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Across the United States, Immigration and Customs Enforcement (ICE) has already begun increasing enforcement operations, including highly publicized raids. As immigrant communities, families, allies, and activists think about what can be done to shift policy and protect people, one thing is certain: similar to filming the police as they operate, you have the right to film ICE, as long as you are not obstructing official duties.

Filming ICE agents making an arrest or amassing in your town helps promote transparency and accountability for a system that often relies on intimidation and secrecy and obscures abuse and law-breaking.

While it is crucial for people to help aid in transparency and accountability, there are considerations and precautions you should take. For an in-depth guide by organizations on the frontlines of informing people who wish to record ICE’s interactions with the public, review these handy resources from the hard-working folks at WITNESS and NYCLU.

At EFF, here are our general guidelines when it comes to filming law enforcement, including ICE:

What to Know When Recording Law Enforcement

You have the right to record law enforcement officers exercising their official duties in public.
Stay calm and courteous.
Do not interfere with law enforcement. If you are a bystander, stand at a safe distance from the scene that you are recording.
You may take photos or record video and/or audio.
Law enforcement cannot order you to move because you are recording, but they may order you to move for public safety reasons even if you are recording.
Law enforcement may not search your cell phone or other device without a warrant based on probable cause from a judge, even if you are under arrest. Thus, you may refuse a request from an officer to review or delete what you recorded. You also may refuse to unlock your phone or provide your passcode.
Despite reasonably exercising your First Amendment rights, law enforcement officers may illegally retaliate against you in a number of ways including with arrest, destruction of your device, and bodily harm. They may also try to retaliate by harming the person being arrested. We urge you to remain alert and mindful about this possibility.
Consider the sensitive nature of recording in the context of an ICE arrest. The person being arrested or their loved ones may be concerned about exposing their immigration status, so think about obtaining consent or blurring out faces in any version you publish to focus on ICE’s conduct (while still retaining the original video).

Your First Amendment Right to Record Law Enforcement Officers Exercising Their Official Duties in Public

You have a First Amendment right to record law enforcement, which federal courts and the Justice Department have recognized and affirmed. Although the Supreme Court has not squarely ruled on the issue, there is a long line of First Amendment case law from the high court that supports the right to record law enforcement. And federal appellate courts in the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have directly upheld this right. EFF has advocated for this right in many amicus briefs.

Federal appellate courts typically frame the right to record law enforcement as the right to record officers exercising their official duties in public. This right extends to private places, too, where the recorder has a legal right to be, such as in their own home. However, if the law enforcement officer is off-duty or is in a private space that you don’t have a right to be in, your right to record the officer may be limited.

Special Considerations for Recording Audio

The right to record law enforcement unequivocally includes the right to take pictures and record video. There is an added legal wrinkle when recording audio—whether with or without video. Some law enforcement officers have argued that recording audio without their consent violates wiretap laws. Courts have generally rejected this argument. The Seventh Circuit, for example, held that the Illinois wiretap statute violated the First Amendment as applied to audio recording on-duty police.

There are two kinds of wiretaps laws: those that require “all parties” to a conversation to consent to audio recording (12 states), and those that only require “one party” to consent (38 states, the District of Columbia, and the federal statute). Thus, if you’re in a one-party consent state, and you’re involved in an incident with law enforcement (that is, you’re a party to the conversation) and you want to record audio of that interaction, you are the one party consenting to the recording and you don’t also need the law enforcement officer’s consent. If you’re in an all-party consent state, and your cell phone or recording device is in plain view, your open audio recording puts the officer on notice and thus their consent might be implied.

Additionally, wiretap laws in both all-party consent states and one-party consent states typically only prohibit audio recording of private conversations—that is, when the parties to the conversation have a reasonable expectation of privacy. Law enforcement officers exercising their official duties, particularly in public, do not have a reasonable expectation of privacy. Neither do civilians in public places who speak to law enforcement in a manner audible to passersby. Thus, if you’re a bystander, you may legally audio record an officer’s interaction with another person, regardless of whether you’re in a state with an all-party or one-party consent wiretap statute. However, you should take into consideration that ICE arrests may expose the immigration status of the person being arrested or their loved ones. As WITNESS puts it: “[I]t’s important to keep in mind the privacy and dignity of the person being targeted by law enforcement. They may not want to be recorded or have the video shared publicly. When possible, make eye contact or communicate with the person being detained to let them know that you are there to observe and document the cops’ behavior. Always respect their wishes if they ask you to stop filming.” You may also want to consider blurring faces to focus on ICE’s conduct if you publish the video online (while still retaining the original version)

Moreover, whether you may secretly record law enforcement (whether with photos, video or audio) is important to understand, given that officers may retaliate against individuals who openly record them. At least one federal appellate court, the First Circuit, has affirmed the First Amendment right to secretly audio record law enforcement performing their official duties in public. On the other hand, the Ninth Circuit recently upheld Oregon’s law that generally bans secret recordings of in-person conversations without all participants’ consent, and only allows recordings of conversations where police officers are participants if “[t]he recording is made openly and in plain view of the participants in the conversation.” Unless you are within the jurisdiction of the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island), it’s probably best to have your recording device in plain view of police officers.

Do Not Interfere With Law Enforcement

While the weight of legal authority provides that individuals have a First Amendment right to record law enforcement, courts have also stated one important caveat: you may not interfere with officers doing their jobs.

The Seventh Circuit, for example, said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” The court further stated, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”

Transparency is Vital

While a large number of deportations is a constant in the U.S. regardless of who is president or which party is in power, the current administration appears to be intentionally making ICE visible in cities and carrying out flashy raids to sow fear within immigrant communities. Specifically, there are concerns that this administration is targeting people already under government supervision while awaiting their day in court. Bearing witness and documenting the presence and actions of ICE in your communities and neighborhoods is important. You have rights, and one of them is your First Amendment-protected right to film law enforcement officers, including ICE agents.

