The General Assembly House Judiciary Committee is revisiting whether police use of surveillance technology without a warrant is constitutional as delegates prepare for the 2017 legislative session.
State Del. David Moon (D-20), who represents Montgomery County and sits on the committee, said the committee halted two surveillance bills marked “unfavorable” during the 2016 legislative session, to schedule a study, or briefing, which they held in Annapolis Oct. 25.
Moon and state Del. Charles Sydnor III (D- 44B) of Baltimore County each sponsored one of the bills.
Moon said he is concerned law enforcement officers can test new technology without notifying the public.
“We know the trend is law enforcement is going to use it until they’re told not to or until (they’re regulated),” Moon said.
He and Sydnor agreed technology that police can use for surveillance is developing at a faster rate than the General Assembly can pass laws to regulate it.
In addition to cell tower simulators and tracking historical data of cell phone locations courtesy of cell service providers, the briefing also included aerial surveillance by plane.
Facial recognition software that can compare file photos of suspects with social media profiles came up.
“Because of how quick the technology develops, it’s easy to find loopholes in the way that they’re (laws are) written,” Moon said.
Sydnor said he wants to make sure that law enforcement is using surveillance constitutionally, but existing law does not cover the new technology the committee discussed in the briefing Oct. 25.
“If you speak to any law enforcement agency, they’ll say they use technology within the law,” Sydnor said. “I think there needs to be some transparency so people are aware of what type technology (is) used by (officers).”
Sydnor pointed out that while police in Maryland may be allowed to collect some information of mobile devices, the technology is capable of collecting information he believes is comparable to wire-tapping, which requires a warrant.
He said he believes the public should know what technology police are using to monitor them.
Some of the issues in law regarding surveillance technology regard the classification of the tools, which can affect the terms under which police can use them.
Sydnor said law enforcement officers did not consider the cell tower simulators to be the equivalent of a search, which requires a warrant under the constitution, during the 2016 hearings on the surveillance bills.
That changed Oct. 25. They said they now equate it to a search.
Moon said he believes the public should have an opportunity to comment on proposed surveillance methods before police use them, even if they are likely to support them.
Moon said he may begin drafting legislation on surveillance during the next few weeks. The two bills introduced this year may change.
“I would think that changes are probably likely, mainly because we halted both of the pieces of legislation this year to make room for the (presentation we just had),” Moon said.