The U.S. Court of Appeals for the Ninth Circuit handed internet users and programmers a big win today, by rejecting an attempt to stretch a narrow provision of the Digital Millennium Copyright Act (DMCA) into a new source of copyright liability.  

The case involves Section 1202 of the DMCA, which prohibits intentionally removing copyright management information (CMI) like an author’s name or a copyright notice, from a copyrighted work. Open AI and Microsoft used code from Github as part of the training data for their LLMs, along with billions of other works. A group of anonymous Github contributors sued, alleging the new code coming out of these LLMs was similar to theirs—but with the CMI stripped out.  

The Ninth Circuit correctly agreed with what we said in our brief: removing copyright information from a copyrighted work is fundamentally different from creating a new work that didn't have CMI in the first place. Section 1202 of the Digital Millennium Copyright Act was intended to serve as a backstop for traditional copyrights in the digital age—not to create a new, more expansive right to inhibit otherwise non-infringing uses. 

As we also explained, accepting the Does’ theory would have created a brand-new source of liability for otherwise perfectly lawful activities, undermining creativity and innovation far beyond the specific context of AI development. Copyright holders would be able to file costly lawsuits against all kinds of legitimate users, such as artists making remixes based on older works, teachers adapting works for a classroom presentation, engineers reverse engineering code to understand it better, and search engines that help us all navigate the web. The risks would have fallen especially hard on independent software developers and other small creators. Large companies can afford to litigate these claims in federal court for years, if necessary. But an independent programmer facing massive statutory damages may simply have to settle, even when their underlying use is completely lawful. That’s why EFF fights to make sure courts don’t expand copyright beyond what Congress authorized.  

Copyright law still protects programmers when their work is unlawfully copied. They can still bring copyright infringement claims if someone uses a model to reproduce their code. Additionally, the plaintiffs’ contract claims against the AI companies are still in play. The specific holding here was narrow but important: that the absence of copyright information from a new work does not mean, by itself, that someone illegally removed it.  

That’s the correct result. New technologies will keep raising hard questions about copyright. Courts should answer those questions by applying the rights that Congress actually authorized, not by inventing new rights that could harm expression and lawful use for everyone.  

Additional Reading:  

• 9th Circuit Opinion in Doe v. GitHub 
• EFF’s Amicus Brief in Doe v. GitHub 

Update: The Senate Commerce Committee voted to advance this bill on August 5, 2026. EFF continues to oppose the bill, which still needs approval from the full Senate. 

The Senate Commerce Committee is once again considering legislation that would dramatically expand age verification, and undermine privacy for everyone. Alongside the SCREEN Act, the CHATBOT Act, and the Youth AI Privacy Act, the Kids Online Safety Act (KOSA) would push companies to collect more information about their users while creating new incentives to restrict lawful speech.

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Tell Congress: KOSA endangers the privacy of all

KOSA Pushes Platforms Toward Age Verification

The Senate version of KOSA imposes a “duty of care” on online services, including social media, to avoid exposing young people to certain material the law deems harmful. But those obligations only work if online services know which users are minors. That means more platforms will be pressured to implement age verification or age estimation systems.

That’s not a bill that increases privacy—it’s one that creates new privacy problems. Whether companies verify ages by checking government IDs, performing facial analysis, checking your bank records, or collecting other personal information, all of these systems require the handing over of more sensitive data, simply to access lawful online speech and services. They also create new databases of personal information that can be breached, misused, or demanded by governments.

Everyone deserves privacy online. Congress could push for a bill that protects privacy for all users, but that’s not what they’re doing here. Instead, KOSA and the other bills coming up for a vote this week push online services to adopt systems that require people to identify themselves before they can speak, read, or participate online.

KOSA Still Creates Incentives to Censor Lawful Speech

Some online content isn’t appropriate for minors. Families, schools, and communities all have important roles to play in helping children navigate the internet. But KOSA takes those decisions away from families and the young people who have a First Amendment right to speak and access information online. It instead empowers government officials to enforce how online services handle lawful speech. 

And by empowering elected attorneys general in states across the country to enforce KOSA, the bill means those elected officials, rather than your family, deciding what’s appropriate online content for teens. Even more likely, it will lead to limits on what minors and adults are able to see at all, as companies shut down potentially controversial forums in order to avoid legal action from government bureaucrats. 

The latest version of KOSA once again includes a broad "duty of care" requiring platforms to mitigate a wide range of alleged harms to minors.

Whatever disclaimers and exceptions the bill includes, the practical effect is unchanged. When platforms face liability for content that someone later claims contributed to harms like anxiety, eating disorders, or substance use, the safest response is to remove lawful speech or shut down forums discussing those topics altogether. 

More worrisome, the potential liability KOSA creates may push online services to either remove speech well in advance of a young person seeing it, or block young people’s access so they never see it. That will likely include forums where people try to help each other, find community and recovery resources for the exact harms listed in the bill, like gambling and drug addiction. In trying to protect young people, KOSA may actually cut them off from valuable sources of support. 

We've explained these censorship risks in detail before, and they remain just as real in the latest version of the bill.

Congress Should Reject KOSA

Minors deserve meaningful privacy protections online—as do adults. But KOSA moves in the opposite direction by encouraging more age verification, as well as more legal pressure for platforms to monitor and restrict lawful speech.

The Senate Commerce Committee should reject KOSA, along with the other bills in this legislative package, and instead pursue comprehensive privacy legislation that protects everyone—not just minors—without undermining privacy, security, or free expression.

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Congress shouldn't set the rules for what we see online

Artificial intelligence is rapidly changing education, and the way people search for information. Parents, teenagers, teachers, and schools are struggling with tough questions about when AI should, and should not, be used. It makes sense for Congress to hold hearings and examine how AI should be used by minors. But the recently introduced CHATBOT Act answers those questions with a one-size-fits-all mandate governing how teenagers access AI through federally prescribed parental monitoring systems. 

The Bill Requires AI Companies To Build Family Monitoring Systems 

Parents are approaching AI in different ways. Some closely supervise how their children use chatbots, while others might set more general rules about technology. Many families are still figuring out what role AI should play in schoolwork and everyday life. 

The CHATBOT Act would take that decision away from families and AI providers. Instead of letting families and AI providers decide what parental controls should look like, Congress would require every covered AI chatbot to build the same federally prescribed “family account” system. 

As part of the required parental-consent process for teens, AI companies must offer parents a "family account" that provides access to a "full record of the conversations and activity" of teen users and tools to "monitor, analyze, and understand, at scale" those conversations. They must also send alerts if a teen attempts to bypass or disable parental controls. 

This isn’t simply an optional parental-control feature. The bill requires every covered AI provider to build this monitoring infrastructure, and present it as part of the parental consent process. Congress is prescribing a single, highly invasive model of how families should supervise teenagers’ use of AI. 

The CHATBOT Act Creates New Privacy Risks For Families 

Parents and families have different ideas about how much independence teenagers should have. Understandably, they also have very different expectations for 8-year olds, 13-year-olds, and 17-year-olds. The CHATBOT Act effectively requires AI providers to build the same monitoring architecture for users of very different ages. 

