Immigration and Customs Enforcement (ICE) have been deployed in the Boston area. ICE (or someone pretending to be ICE) stopped a jogger in West Roxbury on the morning of October 7. The news of this spread through social media. More than one person got the event on video. (Including the person who was being confronted for detention).
If you are confronted by ICE or if you see someone being confronted by ICE follow these instructions:
Keep in mind that you have rights.
You have the right to video the interaction. If ICE staff tell you to stop videoing, tell them you have the right to do so. Do not interfere with the arrest. Follow any other instructions they give you, such as “step back.”
You have the right to privacy on your phone.
- ICE cannot force you to delete the video.
- ICE cannot confiscate your phone.
- ICE cannot access you phone if you use a passcode. (Note: fingerprint or face recognition, or pattern ID are not protected).
Make a plan.
As with any other active bystander situation, assess the situation before beginning to video. Consider your safety. If you are not safe, consider taking notes or making the video from a hidden location.
Video benefits the person being arrested in two ways:
- Support and solidarity. If possible, video from an angle where the possible detainee knows you are there. Your presence can help them stay calm. Your presence may inhibit the ICE personnel from using force, since their actions are being recorded.
- Documentation. Having a video may be beneficial if the arrest is done illegally or if there is abuse by the ICE staff.
What to record.
- Your compliance: If you are asked to do something by the ICE staff, video that you are doing it. (For example: if they say “step back,” video your feet moving back. If they say “get off the sidewalk,” video the curb, showing you are in the street.
- What the ICE staff are doing: Video the ICE staff, not the detainee or their family. As much as possible, shield the detainee from being identified, since anything on the video can lead to retaliation by ICE or be used as evidence against them. Don’t mention their names or the names of their family, or anything about them other than that they are complying with directions.
- Details of the arrest: If you can capture a copy of the arrest warrant, ICE personnel ID badges, how many agents are there, street signs or landmarks to identify the location. Show mounted camera locations, if you see any. You can also speak into the video things like, “It is 9 AM and I am at the corner of Sycamore and Elm.”
- Keep the video going, even if there is nothing happening. A video with gaps in it is less credible.
Your right to video, what the courts say.
On October 7, 2020, I posted about the ICE confrontation on social media. I recommended some of the information that is above. A conversation followed. A lawyer friend of mine led me to a link about our right to video police and public officials when they are performing their duties in public spaces.
Technology changes what we can do; the law must follow. As cell phones with camera and video became commonplace, court cases began about what can be videoed and what cannot. It is the balance between privacy and transparency.
In real estate (my day job), the controversy has been over sound. Owners can keep video cameras on during showings of their property for sale, but they cannot legally record sound without the permission of those being recorded.
American law provides us with that right of privacy; no one can record our speech without our consent. However, public officials and police do not have that right to privacy, in public places, when they are acting in their public roles.
As of 2018, Chief Judge Saris of the U.S. District Court decided in favor or community member’s right to record public officials in public space, without notifying them that the recording is being done.
“Judge Saris started from their finding that citizens have a First Amendment right to record public officials engaged in their official duties in public spaces. She then applied the First Amendment requirements for a statute that imposes restrictions on protected speech: whether the statute is “narrowly tailored” to serve a “significant government interest.” The police and district attorney identified the government interest as protecting the privacy of both private citizens and public officials, with notice allowing officials to “respond appropriately” to the fact of being recorded.”
“…Judge Saris noted some open issues. Her decision is limited to public places, which she noted does not necessarily include private spaces open to the public (such as a restaurant). So, it may remain a crime to secretly record police in a restaurant or mall, even if they are performing their public duties. Also, the scope of “public official” is not determined, although police clearly fall within that scope (but perhaps, although the case does not say, librarians do not). Nonetheless, this ruling clearly enables private citizens and public interest groups to record, without notice or permission, the activities of police in patrolling public spaces and interacting with the public, and the activities of political figures and prominent appointed public officials making speeches or carrying out other public duties in public places. Both groups will going forward have to assume their public acts in public places are going to be recorded and disseminated.” [source]