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Q&A: Legal Issues and Security when filming Immigration Officials

Deportation is an increasing fear in the immigrant community as the Trump administration cracks down on undocumented immigrants, particularly those with criminal records. As of May 2017, Immigration and Customs Enforcement (ICE) officials had arrested more than 41,000 people, an almost 40% increase from the same period last year. ICE continues to surveil, target, and harass immigrant communities, often showing up at homes in nondescript clothing, identifying as police officers, or using fabricated stories to gain entry.

In this climate of escalating fear and uncertainty, WITNESS and Immigrant Defense Project (IDP) remain committed to protecting immigrant communities and supporting activists and organizers. Our first webinar, #EyesOnICE: Documenting ICE, covered rights and legal issues around filming ICE activity. You can view the webinar below. Also available in Spanish.

Filming these encounters on a cellphone or other device, if possible, can help expose illegal activity and human rights abuses committed by ICE officers, deter violence, substantiate reports and serve as evidence. However, if footage isn’t captured and/or shared safely and ethically, there can be unintended harm to both the person being filmed and the person filming.

Our second webinar, #EyesOnICE: Community Responses and Organizing Tactics, featured organizers from Make the Road New YorkNational Day Laborer Organizing Network (NDLON), Equality for Flatbush, and Black Alliance for Just Immigration (BAJI). You can view the webinar below to learn more about their approaches, challenges, and vision for a way forward. As ICE expands the deportation system and priorities for deportation, communities and grassroots groups like these continue to lead the way – fighting back, challenging mainstream narratives, and documenting abuses. Also available in Spanish.

Both webinars are available to download in English and Spanish.

Below are responses to questions we weren’t able to answer during the webinars, as well as a resource roundup of immigration and filming-related materials. Thank you to The Center for Constitutional Rights for helping to answer some of the legal questions. More resources on ICE and filming here!

Questions are broken up into categories:

FILMING ICE

Do you have to announce to ICE that you are recording, and do you have to say it on camera?

While you’re not required to tell ICE that you’re recording, be aware that ICE is most concerned with their safety, not yours. Suddenly moving to grab your phone or reaching inside your pocket could escalate the situation. We recommend filming clearly and visibly so that ICE knows what you’re doing.

If ICE asks, make sure to speak in a *calm* and non confrontational tone. You can say, “I’m exercising my right to film, I’m not interfering.” Make sure to comply if they ask you to back up. You can even say on camera, “I’m backing up. I’m taking 5 steps back.”

You mentioned collecting interviews after a raid– what kind of information should be included in this testimony?

Before filming an interview, assess the security risks and inform the interviewee how/where you plan to use the footage and ask for their consent. If there are any concerns about exposing their identity, consider taking written notes instead of using video.

Ask the interviewee to try to only provide factual and unbiased information. Ask basic questions to get a sense of what happened and who it happened to, such as “Can you describe what happened? How do you know? Can you tell me who it happened to? If you have an opinion about why this happened, could you share your thoughts?” Keep in mind that they may have just witnessed a traumatic event and you don’t want to make them uncomfortable or exploit their trauma. See our Video as Evidence Field Guide section on Filming Interviews for more information and an example checklists.

What are the recording laws in New York? How can we find out what the recording laws in our state are?

Unfortunately, like so many other important issues, the law around recording in public isn’t simple. Some states have laws that apply quite specifically. For example, in 2015 California passed a law that makes it clear that recording a police officer does not count as interfering with the performance of a police officer’s duties.

However, most states simply have laws that address whether you need only one person in a conversation to consent to it being recorded, or if all parties to a conversation have to consent. This is known as “one-party” or “all-party”. The interpretation of these laws by prosecutors is often how cases around the right to record end up in court, and in some cases these laws have been struck down. For example, Illinois had a notorious statute that made it impossible to record the police in public, and it was struck down both by the Illinois Supreme Court and the Seventh Circuit Court of Appeals, a federal court, as being a violation of the First Amendment.

This argument, that the First Amendment supports the right to record, has been upheld in other cases. For example, in the landmark case Glik v. Cunninghman, the First Circuit Court of Appeals said: “ [I] there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”

To figure out the laws in your state, a quick google search for “one party or two party/all-party” should help.  There are some great guides online from the Reporters Commitee for Freedom of the Press and the Digital Media Law Project but they are outdated, so use with caution. The laws have certainly changed in recent years.

