Maine law enforcement monitoring hundreds of cellphones
The state’s attorney general say it’s necessary and warns that a new bill requiring police to get warrants would cost taxpayers $500,000.
John Patriquin/Staff Photographer In this December 2011 file photo, a Portland motorist uses a cell phone while driving on Congress Street. The Maine Attorney General’s Office has been monitoring geographic location data from hundreds of Mainers’ cellphones as part of various criminal investigations, the state’s top prosecutor said Wednesday.
AUGUSTA — The Maine Attorney General’s Office has been monitoring geographic location data from hundreds of Mainers’ cellphones as part of various criminal investigations, the state’s top prosecutor said Wednesday.
Deputy Attorney General William Stokes said his office estimates that a bill that would require police to get warrants to obtain cellphone records could cost taxpayers $500,000 over the next several years to pay the cost of monitoring police compliance.
But civil libertarians and other proponents of the measure, which the Legislature has given initial approval, question whether that cost estimate is inflated.
Maine is one of the few states that are considering legislation to regulate access to cellphone records. L.D. 415, sponsored by Assistant Senate Minority Leader Roger Katz, R-Augusta, an attorney, would force police to get warrants to access location information from cellphones or other GPS-enabled devices, except in emergencies such as imminent threats of bodily harm.
The main dispute between Stokes and the bill’s supporters, led by the American Civil Liberties Union of Maine, isn’t the warrant requirement, but a notification provision in the bill.
The measure would require police to tell people within three days if they have location information about them from their cellphone service providers. If that disclosure could jeopardize an investigation, police could ask a judge to delay notification for 180 days.
Although the bill has initial approval from lawmakers, it is on the Special Appropriations Table, where many bills die for lack of funding in the state budget.
In a fiscal note attached to the bill, the Attorney General’s Office estimates that it would need nearly $514,000 to handle the notification provision in the next four budget years. Of that, more than $234,000 would have to be funded in the next two-year budget.
That money would fund two research assistant positions in the office to monitor notifications, it says, and the cost would go up each year, from just over $100,000 in the first fiscal year to nearly $142,000 in the fourth. Stokes said those assistants would be a liaison between the office and two Maine State Police analysts, who process location information working with the office.
Shenna Bellows, executive director of the ACLU of Maine, said the fiscal note should be revised because the projected cost isn’t credible. “Either this fiscal note is an overstatement or there are a huge number of Mainers being tracked,” she said.
But Stokes said the group is oversimplifying the issue. As time goes on, he said, his department will monitor more and more complex cases, with an ever-increasing amount of oversight to monitor notification if the bill passes.
“This is what I do for work. The ACLU, do they do homicide investigations?” he said. “It’s a burden that has never existed before.”
He said complex cases – especially drug-related homicides – can involve many players and many cellphones, as potential suspects can have wide circles of associates.
“We’re trying to rule in or rule out whether this phone was near the scene of a murder,” Stokes said. “Some we’re going to exclude. ... Some will be nearby.”
Timothy Feeley, a spokesman for the Attorney General’s Office, said one current homicide case involves information from about 60 cellphones. Stokes said that isn’t common, but it can happen occasionally.
He said that when his office can, it seeks a probable-cause warrant to obtain cellphone location information. When it doesn’t have probable cause, it seeks a court order such as a subpoena, which has a lower burden of proof. In emergencies such as missing-person cases, police can invoke an exception that allows phone companies to give up data immediately, he said.
Law enforcement cannot legally listen to phone calls without a warrant, which requires showing probable cause of a crime. A warrant is not required, though, to get a list of numbers called and the times calls were made. In those instances, if officers demonstrate that the data they are requesting is relevant to an investigation, only a subpoena is needed.
Stokes said cellphone location information was used to great effect in the case of Nichole Cable, 15, of Glenburn, who was found dead in Old Town on May 20. Kyle Dube, 20, of Orono is accused of murder and kidnapping in the case.
Cellphone providers like Verizon Wireless and AT&T must comply with police requests, although they can charge fees.
“We comply with legal processes when dealing with requests from law enforcement,” said Michael Murphy, a regional spokesman for Verizon.
Cellphone towers can indicate a user’s location at any moment, and most smartphones are now GPS-enabled as well. Cellphones use location data for a growing variety of applications, including weather, mapping and websites that customize information based on geography.
According to ProPublica, an online investigative journalism news site, the country’s major carriers responded to at least 1.3 million requests from law enforcement for locations, text messages and other data in 2011.
Other states, including Delaware, Maryland and Oklahoma, have proposed laws similar to the law proposed in Maine, but none has passed. In September, California Gov. Jerry Brown vetoed a bill that would have required police to obtain warrants to get location data.
CTIA - The Wireless Association, a national trade group that represents wireless companies, has opposed such bills on the basis that they would burden companies and their employees.
Stokes said location information is particularly useful in homicide cases, and helps investigators of other crimes as well.
Geoffrey Rushlau, district attorney for Knox, Waldo, Sagadahoc and Lincoln counties, said cellphone location data is used relatively sparingly.
At his level, “generally speaking, it would have to be a pretty serious crime” to warrant use of historical information in a case, such as a major burglary or theft, he said.
The bill got overwhelming initial approval from the Legislature in late May – passing in the House 113-28 – despite opposition from a legislative committee, the Attorney General’s Office, the Maine State Police and the state Department of Corrections.
Though the fiscal note gives the bill another hurdle, Katz, its sponsor, said the Appropriations Committee has plenty of options. It could fund it, not fund it or direct the Attorney General’s Office to absorb the cost of the bill in its existing budget.
He said he doesn’t buy the cost estimate, but even if it does cost that much, “it’s a small price to pay” for privacy.
“I would be very surprised if it costs that much,” Katz said. “I’m hoping that the Appropriations Committee will take a hard look at the fiscal note and see if these costs will indeed be needed.”
-- Staff Writer Eric Russell contributed to this report.
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