When the State Legislature reconvenes next year, Maine lawmakers will consider two proposals that would strengthen Mainers’ right to privacy and place further restrictions on when an how state authorities are allowed to spy on residents or assist the federal government with domestic surveillance.
Both of these bills were carried over from the 131st Legislature’s previous session.
LD 1506 — An Act Restricting State Assistance in Federal Collection of Personal Electronic Data and Metadata
LD 1056 — introduced by Sen. Eric Brakey (R-Androscoggin) — aims to restrict the state government’s ability to assist the federal government in obtaining Mainers’ electronic information except under certain circumstances.
As it is currently drafted, LD 1056 would allow the state to help the federal government obtain Mainers’ data or metadata if at least one of the following applies:
- The individual whose information is being sought has given “informed consent”
- The “collection or use” of the data or metadata in question is “pursuant to a warrant” that is “based upon probable cause”
- The “collection or use” of the relevant data or metadata falls under “a legally recognized exception to the federal warrant requirements”
“One thing l have always appreciated about the Maine Legislature is the bipartisan support this institution has demonstrated over the years for the 4th Amendment rights of the Maine people,” Sen. Brakey said in his testimony introducing the bill.
“While Maine has endeavored to hold our officials to the high standards of our Constitution, our federal government has shown no such regard,” Brakey said. “That is why this legislation is needed.”
“This bill is known popularly as the ‘4th Amendment Protection Act,'” Brakey said. “lt would prohibit state, county, and municipal officials from assisting, participating with, or providing material support to the federal government in the collection or the use of a person’s electronic data or metadata, absent informed consent, proper due process, or another legally recognized exception to federal warrant requirements.”
As is noted in Brakey’s testimony — as well as during yesterday’s hearing — LD 1056 is a reintroduction of a bill that was brought before the state legislature several years ago.
During the 127th Legislature, Brakey introduced LD 531 — An Act To Establish the Maine Fourth Amendment Protection Act. Although the House successfully passed the bill — as amended by the Judiciary Committee — in a roll call vote of 82-58, the Senate ultimately went on to reject it in a vote of 25-9.
One key difference between the language from the 127th Legislature and that which is currently up for consideration is the inclusion of an exception for data or metadata which is “otherwise in the legal possession of” the state government.
During yesterday’s Judiciary Committee meeting, Brakey noted that he “very much favors” this language, arguing that it “strikes a proper balance” and “addresses some of the concerns” that have been raised by stakeholders.
Brakey also said during yesterday’s meeting that he “appriciate[d]” having LD 1056 and LD 1576 “paired together” for the work session because they are “linked in their purpose,” with LD 1576 serving as an “unintentional companion” to his bill.
According to Brakey, LD 1056 helps to close loopholes in state law that would potentially allow officials to circumvent the carefully crafted 4th amendment protections on the books by using the federal government as an intermediary.
During the original hearing for LD 1506 back in March, several other key voices offered testimony with relation to this legislation — a representative of the American Civil Liberties Union Maine (ACLU Maine) testified in support of the bill, while several individuals from the law enforcement community and judicial system spoke in opposition to it.
The ACLU Maine emphasized how the proposed law would protect Mainers’ fourth amendment rights, particularly given how the courts notoriously struggle to keep up with technological developments in their case law.
Law enforcement officials brought a decidedly different perspective to the conversation. Generally speaking, their primary concern was that the bill — while they believe it is commendable in its purported purpose — would impede their collaborative capabilities with the federal government in ways that would provide Mainers with no meaningful privacy protections.
For example, one law enforcement representative — Major Scott Gosselin of the Maine State Police and the Department of Public Safety — suggested that they would be prevented from sharing social media screenshots with federal officials because “by their very essence they exist in digital form and would be included as items prohibited from federal collaboration.”
Attorney General of Maine Aaron Frey also testified in opposition to the bill, arguing that state-federal collaboration is essential for the investigation of technology-enabled crimes that typically occur at long distances across state lines. Frey also notes that the law would hamper the ability of the state to share and outsource “cybertips” from electronic service providers to federal authorities as is necessary.
“Cybertips” are generally understood as reports from electronic service providers — including social media companies — that are issued when they detect child exploitation on their respective platforms.
Concerns about the impact of the proposed law on investigations such as these — as well as on drug overdose investigations, where looking into a victim’s cell phone is often critical to the early stages of an investigation — were also a focal point during yesterday’s work session.
