Big Tech Is Using the Pandemic to Push Dangerous New Forms of Surveillance

For more than two decades, the ankle shackle has remained the standard electronic monitoring (EM) device. While cellphones, tablets, smartwatches and laptop computers evolved, the black plastic band remained — bulging out under socks and scraping the skin off criminalized legs. Even at this stage of the Fourth Industrial Revolution, many of these devices require a landline phone to function. They retain ancestral ties to the analog age.

COVID-19 and decarceration are bringing rapid change to this monitoring landscape. As Sam Biddle of The Intercept has argued, “a climate of perpetual bio-anxiety has paved the way for broader acceptance of carceral technologies.” In the world of electronic monitoring, this may ultimately spell the end of ankle-based shackles and the ushering in of a range of smaller, more powerful devices that grab far more than location data. Furthermore, as local authorities look for ways to defund policing, new technologies may be one of the carceral “solutions” they employ to dilute the demands for transformation.

The catalyst for change has been the rampant presence of COVID-19 in U.S. jails and prisons. Pressures to social distance and isolate behind the walls prompted authorities to find a way to release people while promising “public safety.” In many jurisdictions, the electronic monitor, despite having no proven track record of success, has become the policy tool of choice. In Pittsburgh, Chicago and Milwaukee, decarceration with EM grew so quickly that authorities ran out of monitoring devices. Decision-makers in Pittsburgh reacted by placing people on home detention without an electronic tether. Their Chicago counterparts took the draconian course, making people wait in Cook County Jail (where seven incarcerated people had already died from COVID-19) until monitor inventories could be replenished. Cities like Indianapolis and Cleveland also turned to EM to reduce their jail populations.

Yet, release on EM presents serious dangers under COVID-19. To even leave the house, most monitoring regimes require advance permission from law enforcement. This poses a huge dilemma for a person who suddenly shows symptoms of COVID-19. Delaying a visit to the doctor while waiting for permission could have dire health consequences. On the other hand, an unauthorized visit to the doctor could result in reincarceration. Moreover, many EM programs charge daily fees that can reach as high as $35 a day. In this time of massive unemployment, extra carceral fees add to the burdens in households already stretched to the limit.

From Shackle to Cellphone

In addition to expansion in the use of EM, COVID-19 has also prompted changes in the actual technology. Smartphone-based apps are replacing the ankle shackle. BI, the nation’s largest electronic monitoring company, is the market leader in this arena. While BI still produces traditional ankle monitors, the SmartLINK app is their front-runner into the future. SmartLINK has already become the go-to device for Immigration and Customs Enforcement (ICE). As of May 16, 2020, BI had over 20,000 people under ICE supervision on SmartLINK, nearly double the figure for June 2019. Although BI is guarded about the functionalities of SmartLINK, reports reveal that users may be required to enter the contact details of five friends or family members in the United States when they log on, setting those individuals up for ICE surveillance.

BI has also been aggressively marketing SmartLINK as an add-on to other supervision regimes. For example, since the start of shelter-in-place, Illinois parole agents have been ordering clients not under EM to download SmartLINK to their personal phone. The app allows agents to practice safe distancing through video check-ins rather than in-person meetings. Users can log onto the app through facial and voice recognition. SmartLINK also claims to offer services like court date reminders and lists of local resources. Probation authorities in Akron, Ohio, adopted a similar course, ordering 1,000 of their 4,000 people on probation to download a rival app, Outreach Smartphone Monitoring.

Another major player in this cellphone-based sphere is Guardian, made by prison phone profiteer GTL. Guardian is promoted as an “ultra-modern” smartphone app with the slogan, “Don’t give them an ankle bracelet, give them a hand.” Those under supervision can be prompted any time of day to read a series of numbers into the screen. Once downloaded, Guardian has the capacity to pick up ambient sound, adding another dimension of techno-invasion of privacy. An article in Gizmodo estimated that users had downloaded Guardian up to 50,000 times but noted that the app has such a history of technical failures like inaccurate location reporting that the authors categorized it as “faulty to the point of being unusable.”

Unlike producing ankle monitors, developing an app does not require a factory and a workforce. Hence, a number of start-ups are pouring into this space. Acivilate’s Pokket and Promise embody the spirit of new market players fully in line with the notion of carceral humanism. While SmartLINK and Guardian struggle to distance themselves from their parent company’s historical ties to incarceration, Pokket and Promise don’t carry that baggage. They emerged in the Obama years when providing “alternatives” to incarceration began to mainstream. Acivilate’s Pokket cloud service focuses on “safely sharing information” by providing the parole officer with the “full context of the client’s progress and challenges” in order to “break the cycle of recidivism.” Acivilate has secured contracts with Maryland and Utah. Promise, launched via a capital injection from seven investors, including Jay-Z’s Roc Nation, boasts that it is not a “clunky tool” like an ankle shackle but a “smart dashboard” — a “caring” app for “clients who need attention each day” for “ongoing and timely support” including court date reminders and lists of service providers.

