First Circuit unbothered by Maine’s lobster boat snooping

BOSTON (CN) — Maine’s plan to install GPS tracking devices on all lobster boats and monitor their exact location at all times went before the First Circuit Monday, but the court seemed unconcerned that this could be an invasion of the fishermen’s privacy.

“It makes sense to me,” U.S. Circuit Judge Seth Aframe said at oral argument.

The devices are required on all commercial lobster boats and record the boats’ location every minute at sea and every six hours on shore. They can’t be turned off, and they record all activity, even if the boat is being used for recreational or other non-commercial purposes. They’re Bluetooth-compatible and can collect audio information, although the state denies that it’s secretly recording anyone’s conversations.

Five lobstermen challenged the rule in court, claiming it was an unreasonable search under the Fourth Amendment. A trial judge upheld the Maine rule under existing precedent for administrative searches but found the issue so disturbing that he took the unusual step of recommending an appeal to the First Circuit.

The mariners immediately ran into choppy seas before the three-judge panel, however, as the judges credited the state’s claim that it needed to track lobster stocks and protect against interference with whales.

“The lobster stock is changing dramatically,” explained Sean Donahue of Donahue, Goldberg & Herzog in Washington, D.C., representing the Atlantic States Marine Fisheries Commission. “In New York, the catch is 3% of what it was 20 years earlier. In Maine, there’s a clear movement toward colder waters. The data require careful assessment, and this is critical.”

Maine’s lawyer, Assistant Attorney General Valerie Wright, said the GPS devices were actually better for the lobstermen than the previous practice of forcing them to keep written logs. “The GPS doesn’t burden the lobstermen at all and doesn’t add significant cost,” she said.

She added, “If another regulator wants to use an area, and we say no because there’s a lot of lobster activity there, they’ll say, ‘Where’s the evidence?’ And we’ll have it. Our ability to advocate for the lobstermen is strengthened.”

“Our real interests have suffered with bad data,” Aframe challenged the lobstermen’s lawyer, Edward Wenger of Holtzman Vogel in Washington, D.C. “Now we can get good data, and your response is you can’t do it.”

Wenger said the GPS was an invasion of privacy because it also tracked noncommercial activity, “such as if you’re teaching your son how to sail a boat.”

“But that’s your choice,” Aframe said. “You’ve licensed your boat. Now you want to use it for other things. But that’s not a reason to unravel the regulatory scheme for the main purpose, which is lobstering.”

“I give up my entire expectation of privacy if I want to go on a joyride,” Wenger objected.

“If you use that boat,” Aframe shot back. “You could use another boat. This is your business vehicle.”

Wenger added that many families only have one boat that is passed down from generation to generation. “These folks are not rich, and the boat is part of the lifestyle of the Maine lobstering community.”

He added that some of his clients are fifth-generation fishermen.

Wenger then attacked the good-data claim. “All this tells you is where the boats are, and it means nothing if they’re tracking recreational activity. Someone might be slowing down for a pot, but if someone is slowing down to look at a fantastic sunrise, the GPS can’t tell the difference.”

He added, “The info is where the buoy lines are, not where the boats are moving. Why don’t you track where the pots and traps are? You can get to that same info without trampling on people’s privacy.”

But Donahue said a less intrusive method had never been identified. He ridiculed “the idea of a signal on each lobster trap; there are thousands and thousands, and it would be prohibitively expensive.”

Wright said that as long as the government has articulated a need in a closely regulated industry, “it’s under no obligation to show that it’s the best way or the least intrusive way.”

“The expectation of privacy in a closely regulated industry is extremely reduced,” she added. “I’m not saying it’s zero, but it’s extremely reduced.”

Donahue told the judges that only aggregate data is kept and law enforcement wouldn’t be able to use it to track any individual fishermen.

Aframe, a Joe Biden appointee, seemed satisfied. “The whole point of this seems to be good data, and [the GPS] means taking the burden off the lobstermen and making it easy for them.”

U.S. Circuit Judges O. Rogeriee Thompson, a Barack Obama appointee, and Lara Montecalvo, another Biden appointee, rounded out the panel.