Like many Mainers, Dale Rappaneau cherishes the privacy afforded by the physical space of his home. His Bowdoinham home is surrounded by fields, a winding blue river and a forest teeming with wildlife.

But when it comes to his digital life, there is no guaranteed expectation of privacy. Society’s increasing reliance on technology allows companies to collect vast amounts of personal data, track one’s movement, purchases and associations, and sell or provide that data to government organizations and private companies.

That’s why Rappeneau, a law student, is supporting a bill sponsored by Rep. Margaret O’Neil, a Democrat from Saco, that seeks to explicitly grant the right to privacy in the Maine Constitution.

“Even if someone lives in a rural Maine area and enjoys the quiet privacy of nature, they likely cannot escape the inevitable digital intrusion into their private life,” he said, “because their cellphone, social media, online behavior – it all involves third parties collecting information and potentially using, or even selling, that information without the person’s knowledge or consent.”

The proposed constitutional amendment would add privacy as a natural right and says law enforcement must secure a warrant before searching or seizing an individual’s electronic data or electronic communications. “All natural persons have an inherent right to privacy that is free from intrusion, including privacy of a natural person’s personal life, personal communications, private affairs and personal thoughts or inner life,” it reads.

The bill is one of three constitutional amendments being considered this session. And it’s one of several privacy-related bills, including one that would limit a third party’s ability to collect certain public records, such as eviction cases, or determine a consumer’s eligibility for consumer credit, employment or residential housing. Another would restrict the installation of cameras outside one’s home.

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The Judiciary Committee is expected to hold a work session Thursday on O’Neil’s right-to-privacy proposal, which has been amended since it was first drafted last year. To be enacted, it needs the approval of two-thirds of the Legislature and a majority of Maine voters.

There has been no public opposition to the bill. A similar constitutional amendment was proposed last year by a Republican lawmaker, former Rep. Justin Fecteau of Augusta. O’Neil said she worked with Fecteau to combine the bills, producing the amended version that will be discussed Thursday. The bill is supported by the American Civil Liberties Union of Maine.

Rep. Margaret O’Neil, D-Saco, says a constitutional right to privacy is needed because technology changes quickly and lawmakers and courts struggle to keep pace. Contributed photo

The real world impact of the right to privacy amendment is unclear. But advocates said it would lay the legal foundation to begin setting limits on the types of personal information that can be collected and who can access it, including law enforcement.

Thirteen other states have adopted constitutional rights to privacy, including New Hampshire, Missouri and Michigan, according to the National Conference of State Legislatures. There is no explicit right to privacy in the U.S. Constitution.

O’Neil said a constitutional right to privacy is needed because technology changes quickly and lawmakers and courts struggle to keep pace. She noted that it was only three years ago that the U.S. Supreme Court clarified that warrants are needed for law enforcement to access cellphone location data. And six years ago, the court ruled that warrants are needed to search someone’s cellphone without consent.

“The good thing about a constitutional amendment is we would have a backstop,” O’Neil said. “That way, if we don’t have a law that’s on point, we would have this safeguard.”

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“I think it’s a really pressing issue for where we are in society,” she added. 

Sen. Lisa Keim, R-Dixfield, who serves on the Judiciary Committee, said the bill “is of great interest to me,” but she wanted to see the amended language before commenting further.

A spokesperson for state Attorney General Aaron Frey did not respond to a request for comment on the proposal.

Shannon Moss, spokesperson for the Department of Public Safety, referred all questions to the governor’s office, which could not be reached Friday afternoon.

As technology has grown, so has government surveillance. Maine State Police has experimented with using facial recognition technology in the past and would not disclose whether it has used other technology, such as cell site simulators, which can track people through their cellphones.

The use of facial recognition software was banned by the state Legislature last session, partly because it misidentifies people of color at higher rates than white people.

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The Maine Information and Analysis Center, one of several fusion centers created in the wake of 9/11, uses open source information from the internet to gather information on groups and organizations not suspected of committing crimes.

And some law enforcement agencies nationwide have turned to private companies, like Clearwater AI, to conduct facial recognition searches. In 2020, the New York Times reported that over 600 law enforcement agencies were using Clearwater AI’s technology to help solve crimes.

Scott Bloomberg, an associate professor at the University of Maine School of Law, said that an explicit right to privacy does not exist in either the state or federal constitutions. Instead, a piecemeal approach has been taken to protect certain aspects of privacy.

The Fourth Amendment protects against unreasonable searches or seizures by the government. Another law protects the privacy of certain information, such as personal health records.

Bloomberg said adding a right to privacy to the state constitution would help ensure privacy in an increasingly technological world.

“I think that’s an important protection, both immediately and into the future, where we don’t know where this big data universe is going,” Bloomberg said. “We don’t know how government might use this information in the future and … (a right to privacy) can provide protection against abuses that we can’t even really imagine that may come down the line in the future.”


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