EFF, along with the national ACLU, the ACLU affiliates in Maryland, North Carolina, South Carolina, and Virginia, and the National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit urging the court to require a warrant for border searches of electronic devices under the Fourth Amendment, an argument EFF has been making in the courts and Congress for nearly a decade. The Fourth Circuit heard oral arguments on May 8. The Knight Institute at Columbia University and Reporters Committee for Freedom of the Press also filed a helpful brief focusing on the First Amendment implications of border searches of electronic devices.

The case, U.S. v. Belmonte Cardozo, involves a U.S. citizen whose cell phone was manually searched after he arrived at Dulles airport near Washington, D.C., following a trip to Bolivia. He had been on the government’s radar prior to his international trip and had been flagged for secondary inspection. Border officers found child sexual abuse material (CSAM) on his phone, and he was later arrested and criminally charged.

The district court denied the defendant’s motion to suppress the images and other data obtained from the warrantless search of his cell phone. He was ultimately convicted of child pornography and sexual exploitation of minors because he had used social media to entice minors to send him sexually explicit photos of themselves.

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2025, U.S. Customs and Border Protection (CBP) conducted 55,318 device searches, both manual (“basic”) and forensic (“advanced”).

A manual search involves a border officer tapping or mousing around a device. A forensic search involves connecting another device to the traveler’s device and using software to extract and analyze the data to create a detailed report the device owner’s activities and communications. However, both search methods are highly privacy-invasive, as border officers can access the same data that can reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In our amicus brief, we argued that the Fourth Circuit should adopt the same legal standard for both manual and forensic searches, and that standard should be a warrant supported by probable cause and issued by a neutral judge. The highly personal nature of the information found on electronic devices is why there should not be different legal standards for different methods of search, and why a judge should determine whether the government has provided credible preliminary evidence that there’s a likelihood that further evidence will be found on the device indicating wrongdoing by the specific traveler.

Moreover, we argued that “the process of getting a warrant is not unduly burdensome,” and that “getting a warrant would not impede the efficient processing of travelers. If border officers have probable cause to search a device, they may retain it and let the traveler continue on their way, then get a search warrant. Or, where there is truly no time to go to a judge, the exigent circumstances exception may apply on a case-by-case basis.”

The Fourth Circuit in prior cases only considered forensic device searches at the border. In U.S. v. Kolsuz (2018), the court held that the forensic search of the defendant’s cell phone at the border “must be considered a nonroutine border search, requiring some measure of individualized suspicion” of a transnational offense, but the court declined to decide whether the standard is only reasonable suspicion or instead a probable cause warrant. Then in U.S. v. Aigbekaen (2019), the court held that a forensic device search at the border in support of a purely domestic law enforcement investigation requires a warrant. The court also reiterated the general Kolsuz rule for a forensic border-related device search: the “Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.” Now, manual searches are before the court.

In urging the Fourth Circuit to adopt a warrant standard for both manual and forensic device searches at the border, we argued that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here. In that case, the Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest, against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

The U.S. Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border. The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country.

But a traveler’s privacy interests in their suitcase and its contents are minimal compared to those in all the personal data on the person’s cell phone or laptop. And a travelers’ privacy interests in their electronic devices are at least the same as those considered in Riley. Modern devices, over a decade later, contain even more data that can reveal even more intimate details about our lives.

We hope that the Fourth Circuit will rise to the occasion and be the first circuit to fully protect travelers’ Fourth Amendment rights at the border.

EFF filed an amicus brief for the second time in the U.S. Court of Appeals for the Ninth Circuit, arguing that allowing cases against the Apple, Google, and Facebook app stores to proceed could lead to greater censorship of users’ online speech.

Our brief argues that the app stores should not lose Section 230 immunity for hosting “social casino” apps just because they process payments for virtual chips within those apps. Otherwise, all platforms that facilitate financial transactions for online content—beyond app stores and the apps and games they distribute—would be forced to censor user content to mitigate their legal exposure.

Social casino apps are online games where users can buy virtual chips with real money but can’t ever cash out their winnings. The three cases against Apple, Google, and Facebook were brought by plaintiffs who spent large sums of money on virtual chips and even became addicted to these games. The plaintiffs argue that social casino apps violate various state gambling laws.

At issue on appeal is the part of Section 230 that provides immunity to online platforms when they are sued for harmful content created by others—in this case, the social casino apps that plaintiffs downloaded from the various app stores and the virtual chips they bought within the apps.

