At a recent discussion about government surveillance hosted by the City Club of Portland, Senator Ron Wyden and U.S. Representative Earl Blumenauer were asked what role states must play in protecting Americans from the ever-increasing domestic spying activities by government authorities. While Wyden and Blumenauer deserve praise for their work to bring greater transparency to the NSA surveillance programs, I am disappointed that Blumenauer’s response to this question was essentially that this is a federal issue and there is nothing that states can do. Quite the opposite, now is a critical time for states to take leadership to advance and protect the privacy rights of their citizens.
Brought about primarily by disclosures from now-exiled Edward Snowden, recent revelations about massive surveillance operations show how the U.S. Government has been collecting and storing bulk phone and email records of innocent Americans for years, primarily under secret interpretations of the PATRIOT Act that was passed in the wake of 9/11. This collection has been happening without our knowledge and without any information shared with the public about the legal authority that the government is operating under to do so.
We also know that here in Oregon, our government operates with this same “collect it all” approach. At least a handful of law enforcement agencies have begun using Automated License Plate Readers (ALPRs) that scan as many as thousands of plates per minute to find out if drivers on the road are driving a stolen car or eluding an outstanding warrant. The Portland Police Bureau reports that they keep this license plate data, which includes location and time of collection, for up to four years.
Beginning in 2011, the Oregon Health Authority began tracking through the Prescription Drug Monitoring Program prescription drug records of Oregonians taking any Schedule II, III, or IV drug. These private medical records are continually reported to the agency and are accessible by doctors and pharmacists who certify that they are serving a patient whose records are in the PDMP.
Anyone looking for a job with certain public employers or needing a professional license for their job must submit their fingerprints to the state, which passes on prints to the FBI, for a criminal background check.
It would be a mistake to ignore these activities – just a few examples of many in Oregon – or to believe that there is a not a connection to larger-scale spying programs on the federal level. Purchase of ALPRs by local law enforcement agencies is frequently supported by grants from the Department of Homeland Security, raising concerns about what access the federal government is granted to tracking records of the comings and goings of innocent Oregonians. The federal Drug Enforcement Agency is currently engaged in a battle in federal court against the State of Oregon and the ACLU to defend the DEA practice of accessing PDMP prescription records without a search warrant.
Fighting regular efforts by state legislators to send job seekers’ fingerprint data to the FBI’s growing biometric data collection programs (for example, Next Generation Intelligence), the ACLU is working hard to preserve current state laws that prohibit retention of innocent Oregonians’ fingerprint records.
Oregon has long been unique in its commitment to protecting privacy above and beyond the bounds of the U.S. Constitution or examples from laws in other states. States are not hamstrung by the federal government’s ownership over national security, as Congressman Blumenauer’s answer might suggest. Rather, state legislatures can and should exercise meaningful control over the private information they collect, the parties with whom they share it and the degree of disclosure to the public of their activities. And Oregon should continue to lead the way.
Just this past session, legislators in Salem set forth restrictions on the use of unmanned aerial vehicles (aka, “drones”) by law enforcement to prohibit mass or suspicionless aerial surveillance with drones. The ACLU will be looking to Oregon legislators in the coming sessions to mandate strict guidelines on the use of ALPRs and to better prevent fishing expeditions by law enforcement into private online communication records including in email and social media accounts.
The entanglement between federal and state surveillance operations is more significant than the Congressman Blumenauer’s suggests. Not only is there a role for states to play in the national conversation, it is incumbent upon us to urge our legislators to participate.
Becky Straus is the Legislative Director at the American Civil Liberties Union of Oregon.
Straus directs ACLU’s advocacy and lobbying efforts before the Oregon Legislature and coordinates ACLU testimony before public bodies on the full range of civil liberties and civil rights issues in Oregon. She is also ACLU’s primary lobbyist on City of Portland matters.
