Civil libertarians and prisoner advocacy groups have expressed shock and outrage at the discovery that some Global Positioning System (GPS) tracking devices, used to monitor the movement and whereabouts of many pre-trial defendants, parolees, sex offenders and other persons, function like cell phones and are capable of recording conversations without the knowledge or consent of the people wearing them – including confidential conversations with their attorneys.
The audio recording technology first came to light in Puerto Rico, when defense attorney Fermín L. Arraiza-Navas asked a client during a meeting in San Juan about the GPS ankle bracelet he was wearing as a condition of his bail.
“They speak to me through that thing,” the man said.
During a court hearing on a motion subsequently filed by Arraiza-Navas to have his client’s GPS device removed, a technician for SecureAlert, the company that manufactures the monitors, revealed their true capabilities. The technician – who testified through the cell phone feature of a GPS ankle bracelet – told the court that although the device is supposed to vibrate and give an audible warning when activated, it can be turned on at will and without warning.
Proponents of the technology argue that it enhances accountability and the ability of authorities to contact the wearer in emergencies. They point to the real-time monitoring of the devices as an essential deterrent, because here-and-now tracking allows law enforcement to be notified if the wearer violates any movement restrictions.
The wearer can also press a panic button to initiate a call to a SecureAlert support technician, and technicians can call individual GPS monitors to speak with the wearers. But while the devices emit a loud tone and the phrase “secure alert,” or vibrate when the line is opened or closed, the alert function can be bypassed. Thus, an open connection to a monitoring device can be established without the knowledge of the wearer.
Assistant San Juan District Attorney Erika Quiñones-González denied in court that the device infringes on a defendant’s constitutional rights, asserting that “the supervised defendant is warned by a vibration and sound before the line is open to allow communication,” and that the device emits an audio alert when the phone call is over.
However, Arraiza-Navas pointed out that the GPS monitor emitted no alarm or signal when the courtroom communication with the SecureAlert technician ended. Further, he told the court that the system’s operator said the device could be activated “unilaterally” by SecureAlert, and that “the conversations could be heard.”
Arraiza-Navas argued that the high-tech ability of the devices oversteps the state’s right to monitor defendants. “It cannot be supported by law that in order to be set free under bail, [persons] charged with a crime have to waive their right to privacy and to keep their conversations with attorneys confidential,” he wrote. He decried the monitoring as “flagrantly unconstitutional.”
Other legal experts suggested that the ability of government officials and private companies to secretly listen in on and record private conversations violates the Fourth Amendment, the Federal Wiretap Act and various states’ constitutions.
William Ramírez, executive director of the Puerto Rico Chapter of the American Civil Liberties Union, said the right to privacy and right against self-incrimination could be infringed if defendants are not notified that their conversations can be monitored or recorded by the Pretrial Services Office or SecureAlert.
Victor A. Meléndez-Lugo, who heads the Appeals Division of the Puerto Rico Legal Aid Society, said the possibility of such surreptitious eavesdropping is “shocking.”
“The recording or interception of phone calls in Puerto Rico constitutes a crime,” he noted. “If that is happening in Puerto Rico it has to stop happening since yesterday.”
The government’s ability “to listen and/or record the unauthorized conversations between a defendant with his or her lawyer through an electronic GPS bracelet represents the most absolute and gross infringement to that person’s constitutional rights,” added Puerto Rico legal expert Carlos E. Ramos, a professor at the Interamerican University Law School.
Other civil libertarians agreed. “If it allows eavesdropping or to record conversations, [it] is a very important issue that is worth exploring,” said Ben Wizner, senior staff attorney for the ACLU in Washington, D.C.
The issue is not a minor one; as many as 200,000 people in the U.S. are subject to some sort of electronic monitoring devices. [See: PLN, March 2012, p.20].
“If law enforcement agencies anywhere in this country are using such microphone-equipped GPS ankle bracelets they must, at a minimum, make both a general disclosure of that fact to the public and our elected representatives, as well as a specific and complete disclosure of that fact to each and every person who might wear one of those ankle bracelets, as well as to his or her attorney,” stated Jerry J. Cox, president of the National Association of Criminal Defense Lawyers.
Sources: www.thecrimereport.org, Associated Press, Puerto Rico Center for Investigative Reporting
(Published by Prison Legal News; used by permission)