Posted by Thomas Nephew on March 10th, 2009
Legislative efforts to prevent a repeat of the infamous Maryland State Police spying scandal are coming to a head this week. Naturally, there are competing bills, and the founding fathers wouldn’t be surprised at how they compare — Governor O’Malley’s preferred bill (HB 311/SB266) stands for “we’ll handle this from here,” while the bill by progressive legislators like State Senator Jamie Raskin and Delegate Sheila Hixson (HB 182/SB256) stands for “no you won’t.”
While the Frosh/O’Malley bill would be better than nothing, it leans dangerously far in the direction of permitting a good deal of what occurred during Maryland State Police’s “amok years” in 2005 and 2006,* and in leaving the door as widely ajar as possible for as much future covert surveillance as possible, all under the catchall term “legitimate law enforcement.” For instance:
(D) The Department shall:
(1) conduct all investigations involving First Amendment activities for a legitimate law enforcement objective [...]
(F) An investigation involving First Amendment activities shall be terminated when logistical leads have been exhausted and no legitimate law enforcement purpose justifies the continuance of the investigation. [...]
(K) Nothing in this section may be construed to prohibit a Department employee, in the course of the employee’s duties, from visiting any place… that is open to the general public… if the Department employee has a legitimate law enforcement objective.
That might not sound so bad until you realize that what’s legitimate and what isn’t is precisely what was and is at issue — and that it remains completely undefined in this proposed legislation. The Baltimore Sun reported that State Senator Jamie Raskin, by contrast, rightly believes that police need an “explicit guide,” adding:
“Having them write their own rules is not the solution,” Raskin said. “That was the problem.”
Indeed, even “writing their own rules” is being generous — the O’Malley bill doesn’t even seem to require explicit State Police revised rulemakings, settling instead for vague directives about how it might go about its business. Raskin’s bill is better from start to finish, providing specific descriptions of covert surveillance, and requiring specific actions whenever covert surveillance of “protest or advocacy entities” or individuals is envisioned. To wit, the State Police chief would have to make “a written finding, including specific factual determinations… that the use of the covert technique is justified because (1) a reasonable, articulable suspicion of a present or planned violation of the law; and (2) a less intrusive method is not likely to yield satisfactory results .”
As the ACLU of Maryland writes — in a form e-mail you can add your name and thoughts to –
It is disturbing that the Administration is promoting a bill (HB 311/ SB 266) that fails in numerous ways to set the necessary standards to protect the First Amendment while opposing legislation that does establish strong standards, HB182/SB256. In fact, the Administration bill would actually condone some of the worst spying that has occurred.
It’s not just the O’Malley administration that doesn’t seem to get what’s at stake, though. State Senate Majority leader Mike Miller is playing his usual “Blue Dog” like role, defending former State Police chief Tim Hutchins as a “true patriot,” adding that “if he had any role or position in this, I’m confident that he did it on advice of subordinates who convinced him it was in the interest of the state of Maryland.” Senator Miller can be as obtuse as he likes about who instigated the investigations (cough ex-Governor Ehrlich cough), but it verges on obscene to call someone a “true patriot” who defended the surveillance as only being of “fringe groups,” as the Washington Post’s Lisa Rein reported his testimony to the Maryland Senate.
Raskin’s bill weighs in on the side of surveillance victims in requiring that the State Police give them access to unredacted relevant database entries. I’m also pleased to notice Raskin’s bill refers directly to the use of the federal “Case Explorer” database, albeit only to require that the State Police update Maryland legislators about its efforts to revise or discontinue use of that database.
I would have liked Raskin’s bill to include some language about agreements with outside agencies pledging those agencies to purge illegitimately acquired data as well, on pain of cutting information sharing ties. I also would have preferred some notion that mere civil disobedience doesn’t rise to the level needed to justify covert surveillance. But I may be missing something in the legislation, or that may have been politically infeasible.
I’m certainly pleased with the extensive language prohibiting dissemination of protected information. And Raskin’s legislation deserves “landmark” status for requiring specific regulations governing the management of databases involving “criminal intelligence information relating to protest or advocacy entities,” including that the database be…
(I) audited periodically for relevance to criminal activity, timeliness, accuracy, and reliability; and
(II) purged on an appropriate cycle;
… as well as that that unlawfully/inappropriately entered information be purged promptly, the existence of the information and the date of purging be recorded. That’s “landmark” to me because all too little attention has been paid to the hamster-like accumulation of data to little purpose, and it’s great to start with cases like peace, environmental, anti death penalty and other groups where that data gathering is clearly unjustified.
It isn’t “just” the First Amendment that’s at stake — the Fourth Amendment’s requirement for “reasonable search and seizure” of our “effects” arguably is as well. As the Baltimore Sun’s Peter Hermann has observed (“Maryland databases have rich harvest of names“), Maryland police have ever growing mountains of data at their fingertips:
Since February, nearly every law enforcement officer in Maryland has a new tool called “Dashboard” that draws data from at least two dozen separate Maryland sources and funnels the information onto a single computer screen.
Want to know how much money a convicted felon had in his prison bank account? It’s there. Want to know if the man you think raped his neighbor has his DNA on file? It’s there. Want to know if someone is on probation? Not only can you find out he is, but you’ll find others in his neighborhood who are, the names of their probation agents, whether they have hunting or fishing licenses, lists of traffic tickets, whether they’re registered sex offenders or owe back taxes.
Some of this sounds reasonable — but even felons and ex-cons have rights, that’s why they’re called “rights,” not “privileges.” The point is that both the data and the methods used to analyze those data (see Hermann’s final points) can all too easily be mistaken, and these kinds of queries can all too easily invade privacy as ever wider nets are cast. Don’t be all too quick to cast away someone else’s rights — you fishing license owner you.
Some thought needs to be given to what legitimates law enforcement inquiries, not just to defining them as legitimate in advance. Raskin’s bill points the way with its requirement for audits and oversight; judicial scrutiny of these kind of database dragnets may be warranted as well.
* At minimum; the ACLU could only obtain documentation for 2005-2006.
For PRIOR POSTS on the Maryland State Police spying scandal, click here; for the ACLU of Maryland’s resource page on this issue, click here.
UPDATE, 3/10: Credit where credit is due — the Feb 24 Washington Post editorial “The Keystone Spies” is very good: “It appears that investigators were closer to finding a good snickerdoodle recipe than they were to uncovering a scintilla of intelligence about wrongdoing.”
UPDATE, 3/13: In an e-mail, State Senator Jamie Raskin points out the breadth of the legislation he’s advocating: “This Act will require every law enforcement agency in the state–not just the State Police–to adopt regulations incorporating these principles.”