The Datafication of Incarceration
This article by Professor Zina Makar was published in the Yale Law Journal.
From the abstract:
Courts today stand at a doctrinal inflection point: it is unclear whether the spatial logic that has long defined prison law can, or should, govern the digital technologies rapidly evolving behind bars. As tablets and other technologies increasingly structure the daily lives of incarcerated people—and extend outward to those who communicate with them—courts are beginning to confront the limits of existing prison-law doctrine. Some continue to apply traditional deference frameworks, relying on Turner v. Safley or Hudson v. Palmer to uphold sweeping powers allowing prisons to extract data and surveil communication under vague security rationales. Others—in growing numbers—express unease and hesitation in applying old frameworks, noting that digital surveillance is different in scale and kind. Like the privacy concerns at issue in Riley v. California, the surveillance made possible by digital tools, both inside and beyond prison walls, far surpasses the conventional practices that gave rise to foundational prison-law precedents. This emergent divide reflects a more fundamental question—if the spatial logic undergirding prison law no longer functions, what should replace it?
This Article offers the first comprehensive analysis of digital privacy rights in prisons, using as its basis the First and Fourth Amendments’ intersecting constitutional privacy principles. The Article makes three novel contributions to the privacy and prison-law fields. First, it tackles the growing issue of unchecked carceral deference in a digital era, where the law has yet to establish limits on the prison’s ability to collect and surveil prisoner and carceral-adjacent data. As such, this Article reconceptualizes the existing standards of review in light of digital privacy-based harms, likening the collection and surveillance of information data to compelled speech, or “compelled data.” To resolve these unique harms, the Article proposes an alternative privacy test to distinguish between just and unjust interferences with private information within or arising from a carceral space. Second, this Article supplements existing scholarship on dispositional favoritism in prison law to reveal how courts frequently mask data-compulsion concerns by minimizing the nature of privacy harms claimed by incarcerated and nonincarcerated individuals. And finally, this Article engages with information-privacy scholarship to shape courts’ understanding of privacy trade-offs for carceral-adjacent individuals, who now more than ever fall within the carceral sphere. By foregrounding the intersection of prison law and information-privacy scholarship, this Article demonstrates how carceral technology has antidemocratic, subordinating effects at the population level and raises questions about our commitment to data privacy for all members of our society.
