Oregon Police Push State Law-Violating ID Scanners On Nightclub And Bar Owners

from the and-then-claim-to-be-'not-responsible'-for-any-part-of-the-debacle dept

Tue, Feb 18th 2014 9:21pm — Tim Cushing

Oregon seems to be turning into a bastion of privacy, much to the chagrin of various law enforcement agencies. As we recently covered, a district court ruled that the DEA's warrantless access of its drug prescription database (achieved through "administrative subpoenas" that require no judicial approval or probable cause) was unconstitutional. In Oregon, at least, it appears our nation's foremost drug warriors will need to comply with the Fourth Amendment.

Now, there's a pushback against another warrantless collection of data by local police departments. Techdirt reader zip sends in this Williamette Week story detailing the ID scanners police are actively pushing on bar and club owners, supposedly in an effort to cut down on underage drinking.

Multnomah County and Portland police this week suspended a new program that supplied data-gathering ID scanners to Old Town bars after WW raised questions about whether it was legal.

The state-funded program allowed Portland police to equip downtown bars and clubs in recent weeks with high-tech ID scanners that captured patrons’ names, ages and photos for upload to a central database, which police could then access.

The data collected is stored for 90 days and is compiled from the many scanners being utilized across the city. The scanners themselves are manufactured by Servall Data Systems out of Alberta, Canada. (Servall Data Systems also has access to the data.) Law enforcement agencies are given access to the collected data at any time requested (no subpoena or warrant needed) according to Servall's spokesperson.

A grant given to a local charity by the state of Oregon helped fund the purchase of these scanners, which were then pushed on local business owners by police departments. Unsurprisingly, some club owners balked at tracking their customers.

A few club owners turned down the free scanners. One owner says he added surveillance cameras when police asked. “I happily installed those. But this was going too far,” the club owner says. “It felt invasive.”

Not that every club owner feels the same. Some have purchased the scanners with their own funds, in part because it's another step they can take to protect their liquor licenses.

The company cites drops in crime in other cities in defense of the scanners. That the scanners have a deterrent quality and that they make crime investigation easier are hardly disputable. But the problem is the warrantless access to collected data, and more specifically in this case, the fact that this sort of data harvesting by businesses violates Oregon state law.

“It really is an illuminating example of where our privacy laws are, and our disconnect in a modern digital world,” says Becky Straus, lobbyist for ACLU Oregon.

Straus is referring to a 2009 Oregon law that limits companies’ legal ability to collect, store or share information from ID scanners. Straus says she was unaware Portland bars were collecting such data, or that police could grab it.

“We had wondered, when we wandered around Old Town, whether bars were complying with the swiping law,” she says.

That bar owners may have been unaware that their data collection violated state law isn't all that surprising. It's not really as much of a day-to-day part of their business as staying within the confines of their liquor licenses and complying with food safety laws. But, as Willamette Week discovered when it began investigating these scanners, many of those who should have been aware of this law had no idea they were actively encouraging business owners to break it.

Neither Portland police nor the city attorney was aware of the 2009 law until WW raised the question. “We‘re glad when someone brings this up. We want to do what’s best to protect public safety and protect people’s rights,” Multnomah County spokesman David Austin tells WW.

Austin said the county is meeting with state and local law enforcement in the coming week to determine how to move forward .

The spokesman for the Portland police department claims it's not the department's problem if these laws are violated.

He says the police don’t own the scanners, and so aren’t responsible for how they were used.

“It’s an issue between the bars and the company,” he says. “We recommend a lot of things to people, but it’s up to the individual to make sure it’s compliant.”

I'm not sure what part of that statement is more callously irresponsible, the fact that the PD will "recommend" actions and technology without ensuring it complies with applicable laws, or the fact that the PD recommends a data harvesting device but ultimately doesn't care how it gets used. The police have carte blanche access to the collected data, so its involvement bears the same weight as the supplier and the businesses utilizing the scanners. Considering it has this access, it would seem its responsibility to ensure compliance with applicable laws would be greater, especially since it's in the law enforcement business.

This also downplays the department's active promotion of the scanners, which led some business owners to feel the devices were mandatory, or at the very least, "strongly encouraged" by an entity holding the power to strip them of their liquor licenses. Here are some quotes from the story that show the department's involvement in pushing the devices its spokesman claims it's not responsible for.

“We tried to say ‘no’ at the very beginning, and police strongly encouraged that we should do it,” says Mike Reed, general manager of the Boiler Room and Jones Bar…

“If we don’t use it, they know,” a downtown bouncer tells WW…

Some Portland bar employees say the scanners keep police and the Oregon Liquor Control Commission happy...

