[pjw] NEWS: Judge rules PPB violated law by livestreaming protests

[Peace and Justice Works]

Supporters of justice (and peace):

Below is an article from early this past week about the ACLU triumphing
in court by defending the Oregon law passed in the 1980s at their
urging, prohibiting unlawful police spying. ORS 181A.250 is the same
statute we've been citing for years to object to the Portland Police
participating in the FBI's Joint Terrorism Task Force. (And indeed the
same law the prevailed in the Squirrel v. City of Portland case where
the police spied on the very first general meeting of Peace and Justice
Works, our parent organization, labeling their file "Civilian Police
Review Board" about Portland Copwatch's discussion at that meeting s if
that were somehow a criminal act.)

I'm particularly taken by the quote from one of the plaintiffs about how
they were not expecting to have their government post their protest
activities and location for the whole world during the George Floyd
uprising last year. This is precisely why the statute prohibits police
collecting or maintaining information about people's social, political or
religious affiliations when there is no suspicion of criminal conduct.

The ACLU is pretty sure the City will appeal. I continue to be worried
that the City will try to lobby to create loopholes in the law. For now
the judge overseeing the case didn't buy the argument that
livestreaming isn't "collecting information" in the same way the old
"Red Squad" used to gather pieces of paper into files on people they
thought were subversives. It was pointed out in court that anyone could
have recorded the livestream with a screen capture, so the fact that it
didn't remain online wasn't relevant to how the statute says law
enforcement "shall not collect" such information.

So for now we can enjoy this victory and hope it guides the police in
their policy-making around videos including body cameras.


dan handelman
peace and justice works/portland copwatch

PS sorry for duplication with the Copwatch list; I slightly rewrote the 
above for clarification

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  https://www.oregonlive.com/crime/2021/09/portland-police-violated-contract-with-aclu-whey-they-livestreamed-protests-last-summer-judge-says.html
Portland police violated contract with ACLU when they livestreamed protests
last summer, judge says
   September 20, 2021   Updated: 8:31 p.m. | Published: 6:44 p.m.
    The ACLU of Oregon sued Portland police, challenging the police
    livestreaming footage of protests. The judge went further Monday,
    ruling that even Portland police internal use of livestreamed videos of
    protests that aren't made public violates the law and the city's
    agreement with the ACLU. The city is expected to appeal.
    By Maxine Bernstein | The Oregonian/OregonLive

    Portland police violated a contract with the American Civil Liberties
    Union of Oregon by livestreaming video of protests last summer, a judge
    ruled Monday.

    A protester who sued the city for the livestreaming suffered "real and
    probable" injuries by her "image being broadcast to the world,"
    Multnomah County Judge Thomas M. Ryan said in court.

    While the Police Bureau didn't "maintain" the streamed footage, its
    actions still violated state law and a long-standing agreement that
    police not "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 the information is directly related to a crime or
    criminal investigation, the judge found.

    Ryan's ruling from the bench followed a temporary restraining order
    granted in July 2020 in the same case that barred Portland police from
    collecting or maintaining video or audio of protesters in public spaces
    except as part of a criminal investigation.

    The restraining order resulted from a lawsuit filed a day earlier by
    the American Civil Liberties Union of Oregon, challenging the Portland
    Police Bureau's livestreaming of protests.

    The judge went further Monday, ruling that even Portland police
    internal use of livestreamed videos of protests that aren't made public
    violates the law and the city's agreement with the ACLU.

    "We are of course very pleased with the ruling, which reflects the
    ability of the law to keep pace with evolving technology," said Ed
    Piper, an attorney who represented the ACLU and Protester No. 1, the
    unnamed plaintiff in court.

    Anticipating an immediate appeal by the city, the judge put a hold on
    his ruling related to police internal use of livestreams.

    Police incident commanders often rely heavily on livestreamed videos of
    demonstrations to help direct officers' actions, Deputy City Attorney
    Ryan Bailey told the court. Removing their internal use would be a
    "significant loss" to police, he said.

    Deputy Chief Chris Davis, who has since left the bureau for another
    job, said in a sworn statement that police began sharing livestreamed
    video publicly to improve "public transparency" around police responses
    to demonstrations, noting that they often countered protesters'
    livestreams that were edited to show police actions without protesters'
    provocations.

    "The livestreams also appeared to help with de-escalation," Davis wrote
    in a statement. "The livestreams assisted in de-escalating and
    deterring criminal conduct by providing greater public visibility to
    such actions. For example, in one instance while PPB livestreamed from
    the Justice Center, while the security fence was up around the
    building, attempts were being made by a group of individuals to breach
    the fence. Within a few minutes of initiating the livestream the
    activity stopped and the crowd moved away from the fence."

    The Police Bureau livestreamed protests using YouTube on June 6, 7, 9
    and 10 last year and posted the video to the bureau's Twitter feed. The
    footage was stored by YouTube and accessible to the police. After each
    video was completed, an officer manually deleted the data, according to
    the city.

    After the June 10, 2020, livestream, police used a different video
    platform, Wowza Media Systems, which, unlike YouTube, gives the user an
    option to choose from several settings, such as recording. The police
    never chose to record on the Wowza livestreams and used Wowza to
    livestream protests on July 4, 13, 16, 18, 20 and 30 last year,
    according to city attorneys.

    A July 13, 2020, police livestream captured Protester No. 1
    demonstrating peacefully outside the Portland police union headquarters
    in North Portland. Protester 1 reported attending from 8:30 p.m. until
    midnight. In a sworn statement to the court, the protester said she was
    a parent who attended after being "sickened and devastated" by acts of
    police violence against protesters in the preceding weeks. Protester
    No. 1 walked between a police line and other demonstrators and stood in
    front of each officer, the statement said.

    Protester No. 1 told the court that at no time did she consent to
    police capturing their image or audio at the protest.

    The judge found the livestreaming violated state law and a 1988
    agreement between the city and the ACLU. The agreement was negotiated
    by longtime Portland civil rights lawyer Elden Rosenthal and then-city
    attorney Jeffrey L. Rogers.

    In 1988, ACLU had received complaints from two organizations that
    indicated that the Police Bureau was photographing public and peaceful
    demonstrations and maintaining the photographs and related information,
    including the identity of protestors, in permanent police files even
    though no criminal activity had occurred and no criminal investigations
    were in progress. Rosenthal and Rogers discussed the matter and came to
    the negotiated agreement.

    Under it, Portland police agreed to absorb the wording of state law
    into its policies: "Portland Police Officers shall not 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."

    After the ruling, Protester No. 1 identified herself as Marie Tyvolle
    and issued a statement: "When I showed up to support Black Lives at a
    protest, I did not expect that the police would invest so much time,
    money, and energy in broadcasting my face over the internet," she said.
    "Standing up to injustice is important to me; having my own government
    deliberately put me at risk for broadcasting my location and political
    stance -- known as `doxxing' -- is unbelievable. In a time when
    extremists and hate groups violently attack activists, I am grateful
    that the Court saw how harmful this practice is and chose to put a
    permanent stop to it."

    City attorneys had argued that the police did not collect or maintain
    the video clips, only transmitted the live video and audio over the
    Internet in real time or nearly real time. They also pointed out that
    demonstrators in the crowd frequently live stream the same protests.

    Regardless of which livestreaming platform police used, all the parties
    to the case agreed that the Police Bureau did not record, make a copy
    of or save the livestreams. The city further argued that a 1988 letter
    between its city attorney and Rosenthal referencing a negotiated
    agreement did not amount to a contract.

    The judge rejected a separate claim of injury by the ACLU, finding the
    organization lacked standing in the case "beyond an abstract interest."