The Insidiousness of New Digital Tools in the Criminal Legal System

In an ad released last spring by top electronic monitoring manufacturer BI Incorporated, viewers are introduced to the VeriWatch, one of the latest in the company’s suite of digital surveillance tools. The short video follows a day in the life of a VeriWatch user: how he starts his morning unplugging his charger, getting ready for work, and snapping a selfie using his watch—which looks similar to an Apple Watch. Prepared for the day, he then grabs his keys, goes to work, and later returns home to spend quality time with his wife and son, being sure to charge the device along the way. 

The ad highlights how the VeriWatch departs from a typical smart watch available to the general public. For example, the selfie snapped in the morning isn’t for social media; it’s a biometric authentication to confirm the wearer’s identity to parole or probation officers. The ad also intends to convey how minimally the device impedes the user’s daily life. It seeks to show how this new era of electronic monitoring differs from the ankle monitors traditionally associated with “house arrest.” 

Companies are increasingly developing these tools to pilot within prison and jail systems and on those living under “community supervision”—meaning people who are surveilled and monitored while living beyond prison walls. These tools are often presented as “alternatives to detention,” but privacy and human rights advocates argue that they actually expand the system instead of replacing it. 

This expansion can be particularly insidious when it takes the form of digital tools that the public is already familiar with, creating a veneer of innocuity that shields the monitoring devices from more widespread scrutiny. 

Smart technology transfers “one concern for another”

Community supervision in the form of ankle monitors and mandatory check-ins with a parole or probation officer are well known and deeply entrenched fixtures of the criminal legal system. However, newer devices such as BI’s VeriWatch deviate from these more traditional surveillance tools. Not only does the VeriWatch track the wearer’s location, but it also uses facial recognition technology. Other devices, such as the SCRAM CAM ankle monitor, track the wearer’s blood alcohol levels, while new tools still under development aim to collect other biometric data such as heart rate and cortisol levels. In capturing this health data, proponents and creators of this technology argue that they may be able to predict a user’s emotional state and their likelihood of causing harm to others or themselves. 

Nothing has been quite as exemplary of this shift in electronic monitoring as a four-year, federally funded study led by researchers at Purdue University and conducted in collaboration with the Tippecanoe County Community Corrections and Sheriff’s Department. Launched in August 2020, the study combines smartphone tracking features with bracelets that monitor  cortisol levels and heart rate. In a press release for the study, researcher Dr. Marcus Rogers argued that the combination of health and location data helps identify when individuals who are currently on parole are under stress and likely to get involved in “risky behaviors” that can increase the likelihood of recidivism. 

According to Rogers, the research seeks to explore how this technology can be used to help people on parole develop better coping and life skills while also alleviating the workload of caseworkers. Interestingly, a part of the study also includes the provision of reentry resources such as connections to employment opportunities—a solution that anti-surveillance advocates actually support in favor of electronic monitoring. In coupling the technology with actual supportive measures, it is challenging to differentiate whether the study’s findings ought to be attributed to resource access or biometric tracking. 

These new technologies are also unique in that they are being piloted both inside and outside of prisons and jails. In 2021, Georgia’s Fulton County Sheriff’s Office brokered a now-severed contract with Talitrix, a company offering surveillance systems for jails. The technology consists of hundreds of sensors embedded into the facility’s walls that connect via radio frequencies to wristbands worn by those detained in the jail. In pairing the sensors with the bands, the system tracks users’ heartbeats, blood sugar levels, and locations, allowing officials to create 3D images of who is in the vicinity. These tracking features have been touted as a potential solution for quelling violence inside, and the biometric data is said to prevent instances of self-harm.

Tools like VeriWatch have also expanded their capacities beyond traditional ankle monitoring to include not just whether someone is home by their designated “curfew time,” but whether they are present in “dangerous zones” that are predetermined by the court. 

Proponents for this new technology purport to address some long-held concerns about traditional ankle monitoring, such as the stigma that the bulky devices carry and the physical pain they can induce, particularly for those with disabilities. However, attorneys and advocates such as American Civil Liberties Union (ACLU) staff attorney Allison Frankel argue that the transition toward smart technology transfers “one concern for another.”

“The pitch is that it just looks like a watch or a bracelet and so maybe the stigma goes away,” said Frankel, who works with the ACLU’s Criminal Law Reform Project. “But then you’ve got a host of new capabilities where they can hear your voice and see your face; they might be requiring you to check in multiple times a day; they might have access to your contacts and to all of this other information that you possess.”  