Section 230 is the foundational law that has, since 1996, created legal breathing room for internet intermediaries (and their users) to publish third-party content. Online speech is largely mediated by these private companies, allowing all of us to speak, access information, and engage in commerce online, without requiring that we have loads of money or technical skills.

The lower court hearing the case ruled that the companies do not have Section 230 immunity because they allow the social casino apps to use the platforms’ payment processing services for the in-app purchasing of virtual chips.

However, in our brief we urged the Ninth Circuit to reverse the district court and hold that Section 230 does apply to the app stores, even when they process payments for virtual chips within the social casino apps. The app stores would undeniably have Section 230 immunity if sued for simply hosting the allegedly illegal social casino apps in their respective stores. Congress made no distinction—and the court shouldn’t recognize one—between hosting third-party content and processing payments for the same third-party content. Both are editorial choices of the platforms that are protected by Section 230.

We also argued that a rule that exposes internet intermediaries to potential liability for facilitating a financial transaction related to unlawful user content would have huge implications beyond the app stores. All platforms that facilitate financial transactions for third-party content would be forced to censor any user speech that may in any way risk legal exposure for the platform. This would harm the open internet—the unique ability of anyone with an internet connection to communicate with others around the world cheaply, easily, and quickly.

The plaintiffs argue that the app stores could preserve their Section 230 immunity by simply refusing to process in-app purchases of virtual chips. But the plaintiffs’ position fails to recognize that other platforms don’t have such a choice. Etsy, for example, facilitates purchases of virtual art, while Patreon enables artists to be supported by memberships. Platforms like these would lose Section 230 immunity and be exposed to potential liability simply because they processed payments for user content that a plaintiff argues is illegal. That outcome would threaten the entire business models of these services, ultimately harming users’ ability to share and access online speech.

The app stores should be protected by Section 230—a law that protects Americans’ freedom of expression online by protecting the intermediaries we all rely on—irrespective of their role as payment processors.

Legal intern Raj Gambhir was the principal author of this post.

Update: On April 15, 2026 the FAA rescinded the TFR (FDC 6/4375) and instead issued an advisory (FDC 6/2824), which states: 

[Drone] operators are advised to avoid flying in proximity to: Department of War (DOW), Department of Energy (Doe), Department of Justice (DOJ), and Department of Homeland security (DHS) covered mobile assets as defined in 10 U.S.C. 130i [DOW/DOD], 10 U.S.C. 6227 [DOE], and 6 U.S.C. 124n [DHS], including ground vehicle convoys and their associated escorts. [Drone] operators who fly within this airspace are warned that [the agencies] may take action that results in the interference, disruption, seizure, damaging, or destruction of unmanned [aircraft] deemed to pose a credible safety or security threat to covered mobile assets. [Drone] operators should therefore exercise caution when flying in proximity of all DOW, DOE, DOJ and DHS mobile assets."

The Reporters Committee for Freedom of the Press (RCFP) plans to continue with its lawsuit (Levine v. FAA).

Original post:

The Trump administration has restricted the First Amendment right to record law enforcement by issuing an unprecedented nationwide flight restriction preventing private drone operators, including professional and citizen journalists, from flying drones within half a mile of any ICE or CBP vehicle.

In January, EFF and media organizations including The New York Times and The Washington Post responded to this blatant infringement of the First Amendment by demanding that the FAA lift this flight restriction. Over two months later, we’re still waiting for the FAA to respond to our letter.

The First Amendment guarantees the right to record law enforcement. As we have seen with the extrajudicial killings of George Floyd, Renée Good, and Alex Pretti, capturing law enforcement on camera can drive accountability and raise awareness of police misconduct.

A 21-Month Long “Temporary” Flight Restriction?

The FAA regularly issues temporary flight restrictions (TFRs) to prevent people from flying into designated airspace. TFRs are usually issued during natural disasters, or to protect major sporting events and government officials like the president, and in most cases last mere hours.

Not so with the restriction numbered FDC 6/4375, which started on January 16, 2026. This TFR lasts for 21 months—until October 29, 2027—and covers the entire nation. It prevents any person from flying any unmanned aircraft (i.e., a drone) within 3000 feet, measured horizontally, of any of the “facilities and mobile assets,” including “ground vehicle convoys and their associated escorts,” of the Departments of Defense, Energy, Justice, and Homeland Security. Violators can be subject to criminal and civil penalties, and risk having their drones seized or destroyed.

