A Maine lawmaker and a privacy advocate urged legislators Friday to repeal part of a state law that police have used to conceal the use of surveillance technologies such as facial recognition scans and cellphone signal interceptors.

The criminal justice committee held a public hearing Friday on the repeal measure, L.D. 2139, titled “An Act to Increase Government Accountability.” The American Civil Liberties Union supported the bill, saying the public has a right to know about the use of such powerful tools. A representative of the Maine State Police spoke neither for nor against it, but said police sometimes must conceal their investigative methods for public safety reasons.

Two legislators sponsored the bill after the Maine Sunday Telegram reported that state police were using the 2013 law to neither confirm nor deny the use of technologies like facial recognition and cell site simulators that can be used as surveillance tools.

Indiana is the only other state with a similar provision, but civil liberties advocates say Maine’s law is much more restrictive and unique in the United States.

“We believe that there are times when that limited response still makes sense,” Maj. Christopher Grotton of the Maine State Police testified Friday. “It feels like there is still some consensus around that opinion, and we’re looking at that having some very productive discussions about what would happen if this bill were to pass.”

The existing law requires government agencies to give that non-answer to any request for public records that includes a record that is exempt from disclosure. That is called a “Glomar” response, a term that dates back to the 1970s in response to public inquires about a covert operation to recover a sunken Soviet submarine.


Earlier this month, Maine’s public safety commissioner acknowledged for the first time that state police use facial recognition scans as part of some criminal investigations.

Commissioner Michael Sauschuck defended the practice, and stressed in a written statement that police conduct facial recognition searches only after a crime has been committed and a suspect’s image has been captured by a home or commercial security system. But he did not provide written policies or details about how the technology is used.

The bill’s sponsors are Rep. Charlotte Warren and Sen. Shenna Bellows, Democrats from Hallowell and Manchester, respectively.

Warren told the committee Friday that case law would still allow police to use a “Glomar” response when absolutely necessary, even if the current law is repealed. For example, police could still use it to neither confirm nor deny the identity of a confidential informant who could be at risk if identified.

“Requiring law enforcement to neither confirm nor deny the existence or nonexistence of facial recognition technology or methods to track our cell phones threatens the very core of our democracy,” Warren said. “We cannot control or debate or assess or reject what we don’t know.”

Meaghan Sway, policy counsel for the ACLU of Maine, read a letter from Nathan Wessler, a native Mainer who works for the national organization’s Speech, Privacy and Technology Project.


Wessler wrote that the existing law prevents public agencies from engaging in public debate about important issues, like surveillance technologies. He also said Maine is out of step with other states, citing state and federal law enforcement agencies across the country that have acknowledged the use of cell site simulators and released at least some public records about that technology.

“This makes it virtually impossible for members of the public, reporters and lawmakers to know how our taxpayer dollars are being spent, and whether police are engaged in controversial or privacy-invasive practices,” he wrote. “Without basic transparency, there cannot be adequate accountability.”

Most lawmakers had questions about specific technologies. But Sway said this bill is a separate issue about government transparency.

“If there was facial recognition technology being used with Real ID that hadn’t been disclosed before and the public didn’t know about it, under our current law, no one could know about it,” Sway said. “That’s why we are bringing this forward. To be able to have that debate. Not just to say, you cannot use it, but to just know that it is being used.”

Grotton, from the Maine State Police, said he was wary of unintended consequences of changing the law. As an example, he said that police began to put GPS trackers in pill bottles in response to pharmacy robberies, and that technology allowed them to find and arrest the suspects. But once the public became aware of that technology, the suspects began to open the bottles and remove the trackers before making their escape.

He also said the Maine State Police has been talking with the ACLU about a path forward.


“If we don’t have that automatic response, we would be applying discretion and have the ability and flexibility to do that,” Grotton said. “We do want the committee to understand that there are times when simply responding may place people in harm’s way and limit our effectiveness to solve crime, and I believe there is a common understanding about that.”

Maine’s statute appears to be an unintended consequence of a 2013 rewrite of state laws on criminal history records and intelligence and investigative materials.

No one at Friday’s hearing could say why a single line was changed at the time, and the legislative file does not suggest that section of the bill received much discussion.

The lack of disclosure comes as communities across the United States are trying to regulate the use of technology that gives local law enforcement tools that can be used to conduct sweeping surveillance of the public, including people who are not suspected of crimes.

Two types of surveillance technology have come under the most scrutiny from civil liberties advocates and elected officials: facial recognition and cell site simulators.

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 faces in existing databases, such as those that contain driver’s licenses, state IDs, immigration records, passport photos or police mug shots.

Along with its potential for tracking citizens, facial scans have higher error rates when applied to people of color, women and transgender individuals, studies have found, raising concerns that those people are more likely to be misidentified as criminal suspects.

The committee is scheduled to hold a work session on the bill next week.

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