THE LIMIT DOES NOT EXIST: HOW SMARTPHONE TECHNOLOGY EXPANDS ELECTRONIC MONITORING AND A PROPOSED LIMITATION.

• Author: Oakley, Kristin

TABLE OF CONTENTS I. INTRODUCTION 264 II. ELECTRONIC MONITORING: HOW WE GOT TO NOW 267 A. Electronic Monitoring's History and Functionality 267 B. Reasons for Use and Correlated Expansion 269 1. Cost Savings 270 2. Prison Alternatives 270 III. SMARTPHONES AND THE LEVELING UP OF ELECTRONIC MONITORING 271 A. Reasons for Shifting to Smartphones 272 B. Types of Devices 272 C. Types of Tracking Technology 273 D. Supervision Uses 273 E. Problems 275 IV. LIMITING THE UNLIMITED: WHY CHANGE NOW 276 A. Electronic Monitoring Expansion Through Smartphone Normalization 276 B. Collateral Surveillance and Collective Privacy 277 C. Individual Privacy and the Collection, Management, and Storage of "Endless" Data 278 D. Private Companies' Increased Role in Electronic Monitoring 280 E. Depersonalization and In-Person Contact Elimination 282 V. A FRAMEWORK FOR ELECTRONIC MONITORING PRIVACY PROTECTION 282 A. Collection Limitation 283 B. Data Quality 284 C. Purpose Specification 284 D. Use Limitation 285 E. Security Safeguards 285 F. Openness 286 G. Individual Participation 287 H. Accountability 288 VI. CONCLUSION 288 I. INTRODUCTION

YOU HAD TO LIVE--DID LIVE, FROM HABIT THAT BECAME INSTINCT--IN THE ASSUMPTION THAT EVERY SOUND YOU MADE WAS OVERHEARD, AND, EXCEPT IN DARKNESS, EVERY MOVEMENT SCRUTINIZED. --GEORGE ORWELL (1) Smartphone tracking is the newest advancement in electronic monitoring, (2) and the practice is proliferating. Electronic monitoring is "a way of remotely regulating and enforcing spatial and temporal schedules, enshrined in law and imposed by courts and prison[s]." (3) Historically, it was limited to ankle monitors used within community supervision (i.e., probation, parole, and supervised release). (4) Ankle monitors are inherently limited by their technology, which primarily enables location tracking. But today's smartphones--and the apps that empower them--are powerful, unparalleled additions to electronic monitoring. (5) They introduce technologies like conversation and network monitoring, phone locking and settings control, facial recognition, and increased metadata recording, among other capabilities. (6) Compared to ankle monitors' limited capabilities, smartphones' advanced features precipitate a fundamental change in electronic monitoring, allowing nearly limitless surveillance.

Widespread use of smartphone monitoring has broad consequences for justice-involved individuals (7) and society at large. In the past decade, electronic monitoring has expanded within community supervision and beyond, notably within immigration enforcement and pretrial release. (8) But the supposed benefits of electronic monitoring are not empirically supported: "[N]o empirical evidence suggests that broadly applied electronic surveillance corresponds to greater public safety, increased rehabilitation, or lower recidivism rates." (9) Privacy scholars, criminal justice activists, and anyone worried about increasing surveillance should be concerned about the possibility of nearly limitless smartphone monitoring in community supervision. (10)

This Note argues that the influx of smartphones and apps--and their seemingly unlimited technological capabilities--requires a new legal approach to protecting the rights and privacy of those being electronically monitored. (11) Though other scholarship explores the implications of smartphone surveillance or electronic monitoring, no known works explore their legal intersection. (12) This Note recommends using the Fair Information Practice Principles ("FIPPs") to guide law enforcement agencies, judges, and legislatures in limiting the technological expansion and data collection enabled by smartphones and apps. The FIPPs are principles used by governmental organizations--like the Department of Homeland Security (13) and the Organisation for Economic Co-operation and Development ("OECD") (14)--to inform privacy laws worldwide. They originated in a 1973 report by the U.S. Department of Health, Education, and Welfare and were later integrated into the Privacy Act of 1974. (15) The FIPPs guide best practices regarding the collection, use, and disclosure of data both inside and outside the criminal justice system. This Note seeks to illuminate how the FIPPs can provide appropriate limits on potentially limitless smartphone monitoring. Because available technology no longer inherently limits the reach of surveillance, the law must create such boundaries.

