An observer films ICE agents this month in Minneapolis. A new lawsuit alleges federal agents are unconstitutionally retaliating against people who are lawfully observing and recording federal immigration enforcement operations by gathering their personal information and labeling them as domestic terrorists
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Stephen Maturen/Getty Images
Last month, Colleen Fagan was observing an immigration enforcement operation at an apartment complex in Portland, Maine, when federal agents scanned her face with a smartphone and appeared to record her car license plate number.
In a social media video she recorded, Fagan can be heard asking why the agent was taking her information. What the agent said next made the video go viral.
“Cause we have a nice little database,” the masked agent said. “And now you’re considered a domestic terrorist.”
Fagan, who is a social worker, has now joined a federal class action lawsuit that argues the Department of Homeland Security and a number of its sub-agencies are violating the First Amendment and are taking actions “designed to chill, suppress, and control speech that they do not like.”
The suit, filed by the legal nonprofit Protect Democracy and two law firms, alleges federal agents are unconstitutionally retaliating against people who are lawfully observing and recording federal immigration enforcement operations by gathering their personal information and labeling them domestic terrorists.
Though Fagan’s video went viral, her full name had not been widely publicized until this lawsuit.
“Plaintiffs must either abandon their constitutional rights or accept being cataloged and branded as ‘domestic terrorists,'” reads the lawsuit, which was filed in federal district court in Maine on Monday. “That is a choice the Constitution does not require Plaintiffs, or anyone, to make.”
DHS officials have denied the existence of a database of alleged domestic terrorists since Fagan’s video was widely shared.
“There is NO database of ‘domestic terrorists’ run by DHS,” the agency’s spokesperson, Tricia McLaughlin (who has recently departed) told CNN last month about the video. “We do of course monitor and investigate and refer all threats, assaults and obstruction of our officers to the appropriate law enforcement. Obstructing and assaulting law enforcement is a felony and a federal crime.”
After federal agents fatally shot two U.S. citizens in Minnesota last month, DHS officials labeled both of them domestic terrorists in the immediate aftermath.
Federal agents have access to facial recognition tools that can be used to identify people in the field, as well as the mobile app Mobile Companion, which allows agents to use a smartphone to scan license plates.
These kinds of surveillance tools have allowed federal agents to intimidate observers and protesters by revealing they know their names and addresses, the lawsuit says. Several Minnesota observers who have followed federal agents in their cars have described the experience of agents leading them to their own homes to show they know where they live. The lawsuit names other Maine observers who have had the same experience.
It is legal for observers to film and follow federal agents at a safe distance, Scarlet Kim, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, told NPR earlier this month. But dozens of people in Minnesota said in declarations collected by the ACLU that they were observing federal agents but were told they were impeding, interfering or acting illegally. Homeland Security Secretary Kristi Noem said at a press conference in July that violence against DHS agents “is anything that threatens them and their safety,” and went on to say that included “doxing them” and “videotaping them where they’re at when they’re out on operations.”
DHS has crafted a wide definition of doxing. McLaughlin told The American Prospect in September that “videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents.”
A memo issued by Attorney General Pam Bondi in December lists “doxing” law enforcement as domestic terrorism.
Elinor Hilton, another resident of Portland, Maine, is also listed as a plaintiff in the new lawsuit. Federal agents captured her face and license plate with their phones on Jan. 21, after she began recording them conducting an immigration enforcement operation at a Home Depot, the lawsuit says.
She says one told her, “I hope you know that if you keep coming to things like this, you are going to be on a domestic terrorist watchlist. Then we’re going to come to your house later tonight,” according to the lawsuit.
Hilton did not stay at her home that night for fear the agent would make good on the threat, the lawsuit says. She has reduced how often she observes federal agents and no longer uses her own car when she observes. She now parks her car several blocks away from her home and those of family members “out of concern that federal agents might recognize her car and trace it to her home.” She says on a recent trip she left her personal phone at home out of concern that if she was placed on a government list, federal agents might detain her and search her phone.
Fagan is concerned about being placed on a “no-fly” or similar list, the lawsuit says, and worries her current or future employment could be affected by any labels DHS gives her.
Less than a week before Hilton’s interaction with federal agents, Tom Homan, President Trump’s immigration adviser, told Fox News host Laura Ingraham that he wanted to create a “database” of people who impede ICE.
“These people who want to say follow ICE and film ICE, you know what, you can protest, they have that right.” Then he added that for those who cross a legal line, “We’re going to create a database where those people that are arrested for interference, impeding, and assault, we’re going to make them famous,” Homan said. “We’re going to put their face on TV. We’re going to let their employers, in their neighborhoods, in their schools, know who these people are.”
But in other public appearances, federal officials have denied a database of protesters exists.
At a congressional hearing earlier this month, U.S. Rep. Lou Correa (D-Calif.) asked Todd Lyons, acting director for U.S. Immigration and Customs Enforcement, to respond to what the federal agent in Maine said about “a little database” in the video Fagan recorded.
“I can’t speak for that individual, sir,” Lyons said. “But I can assure you that there is no database that’s tracking United States citizens.”
The lawsuit says, “If Defendants’ denials are true—and the actions captured on video simply involved federal agents pretending to add observers to a database—then they are deliberately lying about domestic terrorist watchlists or databases to unlawfully intimidate observers.”
The lawsuit is asking a federal judge to stop DHS from collecting records on people and from “threatening, harassing, and otherwise retaliating against” them for exercising their protected First Amendment rights, and to expunge records that have already been collected.