New York is a “one party” state, meaning if at least one person who is a party to a conversation wants to record it, they can do so without permission from the other party. This even applies to totally private conversations. In New York, you should also be aware of “Stephanie’s Law”, which makes it a felony to record someone without their knowledge or consent for voyeuristic, profitable, defamatory or abusive purposes at “a place and time when a reasonable person would believe that he or she could fully disrobe in privacy.” This law was inspired by a landlord spying on a tenant through cameras hidden in her smoke detectors, and it shouldn’t apply to recording ICE or the police, but it’s important to be cautious.

SHARING VIDEOS

Is there anyway we could upload a video somewhere and share it from there without revealing our identities or putting others at risk?

Sharing a video through a private channel or a cloud-type service is okay as a last resort, but not ideal- it’s still subject to government surveillance.  While this may not be an issue for many, increasingly surveillance is being used by the Department of Homeland Security and ICE for immigration enforcement-related purposes.

The ACLU has an app that they use for civilians to upload videos.  Do you recommend using it?

The ACLU Mobile Justice app includes good Know Your Rights info and an easy way to submit content for review by the ACLU. It is one of several apps that have been released in the past few years to help people document incidents of police violence. However, while it is a good sign that the tech world is creating tools to help capture and share videos of police abuse, we believe that it is more important for people to have a solid understanding of the underlying security, rights and sharing issues associated with filming the police, regardless of whether you are using an app or not.

In the heat of the moment, it can also be a challenge to use technology that you are unfamiliar with. If you’re interested in using an app, try a few out and practice using them until you are comfortable with the tool. But more importantly, make sure you are familiar with using and protecting your own device. We’ve outlined some guidance and additional thoughts in our post “Use This App to Film the Police…Or Not

DIGITAL SECURITY

Could you please explain more about how to set your camera or phone to automatically back up to the cloud or another external device/platform? 

Many smartphones allow for automatic backup up photos, videos and other content. Depending on which phone and software version you have, you can find this option easily in your “Settings.” If you set to automatic backup, you’ll have to make sure there’s enough room on Google, iCloud, or whichever storage service you use to be able to store photos/videos each day.

Read this WITNESS’ case study about Kianga Mwamba to learn more about how cops tried to delete video of her violent, unwarranted arrest, and how automatic backup to the cloud helped get her charges dropped

Are there any apps or other encrypted forms of communication that rapid responders can use to communicate with each other while at a raid, or to share info about raids to other responders?

Check out WITNESS’ introduction to digital security here. Signal is the safest option for messaging in high-risk situations, but it’s important to note that it doesn’t always work very well when there isn’t good data. WhatsApp is another commonly used option, and while it is encrypted, it’s also owned by Facebook. It’s definitely a better option than SMS, but if you’re going to use WhatsApp, you should try not to have it connected to your Facebook (more on why in this post). We don’t recommend Telegram.

Regardless of how you’re messaging, don’t let digital security get in the way of physical security! Sending messages during an active raid could take your attention away from a rapidly developing situation. If you’re already using your phone to record, it can also interrupt you while you’re capturing important details. If the only reason you have your phone out is to send a message, you’re increasing the chance that an officer will be able to seize your phone while it’s unlocked and gain access to your files. You might want to consider communicating after ICE leaves.

Why is it bad to use a pattern to lock your phone?

Like passwords, most people use 4 or 5 nodes on their pattern unlocks, and stick to easy patterns. For example, they start in the top left corner or don’t change directions very often. What’s more, a 4 digit passcode has 10,000 different possible options, while a 4 node pattern only has 1,624. A new study shows that “attackers can crack Pattern Lock reliably within five attempts by using video and computer vision algorithm software.”

SOCIAL MEDIA

You mentioned deleting our FB accounts to protect the identities of undocumented friends, but social media is an important tool for our work. Where do we draw this line?

We understand that digital security can feel overwhelming, especially when social media is integral to your work. Our hope is to help people become aware of risks that social media can potentially pose, so that communities and organizations can decide together what the best course of action is and how to best protect each other. We recommend doing a “Risk Assessment” (preferably as an organization) as a way to identify specific circumstances, what the potential threats facing the organization or individuals are, and then make a diagnosis (and a prescription) on that basis. This initial assessment will help you to think about whether or not it would be helpful or necessary to delete social media accounts and how to make changes. A risk assessment can help you to feel safer online, step by step through a prioritizing approach, instead of feeling overwhelmed and even paranoid. Start by asking the following 5 questions:

  • What do I need to protect?
  • Who do I need to protect it from?
  • How much do they want that information, and how easy is it for them to get it?
  • What happens if they do get it?
  • What am I willing to do to stop that from happening?

Read more about risk assessments and how to get started with digital security in this WITNESS blog post

Should we use stage names/nicknames/pseudonyms to disguise ourselves?

