Data Privacy in Carceral Settings: The Digital Panopticon Returns to Its Roots

Raher, Stephen | May 15, 2024

Jeremy Bentham’s panopticon has enjoyed a resurgence as a topic of discourse in the modern age due to the omnipresent surveillance most people now face in the era of Big Data. Analogizing modern digital surveillance to the famous eighteenth-century prison designed to facilitate pervasive monitoring and observation has helped define several organizing principles of the present movement for data privacy; however, relatively little attention is paid to the collection and usage of personal data in actual prisons and jails. Building on the author’s public interest advocacy work and previous publications, this Article addresses this gap in the literature by surveying the rapid growth of consumer technology in correctional facilities and analyzing related issues of surveillance and privacy.

Until quite recently, incarcerated people in the United States were reliant on postal mail and voice telephone service for communication with the outside world. But digital technologies have taken the correctional industry by storm, with video calling, electronic messaging, digital money transfers, and handheld tablets all becoming the norm in the last ten years. Now that such technologies have been deployed on a widespread basis, the companies providing these services are embarking on a new line of business: monetizing the involuntary collection, sharing, and analysis of data collected from captive consumers. If the emergence of closed platforms on the Internet is frequently analogized to a walled garden, then the comparable experience of correctional technology users can be described as a digital prison yard—one that ensnares not just incarcerated people, but their friends, families, and correspondents as well.

After reviewing the historical evolution of carceral communications channels, this Article provides insight into the data practices of contemporary correctional technology companies as revealed by contracts, bid proposals, litigation, and news accounts. In light of the grave concern about consumer privacy revealed by current corporate practices, the Article concludes by examining existing law (which provides a patchwork of protections for users of consumer-facing carceral technologies) and outlines a proposal to define consumer privacy rights in this growing and largely unregulated industry.

Author

Partner, Tabor Law Group (Portland, OR) and principal, Amalgamated Policy Research (Portland, OR), stephen@amalgamatedpolicy.com. The author is grateful for editorial feedback from Andrew Blubaugh and for insightful comments on an earlier draft provided by the participants at the Berkeley Law Center for Consumer Law & Economic Justice’s Fifth Annual Consumer Law Scholars Conference, particularly Raúl Carrillo, Craig Cowie, Brenda Cude, Michele Dickerson, Lesley Fair, Vijay Raghavan, and Lauren Willis. Section I of this Article is based on a presentation delivered at the 2021 Law & Society Association Annual Meeting; thanks to Tommaso Bardelli for the invitation to participate in that event.

Copyright  2024  by  Stephen Raher

Cite as: Stephen Raher, Data Privacy in Carceral Settings: The Digital Panopticon Returns to Its Roots, 119 Nw. U. L. Rev. Online 73 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1342&context=nulr_online.