The Big Unanswered Question about the Tracking of ICE Observers

The first night after agents told her they were coming to her house, Elinor Hilton didn’t go home. The next night she returned—she couldn’t stay away forever—but she didn’t sleep.

“I was having scary dreams,” she told me weeks later. And things weren’t much better in the morning. “I wasn’t parking my car where I was going. I was aware of cars idling outside my house. I was freaked out.”

If you watch the video Hilton took in a Home Depot parking lot on Jan. 21, none of this will surprise you. That morning, the Department of Homeland Security had announced “Catch of the Day,” a surge of federal agents across Maine. Elinor, a 23-year-old born and raised in Portland, had decided to observe them.

The first masked agent she encountered was professional, acknowledging her right to film. The second took a different approach. “Do you have, like, five friends on Facebook? Nobody wants to see you,” he said, striding towards her with his hand on a can of pepper spray. “Just turn around.”

“I’m just recording,” she replied, her voice tight.

Renee Good had been shot and killed by an ICE agent two weeks earlier in Minneapolis. Accounts of agents assaulting nonviolent observers were all over the internet. Hilton was frightened—but she thought she was prepared, that she knew the risks she was taking.

What happened next took her by surprise. A third masked agent—this one wearing a vest reading “HSI” (short for “Homeland Security Investigations)—came toward her, planting himself between Elinor and the agents she was filming. He wasn’t holding a weapon. He was holding a phone. He put the camera directly in Hilton’s face.

“Just so you know, for a warning, we’re putting you into a watch list,” said a fourth agent not long after, as an ICE officer confirmed they had captured each observer’s picture. What he said next is difficult to make out on Hilton’s video. But you can hear a few words: “we’re going to show up,” followed, after a second of garbled sound, by “at your house later.”

“Don’t be scared now,” taunted the first agent, the one still carrying the pepper spray. “Don’t be scared now.” 

I spoke to Hilton about six weeks later, the day after she and Colleen Fagan, an observer at a different Portland-area location, told she was being put in “a nice little database,” appeared in court as plaintiffs in a class-action lawsuit, Hilton v. Noem et al. In pre-trial filings, lawyers from the nonprofit group Protect Democracy and the law firms Dunn Isaacson Rhee and Drummond Woodsum argued that because observing law enforcement is protected by the First Amendment, Hilton’s constitutional rights had been violated up to four times: when agents collected her data, when they retained that data, when they threatened to put her onto a watchlist or database, and, finally, if and when they made good on their threats. 

In one sense, the relief Hilton seeks is straightforward. She wants a judge to bar DHS from collecting and maintaining data on Americans for engaging in First Amendment activity. But in another sense, Hilton’s lawsuit is attempting to get to the bottom of a question that, in America, was never supposed to be this difficult to answer: How is the government treating ordinary citizens with whom it disagrees? 

More than two months after her encounter with ICE, Hilton says she still isn’t confident about whether, or how, her own government is monitoring her.  

“I really need to know—who has my data and what are they using it for?” she tells me. “That changes my life.”

From Henry David Thoreau to Rosa Parks to Daniel Ellsberg, America has a long tradition of activists breaking the law knowing that, as a result, their government will treat them as criminals. But Hilton—and the fellow nonviolent protesters she hopes to represent as part of her class action —say they weren’t engaging in civil disobedience. Just the opposite. They were careful to obey the law. They exercised what even government lawyers acknowledge were their Constitutional rights. And now, while they were not physically injured, they’re kept up at night by unanswered questions: Were the threats made against them posturing by rogue agents and a bombastic border czar, or a description of policy set by DHS? Is the federal government monitoring them the way it might if they were suspected members of ISIS or Al Qaeda? If they travel abroad, will they be able to make it back into the country without being detained? Even if, at the moment, government agencies aren’t engaging in political retribution against them, can they feel confident that won’t be the case in the future? 

The United States government’s official answer to Hilton’s question is, essentially, that no one really knows. At a March 16 hearing in Portland, Maine, Stephen Tagert, a Justice Department lawyer representing Noem and DHS, stated under oath that the agents who threatened Hilton were reprimanded, and that government investigators didn’t find Hilton’s information when they searched databases to which lower-level agents had access. He also said it is DHS policy “to not collect, maintain in DHS systems, or use information protected by the First Amendment, except under discrete circumstances.”

At first glance, this might sound reassuring. But in fact, the Department of Justice’s testimony provided little clarity about how Hilton’s data is being used. 

What, for example, are the “discrete circumstances” under which DHS is using First Amendment information, and how discrete are they? Which databases did the government choose to search, and how thoroughly did it search them? Even if Hilton’s name is not on an ICE database, did agents run her information through other databases, from Social Security to the DMV? Given that DOJ recently was forced to admit ICE had misled its own lawyers about its policies in New York City, did the government’s lawyers take any steps to assure their client was being honest in Maine? And finally, what about all the other observers and protesters whose data ICE may have captured, but who don’t happen to be named plaintiffs in a lawsuit? 

