Big Brother is Tracking You: A Review of GPS/ Electronic Monitoring
Derek W. Logue of OnceFallen.com
Posted: 17 May 2019

I know how to get it off.  I watched them put it on. You can figure out how to get it off. It’s on the Internet. I looked it up.” --
Celebrity Home DIY Personality Martha Stewart, to Vanity Fair during her house arrest following her involvement with an insider
trading scandal [1]

SUMMARY

  • Electronic Monitoring (EM) has been promoted as a “silver bullet” for reducing recidivism, but the few studies on EM as a
    crime control method has been inconclusive at best.
  • Despite advances in technology in recent years, EM is still rather costly and prone to errors from a variety of environmental
    and human factors.
  • Electronic monitoring devices cause a potential health risk to the human body and have been found to cause negative
    psychological effects for both registrants and their loved ones.
  • Agencies promoting EM devices fail to consider indirect costs such as increased resource needs to investigate false alarms,
    manpower issues, or the inability to force registrants to pay for monitoring, leaving taxpayers to pay millions on programs
    touted as “cost-efficient”.
  • Courts are split on whether EM violates various constitutional principles, though many courts have found the devices to be
    punitive and a violation of the 4th Amendment protections against unreasonable searches and seizures. The act of GPS
    monitoring is deemed a search by SCOTUS, though it was not necessarily deemed an unreasonable search. It seems these
    legal battles should focus on individual

INTRODUCTION

“Big Brother is Watching You” is the famous slogan from “1984”, George Orwell’s famous dystopian novel where society lives
under a totalitarian regime marked by extreme levels of government surveillance. Residents in the novel lived under constant
surveillance by the government, and in today’s society, life has imitated Orwell’s novel in many ways. Americans are seemingly
content with allowance of tracking by companies like Google, which monitors your movement even when you turn off your location
history.[2]

Incidentally, the modern use of electronic monitoring as a form of surveillance of people placed on supervision proliferated in the
year 1984.[3]  

While Americans are concerned about the level of intrusiveness into their personal lives from corporate America, most Americans
give little thought to intrusive activity as it applies to registered citizens subject to electronic monitoring. However, the level of
intrusiveness should be a concern to all citizens, because increasing erosions of freedom have often began through laws targeting the
least popular groups in society. This article specifically covers EM Monitoring (also commonly called GPS monitoring even when the
devices aren’t actually GPS, or simply “ankle bracelets/ monitors”), the potential problems associated with EM, and major legal
decisions on the use of electronic monitoring for people convicted of sex crimes.

A BRIEF HISTORY OF GPS MONITORING

GPS Monitoring has an unusual history involving cows, comic books, and a private prison group.

The concept of electronic monitoring began in the 1960s with the work of William Sprech Hurd and Ralph Kirkland Schwitzgebel
(who would later shorten his last name to Gable). They worked together in a corner storefront, working with at-risk youth, parolees,
psychiatric patients and student research volunteers to test monitoring equipment the duo created using surplus military missile
tracking equipment, portable receivers, battery packs, and stationary radio-frequency radio stations. Early devices were quite large
(devices were about 2 pounds and the batteries 3 pounds). Early experiments showed mainly negative results; most subjects rejected
the devices as “too intrusive and embarrassing”, and an attempt to publish their findings in the Federal Probation publication was met
with ridicule (“we are going to make automatons out of our parolees”).[4]  

The idea of electronic monitoring went nowhere until idea was picked up by Arizona state district Judge Jack L. Love, who was
looking for a technological solution to prison overcrowding and escapes. Love, an avid reader of the paper and of technology, had
kept a series of Spiderman comics where one of the comic book villains had secretly attached an “oversized ID bracelet on
Spiderman so that the villain could locate Spiderman at any time. He had also recalled a news article about electronic monitoring of
cattle and by this time, some libraries had electronic bells to deter material from being removed without permission. This led to Love
attempting to sell the idea to companies was eventually picked up by Michael T. Goss of Honeywell Information Systems. Goss left
Honeywell to start up a new company, National Incarceration Monitor and Control Services, Inc, (NIMCOS). In March 1983, Judge
Love held a press conference to promote electronic monitoring by offering to wear the device himself to show how it worked. While
results of the publicity stunt were mixed, the judge had convinced the state’s highest court to allow usage of the device. One negative
consequence was the stigma attached to wearing the devices. For example, one offender feared the device was tracking his
conversations. The “Albuquerque Experiment” was short-lived as the money soon ran out and no other company wanted to invest in
such a high risk venture.[5]

Goss had approached Boulder Industries, which had “milked dry the dairy industry” with cattle monitoring tags, with the GPS
monitoring idea. Boulder Industries created a report on the possibility of using electronic monitoring from those on supervision; after
reports from skeptical officers who found GPS monitoring to be “too new, too much work, threatened their jobs, and shouldn’t be
done by a private company,” Boulder Industries’ president, David Hunter, found the skepticism to be a “real business opportunity.”
Over the years, Boulder Industries would invest into NIMCOS and buy up smaller monitoring companies, and would later merge with
the controversial private prison company GEO Group as a subsidiary.[6]

Rival inventor Thomas Moody, who ran a burglar alarm business with his father, became aware of the Albuquerque experiment and
convinced Monroe County, Florida Judge Allison DeFoor to try an “In-House Arrest Program” using the new technology in 1984. In
turn, Judge DeFoor transferred the pilot program to Palm Beach County, Florida. Other competing monitoring companies soon
popped up across the USA, and the use of electronic monitoring spread. By 2014, it was estimated that 140,000 electronic
monitoring units were utilized across the USA.[7]  

ELECTRONIC MONITORING IS NOT A “SILVER BULLET”

Around the mid-2000s, states were eager to herald GPS monitoring as the latest trend in monitoring those on the registry, especially
following the high-profile rape-murder of Jessica Lunsford. By 2006, 22 states had passed some form of electronic monitoring law.
[8]  By 2007, that number had jumped to 40 states, with at least 15 states passing laws for lifetime GPS monitoring for at least some
registrants.[9]  

Early studies found GPS monitoring led to high levels of false alarms. In 2005, Washington State performed a test run with “passive”
devices (passive devices merely record where the person has been and must be uploaded to read, whereas active devices send out
constant signals), and  found 4000 “notices of violation,” the vast majority of which were false alarms due to technical difficulties.
[10]  In Arizona, a 2007 legislative study found more than 35,000 false alerts by 140 subjects wearing the GPS-monitoring devices.
“False alarms number in the thousands in some jurisdictions, straining manpower and casting doubt on the viability of GPS as a
tracking tool for high-profile felons.”[11]

There are a few anecdotal examples of false alarms that exemplify the disastrous results of a false alarm. In 2008, David Pollitt of
Connecticut was arrested for a parole violation because his GPS monitor claimed he had left his home for 15 minutes. Despite
protests from Pollitt and his sister that he was in the backyard at the time, he was arrested. Ultimately, it was determined the device
had malfunctioned and could not give an accurate reading. “John Kaloidis, Pollitt's lawyer, said a prosecutor in New London Superior
Court withdrew the warrant after receiving letters from Pro-Tech Monitoring, which operates Pollitt's GPS tracking system…
Kaloidis blamed political pressure for the rush to make an arrest. Gov. M. Jodi Rell called for Pollitt to be returned to prison
Wednesday on the alleged probation violation. Kaloidis accused Rell of leading the ‘lynch mob’ against his client. ‘The governor
jumped and convicted this man without knowing any of the facts or doing an investigation,’ Kaloidis said. ‘She was playing politics.’”
[12]  Troy Hawkins, who spent time on a monitor in Wisconsin, reported that he was taken to jail for five days when a power outage
caused his device to lose connection.[14]

Proponents may argue that technological advances have greatly improved accuracy and clarity in cellular phone technology in recent
years, but even the latest smartphones suffer from certain problems; it is hard to pick up a signal in a canyon, a skyscraper, or any
place where there are plenty of electronics, metal, or bad weather. If your high-end smartphone cannot pick up a signal under certain
conditions, then you should realize that GPS monitors have the same issues. Below are some technical issues that could interfere with
GPS signals:

