Screenshot of proposal Track Group sent to the Pretrial Services Agency

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On any given day, over 14,000 people in D.C. are supervised by either the Court Services and Offender Supervision Agency (CSOSA) or the Pretrial Services Agency (PSA). This means that roughly 2 percent of all District residents are being monitored by two programs that hold a remarkable influence over D.C.’s criminal justice system (and thousands more pass through their programs every year). CSOSA’s Community Supervision program handles residents on parole, probation, and supervised release, and PSA (an independent agency within CSOSA) monitors unconvicted defendants awaiting trial.

Both programs are federally run, and thus are outside of the Mayor and D.C. Council’s direct control. Nevertheless, they have immense power over the lives of tens of thousands of D.C. residents—and in the past five months, each program has radically expanded its ability to subject people to intensive, high-tech surveillance.

According to previously unseen documents acquired by City Paper, on May 22, PSA officials signed a $4.1 million contract for ankle monitors that effectively let PSA listen to and record defendants’ conversations without their consent. Through the monitors, authorities can make calls to defendants which cannot be declined. And while PSA claims it’s not currently using this capability, one defense attorney tells City Paper that shortly after PSA rolled out the new devices, her client got a call through his monitor, with life-changing consequences.

Then, on Aug. 22, the D.C. Court of Appeals released a verdict that gives D.C.’s Metropolitan Police Department (MPD) an extremely long leash to use CSOSA’s GPS surveillance data whenever they please. The decision both revealed new details of just how closely MPD works with CSOSA, and gave MPD the legal greenlight to access people’s location data indiscriminately and at will.

***

When Zackary Jackson was released on probation in July 2014, he didn’t have to deal with an ankle monitor. He was able to move around the city freely, without having to spend hours sitting still each day, charging his device.

However, before long, an MPD detective decided that ought to change. In January 2015, the detective reached out to CSOSA, requesting that they change the conditions of Jackson’s probation and start monitoring him via GPS. According to court records, the officer thought GPS would be useful, because “the police believed Mr. Jackson and another named individual ‘may’ have been committing robberies and burglaries together.” The agency quickly complied.

So on Jan. 29, Jackson got fitted with his new device, and signed a contract agreeing to CSOSA’s conditions. He was not allowed to take baths, swim, or do anything else that would submerge the monitor under water. He was also required to spend an hour every morning and an hour every evening charging the device, and was forbidden from sleeping while the device was charging.

A few weeks went by. Then, in the middle of the night on Feb. 19, police got a report of an armed robbery on C Street SE. A pair of men had reportedly held up two people at gunpoint, stealing one’s wallet and the other’s purse. Detective Thomas O’Donnell took the case, but he didn’t have any suspects or leads. So he decided to try his luck with CSOSA’s GPS data.

MPD already had access to search the data directly, without having to go through CSOSA, according to court records. This meant that O’Donnell had access to the exact locations of everyone with a CSOSA monitor, in one-minute increments, 24 hours a day and seven days a week. He entered the coordinates of the crime scene to see if anyone in the program had been in the vicinity between 1:20 a.m. and 1:45 a.m. He got two hits; one of them was Jackson.

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From there, O’Donnell was able to see where Jackson went after the alleged robbery, tracking him as he went through a nearby alley and back to his apartment. Just an hour or so after the alleged robbery took place, the police showed up at Jackson’s door. There, they found more evidence potentially connecting him to the mugging, and arrested him on the spot.

Now on trial for robbery, Jackson moved to suppress the GPS evidence. He argued that MPD had violated his constitutional rights, twice: once when they asked CSOSA to start tracking him, and again when they searched CSOSA’s data indiscriminately, without probable cause or a warrant.

On May 9, 2016, Judge Maribeth Raffinan agreed with him. Raffinan declined to rule on whether MPD was allowed to ask CSOSA to start tracking someone, and she said the way the police used that GPS data violated the Fourth Amendment. (The Fourth Amendment is the Constitution’s main check on indiscriminate police power. It’s the reason officers generally need a warrant to march into someone’s home, and need probable cause to search their car.) Raffinan emphasized that detectives had no reason whatsoever to suspect Jackson when they searched his—and everyone else’s—GPS data without a warrant. Furthermore, she said, Jackson “could not have reasonably foreseen that the MPD would have unfettered, unilateral access to his location information for developing suspects.” She ruled that the evidence police got through GPS surveillance couldn’t be part of the trial.

However, prosecutors appealed, and this August, D.C.’s highest court reversed Raffinan’s verdict. Appellate Judge Stephen Glickman, who authored the decision, acknowledged that the U.S. Supreme Court has given ample Fourth Amendment protections to most citizens’ GPS data. However, he wrote, this search “was constitutional because [Jackson’s] reasonable expectation of privacy as a convicted offender on probation was diminished.”

Jessica Brand, the legal director of The Justice Collaborative and a former attorney with D.C.’s Public Defender Service, says Glickman’s opinion is remarkable for the way it characterizes the goals of probation. She says it describes probation as primarily a surveillance mechanism, and as an extension of law enforcement—as opposed to probation’s historical role analogous to social work, with an emphasis on casework, treatment, and community reintegration. 

“You’re just assuming someone’s going to screw up, and you’re not giving them the resources and tools to stay out of the system,” Brand says. “And with this, you’re just monitoring them until they screw up.”

With the GPS evidence now back on the table, Jackson is still awaiting trial. Meanwhile, the Court has signed off on MPD accessing CSOSA data indiscriminately, to do investigations or just to generate leads.

