FILE - Portland protesters stood at a police line following property damage on Wednesday, Nov. 4, 2020. Oregon’s Court of Appeals upheld a ruling restricting police livestreaming protests, raising concerns about broader protest recordings and data retention practices.
Sergio Olmos / OPB
As protests in cities like Portland ramp up during the Trump administration, a court ruling this week could upend how law enforcement responds to them.
On Wednesday, the Oregon Court of Appeals upheld an earlier ruling that it is illegal for Oregon police to livestream a protest for any reason other than to document a crime.
The ruling raises questions beyond livestreaming, however, into whether other recordings at protests also violate Oregon law. It could encompass Portland’s practice of retaining large amounts of protest footage for civil cases, as in the case of several gigabytes of footage from last spring’s protests at Portland State University.
Portland City Attorney Robert Taylor told OPB that his office is “currently reviewing the opinion to assess the impacts on the city and possible next steps.”
Related: Multiple criminal cases against PSU protesters dropped after attorneys discover footage
The American Civil Liberties Union of Oregon, which spearheaded the lawsuit, celebrated the ruling.
“Since the 1980s, Oregon law has plainly prohibited police from collecting information about us based on our political activities, like protesting, when they have no reasonable suspicion we are committing a crime,” legal director Kelly Simon said. “Police across Oregon are on notice yet again that protesting does not justify police surveillance in any form, whether it be a livestream, video recording, social media monitoring, or the like.”
The ruling centers specifically on the Portland Police Bureau’s livestreaming of a handful of protests at the height of 2020’s racial justice protests. The bureau streamed video of the events over websites like YouTube, and sent footage directly into their incident command center.
Police are allowed to video record crimes in progress — which is the primary function of body-worn cameras — but are severely limited on recording otherwise legal activity, like protesting.
Portland police didn’t keep any of the footage it had livestreamed in 2020, but the court said whenever there was no criminal activity present, the mere act of transmitting it broke state law.
“Even though the livestreams were made available for only a short period of time, they were accessible for use by both the public and the PPB incident command,” Judge Thomas Ryan wrote.
Livestreaming could store data as cached memory, judge says
The state law at issue — 181A.250 — was passed by lawmakers in the 1980s when computers were far less ubiquitous. Lawmakers at the time worried computer surveillance could be used to “collect” information about citizens to create dossiers and target people based on their political or religious views.
Attorneys for the city of Portland argued that transmitting the protests to the public and to its internal command centers was not the same as collecting intelligence on lawful citizens.
But appeals judges were not swayed. Ryan wrote that the law prohibited storing video and audio on any device — even a livestream, which may temporarily store information as “cached” memory on a device.
“That process transmits information about a person’s lawful political activity directly to the public, implicating the same type of harm the Legislature sought to avoid,” Ryan wrote.
Related: ACLU of Oregon files lawsuit against Portland, PPB over video livestreams of protests
That interpretation could cause ripples for Portland police and other agencies.
The ruling limits police from running internal broadcasts that police and city staff may use to coordinate movements and quarterback an erratic situation.
It also raises questions about whether Portland can legally record and retain protest footage for protection against civil lawsuits. That practice recently came into view when city-owned footage led to the implosion of multiple criminal cases from the protests against the violence in Gaza at Portland State University last spring.
To Simon, of the ACLU, the recordings at PSU broke state law just as the livestreams She said the recordings “defied” the courts at the time.
Taylor did not comment on those implications or whether the city plans to file an appeal with the Oregon Supreme Court.