Punitive Surveillance

ABSTRACT

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices is often touted as a humane substitute for incarceration. This type of monitoring, which I term "punitive surveillance," allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people of fundamental rights, including privacy, speech, and liberty. Building on the critique that punitive surveillance is a form of racialized carceral control, this Article makes three contributions First, drawing on original empirical research of almost 250 public agency records governing the operation of electronic ankle monitoring, this Article reveals non-obvious ways that punitive surveillance, like incarceration, strips people of basic rights and liberties. In particular, the records show how monitoring restricts movement, limits privacy, undermines family and social relationships, jeopardizes financial security, and results in repeated loss of freedom. Unlike traditional probation and parole, punitive surveillance is more intensive, restrictive, and dependent on private surveillance companies. Second, this Article explains how, and why, courts' labeling of such surveillance as a "condition" of punishment or a regulatory measure stems from a misunderstanding of this surveillance and punishment jurisprudence. Third, and most ambitiously, this Article raises the question of whether a fundamental rights analysis, a regulatory response, or an abolitionist approach is the most effective way of limiting if not outright eliminating punitive surveillance.