Surveilled in Broad Daylight: How Electronic Monitoring is Eroding Privacy Rights for Thousands of People in Criminal and Civil Immigration Proceedings

By Emily Burns   

What is electronic monitoring

Electronic monitoring is a digital surveillance mechanism that tracks a person’s movements and activities[1] by using radio transmitters, ankle monitors, or cellphone apps.[2] Governmental surveillance through electronic monitoring, used by every state in the U.S. and the Federal Government, functions as a nearly omnipotent presence for people in two particular settings: people in criminal proceedings and/or civil immigration proceedings.[3]

In 2021, approximately 254,700 adults were subject to electronic monitoring in the United States, with 150,700 of them in the criminal system and 103,900 in the civil immigration system.[4] While people outside of these systems hold substantial privacy rights against unreasonable governmental searches and seizures of digital materials through Fourth Amendment jurisprudence, the rise of electronic monitoring forces people to “consent” to electronic monitoring in exchange for the ability to be outside of a jail cell. [5]

Within the criminal context, this means that as a condition of supervision, such as parole or probation, certain defendants must consent to “continuous suspicion-less searches” of their electronics and data such as e-mail, texts, social media, and literally any other information on their devices.[6]

In the civil immigration context, like asylum seekers, immigrants can face a similar “choice:” remain in detention or be released with electronic monitoring.[7]  For immigrants in ICE detention on an immigration bond, this “choice” reads more like a plot device on an episode of Black Mirror than an effect of a chosen DHS policy. While people detained on bond in the criminal system are commonly allowed to be released when they pay at least 10 percent of the bond, ICE requires immigrants to pay the full amount of the bond, which is mandated by statute at a minimum $1,500 with a national average of $9,274.[8] If the bond is not paid, immigrants can spend months or even years in ICE detention.[9] Because many bail bond companies view immigration bonds to hold more risk of non-payment,  companies either charge extremely high interest rates on the bond contracts that immigrants pay or, as in the case of the company Libre by Nexus, ensure the bond by putting an ankle monitor on the bond seeker.[10] For people who must give up their bodily autonomy in order to be released from physical detention by “allowing” a private company to strap an ankle monitor to their body, paying for this indignity comes at a substantial economic cost that many cannot afford: Libre by Nexus charges $420 per month for using the ankle monitor, which is in addition to the actual repayment costs of the bond amount.[11] [12]

What happens with the data?

In the governmental context, data collected through searches on electronic devices and ankle monitors extends further than the original purposes for which it was collected, with many monitoring programs “collect[ing] and stor[ing] information about everywhere a monitored person goes.”[13] For people being monitored, many contracts do not expressly state what other agencies can view their data.[14]

For example, in the case of United States v. Jackson, the District Court for the District of Columbia held that data from Zachary Jackson’s ankle monitor shared from the  District of Columbia Court Services and Offender Supervision Agency (CSOSA) to the Metropolitan Police Department did not infringe on Jackson’s Fourth Amendment rights when the data put him at the scene of an armed robbery.[15] After violating several minor rules of his probation, Jackson’s probation officer from CSOSA ordered him to wear an ankle monitor but did not reveal that the actual motivation in placing the ankle monitor was a request from local police, as they suspected Jackson of committing several local robberies and burglaries.[16]  When Jackson signed the contract consenting to  ankle monitoring, there was no express language in the contract that the data from the ankle monitor would be shared with the police or that they would have access to the data.[17] Despite this lack of express language,  the District Court found that CSOSA did not infringe on Jackson’s Fourth Amendment rights when it shared his GPS data with police, reasoning that Mr. Jackson did not have a reasonable expectation of privacy in his GPS data remaining within CSOSA since CSOSA noted on its website that the Metro Police Department frequently used CSOSA data tracking for criminal investigations.[18]

 On a broader scale, in 2019 ICE used GPS data from ankle monitors worn by immigrants in their application for a search warrant, leading to a massive immigration raid on seven food processing plants in Mississippi and ultimately arresting close to 700 people.[19]

