The extent of the brutal tactics used by ICE in its assault on people and  US cities has been made public only through the bravery of citizen journalists and activists who document ICE activity and post it online. In response, ICE has targeted those activists. The point of this repression is to stifle free speech, and the antidote is a confident understanding of your rights when posting online. Here is what you need to know:

• It is completely legal to document police activity in public, including ICE – however, there are limits to where a person can be physically while recording.

In particular, if an officer gives you a direction like “stand back” or “move over there” you should follow their direction. Otherwise, you may be risking arrest for interfering with the arrest or detention.

• Criticism, even if strongly worded or offensive — is protected by the First Amendment and is legal; however ,“true threats” are not. A “true threat” is a statement where the speaker states they are going to commit an act of unlawful violence.
  • Courts look at intent in two ways when analyzing a “true threat.”    
    • Subjective Intent: Did the speaker either intend to threaten, or “consciously disregard a substantial and unjustifiable risk” that their conduct will cause harm to someone?
    • Objective Intent: Would a reasonable person interpret the speech as threatening?
  • This is true for posts about anyone, not just ICE.
• Public information is fair game; private information is not.
  • ICE agents fall into a category of protected federal worker, meaning there are legal limits on what can be posted about them, that are different than the rules for normal people.
  • Anything made publicly available through government documents, or on the agent’s uniform — such as name, department, rank, or salary information — are legal to post.
  • It is illegal to post home addresses, cell phone numbers, personal email addresses, or other personally identifying information belonging to the agent or their family members.
  • This protection extends to filming agents at their home or posting such videos.

Beyond your rights regarding individual posts, there are some extra things to keep in mind when documenting ICE or any other police agency online:

• Interpret the rules more strictly if you are a non-citizen, even if you have legal status.
  • The administration is applying a heavy political bias in determinations around people’s status.
  • Because every immigration issue is fact-specific, if you have concerns, seek out an opinion from a qualified immigration attorney.
• Be cautious if you are traveling in and out of the country. Re-entering the country after a trip abroad is a risky situation for what would ordinarily be your Fourth Amendment rights. Customs, Homeland Security, and/or Border Patrol can seize and search a phone for a variety of reasons. Brush up on your rights while traveling outside of the U.S., and consider bringing a burner device for use while out of the country.

• ICE/DHS is attempting to subpoena social media account information from META and Google. Currently, CLDC represents an anonymous speaker who posts public info about ICE activity, pushing back against an “administrative” subpoena ICE served on Meta demanding user account info. We filed a motion to quash, and the court granted a temporary stay against META disclosing the info while the case proceeds, and we are set for a hearing in January.

With ICE totally unrestrained, it is a scary time for civil liberties. Knowing and understanding your rights is the first step to exercising them. If your rights have been violated by ICE or you would like to learn more about how to get involved with CLDC’s work, contact us.