UPDATE: On May 30, 2024, the Ninth Circuit denied the plaintiffs' petition for rehearing en banc.

EFF filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in a case that has serious implications for people’s First Amendment rights to engage in cross-border journalism and advocacy.

In 2019, the local San Diego affiliate for NBC News broke a shocking story: components of the federal government were conducting surveillance of journalists, lawyers, and activists thought to be associated with the so-called “migrant caravan” coming through Central America and Mexico.

The Inspector General for the Department of Homeland Security, the agency’s watchdog, later reported that the U.S. government shared sensitive information with the Mexican government, and U.S. officials had improperly asked Mexican officials to deny entry into Mexico to Americans to prevent them from doing their jobs.

The ACLU of Southern California, representing three of these individuals, sued Customs & Border Protection (CBP), Immigration & Customs Enforcement (ICE), and the FBI, in a case called Phillips v. CBP. The lawsuit argues, among other things, that the agencies collected information on the plaintiffs in violation of their First Amendment rights to free speech and free association, and that the illegally obtained information should be “expunged” or deleted from the agencies’ databases.

Unfortunately, both the district court and a three-judge panel of the Ninth Circuit ruled against the plaintiffs.

The panel held that the plaintiffs don’t have standing to bring the lawsuit because they don’t have sufficient privacy interests in the personal information the government collected about them, in part because the data was gleaned from public sources such as social media. The panel also held there is no standing because there isn’t a sufficient risk of future harm from the government’s retention of the information.

The plaintiffs recently asked the three-judge panel to reconsider its decision, or alternatively, for the full Ninth Circuit to conduct an en banc review of the panel’s decision. 

In our amicus brief, we argued that the plaintiffs have privacy interests in the personal information the government collected about them, which included details about their First Amendment-protected “political views and associations.” We cited to Supreme Court precedent that has found privacy interests in personal information compiled by the government, even when the individual bits of data are available from public sources, and especially when the data collection is facilitated by technology.

We also argued that, because the government stored plaintiffs’ personal information in various databases, there is a sufficient risk of future harm. These risks include sharing data across agencies or even with other governments due to lax or nonexistent policies on data sharing; government employees abusing individuals’ data; and CBP’s poor track record of keeping digital data safe from data breaches.

We hope that the panel reconsiders its erroneous decision and holds that the plaintiffs have standing to seek expungement of the information the government collected about them; or that the full Ninth Circuit agrees to review the panel’s original decision, to protect Americans’ free speech and privacy rights.