This City Council is not a fan of Uber.
As Commissioner Chloe Eudaly pointed out this morning—prior to a vote that will lead council to issue a rare subpoena to the ride-hailing giant—two sitting commissioners voted against allowing Uber to operate in town back in 2015, and another two weren't even on the council when that vote occurred.
That makes Commissioner Dan Saltzman the only extant member of City Council to have approved ushering the company into Portland, and he's the one leading the call for a subpoena.
In a pair of unanimous votes this afternoon, council took a step that's only happened once before as far as anyone can remember. First, officials voted on a set of code tweaks meant to clarify and bolster the council's ability to force Uber to produce documents. Next, it gave the City Attorney's Office the okay to serve Uber with a subpoena to produce documents and software related to its use of "Greyball" to avoid regulation. We reported on the forthcoming subpoena a couple weeks back.
Portland officials have said they're seeking the inner workings of Greyball—both the "playbook" for how the company wields the software tool, and the actual software behind it (though some privately concede they're not sure precisely what Portland would do with that software, if it received it).
City attorneys say subpoena authority is explicitly granted by both the City Charter and past court decisions. But they suggested that formalizing the processes by which a subpoena must be issued was necessary to ensure, in the words of Deputy City Attorney Ben Walters, that "both the city and any entity who might be the recipient of a subpoena will have a clearer understanding how to move forward."
The changes [PDF] are fairly bland. They dictate that, once the city serves Uber with a subpoena in coming days, the company is compelled to comply unless it gets a court of "competent jurisdiction" to quash the thing (we're told Multnomah County Circuit Court is a likely venue for such a challenge). If Uber doesn't get such an order, and refuses to comply, then the city can attempt to get Uber to comply by appealing to a court (again, we're told, likely the county court).
But there's also at least one potential wrinkle to Portland getting its documents. No one knows how Uber will respond to the subpoena—and a company spokesperson said he couldn't offer any inkling to the Mercury— but there are questions whether a recently revealed criminal probe into the company by the US Department of Justice could cause difficulties.
"Are we at any risk of potentially interfering with that [investigation]?" Mayor Ted Wheeler asked today.
Walters responded that corporations like Uber aren't allowed to plead 5th amendment protections against self-incrimination, but said the city would "probably clarify with" the US Attorney's Office conducting the investigation.
The vote in favor of the subpoena was a foregone conclusion: In a relatively atypical move, every city commissioner had signed the documents bringing the items before council.
"We have an obligation as a legislative body to follow the evidence wherever it takes us," said Commissioner Nick Fish, the council's most vocal Uber critic, who the company explicitly called out in a press release late last month. "We have the right to make our own inquiry."
Eudaly said she supported the measure because we was tired of seeing companies like Uber "seeing how far they can push local governments. I think it's time to show them how far they can push."
The city attorney's office says it's not sure when it will serve Uber with the subpoena, and doesn't have an inkling how the company will respond. It's possible Uber will seek to have some parts of the subpoena quashed by a judge, and readily fork over others.
Here are the actual seven things Portland's draft subpoena demands:
The subpoena marks only the second time anyone can remember city council exercising this particularly muscular bit of authority. The first came roughly a decade ago, in a dispute with Portland General Electric, which challenged the order. The matter was ultimately resolved prior to a judge weighing in on the subpoena's legality.
Notably, today's vote marked the first of two subpoena-related items that Portland is planning to take up in regards to so-called "sharing economy" companies. The city plans to consider a code change and resolution in coming weeks that would allow the City Revenue Bureau to issue subpoenas to "short-term rental" companies likes Airbnb, which have flouted city regulations.
"Going into this subpoena situation should always be a last resort for us," Wheeler said today, "but as regulators this is a tool that we need to ensure that we are doing our jobs."