Two newly enacted state laws will reduce secrecy around the use of police surveillance tools and place limits on the use of facial recognition technologies in Maine.
Both laws will go into effect in the coming months, and advocates say they will provide greater transparency and limit the use of investigative technologies that some fear could pose a threat to civil liberties.
One bill, sponsored by Rep. Charlotte Warren, D-Hallowell, and signed by Gov. Janet Mills, will repeal a law passed in 2013 that gives state law enforcement broad power to withhold information about when and how they use surveillance technologies. Warren’s bill, L.D. 894, was first introduced after a Maine Sunday Telegram story highlighted the unusual state law, which allowed the Maine State Police to neither confirm nor deny the use of facial recognition scans and other digital technologies in criminal investigations. Only one other state was found to have a similar secrecy law.
Facial recognition is a fast-growing technology that identities and maps human facial features from high-resolution photos, creating a unique form of identification similar to a fingerprint. This form of identification can then be searched within a number of databases, some of which are public, maintained by government institutions like the FBI or the Maine secretary of state, and others that are maintained by private corporations such as Clearview AI.
Use of the technology has raised concerns around the world because of the potential for mass surveillance, and the fact it can misidentify people as criminal suspects. Those concerns led the Portland City Council to ban the use of facial recognition by city police and other agencies in 2020.
The Maine State Police has in the past tested the use of facial recognition technology, but the agency has withheld details, including any written policies or procedures, saying the 2013 Maine law prohibits such disclosures.
Critics of that secrecy provision argued the lack of accountability fed concerns about violations of privacy and the surveillance of innocent citizens. It had been dubbed a ‘Glomar’ law in reference to a Cold War era mechanism developed by the CIA to answer questions with a non-answer that neither confirms nor denies intelligence activities.
Warren, who could not be reached Friday, said before the bill passed that the issue is primarily one of transparency for her constituents.
“We cannot control, or debate, or assess or reject what we don’t know. We deserve the right to know what we don’t know,” Warren said in her testimony. “Our current Glomar law threatens to turn law enforcement entities from trusted partners in securing public safety into a secretive Big Brother, who never reveals its methods to taxpayers. Mainers deserve better.”
The law was passed by a vote of 27-7 in the Senate and 87-59 in the House and was signed by Gov. Mills on June 10.
Shannon Moss, spokesperson for the Maine State Police, said this week that the law will go into effect on Aug. 30th, and in the meantime the state police will continue to respond and process public records requests as they have previously.
Penobscot County Sheriff Troy Morton, who is also president of the Maine Sheriff’s Association, initially opposed L.D. 894 in public testimony. He cited the possibility that victims of sexual assault and domestic abuse would be placed at risk because of a loss of confidentiality in their criminal cases.
However, Morton said he reversed his opposition because of provisions that will maintain confidentiality for those in vulnerable situations. Other state laws protect the confidentiality of criminal investigations and information about victims.
The second new law, L.D. 1585, was sponsored by Rep. Grayson Lookner, D-Portland, and prohibits the use of surveillance through facial recognition technologies by government actors, except in limited cases such as investigations of the most serious crimes, including murder and rape.
The new law also specifies that law enforcement, in the rare cases they are allowed to use facial recognition software, must use public databases in an attempt to standardize the quality of the photos and increase accountability when errors are made.
Lookner said Friday that he was pleased with how wide-ranging and specific the bill was in regulating a quickly-growing form of technology. He cited the bipartisan effort behind the bill and the sponsors’ close consultations with law enforcement.
The bill passed without roll call votes and became law July 1 after the governor neither signed nor vetoed it. It makes Maine the first state in the country to apply strict limits on facial recognition, following the lead of cities such as Boston, San Francisco and Portland, Oregon.
“It didn’t strike me when I wrote the bill that it would be the most comprehensive bill in the country (regarding facial recognition laws),” said Lookner. “So I am very pleased that it reins in all public entities’ ability to use the technology … It is a huge victory for privacy advocates and civil liberties in the state of Maine.”
Maine county sheriffs initially opposed the bill in part because they use iris-scan technology to verify identities, such as when transferring jail inmates, and it was unclear whether that technology also would be banned from use under Lookner’s bill. However, an amendment specifically excluded iris scans from the bill.
In testimony before the Legislature voted, Michael Kebede, policy counsel for the ACLU of Maine, characterized the bill as essential in protecting citizens from overreach by law enforcement.
“This bill is an important step in maintaining democratic control over the technology, instead of letting the technology and its unregulated use run roughshod over our rights,” said Kebede.
Kebede was not available Friday. The ACLU supported both new laws. Maine Director of Communications Qainat Khan on Friday reiterated the organization’s support for increasing transparency around law enforcement’s use of facial recognition and other surveillance technologies.
Note: This article was updated Monday, July 13 to clarify the context of comments by the Maine ACLU’s director of communications.
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