One officer recorded license plates of cars near a protest. Another kept a video of people presumed to be protest organizers. The Police Bureau’s Criminal Intelligence Unit held onto a bulletin from Vancouver police describing a vehicle blaring anti-law enforcement music.
Glaringly missing from Police Bureau directives, auditors said, is any policy or instruction to officers governing what material they can gather regarding public protests.
That led officers to use their own discretion on how and what type of information to obtain and keep, the audit found.
Evaluators with the Portland Audit Services Office reviewed a random sample of 40 police reports related to protests and 33 reports from the bureau’s Criminal Intelligence Unit. The unit of four officers and sergeant investigates threats of targeted violence, violent extremism, threats to public officials and does threat assessments for major events and dignitary visits.
Among other key findings: The Police Bureau provided no guidance for officers at protests about what information they could collect; the Criminal Intelligence Unit didn’t limit access to some of its reports, sharing them in the online police record management system that outside agencies can access; the intelligence unit also kept records past its 30-day retention deadline when the case involved no crime.
And despite community concerns, the auditors said they didn’t find that a police plane monitoring the protests could identify individuals or that the plane had stingray technology to pick up cellphone data.
A state law adopted in 1981 prohibits police from collecting information about the political, religious or social views, associations or activities of individuals, businesses or groups without reasonable suspicion of a crime.
“Intelligence gathering and surveillance is by its nature an activity that the public doesn’t know much about,” Auditor Mary Hull Caballero said in a statement released with the report. “However, more transparency through policies, procedures, and reporting will improve accountability and build trust.”
The Criminal Intelligence Division should limit access to reports to only staff members with the appropriate permission to view them, the audit said. But reviewers found that the unit kept six files related to political activity for longer than 30 days even though the cases had no substantial criminal connection. The files also were “widely available” throughout the bureau, the audit said.
One report, for example, described a person, with their license plate number, suspected of watching a Police Bureau building during Black Lives Matter protests.
Other material kept past the deadline by the unit included: a report and bulletin about a person planning to protest actions by the state attorney general, a bulletin from Vancouver police describing a vehicle playing anti-law enforcement music, a report about a perceived social media threat to Multnomah County District Attorney Mike Schmidt, a report about help given to a New Jersey police agency regarding political activity from a Portland internet address and a report about a person who expressed concern to a third-party about anti-Semitic activity within the Police Bureau.
The lingering information can create problems down the line, auditors said.
For instance, the audit said: “Officers might perceive drivers to be a threat during traffic stops if they access reports that say drivers were involved in Black Lives Matter protests or played music perceived to be anti-police. Officers also are poorly served when unfounded information remains in the system while making decisions in the field.’’
Police Chief Chuck Lovell pushed back on some of the findings involving the Criminal Intelligence Unit, saying five of the six reports entered into the general records system didn’t amount to criminal intelligence per se. And the sixth report was a bulletin from an outside police agency, he said.
In response to the chief’s comments, K.C. Jones, director of audit services, said the bureau should have a way to handle sensitive information like the bulletin that doesn’t fit the definition of criminal intelligence.
“It ends up in this kind of limbo,” Jones said.
Lovell also noted that officers can view publicly available social media information and doing so doesn’t constitute a formal legal “search” under the Fourth Amendment.
The audit acknowledged that the mass racial justice protests in Portland were hard for police to handle. They continued here for more than 100 consecutive nights after the May 25, 2020, killing of George Floyd by a Minneapolis police officer.
While auditors found that most protesters who took to the streets appeared peaceful, some people were bent on committing vandalism and violence, ranging from spray-painting buildings and smashing windows to setting fires and throwing bottles, fireworks and other objects at police.
The city reviewers found “no evidence” from a sample of recordings from the Police Bureau’s plane of inappropriate surveillance images related to someone’s political activity.
One of 20 recordings reviewed was related to a protest, and it included evidence of a crime, the audit found.
The technology from the plane didn’t appear capable of capturing images in enough detail to identify people or vehicles, the review said.
