The ACLU of Maine says state regulators should eliminate a requirement that multiple video cameras be placed inside and outside adult-use cannabis businesses, arguing that doing so violates Maine’s ban on facial recognition surveillance.

The requirement, which appears in a set of draft rules for the regulatory framework of the state’s adult-use or recreational marijuana program, “would needlessly expose customers and workers in the cannabis industry to privacy-violating tracking and data collection,” the ACLU said in a letter to the Maine Office of Cannabis Policy this week.

But the Office of Cannabis Policy, which is part of the Department of Administrative and Financial Services, says the draft rules simply update existing video surveillance requirements for cannabis businesses to cover newly approved cannabis delivery.

“This requirement is not, and has never been, a facial recognition requirement,” said Sharon Huntley, a spokesperson for the Department of Administrative and Financial Services.

“It is an extension of existing retail sales camera requirements – the same requirements that have been extended to the authorized activity of delivery, which was already approved by the Legislature,” Huntley said.

The rule-making is in progress and the Office of Cannabis Policy will make comments, offer responses and make new regulations soon, Huntley said.

The ACLU says the surveillance requirement violates Maine state law because cannabis retailers have to record and store video of shoppers’ faces and turn that data over to public officials.

Maine passed a law last year that shields people in the state from government facial recognition software, said Michael Kebede, policy counsel for ACLU of Maine.

“What the cannabis rule requires is a surveillance system to monitor the identity of a purchaser and ensure facial identity. Our contention is the only way to do that is by violating the facial ban,” Kebede said.

All cannabis businesses in the state’s adult-use program, including cultivators, testing labs, producers and retail stores, need multiple digital cameras at all entrances and exits and enough of them inside to cover their activities, from cultivation through testing, processing and sales, according to the rules.

In retail stores, cameras have to be placed at each point of sale to monitor every purchaser and “ensure facial identity.”

Camera footage has to be stored for 45 days, be subject to random inspection and be provided to Department of Administrative and Financial Services employees upon request.

The updated rules would require stores to use mobile cameras to record all delivery transactions and “ensure facial identity.”

Maine’s law followed bans on facial recognition programs in Portland and came in response to concerns that law enforcement agencies could use such programs without public knowledge.

LAW HAS LIMITED EXCEPTIONS

Under the law, state and local governments are prohibited from using or accessing facial surveillance systems and cannot contract or license third parties to use such systems on their behalf.

The law has limited exemptions, including for serious crimes, to help identify someone dead or missing, when performing a search through the Bureau of Motor Vehicles or for specific uses in jails.

The definition of “facial surveillance” in the law is an automated or semi-automated process that helps identify someone or captures information about a person based on their physical characteristics.

The adult cannabis rule does not appear to require businesses to have such a sophisticated system. But the ACLU said the only feasible way to identify faces in surveillance footage is to use an automated process, putting the rule in violation of the law.

“There is no persuasive rationale for ubiquitous video monitoring of cannabis establishments,” the group said. “Indeed, nothing in the Marijuana Legalization Act requires video surveillance – much less facial identification technology – to be part of how the state regulates cannabis establishments.”

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