What do you get when you add up the following?
- Lack of racial diversity among police intelligence employees.
- Failure to train police intelligence employees on federal and state law.
- Ignorance of Black cultural iconography.
- Fear of (Black) dissent.
- Inadequate oversight at police fusion centers.
- A culture of impunity regarding police surveillance of First Amendment protected activity.
In Oregon, these toxic ingredients combined to produce racist, illegal surveillance of a government employee’s First Amendment protected speech. Specifically, a police intelligence officer assigned to the local “fusion center” compiled a report on the Director of the state Department of Justice’s Civil Rights division’s tweets, warning his superiors that the civil rights Director’s commentary about police violence against Black Americans constituted threats to law enforcement. The memo describing these tweets was ultimately passed to the Attorney General, who immediately called for its author to be put on leave and commissioned an independent investigation. The results of that investigation were published in an April 6, 2016 report. The remarkable document shines a light into a place most Americans don’t have access to, but which has an outsized influence in 21st century American life: the shadowy local surveillance infrastructure established in the wake of the 9/11 attacks.
Police say they need more money, power, and fancy technologies—and information sharing hubs like fusion centers—to keep us safe from growing threats including domestic and international terrorism. But the April 2016 report on the Oregon incident adds to a growing body of evidence suggesting that instead of protecting us, fusion centers and the post-9/11 model they represent threaten the very liberties the police claim to defend.
Conflating #blacklivesmatter with violent threats to law enforcement
The Oregon controversy started, as so many police controversies do, with a new surveillance toy. In September 2015, employees at the Oregon DOJ’s Criminal Justice Division’s TITAN Fusion Center were offered a free demonstration of social media monitoring software called Digital Stakeout. According to the April 2016 report, the TITAN Fusion Center is the state’s “focal point for receiving, analyzing, gathering, and sharing threat-related information in order to better detect, prevent, investigate, and respond to criminal and terrorist activity.” The Digital Stakeout software “takes user specified keywords and searches multiple open source social media sites, and returns results that can be pinpointed to a geographic area specified by the user.” After the in-house demonstration, officers and analysts at the fusion center were given the opportunity to use the software on a free, trial basis.
The day after the software demonstration, September 30, 2015, a fusion center employee conducted a search using Digital Stakeout. He entered the keywords “#blacklivesmatter” and “#fuckthepolice,” and focused his search on Salem, Oregon. The search results included tweets made by Erious Johnson, Jr., the Director of the Oregon Civil Rights division of the Attorney General’s office. None of Mr. Johnson’s tweets included the phrase “#fuckthepolice,” but many included the #blacklivesmatter tag, as well as images of cartoons depicting police violence against Black Americans. One particular post caught the fusion center employee’s eye. To the surveillance agent, the tweet looked like a threat to law enforcement officers. It was an image depicting a person in cross-hairs, along with the words “consider yourselves…WARNED!”
The fusion center employee (whose name is redacted throughout the report) became alarmed. He notified his superior, Special Agent in Charge David Kirby, that a Civil Rights division employee had made threats against law enforcement. Kirby notified Chief Counsel Darin Tweedt, who recommended to Deputy Attorney General Fred Boss that the fusion center agent prepare a report on the suspicious tweets. Boss concurred. The agent then produced the following memo.
Later, after he had been removed from his position, the agent told the independent investigator that he would sometimes conduct searches based on “what’s hot in the news.” Both federal and Oregon state law prohibit police officers from collecting intelligence information unless it pertains to a particular crime, or suspicion of specific criminal activity. Despite this, the agent told the investigator that he used the “#blacklivesmatter” search term because
There were a lot of protests and law enforcement assaults that were going on throughout the country and the hashtag itself was being used by many different persons that were organizing riots and looting and threats against law enforcement and just social disobedience in general.
That reasoning fails to meet the legal standard of what justifies police intelligence collection. Likewise, it would be illegal for a police officer to collect intelligence information on people who use the hashtag “NASCAR” simply because some people who use that hashtag have committed crimes. There is nothing criminal about the Black Lives Matter hashtag, just as there is nothing criminal about NASCAR.
Other disturbing comments the agent made to the investigator are indicative of an often latent but historically persistent hostility many police intelligence officers harbor towards dissent and dissidents broadly speaking. “Anytime there’s a riot or any kind of social disobedience there’s always an underlying threat to law enforcement and the public,” he said.
But the memo he produced for his superiors didn’t concern the #blacklivesmatter tag generally, or the millions of people around the world who have tweeted it over the past few years. It focused squarely on the speech of Mr. Johnson, the Civil Rights director for the Oregon Attorney General’s office. One tweet in particular struck the agent as threatening to law enforcement. That tweet is copied below.
As you can see, the tweet is dated January 19, 2015. It does not include the hashtag #blacklivesmatter. The police agent found it on September 30, 2015, nearly nine full months after Mr. Johnson tweeted it. In order for the officer to have found this tweet, he would have had to scroll through nine months of Mr. Johnson’s tweets, presumably looking for something incriminating. But the tweet does not threaten law enforcement. It is not, as the agent seemed sure it was, an image of a police officer in cross-hairs. It is a famous logo from the hip-hop group Public Enemy.