And this mandated data collection will create new privacy and security risks. Once Congress requires AI companies to create a permanent, centralized record of teen AI conversations for parental review, that will be a valuable vault of extremely personal information. That raises serious questions about what would happen in cases where someone else gains access to it through account compromise, family disputes, or other security failures. 

The vast archives of conversations created by the government-mandated family accounts won't be interesting only to parents. They will become valuable targets for hackers, identity thieves, civil litigants, and anyone else seeking access to the deeply personal information of others. The CHATBOT Act requires the records to exist, but addresses none of those risks. 

Families are still figuring out what role AI should play in schoolwork and everyday life. Congress shouldn’t freeze one answer into federal law by requiring every AI company to build the same prescribed monitoring system. 

The CHATBOT Act Applies A Children’s Law To Teenagers 

The CHATBOT Act takes the basic structure of COPPA, a nearly 30-year-old law that applies to children aged 12 and under, and applies the same “verifiable parental consent” to older teenagers. 

That’s a dramatic expansion of the law. Congress enacted COPPA to prevent kids from handing over detailed personal information to online services without making sure parents approved. For nearly three decades, Congress has required parental consent before websites collect personal information from any user under 13. COPPA is not simple to comply with, which is why so many internet companies, large and small, simply bar kids under 13 from having accounts. That includes major social media sites and AI. Facebook, Instagram, TikTok, X, YouTube, Snapchat, Discord, Spotify, and blogging platforms like WordPress all keep out users under 13. Children under 13 are also not allowed to use Microsoft Co-Pilot, Google Gemini, or ChatGPT. Anthropic does not allow users under 18 to use its AI model, Claude. In cases where younger kids maintain social media accounts despite the rules, studies show the vast majority of them are creating those accounts with parental consent.  

In short, COPPA’s protections against collecting personal information from minors without parental consent already apply to the AI services CHATBOT Act seeks to regulate. Worse, the CHATBOT Act takes COPPA’s privacy protections and inverts them—it will result in AI services likely collecting more information about young users. 

But the CHATBOT Act extends that model to high school students using AI assistants that are rapidly becoming tools for learning, research, writing, coding, and creative work. It then mandates specific, invasive surveillance tools that go well beyond anything COPPA requires. 

The bill requires providers to offer these “family accounts,” with these specific features, as a default for teenagers. By doing so, CHATBOT effectively treats a high school senior the same way it treats an elementary school student. 

Supporters may argue that parents of teens don’t have to create a family account. But every family with a teenager will still have to go through the bill’s parental-consent process before a teenager can use a covered AI system. Providers will need practical ways to verify that an adult is, in fact, the teenager’s parent. And parents of kids under 13 have no option to consent to their kids’ use of an AI system—the bill’s only option is to create a family account.

Congress should not extend the COPPA parental-permission model to millions of older teenagers, and it would be harmful to do so. The government does not require COPPA-style parental permission before a 17-year-old checks out a library book, uses Wikipedia, types search terms into Google, or reads a newspaper online. It shouldn’t require parental permission simply because the same question gets asked of an AI assistant. 

The CHATBOT Act Will Pressure AI Companies To Check Users’ Ages 

The bill says it doesn’t require age verification. But like many recent “kids online safety” bills, it imposes obligations that depend on a company knowing whether a user is under 18. 

Specifically, the bill requires AI systems to either disable access to young kids, get parental consent, or the creation of a family account if a service has reason to believe a user is a minor. The standard means that services don’t need to have actual knowledge of a user’s age to be later held liable for improperly letting them use their AI tools. That creates a practical problem. Given the potential liability of getting something wrong, AI companies will likely require stricter forms of age verification to figure out who is under 13, a teenager, and who is a parent. Some providers might ask for government-issued identification.  Other companies may rely on age estimation systems that use facial scans or other signals to guess a user’s age. Neither of these approaches is good for users’ privacy or security. One collects more information than is necessary, and the other inevitably makes mistakes. 

Congress shouldn’t force companies into that choice, or families into this position. In the name of protecting children, the CHATBOT Act will result in online services collecting even more information from kids and families, creating privacy and security risks. Parents who want family accounts like those described in the bill should be free to choose AI services that offer them. But Congress shouldn’t pressure every provider to collect more information about everyone’s age simply to comply with the law. 

A Better Way Forward

Congress doesn't have to choose between doing nothing and creating a sweeping new federal parental-monitoring mandate. Existing law allows regulators to police deceptive AI products, protect children's privacy under COPPA, and hold companies accountable when they market unsafe or misleading products to families. 

Lawmakers have urged the FTC to crack down on AI-enabled toys that make unsubstantiated educational claims or illegally collect children's data. Those are regulatory actions that can be taken right now. 

Finally, the FTC is currently investigating how AI companies test their products, protect children and teens, comply with COPPA, and enforce age restrictions. The results of that inquiry could be useful guidance to Congress, and to the public debate around these issues. 

Cracking down on bad actors, while learning more about how families are already making decisions about AI use, is a much better path forward than building one, federally-prescribed model of parenting or product design.

Recent reports have raised alarm about the use of PatronScan, an ID-checking and face-scanning system, at multiple LGBTQ+ bars in San Francisco’s Castro neighborhood. Much of the attention has focused on reports that the system photographs patrons as they enter venues and questions about whether those images are used for facial recognition.

A broader privacy concern also deserves scrutiny. For years, PatronScan has marketed itself not just as an ID-verification tool, but as a system that allows bars and clubs to identify patrons, keep records about them, and share information across venues. As one news article published in 2019 documented, PatronScan built a network that allowed participating bars to flag patrons and share information about them with other establishments. 

And in California, it’s not at all clear how PatronScan’s business model of scanning IDs and sharing the information from those scans with other bars comports with the law. California’s ID privacy law, which was amended in 2018 to add ID “scans,” states that no businesses shall “retain or use” any information from a scanned ID card except for limited purposes such as to verify age, comply with a legal requirement, or prevent fraud. 

A venue cannot claim to be a safe space while feeding its patrons’ data to a third party database.

Californians should be deeply concerned about businesses that collect information from government-issued IDs and use it to build databases about where people go, whom they associate with, and whether they should be allowed into other public gathering places. That concern is especially strong in LGBTQ+ spaces, which have long served as refuges for people to go without being tracked, monitored, or put on lists. 

We reached out to Patronscan with questions regarding their practices and their views on California ID law. They referred us to their published FAQ question “Is Patronscan privacy compliant in California?” which claims that the use of Patronscan kiosks is legal in California. They also said “Patronscan does not do facial recognition in North America, or any kind of automated analysis of the ID or the live photo image.” 

The California Legislature Has Investigated PatronScan’s Business Model 

In 2018, the California Legislature published bill analyses (on that year's AB 2769) that went into detail about PatronScan’s business. Reviewing PatronScan's own materials, the California Senate Judiciary Committee found that the company had collected and retained information on 561,087 customers in Sacramento alone during the first five months of 2018—a remarkable figure for a city whose population had only recently topped 500,000.

Lawmakers also found that at that time, PatronScan retained information for at least 90 days or longer in some cases, shared information among participating bars, and maintained bans that lasted an average of more than 19 years. A PatronScan “Public Safety Report” used 10,000 scans collected on a single day to report on “where customers live, how far they have traveled, and how many different venues the customers patronized.” 

