No one should have to choose between speaking freely and protecting their immigration status. Yet that’s precisely the choice the Trump administration’s mass surveillance of online speech forces on noncitizens living in the U.S.   

Last fall, we sued on behalf of three major labor unions to stop this surveillance program. And just this month, we won our first major ruling: A federal district court denied the government’s motion to dismiss our lawsuit. This means the case can move forward—a win for free speech and a critical step in protecting our First Amendment rights online. We’ve already explained why this is a big deal for our clients, so let's take a closer look at the court’s reasoning.  

Our Lawsuit 

 Since taking power, the Trump administration has used AI and other automated tools to broadly surveil the social media and online speech of visa and green card holders, with the goal of identifying and punishing people who express views it opposes. The government is targeting a broad range of views, including criticism of the Trump administration; support for Palestine or criticism of Israel; “rationalizing or making light of” Charlie Kirk’s murder; and anything nebulously “hostile” to American culture, founding principles, “traditional American views,” or “our way of life.”  

It has paired that surveillance with a public intimidation campaign. High-ranking officials have explicitly threatened to punish noncitizens for their online speech, then followed through with a series of terrifying viewpoint-driven enforcement actions. This has led to a significant chilling effect on speech, not just for noncitizens, but also for their families, coworkers, and friends. 

In response, three major labor unions—the United Auto Workers (UAW), the Communications Workers of America (CWA), and the American Federation of Teachers (AFT)—sued the Departments of State and Homeland Security alleging that this viewpoint-based surveillance program violates the First Amendment and the Administrative Procedure Act (APA).  The unions are represented by EFF, Muslim Advocates (MA), and the Media Freedom & Information Access Clinic (MFIA). 

The government moved to dismiss our lawsuit, arguing first that federal immigration law prevents federal district courts from hearing the case, and second, that the unions don’t have “standing” to sue. Judge Alvin K. Hellerstein of the Southern District of New York rejected both arguments and allowed the case to proceed. At this stage in the litigation, the court accepted all of the facts in our complaint as true and analyzed the law based on those facts. We will now prove these facts as the case proceeds. 

Federal Immigration Law Doesn’t Block Our Lawsuit 

 The government first argued that the court had no power to hear our case at all. It pointed to three provisions of the Immigration and Nationality Act (INA) that restrict when federal courts can review immigration matters. The district court disagreed and rejected each provision in turn. 

The first provision, 8 U.S.C. § 1252(b)(9), is often called the “zipper clause.” It bars federal courts from hearing challenges that arise from efforts to deport someone, except through review of an individual’s final removal order. The government claimed the zipper clause applies here because our lawsuit is really an effort to stop it from initiating adverse immigration actions. 

 The district court wholly rejected this argument. Relying on the Second Circuit’s decision in Ozturk v. Hyde, it held that the zipper clause bars only challenges to a particular individual’s removal proceedings, not a lawsuit like ours that challenges the constitutionality of the surveillance program itself. That the surveillance program might affect someone’s immigration proceeding down the line doesn’t turn our lawsuit into a removal challenge. 

 The court similarly rejected the government’s argument that § 1252(g) and § 1252(f)(1) prevent federal courts from hearing this case. Our suit, the court explained, “challenges the constitutionality of a government policy that is collateral to any active removal proceedings,” so § 1252(g) doesn’t apply. And § 1252(f)(1) only limits what kind of relief a court can give. So while the court may not be able to stop a particular person’s removal proceedings, it can still block “an unlawful surveillance program that suppresses free speech.” 

 The Unions Have Standing to Sue 

 To sue in federal court, a plaintiff must show that it has “standing” to bring its claims. This requires a plaintiff to show an “injury in fact” that is, among other things, “concrete.” That’s often a high bar in surveillance cases, where plaintiffs can’t easily see what the government is doing behind the scenes. And the Supreme Court has held that a person’s mere subjective fear of surveillance is too speculative to confer standing.  

