October 8, 2013

New Maine cellphone privacy laws take effect Wednesday

Law enforcement will now have to get search warrants to gather cellphone information including voicemails, text messages and location data.

By Alanna Durkin
The Associated Press

AUGUSTA — Maine law enforcement officers will have to get search warrants to gather information from cellphones including voicemails, text messages or location data, under two laws that will take effect Wednesday.

click image to enlarge

In this December 2011 file photo, Dan Johnson uses a hands-free device to talk on a cellphone while driving. Maine law enforcement officers will have to get search warrants to gather information from cellphones including voicemails, text messages or location data, under two laws that will take effect Wednesday.

AP Photo/Gregory Bull

A look at new laws taking effect in Maine

Maine law enforcement officers will have to get search warrants to gather information from cellphones including voicemails, text messages and location data, under state laws that will take effect Wednesday. Several other laws take effect this week for Maine residents:

DRIVERS’ EDUCATION: Maine residents younger than 21 will have to complete 70 hours of driving training under the supervision of a parent or guardian, double what has been required, before they can apply for their license.

PRESCRIPTION IMPORTS: Maine residents will be allowed to buy prescription drugs through firms like CanaRx, which takes prescriptions written by U.S. doctors and fills them in licensed pharmacies in Canada, the United Kingdom, Australia and New Zealand. The bill, which became law without Gov. Paul LePage’s signature, is meant to help residents buy cheaper medications. The Maine Pharmacy Association and other pharmacy groups recently filed the lawsuit against the new law, saying it will jeopardize the U.S. pharmaceutical distribution system and Maine residents’ health.

AMAZON TAX: A new law will close a tax loophole for large online companies that use affiliates to avoid paying sales taxes. Online vendors like Amazon will have to pay Maine’s 5.5 percent sales tax if their affiliated companies have a presence or maintain warehouses or distribution facilities in the state. Brick-and-mortar businesses have long been advocating for such laws throughout the country, saying it hurts their businesses as customers increasingly shop online to skip the sales tax.

SYNTHETIC DRUGS: Synthetic drugs that mimic marijuana, like spice and K2, will be banned in Maine. A law on the books already bans some synthetic drugs, but the bill’s sponsors said people can make small changes in the chemical makeup of the drugs to get around it. Supporters of the new law say synthetic drugs can cause psychotic episodes and hallucinations, and worsen mental health disorders.

Supporters say the measures approved by the Democratic-controlled Legislature last session are essential because the related federal law is woefully out of date, leaving residents’ privacy vulnerable as technology advances.

Signed in 1986, the federal law “dates from an era when cellphones were the size of bricks and there was no GPS,” said Zach Heiden, legal director for the American Civil Liberties Union of Maine.

Under the new laws, police will have to show probable cause that the information they’re seeking is relevant to a criminal case, unless they can prove that waiting for a warrant will put someone’s life or safety in danger.

The Attorney General’s Office and Maine State Police fiercely opposed the bills, saying they are unnecessary and could hamper criminal investigations.

“You’ve added some extra requirements and some pitfalls that we have to avoid, but are you really solving any problems?” said William Stokes, head of the attorney general’s criminal division.

Law enforcement officials say federal law already requires search warrants to gather real-time location information and communications. To get historic cell-tower data, however, the requirement now is only a court order, which has a lower legal standard than a search warrant.

Republican Gov. Paul LePage vetoed the cellphone location information bill, saying it would be too burdensome and make it harder for law enforcement to use location information to crack criminal cases.

But lawmakers overturned his veto.

State police Maj. Chris Grotton said the agency almost always uses warrants to get location information, but when authorities can’t yet allege that a crime has been committed, such as when someone is missing, they use court orders. He said he worries that the new law will prevent them from getting that information.

“It’s going to be the difference between finding someone and not finding somebody,” he said. “My fear is that there is going to be a bad result and we’re going to have to tell someone that we aren’t able to get that information.”

Stokes said prosecutors have been working with state police to develop a template for the new warrants they will use, and police will get training this week about the changes and how to ensure they’re complying with the new law.

“We’ll comply with the law; that’s what we do,” he said. “We’ll just see how problematic this becomes.”

Also under the new laws, law enforcement will have to notify anyone whose information has been obtained, within three days. The laws allow a court to waive that requirement if it would hamper a criminal investigation.

People have the right to know when they are being searched by police, Heiden said. “When police come to conduct a search of your home, they’re supposed to present you a copy of the search warrant. The same principle should apply when they’re searching personal information.”

Maine joins Montana as the two states that require warrants for cellphone location information.

Federal courts have been divided on the issue.

In July, the 5th U.S. Circuit Court of Appeals said authorities need court orders only to obtain cellphone records that can be used to track a person’s movements.

That same month, the New Jersey Supreme Court said all law enforcement in the state must get search warrants based on probable cause.

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