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On the evening of Oct. 19, Oregon Attorney General Ellen Rosenblum's top deputy presented her with troubling news.
In an after-hours conversation, Rosenblum learned that an investigator in her agency, the Oregon Department of Justice, had been using a Web tool called "Digital Stakeout" to monitor people using hashtags like "Black Lives Matter" and "Fuck the Police" on Twitter.
"I was immediately outraged by the revelation," she tells WW, "and the next morning ordered this type of digital search be stopped."
In fact, such monitoring may be a violation of state law.
It was more than a week, however, before the attorney general informed one of her own agency's lawyers, Erious Johnson, that he had been profiled because of his use of the Black Lives Matter hashtag.
Then, nothing happened until Nov. 10, when Nkenge Harmon Johnson, executive director of the Urban League of Portland and Erious Johnson's wife, sent a letter to Rosenblum signed by representatives from seven other groups, including the American Civil Liberties Union of Oregon, the NAACP and the American Federation of State, County and Municipal Employees.
The letter blasted Rosenblum for harboring a "digital surveillance program in our Department of Justice that appears to target civil, racial and human rights activities in Oregon."
Only after receiving the letter did Rosenblum place on leave the investigator who did the profiling. Last Friday—25 days after she was toldabout the profiling—Rosenblum hired an outside investigator.
"It looks like she didn't take it seriously until it became public," says Stuart Sugarman, a Portland criminal defense lawyer who represented many of those arrested in the Occupy Portland movement.
Rosenblum defends the time it took her to inform Johnson, suspend the agent and launch an investigation.
"It was absolutely essential that any information I shared with Erious be as accurate as possible," she says. "I wanted to move quickly, deliberately and fairly."
The story has gone national. Media, including National Public Radio and the Huffington Post, are questioning the surveillance program and the attorney general's response.
Surveillance issues have taken on particular significance since last week's terrorist attacks in Paris, which underscored the need for coordinated intelligence-gathering. In that context, the Oregon DOJ's use of a "threat assessment" tool to search publicly available Twitter traffic might seem innocuous or even prudent.
But in 1981, Oregon passed a law prohibiting law-enforcement agencies from monitoring political speech or activity. Civil rights lawyers say Oregon's law is one of the nation's strictest.
Rosenblum's handling of the digital surveillance issue raises questions about her management of a complex agency and comes as the attorney general, a Democrat, is seeking re-election in 2016. (Disclosure: Rosenblum is married to WW co-owner Richard Meeker.)
"I don't think there's a good answer for why it took so long," says Tung Yin, who teaches criminal law at Lewis & Clark Law School. "We've seen other investigative matters such as the Kitzhaber case proceed at the pace of molasses under her watch."
The Department of Justice is in effect the largest law firm in Oregon. It handles everything from consumer protection to murder cases to providing routine legal advice to state agencies.
One of the lesser-known roles it performs takes place in Salem, on the first floor of a generic-looking office building on Southeast McGilchrist Street.
A team there staffs what is called the Oregon Titan Fusion Center.
While the Fusion Center is housed in a state agency and its employees are state employees, the original funding came from the federal government.
After the terrorist attacks on Sept. 11, 2001, the 9/11 Commission determined that local law-enforcement agencies needed to find a better way to share information.
That led to the creation of 77 so-called fusion centers nationwide. The fusion centers collate information from local, state and federal law-enforcement agencies so they can better coordinate their operations, both in monitoring potential terrorists and pursuing more routine issues, such as drug trafficking. Oregon's Fusion Center opened in 2007, operating inside the DOJ's criminal justice division.
Records show that in 2014, the Oregon Fusion Center received at least $3.8 million in federal funding. The Oregon DOJ also asked the state Legislature earlier this year for additional money. As part of its request, it listed some achievements:
"From July 2011 to June 2014, the Fusion Center conducted 1,194 terrorism intakes [defined as a report of suspicious activity], created 1,497 intelligence profiles…and conducted 24 threat assessments," the DOJ budget request says.
In addition to its counterterrorism work, the Fusion Center provides what it calls "de-confliction services to law-enforcement agencies across the state." In lay terms, that work includes maintaining a large database of police investigations in different geographical areas.
Some employees in Oregon's Fusion Center are civilian data analysts; others, highly trained law-enforcement officers.
Multiple sources have identified the Fusion Center agent placed on leave as James Williams.
Williams, 41, worked as a detective for the Klamath Falls Police Department for nine years, according to his LinkedIn page, before joining the DOJ in 2010. He declined to comment.
At some point—it's unclear when—Williams began using a tool to monitor those who followed or used the hashtag Black Lives Matter, a movement that began after the 2012 killing of unarmed African-American teenager Trayvon Martin in Florida. It gained traction after subsequent high-profile deaths of black people at the hands of police.
In July, a news website called the Intercept reported that the U.S. Department of Homeland Security—the agency that provides much of the Fusion Center's funding—regularly collects data on Black Lives Matter activism on Facebook and Twitter, including the locations of planned protests.
The Oregon DOJ surveillance appears to have been less extensive than federal efforts. Yet the revelation places Rosenblum in a difficult spot, considering she is also leading a statewide task force on racial profiling.
Harmon Johnson and the other civil rights and labor leaders pointed to that contradiction in their Nov. 10 letter to Rosenblum. They demanded "an apology and disclosure to all Oregonians ensnared in this surveillance." (Harmon Johnson and Erious Johnson declined to comment for this story.)
How many Oregonians were monitored on Twitter by the DOJ remains a key unanswered question.
Rosenblum tells WW she doesn't know the scope of the surveillance. "This is one of the things the independent audit will address," she says. "It is my hope that we put a stop to the practice quickly."
It's also unclear if Williams acted alone, or at the direction of his supervisor. "I did not authorize this inquiry," Rosenblum says. "Nor am I aware of any direct authorization."
The Attorney General's Office has previously been caught improperly monitoring non-criminal activity (see sidebar below).
To some observers, the biggest question is whether Rosenblum is taking an aggressive enough role in protecting Oregonians' civil rights.
ACLU of Oregon executive director David Rogers says Rosenblum is moving in the right direction, but he's concerned the independent investigator she hired will report to a DOJ lawyer and isn't required to make all findings public. "What we need is a thoroughly independent and transparent investigation," Rogers says.
Rosenblum says the investigation will answer all questions. "That's important work," she says, "but it requires time."
Illegal Procedure
The social-media surveillance conducted by an Oregon Department of Justice agent appears to be illegal in Oregon.
"No law-enforcement agency," says Oregon Revised Statute 181.575, "may collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct."
Attorney General Ellen Rosenblum acknowledges her agent may have broken the law. She says DOJ policies call for any agent who works at the Oregon Titan Fusion Center to be trained in the law and to sign a document attesting to that training.
Concerns about the Oregon Department of Justice violating the letter and spirit of ORS 181.575, the law prohibiting the gathering of political information, date back at least to 2009, three years before Rosenblum took office.
That year, then-newly hired criminal justice chief Sean Riddell became uncomfortable with a database that contained intelligence information unrelated to criminal activity.
"I shut it down immediately," Riddell says.
Riddell asked former Multnomah County Circuit Judge Dale Koch to review the database. Koch's notes, which WW obtained from the state, show Koch advised the DOJ to stop tracking people if "there is not reasonable suspicion to believe that they are engaged in criminal activity.
Willamette Week