While the technology may appear and even function similar to other smart technology, the consequences of common glitches or malfunctions are far more dire. The faultiness of the GPS technology used in monitoring devices means that it frequently fails to monitor users’ actual locations and can even harm its wearers through technical malfunctions. For those on traditional ankle monitors, such glitches have led to physical injury, including burns and electrical shocks from overheated devices. Those using GPS devices like a VeriWatch face the risk of technical violations—a grave consequence for those whose limited freedom is tied directly to abiding by certain conditions of release. 

“This morning my phone was supposed to update, and it didn’t, and it started glitching on me, and this also happens to people who are on these devices,” said Frankel. “I’m late to a meeting, but for someone else [the consequence is] that they think I missed a check-in when really my device just froze.” 

There isn’t even a clear protocol for how people being monitored should fix malfunctioning devices. In other instances, devices have sent false alerts, forcing those on monitors to reroute their schedules to make check-ins or report to their officers.  

“People are rigid in fear that they’re going to get accused of absconding or escaping when really it was just a false alarm,” said Frankel. “So I think all of those problems are only going to amplify as that technology gets more complex.” 

James Kilgore, writer and researcher for MediaJustice’s Challenging E-Carceration Project, notes that unlike other tech products, agencies that produce and provide electronic monitors operate with little oversight, poor regulatory policies, and limited required data collection. The only existing federal standard for electronic monitors was set in 2016—and it’s not mandatory.

“If you look at the contracts that companies signed with local authorities, it’s all about the number of devices and then a little bit about the capacities of those devices, but there’s nothing about the regimes that will accompany these,” said Kilgore. “Will the company be held accountable if someone gets sent back to jail because the device doesn’t work or if the device has some technical flaws that cause physical injury? [That] is something that happens much more frequently than we might think, but we don’t have data on it to make a strong case around it.” 

A 2022 ACLU report co-authored by Frankel titled “Rethinking Electronic Monitoring” highlights these technical malfunctions as one of the many harms of electronic monitoring. The report cites a 2018 evaluation of electronic monitoring for the Federal Probation Journal that found that while the technology did not affect rates of re-arrest for new offenses, it did significantly increase the likelihood that users would be charged with a technical violation. 

Big data and the deportation pipeline

The concerns surrounding smart technology extend to those in immigrant detention. Under the Biden administration, the use of surveillance technology has ballooned. According to reporting from last summer by Fast Company, there were about 80,000 immigrants living under some form of digital surveillance before President Joe Biden took office. Advocates now believe the current number is about 200,000. 

That increase is further reflected in corporate earnings. In a 2022 financial statement, the private prison company GEO Group, also the parent company of BI Incorporated, reported that revenues decreased yearly for all of its business segments save electronic monitoring and supervision services, which saw an almost 78% increase between 2021 and 2022. The report also noted that the company has a daily average of 500,000 “participants” in its community reentry and electronic monitoring services. 

Individual companies may provide data on the use of their electronic monitoring services, but the absence of nationwide reporting requirements and national surveys makes it difficult to assess the total number of immigrants under digital surveillance. 

Despite the many unknowns about Immigration and Customs Enforcement’s (ICE) use of electronic monitoring, efforts have been mounting among advocacy groups to address the issue. This includes the movement lawyering nonprofit Just Futures Law that partners with grassroots groups to fight the deportation pipeline—a pipeline in which Just Futures Law attorney Laura Rivera says Big Data is a critical component. 

Just Futures Law has worked closely with the Latinx advocacy organization Mijente on its Take Back Tech campaign, which in part produced a report on the BI Incorporated mobile app called  SmartLink that collects location data, uses facial recognition software, and includes a chat function for users to directly message their case managers. SmartLink is used on commercial smartphones or via BI Mobile, a smartphone “designed specifically for community corrections.”

“President Biden and ICE would like us to believe that it’s an innocuous app, similar to what we might have on our phones,” said Rivera. “SmartLink is much worse than that. Imagine if you took your favorite fitness app that tracks your steps and you combined it with a GPS navigation app that knows where you are at all times and then you fed that information directly to the immigration police, and they drew a perimeter around your home and neighborhood and told you that if you go outside of it, there will be a flag to ICE and the private contractor.” 

That flag can lead to menacing phone calls, home visits from immigration agents, and potential arrest and, thus, family separation.

“That’s really how SmartLink works. It’s a combination of tracking your location using your biometric data with the cudgel and the threat of being able to arrest and detain you at any time,” said Rivera. 

