Electronic communication – through email, cell phones and social media – has increasingly eclipsed postal mail and other hard-copy methods as our primary means of communication. Unfortunately, some government agencies interpret our outdated privacy laws to allow them to intercept and access a treasure trove of information about who you are, where you go, and what you do – the information being collected by search engines, social networking sites, and other websites every day.
Law enforcement agencies deploy license plate reader surveillance technology in Oregon without adequate or consistent privacy restrictions. Many agencies retain the location information and photograph of every vehicle that crosses the camera’s path, not simply those that are associated with a criminal nexus.
Data stored on a smartphone or other portable electronic device can paint a near-complete picture of even the most intimate and personal details of our lives. Before the age of smartphones, it was impossible for police to gather this much information about a person’s communications, historical movements, and private life.
Today, police officers routinely search the contents of a person’s cell phone during an arrest or after a cell phone seizure. With increasing frequency, officers perform such searches with the aid of electronic devices that strip a cell phone of its data on the scene. Such searches are a highly concerning invasion of privacy and are, in our opinion, unconstitutional.
A companion bill to HB 2654, which prohibits employers from compelling access to an applicant or employee’s social media account, SB 344 extends this prohibition to Oregon colleges and universities, restricting their access to applicants’ or students’ private social media accounts.
We were pleased to team up with Representative John Huffman (R-The Dalles) to advocate for the passage of HB 2710, one of our priority bills, to put in place clear guidelines for law enforcement on the use of unmanned aerial vehicles (UAVs)– more commonly known as “drones.”
We worked with Representative Margaret Doherty (D-Tigard) to draft and introduce HB 2654, a priority bill of ours to update digital privacy protections for public and private employees in Oregon. A growing number of employers nationwide are demanding that job applicants and employees hand over the passwords to their private social networking accounts such as Facebook. Such demands constitute a clear invasion of privacy.
In November 2012, a student at a Texas school was kicked out of school for failure to wear a radio frequency identification (RFID) tag that the school had distributed for tracking attendance. RFID tags are tiny computer chips that are more commonly used to track everything from cattle to commercial products moving through warehouses. The National ACLU has been commenting on the use of RFID technology since 2005, concerned that privacy and data security issues may well outweigh any potential benefit.
Hearing of the Texas example, Representatives Phil Barnhart (D-Central Lane and Linn Counties) and Lew Frederick (D-Portland) and Senator Betsy Close (R-Albany) were concerned, as well. They introduced HB 2386 to protect the privacy of Oregon students. The bill outlawed completely the use of RFID location tracking of students in Oregon schools.
The Oregon Prescription Drug Monitoring Program (PDMP) was passed in 2009 over the ACLU’s strong objection and set up a mechanism for the government to collect, store, and track information about Oregonians’ prescription drug records for Schedules II, III, and IV drugs.
The ACLU has always believed that information we provide in exchange for a specific purpose, service or benefit should only be used for that purpose unless we consent to an additional use of our personal information. Any data collected, maintained and stored by the government, especially data about our private medical history should be as secure as possible and access to the data strictly limited.
Counter to these values, SB 470 was introduced this session with a long list of provisions to expand the program – both in the number of entities with access to the data collected and the scope of information collected.
UPDATE: July 25, 2012 - After first adopting an amendment from Commissioner Amanda Fritz to require the Portland Police Bureau (PPB) to report back to Council on an annual basis about their use of Automatic License Plate Recognition cameras (ALPR), the Portland City Council this morning approved PPB’s request to add a new SUV to their fleet with an ALPR.
UPDATE - June 6, 2012 - After a second reading and with no discussion, today the City Council approved the proposal relating to surveillance cameras. Commissioner Fritz voted no on the proposal, citing concerns that unless the rest of the Council would join her in adopting an amendment to the proposal that would require annual reporting on the use of surveillance cameras by the Portland Police, she could not support their increased use. We continue to advocate for the Portland Police Bureau to revise their video surveillance policy in accordance with our comments.
Representative Nancy Nathanson (D-Eugene) is a champion in the legislature of government efficiency. As Vice-Chair of the Joint Ways & Means Committee, which writes the state budget, the representative is constantly looking for ways to streamline government’s work to save the state money. To that end, she introduced HB 4091 to require the Department of Administrative Services (DAS) to convene a workgroup to examine and develop recommendations around how the state can improve its systems for performing criminal background checks.
HB 4084 came to the 2012 legislature as the product of the Elder Abuse Work Group that had met during the interim to discuss issues of crimes against elderly Oregonians and how we might amend the law to better protect this population. While many interests were well represented in the Work Group, including long-term care providers, law enforcement, community banks, and the state agency for human services, the group developed its recommendations without consideration of either a criminal defense or a privacy rights perspective. The result was a bill that significantly compromised the rights of Oregonians in both areas.
