privacy concerns

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

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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]

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U.S. v. Google LLC: An overview of the landmark antitrust case and its impact on consumer privacy, A.I., and the future of the internet.

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U.S. v. Google LLC: An overview of the landmark antitrust case and its impact on consumer privacy, A.I., and the future of the internet.

By William Simpson

 

I. Intro

The ongoing antitrust case against Google alleging anticompetitive conduct relating to the company’s search engine could, in the near term, result in a breakup of the company or, alternatively, indicate that existing antitrust law is ill-suited to engage outsize market shares in the digital economy.[1] On a broader scale, this case could have major effects on consumer privacy, A.I., and the character of the internet going forward. The consequences could be, in a word, enormous.

 

II. Background

 

In October 2020, the Department of Justice (DOJ) filed a complaint against Google, alleging that Google violated the Sherman Antitrust Act[2] when it:

  • Entered into exclusivity agreements that forbid preinstallation of any competing search service;
  • Entered into tying arrangements that force preinstallation of its search applications in prime locations on mobile devices and make them undeletable;
  • Entered into long-term agreements with Apple that require Google to be the default general search engine on Apple’s popular Safari browser and other Apple search tools; and
  • Generally used monopoly profits to buy preferential treatment for its search engine on devices, web browsers, and other search access points, creating a continuous and self-reinforcing cycle of monopolization.[3]

The DOJ’s complaint concludes that such practices harm competition and consumers, inhibiting innovation where new companies cannot “develop, compete, and discipline Google’s behavior.”[4] In particular, the DOJ argues that Google’s conduct injures American consumers who are subject to Google’s “often-controversial privacy practices.”[5]

In response, Google refutes the DOJ’s argument, deeming the lawsuit “deeply flawed.”[6] “People use Google because they choose to,” says a Google spokesperson, “not because they’re forced to or because they can’t find alternatives.”[7] Challenging the DOJ’s claims, Google asserts that any deals that it entered into are analogous to those a popular cereal brand would enter into for preferential aisle placement.[8]

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