Part II details electronic monitoring's history, functionality, justifications, and recent growth. Part III explains how the criminal justice system's use of smartphones and apps in electronic monitoring fundamentally changes the practice by introducing technology that is no longer inherently limited. Part IV explores why now is the time to limit this rapidly evolving and unregulated use of smartphones in electronic monitoring. Finally, Part V recommends a harm-reduction framework based on well-regarded, widely applied privacy principles--the FIPPs--and suggests how judges, legislators, and law enforcement agencies may limit smartphone surveillance.

2. ELECTRONIC MONITORING: HOW WE GOT TO NOW

   Electronic monitoring is a vast enterprise. While there are no comprehensive statistics about electronic monitoring in the criminal justice system, U.S. Immigration and Customs Enforcement ("ICE") releases data about monitoring in the immigration system. In 2022, ICE's Alternative to Detention program electronically monitored 316,700 people, including 255,602 who were monitored through BI Incorporated's SmartLink smartphone app. (16) Electronic monitoring is managed jurisdiction-by-jurisdiction, making data collection difficult. (17) Typically, courts and parole boards require consent to electronic monitoring as a condition of prison or jail release, either pretrial or post-sentencing. (18) All fifty states, the District of Columbia, and the federal government use electronic monitoring. (19) A survey of 101 agency electronic monitoring policies across forty-four states and the District of Columbia showed that 49.50% of policies governed people on pretrial release, 50.50% of policies governed people on probation, and 39.60% of policies governed people on parole. (20)

   1. Electronic Monitoring's History and Functionality

      The original technology behind electronic monitoring was developed in the 1960s when Harvard social psychology students and twin brothers Robert and Kirk Gable created radio-operated devices to help juvenile offenders achieve rehabilitation through positive reinforcement. (21) "The purpose was to give rewards to the offenders when they were where they were supposed to be, that is they were in [a] drug treatment session, or went to school or a job," as Robert Gable explained to NPR. (22) Then, in the 1970s, a Spiderman comic inspired an Arizona judge to develop the first ankle monitor using this same rehabilitative technology with the goal of reducing overcrowding and inhibiting prison escapes. (23)

      Ankle monitors historically relied on radio signal technology called Radio Frequency Identification ("RFID"). (24) RFID is a simple tag-and-reader system. (25) The ankle monitor is the tag, and a radio device within someone's home is the reader. (26) The tracking is thus primarily limited to knowing whether someone is within range of the reader, i.e., their home. (27) RFID monitors are typically worn around the ankle or wrist (28) and are battery-operated (often requiring two or more hours of charging per day). (29) More complex versions of RFID tags can track temperature, location, and motion. (30) RFID-enabled ankle monitors are typically used to verify compliance with a curfew or house arrest, but their use is declining. (31) RFID is a limited binary technology that knows whether someone is near the tag reader--and nothing more. (32)

      By contrast, modern ankle monitors employ Global Positioning System ("GPS") technology. (33) Unlike RFID, which only knows whether someone is in the reader's range, (34) GPS enables real-time tracking through monitoring centers, triangulated cell towers, and satellite signals. (35) Further, this technology allows supervising agencies to set up "exclusion zones," barring offenders from places such as schools, playgrounds, or victims' homes and places of employment. (36) GPS-enabled ankle monitors can also have other capabilities, such as voice recording, (37) blood alcohol monitoring, (38) and other behavior-tracking features. While these additional technologies have expanded the data collection scope, GPS-enabled ankle monitors are still relatively limited in their capabilities and are used primarily for location tracking.

   2. Reasons for Use and Correlated Expansion

      Many justifications for electronic monitoring are interrelated and foreshadow its recent expansion. Electronic monitoring trends during the COVID-19 pandemic demonstrate how, as jails and prisons sought to reduce overcrowding, corrections officials released incarcerated people and instead tracked them through electronic monitoring. (39) Similarly, pretrial detention was avoided in favor of release and tracking via electronic monitoring. (40) Putting more people on electronic monitoring during the initial stages of the pandemic provided two key benefits for law enforcement: cost savings (41) and the increased role of prison alter-natives. (42)

      1. Cost Savings

         One of the biggest reasons to use electronic monitoring is cost savings for agencies. (43) Not only does electronic monitoring save the state money (by reducing costs for housing, feeding, and caring for prisoners), it can also make money (in some cases offsetting the cost of lost cash bail revenue). (44) Whereas prisons and jails are state-funded, electronic monitoring is paid for by the monitored individuals themselves. (45) Charges include a setup fee (usually a few hundred dollars) and a daily usage fee (commonly around $10 per day or about $300 per month). (46) Some jurisdictions even...