ICEBlock: Criminal evasion tool or constitutionally protected speech? ...Middle East

Texas resident and software developer Joshua Aaron has certainly made a name for himself with his extremely newsworthy app ICEBlock.

The app allows users to report Immigration and Customs Enforcement (ICE) activity within a certain radius and has allegedly been downloaded at least 100,000 times since going live earlier this year.

The Trump administration has not only tried to keep the app a secret, it has threatened news outlets who simply report on its existence. After ICEBlock was featured in a story on CNN, Homeland Security Secretary Kristi Noem said, “We’re working with the Department of Justice to see if we can prosecute them [CNN] for that.”

The same day, Aaron told another news outlet, “I knew what I was signing up for when I created the app. And I spoke with multiple constitutional and criminal attorneys before releasing it.”

The discussions Aaron had with the unidentified lawyers with whom he spoke remain known only to the parties involved. But what I do know is that there’s a world of difference between speaking to a lawyer about a hypothetical case versus having to actually be a defendant in one.

Aaron is living in a federal circuit court region that has previously ruled that “…First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”

Attorney General Pam Bondi could certainly make an argument that the 5th Circuit’s “time, place, and manner” restrictions should absolutely apply to ICEBlock and any of its users. Bondi could assert that ICEBlock provides illegal migrants and those employing or otherwise aiding them with advance warning of ICE operations in their area, thus impeding or even thwarting enforcement operations.

It doesn’t seem implausible that under Bondi’s instruction, an FBI agent in Texas could file a surveillance request against Aaron employing language along these lines:

“Based on public statements and app functionality, there is probable cause to believe that Joshua Aaron has committed and is continuing to commit violations of 18 U.S.C. § 1503 (Obstruction of Justice) and 8 U.S.C. § 1324 (Harboring Aliens) by creating and maintaining an application specifically designed to obstruct federal immigration enforcement operations.”

And because Aaron designed his app to delete ICEBlock reports at four-hour intervals, that same FBI agent could include affidavit language similar to this:

“The automatic deletion feature creates a continuous four-hour window of evidence destruction. Critical communications about ongoing criminal conspiracy are systematically destroyed every four hours, making traditional investigative methods structurally inadequate.”

Bondi might well be able to convince a district court judge in the often law enforcement-friendly 5th Circuit, where Aaron resides, to authorize wiretaps and other forms of surveillance based on the facts outlined above.

It remains unknown whether the Trump Justice Department could get a jury to convict Aaron with obstruction of justice, aiding and abetting criminal conduct, or perhaps other statutes. But with a one-two legal punch — getting surveillance authorized, then filing charges a few days later — the administration could turn Aaron’s world upside down for months, even years.

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Joshua Aaron’s creativity and public minded spirit is admirable. He seems to mean well, attempting to give people living under threat of ICE raids — illegal migrants, legal permanent residents, and U.S. citizens alike — a heads up that armed and masked men are coming their way. The fact that Aaron felt the need to create the app in the first place is just another reminder of how much America has effectively morphed into a police state in only months.

For his sake, I hope Aaron did more than just talk to some lawyers — I hope he’s retained one, because based on this regime’s track record, he’s likely to need one.

Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.

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