In May 2022, Just Futures Law alongside a handful of other partners released “Tracked and Trapped,” a report amplifying the stories of people ICE placed on electronic monitoring devices. Rivera says those stories as well as those of her own clients have revealed the ripple effects of constant surveillances. One client was an asylum-seeker who came to the U.S. with his wife and child. He was surveilled for more than four years, most of which was spent on SmartLink. 

“He went through it all,” said Rivera. “He had trouble keeping jobs because of the onerous check-in requirements. Some people might think that once the app is installed that’s all a person has to do. But similar to probation, a person has to do a check-in as often as ICE requires and whenever ICE requires.” 

For this particular client, this meant he had to check in once a week with no fixed time. In the beginning, the window for his check-in was all day, and the check-in had to be done from his home. Effectively, this meant he was under house arrest once a week. 

“I don’t know about you, but I would be hard-pressed to say what jobs an asylum-seeker in immigration proceedings can hold down that allows them to take a whole day off a week,” Rivera said.

Even outside of the troubles they pose for maintaining employment—particularly work at itinerant jobs—check-in requirements impede a person’s ability to take care of their family or themselves, especially during emergencies. Rivera noted how technical malfunctions created a looming threat to her client’s stability. 

“After doing everything he could to comply and staying home to do his check-in, it would sometimes happen that when he took the required photos and went to upload them, the app produced an error,” Rivera explained. “When the app produces an error, the immigrant is automatically held responsible and held to be out of compliance.” 

Entrenching structural inequalities

Much of the recent expansion of electronic surveillance can be attributed to the COVID pandemic and the cost-saving opportunities it provides to Departments of Corrections and local court systems. (This is especially true when the costs of maintaining the devices are offset onto the individual being monitored.) The way the technology is marketed, however, focuses on the social benefits it provides. Some experts have referred to this as “tech washing,” or allowing the assumption that technology is unbiased to obscure how these tools actually reinforce and entrench structural inequalities.  

Kilgore describes the language used by players within the carceral system, including the companies that produce electronic monitoring and the court systems they contract with, as “carceral humanism.” The term refers to how carceral policies and activities are repackaged and marketed as kinder, more caring alternatives to traditional prisons and jails. Recent examples include new women’s jails that are marketed as “feminist” or halfway houses and work release programs that are promoted as “rehabilitative.” 

In the context of electronic monitoring, some language is neutralized. Kilgore notes that advocates of the technology have successfully moved the public away from the term “ankle bracelet,” for example. The use of humanistic language to describe the technology is problematic for multiple reasons, according to Kilgore. 

“If you look at the way in which the producers are marketing these devices, they’re now couching them in the jargon of efficiency, and sometimes—like with cell phone devices—reducing stigma and opening doors to people,” said Kilgore. “So there’s a way in which this surveillance has been combined with the convenience that comes with digital technology, and it kind of gets wound up together with Google Calendar … It’s really an important argument to show why this is surveillance, but how many people have just given up on the idea of privacy?”

The battle around the future of this technology is thus one of both rhetoric and willpower.  

Interestingly, VeriWatch’s video advertisement features a white male actor. This is likely an effort to deflect from the racial disparities within community surveillance and how Black people in particular are disproportionately placed on electronic monitoring. The ACLU’s “Rethinking Electronic Monitoring” report illuminates some of the staggering racial disparities in electronic monitoring use across the country. In San Francisco, for example, Black people make up only about 3% of the city’s population but represent 50% of those on electronic monitoring. In Detroit, Black people are twice as likely to be on electronic monitoring than white people.

The casting also elides some of the privacy concerns that are inherent when the user is from a marginalized community, such as being queer, a marginalized gender, or a member of a religious minority. Ads for new BI Incorporated tools don’t show the fear that a wearer might have if they have to visit an abortion clinic, travel to an organizing meeting for an upcoming protest, attend a mosque, or meet up with friends at a gay club or an LGBTQIA+ center. Devices like VeriWatch or the SmartLink app have the potential to capture data that reveals not just a person’s location, but intimate details about their lifestyle, medical needs, politics, and personal beliefs.  

In addition to the information that location data can reveal, the capabilities of this technology and the type of information it collects raise alarms for advocates. These concerns were the focal point of a 2022 lawsuit brought against ICE by Just Futures Law, Mijente, and Community Justice Exchange. The suit sought to force ICE to reveal what data is collected by the agency’s electronic monitoring program as part of its Intensive Supervision Appearance Program (ISAP), as well as how such data is being used. 