  1. “GDOP (geometric dilution of precision) or PDOP (position dilution of precision): Describes error caused by the relative
    position of the GPS satellites. Basically, the more signals a GPS receiver can “see” (spread apart versus close together), the
    more precise it can be. From the observer’s point of view, if the satellites are spread apart in the sky, then the GPS receiver
    has a good GDOP. But if the satellites are physically close together, then you have poor GDOP. This lowers the quality of
    your GPS positioning potentially by meters.”
  2. Atmosphere Refraction: “The troposphere and ionosphere can change the speed of propagation of a GPS signal. Due to
    atmospheric conditions, the atmosphere refracts the satellite signals as they pass through on their way to the earth’s surface.
    In order to fix this, a GPS can use two separate frequencies to minimize propagation speed error. Depending on conditions,
    this type of GPS error could offset position anywhere from 5 meters.”
  3. “Multipath Effects: One possible error source in GPS calculations is the multipath effect. Multipath occurs when the GPS
    satellite signal bounces off of nearby structures like buildings and mountains. In effect, your GPS receiver detects the same
    signal twice at different ranges. However, this error is a bit less concerning and could cause anywhere from 1 meter of
    position error.”
  4. “Satellite Time and Location (Ephemeris): The accuracy of a GPS satellite’s atomic clock is one nanosecond for each clock
    tick. That’s pretty impressive stuff. Using trilateration of time signals in orbit, GPS receivers on the ground can obtain
    accurate positions. But due to the inaccuracy of satellite’s atomic clock being synchronized, this can offset a position
    measurement by 2 meters or so. The ephemeris information contains details about that specific satellite’s location. But if you
    don’t know their exact location at a particular time, this can be a source of error.”
  5. “GPS Differential Correction: GPS receivers improve accuracy using two receivers because ground-based receivers can take
    accurate measurements of the error. As long as the stationary GPS receiver detects the same satellite signals as your GPS
    receiver, it can send you correction data based on its precisely surveyed location. This augmented system broadcasts the
    corrected error in real-time along with the GPS signal. As a matter of fact, this is the principal idea of a satellite-based
    augmentation system (SBAS) and can provide sub-meter GPS accuracy.”[14]

To summarize the technical jargon, certain factors such as the position of a person in relation to a GPS satellite or tower, the
atmosphere, or errors within the device itself can degrade accuracy. This accuracy is important at times where precision is needed,
such as when a person is on house arrest and cannot leave his yard. Inaccuracies lead to false alarms, which in turn costs taxpayer
dollars.

Below is a list of situations where GPS might be inaccurate:

  • Satellite signal blockage due to buildings, bridges, trees, etc.
  • Indoor or underground use
  • Signals reflected off buildings or walls ("multipath")
  • Radio interference or jamming
  • Major solar storms
  • Satellite maintenance/maneuvers creating temporary gaps in coverage
  • Improperly designed devices that do not comply with GPS Interface Specifications
  • Faulty mapping software issues, including Incorrectly drawn maps; Mislabeled businesses and other points of interest;
    Missing roads, buildings, communities, etc.; and Incorrectly estimated street addresses[15]

Even when the devices are accurate, there are ways to circumvent monitoring, like simply removing the monitor, but those on GPS
can still commit the crimes even with the ankle bracelets attached. While proponents of GPS might argue the feeling of being
monitored might deter crime, many fail to add the fact that numerous crimes still occur by people wearing ankle bracelets. In 2013,
the Washington Post reported on stats obtained from District of Columbia’s Pretrial Services Agency, which found “of 1,351
defendants who were released with GPS ankle bracelets to track their movements, 110 were arrested and charged with new crimes.
Nearly a dozen crimes were violent, including armed robbery, assault and attempted child sex abuse. In past years, defendants in the
program have been charged with murder and rape.”[16]

Eric Markowitz brings up a few key concerns about GPS monitoring:

  1. Whether GPS reduces crime: “But a larger problem persists. If convicts and parolees are wearing electronic monitors and still
    committing crimes, it begs the question: Does electronic monitoring really even work? Whether electronic monitoring has an
    effect on recidivism rates is a notoriously complex challenge that’s been studied by criminologists for two decades.”
  2. Whether there are sufficient resources to use the systems properly: “Even with the technology constantly pinging the system,
    police often lack boots on the ground to actually prevent violations in progress. ‘The biggest problem is an underestimation of
    manpower needs,’ Correct Tech President George Drake] says. This could have serious implications. If the ping comes from
    the data center, but the police are responding to other calls, it might take several minutes, or even hours, to respond. By the
    time they do, it may be too late. There’s a bit of irony here. The costs of GPS technology have dropped, which have made
    electronic monitors more affordable for state agencies. But while the devices themselves are affordable, they require a
    response infrastructure that many local police precincts simply can’t afford.”
  3. Some people can remove ankle bracelets: As a sort of strange byproduct of his work, Drake has become something of an
    expert on human anatomy; he has spent years comparing the ratios of the circumference of human ankles to the
    circumference of heels. He uses that research to consult with manufacturers, who are eager to design products that are
    impossible to slip off. “People who have stubby ankles and small feet—it doesn’t take much to slide it over the heel,” he says.
    Many of the newest models are made with accelerometers and motion detectors, so that when people stay still too long (or
    have managed to slip off the tracker), it sends out an alert to local police. They’re also made with sensors, so that if a parolee
    tries to crack open the hard plastic and remove the GPS chip, it also sends out an alert.[17]  

A 2008 International Association of Chiefs of Police report reported a number of potential advantages and disadvantages of GPS
monitoring systems:

  • Active GPS Systems (Active systems allow the PTD to transmit offender location information to a monitoring center in near-
    real time. Therefore, active GPS systems require a cellular telephone to communicate location information and determine
    whether a transmitter is out of range or whether someone has tampered with it.)
  • Advantages: Seek to alleviate prison overcrowding, Immediate response capability, Data reporting in near-real time
  • Disadvantages: High daily cost, Reliance on wireless data service coverage, Labor intensive, Require immediate agency
    response, Greater agency liability, Tracking device size and weight

  • Passive GPS Systems (Location and time data are stored in the PTD, and this information is downloaded when the PTD is
    charged each day. The charger is connected to a landline telephone to transfer information to the monitoring center.)
  • Advantages: Small, lightweight device, Can be independent of wireless data services, Lower daily cost, Less labor
    intensive
  • Disadvantages: “After-the-fact” tracking data, No immediate notification of zone violations[18]

With the proliferation of Global Positioning Systems (GPS) as the dominant form of monitoring, the potential of legal abuses, such as
the ability of the devices to collect data beyond location tracking, exists. Defense lawyer Fermín L. Arraiza-Navas had discovered at
least two of his clients were being monitored with a GPS ankle monitor that had phone capabilities (during a meeting with one of his
clients, the client casually remarked that “They speak to me through that thing”). Arriza-Navas cancelled the meeting and filed a
motion to have the GPS device removed from his client. As reported of The Crime Report:

“During the court hearing on the motion, his worst suspicions were confirmed. A Corrections Department agent, who works at the
Puerto Rico Pretrial Services Office’s monitoring center for defendants free on bail, placed a GPS ankle bracelet on the court podium
and made a call from the device to a technician of the SecureAlert company, which provides them at a facility in Sandy, Utah. The
technician, who was addressed through the GPS ankle bracelet—which has a phone feature—testified that, although the device is
supposed to vibrate when activated from Utah, the feature could be turned on without warning. Superior Judge Elizabeth Linares
ordered the device removed within the Court’s cell area for the duration of the meeting between the defendant and his defense
counsel…During the court hearing, Arraiza-Navas noted that no alarm or signal was heard or seen when the electronic
communication was allegedly finished. In his motion to the court, the lawyer stated that the system’s operators had informed his
office that the device was able to ‘activate unilaterally’ from the command post and that “the conversations could be heard.”[19]

There are also questions concerning who actually owns the data and just how exactly the data is utilized. As reported by Wired in
2018:

“About 70 percent of all electronic monitoring devices have GPS capacity, (up from 2.5 percent in 2005). Where does all that
tracking data go? Mostly, we don’t know. The data typically belongs to a department of corrections or local sheriff’s department,
but several branches of law enforcement often have access. In some cases, the contracted monitoring firm owns the data. In
Germany, GPS tracking data must be deleted after two months, but that’s not the case in the US. In the US, at least two companies,
Attenti (formerly 3M) and Satellite Tracking of People, have contracts that specify the data will be kept a minimum of seven years,
often long after the person is off the monitor.”[20]

Studies on electronic monitoring are scant, but the studies have shown little, if any impact on crime. A 2005 study failed to find any
correlation between electronic monitoring and lowered subsequent criminal activity.[21]  A 2012 study funded by the National
Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had roughly 2.5
times more sex-related parole violations than those who were monitored by GPS technology (though there was little difference
between the two groups for types of parole violations). However, it must be noted that those in the GPS group were also more
intensely supervised than those who were not subject to GPS monitoring. It must also be noted that the sample size was relatively
small; only 13 GPS registrants and 7 registrants were rearrested for a sex crime during that period.[22]  

Despite little evidence showing any real crime deterrent value of placing those convicted of sex crimes on electronic monitoring, and
despite complaints of increased workload (especially with monitoring those who are transient), Despite the rarity of studies defending
GPS as a crime deterrent, interviews with parole agents and local law enforcement personnel found that they merely believe that GPS
technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes.[23]  

HEALTH CONCERNS OF EM DEVICES

The Electronic Devices themselves cause concerns with the physical and mental health of those wearing the devices.