This was not simply checking IDs at the door. PatronScan was building a database. 

An immigrants’ rights group, the Coalition for Human Immigrant Rights (CHIRLA), wrote about its concern at the time with these growing ID databases, saying that “placing individuals on a database that labels them a "threat to public safety" has “significant immigration consequences that could lead to deportation, revoking of current status, or denial of future immigration relief.” 

Today, Patronscan states that it retains personal information about all customers for 21 days, and about flagged customers for up to five years. This includes the customer’s name, date of birth, photograph, gender, and zip code. It also includes the dates and times that the customer entered particular bars. Such databases are a grave privacy threat. Personal data is routinely stolen by thieves, misused by a company’s employees, seized by government agencies, and diverted to new purposes by a company’s executives. 

California Law Still Bans ID-Scan Databases, And Bars Should Follow That Law

In 2018, California lawmakers closed what they viewed as a loophole. Existing law already prohibited businesses from retaining or using information obtained when they “swiped” a driver's license, except for the narrow purposes of legal requirements (like a judicial warrant) or “preventing fraud, abuse, or material misrepresentation.” 

After reviewing companies like PatronScan, the Legislature amended the law to make clear that the same restrictions that apply to businesses that “swipe” ID cards also apply when those IDs are “scanned.” PatronScan opposed that change, arguing it wanted to preserve the ability to share information among bars so participating venues could decide whether to admit patrons.

The bill became law anyway. Yet PatronScan continues to market and sell a system that apparently retains information from scanned IDs, and allows participating venues to flag patrons and share information across its network. 

At a minimum, that raises serious questions about how those practices fit with California's existing ID privacy law. Bar and nightlife venue owners who utilize PatronScan should think twice about its effects on their customers, and consider going back to standard, visual ID checks. These physical checks have been effective at keeping underage patrons out of 21-and-over venues for decades, and don’t present the serious privacy dangers of creating a private database of bar patrons. 

For venues serving vulnerable communities like immigrants or the LGBTQ+ community, the stakes of using this technology are even higher. It’s disappointing and alarming to see some of California’s more well-known LGBTQ+ nightlife spots instead lining up as PatronScan’s early adopters. A venue cannot claim to be a safe space while feeding its patrons’ data to a third party database. These businesses should reject PatronScan, return to the standard ID checks that every other bar has been able to utilize, and prove to their customers that their privacy and security still matters. 

Within the next week, Congress is preparing to vote on the KIDS Act, a sprawling package of legislation that seeks to control Americans’ web browsing and private messaging. The package includes a revised version of the Kids Online Safety Act, or KOSA, combined with a collection of other internet bills, study bills, reporting requirements, and new regulations. Instead of debating any of these proposals on their merits, lawmakers are attempting to move them all at once under an ultra-expedited process. 

The package of cobbled-together bills is a mess, with different age-gating schemes for different services, using different standards. It’s a lot of complexity, and a lot of legal risk. Faced with that, many companies will conclude that the safest option is restrictive age-checking practices across their entire platforms.

Buried inside the KIDS Act are provisions that will push online services to verify all users’ ages, require government-directed moderation policies for online speech, and even create new rules about private and encrypted communications. While supporters continue to claim this bill protects minors online, its requirements come at the expense of privacy, free expression, and the ability of people of all ages to use the internet without revealing sensitive data. 

Take action

Tell Congress to reject this age-gating bill

The KIDS Act Pressures Platforms to Check Everyone's Age

Supporters of KOSA have said the bill doesn’t require age verification. And technically, the KOSA section of the bill does say that KOSA shouldn’t be read to require age verification. 

But if you read the rest of the bill, that disclaimer starts to look hollow. 

Throughout the KOSA section of the legislation, special protections, controls, messaging settings, and parental tools are required whenever a website or app “knows or should have known” a user is a child (defined in the bill as anyone under 13) or a teen (defined as anyone between 13 and 16 years old). 

The problem is a website operator doesn’t need actual knowledge that a user is a minor to get in legal trouble. It applies when a platform “knows or should have known” a user’s age—a low, negligence-style standard of knowledge. If an online service gets it wrong, it’s going to be up to courts and regulators to decide, after the fact, if an online service “should” have known a user was 16. 

To try to avoid liability, services will have to determine which users are teenagers and which are not. Most won’t be able to simply trust their users. They’ll have to collect more information about age, before any lawsuit or government action arises. Some companies may respond by requesting driver's licenses or passports. Others will rely on age-estimation systems that attempt to guess users' ages by looking at existing activity or doing facial scans. Existing estimation systems make mistakes when estimating children’s ages correctly, which is a big problem when that is the population KOSA is trying to protect. And the systems fail more frequently for people of color, people with disabilities, and trans and nonbinary people.

The bill’s authors seem to know this is a problem. On the one hand, the new KOSA section says age verification is not required. On the other, it repeatedly imposes obligations that depend on knowing whether a user is under 17. But a disclaimer doesn’t magically eliminate legal risk, especially for smaller services and startups that can’t afford to defend lawsuits or fight regulators.  

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The "KIDS Act" Is an Age Surveillance Bill

KOSA is not the only part of this package that creates age-verification pressure. The SAFE BOTS Act, like KOSA, goes back to the standard that if a service “knows or should have known” that a user is a minor it can’t offer certain chatbot features. 

The SCREEN Act requires services that host sexually explicit content to determine whether users are “more likely than not” under the relevant age limit, before allowing access to certain content. 

The consequences of this liability will not be limited to minors. If websites and apps are expected to reliably identify teenagers, adults will be asked to prove they are adults. The result is a less private internet for everyone.

The KIDS Act Pressures Platforms To Police Lawful Speech 

The new version of KOSA removes the bill’s infamous "duty of care" provision, a significant change. The revised KOSA requires covered platforms to "establish, implement, maintain, and enforce" policies and procedures addressing several categories of content and conduct. 

Some categories, such as true threats and sexual exploitation, involve unlawful activity. Others are much broader. The bill specifically requires policies addressing the "sale or use" of narcotic drugs, tobacco products, cannabis products, gambling, and alcohol. It also restricts discussions around financial fraud.

Sounds straightforward enough. Then you remember how people actually talk—online and off. Can teens discuss addiction and recovery? Can a 15-year-old post that she’s worried she has a friend who is drinking too much? Can they seek advice about a parent’s gambling problem, or get help if they or a family member have been scammed? Can they participate in harm-reduction communities or discuss substance abuse treatment? All of these young people would be engaging in lawful speech when discussing topics covered by KOSA’s enumerated harms. 

The bill does not directly ban those conversations. But it places platforms under huge pressure to create and enforce moderation policies around broad categories of lawful speech. Faced with legal risk, many services will inevitably choose to remove that speech or restrict those discussions to spaces where they know only adults can participate. We’ve seen this movie before. When legal risk goes up, platforms will take down more speech. 

The KIDS Act Regulates Private Messages, Too 

Several provisions of the bill create new rules around direct messages, disappearing or “ephemeral” messages, and AI chat services. 

The bill includes language stating that certain KOSA requirements should not be construed to override strong encryption. But the protection is incomplete. The carve-out applies to certain features and messaging controls, but doesn’t apply to KOSA’s separate requirement that platforms "address" a list of harms to minors. 

