Elek Miller Comments on Case Law Related to Maine Lobstermen Claim That Tracking Devices Violates Their Privacy Rights

Published by the Portland Press Herald
January 3, 2024

Five lobstermen are suing the Maine Department of Marine Resources over a new regulation that requires tracking devices on boats that fish in federal waters, saying the devices violate their privacy rights.

The trackers had to be installed by Dec. 15 under a new regulation from the Atlantic States Marine Fisheries Commission. According to the department, the trackers periodically monitor the locations of a lobstering or crabbing vessel to help identify fishing patterns, which are then used to help grow the fishing stock and better protect the endangered North American right whale population – a contentious issue in the fishing community.

But the lobstermen and other fishing groups believe the trackers violate multiple amendments of the U.S. Constitution and threaten the fishermen’s personal and commercial interests.

Elek Miller, the lead attorney at Drummond Woodsum’s privacy and data security practice, said the law is evolving to classify geolocation data as personal information that deserves protection under the U.S. Constitution.

“The whereabouts of a person through their vehicle, car or boat, says a lot about that person’s activities, and can say a lot about a person,” Miller said. “Movement can provide a pretty clear, detailed window into somebody’s life or certain activities, certain behaviors, particularly if it’s collected over a longer period of time. … It’s highly sensitive information that needs to be treated carefully and protected if it is going to be collected and used only in certain ways. That’s how the law has treated those situations where it has so far directly addressed geolocation data.”

Miller, who is not affiliated with the lobstermen’s lawsuit, is interested to see how the case plays out. He wonders what kind of impact it could have beyond determining the level of privacy protection for Maine’s fishermen.

“A case like this could help to further define the legal landscape of individual privacy rights in some way, whether broadly or narrowly,” Miller said.

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