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Invasions of Privacy for People on Electronic Monitoring Is a Warning of Worse Things to Come

by Benjamin Tschirhart

In the wake of the COVID-19 pandemic, the paradigm has shifted for the millions of Americans on “community supervision” — a category which includes those on probation, parole, and pretrial release. Where probation once involved home visits and in-person appointments with probation officers, monitoring is increasingly carried out remotely by means of electronic monitoring (“EM”).

For now, the primary issue is with the app-based monitoring software being used as an alternative to the personal, face-to-face interactions between probation officers and their charges. The elevated number of prisoners being released as a result of the First Step Act has made their caseloads difficult to manage in person; COVID-19 has made it downright dangerous, and often forbidden. Thus, many areas have seen the quick adoption of apps and systems with little scrutiny of their weak points. In 2022, according to a study released by researchers from the University of Washington and Harvard Law School, on one EM app alone (BI Smartlink), almost 100,000 people were being monitored, checking in via smartphone cameras and microphones.

Some of the problems with this new system are predictable to the point of banality — malfunctioning facial recognition, freezing or glitching apps. But the consequences are far from banal for those affected; when someone on monitoring fails to receive a notice for a check-in, the results could be a missed appointment, a forfeit job, a lost apartment or house, a fine, or even a trip to jail or prison — setbacks that might undo all the hard-won progress since their release.

Other problems are less immediately evident but are potentially more profound and serious. They carry broader ramifications for the population at large, and even those who aren’t particularly invested in the rights of wrongdoers would be well advised to pay attention. These are privacy issues that begin with permissions — the level of access that a given app requires or simply requests in order to function on a device.

In her book The Age of Surveillance Capitalism, Shoshana Zuboff discusses the Kafkaesque “terms-of-service agreements” that come with even the most innocuous of digital products, saying “Scholars point out that these digital documents are excessively long and complex in part to discourage users from actually reading the terms, safe in the knowledge that most courts have upheld the legitimacy of click-wrap agreements despite the obvious lack of meaningful consent.”

If this is the case with completely voluntary products and services, what will these “pernicious” and “sadistic” actors dare to do when they know their users are literally captive to their terms, lacking even the pretext of a choice in whether to agree to their demands? Unfortunately, we need not imagine. The answers are already before us. The app “Sprokit” harvests and sends real-time data to its parent servers every five minutes! BI Smartlink once had conditions that compelled users to consent to handing over “virtually any information collected through the application, even beyond the scope of the monitoring plan.”

As always, new tech brings new vulnerabilities and exploits. In this case, the potential for invasion of privacy is already becoming clear but in such a way that it fails to elicit the outrage that likely would result if those affected were more sympathetic figures. At some point in the not-so-distant future, the present moment may well be seen for what it is: the crucial juncture when a severe social disease could have been averted had we not been so ambivalent toward the disenfranchisement of a villainized segment of our society. Whatever is permitted to be done to those who are judged guilty will eventually be done to those who are merely suspect — and inevitably, finally, to those who are innocent. 

Sources: eff.org, The Age of Surveillance Capitalism by Shoshana Zuboff (2019)

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