Libre by Nexus took this carceral humanism to a new level. For years, Libre has been lending immigrants bail money, then charging them $14 a day to be on EM, plus a debt service fee on the loan. When one of the company’s clients died of COVID-19 this year with the shackle still on their ankle, company President Mike Donovan pivoted away from EM. Referring to his deceased client as “family,” he decided to totally reject the technology of electronic monitoring, arguing that “placing a tracking device on someone simply isn’t effective in actually solving problems associated with immigrants in detention or pretrial criminal defendants in U.S. jails.” Labeling ankle monitors as “unreliable” and “unhelpful,” Donovan asserted that “ending the use of body affixed GPS technology is a goal all governments should be committed to achieving.” He capped his critique by announcing that the 7,000 individuals on Libre by Nexus ankle monitors would move to cellphone apps which would not only track location, but offer access to telemedicine opportunities and appointment reminders.

Despite the claims of cellphone-based apps to provide services, many researchers and policy-makers are skeptical. Mark Latonero, a researcher at the technology nonprofit research organization Data and Society, notes that these devices are not just about support, they can just as easily be used to “track, surveil, discriminate and stigmatize.” University of Illinois researcher Daniel Gonzalez told Truthout that while some smartphone-based technology may be useful for short-term public health purposes during the COVID-19 crisis, in the long run, it poses two distinct dangers. First, developers can create new apps and mandate download of updates with such speed that keeping up with the changes or enacting regimes of regulation becomes virtually impossible. Second, these cellphone-based electronic monitors move the scope of the surveillance of a monitor from the individual to the household, even the community. An enormous data matrix can emerge by combining audio/video connections and location tracking with databases that contain information on individuals living in the house or nearby.

Electronic Monitors and Quarantine Management

While cellphone apps are a major shift in EM, more is on the boil: the blending of carceral electronic monitoring with coronavirus quarantine management. This involves both the re-framing of tracking technology in the discourse of public health and a deeper infusion of carceral logic into the public health sphere. The prototype of this move is Israel-based SuperCom, an established EM provider in the U.S. According to the head of SuperCom’s Americas division, Ordan Trabelsi,

Many customers and potential customers around the world asked us if we could use that same platform to do COVID-19 home quarantine tracking and compliance. And we thought, of course we can because it’s exactly what we do in the offender tracking space. But now we’ll just be tracking people that are not essentially offenders but unluckily were exposed to the virus.

SuperCom is marketing this quarantine management software in a number of countries.

A second set of coronavirus-dedicated devices involves contact tracing via the use of Bluetooth. These necessitate a critical mass of users downloading a Bluetooth-based app which alerts the user when they come in contact with another user who has tested positive. A surprise partnership between competitors Google and Apple leads the field in these applications, but national governments in Singapore, Taiwan, Australia and several other countries have followed suit. In the U.S., Utah along with North and South Dakota have been front-runners in this market, followed by Rhode Island with its Crush COVID RI application.

More advanced data grabbers combine field work techniques of social science with the exclusion zones programmed into certain GPS devices. Exclusion zones categorize specific parts of a city as forbidden areas. An ankle monitor sounds an alarm if a user crosses the techno-border. Such zones most frequently apply to individuals with sex offense convictions or alleged gang members.

The contact tracing platforms implemented in China and India demonstrate more advanced modes of exclusion zones, more widely known as geofencing. In these geofencing operations, authorities use technology to create boundaries and borders within entire urban spaces. The Chinese government, in partnership with mega corporations Alipay and Alibaba, have compelled virtually their entire online population to download an app that yields an Alipay health code — a sort of risk assessment that represents the user’s health status in terms of coronavirus. The assessment converts to a color QR code housed in a person’s phone that determines an individual’s freedom of movement. Public banners in the city of Hangzhou highlight the rules: “Green code, travel freely. Red or yellow, report immediately.” Those with red or yellow may be quarantined at home or taken to a medical isolation unit for up to 14 days. The New York Times report also alleges that such personal data are added to the individual’s police record.

While China’s assessments are individualized, India deploys the government-established Aarogya Setu (“bridge to health”) app to color code entire neighborhoods. Through grabbing health data from the more than 100 million people who have downloaded the app, the government is able to geofence parts of cities. People who live in a green zone have pretty much unrestricted movement, while those residing in a red zone will be spending the bulk of their days sheltering in place.

Other countries and even some states in the U.S. are using technology to construct simpler forms of geofences, much like traditional borders. The best example is the notion of COVID passes or immunity passports, documents which provide proof that the bearer has tested negative for COVID-19. The passport idea is currently under consideration in Italy, the U.K., Germany and Chile.

