Policing Project wins appeal reviving challenge to Oregon’s domestic intelligence hub
In a significant win for the NYU Law Policing Project and its ongoing efforts to promote effective regulation of policing technology, an Oregon appellate court revived a lawsuit challenging the state’s domestic intelligence unit. On October 21, the Oregon Court of Appeals unanimously reversed a trial court ruling that had previously dismissed claims that the Oregon Department of Justice (ODOJ) operates the Oregon TITAN Fusion Center—a state-managed intelligence and information-sharing hub—beyond the authority the state legislature has granted it.
The Policing Project, founded and led by Jacob D. Fuchsberg Professor of Law Barry Friedman, represented the plaintiffs alongside Davis Wright Tremaine, the Civil Liberties Defense Center, Cleary Gottlieb Steen & Hamilton, and Washington Square Legal Services.
The plaintiffs included environmental and Indigenous rights advocates, including two members of the Klamath Tribes and a former Phoenix, Oregon city councilor, as well as the activist organizations Rogue Climate and 350 Eugene. All had campaigned against Oregon’s proposed Jordan Cove liquefied natural gas pipeline. Their complaint alleges that the Oregon TITAN Fusion Center monitored their political activity and named them in suspicious activity reports and threat assessments shared with other agencies without any evidence of criminal wrongdoing. The suit also alleges the center worked with a specially formed Liquid Natural Gas unit within the Coos County Sheriff’s office that had been funded by the pipeline’s developer, and points to an email in which a deputy told a Fusion Center analyst he was tracking attendance at an anti-pipeline rally despite a “lack of a criminal nexus.”
A Marion County judge had earlier dismissed the suit, reasoning that a collection of statutes, legislative funding, and a 2011 letter from then-Governor John Kitzhaber together authorized the Fusion Center actions. The appellate panel rejected each point. The statutes that ODOJ cited, the court wrote, “do not bear the weight of the alleged activities.” Budget appropriations are no substitute for legislation conferring power, and the governor’s letter, written years after the center began operating, directed nothing. Invoking the maxim that legislatures do not “hide elephants in mouseholes,” the court said the center’s operations, as alleged, “seem elephantine in comparison to the authorities cited.” Federal encouragement, it added, “does not enlarge the powers conferred on a state agency by state law.” The case now returns to the trial court.
“This is a huge win for a new way of thinking about how we regulate policing,” says Friedman. “Instead of asking only whether police violated someone’s rights, we ask whether they were authorized to take the challenged action in the first place. When legislatures gave police general power to enforce the law decades ago, they surely weren’t handing over the power to use AI and enormously powerful technologies to conduct surveillance of people suspected of nothing.”
According to Friedman, the approach rests on bedrock principle. “It’s one of the most basic constitutional ideas we have: The executive can’t act without legislative authorization,” he says. “Trial judges are sometimes reluctant to open the door to discovery on an unfamiliar theory, let alone shut down a police program, so they look to appellate courts for the go-ahead. This is the first of our authorization cases to reach an appellate court, and now they have it.”
Democratic authorization has been the Policing Project’s organizing idea since Friedman founded it in 2015. Conventional police regulation, he has argued, works after the fact, through lawsuits once harm has occurred. The project pushes instead for front-end accountability: Legislatures and the public should decide in advance what police may do. Friedman laid out the case in his 2017 book Unwarranted: Policing Without Permission.
The Oregon case is the first appellate test of that theory in the Project’s litigation docket. A challenge to the South Carolina State Law Enforcement Division’s license plate reader network is pending on appeal. In June the project joined the New York Civil Liberties Union, the Knight First Amendment Institute at Columbia University, and Freshfields in filing Umemoto v. Westchester County Police Department, a class action challenging a Westchester County, New York network of nearly 600 license plate readers that has amassed some 1.6 billion vehicle scans without authorization from any elected body.