Physically, those subject to EM have complained at times of lower back problems, foot numbness, scarring, and bleeding. EM
devices heat up when charged, causing skin irritation for the parolee. Ankle monitors cause as much physical harm as they cause
psychological harm. For parolees who must wear ankle monitors for years, the physical side effects may be irreparable. Also, having
to constantly recharge the devices means parolees must schedule trips and everyday events around the recharge schedule, leading to
psychological stress.[24]

Electronic devices interfere with conducting medical procedures like MRIs, mammograms, X-Rays and CT scans, yet most states
lack any rules or regulations for removing EM devices in cases of emergencies. Wired.com reported in 2018 that “California’s rules
require the person to “carry an activated … device to the medical procedure” (e.g., into the operating room).” Rules regarding EM
can interfere with any medical emergency: Dustin Tirado of Los Angeles reported to Wired.com that he cut his hand in a domestic
accident. The wound was bleeding profusely, so he headed for the hospital, phoning his parole officer to let him know. When Tirado
arrived at the hospital, police were waiting. They took him into custody, and he spent 10 days in prison before being released.[25]

There is an ongoing debate regarding the link between cell phones and cancer, so the debate extends to EM technology, which is
similar in form and structure to cellular phone technology. “After evaluating several studies on the possibility of a connection between
cellphones and glioma and a noncancerous brain tumor known as acoustic neuroma, members of the International Agency for
Research on Cancer — part of the World Health Organization — agreed that there's limited evidence that cellphone radiation is a
cancer-causing agent (carcinogenic). As a result, the group classified radiofrequency electromagnetic fields as possibly carcinogenic
to people.”[26]

In the fall of 2018, the federal government’s National Toxicology Program released its final report on whether cellphones cause
cancer. “The final verdict: cellphone radiation may sometimes cause tumors in rats at high, continuous doses, but not in people. The
report leaves open the possibility that the kind of radiation produced by cellphones might have the potential to cause cancer, but it
does not answer the question of how that might happen. The findings are unlikely to satisfy many people. ‘The National Toxicology
Program concluded there is clear evidence that male rats exposed to high levels of radio frequency radiation like that used in 2G and
3G cell phones developed cancerous heart tumors,’ the National Institutes of Health, parent agency of the NTP, said in a statement.
The final report doesn’t change much that the researchers said in a preliminary report released in February. It found there is evidence
that bathing rats in certain types of cellphone radiation for their entire lives might raise the risk of certain cancers in some of the rats.
The findings do not apply to people, they said. ‘The exposures used in our studies are not directly comparable to the exposures that
humans typically experience when using a cellphone,’ the National Toxicology Program’s John Bucher told reporters. The NTP team
did not expose the rats to the 4G frequencies now in common use.”[27]

While humans may not be exposed to radio frequency waves 24/7 on their cellphones, those wearing GPS devices are strapped to
those devices 24/7 for weeks, months, or even years. The rats in the 2018 report were also exposed to RF radiation 24/7.

Studies on the effects of cell phone radiation are relatively new, so not much is currently known about the long-term effects.
However, some studies have found that cell phone use alters glucose metabolism, although the results are mixed and not definitive.
[28]  

Being subjected to EM can cause psychological problems to parolees and their families. According to The Associated Press, a 2011
report showed that 43% of the surveyed 5000 parolees said that they believed ankle monitors had negative effects on their spouses
due to the inconvenience the monitor caused. Lois DeMott, mother of a parolee with mental health issues, stated, “I have to plan my
whole life around his schedule. It affects whatever support system the person has.” Olivia Thomson added, “Others aren’t allowed to
participate in birthday celebrations or other family get-togethers, because it may mean that the parolee isn’t home by curfew. Imagine
what a feeling it is to know that your sickly grandmother has reached her 90th birthday and you can’t attend. Imagine feeling too
ashamed to attend your own daughter’s 8th birthday because you don’t want the other children to see your monitor. Imagine not
being allowed to go on a vacation to celebrate your 10th wedding anniversary because of your monitor. As anyone can see, ankle
monitors are not only shackles with an exorbitant cost for the parolee, they have a collateral side effect on the entire family.”[29]

William Lally teaches a class on Contemporary Corrections at Eureka College in Illinois; as part of his class, he places students on
simulated “house arrest” for a 72-hour period. If the students violate any part of the mock arrest, they lose a grade. During non-
curfew hours, students were required to venture out ino society with others while wearing an EM device. At the end of the
assignment, each student was tasked with writing about the experience. The professor found that “Some try to cover up their device
by wearing long pants or sweats, while others wear shorts or dresses to make their bracelet that much more apparent...  Stories
range from subtle reactions like parents pulling their children closer as students pass by to more blatant responses, such as a woman
pulling out a bottle of pepper spray. Most involve odd looks and a noticeable attitude change when people they are interacting with
eventually notice the device… Regardless of gender, age or social status, all wrote about how their image of themselves had
temporarily changed while wearing the bracelet. Many students reported they felt a sense of shame. Still others described a loneliness
and disconnection from their friends and family.” Put another way, EM devices are seen as a modern-day Scarlet letter, according to
the professor.[30]  

If college students felt shame, fear, and discomfort just from wearing ankle bracelets, then it should stand to reason that the
psychological impact for those forced to wear these devices would experience more severe psychological problems from the devices.

A 2011 report from the US Department of Justice report noted severe difficulties in obtaining employment while on electronic
monitoring: “Offenders and officers alike were almost unanimous in their belief that the visibility of the monitoring systems makes it
much more difficult for offenders to obtain and keep a job. Offenders told stories of job interviews taking on a different tenor as
soon as an interviewer noticed the devices. In addition, sometimes the systems would issue an alarm because the signal had been lost
when offenders were inside a building. They would then have to take a break from work and walk outside, often for 15 minutes,
before the signal was reestablished. This did not please employers. Of the offenders interviewed, 22 percent said they had been fired
or asked to leave a job because of electronic monitoring. Of that group, 32 percent assigned the cause to signal loss. Others cited
various reasons, such as limits on their flexibility (related to work hours or distance from work). Five percent said they were fired
because their bosses did not want customers to see the monitoring devices.[31]

Electronic Monitoring devices have become synonymous with monitoring for people convicted of sex crimes, so those monitored by
EM devices who are convicted of other crime types are concerned about being confused for a “sex offender.” Some said media
reports about monitoring focus mostly on sex crimes, which may lead the public to believe that everyone who is monitored is a sex
offender. One offender said the electronic monitoring system “serves as a scarlet letter.” Another reported, “Every time it goes off,
we think the police are coming to arrest me.” Perhaps the most poignant comments concerned the effects on children. One offender
said, “I’ve got a child who straps a watch on his ankle to be like daddy.” Another said, “When it beeps, the kids worry about
whether the probation officer is coming to take me to jail. The kids run for it when it beeps.” In addition, 43% of offenders and 89%
of parole/ probation officers felt electronic monitoring devices have a negative impact on the families of those forced to wear the
devices.[32]  

Equating EM devices with sex offender status also means that registered persons have difficulties making friends.  One Florida study
on the impact of EM devices found that 29% claimed that it is difficult to make new friends, 16% said they have disassociated
themselves from their old friends, and 5% said that it embarrasses their friends, makes them feel badly, and/or creates an
inconvenience, and another 5% said that they have no friends.  The varying impacts on offenders’ friendships resonate in their
responses: “What friends?”; “They make jokes: ‘Who’s that with the TV screen on his side?”; “I try not to let them know I am on
EM, (and hide the device).”; “I’ve cut off ties with my friends because I can’t go anywhere. I have no friends.”[33]

About half (49%) of those on Florida’s EM tracking system reported notable mental discomfort: “Wearing an ankle bracelet and
having to carry a MTD at all times may cause offenders embarrassment and shame, and the stigma and perceptions attached to EM
may damage offenders’ reputations in their communities and relationships with their families. As one offender noted, ‘Someone
asked me what I did and when I became a murderer…Of the 49% who felt embarrassed, 25% claim that the EM bracelet gives a
negative impression to others, as illustrated by an offender: ‘It's like painting a flag on your forehead saying ‘I’m a criminal!’’
Nineteen percent said that people ask questions when they see the bracelet, and 7% say they lie about EM or try to hide the
equipment.”[34]

Most offenders (71%) claimed that news stories about EM do affect how people perceive them. Of those who noted the media’s
affect, 74% said it stigmatized them. According to one offender, the media “creates the false impression that I’m some worse kind of
offender.” Another said, “The news has defined it as being for child molesters only, which isn’t true; so it puts a target on you.”[35]

COST OF ELECTRONIC MONITORING

Electronic Monitoring has also been touted as a cost-effective alternative to incarceration or intense supervision by a uniformed
officer. However, the costs associated with electronic monitoring can pose a great financial burden for registrants and taxpayers alike.

