Kira Lerner a staff reporter for The Appeal based in Washington, D.C. She is currently a Lipman Fellow at Columbia University’s Graduate School of Journalism.
Juvenile electronic monitoring now comes with a new form of potential surveillance.
This story was co-published with The Appeal.
On March 29, court officials in Chicago strapped an ankle monitor onto Shawn, a 15-year-old awaiting trial on charges of armed robbery. They explained that the device would need to be charged for two hours a day and that it would track his movements using GPS technology. He was told he would have to be given permission to leave his house, even to go to school.
And he found out that through his monitor, officers wouldn’t just be able to track his location, as most electronic monitors do. They would also be able to speak—and listen—to him.
“I feel like they are listening to what he’s saying,” said Shawn’s mother. “They can hear everything. We could be here talking about anything.”
Shawn, whose name has been changed to protect his identity, is one of hundreds of children in Chicago whose ankle monitors are now equipped with microphones and speakers. The stated purpose of these devices is to communicate with the people wearing the devices, but they are raising concerns among civil liberties watchers that they are actually a mechanism for surveilling the conversations of these kids and those around them—and potentially for using the recordings in criminal cases.
“I can’t quite even start down the parade of horribles in terms of all the ways this could be a problem,” said Sarah Staudt, senior policy analyst and staff attorney for Chicago Appleseed Fund for Justice and a former juvenile defense attorney in Cook County. “The idea that an adult can turn on a listening device while a child is, say, in the bathroom or in their bedroom is not good.”
In January, Cook County, home of Chicago, awarded a contract to the electronic monitoring company Track Group, which will lease 275 ankle monitors to keep tabs on children awaiting trial. The devices, known as ReliAlert XC3, have two-way communication capabilities that allow both electronic monitoring officers at the criminal court and employees at Track Group’s monitoring center to call an individual wearing a monitor at any time. The wearer can press a button on the device to reach the monitoring center, but there is no way to decline an incoming call.
Cook County officials said juvenile probation began using the new devices in February because of their extended battery life and more secure band. The devices were also selected because of their built-in communication, as some children on probation are difficult to reach by phone. But Pat Milhizer, the director of communications for the office of the chief judge in the Circuit Court of Cook County, said the county would now review concerns about privacy.
To the court’s knowledge, no probation officer has used the device in violation of the law, Milhizer said in an emailed statement, explaining that the communications feature is used “to inform the juvenile if the battery is low or that he or she entered an exclusionary zone where there is somebody or a place they must avoid.”
“These communications allow the juvenile to remain in compliance with court-ordered electronic monitoring to avoid further arrest and/or detention,” he wrote in the email. “The goal of the devices is to support the successful completion of electronic monitoring.”
All calls made through the new devices are recorded, time-stamped, and archived, and are stored on Track Group’s servers for 18 months, according to its contract with Cook County. Officials in Cook County have access to the files and can use them however they choose, including in the course of criminal investigations, said AJ Gigler, vice president of marketing and product management at Track Group.
In response to questions from The Appeal about privacy concerns over the recordings, Milhizer said Friday that “in an abundance of caution,” the Cook County Office of the Chief Judge would be instructing Track Group “to disable the recording capabilities of the system—pending a review to determine if recordings should be used to ensure both quality assurance and that there is a record indicating that all uses of the devices are in compliance with the law.”
After the publication of this article, Milhizer also reported that the Juvenile Probation Department would no longer use the device’s communications function at all, pending further review.
The ReliAlert device is supposed to play an audible, three-note sound when an electronic monitoring official is calling and then play another three notes when the call ends. “There is no way to initiate contact with the juvenile without the sound and vibration,” Milhizer wrote in the email. But outside Chicago, that hasn’t always been reliable. In 2014, a technician for Track Group, which was then called SecureAlert, testified during a hearing in Puerto Rico that although the device is supposed to vibrate and make a noise when it’s activated, the listening and speaking capabilities can be turned on without warning.
Even if children are alerted when they receive a call, attorneys said issues of consent remain. In 2014, Illinois passed a wiretapping law that made it illegal to use an “eavesdropping device” to overhear or record a conversation without the consent of all parties involved.
“It’s an invasion of privacy,” said Greg Gaither, founder of the Illinois African-American Juvenile Justice Institute and the Woodlawn Juvenile Reentry Project in Chicago, calling electronic monitoring an expansion of surveillance that is already concentrated in particular criminalized communities. “The reach of the electronic monitoring has gotten to the point where it goes too deep into communities.”
Attorneys in Chicago said that in February and March, the city transitioned children on electronic monitoring to the new ankle monitors. The previous ankle monitors, provided by Sentinel, had no speaker, microphone, or call button, and the county used telephones to communicate with people being tracked.
The national push to reduce jail and prison populations, coupled with the decline of cash bail, has spurred the growth of electronic monitoring programs across the U.S. Rather than set money bail or keep them in jail, judges can now choose to release individuals who agree to wear a tracking device until their trial date. Milhizer said that in Chicago, electronic monitoring has reduced the number of children held in a detention center. According to a Pew study, the number of active offender-monitoring devices in the U.S. increased nearly 140 percent from 2005 to 2015, when more than 125,000 people were supervised with the devices.