Auditors also flew in the fixed-wing plane to observe what pilots could see from the air and couldn’t identify people or cars. The officers on the plane helped provide “tactical awareness” to officers on the ground attempting to disperse protesters, the auditors found.
“We also did not find any evidence that indicated that Portland officers used Stingray technology, which community members suspected Air Support used to remotely access information from cell phones,” the audit said.
Jones said the Audit Services review of Police Bureau financial records, emails and the plane itself showed no use of the stingray technology.
Stingray devices mimic cellphone towers, connecting to mobile phones and capturing data sent through them. When the technology is used in a populated area, it can collect information about bystanders, not just a target.
According to a 2018 American Civil Liberties Union investigation, stingrays are widespread. It found 75 law enforcement agencies in 27 states, including the District of Columbia, owned stingrays.
The bureau’s plane flies about 1,200 hours a year. Its air support unit, with a $500,000 annual budget in fiscal 2020-21, is staffed by a full-time sergeant, who oversees others assigned to help when needed.
The air unit has a policy that forbids recording political activities unless evidence of a crime exists. It directs crew members to avoid recording protests unless an incident commander asks them to or the crew observes a crime.
Auditors said community members expressed the greatest concern over the police plane potentially violating privacy. The review urged police to be more transparent about the guidelines.
Among the audit’s recommendations for police:
– Adopt a directive spelling out parameters for officers on the appropriate collection of information to protect people’s civil rights during protests and other First Amendment actions.
– Create a procedure to limit access to sensitive information within the Police Bureau and get rid of material that doesn’t involve criminal activity.
– Add restrictions to the bureau’s social media directive to ensure any social media kept by police is related only to a law enforcement purpose.
– Publicly release reports on any use of the bureau’s surveillance technology “to ease the public’s concerns about inappropriate intelligence-gathering and how devices are managed to prevent it.”
Other cities have stricter guidelines on police intelligence gathering, auditors found.
The city council in Oakland, Calif., for example, must authorize surveillance technology purchases and seeks advice from a privacy commission.
The national President’s Task Force on 21st Century Policing also recommended involving input from community advisory committees on the adoption of any new technology.
Mayor Ted Wheeler, who serves as police commissioner, said the Police Bureau will adopt most of the audit’s recommendations.
“I support these protections because of the very real history of shameful and biased surveillance practices by some law enforcement agencies in our state and nation,” Wheeler said in a written response.
He and Lovell said the Police Bureau also will adopt a procedure to govern the use and reporting of electronic surveillance technology and put the police commissioner in charge of approving state or federal funding to buy the technology more specifically.
Among the technologies the Police Bureau is exploring for future use are ShotSpotter acoustic sensors to alert police when gunshots are fired.
Wheeler didn’t acknowledge that some of the past bad practices he referenced were those of the Police Bureau.
In July 2020, a Multnomah County judge issued a temporary restraining order barring the city and police from collecting or maintaining video or audio of protesters in public spaces, except if it related to a criminal investigation. That followed a lawsuit filed by the ACLU of Oregon challenging the bureau’s livestreaming of protests.
In 2002, the Portland Tribune disclosed that the police intelligence unit had kept files from the 1960s, 1970s and early ‘80s on people’s lawful political activity, which were discovered in a former officer’s barn.
In 1996, a Multnomah County judge ruled that a person or group’s mere presence at an event where criminal behavior is planned or conducted by others isn’t enough to allow police to start an intelligence file. Police had acknowledged in response to a lawsuit that in 1992 they sent undercover officers or informants to a peace group’s meeting, where people discussed police accountability.
U.S. Homeland Security agents compiled intelligence and background reports — dubbed “baseball cards” — on people arrested by federal authorities during the 2020 protests in Portland, despite their charges being unrelated to national security threats, according to an internal review made public last year.
That review followed reports that the Homeland Security’s intelligence unit had collected and shared information on a reporter for The New York Times and editor-in-chief of the blog Lawfare who were covering protests in Portland. The reports noted the journalists had published leaked, unclassified documents about Homeland Security operations in Portland.
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