The Digital Privacy of Young People on Probation Matters

An estimated 4.5 million people in the U.S. are under “community supervision” — subject to supervision as a condition of probation or release on parole. These people deal with a multitude of supervision requirements and conditions that in their sheer number and their poor design can often inhibit, rather than support, stability, growth, and community engagement. The demand for compliance with these conditions has made community supervision systems a major pipeline to incarceration, rather than an effective alternative to it: “technical violations” are responsible for a quarter of all state prison admissions.

Community supervision looms large in the youth justice system as well. After a long trend of decarceration, probation is now the single most common disposition in juvenile justice cases. Nearly half of all children with juvenile justice system involvement, close to 300,000 young people, are placed on probation each year. As with the adult system, juvenile probation is also a major feeder of youth incarceration with 18 percent of young people in youth jails or prisons there due to “technical violations” — purported failures to comply with conditions imposed by probation officers.

As with the adult system, probation conditions can be onerous and counterproductive. And too often they grant probation officers sweeping powers of surveillance over the young people subject to supervision.

This month, the California Supreme Court delivered an important ruling that pushes back against these blanket powers. (The Intercept reported in 2016 on cases involving the digital privacy of youth on probation against the backdrop of the passage of the Electronic Communications Privacy Act.) Specifically, the court ruled that the government cannot subject a young person on probation, as a condition of release, to random searches of his electronic devices and social media accounts. The trial court imposed the condition on Ricardo P., a teenager being placed on probation, merely on the belief that teenagers “typically will brag” about drug use on the internet despite a complete lack of evidence that he had ever used electronic devices in connection with any drugs or illegal activity, or ever previously bragged about drug use online. The condition was upheld by an appellate court.

The state Supreme Court, in an opinion by Justice Goodwin Liu, declared that “the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.”

“Allowing the government access to a young person’s electronic devices, remotely stored digital information, and account passwords … effectively gives the government unlimited access to ‘the sum’ of a young person’s life, including highly sensitive and constitutionally protected information about topics such as her sexual orientation,” the decision said.

The question before the court was whether the condition was reasonably related to preventing future criminality. The court found that the record before it, “which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronics search condition.” To subject Ricardo to these search conditions in this case, the court found, would authorize a similar condition in almost any case: “If we were to find this record sufficient … it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today.”

Such a condition, the court found, was unlike traditional physical searches and “functionally equivalent to a wiretap, which would be unprecedented as a probation condition.”

“If we were to hold that any search condition facilitating supervision of probationers is ‘reasonably related to future criminality,’” the court continued, “we might be obligated to uphold … a condition mandating that probationers wear 24-hour body cameras or permit a probation officer to accompany them at all times.”

The court also recognized that this invasion of privacy would have implications for young people’s ability and willingness to reach out to others for help, support, and resources.

“Young people, particularly young people from vulnerable communities who are disproportionately represented in the juvenile justice system, rely on electronic devices and communication to access critical information, to build essential connections, and to obtain important support and services, all of which further the rehabilitative purpose of probation. The condition here is unreasonable because it is likely to discourage precisely these beneficial activities.”

In a web post celebrating the ruling, the Electronic Frontier Foundation (which along with the ACLU Foundations of California filed an amicus brief in the case) noted that the ruling will have a significant impact. “The search condition imposed in this case was not unique, but one that many juvenile probationers have been subject to in California in recent years, under the same unsupported reasoning that the trial judge offered here.”

The California Supreme Court’s ruling is an important win for many reasons. It recognizes the reality of young people’s lives and the extent to which electronic devices and social media play a role in building relationships and finding supportive communities. It recognizes the cost of invading the privacy of the young people. And it emphasizes that the surveillance imposed as a condition of supervision detracts from, rather than contributes to, the rehabilitation that the youth justice system is supposed to foster.

As the court put it: “The price of any youthful transgression cannot be that the government has an all-access, long-term pass to your private life that chills access to the supportive communities and rehabilitative services that will help you build a healthy and productive future.”