For registrants, the costs of EM can be overwhelming. Registered citizens have been found to have levels of unemployment, poverty,
and welfare dependence at levels far higher than the average American citizen.[36]  

Wired.com reported in 2018 that, “People on the monitor not only must live with round-the-clock surveillance; most also must pay
for the privilege. Fees range from $5 to $25 a day, in some cases making a person’s monitor fees more than their monthly rent.
Missing a payment has serious consequences. In Kentucky, if you are three days late, authorities can send you back to prison…
Many states still require a landline telephone (yes, a landline) for their monitors, adding a cost many households have long since
struck from the budget. In Iowa, if you lose or damage the tracking component of the device, you'll pay $795 to replace it; a missing
power cord sets you back $55.”[37]

Olivia Thompson reported in 2018, “The set-up fee for ankle monitors is between $175 and $200. The daily fee ranges from $5 to
$40. For indigent parolees, these fees are exorbitant. Some parolees must wear ankle monitors for years. Others are forced to wear
ankle monitors for a lifetime. Years of ankle monitoring use, puts parolees deeper and deeper in debt, as they pay for every day’s
use.”[38]

Besides direct costs of being on the program, there are indirect costs with the use of EM devices. The stigma attached to wearing
EM devices, as well as the frequent need to recharge the devices, interfere with the ability to obtain work. The Department of
Corrections for Tennessee reported that 22% of the surveyed parolees wearing ankle monitors lost their job as a direct result of
wearing the monitor. Thompson added, “It’s ironic that wearing an ankle monitor prevents parolees from getting work, because ‘if
they would have been deemed an appropriate candidate for (work release), [they are put on ankle monitors].’” Because many
parolees are the primary or sole providers for their families, parole violations due to false alarms cause great financial burdens to the
family.[39]  

Because many registrants cannot pay such exorbitant fees, taxpayers must pay for this service. “In South Carolina, most parolees
wearing ankle monitors can’t pay the entirety of fees, so that less than 1% of fees attached to ankle monitors are actually gained by
the state. This means South Carolina taxpayers pick up a 3.5 million tab from the uncollected fees. In Wisconsin, less than half of
ankle monitor fees were collected in 2015 and only around 30% was collected in 2012-2014. Ankle monitors create a cycle of
poverty and cost taxpayers money.”[40]

The 2010 Florida State Study found “The monthly EM costs determined by the courts were waived for a little more than one-third of
the offenders (39%). Among the remaining 61% of offenders who were ordered to pay, 53% percent were not paying each month,
and 15% were paying less than $50. Additionally, 12% reported paying 51­100 dollars, and 6% paid 101-200 dollars. Fourteen
percent said they paid more than 201 dollars per month. The average monthly cost paid by offenders was 64 dollars. Additionally,
offenders may be required to pay for court-ordered supervision. Similar to the EM costs, close to 1 in 3 (32%) of the offenders had
this fee waived by the court. Among those that do have to pay, 48% claim to have not paid anything, 28% report paying less than 50
dollars, 12% pay between 51 and 100 dollars, 5% pay 101 to 200 dollars, and the remaining 5% pay over 201 dollars per month. An
average supervision payment was 38.70 dollars per month.”[41]

In California, for fiscal year 2009–10, $12.4 million to monitor sex offender parolees with GPS; for fiscal year 2013–14, the
department spent $7.9 million. The state’s Office of the Inspector General “determined that the costs associated with using GPS to
monitor sex offender parolees fall within five categories: vendor contracts, contract management, parole agent laptops, parole agent
training, and parole agent cell phones. Each of these categories represents services or equipment that would not be otherwise
necessary to supervise sex offender parolees if the department did not use GPS… the majority of the costs relate to payments the
department makes to the vendor(s) who provides, operates, and maintains the GPS devices.”[42]

As noted in the California Office of the Inspector General’s 2014 report, costs of the program are passed on to the registrant on GPS
monitoring, but since many are unable to pay, the taxpayers must absorb the cost: “California Penal Code Section 290.3 directs that
an amount equal to $100 for every fine imposed by the courts on sex offenders shall be directed to CDCR to defray the cost of
parolee GPS supervision. California Penal Code Section 3000.07(b) requires offenders to pay for the cost of GPS monitoring to
CDCR, if financially able to pay. According to CDCR, funding collected under these two statutes has not come close to covering the
costs of GPS. Total revenue of $14,397.31 was generated in fiscal year 2013–14 related to CDCR’s portion of California Penal Code
Section 290.3. Of that total, $13,734.41 is for first conviction fines and $662.90 is for second conviction fines.”[43]

For the government, GPS monitoring also has indirect costs related to equipment, manpower, and the time investigating or detaining
parolees because of alarms that turned out to be erroneous. A 2017 Brookings article noted the following:

“In 2011, California officials conducted tests on the monitoring devices worn by 4,000 high-risk sex offenders and gang members,
and according to the LA Times, found that “batteries died early, cases, cracked, tampering alerts failed, and reported locations were
off by as much as three miles”. Parolees were able to thwart the devices by covering them in tinfoil or going indoors. Parole officers
were inundated with as many as a thousand alerts per day, and meaningless alerts led officers to worry that they were missing actual
instances of fleeing parolees.”

“Trouble with monitoring devices is not limited to California. An audit in Tennessee found that 80 percent of alerts from offender
monitoring devices were not checked by officers. Similar issues came to light in Colorado and New York when officers missed or
ignored repeated alerts of device failure and then several parolees committed violent crimes. Officers in Florida were so overwhelmed
with alerts that they stopped all real-time notifications, save those relating to device removal, and as a result, did not notice when one
parolee broke his curfew 53 times in one month before killing three people.”

“Mandating standards and testing protocols prior to the roll out of new monitoring devices could forestall problems with the current
system. California is an apt case study. A state-wide monitoring program launched in 2008, using devices from 3M and Satellite
Tracking of People. However, it wasn’t until 2011 that officials tested the devices rigorously, and found that 3M’s devices failed 46
of their 102 tests. California quickly removed thousands of the devices and replaced them with models from another manufacturer’s
model. Had rigorous tests been a pre-condition to starting an electronic monitoring program, California might have averted the crisis.”
[44]

Even Robert S. Gable, credited as one of the fathers of electronic monitoring (as noted in the History section of this article), has
publicly expressed concerns with overuse of EM devices in our current times. Gable writes, “Although electronic monitoring
systems have improved dramatically since I first experimented with them back in the 1960s, I view today’s widespread use of such
equipment as fundamentally misguided… One reason these systems have become so popular is that house arrest and mobile
surveillance seem to add a layer of safety while simultaneously providing a cost-effective escape hatch for the problem of prison
overcrowding. But traditional house arrest (with a stationary RF unit in the house) was never intended to cure the misguided public
policy that put too many people behind bars in the first place. It was intended simply to verify that a nonviolent offender was obeying
curfew hours…Electronic monitoring isn’t always about keeping the public safe: It is often intended as a form of punishment in
itself…surveillance technology has spawned a profitable industry, expanded the monitored population, and infringed on humanistic
values without showing a significant long-term reduction in crime.”[45]

Gable studied under psychologist BF Skinner, famous for his teachings on positive reinforcement. As a positivist, Gable feels that a
more positive reinforcement solution would be helpful: “Decades of psychological research indicates that a combination of
punishment and reward is the best way to rehabilitate offenders. Offenders tend to push limits and ignore threats. (That, after all, is
why they landed in jail or prison.) Therefore, punishment that is swift, certain, and yet moderate is a necessary component of
rehabilitation. But rewards are even more important.” Gable hasn’t completely abandoned the idea of technical monitoring but believes
a smartphone would be a more sensible idea than use of an increasingly outdated technology that carries a stigma.[46]  

THE PERILS OF PRIVATIZED EM SERVICES

Privatization of criminal-justice related services have been a matter of controversy in recent years, and with the controversial GEO
Group’s acquisition of Behavioral Industries, critics of privatization of criminal justice services should be alarmed. Private companies
have been known to offer EM devices at no-cost to government agencies while simultaneously harassing those forced to wear them
to cover the costs. William Edwards, a -year-old former office clerk accused of a drug crime, was made to pay $25 a day to wear a
GPS-tracking ankle monitor between January and April 2017. “You just think about the opportunity of being home with the people
who care about you,” he said. “But it was horrible. A living nightmare.” Edwards was never convicted, and the charges were later
dropped, but he “spent months as a prisoner in his own home, constantly harassed for money by LCA, the company that provided
the tracking service. LCA demanded to know what his girlfriend earned so they could base their ‘means-tested’ fees on his
household income. ‘I felt like I was dealing with a mafia loan shark,’ he said.”[47]

As noted in Prison Legal News in 2012, “The role of private corrections companies in electronic monitoring programs raises several
questions. First, such firms exaggerate the cost savings of EM by simply comparing per diem costs of EM with those of
incarceration. The comparison is not that simple. Many people who are placed on electronic monitoring would not have been
incarcerated before the advent of EM technology; they would have been supervised non-electronically, a practice that is still
prevalent.”

“Second, comparing per diem costs between prison and EM distorts the reality. A large part of corrections costs are fixed. For
example, if 10% of a state’s prison population was released on electronic monitoring, staffing and other over-head costs would not
decrease by 10%. Hence, the savings delivered by electronic monitoring need to be calculated holistically, not by merely using the
rosy estimates of those who advocate EM, including the companies that offer such services.”

