The encrypted messaging app Signal has become a critical tool for organizers following the actions of immigration agents in Minneapolis. Now that activity is the target of a probe launched personally by FBI Director Kash Patel — one that has Constitutional law experts questioning its merits.
Criticism of the Signal investigation was swift from figures on both the right and left. The libertarian Cato Institute called the investigation an “epic constitutional and legal fail by Patel.”
Whether or not courts would accept any action bought by Patel against Signal or its users, the circumstances are at least highly unusual: Patel announced the probe via podcast.
Patel discussed the investigation during Monday’s episode of The Benny Show, a podcast hosted by the right-wing commentator Benny Johnson. Patel alleged, without evidence, that participants in the chat might have incited violence, threatened law enforcement, or broke the law.
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Patel said that alleged screenshots from a Signal chat amongst Minneapolis anti-ICE organizers posted to X by the rightwing, self-described independent journalist Cam Higby led to the investigation.
Higby has said he hopes the government conducts a “witch hunt” of the Signal chat participants, who were allegedly sharing information about license plates belonging to cars driven by federal immigration officers.
“We immediately opened up that investigation because that sort of Signal chat being coordinated with individuals, not just locally in Minnesota, but maybe even around the country,” Patel said. “If that leads to a break in the federal statute or a violation of some law, then we are going to arrest people.”
Signal did not respond to Mashable’s request for comment on the investigation. The X accounts belonging to the app and its president, Meredith Whittaker, have remained silent on the investigation.
Here’s what you need to know about whether the investigation has merit and how it unfolded:
Does the FBI Signal chat investigation violate Constitutional rights?
Patel insisted that the investigation wouldn’t infringe on the public’s First Amendment right to express political speech and protest but rather focus on illegal activity.
Yet legal and Constitutional scholars have questioned whether the Signal chat participants were doing anything illegal.
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In an interview with the Guardian, First Amendment expert Kevin Goldberg said that his review of Higby’s social media posts revealed nothing clearly illegal.
“I got the sense the [Signal chat] group has been organized for purposes that are fully protected by the First Amendment: To observe, to speak, and to alert others of possible dangers,” said Goldberg, vice president of the Freedom Forum, a nonpartisan foundation that works on First Amendment issues. “I didn’t see anything that impedes or obstructs justice. The claimed ‘doxing’ of law enforcement is not necessary illegal.”
Patrick G. Eddington, senior fellow at the Cato Institute, had a cutting response for the Trump administration and Patel.
“I suppose it was just a matter of time before a Trump administration official would suggest that the use of public key encryption — protected by the First Amendment — to monitor federal agent misconduct was itself allegedly a crime,” he wrote in an article on the Cato Institute’s website. “This is another epic constitutional and legal fail by Patel.”
Eddington added that a decades-old federal court case affirmed citizens’ First Amendment right to coordinate peaceful protest activity, and even monitor an agency like ICE for “acts of brutality,” using encrypted speech.
On Thursday, Higby alleged on X that he had more material to leak about the Signal chat he infiltrated.
How did the FBI learn about the Signal chat?
When Patel spoke on Johnson’s show, he followed an interview with Higby, who alleged on X that he attempted and succeeded in infiltrating the anti-ICE organizers’ group Signal chat.
Higby admitted to Johnson that though he isn’t a “legal expert,” he viewed the Signal exchanges as a “mass conspiracy” to violate federal law because the participants were, in his opinion, “engaging in collusion against federal law enforcement.”
When Johnson asked Higby how he wanted the FBI to respond, Higby made his goal clear. “I want to see a witch hunt January 6th style,” Higby said, referencing the federal prosecution of insurrectionists who stormed the U.S. Capitol in 2021.
Patel was literally the next guest on Johnson’s show. He said Higby’s X post on his alleged infiltration of the Signal chat triggered his decision.
“As soon as Higby put that [X social media] post out, I opened an investigation on it,” Patel said. He argued that the practice aligns with the FBI’s policy of following publicly-provided tips, leads, and information.
Speaking with Fox News’ Sean Hannity, Patel indicated that the FBI would issue subpoenas, collect data, call grand juries, and “find out who broke the law.”
What to know about using Signal
Though Signal uses end-to-end encryption, that doesn’t mean user messages will be protected from the government.
Signal’s website acknowledges it will disclose transcripts of chats when legally compelled by the government or law enforcement agencies.
ICE reportedly also has a contract with the digital forensics company Cellebrite to help officials unlock phones to retrieve all of their data, including apps, location history, and Signal messages, according to the Electronic Frontier Foundation.
