October 25, 2013 06:48:44 am
By Waldo D. Covas Quevedo
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.”
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.