Posted by Thomas Nephew on 10th March 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.