The KIDS Act never answers an obvious question: how exactly is a platform supposed to address those activities if they’re inside encrypted communications that it can’t read? That will create pressure for providers to weaken private communications or limit features on encrypted private services. 

That approach is especially troubling when it comes to ephemeral messaging. Disappearing messages are not a “loophole” or a dangerous design trick. They are a useful privacy feature that allows online conversations to function more like ordinary real-world conversations, which are not preserved forever in a permanent database.

Like many other parts of the KIDS Act, these private messaging provisions also depend on websites and apps knowing who is a minor and who is not. The result is more age checks, more restrictions, and less privacy online.

Take action

Tell congress: no online age checkpoints

Court records belong to the public. Yet anyone seeking access to federal court filings through PACER, a government software system that stands for Public Access to Court Electronic Records, is usually required to pay hefty fees to search for and view documents. PACER’s fees have long acted as a barrier that makes it hard, especially for low income people, to see and understand the work produced by our own public servants. 

That's why EFF joined a broad group of organizations supporting the Open Courts Act of 2026, legislation that would modernize the federal courts' electronic filing systems and eliminate PACER fees. 

Public access to the courts is a cornerstone of democratic accountability.

The bill would replace the aging PACER and CM/ECF systems with a modern, unified platform designed to improve public access, strengthen cybersecurity, and reduce long-term costs. Supporters note that PACER currently collects more than $150 million annually in fees from the public, despite court records being public documents.

The Open Courts Act would also make court records easier to find, access, and understand. The legislation builds on a similar proposal, also supported by EFF, that previously won bipartisan support in the Senate Judiciary Committee but did not become law before the end of the congressional session.

This is not a new issue for EFF. More than a decade ago, we criticized PACER's paywalls and the removal of some court records from online access, arguing that the public should not have to pay to read the law and the judicial decisions that shape it. The Open Courts Act would move U.S. courts a big step closer to that goal. 

In addition to EFF, the bill is supported by Fix the Court, the group pushing this bill forward; the Free Law Project, which maintains RECAP, software that has created a large archive of legal opinions and other court records; as well as civil society groups, open government watchdogs, and media groups. 

Public access to the courts is a cornerstone of democratic accountability. Let’s eliminate unnecessary barriers to court records, and bring the federal judiciary’s tech into the modern era. 

• Read the full letter supporting the Open Courts Act of 2026

The NO FAKES Act is supposed to target harmful AI-generated impersonations. But in reality, it will make it easier to suppress commentary, satire, and other lawful speech. That's why EFF has signed a letter urging the Senate Judiciary Committee not to advance the bill in its current form.

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Tell Congress to Say No to NO FAKES

In the letter, EFF joins a coalition of civil society groups in pointing out that the bill would import many of the worst features of the DMCA notice-and-takedown system into an even broader range of online expression. Faced with a “heckler’s veto” over legal speech, platforms will have incentives to remove content first and ask questions later. 

The bill offers no protection for a platform’s judgment about an often difficult question—whether a particular piece of content is satire, parody, commentary, or news. Any platform that guesses wrong faces penalties of up to $750,000 per work. 

NO FAKES could also undermine the rights of the people it is supposed to protect. The new federal “likeness” right could be licensed or transferred to others, so individuals will lose control over the use of their own face and voice. That’s not theoretical—workers in the entertainment industry are routinely asked to sign broad contracts about the future use of their likenesses.

As the letter notes: 

A background actor who signs a release on set or an ordinary person who clicks through a platform's terms of service could end up with the right to their own face and voice in someone else's hands, for years, with federal enforcement behind it. 

EFF and the other signatories urge Congress to examine existing legal remedies and pursue narrowly tailored solutions to genuine harms. The last thing we need is a sweeping new intellectual property right that threatens free expression. 

In addition to EFF, the letter is signed by the Center for Democracy & Technology, the American Civil Liberties Union, Fight for the Future, Foundation for Individual Rights and Expression, the Organization for Transformative Works, Public Knowledge, the R Street Institute, The Future of Free Speech, and the Woodhull Freedom Foundation. Read the full letter here. 

Take action

Tell Congress to Say No to NO FAKES

In a voice vote earlier this week, the House of Representatives passed H.R. 6028, the “Legislative Branch Agencies Clarification Act.” The legislation is presented as a technical reorganization of some government agencies, but it’s much more than that. 

H.R. 6028 would fundamentally change the U.S. Copyright Office, and not in a good way. The bill removes the Library of Congress’ current supervisory role over the Copyright Office, transfers several powers directly to the Register of Copyrights, and makes the Register a presidential appointee, confirmed by the Senate. 

These changes would make an office that’s already hugely influential in copyright and tech policy much more political. EFF first explained why that’s a terrible idea when it came up nearly a decade ago. This bill, like the older one, weakens the few public-interest checks and balances that do exist.  We hope the Senate promptly rejects this bill. 

The Copyright Office Doesn’t Need More Politics—Or More Power

The Copyright Office's main responsibilities are administrative and advisory. It registers copyrights, maintains records, grows the Library of Congress’s collections, and provides expertise to Congress on copyright law. But over the past two decades, the Office has also become increasingly influential in copyright policy debates that affect free expression, libraries, educators, competition—and everyday internet users. Unfortunately, it has not been a neutral advocate. The office’s recent report on the role of AI severely bungled the issue of fair use, prioritizing private licensing market “solutions” over user rights. 

Going further back, the Copyright Office supported one of the most infamous anti-internet proposals of all time—the Stop Online Piracy Act (SOPA), a disastrous internet censorship proposal that sparked one of the largest online protests in history. The Office has repeatedly advanced positions that favored large entertainment-industry interests over the public interest.

The Office also plays a major role in the Digital Millennium Copyright Act (DMCA) Section 1201 rulemaking process, which determines when the public may lawfully bypass digital locks for activities such as security research, repair, preservation, or accessibility. EFF has used this process repeatedly to mitigate some of the worst harms of the DMCA. H.R. 6028 would move rulemaking authority over 1201 from the Librarian of Congress to the Register of Copyrights, further consolidating power within the Copyright Office itself.

The bill also makes the Register of Copyrights a presidential appointee confirmed by the Senate. Each administration will be pressured to pick nominees aligned with their own policy preferences, and the powerful copyright owning industries will invest even more heavily in lobbying to get their way, and influence the selection. This position should be focused on administrative ability and actual expertise, not lobbying and politics. 

The Copyright Office Should Stay Connected To The Library of Congress

H.R. 6028 would do more than change who appoints the Register of Copyrights. It would sever the Copyright Office from Library of Congress supervision and transfer many Librarian powers directly to the Register. 

The supervisory relationship exists for good reason, as the nation’s libraries have pointed out for years. The Library, while far from perfect, at least has the mission of preserving and providing access to knowledge. That should be an important public-interest counterweight in copyright debates. Congress has not explained how weakening the ties between the Library and the Copyright Office would serve the public better, or even seriously inquired about it. 

This Bill Was Rushed Through

Back in March, EFF joined Public Knowledge, the Center for Democracy and Technology, library organizations and tech groups, urging Congress not to fast-track this legislation. We told them changes to the Copyright Office will have major consequences for the “speech rights, educational opportunities, and creative freedoms of all Americans.” 