As it stands right now, the county is going to "look into" the legality of the scanners. The police department seems to have washed its hands of the whole thing, claiming it's barely involved. The scanner company, which also has access to the data, seems to think there's nothing wrong with tracking people's nighttime activities and turning this data over to law enforcement any time they ask. And finally, we have business owners tracking their customers because it's been heavily implied that failing to do so may become a source of friction between the bar/nightclub and the police department.

Anyone could make the argument that what you do in public has no expectation of privacy. But this isn't in any way comparable to what police would have to do to achieve the same sort of surveillance level if the scanners weren't in use -- i.e. trailing hundreds of people around all night and noting which businesses they enter.

When technology turns the laborious into the routine, there needs to be checks in place to prevent abuse or, at the very least, provided some sort of friction between what the police can collect and what they can actually access. There also needs to be care taken to prevent collection of data simply because its possible, rather than being actually instrumental to crime prevention and investigation. But most importantly, those deploying these devices (by which I mean the police and the state that provided the grant to purchase the scanners) need to be aware of the laws governing their use, something no one quoted here seemed to know. (And, in the case of the police department, the person quoted not only didn't know, but didn't care, either.)

The state of Oregon has taken care to ensure data isn't collected or misused, but those looking for more data haven't bothered to perform due diligence before deploying devices that turn business owners into lawbreakers, and all in the name of the one of the most arbitrary of crimes, underage drinking.

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Filed Under: fourth amendment, id scanner, oregon, police

34 Comments

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That One Guy (profile), 18 Feb 2014 @ 8:37pm

Easy fix:
I'm sure at least one politician in the state was caught by the scanners, find the info, make it public, and watch 'We're taking the concerns under advisement and will decide, eventually, whether or not they're actually legal' turn into 'The devices have been deemed to violate the law, and will be coming down as soon as possible' overnight.

Best way to stomp such spying efforts flat is to apply them equally. Politicians, cops, and others that push through such things don't normally care, because they don't have to worry about being under the microscope themselves, but if they did, you can bet they'd be a lot more hesitant about implementing such broad surveillance.

Finally, isn't there some rule, or law, or something, where if you cause someone else to break the law due to your actions/guidance, you are also punished for it(though not necessarily as severely)? The idea that the cops can push devices that violate the law, and then when the questionable legality of said devices comes up just say 'hey, it's not our responsibility what they do with the devices' just seems completely screwed up.
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saulgoode (profile), 18 Feb 2014 @ 9:53pm

Huh?
The spokesman for the Portland police department claims it's not the department's problem if these laws are violated.
And all these years I've been thinking that the problem of laws being violated was pretty much the raison d'etre for police departments.
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BentFranklin (profile), 18 Feb 2014 @ 9:53pm

Papers, please!
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That One Guy (profile), 18 Feb 2014 @ 10:01pm

Re: Huh?
It's called 'job security'. Get a few 'perks' for pushing a particular company's product, have an easier time without any of those pesky 'warrants' getting in the way, and then when the devices are found to be violating the law, turn around and arrest the businesses that installed them.
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Just Sayin', 18 Feb 2014 @ 10:33pm

Good arguments, but...
Good argument, but... the first amendment issues sort of go by the wayside when you realize that the state has a valid interest in assuring that the people who enter bars are of legal age. They also have an interest to make sure that IDs presented are valid and not duplicated (like say having the same Bob Smith enter 10 different bars in 10 different parts of the state on the same night).

There is also no right to drink in a licensed establishment in the constitution. While you are free to assemble, the rules and restrictions on licensed establishments can be pretty high, and that could in fact include a uniformed officer checking IDs and noting the information down at the door - and it would be all legal.

Technology allows for this sort of thing, and while some may find it invasive, it is what the technology allows and for the vast majority of people, it makes a night out at the clubs one step safer, and makes it much easier for police to investigate crimes that may happen at such licensed establishments.
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Pixelation, 18 Feb 2014 @ 10:36pm

How can anyone disagree?
Think of the children...
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Anonymous Coward, 18 Feb 2014 @ 10:51pm

I grew up in Portland and all I can say is, if it weren't for underage drinking, where would I be now!
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Anonymous Coward, 18 Feb 2014 @ 11:12pm

Gas stations swipe driver licenses at the cash register when people buy alcohol and cigarettes. I wonder if that data goes into ATF databases.

The cash register clerks always gets frustrated with me, because the magnetic strip on my drivers license never works when they swipe it.

I don't run a magnet over the strip or anything, but after reading this article. I will degauss the magnetic strip just to make sure I'm not being unconstitutionally spied on at bars and gas stations.