“What we learned from some of the documents that ICE produced is that the level of surveillance within the ISAP program is of a scale that is truly alarming,” said Rivera. “Hundreds of thousands of immigrants, mostly asylum-seekers, are being subjected to this, and the sheer number of data points that are collected and the highly personal, sensitive nature of those data points is also alarming. We’re talking about address, phone number, birth date, employment information, race, gender, whether they have tattoos, their facial images, their voice prints, and then of course—and what really concerns us—their geolocation data.”

Rivera said this data collected by ICE can then be retained for 75 years. The retention of such personal data is particularly troubling given that ICE has proven to mishandle—and make public—incredibly sensitive data about those in their custody. In 2022, for example, ICE published on its website the names, birthdates, nationalities, and detention locations of more than 6,000 asylum-seekers. The identifying information, which could have exposed those listed to persecution or retaliation, was left up for five hours before immigrant advocacy group Human Rights First notified ICE of the breach. 

The documentation yielded by the suit filed by Just Futures Law, Community Justice Exchange, and Mijente also highlighted discrepancies between the information publicly released by corporations like BI and the policies they actually employ. On the website for the BI mobile phone, the company notes that it can continuously monitor location data. 

While Rivera said that feature is currently inactive, “when a person is enrolled and signs an agreement to participate in this surveillance, they’re prohibited from turning off location [services] on their phone.”

It also remains unclear who else has access to the data collected by these devices. Documents obtained by Just Futures Law confirm that BI grants “certain third parties” access to information about the user or their device, “including personal information about [their] online activities over time and across different websites, apps, or other online services to provide [them] with interest-based behavioral advertising or other targeted content,” Rivera said.  

ACLU staff attorney Frankel notes that this data sharing is possible because of how dominant private companies are in the surveillance space. 

“I think we certainly need more regulation of the types of data that these entities can track, how long they can retain it for, who can have access to it, and the purposes it can be used for,” said Frankel. “And I think as a general matter, we should be getting private companies out of the business of administering our supervision system and our court system.”

Frankel also noted that while government entities don’t have a perfect record of upholding rights, monitoring done with the government would come with transparency and regulations that are not currently required for private companies driven by a profit motive.  

The invasion of privacy associated with this technology is a threat shouldered not just by those wearing monitors, but also their immediate community. The erosion of close ties and the attendant mental health implications are among the personal costs that aren’t always captured in discussions of digital surveillance that tend to focus solely on the financial costs of the devices.  

“I’ve learned that people on ISAP are suffering from isolation from their loved ones, their friends, and family,” said Rivera. “I’ve heard stories of people who decided to spend their birthdays alone because they didn’t want to gather in a group and risk subjecting their loved ones to a life of surveillance, and part of that is being based on the fear that ICE would know where they are at any given time and be able to come and arrest all of them.” 

Those fears are rooted in real-life examples. In 2019, ICE conducted one of the largest mass raids at a U.S. workplace when it arrested 680 poultry plant workers in Mississippi using data collected from GPS monitors. 

“When people say they’re afraid that contact with their loved ones could lead to endangering them, I can understand why they feel that way,” Rivera said. 

A chilling harbinger 

In a 2022 essay for Prism, writer William C. Anderson wrote that “whatever we allow to happen to people incarcerated in prisons and jails will not stay contained behind their walls.” Anderson highlights how the recent gutting of voting rights legislation, the erosion of reproductive freedom, and the medical neglect witnessed through the state’s handling of the COVID-19 crisis are just a few examples of how “whatever incarcerated people are subjected to will make its way from behind bars to those larger overrepresented populations that have not been locked up yet.”

The assertion that the experiences and mistreatment of incarcerated people will continue to be harbingers for new injustices that the state will wage against the most vulnerable on the outside is no less applicable to the role of digital surveillance. 

Arguments that corporations are pushing digital tools out of benevolence for those in their custody crumble upon consideration of the current state of the physical detention facilities also owned by these companies, such as the more than 140 prisons and jails owned or operated by GEO Group. Years of investigative reports have unearthed stories of the poor management and maintenance of GEO-owned and -operated facilities and the conditions that those detained within them must endure. Such conditions have included inadequate health care resulting in deaths, lack of protections against the spread of COVID, extreme heat, and dangerous overcrowding. The decision by a company like GEO Group to neglect these facilities juxtaposed against their investment in new, expensive surveillance technology suggests that any actual concern about the well-being of those within their custody is no more than a facade. 

Corporations’ willingness to pour money into digital tools that are already familiar to the general public expedites carceral surveillance technology’s ability to move from being piloted among incarcerated individuals to permeating everyday life. The technology’s ubiquity and convenience encourages compliance and is already stifling outrage regarding its use in the criminal legal and immigration system. It may just be a matter of time before it’s used on us and everyone we know.