Yet Congress moved forward without any hearings on the bill, and without meaningful examination. H.R. 6028 creates a years-long separation of the Copyright Office from the Library of Congress, transfers significant legal authority, and restructures the appointment process for the nation’s top copyright official. Changes like that deserve hearings, debate, and public scrutiny. H.R. 6028 got none of that. 

The Senate Should Stop This Bill

Copyright law exists to serve the public and “promote the progress” of science and learning. The institutions that administer copyright law should do the same. 

H.R. 6028 would move the Copyright Office further away from that goal. Congress should be strengthening public-interest oversight of copyright policymaking, not looking for ways to concentrate more authority in a single presidentially appointed official. 

The Senate should reject H.R. 6028. The Copyright Office should serve the public—not presidential administrations, and not industry lobbyists. 

On a warm June evening in San Francisco, attorneys and other legally-minded friends of EFF gathered for our 18th Annual Cyberlaw Trivia Night, an annual test of tech-related legal knowledge, and the ability to remember some deeply obscure facts under pressure. 

Returning Quizmaster Kurt Opsahl once again guided competitors through six rounds of trivia covering everything from intellectual property and free speech to privacy, security, and artificial intelligence. Teams wrestled with questions about geofence warrants, AI copyright disputes, the SOPA/PIPA internet blackout, Section 230, and even a Senate hearing featuring a contestant who was herself present at cyberlaw trivia. 

The judges’ table made it obvious that 2026 was a notable year. Weighing in on the toughest close calls were three folks with a deep history at our org: outgoing EFF Executive Director Cindy Cohn and new Executive Director Nicole Ozer both sat at as judges, joined by new cyberlaw judge Mike Masnick, founder of Techdirt and a recipient of an EFF Award in 2020. 

The food was hot, the drinks were cold, and the competition was fierce. Teams including Shady Docket, Byte Club, Flock U, This Is Why We Can't Have Nice Precedent, Nicky's Angels, and Betamaxxers battled through six rounds of challenging questions. 

When a question about Afroman's successful legal battle against Ohio sheriff's deputies came up, members of Byte Club offered to do more than name his most popular album: they offered to perform a rendition of “Lemon Pound Cake” (also the album name—tricky!) for the judges. This won no sway with the 3-judge Cyberlaw Judiciary, and the offer was politely declined. 

The teams racked their collective law-noggins about some of the details of recent legal battles over digital rights, and a round entitled “You Can Call Me AI.” After the IP round, which rewarded folks in the audience who could answer details about the server test, the trivia moved onto newsier questions, with questions about ICE apps, anti-ICE apps, recent defamation cases involving our sitting president, and the slogan of a mineral company that you might've heard on terrestrial radio anytime between the early aughts and this week. 

You don't have to wear a morning coat to win Supreme Court arguments, but knowing who did for 4 years might have helped you win the IP round. 

By the end of regulation play, the cyberlaw trivia competition was closer than we could have imagined. For the first time in Cyberlaw Trivia history, three teams finished tied for first place, sending the contest to two tiebreaker questions. 

The final question noted that Google had received more than 287,000 government information requests in the first half of 2025, and asked teams to estimate how many were received by OpenAI during the same period. Every team guessed over, but it was the victors, Shady Docket, who guessed the lowest: 260. (The real answer is 146.)

As Shady Docket team member Erin Simon explained after the win: "As much as we love EFF, what we love even more is crushing other trivia teams."

In second place were Nicky’s Angels. Rounding out the virtual podium in 3rd were the Betamaxxers, who jumped ahead early with a home-run run in the Free Speech round, getting every question correct. 

Each summer, EFF's Cyberlaw Trivia Night brings together the legal community that helps defend privacy, free expression, innovation, and digital rights. We want to especially thank this year Morrison Foerster, Fenwick, Wilson Sonsini, and Public Resource for supporting EFF's legal intern program.

Are you an attorney interested in defending civil liberties in the digital world? Consider joining EFF's Cooperating Attorneys list. This network helps EFF connect people to legal assistance when EFF is unable to provide direct assistance. 

Fighting for first place at EFF’s Cyberlaw Trivia Night helps us fight for your rights online! Sponsor one of our annual events and join the movement for digital privacy, free speech, and innovation. Please visit eff.org/thanks or contact tierney@eff.org for more information.

California lawmakers are again considering A.B. 412, a bill that would require AI developers to identify and disclose copyrighted works used to train generative AI systems.

The problem this year is the same as last year: it’s practically impossible to comply with this law. The bill demands information that often does not exist, and cannot realistically be obtained. 

EFF submitted an opposition letter to the California Senate Privacy Committee explaining why we continue to believe A.B. 412 is simply unworkable. To the extent developers do follow this law, it will have the effect of locking in the power of the largest companies in AI. 

A Burden That Can’t Be Met

A.B. 412 sounds simple: just have AI developers create and keep a list of all the registered copyrighted works they use in AI training. 

That may seem straightforward. In practice, it’s anything but. 

There is no machine-readable “list” of copyrighted works at the U.S. Copyright Office. And many copyright holders can get a copyright without even depositing a publicly viewable sample of the work—for example, software companies may register copyright on proprietary code without revealing it to the public. 

And on the open internet, copyright information is often incomplete, unavailable, or impossible to verify. One image may be registered with the copyright office, while the next is licensed under a free Creative Commons license (like the images that EFF creates), and the next is public domain. A message forum user might post an original story, photograph, or poem without any indication of ownership or registration status. 

The bill effectively asks developers to continuously cross-reference massive batches of online data against a copyright system that simply wasn’t designed to do so. If California passes A.B. 412, its impact will go far beyond the large AI companies we read about in the headlines. 

Not Just Big Tech

Supporters often frame this bill as a way to help creative workers have some leverage against Big Tech, but the bill reaches much further than the big AI companies. 

Its definition of “developer” extends to anyone who makes a generative AI model available to Californians. That includes indie developers tinkering with an existing model, open-source initiatives, nonprofits, and other non-commercial efforts. Recent amendments added exemptions for universities and government entities, which is important, but that still leaves out a vast swathe of non-commercial tech work that’s done by people without full-time jobs in government or academia. 

Large companies will hire compliance teams and lawyers to navigate these requirements. Smaller organizations and independent developers usually can’t. The result will be fewer opportunities for startups and new entrants. Faced with this massive compliance burden, some won’t even try. 

Courts Are Already Deciding These Questions

The bill is premised on the idea that copyright owners currently don’t have good remedies if they’re mistreated by AI companies. That simply isn’t true. And the growing wave of federal court filings in this space prove it. Content companies that want to sue tech companies, large or small, have no problem doing so. Those courts are still working through important questions about fair use and transformative use. Some courts have already concluded that many AI training activities qualify as fair use. Others continue to evaluate the issue.

California lawmakers should not rush to impose new state regulation while those questions remain unresolved. This is why copyright is governed at the federal level: both creators and fair users benefit from a single set of nationwide rules. 

At this point, the bill remains a solution in search of a problem. Rights holders already have powerful tools to protect their interests under existing federal law. What this bill adds isn’t clarity or transparency, but a costly and essentially impossible compliance burden that will discourage small developers and researchers. 

