In the news of all the police beatings and arrests of protesters, press and legal observers, I have the opportunity to share something a little more heartwarming. News of a court case that is a few months in the making, from the early days of the protests. No one got physically hurt, but a lot of people have been spied on by the city in violation of state law.

The story actually starts way back in 1988. Unfortunately the story itself I don’t have much information about from back then, but it involved a settlement between the ACLU and the City to ensure that they were, and would remain, in compliance with state law about not documenting protected speech of protesters. The settlement appears to have been an endeavor to avoid a lawsuit on behalf of a John Blank, the American Field Services and the Portland Central American Solidarity Committee. I’ve gone ahead and linked screenshots from the court filing for those who are interested, but the core of it is reaffirming the processes that the Portland Police are supposed to use when gathering footage.

In a court case filed last week, the ACLU was forced to revisit this settlement on behalf of an anonymous protester (Protester #1 in court filings) with the ominous opening: Oregon is not a surveillance state. With this action, Plantiffs American Civil Liberties Union of Oregon, Inc. and Protester #1 seek to eliminate a practice by the City of Portland – and, specifically, the Portland Police Bureau – that threatens to turn it into one.

On July 13th, Portland Police announced a livestream that was available online on their Twitter account, during demonstrations at the PPA building, long before the police alleged any wrongdoing of anyone in the crowd, in violation of ORS 181A.250. Much later in the night I was told about this and was able to do play by play reporting of the protests using just the police livestream on my own Twitter account.

The police give varying reasons for their actions, claiming it is to provide ‘situational awareness’, which is an option under Section 4.3 of PPB Directive 0635.10. But livestreaming it to the general public, where myself and others can record it ourselves (full disclosure: Some work that I’ve done in regard to previous reporting has been used as exhibits in some declarations in this case) is certainly not covered by the directive or state law.

Ever since I first saw this, I personally expressed concerns that this was setting up for targeted harassment of protesters by non-governmental people. Since these protests began, there have been people sending death threats and wishing ill will on protesters, press, and observers alike, and while most of the press on the ground have been working to minimize exposure of protesters who wish to remain anonymous, the police are doing the exact opposite. At this point, I’m not certain that anyone has been successfully targeted as a result of the livestreams, but the concern is still valid.

And it wasn’t the first time  this had happened either.

Public records attorney Alan Kessler filed a declaration showing that the Portland Police had been, as early as June 6th, the Police department had been using their YouTube channel to broadcast a livestream of protests complete with a chat box for the general public to speak in an open, public forum. He knew very quickly that this was a violation of the law, and reached out to the city to preserve and request copies of the videos and chat for future purposes. In this series of emails, you can see how they tried to shut him down after destroying the records in question. They then the following month moved to a different platform where they could stream without the public input functions of Facebook, and with the files either manually deleted or automatically purged at a specific period after the streams ends. Myself and others, in our research have proven that we could access the stream at any time it was live and download the entirety of the video from start to finish, and even automate a script to it.

So he filed his records request, and a bit over a week later he received a response from the City Records office about the initial YouTube video, that read as such:

RE: City Public Records Request of June 07, 2020 Reference # C135879-060720

Dear Alan,

The City received a Public Records Request from you on June 07, 2020 for the following:

“During the protest on the evening of June 6, 2020 the Portland Police live-streamed a video feed from downtown and created a public chat forum on YouTube for discussion of the stream. The video was here:

https://www.youtube.com/watch?v=DtD9zSlhdvs

The video and chat log is now not available at that address. Please provide a complete copy of the video and the time-synchronized chat log.”

There are no public records responsive to this request.

The City now considers your request fulfilled and it will be closed.  Please note, messages on closed requests are not monitored.

Sincerely,

CARRIE WILTON

Essentially, the claim was ‘we don’t have anything, so we can’t give you anything. Mr. Kessler quickly responded by phone and then email to put the city on notice of his intent to follow up, and to attempt to force them to try to recover the ‘deleted’ videos

Carrie,

I just spoke with you on the phone to confirm that the Police Bureau has in fact deleted the public records requested.