Even so, our plaintiffs cleared the bar. The court held that the unions alleged concrete injuries, including a chill on members’ speech that is objectively reasonable, not just subjectively felt. It found that the unions had established standing in two ways: “organizational standing,” based on the unions’ own injuries, and “associational standing,” based on injuries the unions’ members have suffered. 

Organizational Standing 

The court first held that our plaintiffs had successfully alleged an injury to the unions themselves (injury was the only aspect of organizational standing the government disputed). The surveillance program has harmed the unions’ ability to carry out their core responsibilities, including “organizing their members and advocating for the unions’ goals.” The court made two key points: 

1. Unions Are Injured When Members Go Silent 

As we explained in our complaint, the surveillance program has caused members to step back from union leadership roles; stop participating in union activities online and in person; remove their names from union webpages; and avoid filling out bargaining surveys. Members who might otherwise spread the unions’ message and raise awareness of union issues are staying quiet, hampering the unions’ ability to organize. The court said this amounts to a concrete injury for purposes of standing. 

2. Surveillance Doesn’t Need to Target Pro-Union Speech  

 The court also rejected the government’s claim that members’ retreat from union activities was “essentially an overreaction,” because the surveillance doesn't target pro-union views. The court said this misunderstands the issue: “the question is whether the Government’s conduct would deter a person of ordinary firmness from engaging in protected activity, not whether the specific expression a member forgoes is itself among the viewpoints the Government disfavors.” 

Here, the surveillance program monitors noncitizens’ online activity indiscriminately, and members “cannot reliably predict which of their activities will be captured” and attributed to a disfavored viewpoint. What’s more, the court noted, the unions’ organizing often happens alongside the very advocacy the government is alleged to target, “including pro-Palestine and anti-ICE activism on college campuses.” That makes members’ retreat from union activity a foreseeable consequence of the program. 

Associational Standing  

 The court also held that the unions established associational standing to sue on behalf of their members. Of the three requirements for associational standing, the government challenged only two. It argued that members lacked sufficiently concrete injuries to sue in their own right, and that the claims aren’t “germane” to the unions’ purpose. 

The court disagreed and found associational standing for every claim but one: members’ right to receive information. That claim survives anyway, because the unions’ organizational standing covers it. Along the way, the court made several important rulings. 

 1. The Ongoing Surveillance Is a Present Injury 

 As a threshold matter, the government argued that our case is a “pre-enforcement challenge,” meaning we sued before the government actually punished anyone. That would trigger a different test, and the government argued we failed it because we hadn’t alleged a sufficiently imminent threat of prosecution. 

The court disagreed, explaining that “Plaintiffs’ allegations are of an ongoing surveillance program that is actively chilling the speech of their members and otherwise causing harm.” That chilling effect is a First Amendment injury even if there isn’t a direct prohibition on speech. And when government conduct is actively chilling speech right now, a challenge to it isn’t pre-enforcement. 

 2. Surveillance + Public Threats Reasonably Chills Speech 

 The court rejected the government’s argument that we alleged only a generalized, subjective, speculative fear of surveillance, explaining that “the chilling effect” of the program can “itself be an injury when the plaintiffs are surveilled.” Here, plaintiffs have alleged that their members are under active surveillance, which has had objective chilling effects on their speech. And the government is targeting certain disfavored viewpoints, making it “viewpoint discrimination” that is “presumptively unconstitutional.” 

The chill is also objectively reasonable, the court held, because the government has extensively publicized the surveillance program through public statements and social media posts, making clear that noncitizens who post disfavored views will be targeted for removal. Notably, the court agreed with us that the “threat of adverse immigration consequences, under a government whose harsh immigration crackdowns has been heavily publicized and reported on, is certainly enough to deter a person of ordinary firmness from the exercise of First Amendment rights.” This is a concrete injury sufficient for standing. 