In practical terms, this TFR means that anyone flying their drone within a half mile of an ICE or CBP agent’s car (a DHS “mobile asset”) is liable to face criminal charges and have their drone shot down. The practical unfairness of this TFR is underscored by the fact that immigration agents often use unmarked rental cars, use cars without license plates, or switch the license plates of their cars to carry out their operations. Nor do they provide prior warning of those operations.

The TFR is an Unconstitutional Infringement of Free Speech

While the FAA asserts that the TFR is grounded in its lawful authority, the flight restriction not only violates multiple constitutional rights, but also the agency’s own regulations.

First Amendment violation. As we highlighted in the letter, nearly every federal appeals court has recognized the First Amendment right of Americans to record law enforcement officers performing their official duties. By subjecting drone operators to criminal and civil penalties, along with the potential destruction or seizure of their drone, the TFR punishes—without the required justifications—lawful recording of law enforcement officers, including immigration agents.  

Fifth Amendment violation. The Fifth Amendment guarantees the right to due process, which includes being given fair notice before being deprived of liberty or property by the government. Under the flight restriction, advanced notice isn’t even possible. As discussed above, drone operators can’t know whether they are within 3000 horizontal feet of unmarked DHS vehicles. Yet the TFR allows the government to capture or even shoot down a drone if it flies within the TFR radius, and to impose criminal and civil penalties on the operator.

Violations of FAA regulations. In issuing a TFR, the FAA’s own regulations require the agency to “specify[] the hazard or condition requiring” the restriction. Furthermore, the FAA must provide accredited news representatives with a point of contact to obtain permission to fly drones within the restricted area. The FAA has satisfied neither of these requirements in issuing its nationwide ban on drones getting near government vehicles.

EFF Demands Rescission of the TFR

We don’t believe it’s a coincidence that the TFR was put in place in January 2026, at the height of the Minneapolis anti-ICE protests, shortly after the killing of Renée Good and shortly before the shooting of Alex Pretti. After both of those tragedies, civilian recordings played a vital role in contradicting the government’s false account of the events.

By punishing civilians for recording federal law enforcement officers, the TFR helps to shield ICE and other immigration agents from scrutiny and accountability. It also discourages the exercise of a key First Amendment right. EFF has long advocated for the right to record the police, and exercising that right today is more important than ever.

Finally, while recording law enforcement is protected by the First Amendment, be aware that officers may retaliate against you for exercising this right. Please refer to our guidance on safely recording law enforcement activities.

Recently, a California Superior Court jury found that Meta and YouTube harmed a user through some of the features they offered. And a New Mexico jury concluded that Meta deceived young users into thinking its platforms were safe from predation. 

It’s clear that many people are frustrated by big tech companies and perhaps Meta in particular. We, too, have been highly critical of them and have pushed for years to end their harmful corporate surveillance. So it’s not surprising that a jury felt like Mark Zuckerberg and his company, along with YouTube, needed to be held accountable. 

While it would be easy to claim that these cases set a legal precedent that should make social media companies fearful, that’s not exactly true. And that’s actually a good thing for the internet and its users. 

These jury trials were just an early step in a long road through the court system. These cases will now go up on appeal, where the courts’ rulings about the First Amendment and immunity under Section 230 will likely get reconsidered. 

As we have argued many times before, the First Amendment protects both user speech and the choices platforms make on how to deliver that speech (in the same way it protects newspapers' right to curate their editorial pages as they see fit). Features on social media sites that are designed to connect users cannot be separated from the users’ speech, which is why courts have repeatedly held that these features are indeed protected. 

So while it may be tempting to celebrate these juries’ decisions as a "win" against big tech, in fact the ramifications of lowering First Amendment and immunity standards on other speakers—ones that members of the public actually like, and do not want to punish—are bad. We can’t create less protective speech rules for Meta and Google alone just because we want them held accountable for something else.

As we have often said, much of the anger against these companies arises from people rightfully feeling that these companies harvest and exploit their data, and monetize their lives for crass economic reasons. We therefore continue to urge Congress to pass a comprehensive national privacy law with a private right of action to address these core concerns.

EFF, along with the national ACLU and the ACLU affiliates in Pennsylvania, Delaware, and New Jersey, filed an amicus brief in the U.S. Court of Appeals for the Third Circuit urging the court to require a warrant for border searches of electronic devices, an argument EFF has been making in the courts and Congress for nearly a decade.