California has been able to support both artistic creativity and tech innovation for decades now.  But A.B. 412 does not strike the right balance. 

If you are a California resident and interested in speaking out about this bill, you can find and contact your representatives through this website. 

Following criticism, lawmakers have narrowed the GUARD Act, a bill aimed at restricting minors’ access to certain AI systems. The earlier version could have applied broadly to nearly every AI-powered chatbot or search tool. The amended bill focuses more narrowly on so-called “AI companions”—conversational systems designed to simulate emotional or interpersonal interactions with users. 

That change does address some of the broadest concerns raised about the original proposal, though some questions about the bill’s reach remain. Bottom line: the revised bill still creates serious problems for privacy, online speech, and parental choice.

TAKE ACTION

Tell Congress: oppose the guard act

The new GUARD Act still requires companies offering AI companions to implement burdensome age-verification systems tied to users’ real-world identities. Even parents who specifically want their teenagers to use these systems would still face significant hurdles. A family might decide that a conversational AI tool helps an isolated teenager practice social interaction, or engage in harmless creative roleplay. A parent deployed in the military might set up a persistent AI storyteller for a younger child. Under the revised bill, those users could still face mandatory age checks tied to sensitive personal or financial information before they or their children can use these services.

The revised bill also leaves important definitions unclear while sharply increasing penalties for developers and companies that get those judgments wrong. Congress narrowed the GUARD Act. But it is still trying to solve a complicated social problem with vague legal standards, heavy liability, and privacy-invasive verification systems.

Intrusive Age-Verification Remains In The Bill

The revised GUARD Act still requires companies offering AI companions to verify that users are adults through a “reasonable age verification” system. The bill allows a broader set of verification methods than the earlier version, but they are still tied to a user’s real-world identity—such as financial records, or age-verified accounts for a mobile operating system or app store. 

That approach still raises serious privacy and access concerns. Millions of Americans do not have current government ID, accounts at major banks, or stable access to the kinds of digital identity systems the bill contemplates. Even for those who do, requiring identity-linked verification to access online speech tools creates real risks for privacy, anonymity, and data security. Many people are rightly creeped out by age-verification systems, and may simply forgo using these services rather than compromise their privacy and security.

The revised definition of “AI companion” is also narrower than before, but it’s unclear at the margins. The bill now focuses on systems that “engage in interactions involving emotional disclosures” from the user, or present a “persistent identity, persona or character.” 

EFF appreciates that the authors recognized that the prior definition could reach a variety of AI systems that are not chatbots, including internet search engines. But the narrowed definition could be read to also apply to a variety of chat tools that are not AI companions. For example, many modern online conversational systems increasingly recognize and respond to users’ emotions. Customer service systems, including completely human-powered ones that existed long before AI chatbots, have long been designed to recognize frustration and respond empathetically. As conversational AI becomes more emotionally responsive, a customer service chatbot’s efforts to empathize may sweep it within the bill’s definition. 

Bigger Penalties, Bigger Incentives To Restrict Access

The revised bill also sharply increases penalties. Instead of $100,000 per violation, companies—including small developers—can face fines of up to $250,000 per violation, enforced by both federal and state officials.

That kind of liability creates incentives to over-restrict access, especially for minors. Smaller developers, in particular, may decide it is safer to block younger users entirely, disable conversational features, or avoid developing certain tools at all, rather than risk severe penalties under vague standards.

The concerns driving this bill are real. Some AI systems have engaged in troubling interactions with vulnerable users, including minors. But the right answer to that is targeted enforcement against bad actors, and privacy laws that protect us all. The revised GUARD Act instead responds with a privacy-invasive system that burdens the right to speak, read, and interact online.

Congress did improve this bill, but EFF’s core speech, privacy, and security issues remain.

TAKE ACTION

Tell Congress: oppose the guard act

Lawmakers in Congress are moving quickly on the GUARD Act, an age-gating bill restricting minors’ access to a wide range of online tools, with a key vote expected this week. The proposal is framed as a response to alarming cases involving “AI companions” and vulnerable young users. But the text of the bill goes much further, and could require age gates even for search engines that use AI. 

TAKE ACTION

Tell Congress: oppose the guard act

If enacted, the GUARD Act won’t just target a narrow category of risky chatbots. It would require companies to verify the age of every user — then block anyone under 18 from interacting with a huge range of online systems. It would block minors from everyday online tools, undermine parental guidance, and force adults to sacrifice their privacy. In the process, it would require services to implement speech-restricting and privacy-invasive age-verification systems for everyone—not just kids. 

Under the GUARD Act’s broad definitions, a high school student could be barred from asking homework help tools questions about algebra problems. A teenager trying to return a product could be kicked out of a standard customer-service chat. 

The concerns behind this bill are serious. There have been troubling reports of AI systems engaging in harmful interactions with young users, including cases involving self-harm. Those risks deserve attention. But they call for targeted solutions, like better safeguards and enforcement against bad actors, not sweeping restrictions. The bill’s sponsors say they’re targeting worst-case scenarios — but the bill regulates everyday use. 

The GUARD Act’s Broad Definitions Reach Everyday Tools

The problem starts with how the bill defines an “AI chatbot.” It covers any system that generates responses that aren’t fully pre-written by the developer or operator. Such a broad definition sweeps in the basic functionality of all AI-powered tools. 

Then there’s the definition of an “AI companion,” which minors are banned from using entirely. An AI companion is any chatbot that produces human-like responses and is designed to “encourage or facilitate” interpersonal or emotional interaction. That may sound aimed at simulated “friends” or therapy chatbots. But in practice, it’s much fuzzier. 

Modern chatbots are designed to be conversational and helpful. A homework helper might say “good question” before walking a student through a problem. A customer service chatbot may respond empathetically to a complaint (“I’m sorry you’re having this problem.”) A general-purpose assistant might ask follow-up questions. All of these could be seen as facilitating “interpersonal” interaction — and triggering the GUARD Act. 

Faced with steep penalties and unclear boundaries, companies are unlikely to take chances on letting young people use their online tools. They’ll block minors entirely or strip their tools down to something less useful for everyone. The result isn’t a narrow safeguard—it’s a broad restriction on everyday online interactions.

Homework Question? Show ID And Call Your Parents

Start with a student getting help with homework. Under the GUARD Act, the service must verify the user’s age using more than a simple checkbox—it must rely on a “reasonable age verification” measure, which could require a government ID or a third-party age-checking system. If the system decides a user is under 18, the company must decide if its tool qualifies as an “AI Companion.” If there’s any risk it does, the safest move is to block access entirely. 

The same logic applies to everyday customer service. A teenager trying to fix an order issue gets routed to a chatbot, and the company faces a choice: build a full age-verification system for a routine interaction, or restrict access to avoid liability. Many will choose the latter.

This isn’t a narrow restriction aimed at a few risky products. It’s a compliance regime that pushes companies to block or limit any product that generates text for minors, across the board. 

ID Checks for Everyone

The GUARD Act doesn’t just affect minors. The bill takes a big step towards an internet that only works when users are willing to upload a valid ID or comply with other invasive age-verification schemes. Companies must verify the age of every user—not through a simple self-declaration, but through a “reasonable age verification” system tied to the individual. 

