Kash Patel of the FBI says it is investigating the use of Signal by anti-ICE activists

The encrypted messaging app Signal has become an important tool for regulators following the actions of immigration agents in Minneapolis. That work is now the target of an investigation launched by FBI Director Kash Patel — with constitutional law experts questioning its validity.

Criticism of the Signal investigation was swift from figures on the right and left. The libertarian Cato Institute called the investigation “a major constitutional failure and violation of Patel.”

Whether or not the courts would accept any action brought by Patel against Signal or its users, the circumstances are at least very unusual: Patel announced the investigation via podcast.

Patel discussed the investigation on Monday’s episode of The Benny Showpodcast hosted by right-wing commentator Benny Johnson. Patel alleged, without evidence, that the participants in the conversation may have incited violence, threatened law enforcement, or broken the law.

Patel said alleged screenshots from a whistle-blower conversation between anti-ICE activists in Minneapolis that were posted to X by rightwing, self-described freelance journalist Cam Higby led to the investigation.

Higby said he hopes the government will conduct a “witch hunt” for participants in the Signal interview, which allegedly shared information about the license plates of cars driven by immigration officials.

“We immediately opened that investigation because that Signal conversation is being shared with people, not just in the Minnesota area, but maybe across the country,” Patel said. “If that leads to a violation of federal law or a violation of a specific law, we will arrest people.”

Signal did not respond to Mashable’s request for comment on the investigation. The app’s X accounts and its president, Meredith Whittaker, have not commented on the investigation.

Here’s what you need to know about whether and how an investigation is warranted:

Does the FBI Signal conversation investigation violate Constitutional rights?

Patel emphasized that the investigation will not violate the First Amendment right of the public to express political speech and protest but rather focus on illegal activities.

However, legal and constitutional scholars have doubted that the participants of the Signal discussion were doing anything illegal.

In an interview with CaretakerFirst Amendment expert Kevin Goldberg said his review of Higby’s social media posts did not reveal anything clearly illegal.

“I got the idea [Signal chat] the group is organized for purposes fully protected by the First Amendment: Watching, speaking, and warning others of potential dangers,” said Goldberg, vice president of the Freedom Forum, a nonpartisan foundation that works on First Amendment issues. “I didn’t see anything obstructing or obstructing justice. The claim of being ‘dated’ by law enforcement is illegal.”

Patrick G. Eddington, senior fellow at the Cato Institute, had a scathing response to the Trump administration and Patel.

“I think it was only a matter of time before a Trump administration official suggested that the use of public key encryption — protected by the First Amendment — to monitor alleged misconduct by a federal agent is a crime,” he wrote in an article on the Cato Institute’s website. “This is another way Patel failed constitutionally and legally.”

Eddington added that the decades-old federal court case affirms citizens’ First Amendment right to coordinate peaceful protests, and even monitors agencies like ICE for “brutal actions,” using encrypted speech.

On Thursday, Higby alleged to X that he had more to leak about the Signal interview he filed.

How did the FBI learn about the Signal conversation?

While Patel was talking about Johnson’s show, he followed up with an interview with Higby, who told X that he tried and succeeded in getting into Signal’s discussion of anti-ICE organizers.

Higby admitted to Johnson that while he was not a “legal expert,” he viewed the Signal transaction as “more of a conspiracy” to violate federal law because the participants, in his opinion, were “collaborating with federal law enforcement.”

When Johnson asked Higby how he wanted the FBI to respond, Higby made his goal clear. “I want to see a January 6th-style witch hunt,” Higby said, referring to the federal government’s prosecution of the rebels who stormed the US Capitol in 2021.

Patel was the next guest on Johnson’s show. He said Higby’s X text about his alleged involvement in the Signal conversation was what made him decide.

“As soon as Higby put it [X social media] posting, I opened an investigation into it,” Patel said. He argues that the practice is consistent with the FBI’s policy of following up on tips, leads and publicly provided information.

Speaking to Fox News’ Sean Hannity, Patel said the FBI will issue subpoenas, gather information, call grand juries, and “find out who broke the law.”

What you need to know about using Signal

Although Signal uses end-to-end encryption, that doesn’t mean users’ messages will be protected from the government.

The Signal website agrees to disclose transcripts of conversations if legally compelled by government or law enforcement agencies.

ICE reportedly contracted with digital forensics firm Cellebrite to help officials unlock phones to retrieve all their data, including apps, location history, and SMS messages, according to the Electronic Frontier Foundation.