Citing data about the importance of early detection of HIV and the burden of the required informed consent process before testing, a couple of resident physicians from Portland brought forth this bill with the intent to remove barriers to testing.
The ACLU proposed SB 266, which would have provided consumer privacy protections if Oregon implements toll collection for roadways. We believe it is important that prior to use of toll collection in Oregon sufficient privacy protections for consumers be put in place. These protections include allowing a person to travel on a toll road anonymously (allowing for some means of cash payment), restricting the use of any personal information collected for any other purpose other than toll collection and requiring the government to provide sufficient information to consumers about their privacy protection options and rights.
This session, because of the evenly divided House, it was easier to stop than to pass a bill. The ACLU nevertheless spearheaded the passage of SB 731, culminating a ten-year effort to bring added protection to the criminal justice system regarding the preservation and use of evidence containing biological material (DNA) to prove innocence.
A constitutional amendment to weaken our search and seizure provision (Article I, section 9) of the Oregon Constitution was introduced for the third session in a row.HJR 25 would have amended the constitution to authorize law enforcement to use roadblocks to stop and question individuals to detect drunk drivers without any individualized suspicion of wrongdoing.
In 2009, the ACLU successfully sponsored legislation (HB 2371) that restricts the swiping of the barcode on Oregon Driver Licenses (ODL) through an electronic reader. The barcodes contain significant personal information, including name, date of birth (DOB), address, height, weight, gender, driver license number, driving restrictions and donor status.
Introduced by Rep. Barker (D-Aloha), HB 3085 expands the requirement by health care providers to notify law enforcement of the results of a blood test performed in the course of treatment if the blood contains a controlled substance and the person is believed to have been the operator of a motor vehicle involved in an accident.
This session, like last session, saw the introduction of a proposal to allow the collection of DNA from those arrested. SB 881, at the behest of Sen. Jackie Winters (R-Salem), would have required local law enforcement to collect a DNA sample of individuals arrested for any felony crimes committed against another person, all sex crimes and burglary in the first degree. SB 881 would have authorized the collection of biological evidence from individuals prior to any determination of guilt and without the requisite court order after a showing of probable cause.
ACLU arranged for the introduction of SB 536, with 27 bipartisan co-sponsors, including the chief sponsor, Sen. Rick Metsger (D-Mount Hood), Chair of the Senate Business and Transportation Committee. SB 536 prohibits Oregon from expending any additional funds to implement the federal Real ID Act until there are sufficient federal funds and adequate privacy protections are put in place.
For the third time in as many sessions, the Board of Pharmacy introduced legislation, SB 355, to allow the state to create a statewide database to monitor the lawful prescriptions of controlled substance schedules II, III or IV issued to patients in Oregon. The database would cover all codeine-based products, most prescription pain medications and other prescription drugs such as Ambien, Ritalin and Xanax, prescribed to thousands of Oregonians, including children. Proponents expect the database will track more than five million Oregon prescriptions annually.
ACLU arranged for the introduction of HB 2371, which restricts businesses and government from swiping the barcode on the back of our Oregon driver licenses and state-issued identification cards. Electronic swiping of the barcode reveals almost all of the personal information contained on your license or ID card, including your name, address, date of birth, height, weight, gender, eye color, lens restrictions, donor status and license or ID card number.
SB 310 builds on Oregon’s DNA innocence law passed a few years ago allowing a person convicted of murder, a “person” felony or certain sex crimes to request testing of evidence for DNA that was obtained in the original criminal investigation. ACLU worked to pass what was a temporary law when it was first introduced in 2001 and led the effort in 2007 to make it a permanent part of Oregon law. That law establishes a procedure to request testing but does not address the question of retaining evidence so that it can be tested years later.
Beginning in the 1990s, the Oregon legislature began authorizing FBI fingerprint criminal history checks for school teachers. Over the years, this authority has expanded greatly to include most state agencies that grant licenses or hire employees in “sensitive” positions. In 2005, ACLU worked on omnibus legislation in this area (HB 2157). We supported certain provisions of that proposal because it included new uniform safeguards and due process protections for all persons subject to FBI background checks and maintained the requirement that the fingerprints be destroyed after the background check.
As we anticipated, a number of bills were introduced to allow employers to terminate an employee who is a medical marijuana cardholder without any evidence of actual impairment on the job. The ACLU opposed HB 2497, HB 2881 and HB 3052 (and had concerns about HB 2503) because in one form or another the bills included this type of power for employers.
New Rules Protect Death With Dignity and Medical Marijuana Acts
December 11, 2007 - As a result of ACLU of Oregon lobbying efforts with Portland Mayor Tom Potter, Portland Police Chief Rosie Sizer has issued an executive order that specifically prohibits any police assistance with investigations or prosecutions for persons who are acting under the authority of Oregon’s Death with Dignity or Medical Marijuana acts.