As Migrant Arrests and Deportations Increase, Remember You Have the Right To Record ICE
Law enforcement acts better when officers know the public is watching.
Like it or loathe it, the Trump administration is delivering on one of its campaign promises: stepped-up removal of migrants who illegally entered the U.S. Arrests are up, deportations are up, and President Donald Trump and his "border czar" Tom Homan say they want more. But whether you favor deportation, are on the fence in hopes that efforts will focus on dangerous criminals, or view the whole operation as monstrous, we should agree that, like all law enforcement activity, arrests by Immigration and Customs Enforcement (ICE) should be carried out with regard for people's civil liberties. Public scrutiny goes a long way toward ensuring that agents of the government respect legally protected rights.
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Recording Helps Keep Cops Honest
The "why" of filming government enforcers should be obvious. Last year, Reason's Jacob Sullum wrote about Sonya Massey, who was killed in her home by Sangamon County, Illinois, Sheriff's Deputy Sean Grayson. Video of the incident contradicted Grayson's claim that Massey attacked him with boiling water. The county has since settled with her family for $10 million and Grayson awaits trial for first-degree murder. In other incidents, video has exonerated officers facing bogus accusations. Either way, recording encounters between law enforcement and the public adds clarity.
"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," point out Saira Hussain, Sophia Cope, and Matthew Guariglia of the Electronic Frontier Foundation (EFF).
To that end, the EFF and other groups including WITNESS and the New York Civil Liberties Union (NYCLU) offer guidance so that people documenting actions by ICE—or by any law enforcement officers—can properly maintain their role as observers without becoming unwilling participants.
You Have a Right To Record Law Enforcers
"The public has a right – regardless of immigration status – under the First Amendment and the Right to Record Act, to record video and take pictures in public places," notes NYCLU. "You also have the right to film law enforcement, including ICE and other federal immigration authorities, in public spaces."
The U.S. Department of Justice itself has conceded that "the First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties."
Keep in mind that "public spaces" doesn't necessarily refer to the inside of government facilities, even though our taxes pay for those as much as for anything else the government does. The public has greater leeway to record on a street than it does in a courthouse.
Be Courteous and Stay Safe
A key component of recording law enforcement conduct is remaining an observer and not getting involved in the encounter. As the EFF puts it, "Do not interfere with law enforcement. If you are a bystander, stand at a safe distance from the scene that you are recording."
How far is a "safe distance" is largely a judgment call. Some states have mandated distances ranging from eight to 25 feet. Courts generally frown on these mandated buffer zones, but that doesn't stop cops from roughly enforcing standoff distances. After Miami Beach imposed a 20-foot buffer in 2021, five officers were charged with battery in one month over their excessive enthusiasm for enforcement.
So, as the EFF advises, "stay calm and courteous….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." You're not going to win an argument over the justification for the order. Back up so you can stay free and continue to record the incident.
But what if ICE agents don't want you to record at all, and you suspect that a First Amendment argument will make little headway in what are undoubtedly heated circumstances?
"If an ICE officer or other law enforcement officer tells you to stop filming, depending on your comfort level interacting with law enforcement, you may want to comply with orders, or assert your rights but continue to film from a further distance," according to the NYCLU. "If you stop recording, you can still make note of what else you witness and write it down afterward." You also don't have to surrender your phone for search or for the deletion of images—but use a good passcode for your devices and keep your own safety in mind.
Remember that witnesses preexisted photography. Your version of events has value even if you decide it's wiser to lower the smartphone. In fact, written notes are a good idea, anyway, in order to record details such as date, location, and number of officers present that may be lost or chaotic in audio and video footage.
There's No Escaping Scrutiny
Keep in mind, too, that resistance to recording by ICE and law enforcement in general is a losing battle. Government enforcers look for signs that they're being recorded and respond according to their training or dispositions. But recording has become increasingly ubiquitous with the reduction in cost and proliferation of devices that can capture video and audio for later review. The sight of brandished phones is already giving way to wearables that don't announce that an incident is being preserved for posterity.
Meta has reportedly sold over 2 million of its Ray-Ban smart glasses since they were introduced in October 2023. "In the outer corner of each lens is a discreet, ultra-wide 12-megapixel camera that produces bold images and videos," according to Ray-Ban. The video can be live-streamed or stored.
We're entering an age in which ICE agents, police officers, and everybody else won't have the slightest idea whether their actions are being recorded and transmitted by the people around us. The bigger concern is that nothing will escape surveillance when cameras are tiny and unnoticeable.
If the era of inescapable surveillance is upon us, it might as well be used for good as well as for evil. Keeping law enforcement, including ICE, on notice that the public is watching can be an effective way to minimize abuses by the powers that be.