“Then there is the need to generate profit. At present, EM programs are increasingly turning toward user fees, typically $10–15 per
day plus startup costs. While such fees don’t present a problem for the wealthy, like Stewart or Lohan, most people on parole or
probation fall in an entirely different income bracket. The questionable history of firms like The GEO Group in terms of prisoner
abuse, corruption, lobbying and political contributions foreshadows a range of misdeeds and improper influence with regard to
electronic monitoring.”

“At the most basic level, a continual incremental increase in user fees due to the need for EM companies to generate profit would
further disadvantage the predominantly poor people of color who are placed on electronic monitoring. Further, since people who
complete their term of EM no longer generate revenue, monitoring companies have a financial incentive to push for longer terms of
supervision or stricter rules that would lead to increased recidivism.”[48]

Another potential abuse for GPS devices arose in 2007 when Ohio State Senator Tim Grendall promoted a GPS detector from a
Cleveland-based company called “Offendar” (A portmanteau of the words Offender and Radar). Offendar LLC marketed the devices
a “personal threat detection system featuring a key-fob sized electronic device.” The device would give the person carrying it “a
vibrating, auditory or visual alarm when a sex offender or other person wearing a court-ordered electronic ankle bracelet is in the
immediate vicinity.”… “The public wants more than after-the-fact tracking of sex offenders. Many people want to know when a
threat is in the vicinity so they can take steps to protect themselves and their children before something happens,” according to the
company's presentation.[49]  While the idea failed to gain traction at this time, it is only a matter of time before other companies do
successfully promote this device. It would likely lead to an increase in vigilante violence against those wearing the devices.

LEGAL THEORIES AND RELEVANT COURT CASES

The 2008 International Chiefs of Police report opined on legal challenges, “GPS monitoring of sex offenders presents a range of
potential legal issues, which may or may not have significant court precedent. How will courts: View cases involving a failure to
respond to an alert that results in a new crime? View cases involving a new crime committed when the radio signal is lost or during
equipment malfunction? View the admissibility of location data points and reports from GPS vendors? Rule in privacy rights
challenges?  Decide on potential issues of cruel and unusual punishment?”[50]

Courts have also recognized various forms of shaming techniques are considered punishment,[51]  and since many people view ankle
bracelets are a visible mark associated with people convicted of sex offenses, the devices themselves constitute a “mark of infamy.”
If that is the case, then it should be considered compelled government speech. In  Wooley v. Maynard, 430 U.S. 705 (1977),
SCOTUS held that the State may not constitutionally require an individual to participate in the dissemination of an ideological message
by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.

Eric Dante, writing for the Seton Hall Law Review, argues than an equally important but yet to be fully considered by SCOTUS is the
compromise of the registrant’s bodily integrity.

Freedom of bodily Integrity from unreasonable government intrusion: Dante argues that Schmerber v. California, 384 U.S. 757
(1966) and United States v. Polouizzi, 697 F. Supp. 2d 381, 392–93 (E.D.N.Y. 2010) can be invoked for arguing against long-term
EM usage due to bodily integrity concerns. “Under the court’s rationale in Polouizzi, a per se application of GPS-tracking
requirements without any individualized risk assessment would deny the individual’s liberty without due process.  These are devices
that, while not surgically attached to the outside of an offender’s body, must be worn on a person’s body for his entire life to help
prevent, or at least provide evidence of, future crimes. Such an “[a]ssessment of the risk of future crime by particular individuals at
this state of our knowledge is hazardous and fraught with uncertainty.” In Schmerber, the Court held that because there was
probable cause to arrest the drunk driver even without the blood sample, such a minor intrusion into the body to collect evidence that
would have disappeared with time was reasonable to protect evidence of a crime. With GPS trackers, however, such intrusion to the
exterior of one’s body cannot be justified by probable cause that a crime will be committed prospectively.  Given the rationale behind
Schmerber and Polouizzi, if a state wants to violate an offender’s bodily rights with a GPS tracking device, such actions should only
result from an individualized risk assessment if these statutes are to survive constitutional review.  Currently… the majority of states
do not provide for such individualized review.”[52]

Technological Advances in Tracking Technologies: Dante expresses concerns with advancing technological advances, including the
seemingly inevitable attempt to insert tracking devices with the human body. “While the Schmerber Court allowed a forced test as a
minimal infringement of individual’s bodily rights, the Supreme Court has already denied more intrusive methods of evidence-
gathering.  In Winston v. Lee, the Court considered a state’s effort to force a burglar to undergo surgery for the removal of a bullet
that would have almost certainly provided evidence of his guilt. The Court held that “[a] compelled surgical intrusion into an
individual’s body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be
‘unreasonable’ even if likely to produce evidence of a crime.” The Court did leave the “reasonableness of surgical intrusions beneath
the skin…[to be determined by a] case-by-case approach.’ This indicates that the Court’s determination ultimately comes down to a
balancing test based on the individual circumstances of the search. But the fact that Supreme Court opposed the surgical removal of
an item that evidenced an already committed crime indicates that the Court would likely be even less sympathetic to allowing the
implantation of a sub-dermal GPS device when the device provides evidence for possible future crimes.  Even if the technological
market develops internal GPS tracking devices, states should avoid using them for sex-offender tracking in order to stay within the
bounds of Supreme Court precedent. In addition, each state’s statute should incorporate an explicit limitation to the use of sub-
dermal technology.”[53]  This may seem far-fetched but in 2009, Washington State attempted to pass a state law forcing registered
citizens to be implanted with RFID chips.[54]  

At least some of the legal challenges brought up in the preceding paragraphs have made their way through court since these questions
were posed in the report.

Commonwealth v. Cory, 454 Mass. 559 (Mass. 2009)

The Massachusetts Supreme Court ruled that General Laws c. 265, Sec. 47, inserted by St. 2006, c. 308, Sec. 8 (Sec. 47), requires
any person who is "placed on probation" after conviction of a designated sex offense to wear a global positioning system (GPS)
tracking device for the duration of his or her probation, was punitive and could not be applied retroactively to someone convicted
before the law took effect on December 20, 2006.

The Court determined that adding GP for a probation violation enhanced his existing punishment for the original offense: “The
defendant received his most recent probationary sentence — and the GPS monitoring requirement imposed under § 47 as a term of
that probation — as a consequence of the violation of his prior probation. Penalties for violation of the terms of supervised release,
including the penalty of additional supervised release, are attributed to the original conviction rather than to the violation…because the
probationary sentence the defendant received in 2007 relates back to a criminal offense he committed in or before 1997 (when he
was originally convicted), § 47 has a retrospective application to him.”

The Court determined the law had a punitive intent because “it is imposed only in the criminal context, when an offender is sentenced
to probation; and it is placed in a criminal code (G. L. c. 265, ‘Crimes Against the Person’). Moreover, the structure of the statute
suggests a penal or punitive intent: the GPS requirement must be uniformly imposed on every defendant sentenced to probation for
certain sex offenses, and for precisely the period of his or her probationary sentence, without regard to present dangerousness, and
even if there are no exclusion zones that can reasonably be applied to the defendant.,  It bears emphasis as well that probation itself
serves as a disposition of and punishment for a crime; it is not a civil program or sanction.” It found the law fulfilled the seven
punitive factors as described in Kennedy v. Mendoza-Martinez, 372 US 144.

The Court found GPS monitoring to be overly intrusive: “While GPS monitoring does not rise to the same level of intrusive regulation
that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with
traditional monitoring. And the impact of such intrusion is of course heightened by the physical attachment of the GPS bracelet,
which serves as a continual reminder of the State's oversight…The GPS requirement thus places significant restraints on offenders.”

People v. Cole, 817 N.W.2d 497 (Mich. 2012)

In this case, the Michigan Supreme Court established lifetime monitoring under MCL 750.520b(2)(d) or MCL 750.520c(2)(b) was
part of the court-mandated sentence (i.e., it is punitive). “Therefore, at the time a defendant enters a guilty or no-contest plea, the
trial court must inform the defendant if he or she will be subject to mandatory lifetime electronic monitoring. In the absence of this
information about a direct and automatic consequence of a defendant's decision to enter a plea and forgo his or her right to a trial, no
defendant could be said to have entered an understanding and voluntary plea.” In other words, courts must notify defendants of their
obligations of lifetime electronic monitoring before accepting a guilty plea.

United States v. Jones, 565 U.S. 400 (2012)

This SCOTUS case involved drug trafficking rather than sex crimes, but this case has been cited in numerous subsequent cases
regarding GPS that it is worthy of review. The High Court ruled 9-0 that attaching a GPS device to a vehicle and then using the
device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment, though it did not decide whether the
search was necessarily unreasonable.

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose
of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning
of the Fourth Amendment when it was adopted… At bottom, we must ‘assur[e] preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted.’ Kyllo, supra, at 34, 121 S.Ct. 2038. As explained, for most of
our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas
("persons, houses, papers, and effects") it enumerates.”

