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Bipartisan bills would limit police use of tech

Two senators — a Democrat and a Republican — will team up in the General Assembly on a legislative package to limit law enforcement’s ability to use cellphone, airborne-drone and license-plate tracking of criminal suspects.

High-tech surveillance raises a bevy of constitutional and civil liberty concerns, particularly the Fourth Amendment’s protection against unreasonable searches as well as fundamental privacy rights, said Sens. Jamin B. “Jamie” Raskin and Christopher B. Shank.

“Technology is advancing at a breathless pace and our civil liberties and rights haven’t quite caught up with the technology yet,” said Raskin, D-Montgomery. “It’s getting Orwellian out there.”

Shank, R-Washington, said the tracking technologies serve “valid law enforcement purposes” such as preventing and solving crime, but, if unchecked, could enable the police to “basically spy” on law-abiding citizens.

“It’s a little bit disconcerting to me,” Shank added. “We need to balance that [privacy rights] against law enforcement’s need and desire to have this enhanced ability to surveil.”

Two of the bills would permit the use of cellphone and drone-tracking technology if police have secured a search warrant based on probable cause that the targeted individual is involved in criminal activity that could be revealed via the surveillance. Police also could use the high-tech surveillance without a warrant in an exigent circumstance, such as if the commission of a violent crime was imminent, or with the individual’s consent.

Shank, for example, cited law enforcement’s use of drone surveillance to catch suspected Boston Marathon bomber Dzhokhar Tsarnaev.

A third bill would enable police to use automatic license plate recognition to identify the car’s owner and whether the vehicle was used in a crime; however, it would require the officers to delete the data if the information yields no wrongdoing.

The bill’s purpose will be to ensure that innocent people are not “being surveilled and recorded for posterity,” Raskin said.

Shank praised the technology for helping police find stolen vehicles and discover drivers with suspended licenses. But he voiced concern with the potential for police to use the tracking technology as a “harassment tool” and for “data mining to track movements” of motorists without probable cause to suspect them of wrongdoing.

Raskin, a constitutional law professor, said the legislative package is “all about striking the right balance under the Constitution” between the needs of law enforcement and the protection of people’s privacy.

“The task has always been whether we can make government strong enough to keep peace and order but not so strong as to become a threat to the liberties of the people,” added Raskin, who teaches at American University’s Washington College of Law.

Raskin said the legislative package largely mirrors the U.S. Supreme Court’s Fourth Amendment jurisprudence regarding the need for search warrants based on probable cause. However, he said, the legislation is necessary to ensure that the existing jurisprudence applies to emerging law-enforcement technology.

“[Lawmakers] can go ahead and protect the privacy concerns long before the Supreme Court takes up” cases involving these new tracking systems, Raskin said. “We can promote the constitutional values ourselves.”

The Maryland State Police is not involved in drone tracking, MSP spokeswoman Elena Russo said Thursday,

The agency is “not violating any constitutional issue” with regard to the use of license plate-recognition technology, and complies with all laws governing the technology, she added.

“The information is only maintained if there is a hit” for a criminal or civil violation, Russo said.

Russo did not address cellphone tracking, saying she had not had the opportunity to discuss the issue with department personnel.

The cooperation between the two senators on a law-and-order issue is a sharp departure from the last General Assembly session, during which the liberal Raskin and conservative Shank were diametrically opposed on abolishing capital punishment in Maryland.

But Raskin, whose call for abolition prevailed, said he is not surprised that this Senate odd couple has found common ground.

“True liberals and true conservatives unite over the Bill of Rights,” Raskin said.”Everybody should be concerned about the threats posed by new technologies.”

Shank agreed.

Legislators across the political spectrum can find common ground when “our fundamental right to privacy [could be] threatened by government,” said Shank, an executive director at Lansdowne, Va.-based Justice Fellowship, a criminal justice reform group. “This is one of the most pressing public policy issues.”

Raskin and Shank are both members of the Senate Judicial Proceedings Committee, the panel expected to review the legislation during the coming General Assembly session, which opens Jan. 8.