Just because you have the right, however, does not mean law enforcement will always acknowledge and uphold your right in that moment. Be safe and be alert. If you have reason to think your devices might be seized or you may run the risk of putting yourself under surveillance, make sure to check out our Surveillance Self-Defense guides and our field guide to identifying and understanding the surveillance tools law enforcement may employ.

Saira Hussain

When Platforms and the Government Unite, Remember What’s Private and What Isn’t

EFF update

1 month 2 weeks ago

For years now, there has been some concern about the coziness between technology companies and the government. Whether a company complies with casual government requests for data, requires a warrant, or even fights overly-broad warrants has been a canary in the digital coal mine during an era where companies may know more about you than your best friends and families. For example, in 2022, law enforcement served a warrant to Facebook for the messages of a 17-year-old girl—messages that were later used as evidence in a criminal trial that the teenager had received an abortion. In 2023, after a four year wait since announcing its plans, Facebook encrypted its messaging system so that the company no longer had access to the content of those communications.

The privacy of messages and the relationship between companies and the government have real-world consequences. That is why a new era of symbiosis between big tech companies and the U.S. government bodes poorly for both, our hopes that companies will be critical of requests for data, and any chance of tech regulations and consumer privacy legislation. But, this chumminess should also come with a heightened awareness for users: as companies and the government become more entwined through CEO friendships, bureaucratic entanglements, and ideological harmony, we should all be asking what online data is private and what is sitting on a company's servers and accessible to corporate leadership at the drop of hat.

Over many years, EFF has been pushing for users to switch to platforms that understand the value of encrypting data. We have also been pushing platforms to make end-to-end encryption for online communications and for your stored sensitive data the norm. This type of encryption helps ensure that a conversation is private between you and the recipient, and not accessible to the platform that runs it or any other third-parties. Thanks to the combined efforts of our organization and dozens of other concerned groups, tech users, and public officials, we now have a lot of options for applications and platforms that take our privacy more seriously than in previous generations. But, in light of recent political developments it’s time for a refresher course: which platforms and applications have encrypted DMs, and which have access to your sensitive personal communications.

The existence of what a platform calls “end-to-end encryption” is not foolproof. It may be poorly implemented, lack widespread adoption to attract the attention of security researchers, lack the funding to pay for security audits, or use a less well-established encryption protocol that doesn’t have much public scrutiny. It also can’t protect against other sorts of threats, like someone gaining access to your device or screenshotting a conversation. Being caught using certain apps can itself be dangerous in some cases. And it takes more than just a basic implementation to resist a targeted active attack, as opposed to later collection. But it’s still the best way we currently have to ensure our digital conversations are as private as possible. And more than anything, it needs to be something you and the people you speak with will actually use, so features can be an important consideration.

No platform provides a perfect mix of security features for everyone, but understanding the options can help you start figuring out the right choices. When it comes to popular social media platforms, Facebook Messenger uses end-to-end encryption on private chats by default (this feature is optional in group chats on Messenger, and on some of the company’s other offerings, like Instagram). Other companies, like X, offer optional end-to-end encryption, with caveats, such as only being available to users who pay for verification. Then there’s platforms like Snapchat, which have given talks about their end-to-end encryption in the past, but don’t provide further details about its current implementations. Other platforms, like Bluesky, Mastodon, and TikTok, do not offer end-to-end encryption in direct messages, which means those conversations could be accessible to the companies that run the platforms or made available to law enforcement upon request.

As for apps more specifically designed around chat, there are more examples. Signal offers end-to-end encryption for text messages and voice calls by default with no extra setup on your part, and collects less metadata than other options. Metadata can reveal information such as who you are talking with and when, or your location, which in some cases may be all law enforcement needs. WhatsApp is also end-to-end encrypted. Apple’s Messages app is end-to-end encrypted, but only if everyone in the chat has an iPhone (blue bubbles). The same goes for Google Messages, which is end-to-end encrypted as long as everyone has set it up properly, which sometimes happens automatically.

Of course, we have a number of other communication tools at our disposal, like Zoom, Slack, Discord, Telegram, and more. Here, things continue to get complicated, with end-to-end encryption being an optional feature sometimes, like on Zoom or Telegram; available only for specific types of communication, like video and voice calls on Discord but not text conversations; or not being available at all, like with Slack. Many other options exist with varying feature-sets, so it’s always worth doing some research if you find something new. This does not mean you need to avoid these tools entirely, but knowing that your chats may be available to the platform, law enforcement, or an administrator is an important thing to consider when choosing what to say and when to say it.

And for high-risk users, the story becomes even more complicated. Even on an encrypted platform, users can be subject to targeted machine-in-the middle attacks (also known as man-in-the middle attacks) unless everyone verifies each others’ keys. Most encrypted apps will let you do this manually, but some have started to implement automatic key verification, which is a security win. And encryption doesn’t matter if message backups are uploaded to the company’s servers unencrypted, so it’s important to either choose to not backup messages, or carefully set up encrypted backups on platforms that allow it. This is all before getting into the intricacies of how apps handle deleted and disappearing messages, or whether there’s a risk of being found with an encrypted app in the first place.

CEOs are not the beginning and the end of a company’s culture and concerns—but we should take their commitments and signaled priorities seriously. At a time when some companies may be cozying up to the parts of government with the power to surveil and marginalize, it might be an important choice to move our data and sensitive communications to different platforms. After all, even if you are not at specific risk of being targeted by the government, your removed participation on a platform sends a clear political message about what you value in a company.

Thorin Klosowski