Riley v. New Jersey State Parole Board, 219 N.J. 270 (2014)

In 1986, George Riley was convicted of sex offenses against a child and sentenced to 20 years in prison. New Jersey law did not
require lifetime parole supervision for sex offenders and Riley was released in February 2009, without any form of parole
supervision. In August 2009, however, the New Jersey State Parole Board ordered Riley to submit to GPS monitoring under SOMA.
The New Jersey Supreme Court held that the “retroactive application of the 2007 Sex Offender Monitoring Act to George Riley
twenty-three years after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex
Post Facto Clauses of the United States and New Jersey Constitutions.”

Utilizing the Kennedy-Mendoza Factors to determine punitive nature of a law declared civil by the government, the NJ Supreme Court
determined that the state’s electronic monitoring program met these requirements for being punitive.

“In applying the five Mendoza-Martinez factors considered most relevant in Smith, the Court notes that there are no direct historical
analogues to a twenty-four-hour-a-day electronic surveillance that can track an individual s every movement. Parole, more
particularly parole supervision for life, is the closest analogue to SOMA. SOMA looks like parole, monitors like parole, restricts like
parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another name does not alter its
essential nature. SOMA imposes an affirmative disability or restraint… and clearly impinges on Riley s freedom to travel, which has
long been recognized as a basic right under the Constitution…SOMA s grant of authority to parole officers to gain access to Riley s
home is also an incursion into Riley s Fourth Amendment privacy rights. SOMA s twenty-four-hour surveillance of Riley and
onerous restrictions deprive him of freedom of movement and the ability to live and work as other citizens, with no supervision.”

Grady v. North Carolina, 135 S. Ct. 1368 (2015)

Citing precedent, the US Supreme Court rejected the State’s argument that satellite-based monitoring (SBM) under N.C. Gen. Stat.
Ann. Subsection 14–208.40(a)(1), 14–208.40B (2013) was not search for 4th Amendment purposes. The Court stated, “The State's
program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth
Amendment search. That conclusion, however, does not decide the ultimate question of the program's constitutionality. The Fourth
Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances,
including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.”

SCOTUS had left the door open for state arguments that programs could be considered reasonable under specific circumstances,
though this ruling did not establish any guidelines in this matter. The case was remanded back to the lower courts.

People v. Hallak, 873 N.W.2d 811 (Mich. Ct. App. 2015)

This Court rejected the defendant’s arguments that the evidence was insufficient to support his CSC–II conviction, that his sentence
to lifetime electronic monitoring violates his state and federal constitutional rights against cruel and/or unusual punishment,
unreasonable searches, and double jeopardy, and that the trial court erred in utilizing facts not found by the jury in scoring the
sentencing guidelines.

The Court found that the language of MCL 750.520b(2)(d) and MCL 750.520c(2)(b) is intended to be punishment (as it is part of the
court-sanctioned sentence) but relied on the “proportionality question” (whether the punishment is so excessive that it is completely
unsuitable to the crime) in rejecting the argument against cruel and unusual punishment. This court cited the myth of “frightening and
high recidivism” as justification, and looked at harsh penalties against registered citizens in other states to deny that lifetime
monitoring was disproportionate punishment.  

In rejecting the 4th Amendment challenge, the Court decided to fly their decision through the window left open by SCOTUS decision
in Grady. Because SCOTUS believed a “reasonable” monitoring law could pass constitutional muster, this Court found a way to
justify bypassing safeguards against privacy intrusions: “The applicable test in determining the reasonableness of an intrusion is to
balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual's privacy.” This
court used the argument that those on probation/ parole have lower expectations of privacy, the monitors don’t inhibit travel, and
even cited the claims of lifetime trauma for victims to justify diminishing the registrant’s privacy rights.

In rejecting Double Jeopardy arguments, the Court stated, “Because the Legislature intended that both defendant's prison sentence
and the requirement of lifetime monitoring be sanctions for the crime, there was no double jeopardy violation.” The monitoring order
was given at the time of sentencing.

Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016)

This case is one of the worst examples of biased and faulty court reasoning. In rejecting a challenge to GPS monitoring based on
expectation of privacy, the Seventh Circuit relied upon biases and myths against those convicted of sex crimes (such as the
underreporting myth and claims of high re-offense rates) while minimizing the impact of GPS monitoring on the human body.  

The Court wrote: “Having to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than being in jail or prison, or
for that matter civilly committed, which realistically is a form of imprisonment. The plaintiff argues that because he is not on bail,
parole, probation, or supervised release, and so is free of the usual restrictions on the freedom of a person accused or convicted of a
crime, there is no lawful basis for requiring him to wear the anklet monitor. But this misses two points. The first is the nature of the
crimes he committed—sexual molestation of prepubescent children. In other words the plaintiff is a pedophile…If only 20 percent of
child molestations result in an arrest, the 3 percent recidivism figure implies that as many as 15 percent of child molesters released
from prison molest again.” It is shameful such faulty logic was allowed to be published at such a high level court.

Rejecting the argument that the physical presence of the ankle bracelet leads to diminished privacy under the 4th Amendment because
people see the monitor and assume the Plaintiff is a criminal, the Court stated, “So the plaintiff’s privacy has already been severely
curtailed as a result of his criminal activities, and he makes no challenge to that loss of privacy. The additional loss from the fact that
occasionally his trouser leg hitches up and reveals an anklet monitor that may cause someone who spots it to guess that this is a
person who has committed a sex crime must be slight. For it's not as if the Department of Corrections were following the plaintiff
around, peeking through his bedroom window, trailing him as he walks to the drug store or the local Starbucks, videotaping his every
move, and through such snooping learning (as the amicus curiae brief of the Electronic Frontier Foundation would have it) ‘whether
he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband,’ etc.”

This court also concluded that because SCOTUS found sex offender civil commitment was not punishment, the “lesser” intrusions
of lifetime GPS monitoring must not be punishment. “Having to wear the monitor is a bother, an inconvenience, an annoyance, but
no more is punishment than being stopped by a police officer on the highway and asked to show your driver's license is punishment,
or being placed on a sex offender registry, held by the Supreme Court in Smith v. Doe, and by our court in Mueller v. Raemisch, 740
F.3d at 1133, not to be punishment.”

The type of anklet worn by the plaintiff is waterproof to a depth of fifteen feet, so one can bathe or shower while wearing it. It must
however be plugged into a wall outlet for an hour each day (while being worn) in order to recharge it. It was touted as being
accurate to within 30 feet.

State v Grady, No. COA17-12 (NC App Ct, 15 May 2018)

After SCOTUS ruled GPS monitoring as a search, SCOTUS remanded the case for North Carolina courts to “examine whether the
State’s monitoring program is reasonable—when properly viewed as a search.” This time, the Appeal Court sided with Grady,
determining lifetime satellite-based monitoring (SBM) constituted an unreasonable search. “The reasonableness of a search depends
on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations… In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the
warrant requirement.”

“Grady directs us to consider two approaches for our analysis of the warrantless search in this case: (1) a ‘general Fourth
Amendment approach’ based on diminished expectations of privacy, and (2) ‘special needs’ searches.”

“However, because the special needs doctrine is typically used to uphold sweeping programmatic searches, it is a “closely guarded”
exception to the warrant requirement, which only applies to a limited ‘class of permissible suspicionless searches.’ (Cit. omitted) In
order for the exception to apply, the ‘special need’ advanced to justify dispensing with a warrant or individualized suspicion must be
‘divorced from the State’s general interest in law enforcement.’… The State had ample opportunity to argue the special needs
doctrine—both at the hearing and in its subsequent brief to the trial court—but nevertheless failed to do so.”

On diminished expectations of privacy, “Defendant is an unsupervised offender.  He is not on probation or supervised release, but
rather was enrolled in lifetime SBM more than three years after “all rights of citizenship which were forfeited on conviction including
the right to vote, [we]re by law automatically restored” to him.  Solely by virtue of his legal status, then, it would seem that
defendant has a greater expectation of privacy than a supervised offender. Yet, as a recidivist sex offender, defendant must maintain
lifetime registration on DPS’s statewide sex offender registry… Defendant’s expectation of privacy is therefore appreciably
diminished as compared to law-abiding citizens… Viewed in context, SBM intrudes to varying degrees upon defendant’s privacy
through (1) the compelled attachment of the ankle monitor, and (2) the continuous GPS tracking it effects.  We consider each in
turn.”

This court ruled that the audible GPS signals it sometimes emits and the need to be charged for 2 hours per day were mere
“inconveniences” rather than “intrusions.” But, turning to the idea of continuous monitoring, the Court found, “Notwithstanding
defendant’s diminished expectation of privacy, this aspect of SBM is “uniquely intrusive” as compared to other searches upheld by
the United States Supreme Court... this type of static information (i.e., the info required to turn in during the act of registration) is
materially different from the continuous, dynamic location data SBM yields… Here, it is significant that law enforcement is not
required to obtain a warrant in order to access defendant’s SBM location data... the State presented no evidence of defendant’s
current threat of reoffending, and the record evidence regarding the circumstances of his convictions does not support the
conclusion that lifetime SBM is objectively reasonable.”

