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]
