1. What is the Oregon TITAN Fusion Center doing that is illegal?

The Oregon TITAN Fusion Center is a pervasive domestic “intelligence” program run by the Oregon Department of Justice (“OR DOJ”) that regularly spies on Oregon residents.

The OR DOJ is an executive agency. It is a basic principle of administrative and constitutional law that an executive agency cannot engage in any activity unless the legislature has given it the power to do so. But there is no law in the entire state of Oregon that authorizes TITAN’s spying operations.

Although that alone makes TITAN illegal, TITAN’s operations compound this initial offense by regularly infringing on the constitutional and statutory rights of Oregon residents. This is the predictable result of an intelligence program operating without legislative oversight.

In just the last few years, TITAN has:

• Surveilled and issued baseless reports on environmental advocates peacefully (and successfully) protesting Jordan Cove LNG, a $10 billion fossil fuel pipeline and export terminal;
• Coordinated with a public relations firm hired by the private corporation behind the fossil fuel project;
• Used surveillance software to track the physical location of social media users posting the “Black Lives Matter” hashtag, resulting in the promulgation of a threat assessment report against the OR DOJ’s own Director of Civil Rights;
• Monitored and prepared “criminal intelligence” reports on the Women’s March and similar political demonstrations.

2. What is a fusion center?

Fusion centers are domestic intelligence hubs that were first conceived by the U.S. Department of Homeland Security in the aftermath of the 9/11 Commission Report as a tool for combating terrorism. Over the past two decades, however, most fusion centers have expanded their intelligence priorities to include “all crimes and all hazards.” This change essentially sweeps any activity deemed suspicious into the fusion centers’ purview.

Fusion centers operate by collecting, analyzing, retaining, merging, and disseminating “intelligence” information that they compile from a wide range of sources, including law enforcement, social media, and anonymous tips from the public, to name only a few. Fusion centers share this information with federal, state, tribal, and local law enforcement agencies, public agencies (such as utility and public health agencies) and even private companies.

In addition to raising a host of civil rights and privacy concerns, fusion centers have proven to be ineffective. A two-year bipartisan investigation into fusion centers by the United States Senate found that “fusion centers forwarded ‘intelligence’ of uneven quality – oftentimes shoddy, rarely timely, . . . occasionally taken from already-published public sources, and more often than not unrelated to terrorism.” In fact, after reviewing thirteen months of reports from dozens of fusion centers, the investigation “could identify no reporting which uncovered a terrorist threat, nor could it identify a contribution such fusion center reporting made to disrupt an active terrorist plot.” (See also Cyrus Faviar, “20 years after 9/11, ‘fusion centers’ have done little to combat terrorism,” NBC.com, available here.)

3. What is the goal of this lawsuit?

First and foremost, the goal of this lawsuit is to stop TITAN’s unlawful activities. TITAN shouldn’t exist at all unless the people, acting through the legislature, authorize it to exist.

If the legislature does pass a law that authorizes TITAN’s operations, though, that law must include appropriate guardrails to ensure that TITAN does not continue to spy on Oregon residents exercising their constitutional rights. Law enforcement agencies must be accountable to the communities they are supposed to serve, not the interests of private corporations.

Finally, in bringing this suit, Plaintiffs hope to bring transparency and accountability to a widespread system of illegal government surveillance, and to protect their communities and fellow advocates from becoming TITAN’s next targets.

4. Who is bringing this case?

The Plaintiffs in this case are four social justice, indigenous rights, and environmental advocates. They are among the many people improperly surveilled by TITAN. TITAN has targeted the Plaintiffs for surveillance because of their peaceful and successful opposition to Jordan Cove LNG—a $10 billion liquefied natural gas pipeline and export terminal the Pembina Pipeline Corporation attempted to build in southwestern Oregon.

Plaintiff Ka’ila Farrell-Smith is a member of the Klamath Tribes and is an internationally-recognized artist, writer, and environmental and indigenous rights activist. She has long served as a leader in the community movement opposing Jordan Cove LNG. In 2019, Governor Kate Brown invited Ms. Farrell-Smith to showcase her art in the Governor’s Salem office. Ms. Farrell-Smith declined the invitation, which was extended as part of the prestigious “Art in the Governor’s Office” program, citing Governor Brown’s failure to take a stand against Jordan Cove LNG.

Plaintiff Rowena Jackson is a Klamath graphic designer, writer, and ambo (“water”) protector. Ms. Jackson has long served as a leader and spokesperson for indigenous and broader community opposition to Jordan Cove LNG. As part of her advocacy against the pipeline and export terminal, Ms. Jackson provided public testimony in the form of poetry on multiple occasions. You can see her delivering her poem before the [FORUM] here. [hyperlink]

Plaintiff Sarah Westover is a community organizer and social justice advocate and, from 2016 to 2020, was an elected member of the Phoenix City Council. As both an organizer and city councilor, Ms. Westover drafted articles, spearheaded peaceful protests, and organized public education campaigns opposing Jordan Cove LNG.

