According to documents released to the ACLU, the Oregon DOJ has problems complying with both state and federal laws. Law enforcement agencies are forbidden from conducting surveillance of First Amendment-protected activities unless they can demonstrate beforehand that there is evidence of criminal activity tied to it.
But the DOJ's own presentations suggest agents should perform surveillance first and fix it in post. According to its instructions, agents should be "creative" when looking for justification for surveillance of First Amendment-protected activities. Literally, "any crime will do."
Any crime will do -
But look for…
Most of these "crimes" are misdemeanors that would hardly justify the manpower needed for surveillance. But when the surveillance is an automatic social media dragnet, the opportunity costs go down. This presentation is the front-end of the problem. The back end is officers looking for "suspects" using search terms that would almost exclusively
return hits based on First Amendment-protected activity.
In the one case cited by the internal report
, #blacklivesmatter was used as a search term, triggering a wrongful investigation with no criminal nexus. Although the bogus hunt was later called off by DOJ officials, evidence exists that similar searches were performed by others. Because the agency was only using a trial version of its social media monitoring software (Digital Stakeout), the other searches were not saved and could not be verified by investigators. The DOJ's report calls the one it does
have information on an "isolated incident," but appears to only be doing so because it was unable to recover more information on similar searches admitted to by agents with access to the software.
But the disturbing part isn't so much the bogus surveillance as it is the DOJ's encouragement of this activity. Another slide from the same presentation make it clear the standard m.o. is to surveill first and justify later. This slide refers to the statute forbidding the same surveillance the DOJ is telling officers to engage in.
Summary of 181.575
If the information you are collecting involves a religious, social or political view, activity or association, you MUST have reasonable suspicion of a crime related to the subject.
Use creativity and articulate your reasonable suspicion in some way.
Think of a wide variety of crimes to form the basis of collecting the information you need.
In other words, make something up using the most tenuous of "criminal" connections to justify the surveillance you want to engage in. In the case cited by the report, an agent used Digital Stakeout to disappear down a First Amendment-violating rabbit hole.
On September 30, 2015, Agent [redacted] used Digital Stakeout to conduct a search on the keyword search term “#blacklivesmatter” combined with “#fuckthepolice” (“the search”). He focused his search on Salem, Oregon, which yielded results that included Twitter posts by Erious Johnson, Jr. [Redacted] believed that some of Mr. Johnson’s posts were threatening to the police and he verbally shared his concerns with Special Agent in Charge David Kirby.
Mr. Kirby verbally described the concerning posts to Mr. Tweedt, and based on the description, Mr. Tweedt recommended to Deputy Attorney General Fred Boss that prepare a report on his search and the findings. Mr. Boss approved this recommendation and was then directed to write the report.
On October 1, 2015, [redacted] prepared and presented to Mr. Kirby a report he referenced as “Possible threats towards law enforcement by DOJ employee.” This report was a single page memo with an attachment that included several pages of posts that printed directly from Mr. Johnson’s Twitter feed rather than from Digital Stakeout. See Ex. F.
On October 8, 2015, Mr. Kirby delivered the report to Deputy Chief Counsel Stephanie Tuttle. In an email to Mr. Tweedt, Mr. Kirby reiterated his concerns about the crosshairs image and gave Mr. Tweedt a detailed description of the image and the accompanying language. Upon reading Mr. Kirby's detailed description, Mr. Tweedt emailed Mr. Kirby that the image was actually the logo for the “rap group” Public Enemy. See Ex. G.
On October 8, 2015, Ms. Tuttle left report on Mr. Tweedt’s office chair.
On October 12, 2015, upon his return from out of town travel, Mr. Tweedt reviewed the report.
On October 13, 2015, Mr. Tweedt gave the report to Mr. Boss, who at some point thereafter gave the report to Attorney General Ellen Rosenblum.
On October 20, 2015, the Attorney General called Mr. Tweedt into a meeting with herself and Mr. Boss, during which she expressed her extreme displeasure over the report by because she believed he had engaged in racial profiling. She instructed Mr. Tweedt to find anti-racial profiling training for the Special Agents, and ordered that all SMMS use be immediately discontinued.