Please institute a litigation hold on any PPB livestream videos and/or chat logs whether stored on City servers, YouTube servers or elsewhere. Please contact YouTube immediately to attempt to recover these improperly destroyed public records.

Please do not destroy any current or new PPB livestream videos pending a lawsuit I expect to bring at my earliest opportunity.

Sincerely yours,

Alan Kessler

Dear Mr. Gibbs:

I am forwarding the response I got from the City of Portland just now on a public records request.

During the protests the Portland Police Bureau has been hosing a livestream and public chat forum on Youtube.com. During these livestreams a live video from the justice center is made available to the public and one or more Bureau members participate in a chat channel with the general public.

On the morning of 6/7, I put in a records request for the video and chat logs from the prior evening’s livestream. This afternoon I received an email from the City Attorney’s office notifying me that no such record exists. I followed up with Carrie Wilton who confirmed over the phone that the video and chat logs were deleted and there’s nothing they can give me.

I have two requests:

1) Would you please either open an appeal of the denial or confirm my suspicion that I have no administrative remedy given the City’s position that no such records exits?

2) Would you please also treat this as a formal complaint of criminal Tampering with Public Records under ORS 162.305 and consider opening an investigation?

Thank you for your consideration.

Alan Lloyd Kessler

ORS 162.305 charges could well be serious, especially considering his request for the police to not destroy any new livestreams (something that they have since done every time they’ve used the new ‘Wowza’ player).

Of course shortly after, the City Attorneys office came in to try to rain on Mr. Kessler’s parade, responding directly to Mr. Gibbs:

Dear Adam-

I want to respond to Mr. Kessler’s mistaken representation of the law in his email to you dated June 15, 2020.

On June 8, 2020, Mr. Kessler made a public record request for a copy of PPB’s live stream through YouTube on June 6, 2020.  At the end of the livestream, YouTube permits the retention of the video.  As required by ORS 181A.250, PPB does not retain the video.  See also Directive 0635.10 Crowd Management/Crowd Control.

PPB was livestreaming so the community could understand what was occurring at the protest. However, PPB was not permitted to retain the video because PPB was not recording acts that they had probable cause to believe were criminal.  ORS 181A.250 states that no law enforcement agency may collect or maintain information about political activities of a group “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.”  ORS 181A.250.  This statute provides the legal authority for PPB to not retain the livestream in question.

ORS 181A.250 is designed to protect the free exercise of first amendment rights for those protesting.  PPB has taken steps to ensure it only retains video of suspected criminal activity.  PPB does not retain video of a person engaged in the lawful exercise of their first amendment activities.  This clear legislative intent evidenced in ORS 181A.250 on the retention of these records required PPB to not keep copies of the livestream in question.

The City did not have the requested records when the public records request was made so the City and PPB’s response was legally appropriate.

Please let me know if you have any further questions or need an additional response.

JENIFER JOHNSTON | Senior Deputy City Attorney (She/Her)

If I’m following the idea right, her stance is that “we would only keep these videos if the law allowed us to”, while simultaneously allowing the ‘community [to] understand what was occurring’. To my not-legal perspective, that sounds to me like the Police department was trying to play Press and Police at the same time. There were press already on the ground working the story that could educate the public already. But Mr. Kessler went a few steps further in a quick follow-up:

Dear Adam,

Here’s the rub: “At the end of the livestream, YouTube permits the retention of the video.”

The fact that YouTube can permit “retention” of the stream means that a copy exists to be retained.

It would be one thing if the video were broadcast ephemerally like radio waves. That is not how YouTube works.

When a viewer visits a YouTube livestream in process they can return to the beginning of the feed, rewind, or skip around. The viewer can do this because YouTube maintains a recording of the entire stream, which is in the livestream operator’s control. As Ms. Johnston said, at the end of the stream the user has a choice to leave in place or delete (a.k.a. “not retain”) the entire video. The choice to delete is a crime, even if it was also illegal, as Ms. Johnston pointed out, for the City to create the recording in the first place.

