cross-posted from: https://infosec.pub/post/49101205

Federal agents with Homeland Security Investigations tried to track down Rochester resident David Streever last month and give him a warning notice alleging that he had potentially violated the law when he wrote a harsh email months earlier to the former head of U.S. Immigration and Customs Enforcement.

Now a lawsuit filed by the nonprofit Foundation for Individual Rights and Expression on Monday in federal court in Washington, D.C. argues Streever’s January email was protected speech and the federal agents’ and their superiors violated Streever’s First Amendment rights.

NPR reported last week about HSI agents trying to contact Streever first at his home and later at a hotel over an email that Streever wrote to Todd Lyons, who stepped down as the acting director of ICE at the end of May.

FIRE’s lawsuit says the First Amendment protects Americans’ rights to speak out against police but says the “Department of Homeland Security (DHS) is actively threatening that freedom, tracking down and retaliating against speakers like Plaintiff David Streever because he exercised his fundamental right to criticize one of the highest-ranking law enforcement officers in the United States.”

The suit goes on to say, “Our Constitution does not tolerate such a brazen abuse of authority.”

Streever wrote to Lyons’ government email address on Jan. 26 after federal immigration officers in Minneapolis fatally shot two U.S. citizen observers during the immigration enforcement surge there.

The three-paragraph note compared Lyons to a Nazi and predicted that Lyons would be tormented by his own conscience. It has the subject line, “What’s next.”

Five months later, on June 23, two HSI agents rang the doorbell of Streever’s Rochester home and then left a document with Streever’s wife for him to sign. It was labeled “WARNING NOTICE” and “YOU MAY BE IN VIOLATION OF FEDERAL LAW,” and described federal laws that make it a crime to threaten federal officials. The notice said ICE’s Office of Professional Responsibility had identified an email to Lyons that may violate federal law and the office “is requesting that you promptly remove and/or discontinue the aforementioned behavior.”

The bottom of the form reads, “Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above.”

Streever was taking his 7-year-old daughter on a vacation to a Finnish theme park when the agents visited his home. He and his daughter landed at New York City’s John F. Kennedy International Airport two days later and made their way to a nearby airport hotel to sleep.

That evening, Streever was told by the hotel front desk that a federal agent from the Department of Homeland Security had come to see him and had left a business card. His wife had not told the agents which hotel he would be staying at, raising questions about how Streever had been tracked to that location.

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The lawsuit names three federal agents who tried to contact Streever as defendants along with Secretary of Homeland Security Markwayne Mullin and ICE officials.

The suit argues the federal agents’ actions have caused Streever to self-censor his views, and alleges they violated a First Amendment bar on the government threatening people over protected speech.

The lawsuit asks for the court to find that Streever’s email was protected by the First Amendment, and to bar defendants “from taking any further actions, formal or informal, to coerce, threaten, retaliate against, or intimate repercussions directly or indirectly to Plaintiff Streever for his protected speech and petitioning activity.”

The suit also asks the court to declare the warning notices federal agents are issuing people are “sufficient” to chill free expression protected by the First Amendment.

“ICE’s issuance of formal “WARNING NOTICE” documents to critics who engage in protected speech—and its decision to have federal agents deliver those warnings in person—can have only one purpose: to systemically chill ICE’s critics and coerce them into silence,” the suit reads.

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The lawsuit mentions that the same day HSI agents visited Streever’s home on June 23, they also confronted Paigelynne Gonyea, a Syracuse resident who was working at a polling place for the New York primary election that day, about an Instagram post.

While Gonyea was at Syracuse’s Central Library working the polls, an HSI agent left her a voicemail that said the agents had just visited her former apartment and were calling “in reference to a post that we believe you made on Instagram where you doxxed an ICE agent back in January.”

Doxxing typically refers to releasing sensitive information about a person online.

Gonyea called the agent back. She said the agents had wanted her to come outside the polling place to speak with them but she told NPR she did not trust them, and had told them to come talk to her inside the polling place when there was a lull in voters.

Local election officials later said the federal agents should not have gone inside, given that police are not supposed to enter polling places unless there is an emergency and a recently enacted New York law bars federal immigration officers from voting sites.

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Gonyea and Streever are the first two people who have made public that they received warning notices from Homeland Security agents about their online communications.