In practice, that means collecting sensitive personal information: government IDs, financial data, or biometric identifiers. Companies can outsource verification, but they remain legally responsible. And the law requires ongoing verification, so this isn’t a one-time check. Worse, studies consistently show that millions of people have outdated information on their IDs, such as an old address, or do not have government ID. Should services require ID, many folks without current or any ID will be shut out. 

And for those who do have compliant ID, turning over this information repeatedly creates obvious risks. Databases of sensitive identity information become targets for breaches. Anonymous or pseudonymous use of online tools becomes harder or impossible. 

To keep minors away from certain chatbots, the GUARD Act would require everyone to prove who they are just to use basic online tools. That’s a steep tradeoff. And it doesn’t actually address the specific harms the bill is supposed to solve.

Vague Definitions, Huge Penalties

The GUARD Act’s broad scope is enforced with steep penalties. Companies can face fines of up to $100,000 per violation, enforced by federal and state officials. At the same time, key terms like “AI companion” rely on vague concepts such as “emotional interaction.” That combination will lead to overblocking. Faced with legal uncertainty and serious liability, companies won’t parse small distinctions. They’ll restrict access, limit features, or block minors entirely.

That is the unfortunate result of the GUARD Act, even though the concerns animating it are worthy of fixing. But the GUARD Act’s broad terms will apply far beyond the concerning scenarios. 

In the end, that means a more restricted and more surveilled internet. Teenagers would lose access to tools they rely on for school and everyday tasks. Everyone else faces new barriers, including ID checks. Smaller developers, who aren’t able to absorb compliance costs and legal risk, would be pushed out, leaving the largest companies even more dominant. 

Young people — and all people — deserve protection from genuinely harmful products. But this bill doesn’t do that. It trades away privacy, access, and useful technology in exchange for a blunt system that misses the mark. 

Congress could act soon. Tell them to reject the GUARD Act. 

TAKE ACTION

Tell Congress: say no to mandatory online id checks

SmugMug is a family-owned photo hosting and e-commerce platform that helps professional photographers run their businesses online. Founded in 2002, the company provides tools for photographers to show their work, deliver client galleries, sell prints, and manage payments. 

In 2018, SmugMug purchased Flickr, the long-running photo-sharing community, which added tens of millions of active hobbyist photographers to the company’s user base. 

Ben MacAskill is President and COO of SmugMug’s parent company, Awesome, which he co-founded with his family. Awesome also includes the media network This Week in Photo and the nonprofit Flickr Foundation, which focuses on preserving publicly available photography. MacAskill has been an active voice in policy discussions around Section 230 and online platform regulation. He was interviewed by Joe Mullin, a policy analyst on EFF's Activism Team.

Joe Mullin:  How would you explain Section 230 to a SmugMug photographer who hasn't heard of it but relies on you to share their work, run their business.

Ben MacAskill: Section 230 allows us to run our business. We are a small, family run business. We don’t have the resources to police every single upload, every single comment, or every single engagement that happens on the site. 

That includes photographers who have comments on their sites. Anywhere there’s interaction online, Section 230 protects us. 

It doesn't absolve us of liability. We can't run rampant and do anything we want. It  just helps protect us and make it scalable so that we can run our business.

What would you have to change if Section 230 were eliminated or significantly narrowed? 

Honestly, there's a high chance that it would bankrupt platforms like ours. They're not wildly profitable. If Section 230 is done away with, we have to [check] content that goes online to make sure we’re not liable. That means policing tens of millions of uploads per day. 

That would kill the business of a lot of photographers. Can you imagine—you just got married, and you’re waiting for your wedding photos for a week or two because they’re in some moderation queue? 

If we don’t have legal protections, and we get one nefarious customer—if something goes sideways—then I’m liable for that. 

I don't, and can't possibly know, whether every single photo is appropriate or legal, as it's uploaded. We would literally have to moderate everything before it goes online. I don’t think any business can afford that, period. I guess you could have an offshore call-center type thing. Still, it would change the entire nature of the real-time internet. Imagine posting something to Instagram and having the platform say, “Cool, we’ll get back to you in 8 to 12 days.” 

What kind of content moderation do you do on SmugMug? 

If a user uploads something illegal, we will report them as soon as we find it. We're not protecting them. We don’t condone or allow illegal behavior. We work very closely with organizations, nonprofits and governmental agencies to detect CSAM—child exploitative material—and we report that to the National Center for Missing and Exploited Children. We will report users, we eliminate illegal content on our platforms—which is one reason we have such a low prevalence of that problem. 

But that does take effort and time to find, and there is currently no perfect solution. The tech solutions that exist can’t detect it at 100% accuracy, or anywhere close. And with tens of millions of uploads a day, going through them one by one is impossible. 

How do you think more generally about protecting user speech and creative expression? 

On SmugMug, we’re really focusing on professionals running their business. So we don’t have to [weigh in] on content too much. 

On Flickr, we are big proponents of expression and artistic creativity. Photographers have opinions! But we do draw the line at things like hate speech and harassment. We aggressively maintain a friendly platform. Our community guidelines are very specific, that you cannot harass other customers, you cannot upload stuff classified as hate speech, or threats, or anything along those lines. 

Those rules are generally policed by the community. We do have some text analysis tools, but when community members feel harassed or threatened, reports will come in. We’ll address them on a one-by-one basis and remove harassing material from our platform. 

Our ability to moderate is one of the things that makes Flickr what it is. If we lose the ability to enforce our own moderation rules—or have that legislated for us—then it changes the entire nature of the community. And not in a good way. Losing the ability to moderate would permanently and forever change what we've built.

What kind of complaints or takedown requests do you receive, and how do you handle it, both in the U.S. and abroad? 

Flickr is often referred to as the friendliest community online. You know, we're not dealing with a lot of hate. We're not dealing with a lot of threats. Under other frameworks, like the DMCA, we do takedowns on copyrighted material. 

We’re able to handle it with a fully internal team, and we have a great track record. But the user base and the content base is so large that, if we had to assume that those tens of millions of uploads a day are problematic, the burden would be extreme. 

We have a robust Trust and Safety Team, and we operate in every non-embargoed country on Earth. So we are subject to a lot of different laws and regulations: “likeness” rules and privacy rules in certain countries that don't exist here in the United States. Even state to state, there’s some varying laws. It’s a complicated framework, but we pay attention to it. 

The globe responds in much the same way that Section 230 is working. That is, we operate on reports and discovery, not on pre-screening everything. 

What do you think that policy makers most often misunderstand about how platforms like yours operate?

One misconception is that we are not beholden to any laws. That Section 230 absolves us of any responsibility and any liability, and we can just do whatever we want. They talk about it as “reining in tech companies,” or “holding tech companies accountable.” But I am accountable for the content on my platform. We’re not given this “get out of jail free” card. 

And I think they assume all platforms don’t really care about this, that anything that is done is done begrudgingly. But we’re very proactive about keeping a clean, polite, and friendly community. We are already very aggressively policing our platform. 

And even legal content gets moderated, because it might just not be appropriate for a particular community. 

We enforce our rules, and much the way that other private in-person businesses will enforce their rules. If you start screaming hateful things at patrons in a coffee shop, they’re going to throw you out. They want a quiet, chill vibe where people can sip their lattes. We’re doing the same sort of things. 