Plaintiff Francis Eatherington has been fighting for environmental justice for over forty years. She is the president of the Oregon Women’s Land Trust, a nonprofit based in Southern Oregon focused on ecological preservation and providing women access to nature.

5. Who are the lawyers?

The plaintiffs are represented by the nonprofit Policing Project at NYU School of Law and the law firms Cleary Gottlieb Steen & Hamilton LLP and Davis Wright Tremaine, which are providing their services pro bono.

The Policing Project at NYU School of Law was founded to bring democratic accountability to policing so that it better matches American ideals and community needs. Learn about the Policing Project at www.policingproject.org.

With more than 1,100 lawyers across 17 offices around the world, Cleary Gottlieb has been committed to legal excellence for 75 years. Founded in a spirit of inclusiveness, personal and professional responsibility, compassion for the needs of others, and dedication to improving the communities in which we live and work, Cleary Gottlieb is fully committed to the duties of good global citizenship. Each year, Cleary lawyers provide over 75,000 hours www.clearygottlieb.com.

Davis Wright Tremaine was founded on three pillars: ability, integrity, and service to others. The firm is nationally recognized for its high-impact pro bono work in areas such as voting rights, immigrant rights, and First Amendment rights. Learn more at www.dwt.com/probono.

6. Who are the Defendants?

The Defendants in this case are the individuals and entities who run TITAN. TITAN is operated by the Criminal Justice Division of OR DOJ, so the Defendants are: (1) the Oregon Department of Justice; (2) Attorney General Ellen Rosenblum (the head of OR DOJ); and 3) the Chief Counsel of the Criminal Justice Division, Michael Slauson.

Both Attorney General Rosenblum and Chief Counsel Slauson are sued in their “official capacities.” In other words, the lawsuit names them as Defendants because their positions in the government make them responsible for TITAN’s operations.

7. Why file in Oregon if there are 80 fusion centers in the United States?

Although all 80 fusion centers in the National Fusion Center Network receive federal funding, each center is operated fully by the state or city in which it is housed.

Oregon currently operates a fusion center that is exceptionally problematic on at least two fronts.

First, there is no statute in the entire Oregon Statutory Code that authorizes the Oregon Department of Justice to operate a fusion center. Nor is there a single regulation in the Oregon Administrative Code that even mentions a fusion center. In contrast, many other states have a law that authorizes the agency that runs their fusion center to do so. For example, the New Hampshire legislature has passed a detailed statute that places the fusion center within the NH Department of Safety, outlines the center’s purpose and duties, establishes an advisory committee, lists training and security requirements for fusion center data and personnel, requires audits, and places guardrails on the center’s “intelligence functions.”

Second, although civil rights and privacy activists have long expressed concerns about the harms fusion centers can cause, the Oregon TITAN fusion center has been spying regularly on law-abiding citizens engaging in constitutionally-protected activity. (See FAQ #1.)

8. If I obey the law, why should I care?

TITAN regularly conducts surveillance on law-abiding Oregon residents, including on individuals exercising their constitutionally-protected rights to free speech and assembly. (See FAQ #1.) And, because TITAN is not subject to legislative oversight or accountability, there is no mechanism for ensuring that the information contained in TITAN’s databases—information that often is distributed to other law enforcement agencies and, in some circumstances, even private companies—is accurate. This is particularly concerning given that a common source of information for fusion centers is anonymous, uncorroborated tips from the public.

At its heart, though, this case is about our democracy. Everyone should be concerned when policing agencies defy the democratic process and assume powers that the people, through the legislature, have not granted them.

9. Won’t the defendants say that the fusion center is necessary to protect public safety?

First, according to a two-year bipartisan investigation by the United States Senate, among other reports, fusion centers are ineffective at protecting public safety. (See FAQ #2.)

Just as important, though, Oregon is a democracy, not a surveillance state. Policing agencies cannot use undefined “threats to public safety” to spy on Oregon residents. If the people decide that the State of Oregon should have some version of a fusion center, then the legislature can pass a statute that authorizes a fusion center and puts appropriate guardrails and oversight mechanisms in place to ensure it does not violate the rights of Oregon residents.

10. How can I get involved?

If you are interested in getting involved, or if you have information that you believe is relevant to the case, please contact Farhang Heydari (farhang.heydari@nyu.edu) or Annie Hudson-Price (annie.hudsonprice@nyu.edu). Please note that no attorney-client relationship is formed by contacting us. For media inquiries, please email press@policingproject.org.