The Development and Future of Privacy Law in Maine

Abstract

In the United States, privacy law has traditionally developed in concert with intrusions created by newfangled technologies. This pattern has held true in Maine. Beginning in the late 1960s, the state has experienced three eras of privacy reform that track the technological advances of the mid-century, the internet era, and the new era of social media and big data. This Article details these three eras of reform and advances several proposals for responding to the challenges posed by the era that we are living through today.

Indeed, at the beginning of the 2020s, there is much work on the horizon to ensure that Maine’s privacy laws keep up with new technological and social developments. The coronavirus pandemic looms large over all facets of society and privacy law is no exception. The pandemic had made us even more reliant on online services that collect, use, and share previously unfathomable quantities of data, leaving residents’ personal information vulnerable to misuse. Increased attention to racial injustice and over-policing in the wake of George Floyd’s tragic murder have likewise highlighted privacy issues with which Maine must continue to grapple. Finally, Northeastern University recently opened the Roux Institute in Portland, offering various graduate-level degrees pertaining to the practical application of artificial intelligence and machine learning in the digital and life sciences. This development offers exciting educational and economic opportunities for the state, but also indicates that regulating AI and machine-learning technologies will be important to preserving Mainers’ privacy rights in the near future. All of these recent challenges, moreover, have emerged against the backdrop of the existing privacy threats posed by social media, big data, mass surveillance, and more.

This Article is thus well-timed to inform those who will be tasked with shaping Maine privacy law in the coming years and decades. In Part I of the Article, I detail the three eras of reform highlighted above. In Part II, I propose that Maine enact a general consumer privacy law endowing Mainers with certain rights to their personal information, vesting consumer privacy rulemaking authority in a state agency, regulating automated decision-making technologies, and more. After proposing the general consumer privacy law, I identify four privacy threats that warrant additional attention from the legislature: facial recognition technology; biometric information; smart-home devices; data brokers; and the Maine Information and Analysis Center. Part III briefly concludes the Article.

Keywords: Maine, privacy, data brokers, facial recognition, face recognition, facial surveillance, face surveillance, drones, big data, artificial intelligence, machine learning, social media, personal information, personal data, GDPR, CCPA, biometric information, smart-home devices, surveillance capitalism