Four local women sue state over secret surveillance

·6 min read

Jun. 1—A little-known state intelligence agency is the subject of a lawsuit filed by four Southern Oregon women — including former Phoenix City Councilor Sarah Westover — who peacefully protested the proposed Jordan Cove natural gas pipeline.

Filed late last year against the Oregon Attorney General's office, the suit claims Oregon TITAN Fusion Center unlawfully tracked and created files on Westover, Oregon Women's Land Trust Rosemary Francis Eatherington and Klamath Tribes members Ka'ila Farrell-Smith and Rowena Jackson because of their peaceful protests against the proposed pipeline.

In the months since Dec. 14, when the suit was filed in Marion County Circuit Court, the state attorney general's office has claimed they have "no records to destroy" regarding the four women. Attorney General Ellen Rosenblum's office, however, is fighting language in the suit over purging TITAN Fusion Center records of where the women worked.

TITAN Fusion Center — short for Terrorism Information Threat Assessment Network — in Salem is among 79 TITAN centers across the United States according to the National Network of Fusion Centers website. Oregon's TITAN Fusion Center combines state and federal law enforcement resources with a mission to "protect Oregon citizens from terrorist and criminal activity by providing an all-crimes criminal information clearinghouse supporting by multiple agencies," according to the program's website.

The lawsuit draws from a report, titled "Revealed: Anti-terror center helped police track environmental activists," released Oct. 2, 2019, by the British news agency The Guardian. The report claims Oregon TITAN Fusion analysts investigated Jordan Cove opponents at least twice in 2018 and generated at least two referenced Suspicious Activity Reports surrounding peaceful protests. The Guardian article made those discoveries after obtaining emails from the Coos County Sheriff's Office in a records request.

Westover, Eatherington, Farrell-Smith and Jackson claim there was never any evidence of criminal wrongdoing when they organized protests. Coverage of pipeline protests in Mail Tribune archives never described anything other than peaceful demonstrations.

"None of the plaintiffs engage in or support, nor have ever engaged in or supported criminal activity that would warrant Oregon DOJ's attention or fall within Oregon DOJ's delegated powers," the lawsuit states.

The lawsuit claims the full extent of their surveillance "remains unknown to this day," in part because Oregon DOJ refused to comply with a similar public records request concerning the surveillance of Jordan Cove protesters.

Citing a since-settled 2016 lawsuit filed by Oregon DOJ's then Director of Civil Rights, Erious Johnson, Westover and others claim it's "only one example of TITAN's surveillance of social justice advocates engaging in constitutionally protected activity." Johnson claimed the Oregon TITAN Fusion Center put the civil rights lawyer in a formal threat assessment report because he used the #blacklivesmatter hashtag on Twitter.

Johnson's lawsuit claimed Oregon TITAN Fusion Center, on Sept. 30, 2015, used a software program called Digital Stakeout to search for the Black Lives Matter hashtag when combined with #f---thepolice in the Salem area. However, Johnson's personal Twitter profile photo appeared in the Oregon TITAN Fusion Center searches.

The legal adviser never used any anti-law enforcement language in his posts, although Oregon TITAN Fusion agents flagged Johnson for a post on Martin Luther King Jr. Day 2015 in which Johnson posted the logo of the 1980s rap group Public Enemy — which features the silhouette of a man wearing a cap caught in a crosshair — and the caption "Consider yourselves...WARNED!!!"

An agent reportedly flagged the image as "threatening to the police" and flagged it to his supervisor, according to Johnson's suit. Two supervisors recommended a threat assessment report and had at least one closed-door session with Rosenblum, among other leadership at Oregon DOJ.

Johnson and the state settled that lawsuit in October 2017, with Johnson agreeing to separate from his employment with Oregon DOJ effective Oct. 13, 2017, and the state agreeing to pay him $205,000, according to U.S. District Court records.

Westover, an elected Phoenix city councilor between 2016 and 2020 who has also worked as an organizer for the nonprofit Rogue Climate, claimed she and the three other women grew "concerned that their phones were bugged, became suspicious of any new potential supporters of the movement and became distrustful of innocuous interactions with members of their community" after learning from The Guardian report that the state's TITAN Fusion Center was monitoring and logging their activity.

The lawsuit, filed with the aid of Portland law firm Davis Wright Tremaine, LLP, claims the information the fusion center collects violates state law, namely Oregon Revised Statute 181A.250. The law prohibits law enforcement agencies from collecting or maintaining political, religious or social views, associations or activities of any individual or group unless there's grounds to believe the suspect may be involved in criminal conduct.

"Plaintiffs are entitled to express their social and political views and to advocate on behalf of their communities and ancestral lands, free from the unlawful, obfuscated and intimidating surveillance operations of a secretive government entity that acts wholly without legislative authorization," the lawsuit states.

The lawsuit seeks the following: A Declaration that the Oregon TITAN Fusion Center exceeds the statutory authority of the DOJ and is thus operating "ultra vires" or beyond the state DOJ's legal power, an order requiring the Fusion Center to cease activity that exceeds their scope, an order compelling the state Fusion Center to "destroy and expunge all records related to Plaintiffs and the organizations with which they work" and an award of Westover and the three other women's attorney fees, costs and expenses.

Court records show Oregon DOJ has not directly responded to the allegations; however, in March and April filings the state claims the women lack legal standing as individuals to seek expungement from the varied list of organizations each of the four women have been associated with, including Rogue Climate, Signal Fire, Klamath Tribes Administrative Office, Phoenix City Council, the No-LNG Exports Coalition, Oregon Women's Land Trust, Rogue Action Center and Real Solutions Coalition.

Westover's Portland-based lawyer, Tim Cunningham, claimed in an April 4 filing that the state's dispute is "meritless" because the lawsuit is about how TITAN's surveillance of the women has affected them personally — not how it affected the organizations.

"But more fundamentally, this motion suggests Defendants (the Oregon Department of Justice) have failed to comprehend or confront their unlawful conduct and the harm it has caused," Cunningham wrote.

The most recent filing in the case was a May 19 request for a protective order from the state seeking to protect confidential records gathered in the lawsuit from becoming public. Marion County Circuit Court records show the most recent hearing in the lawsuit was a May 20 status check conducted via Microsoft Teams.

Circuit Court Judge Audrey Broyles is scheduled to rule on the state's motion and proposed protective order at an Aug. 18 hearing.

Reach web editor Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTwebeditor.