Maine lawmakers seek to change law allowing police to conceal use of surveillance
Maine is one of two states with a legal provision that allows police departments to conceal any use with surveillance technology
Portland Press Herald
BANGOR, Maine — Two Democratic state lawmakers say they’re working with civil liberties advocates to change a state law that police say allows them to conceal any use of surveillance technology such as facial recognition scans or cellphone signal interceptors.
Maine State Police say the law also means the agency does not have to reveal whether it has policies to protect the privacy of citizens, or how much money is being spent on the technologies.
Sen. Shenna Bellows, D-Manchester, and Rep. Charlotte Warren, D-Hallowell, who co-chairs the Legislature’s criminal justice committee, said they are working with the American Civil Liberties Union of Maine on a bill that would require more transparency for surveillance technologies being deployed by law enforcement.
“The public has a right to know if and how invasive surveillance technology like facial scanning is being used to spy on everyday Mainers,” said Bellows, a former executive director of the ACLU of Maine.
The effort comes after the Maine Sunday Telegram reported that the Maine State Police are citing a 2013 law change as the reason they will neither confirm nor deny the use of surveillance technologies that other federal and state law enforcement agencies are deploying and Maine has admitted testing in recent years.
Maine is one of only two states with such a provision in state law, said Nathan Wessler, a staff attorney with the American Civil Liberties Union’s speech, privacy and technology project. Citing the law, Maine State Police denied the Telegram’s request for public records pertaining to the costs and policies of two controversial surveillance technologies, facial recognition and cell site simulators.
It’s not clear how quickly the Legislature will consider the new proposal. To advance in the session that is already underway, the bill would need special approval from the Legislative Council, a bipartisan panel that includes the 10 members of the legislative leadership. If it is not allowed, it would have to wait until the start of the next session in January 2021.
“It’s unclear if legislative leadership will permit the bill to be introduced at this late date, but we heard widespread constituent concern when news hit that Maine is one of only two states that allows this level of secret surveillance,” Bellows said.
Warren said she would like to see the bill referred to the criminal justice committee, saying that an emergency measure is needed to protect people’s privacy. A separate bill moving through the Legislature could open up Mainers’ new Real ID photos to facial scanning by federal agencies, although only under certain conditions. If it passes, the Maine Bureau of Motor vehicles would be authorized to run searches through the state’s driver’s license photo database at the request of federal agencies on a case-by-case basis.
“As we go down this road of ever-changing technologies, it’s on us to make sure we’re paying attention and putting up guardrails to make sure the privacy of our constituents is protected,” Warren said.
Department of Public Safety spokesman Steve McCausland said the department is reviewing the newspaper’s request to reconsider its denial of the public records request. He declined to comment about the lawmakers’ efforts to increase transparency.
“If there is proposed legislation, we would not comment on it until we’ve had a chance to read and review the specifics,” McCausland said.
The lack of disclosure comes as communities across the United States are trying to regulate the use of technology that allows local law enforcement to conduct sweeping surveillance of the public, including people who are not suspected of crimes.
Police departments are getting more sophisticated as technologies originally designed to enhance national security are deployed to state and local police departments to solve everyday crimes. And in some cases it’s being done without a robust public discussion about what limits, if any, should be placed on their use.
Two types of surveillance technology have come under the most scrutiny from civil liberties advocates and elected officials: facial recognition and cell site simulators. Both are capable of gathering large caches of personal information.
Facial recognition technology can map an individual’s facial features using a high-resolution digital image or surveillance video, creating a unique profile similar to a fingerprint. The profile is then compared to the faces in existing databases, such as those that contain driver’s licenses, state IDs, immigration records, passport photos or police mug shots.
Facial scans have higher error rates when applied to people of color, women and transgender individuals. A study published in December by the National Institute of Standards and Technology found the rate of false positive identifications, which could make an innocent person a criminal suspect, occurred 10 to 100 times more frequently among African-Americans and Asians than with Caucasians.
More advanced programs can also conduct an analysis of skin texture to increase accuracy and, in some cases, account for different facial expressions, facial hair or eyeglasses. Some technology can provide real-time identification of people captured on video.
Portland City Councilor Pious Ali has proposed a prohibition on city officials, including its police force, from obtaining, retaining, accessing or using any facial recognition technology or information provided by such technology. The council has twice postponed a vote on that measure and will take it up again on June 15.
Several city administrators, including the city’s police chief, opposed the proposal because of potential benefits of the technologies.
“While we do not have any immediate plans to acquire facial recognition, I am an advocate of taking advantage of contemporary 21st century technologies to drive better public safety outcomes,” Chief Frank Clark said in a memo to councilors, adding that strong policies can prevent misuse and infringement on constitutional rights.
Other technological tools that are increasingly used by police include cell site simulators, also known as IMSI catchers or Stingrays, which can essentially turn the cellphone you carry into a real-time tracking device.
A cell site simulator can be the size of a briefcase and carried in a police cruiser or on an airplane to ping cellphones. It sends out a signal that tricks nearby cellphones into connecting with the simulator, rather than a cellphone tower. The signal is then passed to a tower, and it happens without the user knowing.
Authorities can either search for and track a specific cellphone number or collect data from all of the cellphones within a certain area. That data can include the IMSI – or International Mobile Subscriber Identity – and metadata about whom a person communicates with and for how long. And some advanced simulators can intercept the content of messages, according to the Electronic Frontier Foundation.
“It’s our intention to do something about this,” Warren said.
While it’s not clear whether a majority of Maine’s legislative leadership will allow the bill to be introduced immediately, House Speaker Sara Gideon, D-Freeport, may support the introduction of an emergency bill.
“The speaker is interested in addressing the issue at hand, but needs to see the details of this proposal before agreeing to move it forward,” said Mary-Erin Casale, Gideon’s communications director.