Judges in Louisville, Kentucky, are enforcing isolation for people who have tested positive for COVID-19 by ordering corrections officers to outfit them with GPS ankle monitors.
It’s one of a range of enforcement strategies that government officials across the country are employing as the pandemic worsens, in an attempt to enforce isolation or punish those who violate stay at home orders.
While some public health experts support the approach to keep people in their homes, criminal justice reform advocates are concerned about the possible consequences of heightened surveillance during this time of crisis.
State law allows Louisville Metro Department of Public Health and Wellness to issue an “order of isolation,” which a judge has to sign, allowing a corrections officer to place a GPS monitoring device on an individual who has defied quarantine. Steve Durham, assistant director of the Louisville Metro Department of Corrections, told The Appeal that over the past two weeks, four people have so far been placed on the devices. One of them was a man ordered onto a monitor after he tested positive for COVID-19, who authorities say went shopping in public on March 21. Another lives with someone who tested positive and did not self isolate, Durham said.
Durham described the initiative, which he said Louisville is piloting, as a “civil way” to manage a person who is not being compliant with their isolation.
“It’s both what the community sees as the least restrictive way of enforcing, and it’s resource-driven as well,” he said. “The alternative that we’ve seen in other jurisdictions is that you place one or more law enforcement officers at the household to keep them under observation and to keep them contained.”
If the person leaves their home or violates the conditions of the detention, they could be arrested or face charges, he said.
Michael Ulrich, an assistant professor of health law, ethics, and human rights at the Boston University School of Public Health, told The Appeal that putting individuals who violate isolation on ankle monitors could be an effective approach and a good alternative to placing an officer outside their home to monitor their movement or detaining them somewhere outside their home.
“It seems like an in-between,” he said. “We don’t want to take you to jail. We don’t want to hold you in some cell or someplace where you’ve got no phone and no electricity. But we also want to make sure that you actually stay there and aren’t putting people at risk.”
But anti-surveillance advocates like Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project, say they are concerned about what increased surveillance during a time of crisis will mean once the pandemic ends.
“Even prior to the health crisis, we’d seen a really alarming national trend where jurisdictions, as part of a reduction in the national prison population, were substituting electronic shackles for physical prison bars,” he said. “We know that electronic monitoring holds a huge number of adverse implications for the people who are forced to go shackled.”
Experts warned that government responses to this pandemic could quickly become normalized and remain in place long into the future. James Kilgore, a formerly incarcerated activist and director of the Challenging E-Carceration project, noted that, almost two decades after the September 11 terror attacks and the subsequent threats, we’re still taking our shoes off at airports. Additionally, provisions of the Patriot Act, which were supposed to expire four years after its passage, are still in effect today.
“We should go into this assuming anything we enact as a short-term solution will actually be with us for years, possibly decades,” Cahn said. “That’s the lesson of 9/11.”
While Kilgore said he understands the motive behind tracking people who have tested positive for COVID-19, he expressed concerns that governments could extend surveillance like this once it is normalized.
“They could do this for a whole range of other things without any real due process,” he said. “It opens a whole range of possibilities of tracking people and confining them.”
Heather Gatnarek, a staff attorney at the American Civil Liberties Union of Kentucky, said the ACLU is typically wary of government overreach and enforcement. But the organization also understands that in times of emergency and crisis, governments have a heightened ability to restrict people’s movement. For that reason, they will be monitoring the use of ankle monitors to make sure they are being used appropriately.
“We would look for things like whether there’s due process [and] whether people are being heard by a neutral party (in this case a judge), and certainly we want to make sure that whatever restriction is put in place is time-limited,” she said.
In Louisville, the four individuals who have been equipped with ankle monitors have them for a minimum of two weeks from the onset of their systems or the testing, Durham said. He said the health department requires some to have additional testing at the end of the 14-day period to make sure that they are no longer positive for COVID-19.
Gatnarek said she’s also concerned about potential criminal charges that individuals could face if they are found to be violating the terms of their monitoring. “At the moment, we’re trying very, very hard to make sure that jails in Kentucky have fewer people in them, rather than more,” she said. “Our jails are perpetually overcrowded across the state and we don’t want to be adding new people, especially new people who have either tested positive or live with someone who has tested positive, as are the cases here.”
Outside Louisville, government entities have expanded other surveillance technologies in response to the virus. Florida Governor Ron DeSantis said the state has commissioned an app that could be used to track people who arrive by plane from New York. Authorities are using cellphone location data to track, in aggregate, how people are moving around in as many as 500 cities, the Wall Street Journal reported. The data is stripped of identifying features, but advocates are concerned that it could still be linked to individuals when cross-referenced with other information, the paper reported. And safeguards aren’t being taken to ensure the data isn’t retained for potential future use by law enforcement, Cahn said.
“Right now, we’re operating without a rulebook, so it’s unclear how long this data is kept, whether it can be used for other criminal prosecutions down the road,” he said. “Even after this COVID pandemic is over, those highly intrusive records will still be around.”
He also expressed concerns about private companies taking advantage of this moment for profit by convincing governments that their technology is necessary, whether it’s ankle monitors or infrared thermometers or facial recognition.
Louisville contracts with SCRAM Systems for its monitors, which are typically used by the Department of Corrections for people convicted of criminal charges, Durham said. While many jurisdictions charge individuals a daily rate for their own monitoring, Louisville foots the bill.
Other private companies have already been capitalizing on the potential to profit off this moment of increased surveillance. Attenti, a company that provides electronic monitoring products, has advertised a “quarantine management system” that allows authorities to “easily monitor the location and condition of people under quarantine—anywhere, anytime.”
Federal lawmakers have also begun thinking about ways to use tracking and surveillance to respond to the pandemic. On Thursday, the U.S. Senate Committee on Commerce, Science, and Technology held a remote hearing, titled “Enlisting Big Data in the Fight Against Coronavirus,” on recent uses of consumer data to identify potential hotspots of COVID-19 transmission.
In a policy paper released Wednesday, the national ACLU warned about the practical limits and privacy concerns that come with location tracking technology. The paper, titled “The Limits of Location Tracking in an Epidemic,” urges government officials to consider what data is being collected, who has access to that data, how it will be used, and how long it will be stored.
Cahn said he wants governments to be wary of violating privacy and personal liberties. “I’m very concerned about the idea that the most intrusive measures are effective,” he said.
Ulrich and Gatnarek agreed that enforcement measures taken in response to the crisis should be the “least restrictive means” to reduce someone’s exposure to other people and protect their health. It’s also essential that the government enables people to comply with orders as much as possible by providing essentials like food, and financial resources, Ulrich said.
States have already begun enforcing quarantines without surveillance data. In Maryland, for example, a man was arrested after refusing to comply with the governor’s ban on large gatherings. Officers said they found roughly 60 people at a bonfire at his home, the second time he had thrown a party and defied the order. In Rhode Island, police have stopped cars with New York license plates and gone door-to-door to enforce the isolation of people who traveled there from New York, an epicenter of the coronavirus pandemic. New York City police officers have also arrested at least three people for failing to social distance, according to the Intercept. At least one spent 36 hours in a detention cell with two dozen other women.
Cahn warned against the dangers of criminalizing violators, which will likely have a disparate impact on communities of color, undocumented communities, and others who are often over-policed.
“People who endanger others and fail to take proper precautions can get sued for negligence, and in the worst cases, for wrongful death,” he said. “The truth is that when we treat it as a criminal justice issue and not a civil negligence issue, we’re mapping on all the worst abuses of the criminal justice system.”