Jason Bernert/OPB

In early 2015, investigators in the Oregon Department of Justice’s criminal justice division were tasked with finding new software that would cull social media sites for criminals and terror threats around the state.

By the end of 2015, Oregon Attorney General Ellen Rosenblum would forbid her employees from using such software after one investigator used it to conduct a threat assessment on another employee, Erious Johnson Jr.’s social media account.

Among the more than 90 items collected as evidence in the threat assessment, the investigator found political cartoons, screen shots of football games and a picture of Johnson’s grandmother.

At the heart of Rosenblum’s decision are the actions of a criminal investigator — aided by his supervisors and colleagues — who collected data on Johnson. According to the report prepared by employment attorney Carolyn Walker of the Portland law firm Stoel Rives, this unidentified investigator used a trial version of the software Digital Stakeout on Sept. 30, 2015. Digital Stakeout takes search terms and sorts them by the geographic location of the social media user.

The investigator searched the term “black lives matter,” in part, because he believed supporters of the movement were threatening police. The report shows the DOJ issued a bulletin to law enforcement agencies and others on “#BlackLivesMatter” on Sept. 10, 2015, although it’s unclear what the bulletin addresses, as it’s been redacted by the state.

“That I believe is the reason he chose that search term,” Rosenblum told OPB. “[The investigator] understood there to have been threats made in connection with [Black Lives Matter].”

After searching for “black lives mater,” and limiting the search to Salem, the investigator found Erious Johnson’s Twitter feed.

Recognizing that Johnson worked in the DOJ, and believing that his tweets protesting police brutality — and one featuring the logo of rap group Public Enemy — were instead active threats against law enforcement, the investigator told his supervisor, Dave Kirby, of the findings.

In turn, Dave Kirby told his boss Darin Tweedt about Johnson’s social media account. Tweedt, who at the time headed the DOJ’s criminal division, alerted his supervisor, Deputy Attorney General Fred Boss.

According to the report, “Boss approved this recommendation and [name redacted] was then directed to write a report.”

Dated Oct. 1, 2015, the unidentified investigator wrote that he observed “numerous anti-police posts and pictures.”

“I believe,” the investigator wrote, “based upon my observation of the account, the owner and poster of the Tweets to this account is an attorney within the Oregon Department of Justice.”

That report eventually ended up on Rosenblum’s desk. Reviewing the memo, Rosenblum “expressed extreme displeasure” over the report, as she believed the agent “engaged in racial profiling.”

Johnson is black, while the investigator and the supervisors are reported to be white.

Johnson has filed a civil rights complaint with the state labor board and notified the state that he may sue them in the future. 

As for Rosenblum, she described acting almost as a “whistleblower” when she found out.

“From the very beginning, I put a stop to this,” Rosenblum told OPB. “I ordered training. I attempted to make sure this would never happen again. I’m the one who disclosed it. There wasn’t anybody else who told Mr. Johnson and who told the public.”

Yet, that raises the question: Why does the Attorney General have to act as a whistleblower in the agency she oversees?

Oregon ACLU Believes State Laws Were Broken

One of the top concerns for the Oregon chapter of the American Civil Liberties Union is whether the state is teaching investigators to “break state laws.”

The group points to one of the exhibits from the human resources investigation as the cause of that concern.

In a presentation created by the Department of Justice titled “How to Lawfully Collect Protected Information,” there is a slide which encourages investigators to get “creative.”

“If information you are collecting involves a religious, social or political view, activity or association you MUST have reasonable suspicion of a crime related to the subject,” the slide reads. “Use creativity and articulate your reasonable suspicion in some way. Think of a wide variety of crimes to form the basis of collecting information you need.”

Oregon ACLU Legal Counsel Mat dos Santos told OPB that message encourages investigators to break a state law that prohibits the collection of information based on social or political views.

Attorney General Ellen Rosenblum in Salem, Oregon, on Feb. 17, 2015.

Attorney General Ellen Rosenblum in Salem, Oregon, on Feb. 17, 2015.

Alan Sylvestre/OPB

“They’re saying use creativity to get this thing done that we want done,” dos Santos said. “In order to engage in this kind of surveillance, you have to have identified concrete, credible criminal activity before you engage in this sort of dragnet surveillance and start dredging through people’s social media accounts.”

In November, Rosenblum told OPB she was “very concerned” at least one state law was broken during this search of Erious Johnson’s social media accounts, but has not commented yet whether the DOJ investigator violated state statutes.

“I’m sure there are some questions I will have, and I will follow up with those,” Rosenblum said.

At The Core, A Question Of Incompetence

The investigator at the center of the probe — along with colleagues who encouraged him to file his concerns — works at the TITAN Fusion Center, which is designed to stop criminal activity and monitor public safety threats across the state through the collection of data, sharing information between federal, state and local law enforcement agencies.

Rosenblum said the center is essential to protecting the public.

“The Pendleton Round-Up, I know they’ve used the Fusion Center to do threat assessments to ensure safety of those who come to Pendleton for the event,” Rosenblum said. “Another would be the track meets. I know we have participated there to ensure the safety of the participants and the community.”

While the DOJ is stung by allegations of institutional racism and state law violations at the Fusion Center, Oregon Attorney General Rosenblum is also answering whether her state’s criminal investigators are savvy and smart enough to keep Oregon safe.

The human resources report shows the criminal investigator who initially conducted the search showed a lack of internet savvy.

Along with searching for “black lives matter,” the investigator — who has been employed with the department since 2010 — searched for other terms such as “white power,” “hells angels,” and “f—- the police,” in hopes those terms would lead him to criminals posting about their activity on social media.

Perhaps most intriguing is the investigator’s search for “OMG,” the ubiquitous internet shorthand for “oh my god.”

The investigator hoped he would find bad acting bikers with that search, as “OMG” is also law enforcement shorthand for “outlaw motorcycle gangs.”

Along with confusing the Public Enemy logo for an immediate threat against the police, one of the investigator’s colleagues mentioned in the report stated that she was aware of Black Lives Matter in the context of “blacks being killed by police.”

“She did not feel someone in Mr. Johnson’s position should be tweeting such messages,” the report reads, and she “did not see anything wrong with the search conducted [by the investigator].”

Yet, even though she, the investigators, and the supervisors — including the Deputy Attorney General — signed off to alerting Rosenblum about Erious Johnson’s tweets, not one of them asked the Civil Rights Unit director about his Twitter page.

“There were some people in my inner circle who were well aware of Mr. Johnson’s tweets, and may have even followed them, and didn’t have concerns about them,” Rosenblum said.

The human resources report commissioned by Rosenblum suggests that some members of her criminal investigation team are inept at deciphering true, actionable threats from satire and family pictures. The report also shows a department of individuals who are unaware of social norms on the internet and relatively free of oversight from supervisors.

“The Intelligence Unit as a whole would benefit from clear and consistent leadership and direction,” the report prepared by employment attorney Carolyn Walker reads, “specifically with respect to electronic monitoring of social media.”  

Rosenblum declined to address whether the staff at the Fusion center are competent, instead referring to future diversity and bias training the DOJ is planning. 

But the ACLU’s Mat dos Santos is concerned about what he described as “a culture of bias.”

“The report reveals this intense culture of bias,” dos Santos said. “We think it lends itself to racial profiling. We can’t just say it’s basic incompetence or it’s just racial bias.”

“I’m not sure we can untangle them,” he added.