A variation on this theme is linking entrance through a national border with technologies of movement control. South Korea requires international visitors to download an app and remain in quarantine for 14 days upon arrival. Hawaii has examined the possibility of placing all visitors on a GPS monitor for their first 14 days in the Aloha State.

This array of geofences demonstrates how ultimately the exclusion zones of EM could morph into a far more systematic segregation, based not only on a person’s criminal background but a range of data that might go into their profile, including the health data collected for COVID-19 detection. Just as Indian urban authorities can color code neighborhoods and grant differentiated freedoms to residents of different parts of the city based on health criteria, a U.S. version, drawing data gathered from sources tainted by structural racism is not difficult to imagine. (I have referred to this process previously as e-gentrification.)

How Should We Respond?

In a recent report on COVID-19 data gathering, the ACLU urged people to “skeptically scrutinize” new products and proposals “especially when they have implications for our privacy or other civil liberties.” Human Rights Watch expressed similar concerns directed at the use of mobile location data in the COVID-19 response, noting that such data “usually contains sensitive and revealing insights about people’s identity, location, behavior, associations and activities.” One logical extrapolation of these critiques could be the creation of legislation akin to the European Union’s, a regulation that places serious restrictions on corporate behavior and guarantees some individual rights to privacy.

However, any oversight of data gathering must assess the racial impact of new technologies. Think tanks like Ibram X. Kendi’s Antiracist Research Center along with independent journalists like Zoë Carpenter have systematically gathered data on racial inequalities and disparities in cases and deaths, and have incontrovertibly connected these to structural racism. Kendi argues that these data allow us “to provide policymakers with the ability to make evidence-based policy decisions to curtail health disparities during the pandemic.” Such critiques are crucial in determining which aspects of data gathering pertain to public health and which are merely the surveillance state and Big Data widening their nets.

Yet gathering data and mounting critique is not enough. We need a bigger picture. While the onset of the pandemic and the resulting technological changes seem sudden, this is a moment for which people like former Google CEO Eric Schmidt, Bill Gates and Jeff Bezos have been preparing. In a talk to the National Security Commission on Artificial Intelligence in 2019, Schmidt outlined his vision of the techno-future. For Schmidt, the lethal coronavirus has come along just in time to become the great enabler. Schmidt envisages a world in which big tech increasingly takes over the functions of government. In this model, more and more profits go to a small circle of tech firms, while disposable and semi-disposable workers of color deliver Amazon packages, health care and other services to those who can afford them. To ensure efficient delivery, these workers will be tracked by apps akin to Pokket for location, for productivity, and to check if they show any biochemical imbalances that might precede violent episodes, waves of lethargy or moments of rebellion.

Daniel Gonzalez notes that while mainstream critics stress the use of data to market consumer goods, for Black, Latinx, Indigenous folks and other marginalized sectors, data are weaponized to exclude, ban and block access to employment, health care, education, mobility and other public benefits.

This means challenging e-carceration during the pandemic and beyond is about much more than contesting the use of electronic monitors for pretrial release or even contact tracing. As author Simone Browne has reminded us, the state has a long history of surveilling Black bodies and those of other marginalized groups. She calls for people to claim ownership of their data by organizing and developing a critical biometric consciousness, an awareness of how companies and the racial capitalist state appropriate the data of criminalized bodies for profit and political gain. In particular, she argues developing that consciousness and building on it is even more crucial now.

A primary obstacle to the emergence of that consciousness is the power of the Apples and the Samsungs to produce enchanting technologies which we often can’t imagine living without, even when we know the dangers they pose. Can we develop such a consciousness without soberly examining and reshaping how these “conveniences” literally become shackles?

As Big Data continues to grow, as electronic monitors morph from bands on legs to mini think tanks inside our phones or smart watches and as grassroots pressures to defund policing and abolishing prisons grows, another issue inevitably emerges: the question of ownership. As long as we reside in a world where a handful of big tech companies control the production of devices, social media platforms and the clouds where our data live, they will use that data to enforce racialized systems of control and oppression, the very systems activists are calling out for defunding and abolishing. These companies and elected politicians may sugarcoat surveillance as either fun, necessary or in the interest of public health. But digital policing and e-carceration are not solutions — they extend the power of those who have already made billions during the COVID crisis.

Shoshana Zuboff, author of Surveillance Capitalism, contends that while “those in power have long understood that times of crisis are opportunities for states of exception that allow all manner of ills to be rushed into normalization before anybody has even pulled up their socks, there is nothing here that is inevitable. I don’t agree that we are doomed to a future of biosurveillance and dystopia … we have to move forward, doubling down on democracy as the way out of this.”

This is why we need a movement that fights for abolition but also imagines a world where media and data are under grassroots control. Such a notion seems beyond the realm of remote possibility right now, but so did defunding police just a month ago. In a crisis, the dream that seemed impossible for decades, even centuries, can become possible overnight.