it’s a relatively easy one to solve. That solution could release a wave of new innovation, and equally importantly, restore some degree of agency to American consumers by making them owners again.

You might not know it, given the many headlines focused on new questions about copyright and Generative AI, but the year’s biggest copyright case concerned an old-for-the-internet question: do ISPs have to be copyright cops? After years of litigation, that question is now squarely before the Supreme Court. And if the Supreme Court doesn’t reverse a lower court’s ruling, ISPs could be forced to terminate people’s internet access based on nothing more than mere accusations of copyright infringement. This would threaten innocent users who rely on broadband for essential aspects of daily life.

The Stakes: Turning ISPs into Copyright Police

This issue turns on what courts call “secondary liability,” which is the legal idea that someone can be held responsible not for what they did directly, but for what someone else did using their product or service. The case began when music companies sued Cox Communications, arguing that the ISP should be held liable for copyright infringement committed by some of its subscribers. The Court of Appeals for the Fourth Circuit agreed, adopting a “material contribution” standard for contributory copyright liability (a rule for when service providers can be held liable for the actions of users). Under that standard, providing a service that could be used for infringement is enough to create liability when a customer infringes.

The Fourth Circuit’s rule would have devastating consequences for the public. Given copyright law’s draconian penalties, ISP would be under enormous pressure to terminate accounts whenever they get an infringement notice, whether or not the actual accountholder has infringed anything: entire households, schools, libraries, or businesses that share an internet connection. These would include:

• Public libraries, which provide internet access to millions of Americans who lack it at home, could lose essential service.
• Universities, hospitals, and local governments could see internet access for whole communities disrupted.
• Households—especially in low-income and communities of color, which disproportionately share broadband connections with other people—would face collective punishment for the alleged actions of a single user.

And with more than a third of Americans having only one or no broadband provider, many users would have no way to reconnect.

EFF—along with the American Library Association, the Association of Research Libraries, and Re:Create—filed an amicus brief urging the Court to reverse the Fourth Circuit’s decision, taking guidance from patent law. In the Patent Act, where Congress has explicitly defined secondary liability, there’s a different test: contributory infringement exists only where a product is incapable of substantial non-infringing use. Internet access, of course, is overwhelmingly used for lawful purposes, making it the very definition of a “staple article of commerce” that can’t be liable under the patent framework.

The Supreme Court held a hearing in the case on December 1, and a majority of the justices seemed troubled by the implications of the Fourth Circuit’s ruling. One exchange was particularly telling: asked what should happen when the notices of infringement target a university account upon which thousands of people rely, Sony’s counsel suggested the university could resolve the issue by essentially slowing internet speeds so infringement might be less appealing. It’s hard to imagine the university community would agree that research, teaching, artmaking, library services, and the myriad other activities that rely on internet access should be throttled because of the actions of a few students. Hopefully the Supreme Court won’t either.

We expect a ruling in the case in the next few months. Fingers crossed that the Court rejects the Fourth Circuit’s draconian rule.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2025.

Since earliest days of computer games, people have tinkered with the software to customize their own experiences or share their vision with others. From the dad who changed the game’s male protagonist to a girl so his daughter could see herself in it, to the developers who got their start in modding, games have been a medium where you don’t just consume a product, you participate and interact with culture.

For decades, that participatory experience was a key part of one of the longest-running video games still in operation: Everquest. Players had the official client, acquired lawfully from EverQuest’s developers, and modders figured out how to enable those clients to communicate with their own servers and then modify their play experience – creating new communities along the way.

Everquest’s copyright owners implicitly blessed all this. But the current owners, a private equity firm called Daybreak, want to end that independent creativity. They are using copyright claims to threaten modders who wanted to customize the EverQuest experience to suit a different playstyle, running their own servers where things worked the way they wanted. 

One project in particular is in Daybreak’s crosshairs: “The Hero’s Journey” (THJ). Daybreak claims THJ has infringed its copyrights in Everquest visuals and character, cutting into its bottom line.

Ordinarily, when a company wants to remedy some actual harm, its lawyers will start with a cease-and-desist letter and potentially pursue a settlement. But if the goal is intimidation, a rightsholder is free to go directly to federal court and file a complaint. That’s exactly what Daybreak did, using that shock-and-awe approach to cow not only The Hero’s Journey team, but unrelated modders as well.

Daybreak’s complaint seems to have dazzled the judge in the case by presenting side-by-side images of dragons and characters that look identical in the base game and when using the mod, without explaining that these images are the ones provided by EverQuest’s official client, which players have lawfully downloaded from the official source. The judge wound up short-cutting the copyright analysis and issuing a ruling that has proven devastating to the thousands of players who are part of EverQuest modding communities.

Daybreak and the developers of The Hero’s Journey are now in private arbitration, and Daybreak has wasted no time in sending that initial ruling to other modders. The order doesn’t bind anyone who’s unaffiliated with The Hero’s Journey, but it’s understandable that modders who are in it for fun and community would cave to the implied threat that they could be next.

As a result, dozens of fan servers have stopped operating. Daybreak has also persuaded the maintainers of the shared server emulation software that most fan servers rely upon, EQEmulator, to adopt terms of service that essentially ban any but the most negligible modding. The terms also provide that “your operation of an EQEmulator server is subject to Daybreak’s permission, which it may revoke for any reason or no reason at any time, without any liability to you or any other person or entity. You agree to fully and immediately comply with any demand from Daybreak to modify, restrict, or shut down any EQEmulator server.” 

This is sadly not even an uncommon story in fanspaces—from the dustup over changes to the Dungeons and Dragons open gaming license to the “guidelines” issued by CBS for Star Trek fan films, we see new generations of owners deciding to alienate their most avid fans in exchange for more control over their new property. It often seems counterintuitive—fans are creating new experiences, for free, that encourage others to get interested in the original work.

Daybreak can claim a shameful victory: it has imposed unilateral terms on the modding community that are far more restrictive than what fair use and other user rights would allow. In the process, it is alienating the very people it should want to cultivate as customers: hardcore Everquest fans. If it wants fans to continue to invest in making its games appeal to broader audiences and serve as testbeds for game development and sources of goodwill, it needs to give the game’s fans room to breathe and to play.

If you’ve been a target of Daybreak’s legal bullying, we’d love to hear from you; email us at info@eff.org.