LD 1576 — An Act to Update the Laws Governing Electronic Device Information as Evidence
LD 1576 — introduced by Rep. Margaret O’Neil (D-Saco) — proposes several changes designed to strengthen Maine’s existing fourth amendment protection laws.
In addition to clarifying several definitions throughout Maine’s legal code, the legislation spells out the situations in which state officials would be required to obtain a search warrant before accessing Mainers’ electronic information, including:
- Obtaining information “directly” from an electronic service provider
- “Compel[ling] the production of or access to” electronic information from anyone other than the device’s owner
- Accessing electronic information “by means of physical interaction or electronic communication with” a device
In her testimony introducing the legislation, Rep. O’Neil states that “this bill is about clarifying when a warrant is required.”
“I started working on this idea while taking classes at Maine Law’s privacy program,” O’Neil said. “This idea came out of conversations with a fellow law student and former law enforcement officer about how clear warrant requirements should be established given the scale and kinds of data being searched in today’s world.”
“My goal is to extend the Supreme Court’s ruling regarding cell site location information, or CSLI, in Carpenter to apply to other types of electronic data,” she said.
In 2017, the Supreme Court ruled in the case of Carpenter v. U.S. that warrant-less acquisition of cell-site records violates the Fourth Amendment protection against unreasonable searches and seizures.
It was determined that the “third-party doctrine” — which states that information disclosed to a third-party carries no reasonable expectation of privacy — does not extend to cell-site location information due, in part, to the effectively involuntary nature of its disclosure to cell phone providers.
“Our Fourth Amendment law constantly plays catchup while new technology is constantly emerging in our economy that is saturated with the collection, storage, and use of our personal data,” O’Neil said in her testimony.
“As new technology emerges and evolves at a lightning pace, Americans wait for the courts to catch up and define the contours of our Fourth Amendment rights,” she said. “That gap creates a lack of clarity for both members of the public and law enforcement.”
“LD 1576 would require the government to get a warrant before obtaining personal electronic data and communication, including cloud data, when it is held by a third-party service provider,” O’Neil said.
“Fourth Amendment privacy jurisprudence has shown that the legislative branch lags behind emerging technology,” she said. “We struggled to keep up 100 years ago, and it’s especially difficult now.”
At the bill’s initial hearing back in May, a similar range of testimony to that which was presented for LD 1056 was also offered both for and against LD 1576.
The testimony submitted by ACLU Maine echoed many of the same desires as her comments on LD 1056, arguing that Mainers have a reasonable expectation of privacy when it comes to their digital information and state law ought to reflect this.
Law enforcement officials, on the other hand, raised practical concerns about the changes that would be enacted by this legislation, particularly with relation to their ability to respond to threats and crimes that are primarily investigated and uncovered in an online environment.
The Maine Prosecutors Association argued that proposed law is “incongruent with federal law and will cause questions, uncertainty that will only further leave victims of crimes without justice, and law enforcement without the pivotal first step investigative
tool that the changing landscape of technology requires.”
Attorney General Frey offered testimony neither for nor against the legislation, stating that “this bill poses significant challenges to our criminal investigation operations, significantly impeding investigations into computer crimes, financial crimes, and homicides, among others.”
Frey also noted, however, that O’Neil intends to engage in conversations about amending the proposed law to create “possible exceptions” that would “permit law enforcement to continue to operate as appropriate.”
“The Snowden leaks ten years ago revealed how little regard Washington, D.C. has for the fourth amendment rights of the American people,” Brakey said in a statement to the Maine Wire.
“Today, new digital technologies (like cloud-based data storage) come with many benefits and conveniences for consumers, but also increased exposure to government snooping,” he said.
“Under a 1970s Supreme Court precedent called the ‘third party doctrine,’ records shared with third parties are not subject to the same strict warrant requirements as those held only by the person,” Brakey explained.
“With cloud-based storage, more records than ever from your personal phone or computer are held by third parties and may be demeaned by the government without a warrant,” Brakey said. “On top of this, the government does not even notify individuals when their records are accessed in this way.”
“My legislation, the 4th Amendment Protection Act (LD 1056), is one of a pair of bills seeking to protect Maine people’s digital records from warrantless government surveillance through abuse of the third party doctrine,” Brakey stated.
Rep. O’Neil did not respond to a request for comment from the Maine Wire.