As advocates of mass incarceration slowly realize they are losing their grip on political power, they are flailing to find new strategies to undermine the state’s recent bail reforms. Under the media-driven, police union-inspired, fear campaign against reform, many advocates of the carceral state are pushing a new form of confinement: perpetual GPS monitoring. This techno-solutionism may sound like progress, but GPS monitoring carries the same presumption as cash bail: that some New Yorkers are guilty until proven innocent.
New York is not alone in seeing increasing pressure to replace physical incarceration with new and increasingly invasive forms of electronic monitoring. These surveillance systems can track every place you go, everything you say, and even those around you.
Forget the fact that the businesses cashing in on electronic monitoring have little evidence that it prevents recidivism. Forget the fact that the costly technology is often error prone. You are still left with the mindset of mass incarceration, the presumption that New Yorkers should be stripped of their rights and dignity simply for being charged with a crime.
Thankfully, City Hall has proven to be an unlikely ally in this fight. Don’t misunderstand, Mayor de Blasio hasn’t gone through some criminal justice reformation. The one-time Park Slope progressive didn’t rediscover the principles he seemingly shed on Gracie Mansion’s stoop. No, City Hall is delaying the expansion of electronic monitoring through bureaucratic delays and mismanagement.
Under New York’s recent reforms, private bail firms can no longer make a profit from renting electronic shackles. Instead, the City itself must take charge of the electronic monitoring program. This delay gives us a crucial window to push back against the wholesale tracking of New Yorkers waiting for their day in court.
The potential scale of electronic monitoring is staggering. In 2018, more than 77,000 people were arrested in New York City for felonies that qualify for electronic monitoring under the new state law. But that number is actually an undercount, since it doesn’t include the thousands arrested on qualifying misdemeanor charges. Yes, New York’s law is so broad that even those accused of certain misdemeanors might soon be forced to wear tracking devices while they await their next day in court.
To understand why that prospect is so daunting, you have to understand the power and perils of modern-day monitoring devices, which have become increasingly invasive and sophisticated. Some devices can turn wearers into walking wiretaps—recording themselves and anyone nearby. Devices can capture sensitive conversations with attorneys or doctors. Some jurisdictions even use this capability to record children.
And then there is the medical impact. It should surprise few that having an electronic device physically attached to your body can cause severe injuries. Complaints range from mild injuries, like bruises, hair loss, and headaches to more serious complications like electrical shocks, and impaired breathing and blood circulation. Many choose electronic monitoring rather than having to endure the horror of jail, but no New Yorker should be forced to choose between their health and freedom.
A new class of electronic monitoring devices spares users the injuries and indignities of traditional GPS anklets. Instead, some electronic monitoring firms install tracking software on users’ smart devices. These applications use the same location tracking that companies use to track phone users and target them with ads.
These products can be less stigmatizing than highly visible tracking devices, but they can have significant privacy and economic impacts. Many phone-based applications record users’ biometric information without disclosing how that data is saved or shared. Applications may access other information saved on users’ devices, and they can exhaust their data plan allowance and battery life. These impacts are quite substantial, especially for low-income individuals, and are a completely inappropriate way to punish New Yorkers who have not yet had their day in court.
Whatever form of electronic monitoring we use, the truth is that we won’t use it equally. Electronic monitoring is disproportionately targeted at low-income communities and communities of color. This should come as little surprise, since these are the exact same communities that bear the brunt of every aspect of the criminal justice system. Poorer New Yorkers are more likely to be arrested, more likely to be charged, and more likely to be subjected to invasive monitoring.
Electronic monitoring is particularly dangerous for undocumented New Yorkers. Despite our claims of being a “sanctuary city,” there is no law that would prevent Immigration and Customs Enforcement (ICE) or any other federal agency from getting a court order to force the city to provide users’ location history. This not only endangers undocumented defendants, but their neighbors, families, and faith communities. This is yet another reason why location tracking must not become the norm for those awaiting trial.
The bail reform backlash has shown that many New Yorkers are deeply uncomfortable with living up to the values we preach. But even some who support bail reform also buy into the false promise of electronic monitoring, propping up the broken logic of mass incarceration and the belief that poor defendants of color are entitled to less due process than their wealthy neighbors. We have to do better, and we have to continue to fight for a city where no New Yorker is tracked until proven innocent.
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Albert Fox Cahn is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn & @STOPspyingNY.
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