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; and data brokers. Part III briefly concludes the Article.
Do state constitutions afford guarantees to individual rights independent of those afforded by the United States Constitution? If so, do those state guarantees differ significantly from their federal counterparts? In the context of the Declaration of Rights set out in the Maine Constitution, the answer to both questions is yes. Because state constitutions are a “font of individual liberties,” the Maine Law Court has adopted the primacy approach to interpreting the Maine Constitution. This approach gives the Maine Constitution the significance that it deserves as a consequential guarantor of the rights of Maine people, comports with principles of federalism, and promotes judicial restraint. Moreover, the primacy approach recognizes that some guarantees contained in the Declaration of Rights are broader than those set out in the first ten amendments to the United States Constitution. In particular, the free exercise clause in Article I, Section 3 of the Maine Constitution is more expansive than its counterpart in the First Amendment, as it has been interpreted in Employment Division v. Smith. Article I, Section 3 contains specific language ensuring that the state may not burden the free exercise of religion absent limited, compelling government interests. This text reflects the founders’ commitment, clearly expressed in the constitutional debates prior to the adoption of the Maine Constitution, to a generous conception of religious liberty. Only a firm commitment to independently interpreting the state constitution will ensure that the liberties guaranteed therein will be adequately protected.
