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New cannabis delivery rules test scope of Maine’s facial surveillance ban

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New rules for Maine’s adult-use cannabis program went into effect on September 8. Included in the rules are new requirements for recording transactions conducted via curbside pickup and delivery. 

Earlier language included in draft rules released by the Office of Cannabis Policy (OCP), housed within the Department of Administrative and Financial Services (DAFS), drew criticism from the American Civil Liberties Union (ACLU) of Maine, which alleged the requirements violated a ban on the use of facial surveillance technology by state actors. Though the recording requirements remain in the agency’s final rules, there is new language requiring that the use of recordings comply with the facial surveillance ban.

The 130th Maine Legislature passed a bill during its second session that allowed for the purchase of adult-use cannabis via delivery and curbside pickup. The bill became law without Gov. Janet Mills’ signature on April 26, 2022.

That law required the OCP to adopt rules to implement the portions of the law governing delivery and curbside pickup.

A draft version of those rules included requirements for video surveillance of transactions conducted either through curbside pickup or delivery.

“A sufficient number of cameras shall be permanently affixed to allow recording of all transactions conducted in areas designated by a cannabis store for curbside pickup by customers, including any areas not included in the licensed premises of the cannabis store but immediately adjacent to the primary public ingress and egress of the cannabis store where the cannabis store intends to conduct curbside pickup by consumers,” the proposed rules read in part.

The rules also included a similar requirement for transactions conducted via delivery.

“Cameras recording sales via delivery must be sufficient to record the entirety of the transaction and to ensure facial identity,” the rules stated.

Under the proposed rules, surveillance recordings of transactions must be uploaded to a surveillance system server, including any third-party servers a cannabis store might use, within 24 hours of recording. Recordings would be required to be kept on the recording device for a minimum of 45 days.

Existing OCP rules, which require entry and exit point cameras to identify people leaving and entering cannabis stores, also require all video recordings to be subject to inspection by any DAFS employee and to be copied and made available to DAFS employees upon request.

In July 2021, a bill banning the use of facial surveillance by public officials became law without the governor’s signature after unanimously passing both legislative chambers. It went into effect on October 1, 2021.

The law bans government departments, public employees, and public officials from obtaining, retaining, possessing, accessing, requesting, or using facial surveillance systems, as well as using information obtained from searching a facial surveillance system.

It also banned the state from entering into a third-party contract for the purpose of obtaining or using facial surveillance data.

The law has limited exceptions related to when surveillance data may be useful in identifying a person suspected of committing a crime, or help identify a person believed to be missing or endangered. The Bureau of Motor Vehicles can also make a request for the search of a facial surveillance system.

The ACLU objected to the draft cannabis rules on the grounds that they violated the facial surveillance ban.

“Section 3.3.1(D) of the proposed rule would require facial surveillance at all cultivation facilities, testing facilities, products manufacturing facilities, and cannabis stores (collectively, “cannabis establishments”). These rules would needlessly expose customers and workers in the cannabis industry to privacy-violating tracking and data collection. More importantly, they would violate Maine’s – the nation’s strongest – facial surveillance ban,” ACLU policy counsel Michael Kebede wrote in a July 25 letter to OCP’s policy director.

The final rules posted by the agency on September 8 include the same language for recording requirements as the draft rules. The new rules also include a section stating surveillance requirements are not intended to violate the state’s facial surveillance ban, which was not included in the draft rules.

“Video surveillance is not intended to include the use of any computer software or application that performs facial surveillance as defined by 25 MRS § 6001 (1) (D) and (E),” the new rules state.

DAFS did not return a request for comment about whether the agency believes the addition of this section rectifies possible legal conflicts between the rules and the facial surveillance ban. It also did not return a request for comment about whether it believed the rules would survive potential legal challenges.

About Katherine Revello

Katherine Revello is a reporter for The Maine Wire. She has degrees in journalism and political science from the University of Maine. Her writing has appeared in Reason, The Washington Examiner, and various other publications. Got news tips? Contact Katherine at krevello@mainepolicy.org.

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