As an independent family owned company you’re in an ecosystem dominated by much larger platforms. How are these issues different for you as a smaller service? 

I think it's a much more existential threat for middle and small tech companies. It also shuts off the next generation of these platforms. The computer science student in a dorm room right now won't have the legal protections to launch, to even try to build something new. At least not here in the United States. 

Section 230 helps make it possible for online communities to host user speech: from restaurant reviews, to fan fiction, to collaborative encyclopedias. But recent debates about the law often overlook how it works in practice. To mark its 30th anniversary, EFF is interviewing leaders of online platforms about how they handle complaints, moderate content, and protect their users’ ability to speak and share information. 

Reddit is one of the largest user-generated content platforms on the internet, built around thousands of independent communities known as subreddits. Some subreddits cover everyday interests, while others host discussions about specialized or controversial topics. These communities are created and moderated by volunteers, and the site’s decentralized model means that Reddit hosts a vast range of user speech without relying on centralized editorial control. 

Ben Lee is Chief Legal Officer at Reddit, where he oversees the company’s legal strategy and policy work on issues including content moderation and intermediary liability. Before joining Reddit, Lee held senior legal roles at other tech companies including Plaid, Twitter, and Google. At Reddit, he has been closely involved in litigation and policy debates surrounding Section 230, including cases addressing the legal risks faced by platforms and their users and moderators. He was interviewed by Joe Mullin, a policy analyst on EFF's Activism Team.

Joe Mullin: When we talk about user rights and Section 230, what rights are most at stake on a platform like Reddit? 

Ben Lee: Reddit, we often say, is the most human place on the internet. What’s often missing from the debate is that section 230 protects people—not platforms. 

It protects millions of everyday humans and volunteer moderators who participate in online communities. Without it, people could face lawsuits for voting down a post, enforcing community rules, or moderating a discussion. These are foundational activities on Reddit, and frankly, the whole internet.

If you had to describe section 230 to a regular Reddit user without naming the law, what would you say it does for them?

Section 230 protects your ability to participate in community moderation.

Even if all you are doing is up-voting or down-voting content, that’s participation. On Reddit, everyone is a content moderator, through voting. Up-voting determines the visibility of content. 

We believe, strongly, this is one of the only models to allow Reddit to scale. You make the community part of the moderation process. They’re invested in the community, making it better. 

How would user speech be affected if Section 230 were eliminated or weakened? 

We would undermine community self governance—the notion that humans can do content moderation, and take that responsibility for themselves. Whether you’re a small blog or big forum. I like to think of Reddit as composed of this federation of communities that range from the tiny to the humongous. That’s what the internet is! 

The legal risk would discourage people from moderating, or even speaking at all. The kind of speech we’re trying to protect is often critical of powerful people or entities. If a moderation decision leads to litigation from those powerful entities, that’s an expensive proposition to fight. 

Reddit relies on user-run communities and volunteer moderators. Can you walk me through how content moderation and legal complaints actually work in practice, and where section 230 comes into that? 

We have a tiered structure, like our federal system. Each community is like a state: it has its own rules, and enforces them. The vast majority of content moderation decisions are made by the communities, not by Reddit itself. 

Reddit is built on self-governing communities that are moderated by volunteers, supported by automated tools. Section 230 gives Reddit the freedom to experiment, and lets users shape healthy, interest-based spaces.

Section 230 is fundamental to protecting the moderators from a frivolous lawsuit. A screenwriting community might want to protect their community from scammy competitions—and then they get sued by that competition. 

Or a community wants to keep their conversation civil. And, for example, may not allow Star Trek characters to be called “soy boys,” and they enforce that. Then a person sues. 

I wish these were hypotheticals. But they were actual lawsuits. And we have them, routinely. 

What are policymakers missing about Section 230? 

The [moderation] decisions being criticized in court, are decisions to try to make the internet safer. In none of the cases that I mentioned is there a moderator saying, “I want to increase harmful content!” These are good-faith decisions about what makes the internet better. 

Section 230 is, at its core, protecting the ability for people to make those choices for their own communities. 

There's a price to be paid for not having a Section 230. And it will be paid by internet users—not the biggest platforms.

Some see 230 as a way to punish Big Tech. But removing it doesn't punish Big Tech—it makes them more powerful. It's startups, community driven platforms, and individual moderators who rely on Section 230 to compete and innovate. Weakening Section 230 will harm the open internet, and reduce the choice, diversity, and resilience of the internet. 

The big guys, they have armies of lawyers. They have the budget to withstand a flood of lawsuits. Weakening Section 230 just entrenches them. 

In Reddit’s amicus brief in the Gonzalez v. Google Supreme Court case, you point out that without Section 230, many moderation decisions wouldn’t be protected. The brief states: “A plaintiff might claim emotional distress from a truthful but hurtful post that gained prominence when a moderator highlighted it as a trending topic. Or, a plaintiff might claim interference with economic relations arising from an honest but very critical two-star restaurant review.” 

When you have situations where moderators get threats or litigation, what can you do? 

We have had cases where our own moderators got sued, along with us. In the “soy boy” case, we worked to help find pro bono counsel for the moderators. 

Someone posted “Wesley Crusher is a soy boy,” and it got removed. I'm enough of a Star Trek fan that I understand both the reference, and why the moderator decided—“hey, it's gone. I don't want this here.”

This would not violate our Reddit rules. But the community took it down under its own rules about being civil. It was just not a kind-hearted action, and the community had a right to decide. 

But the moderator got sued. We got sued, actually, because the poster disagreed with that moderation choice. Section 230 is what allowed us to win that case. 

These are just average people, implicated only because they moderated their own community. They are trying to do the right thing by their community. 

In cases where litigation happens, when does Section 230 come into play? 

Section 230 is usually one of the first things that's talked about in the case. It’s usually the most effective way of saying: if you believe someone who defamed you—please go to the person who has defamed you. If you’re looking to the moderator, or to Reddit itself, this is not a great way of getting the justice that you seek. 

Is there a different workflow internationally? 

There’s a very different workflow. We had a prominent case in France where a company was trying to sue moderators, and of course, we didn't have section 230 to protect them. So we had to do all sorts of other things to protect them. It got much more complicated. 

The breadth of content that's considered illegal in certain jurisdictions can be somewhat breathtaking. 

Our goal is always to preserve as much freedom of expression as possible for our community. In the U.S., we look at it through the lens of the First Amendment, and other aspects. Outside the U.S., we rely more on the lens of international human rights. 

How would you characterize legal demands around user content, the ones you see most often? 

They tend to be: somebody said something mean about me—take this down. Or someone says: you didn’t allow me to say something mean about someone or some entity. It completely runs the spectrum. 

One law that has already passed that weakens Section 230 is SESTA/FOSTA. From Reddit’s perspective, what changed after that? 

There's some communities we had to shut down, in particular, support communities. There was a cost. Every time Section 230 is narrowed, there’s a cost—some types of speech and communities have a harder time staying online. 

The cost may not seem high to some people, because those communities are not for them. But if they visited them, they’d see that these are actual people, interacting in a positive way. If it wasn’t positive, we have rules for that—but that’s a different question.