Electronic monitoring is only expanding

From 2005-2015, the use of governmental electronic monitoring in the criminal context more than doubled, rising nearly 140% from 2005 – 2015,[20] with the rate tripling for people being monitored by ICE in the civil immigration context from 2021-2022 .[21] As the trend of pervasive electronic monitoring continues, Black and Latinx people are disproportionately affected by electronic monitoring. This increased scrutiny by authorities has already made it more likely for Black and Latinx people on parole to be re-arrested due to technical rule violations.[22] For some states, the bounds of electronic monitoring can shackle people to surveillance monitoring for the rest of their lives. For example, people convicted of certain sex-related offenses in Michigan, Ohio, Colorado, Florida, Missouri, Oklahoma, and Wisconsin can be electronically monitored by authorities for the rest of their lives.[23]

In conclusion, while the Supreme Court and Congress have expressed great concern about maintaining privacy rights in the face of proliferating technology, that same concern does not extend to the people that are physically and psychologically searched and seized every day.[24] Every day, there are people that have to charge their ankle monitors every twelve hours, whether they are in public or in private spaces.[25] These are people like Willard Birts, who became homeless after going into debt for paying for his GPS ankle monitor[26] and Jesus Escobar-Villalta, who accepted an ankle monitor from Libre by Nexus that created an infection that almost took his foot. [27] The dangers of electronic surveillance are obvious; they’re in broad daylight.

 

[1] Jess Zhang et al., People on Electronic Monitoring, Vera Institute of Justice 1(2024), https://www.vera.org/downloads/publications/Vera-People-On-Electronic-Monitoring-FINAL-120423.pdf.

[2] Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 726-27 (2020).

[3] Id. at 726; Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 672 (2019).

[4] Zhang et al., supra note 1, at 1.

[5] Weisburd, supra note 2, at 721, 737.

[6] Id. at 728.

[7] Julie Pittman, Released into Shackles: The Rise of Immigrant E-Carceration, 108 Cal. L. Rev. 587, 591 (2020).

[8] Pittman, supra note 7, at 597.

[9] Discretionary Detention by the Numbers, Aclu analytics & Immigrants’ rights project, https://www.aclu.org/issues/immigrants-rights/immigrants-rights-and-detention/discretionary-detention (last visited Feb. 3, 2024).

[10] Pittman, supra note 7, at 597-98.

[11] Id.(additionally, people that have not been able to keep up with the $420 monthly ankle monitor fee have reported that Libre Nexus employees “threatened them with the prospect of returning to immigration detention.”).

[12] The ACLU has also reported on the high costs of ankle monitors for people in criminal settings, noting that “[m]any local government entities and private companies charge people hundreds of dollars a month to wear electronic monitors.” ACLU, Rethinking Electronic Monitoring: A Harm Reduction Guide, ACLU 8 (2022).

[13] Id. at 9.

[14] Wiesburd, supra note 2, at 729.

[15] United States v. Jackson, 214 A.3d 464, 467 (D.C. 2019).

[16] Id. at 468-69.

[17] Id. at 471.

[18] Id. at 483.

[19] Arnett, supra note 3, at 673.

[20] Pew, Use of Electronic Offender-Tracking Devices Expands Sharply, The Pew Charitable Trusts 1 (2016), https://www.pewtrusts.org//media/assets/2016/10/use_of_electronic_offender_tracking_devices_expands_sharply.pdf.

[21] Zhang et al., supra note 1, at 1.

[22] ACLU, supra note 12, at 8-9 (“In the Detroit metropolitan area, Black people are two times more likely than white people to be under electronic monitoring. In San Francisco, Black people comprise only about 3 percent of the city’s population but represent 50 percent of people on electronic monitors.”).

[23] Arnett, supra note 3, at n. 119.

[24] Weisburd, supra note 2, at 719.

[25] Arnett, supra note 3, at 642.

[26] Olivia Solon, ‘Digital shackles’: the unexpected cruelty of ankle monitors, The Guardian (Aug. 28, 2018),

https://www.theguardian.com/technology/2018/aug/28/digital-shackles-the-unexpected-cruelty-of-ankle-monitors.

[27] Michael E. Miller, This Company is Making Millions from America’s Broken Immigration System, Wash. Post (Mar. 9, 2017), https://www.washingtonpost.com/local/this-company-is-making-millions-from-americas-broken-immigration-system/2017/03/08/43abce9e-f881-11e6-be05-1a3817ac21a5_story.html