by Jo Ellen Nott

Across the United States, Immigration and Customs Enforcement (“ICE”) activity is intensifying, including highly visible raids. Amid this escalation, it is important to remember that the public has a First Amendment right to film ICE agents while they perform their official duties in public spaces.

This right, upheld by numerous federal appellate courts, is a critical tool for ensuring transparency and accountability within a law enforcement system that often operates under a veil of secrecy. As ICE expands its operations, including high-profile raids, individuals—particularly those in immigrant communities and activists—must understand and exercise their right to document these activities.

The Legal Basis for Recording ICE

Federal courts and the Department of Justice have consistently affirmed the right to record law enforcement officers, including ICE agents, in public spaces. While the U.S. Supreme Court has not yet issued a definitive ruling on this issue, U.S. Courts of Appeals in multiple circuits—including the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh—have upheld this right. These rulings establish that individuals can legally document law enforcement activities, provided they do not interfere with official duties.

This right extends to private property where the person filming has legal access, such as their home or business. However, the right to film may be limited if an officer is off-duty or in a private space where the person recording has no legal right to be.

Guidelines for Filming ICE Agents

When exercising the right to film ICE agents, individuals should take certain precautions to ensure they are acting lawfully. The Electronic Frontier Foundation (“EFF”) offers the following guidelines:

Stay calm and courteous to avoid escalating tensions.

Do not interfere with law enforcement activities; maintain a safe distance.

Know your rights: Law enforcement cannot order you to stop recording simply because they do not want to be filmed, though they may direct you to move for public safety reasons.

Refuse warrantless searches: You have the right to deny searches of your recording device without a warrant.

Be aware of potential retaliation: Law enforcement officers have been known to illegally seize devices, delete recordings, or even arrest individuals who film them.

The EFF also provides specific considerations for audio recordings. While video and photo recordings are clearly protected, audio recordings can be subject to additional legal restrictions. Some officers have attempted to use wiretap laws to challenge audio recordings made without their consent, but courts have generally ruled against such challenges.

Wiretap Laws and State Variations

Wiretap laws in the U.S. vary by state, creating a patchwork of regulations that govern when and how conversations can be recorded. Notably, the federal Wiretap Act, 18 U.S.C. §§ 2510-2523, establishes a “default” one-party consent rule, § 2511(2)(d), meaning only one participant needs to agree to the recording, but states can impose stricter requirements, such as all-party consent, where everyone involved must consent. Some states, like Michigan and Vermont, aren’t definitively classified as one-party or all-party due to ambiguous statutes or conflicting court interpretations, adding complexity to the landscape. Because laws evolve and local nuances matter, individuals must consult their specific state’s regulations for a definitive answer on recording legality.

Wiretap laws vary by state:

One-party consent states (approximately 39 states and the District of Columbia) allow individuals to record conversations they are part of without informing the other party.

All-party consent states (typically 11, including California, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington, with some nuances in Connecticut, Michigan, and Nevada) require consent from all participants unless the conversation occurs in a public space where there is no reasonable expectation of privacy.

Because law enforcement officers performing their duties in public generally lack a reasonable expectation of privacy, courts have upheld the right to record them. However, ICE arrests present unique concerns, as publicizing footage may unintentionally expose the immigration status of individuals in the video. Filmmakers and citizen journalists should consider obtaining consent or blurring faces before sharing footage publicly.

Secret Recordings and Jurisdictional Differences

The legality of secretly recording law enforcement depends on federal and state laws, as well as judicial rulings, which vary across jurisdictions. In Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), the First Circuit has established a First Amendment right to openly record police officers in public spaces (i.e., Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), though it’s unclear if this extends to secret recordings. In contrast, the Ninth Circuit, in a January 2025 ruling, upheld Oregon’s privacy law (Or. Rev. Stat. § 165.540) requiring all parties’ consent for recording conversations, including in public, except in specific cases like police performing official duties. Project Veritas v. Schmidt, 125 F.4th 929 (9th Cir. 2025) (en banc).

Outside these jurisdictions, the rules differ: federal law and many states allow secret recordings if one party consents, while others require all-party consent or visibility of the recording device. For ICE officers or other law enforcement, individuals should check their state laws and applicable federal circuit precedents, as no uniform national standard definitively governs secret recordings, and legal challenges may arise depending on the context. As a precaution, individuals should ensure their recording device is visible to ICE officers or any law enforcement officers to avoid adverse legal consequences.

Limitations on Filming ICE Agents

While courts have strongly supported the right to record, they also emphasize that individuals cannot obstruct law enforcement operations. For example, the Seventh Circuit ruled that while police cannot stop someone from filming, they can issue dispersal orders for public safety reasons. ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012). To protect your right to record, film from a safe distance and avoid interfering with officers’ work.

The Importance of Accountability

ICE’s increasing visibility and highly publicized raids have raised concerns about fear and intimidation tactics within immigrant communities. Documenting ICE’s presence and conduct is essential for accountability, particularly when there are concerns about due process violations or racial profiling.

However, exercising this right carries risks. Law enforcement may not always acknowledge an individual’s right to record, and officers may attempt to intimidate or retaliate against those who document their actions. To protect themselves, individuals should familiarize themselves with their rights, secure their devices, and use privacy-preserving measures if necessary. 

Sources: eff.org, cited court opinions

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