October 25, 2013 06:48:44 am
By Waldo D. Covas Quevedo
http://www.thecrimereport.org/news/inside-criminal-justice/2013-10-caution-your-gps-ankle-bracelet-is-listening
When defense lawyer Fermín L. Arraiza-Navas sat down with a
prospective client in San Juan, Puerto Rico last April, he casually
asked the man about the Global Positioning System (GPS) ankle bracelet
that he was wearing as a condition for his bail.
The reply was just as casual.
“They speak to me through that thing,” the man said.
It wasn’t the first time the lawyer encountered GPS bracelets with
apparently extraordinary powers. He told the Puerto Rico Center for
Investigative Reporting (CPIPR) that a previous defendant’s GPS ankle
bracelet started to vibrate during a meeting with him.
But Arraiza-Navas decided this was more than a coincidence. He
cancelled the meeting and filed a motion at the Puerto Rico State
Superior Court in San Juan to have the device removed.
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.
But the discovery has raised serious questions about whether such
technology violates the confidentiality of the attorney-client
relationship—and the right to privacy—for thousands of individuals
under court supervision across the U.S. whose personal private
conversations could be heard or recorded without their knowledge and
without a court warrant.
Civil Liberties Concerns
These concerns were shared by privacy experts and civil liberties
attorneys contacted by the Puerto Rico Center for Investigative
Reporting.
Puerto Rico Constitutional legal expert Carlos E. Ramos, who teaches
at the Interamerican University Law School, said “the state [efforts]
to listen and/or record the unauthorized conversations between a
defendant with his or her lawyer through an electronic GPS-bracelet
represents the most absolute and gross infringement to that person's
constitutional rights.”
“If that action is conducted through a private company, the
infringement is magnified,” Ramos added.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.”
However, Assistant San Juan District Attorney Erika
Quiñones-González denied that the device infringed on the defendants
constitutional rights.
Quiñones-González asserted in a motion contained in the case file
that “the supervised defendant is warned by a vibration and sound
before the line is open to allow communication.”
She added in her motion that when the phone call is over the GPS
electronic supervision system emits the phrase “Secure Alert:
disconnect call”.The prosecution also claimed the controversy was premature because it was not proven that his constitutional rights were violated.
Opening the Line
However, in her response, Quiñones-González also stated that the
Pretrial Services Command Control officer testified that there are two
ways to open the phone line: one is announcing the call by the
vibration and a particular loud sound.
“The supervised defendant does not have to take action and the line
is opened so that the agent can provide instructions or communicate
with the supervised defendant, as the case may be” if the protocol is
activated by some alert, she said
The second method: when the supervised defendant clicks a button to
notify the Command Center of an emergency, the system emits the phrase
“Secure Alert: disconnect call” so that both know that the call is over
and close the communication.
Issa L. Toledo-Colón, Deputy Executive Director of the Puerto Rico
State Pretrial Services Office, said that the Commonwealth supervises
714 defendants awaiting trial with the traditional Radio Frequency (RF)
ankle bracelets through a contract with Behavior Intelligence
International, and another 337 with GPS-cellular phone ankle bracelets
through a contract with SecureAlert.
An Associated Press investigation published in July
estimated that as many as 100,000 sex offenders, parolees and suspects
are free on bail wearing ankle bracelets.
The Prison Legal News, a printed and on-line publication
aimed primarily at an inmate readership, estimates that 200,000 persons
are under some sort of ankle bracelet electronic monitoring.
GPS ankle bracelets were introduced in the last decade to replace
the original devices, in wide use around the U.S. since the 1980s, that
require a land phone line. The bracelets alert a monitoring center when
the person wearing it is away from the perimeter established by the
court, usually their own home.
More sophisticated version of these devices have the same features
as a cellular phone. They provide real time monitoring, with the
capacity to record the location of the person wearing it---thereby
allowing authorities to be warned if the suspect or convict is in a
banned area or to confirm the individual is complying with his or her
work, study, medical or other activities agreed with the court.The high-tech surveillance capability of these devices represents an overstep of the state’s right to supervise a defendant charged with a crime, Arraiza-Navas wrote the court.
Calling the practice “flagrantly unconstitutional,” he said “it cannot be supported by law that in order to be set free under bail [persons] charged with a crime have to waive their right to privacy and to keep their conversations with attorneys confidential.”
Experts Shocked
Leading legal experts in Puerto Rico and the U.S. expressed serious
concerns about the possibility of government and private companies
providing electronic ankle bracelets being able to eavesdrop or record
private conversations of the persons wearing them.
The lawyers claim this violates the Fourth Amendment, as well as the
Federal Wiretap Act and the Puerto Rico Constitution.
Victor A. Meléndez-Lugo, Director for the Appeals Division for the
Puerto Rico Legal Aid Society, said that he has not heard of any
similar case and found the possibility “shocking”.
“The recording or interception of phone calls in Puerto Rico
constitutes a crime”, Meléndez-Lugo added. “If that is happening in
Puerto Rico it has to stop happening since yesterday.”
William Ramírez, Executive Director for the Puerto Rico Chapter of
the American Civil Liberties Union, said defendants have a right to
privacy to avoid self-incrimination—a right that could be infringed if
they are unaware that their conversations could be listened to or
recorded by the Pretrial Services Office, or by the private company
that provides the GPS/cellular phone ankle bracelet.
According to Ramírez , the right to post bail under the condition of
wearing an ankle bracelet is not an automatic waiver to the right to
privacy.
Other civil liberties advocates agreed.
Ben Wizner, Senior Staff Attorney for the ACLU in Washington, D. C.
said it was the first time he had heard of such a case, adding that “if
it allows eavesdropping or to record conversations, (it) is a very
important issue that is worth exploring.”
Jerry J. Cox, President of the National Association of Criminal
Defense Lawyers, expressed concern for the incident in written remarks
to the CPIPR.
“If law enforcement agencies anywhere in this country are using such
microphone-equipped GPS ankle bracelets they must, at a minimum, make
both a general disclosure of that fact to the public and our elected
representatives, as well as a specific and complete disclosure of that
fact to each and every person who might wear one of those ankle
bracelets, as well as to his or her attorney,” Cox wrote.
“And under no circumstances whatsoever can there be any intrusion
into the confidential and privileged discussions between any person and
their counsel.”
Waldo D. Covas Quevedo is a reporter for the Puerto Rico Center
for Investigative Reporting. The original, longer version of this story
appeared in Spanish in the Centro de Periodismo Investigativo de Puerto
Rico (CPIPR) website, and is reprinted through the services of the
Investigative News Network. He welcomes comments from readers.
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