Using a stage name, nickname or pseudonym can be helpful, but won’t be enough on its own to keep people from being able to find you on social media. You can also use an email address for your social media accounts that is not your main email account or that doesn’t have your real name associated with it. Facebook has settings that make it difficult for people to search for you. If you’re concerned with keeping a low profile on social media, also be aware of your privacy settings, and what posts and photos you’re tagged in.

LEGALITIES OF FILMING

Would footage from a camera home security system be considered a secret recording?

As a preliminary answer, one important thing to keep in mind is the one-party/all-party issue noted above. If that footage includes audio, then the one-party/all-party rules in your state’s wiretapping laws will apply. That means that “if there’s a reasonable expectation of privacy” recording audio could be a problem. Video is less restricted than audio, and laws like Stephanie’s Law likely don’t apply to ICE raids. However, this will vary state to state. Use caution!

If ICE enters a home and asks everyone to hand over their phone, are we allowed to refuse and instead start or continue filming them? Can they take your phone away?

ICE does not have the right to automatically take your phone but they might do it anyway.  You can refuse a search or seizure of your phone or your home if ICE does not have a warrant signed by a judge to search or take items. It’s best practice to say out loud: “I don’t consent to a search. I don’t want you to take that.”That being said, it is not uncommon for law enforcement to simply grab phones that are within their reach even if they are violating people’s constitutional rights.  If ICE agents take anyone’s phone without their consent or tries to stop filming, report the raid to a trusted organization. There may be a way to challenge this in court later.  For information on where to report a raid, visit immdefense.org/raids.

Do you recommend people without citizen status should not film?

There’s no easy answer to this question. The bottom line is that you have to assess your own risks and make a decision for yourself. If you’re documented but not a citizen, the risk is lower. If you’re undocumented, it’s dangerous. A few notes on the legal issues: Constitutional rights like the protection against unreasonable search and seizure still apply to people who aren’t U.S. citizens.  Keep in mind that certain types of arrests or convictions may impact your eligibility to apply or reapply for citizenship or lawful immigration status.

Does filming ICE within your own home or home in which you are a visitor count as a public space, or would that be considered a private space where you are not allowed to film?

Your own home or a home you are visiting is a private space, but it is YOUR private space. You are entitled to film in your own home provided you give notice to the other person in states that prohibit filming without notice. But as a safety matter, it may be very risky to do so without actively alerting law enforcement of what you are doing, even if they are there on “consent” rather than a warrant, as they tend to be very fearful for their own safety in spaces they are not familiar with.

Is there a risk of being charged for harboring for individuals who film an ICE raid and posts it on social media to warn their communities?

To our knowledge, federal harboring charges have never been brought in this context. This question seems to arise from the wording of 8 USC 1324(a)(iii), which states charges can be brought against individuals who “conceals, harbors, or shields from detection” an alien in any place, including a building or a means of transportation. Filming ICE and alerting people that ICE is in the community would likely fall within the protections of the First Amendment. But of course there may be an enterprising prosecutor who might want to try bringing harboring charges if such warnings went beyond an “alert” and actively and specifically guided people to hide.

ICE TACTICS

What kind of warrants are required to let ICE in?

In order to enter a home without permission, ICE needs to have a warrant signed by a judge. ICE agents usually only have a “warrant” signed by a supervisor at ICE, which means they can’t come in without permission.  If they have a warrant signed by a judge, they will enter regardless of what you say.  Since it can be hard to tell what type of warrant they have, it is best not to let them into the home but be aware that they might enter if they have a judicial warrant. We recommend not opening your door fully so ICE can’t claim you consented and welcomed them in with an open door.

Do you think that ICE tactics now include avoiding raids and larger operations but rather “picking off” people during early raids at home or following people on their ways to work, etc?

Over the past few decades, ICE has used both individual arrests and broader, sweeping raids to detain and deport immigrants.  Under President Obama, ICE largely raided homes and detained individuals; the administration largely stopped the practice of sweeping raids that were common under President George W. Bush.  We anticipate that the Trump administration will use a combination of tactics.  For more information, see the toolkit created by Immigrant Defense Project and Center for Constitutional rights.

How can they retaliate if the filmer is a US citizen?

Unfortunately, there are myriad ways filmers can experience retaliation for their work. The experiences of the people who have filmed murders of Black men at the hands of the police are disturbing examples. They’ve been subjected to police harassment and intimidation. For example, particularly if you are in a small town, you might be subjected to traffic stops at increased frequency or targeted for arrests at demonstrations.

RESOURCE ROUNDUP

This is a WITNESS project examining the challenges and possibilities of using video to document encounters with Immigrations and Customs Enforcement(ICE) in the U.S for justice. 


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