Since Ms. Johnston raised 181A.250, I’ll explain the rest of the game the City Attorney’s office is playing with our civil liberties.

PPB Directive 0635.10 4.3 (https://www.portlandoregon.gov/police/article/649358) reads in relevant part:

“4.3. Demonstrations may be broadcast to Bureau facilities by live video feed…. In accordance with ORS § 181A.250, the broadcast will not be recorded unless and until a member has reasonable suspicion that a crime is being committed, at which time the member will communicate this information up the chain of command to the IC, who will make the decision whether to authorize recording to commence. If a possible crime is captured on the recording, that recording will be forwarded to Bureau’s Detective Division for investigation and the District Attorney’s Office, if requested. A copy will also be furnished to the City Attorney’s office for the purpose of evaluating civil liability based on crimes charged or arrests made….”

The legal fiction the City Attorney would like us to accept is that “recording” is the same as “retaining at the end of a feed.” This means that the police can record a many-hours-long political event with the knowledge that at any point they can unilaterally decide to either immediately delete the file or retain the file.

Ms. Johnston’s position allows a single unelected official to determine whether a many-hours-long police video of political activities should be retained or deleted. A bad actor could easily abuse the City’s interpretation to gather surveillance on political opponents while destroy any unfavorable evidence of government misconduct.

Obviously most of this is outside of your scope of review, but I think you should have a view of the whole board before deciding the narrow questions:

Is a recording stored by Portland Police on the hard drive on a YouTube server during an hours-long livestream (of a significant political event) a public record?

Does a person commit the crime of Tampering With a Public Record if: at the end of a livestream — when recording has concluded and the only extant copy of the video (and associated chat log) is stored on a YouTube server within that person’s control — the person instructs YouTube to discard rather than retain the recording file.

Best regards,
Alan

Now, I haven’t done livestreams using desktop processes often, but I went ahead and attempted to duplicate this experiment. I suspect the process he outlined used the old Classic streaming platform YouTube uses, because as you can see here, on the new Live Studio, when you end a stream, it doesn’t even give you the option to retain or delete. It just retains it by default.

Eventually, the county DA finally responded officially:

Mr. Kessler –

It appears there is no dispute that the requested records do not exist at present. As such, you are correct that you have no administrative remedy. My office’s authority (outside of fees issues) extends only to determining if records in the possession of a public body are exempt from disclosure or not. We have no adjudicatory authority over the decision to retain or not retain in the first place.

As to your request for a criminal investigation, this is a request that we get not infrequently in various contexts. To those requests the response is the same: The district attorney’s office does not perform criminal investigations. Rather we review investigations that are performed by other agencies and determine if they can and should be prosecuted criminally. A report of a suspected crime should be made to a law enforcement agency with jurisdiction over the area where the offense occurred. In this case that would be the Portland Police Bureau, Multnomah County Sheriff’s Office, or the Oregon State Police. Complaints of police misconduct pertaining to the Portland Police can also be routed to the Independent Police Review.

Adam Gibbs

Of course, those who have been around this block a few times will recognize that a) no attempts seem to have been made to contact YouTube to see if videos could be recovered due to the litigation hold, and b) claims of the police committing crimes being referred to the police for investigation is laughable. Even referring to the County Sheriff or the State Police would be problematic because they all have incentive to deny wrongdoing. And we know that the IPR is, even if they want to support what should be a violation of the law, can easily be outvoted by the police and mayor.

And of course, a little while after that they moved to Wowza as their content platform on at least 5 different instances that I know (July 13, 16, 17, 18 and 26).

This case was just recently filed in County Court, but it already has an order preventing the police from livestreaming or documenting without probable cause. It is one of a growing number of cases I plan to be following over the coming months and years.