1986 the construction of the logo, magic markers -white out copy machine -Exacto knife ..no computer or Photoshop pic.twitter.com/67SV6vFK2H
— Chuck D (@MrChuckD) August 3, 2014
The agent told the investigator that, upon seeing this tweet, he looked at the other pictures Mr. Johnson had tweeted. He was alarmed by “all this hate stuff and especially anti-law enforcement stuff since he worked with us,” the agent said. Take a look at the tweets the agent was talking about on pages 47-73 of this document. You’ll find mostly cartoons depicting police violence against Black Americans or other expressions of white supremacy. It’s hard to see how anyone could see Mr. Johnson’s tweets as “hateful,” but that’s irrelevant. The cop’s job is not to determine who is mean or hateful, and to spy on them. Rather, it is to determine who may be involved in illegal activity, or who has committed crimes.
The agent’s own biases spill out in the rest of the interview with the investigator. He says Mr. Johnson’s twitter page contained images of law enforcement being “complete jerks,” and that his colleague’s posts made “all white people appear to be racist.” As the investigator wrote, the agent “felt that Mr. Johnson’s posts showed a lot of hate.”
Notably, the agent didn’t think that his search of Mr. Johnson’s tweet violated department policy or the law. The investigator put it like this: “[REDACTED] believes the search complied with [federal law] because he felt he was not collecting or maintaining information, merely searching for it using open source terms that anyone could use. [REDACTED] does not believe any search terms are off limits ‘because you can search for anything you want, but if you start to collect it and maintain it then you have to have a reason.'” Furthermore, he thought the search was appropriate because “it was a hot topic at the time that was causing riots and people getting injured and killed and public destruction.” The agent told the investigator that he thought the search was no different from his search on Volksfront, a white supremacist group, because “#blacklivesmatter is simply a hashtag used by a wide assortment of people to do a wide assortment of things, one of which is to promote violence,” the investigator wrote.
Who’s afraid of Black Lives Matter?
The agent wasn’t alone among his colleagues in assuming that he could legally conduct surveillance against people using the #blacklivesmatter hashtag. A research analyst who has worked with the Oregon police since 2006 told the investigator that “although…she had heard of #blacklivesmatter being used in the context of ‘blacks being killed by police,’ she did not feel someone in Mr. Johnson’s position should be tweeting such messages.'” She herself had conducted online searches for information about animal rights activists, she told the investigator. Another colleague, an analyst employed since 1999 and assigned to the fusion center since 2011, told the investigator she too had conducted searches on the Animal Liberation Front. She also said that prior to the dustup with her colleague and learning how the “Attorney General feels about that,” she wouldn’t have known not to search twitter using the #blacklivesmatter hashtag. A third analyst, employed by the Oregon DOJ for the last ten years, said that her colleague conducted the search because people “that were calling for the massacre of police officers and white people” had tweeted the #blacklivesmatter hashtag in the past. When she viewed Mr. Johnson’s twitter posts, she “felt the posts were very derogatory toward law enforcement,” the investigator wrote.
Even more alarming was what DOJ Chief Counsel Darin Tweedt told the investigator. The investigator wrote that in Tweedt’s view, “[c]onducting a search to gather information on #blacklivesmatter based on information [REDACTED] heard in the news may be appropriate even in the absence of a criminal investigation.”
In the conclusion to her report, the investigator wrote that the agent’s search “was not in compliance with the statutes, regulations and departmental rules applicable to CJD employees.” The search, she wrote, “was not tied to a criminal investigation and there were no reasonable grounds to believe there was an existing threat in the Salem area at the time he conducted his search.”
“Mr. Johnson had not made any threats, and rather appears to have been expressing his dissatisfaction with incidents of police shootings of or biased behavior toward African Americans. Rather than depicting threats to the police, the majority of the law enforcement related posts by Mr. Johnson appear to be satirical cartoon images depicting threats from the police toward African Americans,” she wrote.
Despite finding that the surveillance was illegal, that many members of the Oregon DOJ Criminal Justice Division and fusion center were not sufficiently trained in criminal intelligence law, and that a number of the agent’s colleagues appeared to share his biases against Black Lives Matter, the investigator ultimately concluded that there was no “widespread behavior/actions by CJD Intelligence Unit employees like that engaged in by [REDACTED] regarding his search of #blacklivesmatter postings.” It was simply an “isolated incident,” she concluded.
While its conclusion leaves something to be desired, the report is significant. The public rarely gets a glimpse into the inner workings of fusion centers or other police intelligence operations. Anyone who has ever participated in organizing or activism has a good idea that the police are watching, but it’s hard to catch them in the act. Every day across the United States, similarly situated agents, analysts, and officers are probably conducting similar searches and compiling similar memos for their superiors. It was probably the unusual facts of this case that prompted the Attorney General to take action, suspending the agent in question and commissioning an independent investigation.
Unfortunately, her response to the illegal political surveillance was the only unusual thing about the whole affair.