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May 5, 2017

"Mass Monitoring"

The title of this post is the title of this notable new paper authored by Avlana Eisenberg and now available via SSRN. Here is the abstract:

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

May 5, 2017 at 09:47 AM | Permalink


The opening screen on my Nissan Rogue states that data on the car will be transmitted to Nissan. I wrote asking what data, who gets its, how ill it be used. I asked if it is available to government officials. They replied that a black box was in Nissans since 2006, that the car functions are being monitored, and that, yes, the data would be available to government entities when appropriate. They did not say they would need a court order to reveal the content.

I am now asking how to turn it off, and how to disconnect the black box recorder. So Nissan knows everything about my use of the car. The police can prove I was speeding. The wife can prove I was at my mistress's address on a specific date.

It gets worse. My son in law was discussing a product in his living room, with all appliances off. He then began receiving ads on this product. The likely source of his privacy breach was the microphone of his turned off smart TV. It is waiting for instructions to turn on, for example. However, while waiting, it is transmitting the conversation in the living room to Google.

Posted by: David Behar | May 5, 2017 10:17:02 AM

I have proposed the use of civil forfeiture to seize Facebook/Twitter/Google/Apple/Microsoft. They have hosted 1000's of crimes. The government should then sell the parts of these massive monopolies, keep the proceeds, and mandate better privacy as a condition of acquisition.

Stop kidding around seizing the houses of grandmas and the wallets of travelers because of traces of cocaine on their cash. Go after the biggest vehicles of criminality of all, Facebook/Twitter/Google/Apple/Microsoft. A classmate is now suing Twitter and Facebook on behalf of the families of the victims of the Orlando terror attack.

Posted by: David Behar | May 5, 2017 10:56:17 AM

Oh, come on, how can mere monitoring be punishment, right South Carolina Supreme Court and probably soon to be agreed with by our very own baboons in black pajamas (United States Supreme Court). These scapegoats, er, I mean criminals earned this, even if it was not a proscribed punishment at the time of sentencing. So what if they have to pay thousands of dollars over their life for the privilege, monetary compensation to the state is merely payback for just use.

Also, who cares if:

- the unit malfunctions, as it most certainly will, over it extended use and Bubba, er I mean LE show up at their door to put them in jail for a few days, or weeks while the matter is straightened out by our ever efficient injustice system. Their employer won't mind.

- limited life batteries can't be charged in time and again they are non-compliant and the results are the same as above.

- no matter how many lives they save and saintly they live, they can never get out from under the thumb of government. So what if they are treated only slightly worse than a taxpayer. They should consider themselves lucky to be breathing.

Many of these individuals were guilty of non-contact offenses.

Now, ain't our country great or what?

Posted by: albeed | May 5, 2017 11:56:40 AM

Al. Great question of malfunction. Does the maker of the ankle bracelet have any liability for malfunction? That is the path to a remedy, deterrence by tort litigation, especially in aggregate claims.

Posted by: David Behar | May 5, 2017 12:30:21 PM

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