“The nature and content of the Defendants’ communications with these technology companies” is “critical for determining whether they crossed the line from governmental cajoling to unconstitutional coercion,” EFF’s complaint said.
EFF Senior Staff Attorney Mario Trujillo told Ars that the EFF is confident it can win the fight to expose government demands, but like most FOIA lawsuits, the case is expected to move slowly. That’s unfortunate, he said, because ICE activity is escalating, and delays in addressing these concerns could irreparably harm speech at a pivotal moment.
Like users, platforms are seemingly victims, too, FIRE senior attorney Colin McDonnell told Ars.
They’ve been forced to override their own editorial judgment while navigating implicit threats from the government, he said.
“If Attorney General Bondi demands that they remove speech, the platform is going to feel like they have to comply; they don’t have a choice,” McDonnell said.
But platforms do have a choice and could be doing more to protect users, the EFF has said. Platforms could even serve as a first line of defense, requiring officials to get a court order before complying with any requests.
Platforms may now have good reason to push back against government requests—and to give users the tools to do the same. Trujillo noted that while courts have been slow to address the ICEBlock removal and FOIA lawsuits, the government has quickly withdrawn requests to unmask Facebook users soon after litigation began.
“That’s like an acknowledgement that the Trump administration, when actually challenged in court, wasn’t even willing to defend itself,” Trujillo said.
Platforms could view that as evidence that government pressure only works when platforms fail to put up a bare-minimum fight, Trujillo said.
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