The Maine State Police will seek an outside review of whether its intelligence unit, which has been accused of illegally keeping data about law-abiding people, is violating federal privacy laws.
The decision comes in the wake of a week-long civil trial in which a federal jury found on Dec. 2 that the state police retaliated against a former trooper who pushed back against data collection practices he believed were illegal.
George Loder claimed that his state police supervisors removed him from a federal task force and then denied him another detective job because he resisted orders to share information about his task-force work with the Maine Information and Analysis Center. He also voiced concern that the unit, part of a nationwide network of so-called fusion centers, retained information about lawful activity in violation of federal law.
The allegations featured prominently at trial, as Loder’s attorney argued that the agency shouldn’t keep personally identifying information about people in the unit’s database without a connection to a crime. State police officials, meanwhile, repeatedly testified that the database, referred to as the “activity report,” does not fall under the purview of the federal privacy law in question because it is more of a record management system, not an intelligence database.
However, because the jury’s decision hinged on Loder’s retaliation claim, the trial concluded without settling the question about the legality of the center’s practices. On Wednesday, the state police’s highest ranking official said the agency would seek that clarity.
“Although we have reviewed the MIAC’s processes and databases in the past and have been comfortable that the Center is compliant with Federal Law, State Law and Fusion Center best practices, we continually strive to improve our operations in the MIAC and increase transparency when possible,” wrote Lt. Col. Brian Scott in an email. Scott is currently the agency’s top-ranking officer following the September retirement of Col. John Cote.
“To that end, we are committed to conducting another review of the MIAC’s daily operations to include a specific outside review of the ‘Activity Report’ that was raised during the trial,” he said.
The review will determine if a federal privacy law that governs law enforcement intelligence databases, referred to as 28 CFR part 23, applies to the fusion center, Scott said.
If the law does not apply, the review will still evaluate whether the fusion center’s database maintains “information that we should not be entering at all, or that we should not be holding on to after a predetermined period of time,” Scott said.
The agency is still considering options as to when the review would begin and who would conduct it, Scott said. The agency hopes to finalize those plans when a new colonel is appointed, likely next month, he said.
The meaningful review of the activity report is what critics of the fusion center and Loder’s attorney, Cynthia Dill, hoped would take place after the trial, they said.
“What needs to happen is a forensic evaluation of the system, by someone whose job does not depend on the outcome,” Dill said last week. “So much has changed since 2018 [when the events described at the trial took place] that it’s going to take someone to access to the activity report with the specific goal of comparing it to the requirement in the federal regulation when it comes to this kind of database.”
It’s possible that lawmakers who are critical of the fusion center could still move to rein in its powers regardless of whether the review finds the unit in compliance with the law.
“I don’t think Mainers want an unaccountable police agency snooping on them when they exercise their First Amendment and Second Amendment rights,” said Rep Grayson Lookner, D-Portland, who serves on the Legislature’s criminal justice committee and has been critical of the fusion center. He was referring to testimony about the unit’s retention of information about people who applied to purchase a firearm and people who engaged in political protests.
Lookner said he expects to see a bill during the upcoming session to regulate the unit’s activity, or go so far as defunding it. Democratic lawmakers unsuccessfully tried to defund the unit in 2021.