This is the type of world we live in now.
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Anonymous Coward, 18 Feb 2014 @ 11:42pm

Re:
Hopefully still in Portland since we have all the best microbrews that a person with privacy-violatingly-scanable ID can drink.
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Seegras (profile), 19 Feb 2014 @ 12:01am

Underage Drinking
Well, if you think allowing people to vote, drive cars and enroll into the military while NOT allowing them to drink alcohol is a good idea, you don't have to wonder if you have an "underage" drinking problem. In the rest of the world, it's usually 16 for low-alcoholic beverages, and 18 for spirits.
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Seegras (profile), 19 Feb 2014 @ 12:02am

Re: Huh?
Make a nice headline: "police recommends breaking the law".
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Derek Kerton (profile), 19 Feb 2014 @ 3:20am

Utopia?
At some point we have to wonder whether our elected officials understand that Orwell's 1984 was a cautionary tale, not a Utopian dream.
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Anonymous Coward, 19 Feb 2014 @ 4:07am

Re: Utopia?
or maybe a blueprint for a better tomorrow
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Anonymous Coward, 19 Feb 2014 @ 4:51am

have you heard this one? "a terrorist walks into an Oregon bar, everyone in the bar is put on the no-fly list"
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Anonymous Coward, 19 Feb 2014 @ 4:53am

freedom to assemble isn't just for protesting, but to assemble in public without government scrutiny.
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Anonymous Coward, 19 Feb 2014 @ 5:31am

The ONLY FIX!
There is only 1 way to fix these problems.

Every time the constitution is found in a court of law to be willfully broken by an official... it is mandatory jail time. It needs to be a flat out automatic penalty. No negotiation, no method of get out of jail free. Life stops for the offending official, and their supervisor with double the penalty if they were ordered.

simple 1 year for the offender, and the time doubles for every superior that ordered the action or sanctioned the offense.

The corruption would be gone so damn fast... phew!
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Darryl, 19 Feb 2014 @ 7:02am

Perfect, now they can hassle bar owners for either having a scanner or not having a scanner. Win Win.
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kenichi tanaka (profile), 19 Feb 2014 @ 7:07am

If the police were accessing this database, then it doesn't matter if they were aware of the law or not, they are still ultimately responsible and liable for violating that state law.

Also, "didn't know about the law"? They are the police. They are required, as it is their job, to know the law and to enforce the law.

They saw they aren't responsible for the scanners? The fact that they put pressure on bar owners to install the scanners and to maintain and upload the database ... I don't believe that for a minute.
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Pragmatic, 19 Feb 2014 @ 8:19am

Re:
Alas, Kenichi-san, holding power without taking responsibility is becoming more popular these days.
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John Fenderson (profile), 19 Feb 2014 @ 8:20am

Oregon is the opposite of a bastion of privacy
Oregon is consistently pushing to enact a surveillance system that New York or London would be envious of. From this ID issue, to the use of license plate scanners in cop cars, to the replacement for the I-5 bridge across the Columbia river (which is planned to be a toll bridge, with tolls payable only via a FastPass-like system, or from capturing your license plate and sending you a bill -- no cash payment option available at all, to the push to include GPS trip monitoring systems to enforce a tax to replace the gas tax, (I could go on, but this is enough for now) the message is clear:

Oregon hates your privacy.
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Jason, 19 Feb 2014 @ 8:31am

Ticket quotas, red light cameras, and now it doesn't matter if the devices they are pushing bar owners to purchase are used illegally. The basic lesson to take is that the police department's job is no longer to enforce the laws for public safety. Their job is to enforce laws for the purpose of generating revenue. Public safety, and the defense of the public's constitutional rights are secondary priorities that don't really matter.

Lets just take this attitude and apply it to the other aspects of the law, such as the guy in Aurora who shot up the theater full of people, or anyone that goes into a school and kills a bunch of kids. What we can take from the police departments response is "Anyone can have a lot of guns and ammunition, we don't care if they use them illegally to kill a bunch of kids or people, that's not really our problem"
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cubicleslave (profile), 19 Feb 2014 @ 8:34am

Does make you wonder, if you were pub-crawling around old town Portland and refused to allow your ID to be scanned by these devices (its against Oregon state law, you know), would the bar owner call the cops on you? Or just refuse you entry to their bar?
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streetlight (profile), 19 Feb 2014 @ 9:33am

Re:
Isn't there a priciple often used by police and prosecutors that goes something like: ignorance of the law is no defense. If it's really a legal principle then enforce it.
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Deranged Poster (profile), 19 Feb 2014 @ 9:45am

Forgot the word
What's it called when the Government recommends or pushes you to do something illegal?
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Anonymous Coward, 19 Feb 2014 @ 10:16am

They should collect the data...
... then it will be easy to throw out any convictions related to it.
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PRMan, 19 Feb 2014 @ 10:39am

Re: The ONLY FIX!
I was reading about Grand Juries the other day based on a Techdirt article. And I read that citizens used to bring cases to court rather than an "attorney general". I think that's where everything broke down.