3. Demanding Social Media Handles Also Causes Harm 

Under the surveillance program, applicants for certain immigration benefits must disclose all social media handles they have used during the preceding five years and, in some instances, maintain public social media accounts. The district court held that this too amounts to a First Amendment injury, undermining the rights to anonymity and freedom of association.  

The judge pointed to one CWA member we identified, a lawful permanent resident with a pending naturalization application who is subject to the five-year disclosure requirement. The member has deleted one social media account, set another to private, and removed past posts expressing disfavored views. These allegations, the court said, show an actual and objectively reasonable injury due to the government’s surveillance program.

4. General, Public Threats Can Still Be Coercive 

We also argued that the Trump administration is waging a campaign of coercive threats to suppress disfavored speech, which the First Amendment prohibits. The court agreed that this campaign can be an actionable injury of its own. 

Notably, the court held that it didn’t matter that the government’s statements were not specifically targeted at certain individuals, and were instead made on social media or to the public. In this case, the court explained, “the number, severity, and high-profile examples of action upon those threats are such that a reasonable person would perceive the communication as coercive.” 

That means it’s reasonable that the unions’ members “would, and did, limit their public speech on disfavored viewpoints” in response. That the threats were made to the general public “does not diminish this injury,” as the very purpose of the challenged surveillance program is to intimidate noncitizens into silence.  

5. Free Speech is Central to Union Functioning 

The court also found that the unions met the second prong of associational standing. It held that the unions’ interests in protecting their members’ rights to speak freely, organize, and advocate, are “germane” to the unions’ missions. The court put it plainly:

The freedom of Plaintiffs’ members to speak, associate, and appear publicly is not incidental to union work, but rather is the mechanism through which unions recruit, organize, communicate, and bargain. A program alleged to silence members and drive them from the unions’ rolls therefore strikes at the unions’ representational function itself.

Next Steps 

When the government surveils what people post online and threatens to punish them for their viewpoints, the result is exactly what our clients have experienced. Members have deleted their accounts, scrubbed posts, and withdrawn from union activities. 

The government must now answer our complaint and we will move forward with the discovery process, in which we anticipate getting more information from the government about its surveillance program. We look forward to continuing to prove our case. 

EFF legal intern Gabrielle Ladun was the principal author of this post. 

The Department of Homeland Security Office of Inspector General (DHS OIG) has published a summary of findings from its audit of the Transportation Security Administration’s (TSA) facial recognition technology. While the detailed findings are classified, the summary states that the OIG’s audit uncovered a “significant weakness” in the technology’s ability to protect the privacy of passenger data. This has massive privacy implications for the millions of passengers who travel and don’t opt out of the TSA’s biometric surveillance technology verification process. 

TSA uses facial comparison technology for identity verification of airline passengers. A camera takes a photo of passengers to verify that their provided identification matches their live photo. Although TSA states that it is “committed to protecting traveler privacy,” the audit highlights that this has not been the case.  

The OIG found that TSA’s Credential Authentication Technology 2’s (CAT-2) vendor “was able to access and extract sensitive passenger information, including driver’s license and passport images, during system troubleshooting and enhancements, without TSA’s knowledge.”  

The OIG further admonished the agency:  

TSA lacked clear policies, did not track when this data was extracted, could not verify that extracted information was properly deleted, and did not notify passengers when their biometric and biographic information may have been stored. As a result, although passenger information was generally protected during routine operations, weaknesses in vendor oversight created a risk that sensitive personal information could be retained or exposed. 

We hope the TSA will fix these issues. The OIG summary states: 

We issued one finding and three recommendations to strengthen controls, improve oversight, and ensure transparency and the proper handling of passenger data. TSA concurred with all three recommendations. Two recommendations are open and resolved, and one remains open and unresolved. 

