Transportation chief reins in audio surveillance idea
By Michael Dresser
Maryland’s acting transportation chief, citing concerns about privacy, has pulled back an internal proposal to use listening devices on its buses and trains for recording conversations of passengers and employees.
The Maryland Transit Administration had been considering adopting a system that would allow it to conduct audio surveillance similar to that in several other large American cities.
The idea was first reported late last week by the Maryland Politics Watch blog, which reported that the MTA’s top official had requested an opinion from the Attorney General’s Office on the legality of such surveillance.
After inquiries from The Sun Monday, acting Secretary Beverly Swaim-Staley ordered the request withdrawn.
"It certainly should have been vetted at the department level and it was not," she said. "We have not weighed the issues we should weigh before making a decision like this."
Swaim-Staley said she would review whether the state would move forward with such a program.
"Any privacy matters are of the ultimate importance," said Swaim-Staley. "They’re the ultimate test of people’s trust in government."
The request to the attorney general had sought legal guidance on whether using such equipment would violate Maryland’s anti-wiretapping law.
In a July 10 letter, MTA Administrator Paul J. Wiedefeld noted that the MTA already uses video cameras for security aboard its vehicles.
"As part of MTA’s ongoing efforts to deter criminal activity and mitigate other dangerous situations on board its vehicles, Agency management has considered adding audio recording equipment to the video recording technology now in use throughout its fleet," Wiedefeld wrote.
According to the administrator, the MTA staff decided the idea raised legal issues and sent a letter seeking an opinion from the attorney general on whether such electronic eavesdropping would be legal and, if so, under which circumstances.
The MTA asked the attorney general to clarify whether the Maryland’s Wiretapping and Electronic Surveillance Act would require the MTA to obtain the consent of passengers before recording their conversations. If consent is required, the MTA asked whether posting a sign informing riders they were under audio surveillance would be sufficient notice.
Swaim-Staley, who is filling the vacancy left when John D. Porcari resigned to join the Obama administration, said the legal question was posed prematurely, before the issue could be reviewed from a policy perspective.
The acting secretary said she had not seen the letter as of last evening. "I have not even had the time to sit down and discuss it with Paul," she said.
Swaim-Staley said her decision should not be interpreted as a rebuke of Wiedefeld. "I think he’s a terrific administrator and I think he’s been doing a good job under very difficult circumstances."
By backing off the proposal, Swaim-Staley may avert a confrontation with the General Assembly. Legislators who were contacted, reacting to the contents of the letter, said any audio surveillance program would likely have prompted lawmakers to introduce legislation to prohibit the practice.
"Do we really need to stoop that low in order to keep order?" said Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee. "It’s that 1984 question ultimately: Do you want government delving that closely into everybody’s personal life to maintain our safety?"
Senate Minority Whip Nancy Jacobs, a Harford County Republican, said there would have been bipartisan resistance to the idea. "I imagine most of the Republicans would feel it was another government intrusion," she said.
Dave Rocah, a staff attorney with the Maryland chapter of the American Civil Liberties Union, reviewed the letter at the request of The Sun. He noted that nothing in it indicated the MTA would not be able to listen in to the conversation of two people sitting together in the back seat of a bus.
"The government shouldn’t be snooping on that conversation absent an adequate individualized need," Rocah said. He said that would involve obtaining a warrant based on probable cause.
In an interview before Swaim-Staley’s decision, Wiedefeld said the agency had no intention of monitoring private conversations. He said the agency was considering using audio only as an after-the-fact investigative tool in the event of a criminal incident or crash.
According to the administrator, the decision to seek the legal opinion was prompted by the fact that many of the video security cameras now in use come equipped with the capability of recording sound. He said that a number of large transit agencies such as those in Cleveland, Denver and Chicago have decided to use the audio.
"It’s something that’s becoming the standard of the industry," he said.
Wiedefeld said the MTA was simply trying to determine whether it would be legal to, in effect, flip the "on" switch for the audio in the some of cameras it employs now. Even before the acting secretary’s move, he stressed that no decision had been made that the MTA would use audio surveillance even if given the green light by the attorney general.
While some large transit agencies may be moving in the direction of audio surveillance, the two closest to Maryland say they are not.
To my knowledge, that's not ever come up at all in any conversations, said Steven Taubenkibel, a spokesman for the Washington Metropolitan Area Transit Administration.
Jerri Williams, a spokeswoman for the Southeastern Pennsylvania Transportation Authority, said the Philadelphia agency would not consider such taping because it would be illegal under Pennsylvania law.
"At this time audio-taping is not under consideration," Williams said.