Now attorney generals won't prosecute the things people want them to and seem hell-bent on prosecuting things that nobody (except government and law-enforcement) wants them to.
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AJ, 19 Feb 2014 @ 12:14pm

Re: Good arguments, but...
Like information on the internet, people will route around the problem/damage. If they don't want to be tracked, they will simply stop going to those establishments... people stop going.. the flow of money stops, no way the local officials let that happen.

Look how fast the police and the state have backed away from this when it went public. They know they are screwing up. Just because it's not a constitutionally protected "right" doesn't mean that their citizens wont issue a very public ass whoopin when their officials start overstepping...

IMO.. In this case, we only need the constitution to protect the free market/free speech, free market/free speech will take care of the problem itself.
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Anonymous Coward, 19 Feb 2014 @ 12:22pm

Re: Forgot the word
The FBI calls this "catching terrorists" and you can see many examples of their results in the headlines of all the "terror plots" they disrupted (that never would have existed in the first place without the FBI encouraging the activity)...

I just heard a knock at my door, looks like the men in suits are here to talk to me about a great "truck parking" opportunity, I don't even have to know what's in the back, I'm sure I won't end up being the fall guy in some FBI suicide bombing plot....
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John Fenderson (profile), 19 Feb 2014 @ 3:21pm

Re: Good arguments, but...
"Technology allows for this sort of thing, and while some may find it invasive, it is what the technology allows and for"

Technology also allows for devices that let you see through the walls of your house. So that's OK simply because the technology allows for it as well?
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Eldakka (profile), 20 Feb 2014 @ 12:25am

Re: Good arguments, but...
I'm not sure exactly what you are replying to.

This article has nothing to do with constitutional rights and so on.

It is to do with an Oregon state law, House Bill 2371, that makes it illegal for information gained from swiping an identity card (such as a drivers license) to be stored and/or passed on. And the fact that the police are encouraging, enabling, those business to break said law:

https://olis.leg.state.or.us/liz/2009R1/Measures/Text/HB2371/Enrolled

(2) Except as provided in subsection (6) of this section, a private entity may not swipe
an individual′s driver license or identification card, except for the following purposes:
(a) To verify the authenticity of a driver license or identification card or to verify the
identity of the individual if the individual pays for a good or service with a method other than
cash, returns an item or requests a refund.
(b) To verify the individual′s age when providing an age-restricted good or service to any
person about whom there is any reasonable doubt of the person′s having reached 21 years
of age.
(c) To prevent fraud or other criminal activity if an individual returns an item or requests
a refund and the private entity uses a fraud prevention service company or system.
(d) To transmit information to a check services company for the purpose of approving
negotiable instruments, electronic funds transfers or similar methods of payment.
(3) A private entity that swipes an individual′s driver license or identification card under
subsection (2)(a) or (b) of this section may not store, sell or share personal information
collected from swiping the driver license or identification card.

Also interesting to note is that the law allows for remedies, actual damages or $1000, whichever is greater, and awarding costs to the plaintiff:

(8) In addition to any other remedy provided by law, an individual may bring an action
to recover actual damages or $1,000, whichever is greater, and to obtain equitable relief, if
equitable relief is available, against an entity that swipes, stores, shares, sells or otherwise
uses the individual′s personal information in violation of this section. A court shall award a
prevailing plaintiff reasonable costs and attorney fees. If a court finds that a violation of this
section was willful or knowing, the court may increase the amount of the award to no more
than three times the amount otherwise available.

So anyone in Multnomah County and Portland who has had their license swiped by one of these businesses could be heading for a $1000 windfall.

And any business that is sued over this should then sue the Police department for THEIR costs due to the Police departments incitement to break the law.
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Anonymous Coward, 20 Feb 2014 @ 8:20am

Why public should pay for scanners at private clubs?
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shooters bar la crosse wi (profile), 9 Dec 2015 @ 2:24pm

Re: Good arguments, but...
Well said.I Own a college bar in a wisc0nsin for 25 years and can say with perfect Fake ids being sold from china these scanners are a good idea as safety has to come first.With pervs lurking in bars to prey on our pretty 21 year old daughters,Drunk losers startin brawls,Thieves looking to steal etc etc scanners are a good idea provided they are monitored by responsible agendaless folks
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