Asked for details on how often and under what circumstances police turn towards this surveillance tool, an MPD spokesperson tells City Paper, “MPD uses CSOSA’s GPS data as one of our investigative tools when needed.” They declined a request to elaborate.

CSOSA’s response was similarly vague. City Paper found the most detail from a since-removed page on CSOSA’s website, saved to the Internet Archive in 2016. “CSOSA staff work daily with the DC Metropolitan Police Department (MPD) and other law enforcement agencies to match offender GPS coordinates with crime locations,” the page stated. “Mapping technology allows CSOSA to create extremely detailed maps of locations and offender movements to aid in suspect apprehension.”

Kate Weisburd, a George Washington law professor who studies electronic monitoring, thinks this sort of high-tech surveillance will inevitably lead to more people going back behind bars, often for offenses far less serious than armed robbery. “And there’s no question that if we all got GoPros attached to our foreheads, there would be perfect crime detection,” she says. “But it can’t just be that crime-solving is the only factor we decide this on. Because otherwise, none of us would have any privacy.”

***

No D.C. agency has started outfitting ordinary citizens with GoPros, but documents obtained by City Paper show that the Pretrial Services Agency recently purchased the next best thing. In May, PSA signed a contract with a surveillance company, Track Group, to spend up to $4.1 million on Track Group’s ReliAlert XC3 ankle monitors. 

According to a brochure Track Group provided to PSA, in addition to tracking defendants’ locations, ReliAlerts are “the only device in the electronic monitoring market” with “2-way, live voice capability making it possible for authorized personnel to instantaneously communicate with defendants.” Authorities can call into the monitor whenever, like a cell phone. Unlike a cell phone, though, defendants cannot decline the call, meaning they can be listened to and recorded at any time, without their consent.

Weisburd thinks that this contract points to an emphasis on heavy surveillance over rehabilitation. “You think about how that money could be spent on alternatives that are really meant to help people,” Weisburd says. “If we have limited resources, why are we spending that on surveillance rather than on programs that are consistently proven to work?”

Victor Davis, PSA’s chief of staff, says that PSA is currently using ReliAlerts “to monitor all defendants with a court ordered condition for GPS monitoring.” However, he says, PSA has disabled the controversial call-in feature and is not using it, so it’s currently just like a traditional ankle monitor. “If PSA ever considers activating this feature,” he adds, “it is at that time that we would discuss the particulars such as the range of circumstances for use and accessibility of records and would certainly notify the defendant, [the Public Defenders Service], [the U.S. Attorney’s Office], and the judges … prior to implementation.”

But one criminal defense attorney says her client has already received a call through the device, with grave consequences for his well-being. (Her client wishes to remain anonymous, so she asked her name not be published since it could link the incident back to him.) As a condition of his release, her client had a curfew that forbid him from leaving his home between 10 p.m. and 6 a.m. However, he had a job that required him to work outside of that curfew, and he got permission from his PSA case worker to go to work.

Eight days after he was outfitted with a ReliAlert, “he was at work,” she says, “and a voice came through the GPS that basically said, ‘You’re in violation of your curfew. We’re coming to get you.’” His supervisor heard the call and freaked out. He was fired immediately.

The attorney suspects this call came from someone at Track Group who didn’t get the memo about her client’s new curfew requirements. (Track Group did not return City Paper’s repeated requests for comment.)

Davis claims that he’s still looking into this, but that so far, “As far as I know, that didn’t happen.” “We’re very invested in making sure things are working how they’re supposed to be working,” he says, “and if they’re not, we want to figure out why and fix it.”

As a federal agency, PSA does, however, have unilateral authority to enable these listening devices at any time, and potentially to give law enforcement access to the audio recordings. Monica Hopkins, the executive director of ACLU-DC, thinks this underscores the need for the community to have public input whenever any agency purchases or uses surveillance technology. 

“With a real oversight process, we would … have had an opportunity to assess the civil liberties implications for the pretrial plaintiffs who wear them,” she says. “These people—who are presumed innocent—are being monitored with an Orwellian nightmare strapped to their leg.”

If PSA ever changes its mind about audio monitoring, Puerto Rico’s criminal justice system gives a window into what might follow. By 2014, Puerto Rico’s Pretrial Services Office had embraced a similar device from Track Group (which then was called SecureAlert). “It’s a complete violation of privacy,” says Fermín Arraiza, legal director of ACLU Puerto Rico. Officers could call in when defendants were going to the bathroom, talking with their loved ones, having sex, or engaging in political speech. And they could call when they were talking to their attorneys.

Arraiza says he once was meeting with a client who was awaiting a criminal trial; his client hadn’t even been formally accused yet, but while he was meeting with Arraiza, he got a call through his ankle monitor. After the call, Arraiza says, “I asked him if they could turn it on without notifying him, and he didn’t know.” He thought this violated his client’s right to confidentiality, thus jeopardizing his ability to get a fair trial. “He was always afraid of what he could tell me,” Arraiza recalls. “All your rights in a criminal trial would be violated if the other side knew what you’re saying.”

Arraiza asked for a hearing to get the device temporarily removed so he could talk to his client freely, and had a company technician fly down to testify. During Arraiza’s cross-examination of the technician, she said it’s company protocol to have the device make a sound or vibrate before the call starts. And yet, she admitted that they can start listening without any notice to the defendant whatsoever.

Arraiza left the courthouse that day appalled. “They have other means of contacting a defendant,” he emphasizes. “They don’t need to use these devices … It’s inhumane. It’s in violation of the Constitution. It has no justification other than letting someone know they have total control over you.”

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