The case, U.S. v. Roggio, involves a man who had been under ongoing criminal investigation for illegal exports when he returned to the United States from an international trip via JFK airport. Border officers used the opportunity to bypass the Fourth Amendment’s warrant requirement when they seized several of his electronic devices (laptop, tablet, cell phone, and flash drive) and conducted forensic searches of them. As the district court explained, “investigative agents had a case coordination meeting and border search authority was discussed in early January 2017,” before Mr. Roggio traveled internationally in February 2017.

The district court denied Mr. Roggio’s motion to suppress the emails and other data obtained from the warrantless searches of his devices. He was subsequently convicted of illegally exporting gun manufacturing parts to Iraq (he was also charged in a superseding indictment with torture and also convicted of that).

The number of warrantless device searches at the border and the significant invasion of privacy they represent is only increasing. In Fiscal Year 2025, U.S. Customs and Border Protection (CBP) conducted 55,318 device searches, both manual (“basic”) and forensic (“advanced”).

While a manual search involves a border officer tapping or mousing around a device, a forensic search involves connecting another device to the traveler’s device and using software to extract and analyze the data to create a detailed report the device owner’s activities and communications. Border officers have access to forensic tools that help gain access to data on a locked or encrypted device they have physical access to. From public reporting, we know that more recent devices (and ones that have had the latest security updates applied) are more resistant to these type of tools, especially if they are turned off or turned on but not yet unlocked.

The U.S. Supreme Court has recognized for a century a border search exception to the Fourth Amendment’s warrant requirement, allowing not only warrantless but also often suspicionless “routine” searches of luggage, vehicles, and other items crossing the border.

The primary justification for the border search exception has been to find—in the items being searched—goods smuggled to avoid paying duties (i.e., taxes) and contraband such as drugs, weapons, and other prohibited items, thereby blocking their entry into the country. But a traveler’s privacy interests in their suitcase and its contents are minimal compared to those in all the personal data on the person’s phone or laptop.

In our amicus brief, we argue that the U.S. Supreme Court’s balancing test in Riley v. California (2014) should govern the analysis here. In that case, the Court weighed the government’s interests in warrantless and suspicionless access to cell phone data following an arrest against an arrestee’s privacy interests in the depth and breadth of personal information stored on a cell phone. The Court concluded that the search-incident-to-arrest warrant exception does not apply, and that police need to get a warrant to search an arrestee’s phone.

Travelers’ privacy interests in their cell phones, laptops and other electronic devices are, of course, the same as those considered in Riley. Modern devices, over a decade later, contain even more data that together reveal the most personal aspects of our lives, including political affiliations, religious beliefs and practices, sexual and romantic affinities, financial status, health conditions, and family and professional associations.

In considering the government’s interests in warrantless access to digital data at the border, Riley requires analyzing how closely such searches hew to the original purpose of the warrant exception—preventing the entry of prohibited goods themselves via the items being searched. We argue that the government’s interests are weak in seeking unfettered access to travelers’ electronic devices.

First, physical contraband (like drugs) can’t be found in digital data.

Second, digital contraband (such as child sexual abuse material) can’t be prevented from entering the country through a warrantless search of a device at the border because it’s likely, given the nature of cloud technology and how internet-connected devices work, that identical copies of the files are already in the country on servers accessible via the internet.

Finally, searching devices for evidence of contraband smuggling (for example, the emails here revealing details of the illegal import scheme) and other evidence for general law enforcement (i.e., investigating non-border-related domestic crimes) are too “untethered” from the original purpose of the border search exception, which is to find prohibited items themselves and not evidence to support a criminal prosecution. Therefore, emails or other data found on a digital device searched without a warrant at the border cannot and should not be used as evidence in court.

If the Third Circuit is not inclined to require a warrant for electronic device searches at the border, we also argue that such a search—whether manual or forensic—should be justified only by reasonable suspicion that the device contains digital contraband and be limited in scope to looking for digital contraband.

This extends the Ninth Circuit’s rule from U.S. v. Cano (2019) in which the court held that only forensic device searches at the border require reasonable suspicion that the device contains digital contraband—that is, some set of already known facts pointing to this possibility—while manual searches may be conducted without suspicion. But the Cano court also held that all searches must be limited in scope to looking for digital contraband (for example, call logs are off limits because they can’t contain digital contraband in the form of photos or files).

We hope that the Third Circuit will rise to the occasion and be the first circuit to fully protect travelers’ Fourth Amendment rights at the border.