A proposal that would force Maine State Police to be more transparent about their use of facial recognition and other surveillance technologies is scheduled to be taken up by the House this week after being approved as an emergency measure by legislative leaders.

The bill moves forward as Maine’s public safety commissioner acknowledged for the first time that state police use facial recognition scans as part of some criminal investigations, although the agency relies on help from out-of-state agencies.

Commissioner Michael Sauschuck defended the practice in his written statement, saying the agency does not use the technology to “conduct ‘surveillance’, ‘spying’, tracking or monitoring of the general public or individuals not suspected of criminal activity.” However, he did not provide written policies or details about how the technology is used.

Rep. Charlotte Warren, D-Hallowell, introduced the emergency bill in response to a Feb. 9 Maine Sunday Telegram report about how the Maine State Police are using an unusual provision in state law to conceal whether they are using advanced technologies capable of conducting mass surveillance of Mainers, including citizens who are not convicted of a crime. Warren’s bill, L.R. 3227, would eliminate that provision.

Maine is one of only two states believed to have a so-called Glomar provision codified in state law, according to the American Civil Liberties Union. It says: “A Maine criminal justice agency may not confirm the existence or nonexistence of intelligence and investigative record information confidential under section 804 to any person or public or private entity that is not eligible to receive the information itself.”

The provision has been cited as a reason to withhold information about what type of technologies police are deploying, how much money is being spent on the technologies and what policies are in place to prevent misuse and protect the privacy of innocent people.

Warren’s bill eliminating the provision needed special approval by legislative leaders as an emergency measure so that it could be taken up during the ongoing, short session of the Legislature. She expects the House will vote Tuesday to refer the bill to the Criminal Justice Committee, which she co-chairs. At that point she will schedule a public hearing, perhaps for next week.

“We as Mainers are really interested in our privacy. That’s sort of at the center of who we are, at least the way I was raised,” Warren said. “My colleagues in the Legislature share the importance of protecting the privacy of their constituents.”

A surveillance camera positioned at the intersection of Cumberland Avenue and Elm Street in Portland. Staff photo by Derek Davis

Neither spokespeople for Gov. Janet Mills nor Sauschuck responded to requests for interviews about the technologies or their opinions about the Warren’s bill. However, late Friday afternoon, Sauschuck issued a two-page statement in response to the Telegram story defending limited use of facial recognition.

Sauschuck’s statement came one day after Warren’s bill advanced through the Legislative Council. The council voted 6-4 to label the bill an emergency so that it could move forward in the current legislative session. The vote split with Democrats in favor and Republicans opposed, but officials from both parties said that doesn’t necessarily represent lawmakers’ views on the bill itself.

“The Republicans voted against it because they didn’t think it was an emergency,” said Tom Desjardin, the communications director for Senate Republicans. “It wasn’t so much about the merits of the bill.”

The ACLU of Maine urged the Legislature to pass Warren’s bill, which is being co-sponsored by Sen. Shenna Bellows, D-Manchester, the former executive director of the ACLU of Maine.

“We can’t regulate what we don’t know,” Michael Kebede, policy counsel with the ACLU of Maine, said in a written statement to the Press Herald. “Surveillance technology is developing at an incredible pace, and we can’t afford to wait another year to find out what our law enforcement agencies are doing with it.”

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

Sauschuck’s statement stressed that police only conduct facial recognition searches after a crime has been committed and a suspect’s image was captured by a home or commercial security system. He said neither the state police nor the Maine Information and Analysis Center spies on innocent people. The center is known as a fusion center and is staffed by the military, and local, state and federal law enforcement officials.

“The state police (including the MIAC) does not utilize facial recognition technology to conduct ‘surveillance’, ‘spying’, tracking or monitoring of the general public or individuals not suspected of criminal activity,” Sauschuck said.

“The use of this technology in these cases is simply another tool in addition to the common practice of publicly releasing the digital image on TV or social media to enlist help from the public,” Sauschuck said. “We believe that the public expects that the police have the ability and resources to take a digital image – or forensic evidence – from a crime scene and identify the suspect that broke into their home, stole their property or injured their loved ones.”

Sauschuck’s written statement did not provide any information about how many searches state police request of out-of-state agencies, the types of investigations in which it’s used, the databases being searched or what policies may be in place to protect against misuse. And it is still unclear whether any of the partners in the state’s fusion center, including the FBI, U.S. Customs and Border Protection, U.S. Department of Homeland Security and U.S. Border Patrol, can conduct facial recognition searches in the Augusta-based fusion center at the request of state police.

Sauschuck also did not address questions about whether police are using cell site simulators, another controversial type of technology capable of mass surveillance.

Cell site simulators can turn cellphones into real time tracking devices. The simulators 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.

“We stand by our previous response on cell site simulators,” Department of Public Safety spokesman Steve McCausland said, referring to the state’s response of neither confirming nor denying a broad range of information relating to the technology.

 

 

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