Asked for comment, a DHS spokesperson said, “There is NO database of ‘domestic terrorists’ run by DHS. 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.” But while that might sound like an emphatic denial, observers might still have reason to wonder. What about databases run outside DHS, for example by the FBI? Since DHS has repeatedly claimed, with no legal basis, that videotaping agents is a form of illegal harassment, does it follow that some observers like Elinor are in a database, just not under the “domestic terrorist” label?

At Hilton and Fagan’s hearing, Judge John Woodcock, the George W. Bush appointee presiding over the case, seemed at times frustrated by a lack of basic information. At one point, he asked the government’s lawyer to clarify: Was he saying the Trump Administration had no database of anti-ICE protesters or observers?

“I can’t speak to that, your honor,” Tagert said, “not because I know of anything, but because I don’t know the answer.”

“If the biometric information that was collected is not on the database, or not on a database, where is it?” asked Judge Woodcock at another point.

 “I don’t know if there could be somewhere possibly where biometric data exists,” replied Tagert, adding that, “It may be on a phone somewhere. I don’t have the answer to that.”

In other words, after having her first day in court, all that Elinor Hilton knows for certain is that government agents collected her data and may or may not still retain it. If you take the Trump Administration at its word, there are at least some databases in which some of her information is not currently stored—if few guarantees that won’t happen in the future, depending on “circumstances.” As one might imagine, she did not find the hearing comforting. “I want confirmation that my data has been removed,” she told me. “Not just that the government doesn’t know where it is.”

Kirsti Noem, the defendant in Hilton’s lawsuit, is now a former cabinet member. Her replacement, Markwayne Mullin, promised a kinder, gentler Department of Homeland Security in his confirmation hearings. But it’s difficult to evaluate how different Mullin’s leadership will be when, as Hilton’s case makes clear, there are still enormous amounts Americans don’t know about what DHS was doing while his predecessor led it—and what the agency may still be doing today.

While law enforcement agencies have never been known for an excess of transparency, it is not supposed to be this difficult to figure out what our public servants are up to, or how they’re spending taxpayer dollars. Fourteen months ago, it wasn’t this difficult. The Trump Administration has taken unusual—and sometimes legally questionable—measures to prevent the public from learning the details of its actions and policies. Earlier this month, Wired reported that Customs and Border Protection officials were told to label final policy memos as “drafts,” so they wouldn’t be subject to the Freedom of Information Act (FOIA). (When officials objected to the change, they were fired.) According to a whistleblower complaint, when ICE used a policy memo to justify searching homes without a warrant, it didn’t share the memo’s text widely within the agency, leaving officials and agents to rely on vague and unwritten “guidance” instead. In other cases, thanks to cuts in the federal workforce, there simply aren’t enough staff to quickly process FOIA requests.

And in court, lawyers who bring suits against the government have noticed a pattern that was on display during the hearing in Hilton’s case: DoJ lawyers arriving without answers to questions they’re almost certain to be asked.

“Prior to this administration,” says Ryan Goodman, an NYU Law Professor and co-founder of Just Security, “it would be atypical for Justice Department attorneys to not be fully briefed on the government’s programs and actions.” Whether or not this situation is the result of a purposeful strategy, this lack of information may be, nevertheless, strategic. Explicitly targeting political opponents for Constitutionally protected speech would likely be found illegal; keeping them in a constant, frightening state of uncertainty is easier to get away with. Also, if judges don’t know what the government is doing, they can’t order them to stop doing it, or evaluate whether the orders they do issue are being complied with. 

So far, the Justice Department’s claims of ignorance have helped DHS in its legal fight with Hilton. Her lawyers had asked Judge Woodcock for a temporary restraining order, prohibiting the government from using the data it had collected on her. In denying that request, Woodcock listed several reasons for his decision, among them that, “given the dearth of evidence at this stage, the Court is pointing out that, at this time, it cannot evaluate either parties’ likelihood of success on the merits.”

But the absence of evidence may not last forever. In the next few weeks, Hilton’s case will proceed to discovery. Her lawyers will have the chance to ask the government to reveal more about what really happened in a Home Depot parking lot that January morning, what policies actually existed during Kristi Noem’s tenure at DHS, and whether the government continues to keep such policies in place today. More broadly, Hilton’s lawsuit could provide a blueprint for Americans using the courts to seek not just justice, but answers. 

“This case is about me and it’s about my data, but it’s a lot bigger,” Hilton says. At the heart of her suit is a principle so basic that, until recently, it seemed unnecessary to articulate: if power is derived from the consent of the governed, then the public needs to know enough about what the government is doing to give its informed consent. It’s important for voters. It’s important for lawmakers. And it’s important for people like Hilton, who seek to hold their government accountable.

“I anticipate that the more we understand, the scarier it will be,” she tells me. “But I hope that information will help me keep other people safer.”