The State used the Belleau v. Wall 2016 decision to justify lifetime monitoring, but this Court rejected that argument because in
Belleau, the registrant was a “sexually violent predator” who was formerly civilly committed. In this case, the State failed to make a
compelling case that Grady posed a particularly unique threat to the public other than registration status. In addition, the Court also
determined that the State failed to provide evidence of the efficacy of the SBM program.

The state held that, “We reiterate the continued need for individualized determinations of reasonableness at Grady hearings.”

Park v. State, S18A1211 (Ga. Mar. 4, 2019)

Joseph Park filed facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who
is classified as a sexually dangerous predator - but who is no longer in State custody or on probation or parole - wear and pay for an
electronic monitoring device linked to a global positioning satellite system ("GPS monitoring device") that allows the State to monitor
that individual's location "for the remainder of his or her natural life”.

The device had to be charged twice a day for 30 minutes each time it was to be charged; Park could shower, but now swim with the
device since it was not fully waterproof; An alert was sent if the device detected any activity it determined to be attempted tampering.

Park’s claims “included assertions that the classification procedure under OCGA § 42-1-14 deprived him of due process, the statute
deprived him of equal protection by treating him differently from other convicted criminals, the statute was unconstitutionally vague
with respect to the standard for designating an individual as a sexually dangerous predator, the classification constituted ex post facto
punishment, and the statute violated double jeopardy principles by subjecting Park to additional punishment that had not been imposed
in his original sentence. Specifically, Park claimed that OCGA § 42-1-14 (e) violated his right against unlawful search and seizure
under the Fourth Amendment to the United States Constitution and under the Georgia Constitution, violated his right to privacy under
the Georgia Constitution, violated his right against self-incrimination by forcing him to disclose his location to law enforcement,
violated his right against cruel and unusual punishment, was an ex post facto law, and created an unlawful taking by requiring him to
pay for the electronic monitoring.”

The Georgia Supreme Court declared the GA statute a violation of the 4th Amendment protections against unreasonable searches and
seizures, so the Court rejected discussions on the other issues. The Court rejected the State’s argument that people classified as
Sexually Dangerous Predators had a “diminished expectation of privacy” as those not on probation/ parole have completed their state-
sanctioned sentences. (Remember, the act of registration is not considered “punishment”.)  The Court also found the law failed to
pass a “Special Needs” exception to the law (an exclusion allowing suspicionless searches “when special needs, beyond the normal
need for law enforcement, make the warrant and probable-cause requirement impracticable”); “[E]ven if the primary purpose of the
statute is to prevent specific types of recidivism, because, under OCGA § 42-1-14's design, that purpose is not ‘divorced from the
State's general interest in law enforcement’ (Ferguson, supra, 532 U.S. at 79 (III)) the statute does not authorize a permissible
"special needs" search.”

The Court determined that “OCGA § 42-1-14 (e), on its face, simply allows for warrantless searches of  individuals - that these
individuals must pay for - to find evidence of possible criminality for the rest of their lives, despite the fact that they have completed
serving their entire sentences and have had their privacy rights restored…Once an individual's classification as a sexually dangerous
predator has become final, OCGA § 42-1-14 does not, on its face, provide any method for that individual to be removed from that
category of offenders and reclassified in a way that would relieve that person of wearing a GPS monitoring device "for the remainder
of his or her natural life.”

SUMMARY OF LEGAL DECISIONS

To summarize the legal decisions on electronic monitoring up to the 2019 Park v State decision, most courts have agreed that
subjecting registered persons to lengthy registration periods is punitive in nature and overly intrusive, and because it is punitive in
nature, it should be declared as a sanction before imposed by a court. As part of a state-sanctioned GPS program, people not on
supervision could argue that GPS monitoring acts like parole.

In Grady v North Carolina, the US Supreme Court declared that GPS tracking is indeed a “search” but did not definitively draw a line
in the stand as to when that search is unreasonable. However, other courts have interpreted Grady as creating a two-part test to
determine what constitutes a reasonable search; a search is considered reasonable if the subject of the search has a “diminished
expectation of privacy” and if the state can declare “special needs” beyond the normal need for law enforcement which make the
warrant and probable-cause requirement impracticable.

So far, courts have split on whether the status of forced placement of the public sex offense registry satisfies diminished expectation
of privacy and special needs. The terrible decisions of the courts in Hallack and Belleau relied upon the typical myths of high
recidivism and unique threats posed by registrants as well as invoking victim trauma as justification for diminishing the privacy rights
of registered citizens. However, Grady II and the recent Park v State of GA decisions rejected the justifications upheld by the Hallack
and Belleau decisions for those not on probation/ parole.  

However, the Courts have yet to fully consider the level of intrusiveness posed by the physical restraints created by ankle bracelets.
The 2018 Grady case declared the noise of the devices and the need to charge the devices for 2 hours a day were merely
“inconveniences” rather than intrusive. Perhaps this could be remedied by presenting the myriad of health issues presented in this
report.

It is very important for future attorneys to recognize that those fighting in favor of electronic monitoring will argue that people
convicted by sex crimes have a “diminished expectation of privacy” and pose a unique threat to society even when not on
supervision.

CONCLUSION

Electronic monitoring has been heralded as an inexpensive alternative to prison and a deterrent for future crimes, but the scant
research on this subject is showing that such claims are exaggerated. The founders of electronic monitoring never intended for
electronic monitoring to be used in the matter of use it is seeing today and believes the programs should be altered to a more positive
approach.

While electronic monitoring has improved dramatically in terms of size and accuracy, it is not without common problems such as
weather/ environmental factors, false alarms, and human errors. The irony is the low price of the devices themselves has actually
increased costs of EM programs; judges and officers are apt to turn to the devices as cheap alternatives to human monitoring, but in
turn, increase the workloads of those tasked with checking the alarms in terms of having to watch more subjects and answering
alarms (many of which turn out to be false alarms).

There are a variety of health concerns, both physically and psychologically, concerning the long-term usage of EM ankle monitors.
While the link between EM radiation and cancers is still being debated, it has not been ruled out as a possibility given the experiments
subjecting rats to 24/7 exposure to waves caused an increase of tumors in rats. EM waves may also impact glucose levels. The
psychological issues are easier to prove as the stigma of associating the devices with “sex offenders” have been shown to negatively
impact parolees not convicted of sex crimes and even college students made to wear the devices as part of their class assignments.
In addition, the devices impact the lives of those being monitored, and their loved ones, in ways unconsidered thus far by the courts.
Entire lives revolve around EM recharging schedules, causing job loss and having to miss out on family functions.

The view of GPS as being cost effective does not take into account indirect factors like increased manpower and the impact of false
alarms from imperfect devices, nor does the negative financial impact it places upon registrants in terms of costly fees and
interference with employment receive enough attention. Higher unemployment means more welfare dependence for entire
households, and false alarms and increased workload can overwhelm resources of law enforcement agencies.

In addition, since all EM devices come from private corporations, potentials for abuse are great. At least one GPS monitor line had
been found to include a phone which could listen in on conversation, even privileged communications. Another company attempted
to market a device that could allow average citizens to detect when anyone wearing a GPS monitor was I the area; this device could
have increased vigilante attacks for anyone wearing the devices. Private EM companies have also harassed registrants for payments
for their devices.

There are a number of legal arguments left to be made on the constitutionality of lengthy electronic monitoring, but SCOTUS
considers EM to be a form of search. The current legal trend has been to weigh whether or not EM usage laws are allowed because
the subject has a “diminished expectation of privacy” and meets a “special needs” exception on a case-by-case basis. Lower courts
so far have split on the trend though more court rulings have been favorable to registrants than not.