Further details from the report show that there was no reasonable suspicion of criminal activity, but lots of resentment over the general tone of the posts the search turned up.
He interpreted what he saw to be a threat toward law enforcement, so he clicked on the image, and then found an assortment of other pictures that he considered threats toward law enforcement. When he looked at the name associated with these images, he thought it was Mr. Johnson, the Director of Civil Rights who worked in the building, and he could not imagine him posting “all this hate stuff and especially anti-law enforcement stuff since he worked with us.” He showed the posts, which included Mr. Johnson’s photograph, to [redacted] who confirmed it was Mr. Johnson. and encouraged to show the results to Mr. Kirby.
[Redacted] stated that other images on Mr. Johnson’s Twitter page depicted cartoons showing law enforcement to be “complete jerks”; that a political cartoon showing white police officers shooting at a statue of Martin Luther King “makes it appear that law enforcement hate everything that Martin Luther King stood for”; and that his posts were “making all white people appear to be racist.” [Redacted] thinks that anyone who came across Mr. Johnson’s name in a search would hold the same opinion. He felt that Mr. Johnson’s posts showed a lot of hate. [Redacted] was also disturbed by Mr. Johnson’s August 24 post, which depicts what thinks is an image of rap group N.W.A.’s album cover that he remembers seeing when he was approximately 16 years old. He described the image as showing a beat up and bloodied police officer being held in a headlock while the city burns in the background, with the caption, “Three Cheers for Gentrification.”
Because the agent involved was so certain that law enforcement officers were being targeted for violent acts, he allowed his imagination to run wild. The Public Enemy logo
seen in one post was somehow interpreted to be a state trooper in crosshairs.
[Redacted] (and many others) made this assumption. I recognized the image as the logo for the hip hop group Public Enemy and the silhouette in the image as an individual wearing a hat that was popular urban fashion in the rap music industry. Note that Mr. Tweedt also recognized the logo after Mr. Kirby described it in an email. See October 8, 2015 email string attached as Ex. G. Public Enemy member and creator of the logo Chuck D has explained, “The crosshairs logo symbolized the black man in America …. A lot of people thought it was a state trooper because of the hat, but the hat is one of the ones that Run-DMC wore. The B-Boy stance and the silhouette was more like the black man on the target.”
And the supposed "N.W.A. cover" supposedly
inciting violence towards police officers was nothing of the sort. From the DOJ investigator:
I am unaware of any such N.W.A. album cover. The image is actually a photograph of a painting that hangs in the Know bar on Alberta Street in Portland, Oregon. The neighborhood where the Know is located is widely recognized as a gentrified neighborhood, and the bar is a punk/rock bar. It appears that rather than a post meant to celebrate violence directed at police officers, Mr. Johnson’s caption, “Three Cheers for Gentrification,” may have been intended as an ironic comment about the content of the art work hanging in a punk bar located in a gentrified Portland neighborhood. [Redacted] comments about this post, the crosshairs post and other of Mr. Johnson’s posts demonstrates a possible lack of cultural awareness that may have affected his perception and led him to experience a heightened sense of concern.
The DOJ's unofficial policy of "search first, justify later" fed into the circle-the-wagons mindset of the agent performing this search, resulting in him seeing criminal conspiracies where there were none and -- more disturbingly -- treating criminally-focused hate groups and non-criminally-focused activists as equals in terms of law enforcement surveillance.
It is concerning that [redacted] sees no distinction in this regard between Volksfront, a group founded on the premise of white supremacy and a reported goal to “repatriate minorites”; OMGs, which are known to engage in drug trafficking, crime rings, theft, gang violence, etc.; and #blacklivesmatter, which is a self-described, “online forum intended to build connections between Black people and our allies to fight anti-Black racism, to spark dialogue among Black people, and to facilitate the types of connections necessary to encourage social action and engagement.”
Well, the DOJ seems to see "no distinction" between criminal activity and stuff it just wants to keep tabs on, even if said stuff is protected activity, so it's hardly surprising someone in its employ felt the lines were blurred enough to justify a social media search for a hashtag linked to activism -- and who after the fact used his "creativity" to create an aura of danger around a bunch of controversial, but certainly not threatening, posts.