Cook County has expanded its use of electronic monitoring in recent years as it has implemented bail reforms and as Illinois has worked to reduce its prison population. More than 2,700 people in the county are on electronic monitoring through programs run by the sheriff’s office and the juvenile and adult probation departments.
Track Group, which is based in the Chicago suburbs, released the ReliAlert XC3 in 2014. It is the only company that provides electronic monitoring with patented built-in communication capabilities. In its advertising materials, it says the devices allow for “real-time violation intervention” and reduce “the effort spent by officers attempting to communicate with offenders.” The company also calls the device “the safest and most reliable monitoring device ever made.”
Gigler said the company contracts with several other U.S. jurisdictions and other countries to provide electronic monitoring devices, but would not disclose a list, citing possible competition. Marion County Community Corrections has contracted with Track Group for over 10 years, and the Indianapolis county currently has roughly 4,000 individuals on ReliAlert devices both pretrial and post-conviction, according to the department.
Under the contract with Cook County, Track Group will also provide 350 of these ReliAlert XC3 GPS devices for adult probation and another 90 for use by the sheriff's office, making up just a small percentage of the ankle monitors used on adults in Cook County. The majority of adults on electronic monitoring wear devices that track their movements with radio frequency. But because juvenile monitoring exclusively uses GPS devices, the new contract will cover all children on probation in Chicago.
Gigler said Cook County was interested in the technology for a number of reasons, including the communication options.
“Absent this technology, officers need to contact an offender through their personal phone number and they have a choice whether to answer the phone,” he said. “With this technology, they have no choice. They have to pick up.”
But attorneys and electronic monitoring experts say that communication feature potentially violates the U.S. Constitution.
“A million alarm bells go off as a professor of criminal procedure,” said Kate Weisburd, a professor at The George Washington University Law School who researches electronic monitoring across the country. “I think if the police hear something incriminating on one of these, there will be litigation as to the constitutionality of [the use of] those statements.”
She said jurisdictions often assume individuals ordered to wear a device by a judge have given consent to be monitored, but then extend that consent in problematic ways.
“Oftentimes there’s this idea of consent invoked,” she said. “In other words, a young person or an adult has consented to be on a monitor in lieu of being in prison or jail. The problem with that is that consent can’t just be a blanket, carte blanche excuse for any type of privacy invasion. There has to be some limit.”
Third-party storage of such sensitive information poses additional security risks, said Stephanie Lacambra, a criminal defense staff attorney with the Electronic Frontier Foundation.
“This would have the same sort of privacy concerns that we have in any sort of data collection scheme,” Lacambra said. “We find generally that the speed with which technology develops often isn’t tempered by enough meaningful mindful reflection over what the consequences of the use of the technology will be for the communities.”
Lacambra advised that advocates push for a privacy impact report from Cook County to ensure there are policies to protect the privacy of the individuals being monitored. Before jurisdictions acquire new technology like the ReliAlert devices, communities should be able to give feedback about whether they think it’s a good use of government funds and whether policy is needed to regulate it, she said.
Cook County’s juvenile probation department’s electronic monitoring program dates back to June 1996. The original program used landline telephones but transitioned to GPS devices in January 2010. In 2014, after a teenager on electronic monitoring was accused of sexual assault, the county moved from checking in on children wearing monitors periodically to tracking them 24 hours a day.
Cook County considers the monitors an essential part of its pretrial justice program as an alternative to holding youth in jail before trial. “GPS is the electronic monitoring used so that juveniles may be allowed movement outside of the home to go to school, work, programs and other positive activities that support rehabilitation,” Milhizer wrote.
But advocates argue that there is no evidence to show that electronic monitoring furthers any goals of the court system.
“We’re substituting one ill for another ill,” Weisburd said.
A 2012 study by the Pretrial Justice Institute found that nearly 90 percent of people would return to court with little more than a reminder of their court date. In the last 18 months, Cook County has released more than 24,000 people pretrial. The vast majority have had less-restrictive conditions than electronic monitoring, according to the Chicago Community Bond Fund. Just 0.6 percent of the felony defendants who were released between October 1, 2017, and December 31, 2018, were charged with committing a new violent offense while in the community, according to data from Cook County. Nevertheless, judges are hesitant to release people without restrictions and are using monitoring as a risk mitigation tool.
Aside from surveillance, juvenile electronic monitoring presents other concerns, from the need to charge the devices, to stigma in school with friends, to strict rules about where children are required to be at particular times. These rules mean young people often end up violating the terms of their release.
“The defense of these devices is that the alternative is incarceration, but in reality what’s happening is that most people just bounce back and forth between being incarcerated and being released and oftentimes young people who are on these devices end up incarcerated anyway,” Weisburd said. “Not for new offenses but for some technical violation related to the device.”
Shawn is well aware of that risk. After he was arrested for armed robbery in September, he spent six months in juvenile detention. He said he is grateful that Cook County let him out on electronic monitoring at the end of March because even home arrest is better than being in custody. Still, he said, electronic monitoring is its own kind of confinement when officers can call you any time without your consent.
“I’m on house arrest,” he said. “You want to put this thing on so you can reach out to me and call me? Why can’t I just call y’all? Why can’t it be simple? It’s kind of like being treated like a slave or something like that. They don’t give us no room to think.”
“They give you all the tools to bury yourself,” he added, “but I’m not going to let that have an effect on my situation.”