EFF Guide: Yes, You Can Record ICE and CBP

TL;DR: On July 31, 2026, the EFF published a one-page handout by Sophia Cope and Bill Budington laying out the federal right to record law enforcement. The right applies to local police and to federal officers from Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Nine federal appellate courts have recognized the right. The Supreme Court has not ruled on it directly. The handout also covers the audio recording wrinkle under state wiretap laws, the limits on the right when an officer is off-duty or in a private space, and the warrant requirement for searching a phone under Riley v. California. It comes with printable English and Spanish PDFs and a short list of practical advice for bystanders. The page is the most useful single document on the topic this year and worth bookmarking before the next door knock.

The Right, in One Sentence

EFF's opening claim is the line that matters: "All Americans have a First Amendment right to record law enforcement." The post is explicit that this includes ICE and CBP, not just local police ^[1].

That last clause is the one most readers do not realize is in dispute. Nine federal appellate courts have recognized the right, and the Biden-era Justice Department has said the same in formal filings, but the Supreme Court has not squarely ruled on it ^[1][2]. EFF's longer 2025 explainer "Yes, You Have the Right to Film ICE" runs the list of circuits: the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh have each upheld the right at the appellate level ^[2]. The post is built on top of decades of Supreme Court precedent that protects the gathering of information about government officials, but the justices have not taken a case directly on bystander recording.

That gap is why the handout exists. The right is real, well-developed, and federally recognized, but it is not yet a Supreme Court holding. Anyone who needs to rely on it in the moment is relying on circuit-level authority, which is plenty in any of those nine circuits and untested in the others. If you live in Houston, Miami, or New Orleans, the Fifth Circuit's affirmation is binding. If you live in Atlanta, the Eleventh Circuit's is binding. The map is bracketed.

The Audio Wrinkle and Wiretap Laws

Recording video is settled. Recording audio is where the legal confusion starts, and EFF spent the most space on it.

Twelve states require all-party consent for audio recording. Thirty-eight states, the District of Columbia, and the federal statute use a one-party consent rule. EFF walks through how each applies when a bystander is filming an officer ^[2]. The throughline: officers exercising their official duties in public do not have a reasonable expectation of privacy. The bystander can legally record audio in either kind of state, because the people who conspired to the conversation are speaking to the officer in public, and the officer, by duty, has no privacy interest to waive.

The Seventh Circuit has already held that the Illinois wiretap statute violates the First Amendment as applied to audio recording of on-duty police. EFF's case for the broader rule is that state wiretap laws protect private conversations, and an officer on the beat is not a private party ^[2]. If you are not sure what your state requires, EFF's Surveillance Self-Defense guide at ssd.eff.org walks through the rules by jurisdiction.

Where the Right Stops

EFF is clear about the limits. The right to record is not a right to obstruct. The Seventh Circuit's framing, quoted in both the new handout and the 2025 explainer, is the one to remember: "Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety" ^[2].

The handout also flags a recent case that did not turn out well for the recorder. "A Los Angeles jury in 2026 found two women guilty of felony stalking after they followed an ICE agent to his home and livestreamed the pursuit," EFF writes. The right to record officers applies to officers exercising their official duties in public. It does not protect following an officer home, and livestreaming the trail does not change the analysis. The conviction is the line the new handout draws ^[1].

The right also narrows in private places. If the officer is off-duty, or you are in a private space you do not have a right to be in, the recording is no longer protected ^[1]. Public street, public park, courthouse steps, the line in front of the store: yes. The officer's apartment hallway or the parking lot of a private employer: ask first.

The Phone Rule: It Takes a Warrant

The handout's most-quoted line is the one that protects the recorder after the recording is over. "Law enforcement may not search your cell phone or other device without a warrant based on probable cause from a judge, even if you are under arrest," EFF writes. The citation is to Riley v. California, the 2014 Supreme Court case that put cell phones on a separate footing from physical pockets ^[1].

The practical consequence is that an officer who tries to scroll through your camera roll, your drafts folder, or your Signal chats is asking you to waive a constitutional right. EFF's advice: "You may refuse a request from an officer to review or delete what you recorded. You also may refuse to unlock your phone or provide your passcode" ^[1]. None of that requires you to be hostile. The handout's first piece of advice is "Stay calm and courteous." The fifth is "consider the sensitive nature of recording in the context of an arrest. For example, the person being arrested or their loved ones may be concerned about exposing their immigration status, so think about obtaining consent or blurring out faces in any version you publish" ^[1].

For the device itself, EFF's recommendation is a strong passphrase plus the disablement of biometrics. Face and fingerprint unlock look convenient, but in a custody setting they can be compelled in ways a passphrase cannot. The Surveillance Self-Defense guide at ssd.eff.org walks through the steps for iOS and Android ^[1]. This is the technical half of the right: recording is the constitutional half, and protecting the recording once it is on the device is the operational half.

The Adjacent Fights Worth Watching

The new guide links to two related EFF pieces that are still live policy problems.

The first is the FAA's drone flight restriction from earlier this year. EFF published "The FAA's 'Temporary' Flight Restriction for Drones is a Blatant Attempt to Criminalize Filming ICE" in April 2026, calling the original TFR (FDC 6/4375) an attempt to criminalize aerial filming of federal enforcement. The FAA rescinded that TFR on April 15, 2026, and replaced it with an advisory, FDC 6/2824, which tells drone operators to avoid flying near Department of War and Department of Energy facilities without a permit. The advisory is narrower than the original TFR, but the airspace around any federal operation is still contested ^[4].

The second is California's S.B. 627, the "No Face, No Case" bill EFF has been supporting since July 2025. The bill would prohibit law enforcement from covering their faces during public encounters, including officers acting on behalf of federal agencies. The recordings are only useful if the recorder can identify the officer in them. Masked federal officers, and the locally deputized officers who copy them, are part of why the recording landscape is harder than it was a year ago ^[3].

What to Watch

More state right-to-record laws passed. EFF's right-record page now lists five pages of posts. State legislatures are introducing their own versions, and the next wave of bills will be the ones that explicitly cover ICE and CBP, not just state and local officers. The federal appellate case law is already there. The state statutes are catching up.

California S.B. 627 movement. The bill is still working through the legislature. The current question is whether the final version covers federal officers acting in California, which is the federalism fight the EFF letter addressed.

FAA advisory enforcement. The rescission of TFR FDC 6/4375 was a win. The advisory FDC 6/2824 is not a TFR and is not enforceable as one, but it is the kind of document that gets cited in a drone-pilot enforcement action anyway. Watch the next airspace incident near a federal facility.

The next Riley case. The phone-warrant rule is the one piece of the right-to-record landscape that has Supreme Court backing. The next test is whether courts apply it to a recorder who is also a defendant, which is the question raised by the Stop Cop City case we covered last week.