ANNAPOLIS — Law enforcement officials Tuesday told legislators they are willing to consider policy tweaks to their increased use of new surveillance technology but said those changes should not be incorporated into new law.
Some of the technology, such as the aerial surveillance used in Baltimore, began as battlefield applications that were adapted for civilian law enforcement use. Some legislators and privacy advocates, including the American Civil Liberties Union of Maryland, want state law to govern the use of the equipment.
“What I don’t think we need is a whole lot of laws telling us how we can do things when I have already proven to you that there is a whole lot of oversight,” said Baltimore County State’s Attorney Scott Shellenberger during a hearing before the House Judiciary Committee regarding the use of technology including cell tower simulators, aerial surveillance, geolocation tracking via social media and facial recognition systems.
“If you’re going to codify the protections that the court has already established, that is fine,” added Shellenberger, asking that lawmakers hold off until a related case can be decided by the U.S. Supreme Court.
But the tweaks that would be acceptable appear informal.
Del. Curt Anderson, D-Baltimore City, asked Shellenberger about a law that would require law enforcement agencies to purge cellphone numbers that were captured by surveillance equipment but determined to belong to people not under investigation. Shellenberger replied that could be done by email rather than a law and said the language could be added to applications used by prosecutors.
Shellenberger told lawmakers that cell tower simulators do not collect personal data, photos, social media accounts or even cellphone numbers. Instead, the system captures serial numbers assigned to each cellphone, numbers that must later be matched to the suspect under investigation.
Additionally, Shellenberger said there are multiple layers of court oversight on the use of the technology starting when they seek a court order or warrant.
“We get court orders,” Shellenberger said. “We do it the right way. We tell the defense counsel. We tell the judge and in that way they are afforded protection.
“If we don’t do what we said we’re going to do,” he continued, “we can be prosecuted for perjury,” he said.
Del. Charles E. Sydnor III, D-Baltimore County and the sponsor of legislation earlier this year that would have imposed requirements on how cell tower simulator technology can be used, questioned why the processes had to vary by jurisdiction and could not be codified.
David Rocah, senior staff attorney for the ACLU of Maryland, agreed and called on lawmakers to impose regulations on how new technologies can be implemented.
“It would be difficult to write a bill that substantively regulates every known and every unknown technology,” said Rocah. “That has to be done on a technology-by-technology basis. The rules that govern Stingray use should not be the rules that govern facial recognition technology.”
While some lawmakers expressed a hesitance to deal with the issue over and over again, privacy advocates said such repetition may be unavoidable and even desirable.
Rocah said the legislature can establish some basic ground rules by “democratizing the process” and requiring law enforcement to publicly disclose and discuss the technology they want to use before it is deployed. Then, the public and lawmakers can determine the public policies that would govern the use of each, Rocah said.
“There is an inevitability in this because the pace of technology outstrips the pace of legislation,” he said. “I think there is no escaping addressing these technologies specifically.”