ACLU slams Oregon DOJ for ignoring free speech protections

Oregon Attorney General Ellen Rosenblum. Her Department of Justice has come under fire for targeting supporters of the social equality movement Black Lives Matter with a software program law enforcement uses for 'threat assessments,' an act Rosenblum called profiling.

A civil liberties group is calling for fundamental reforms in the Oregon Department of Justice to protect free speech online in the wake of revelations that investigators weren’t aware of rules that should have prevented them from monitoring Black Lives Matter supporters.

An investigator that coordinates crime-fighting efforts between state and federal law enforcement in the Oregon TITAN Fusion Center told a Portland attorney looking into the DOJ’s Criminal Justice Division that he didn’t know it would be an issue to search for posts made by people who speak publicly about the racial equality movement and then compile a report.

That revelation, which was detailed in the attorney’s report released last week , wasn’t the only example of investigators at the Fusion Center not understanding a state law and federal and agency guidelines that should have prevented the search and others like it.

The American Civil Liberties Union of Oregon says Attorney General Ellen Rosenblum must work with outside groups to make changes within her agency to protect free speech and prevent racial profiling and biased policing.

“The report on the internal investigation of the Criminal Justice Division’s surveillance of Black Lives Matter leaves us with more questions than answers,” ACLU-Oregon Executive Director David Rogers said. “They will need outside help to address these issues.”

Portland attorney Carolyn Walker, with the firm Stoel Rives, conducted a five-month study in which she interviewed DOJ employees who spend their time scouring the Internet for potential threats to events and the public.

Walker, working as a special investigator with a $440-an-hour contract worth up to $88,000 Rosenblum approved in November, created a framework of the surveillance of a Black Lives Matter supporter from September and October 2015. A spokeswoman didn’t make Rosenblum available for an interview with The Bulletin for this story.

An investigator — who remains on paid leave — was trying out a new surveillance tool Sept. 29 that allows law enforcement to pinpoint within meters the location of social media users when they fire off a Tweet or Facebook post that’s set to public view.

Chuck Cogburn with the TITAN Fusion Center had been working for months to secure a trial for the tool: DigitalStakeout, software created by Motorola Solutions and marketed to businesses that want to track sentiment about their brands online and law enforcement looking to prevent or investigate crime.

He’d finally secured a brief trial last September, when an investigator — reportedly James Williams, according to the Willamette Week — searched for social media users in Salem who had typed in the tag #BlackLivesMatter.

The investigator found a dot on the corresponding map that showed someone within the Department of Justice building next to the Oregon State Capitol had sent several tweets supporting the movement and sharing a wide range of commentary on high-profile police killings of unarmed black Americans.

That account belonged to Erious Johnson, the head of the Civil Rights Unit within the Department of Justice.

Johnson sent a tweet that’s still viewable today with a silhouetted figure of a man with a hat in the crosshairs of a rifle scope. “Consider yourselves … WARNED!!!” Johnson wrote.

Employees within the agency later recognized the image as the logo of Public Enemy and the words a quote from the popular hip-hop group from the 1980s and 1990s. Johnson has told the state he plans to sue the DOJ and has filed a civil rights complaint with the Oregon Bureau of Labor and Industries, OPB reported Friday.

The problem? Investigators shouldn’t have even gotten to that point — of zeroing in on Johnson’s tweets, the ACLU says.

A 1981 state law, along with federal regulations that shape the training Fusion Center employees are supposed to receive, should have prevented the use of DigitalStakeout to search for Black Lives Matter supporters from taking place. Internal training reviewed by The Bulletin also shows employees are instructed not to violate free speech protections by collecting certain information related to social, religious or political views.

Unless there’s reasonable suspicion that someone whose information is being collected and retained by the Fusion Center is connected to a crime, investigators are not supposed to collect that information, a PowerPoint presentation of the training shows.

The training also tells investigators to “use creativity and articulate your reasonable suspicion in some way” if information being collected is related to social, political or religious views.

“(Walker’s) report falls short of addressing several areas of concern, but one thing it does conclude is that this search was ‘not in compliance’ with state law,” said Mat dos Santos, ACLU-Oregon’s legal director. “In other words, the statute that prohibits law enforcement from surveilling innocent Oregonians was broken.”

The report showed at least two investigators, whose names were redacted from the report, weren’t aware of the state law. Several terms that investigators used were redacted from the report. An agency spokeswoman said the information was redacted because it relates to ongoing criminal investigations.

— Reporter: 406-589-4347,

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