Why EFF Opposes the Government’s Use of Facial Recognition Technology 

EFF has a long history of opposing governmental use of facial recognition technology. As the OIG’s audit underscores, this technology presents privacy risks associated with unsecured data, unauthorized access, and data breaches. The government’s use of this technology also creates a mass surveillance system and facilitates the creation of warrantless biometric records for unconsenting parties.  

The biometric data captured by this technology is not without errors. There have been multiple instances of law enforcement agencies using facial recognition technology to misidentify and arrest innocent individuals.  

Reminder: Opting Out of TSA Photos Is Possible 

Given that facial recognition technology is prone to mistakes, combined with the OIG’s audit revealing significant privacy weaknesses, it is imperative that travelers remember that opting out is possible. TSA’s own website emphasizes that travelers who wish to decline to have their photo taken for facial comparison can do so without any delay, disruption, or recourse.  

Considering the data protection weaknesses exposed by the OIG’s audit, EFF will continue to oppose this governmental system of mass surveillance and spread awareness to ensure that no one is forced to relinquish their biometric data without consent. 

In an extremely disappointing ruling, a California trial court dismissed SIREN v. San Jose, our case challenging the city of San Jose’s warrantless searches of its vast stores of automated license plate reader (ALPR) data. EFF and the ACLU of Northern California represent SIREN and CAIR California, two non-profits that serve San Jose residents, in this case.

Make no mistake: We believe this ruling is wrong on the law, and we will appeal. The ruling ignores the importance of landmark rulings from the U.S. Supreme Court regarding the invasiveness of aggregating collected data on an individual over time, including one issued just months ago. It also severely underestimates the harm that ALPRs cause, in San Jose and around the country. 

San Jose’s ALPR surveillance system is inescapable. It blankets the city’s streets in nearly five hundred cameras that continuously photograph every car that passes by and retains the collected data for a month or longer. In our briefs, we argued that law enforcement officers who warrantlessly search the resulting ALPR database are violating the California Constitution’s ban on unreasonable searches and its guarantee of privacy. The court disagreed, explaining that based on one California appeals court case involving individual streetlight cameras, people do not have a reasonable expectation of privacy when driving on a public road. This is wrong. Networked ALPRs are not individual streetlight cameras. Their net effect of tracking and mapping cars as they travel reveals patterns of life, intimate relationships, and much more.

Fortunately, there are signs that the tide is turning against ALPRs in the courts. Just a day before the ruling in our case, a federal district court in Oklahoma called ALPRs “a type of indiscriminate mass surveillance” and decided that a law enforcement officer’s warrantless search of ALPR data violated the Fourth Amendment. The officer was observing traffic on an Oklahoma highway when he saw a woman driving a car with California plates. According to the court order, the officer began following the woman “for no apparent reason” other than her out of state plates. While following her, the officer decided to run the woman’s license plate number through Flock’s ALPR system – again, with no apparent reason other than her California plates. The Flock search returned at least 30 days of data, allowing the officer to track the car across at least three states, over the span of a month, from a single search.

The facts of this case demonstrate how ALPRs allow law enforcement to grab a breathtakingly vast sweep of information about a car (and the driver within) with no more effort than a Google search. It’s true that when a person drives on public roads, they can be observed, including by police. But as the Supreme Court has explained, we don’t expect law enforcement to be able to secretly track and store every movement our cars while we’re driving. The federal court in the Oklahoma case aptly illustrated this difference in societal expectations:

We might reasonably expect our friends and family to tell us something like: “Hey, I saw you out driving by the store last week.” But we do not expect people we know—let alone strangers, and especially not law enforcement—to randomly approach us to say: “Hey, I have been following your car for the last 30 days, and here is a detailed log of every place your vehicle has been with supporting photographic evidence. I am also going to share this information with law enforcement throughout the country so they know your whereabouts, too.

This decision is the first of its kind, and EFF will continue working to ensure that it is the first of many. Outside the courts, we’ve seen people across the country step up to reject ALPRs at the state and local level. EFF will continue challenging this technology on every front as well.