REFERENCES

  1. Matt Tyrnauer. “THE PRISONER OF BEDFORD.” Vanity Fair. August 2005. Web. Accessed on 15 May 2019 at https:
    //www.vanityfair.com/news/2005/08/martha-stewart-200508?verso=true
  2. Ryan Nakashima. “AP Exclusive: Google tracks your movements, like it or not”. AP News. 13 Aug 2018. Web. Accessed
    online on 14 May 2019 at https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb
  3. May Schenwar. “The Quiet Horrors of House Arrest, Electronic Monitoring, and Other Alternative Forms of Incarceration.”
    Mother Jones. 22 Jan 2015. Accessed on 16 May 2015 at https://www.motherjones.com/politics/2015/01/house-arrest-
    surveillance-state-prisons/
  4. Robert S. Gable. “The Ankle Bracelet Is History: An Informal Review of the Birth and Death of a Monitoring Technology.”
    Journal of Offender Monitoring. March 2015, Vol.27, #2, pp. 4-8
  5. Ibid.
  6. Ibid.
  7. Ibid.
  8. “State Crime Legislation in 2006.” National Conference of State Legislatures. Jan 2007. Web. Accessed online on 15 May
    2019 at http://www.ncsl.org/print/cj/2006crime.pdf
  9. Vanessa Ho. “GPS for state sex offenders gets split verdict.” Seattle PI. 11 Dec. 2007. Web. Accessed on 15 May 2019 at
    https://www.seattlepi.com/local/article/GPS-for-state-sex-offenders-gets-split-verdict-1258530.php
  10. Jonathan Martin, “GPS tracking beset by problems of terrain, technology, and time.” Seattle Times, 28 Sept. 2005.
  11. Jim McKay. “Sex Offenders' GPS Devices Not a Silver Bullet, States Say.” Government Technology. 26 Jan. 2009. Accessed
    on 26 Jan 2009 at 2009http://www.govtech.com/gt/print_article.php?id=5960 99
  12. Dirk Perrefort. “Officials back off of arrest of sex offender.” News Times. 13 Sept 2008. Accessed on  13 Sept 2008 at https:
    //www.newstimes.com/ci_10452841/
  13. “EXPO -Brother Troy, recovering from alcohol & crack cocaine is 7 ½ yrs clean n sober.” WXRW Podcast. 2018. Web.
    Accessed on 16 May 2019 at https://soundcloud.com/user-240416425/expo-2017-10-18-2030
  14. “GPS Accuracy: HDOP, PDOP, GDOP, Multipath & the Atmosphere.” GIS Geography. 24 Feb 2018. Web. Accessed online
    on 15 May 2019 at https://gisgeography.com/gps-accuracy-hdop-pdop-gdop-multipath/
  15. “GPS Accuracy.” GPS.gov. Web. Accessed of 15 May 2019 at https://www.gps.gov/systems/gps/performance/accuracy/
  16. Keith L. Alexander. “11 defendants on GPS monitoring charged with violent crimes in past year in D.C..” Washington Post. 9
    Feb 2013. Web. Accessed on 15May 2019 at  https://www.washingtonpost.com/local/11-defendants-on-gps-monitoring-
    charged-with-violent-crimes-in-past-year-in-dc/2013/02/09/9237be1e-6c8b-11e2-ada0-5ca5fa7ebe79_story.html
  17. Eric Markowitz. “Why GPS Doesn’t Always Work for Tracking Convicts.” Voactiv. 17 Apr 2014. Accessed at 15 May 2019
    at https://www.vocativ.com/underworld/crime/gps-doesnt-always-work-tracking-convicts/
  18. “Tracking Sex Offenders with Electronic Monitoring Technology: Implications and Practical Uses for Law Enforcement.”
    International Association of Chiefs of Police. Aug 2008.
  19. Waldo Covas Quevedo. “Caution: Your GPS Ankle Bracelet Is Listening.” The Crime Report. 25 Oct 2013. Web. Accessed on
    16 May 2019 at https://thecrimereport.org/2013/10/25/2013-10-caution-your-gps-ankle-bracelet-is-listening/#
  20. James Kilgore and Emmett Sanders. “ANKLE MONITORS AREN’T HUMANE. THEY’RE ANOTHER KIND OF JAIL.
    Wired. 04 Aug 2018. Accessed on 16 May 2019 at https://www.wired.com/story/opinion-ankle-monitors-are-another-kind-of-
    jail/
  21. Marc Renzema & Evan Mayo-Wilson. “Can electronic monitoring reduce crime for moderate to high risk offenders?”Journal
    of Experimental Criminology. 2005.  1, 215-237
  22. Stephen V. Gies, Randy Gainey, Marcia I. Cohen, Eoin Healy, Dan Duplantier, Martha Yeide, Alan Bekelman, Amanda Bobnis,
    and Michael Hopps. “Monitoring High-Risk Sex Offenders With GPS Technology: An Evaluation of the California Supervision
    Program, Final Report.” Development Services Group. April 2012. Accessed on 16 May 2019 at https://www.ncjrs.
    gov/pdffiles1/nij/grants/238481.pdf
  23. “Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions.”
    Office of the Inspector General. Oct 2014. Accessed on 16 May 2019
  24. Olivia Thompson. “Shackled: The Realities of Home Imprisonment.” Equal Justice Under The Law. 14 June 2018. Accessed
    on 15 May 2019 at https://equaljusticeunderlaw.org/thejusticereport/2018/6/12/electronic-monitoring
  25. Supra., Kilgore and Sanders. “ANOTHER KIND OF JAIL. 2018
  26. Edward T. Creagan. “Is there any link between cellphones and cancer?” Mayo Clinic. 12 Dec 2018. Web. Accessed on 15
    May 2019 at https://www.mayoclinic.org/healthy-lifestyle/adult-health/expert-answers/cell-phones-and-cancer/faq-20057798
  27. Maggie Fox. “Cellphone radiation may cause cancer in rats, report finds.” NBC News. 1 Nov 2018. Web. Accessed 15 May
    2019 at https://www.nbcnews.com/health/health-news/final-report-says-cellphone-radiation-may-cause-cancer-rats-not-
    n929781
  28. “Cell Phones and Cancer Risk.” National Cancer Institute. Web. Accessed on 16 May 2019 at https://www.cancer.gov/about-
    cancer/causes-prevention/risk/radiation/cell-phones-fact-sheet
  29. Supra., Olivia Thomson, “Shackled.” 2018
  30. William Lally. “Op-Ed: Electronic monitoring of criminal offenders a modern-day scarlet letter.” Journal-Star. Gatehouse
    Media LLC. Web. 3 June 2016. Accessed on 16 May 2019 at https://www.pjstar.com/opinion/20160603/op-ed-electronic-
    monitoring-of-criminal-offenders-modern-day-scarlet-letter
  31. “Electronic Monitoring Reduces Recidivism.” US Dept of Justice. Sept 2011. Web. Accessed on 16 May 2019 at https://www.
    ncjrs.gov/pdffiles1/nij/234460.pdf
  32. Ibid.
  33. William Bales, Karen Mann, Thomas Blomberg, Gerry Gaes, Kelle Barrick, Karla Dhungana, & Brian McManus. “A
    Quantitative and Qualitative Assessment of Electronic Monitoring.” The Florida State University, College of Criminology and
    Criminal Justice, Center for Criminology and Public Policy Research. Jan 2010. Accessed on 16 May 2019 at https://www.
    ncjrs.gov/pdffiles1/nij/grants/230530.pdf
  34. Ibid.
  35. Ibid.
  36. Derek W. Logue. “ONCE FALLEN JOB & WELFARE SURVEY 2016.” OnceFallen.com. March 2016. Accessed on 16 May
    2019 at http://www.oncefallen.com/files/Once_Fallen_Job_and_Welfare_Survey_Results.pdf
  37. Wired.com, 2018
  38. Supra., Olivia Thompson, “Shackled”
  39. Ibid.
  40. Ibid.
  41. Supra, Florida State 2010, p.102
  42. Supra., California OIG report 2014, p. 5-6
  43. Ibid., p.6
  44. Jack Karsten and Darrell M. West. “Decades later, electronic monitoring of offenders is still prone to failure.” Brookings.edu.
    21 Sept 2017. Web. Accessed 16 May 2019 at https://www.brookings.edu/blog/techtank/2017/09/21/decades-later-electronic-
    monitoring-of-offenders-is-still-prone-to-failure/
  45. Robert S. Gable. “Let’s Stop Using Ankle Bracelets to Monitor Offenders.” IEEE Spectrum. 20 July 2017. Eb. Accessed on
    16 May 2019 at https://spectrum.ieee.org/consumer-electronics/portable-devices/lets-stop-using-ankle-bracelets-to-monitor-
    offenders
  46. Ibid.
  47. Olivia Solon. “Digital shackles’: the unexpected cruelty of ankle monitors.” The Guardian. 28 Aug 2018. Accessed on 16 Aug
    2018 at https://www.theguardian.com/technology/2018/aug/28/digital-shackles-the-unexpected-cruelty-of-ankle-monitors
  48. James Kilgore. “Electronic Monitoring: Some Causes for Concern.” Prison Legal News. 15 Marh 2012. Accessed on 16 May
    2019 at https://www.prisonlegalnews.org/news/2012/mar/15/electronic-monitoring-some-causes-for-concern/
  49. Jean Dubail. “Warning sex offenders; 'Offendar' may find you.” Cleveland Plain Dealer. 4 Dec 2007. Web. Accessed on 17
    May 2018 at http://blog.cleveland.com/openers/2007/12/warning_sex_offender_nearby.html
  50. Int’l Assn. Chiefs of Police, 2008. P. 9
  51. See People v. Meyer and People v. Lowe, 606 N.E.2d. People v. Molz, 113 N.E.2d, People v. Johnson 528 N.E.2d, State v.
    Burdin 924 S.W.2d ,People v. Letterlough 655 N.E.2d, Lindsay v. State 606 So. 2D.
  52. Eric Dante. "Tracking the Constitution - The Proliferation and Legality of Sex-Offender GPS-Tracking Statutes," Seton Hall
    Law Review: 2012. Vol. 42: Iss. 3, Article 6. p.1203. Accessed on 21 Mar 2013 at http://erepository.law.shu.
    edu/shlr/vol42/iss3/6
  53. Ibid., p.1204-1205.
  54. Washington HB 1142 - 2009-10, more info at https://app.leg.wa.gov/billsummary?BillNumber=1142&Year=2010
(c) 2007-2019 Derek W. Logue. No part of this website may be used in any way without expressed written consent of the site owner.