The Defense Attorney’s Arsenal In Challenging Electronic Monitoring

In criminal prosecutions, electronic monitoring (EM) is pitched as a “humane alternative" to incarceration – but it is not. The latest generation of “e-carceration” tools are burdensome, harsh, and often just as punitive as imprisonment. Fortunately, criminal defense attorneys have options when shielding their clients from this over-used and harmful tech.

Framed as a tool that enhances public safety while reducing jail populations, EM is increasingly used as a condition of pretrial release, probation, parole, or even civil detention. However, this technology imposes serious infringements on liberty, privacy, and due process for not only those placed on it but also for people they come into contact with. It can transform homes into digital jails, inadvertently surveil others, impose financial burdens, and punish every misstep—no matter how minor or understandable.

Even though EM may appear less severe than incarceration, research and litigation reveal that these devices often function as a form of detention in all but name. Monitored individuals must often remain at home for long periods, request permission to leave for basic needs, and comply with curfews or “exclusion zones.” Violations, even technical ones—such as a battery running low or a dropped GPS signal—can result in arrest and incarceration. Being able to take care of oneself and reintegrate into the world becomes a minefield of compliance and red tape. The psychological burden, social stigma, and physical discomfort associated with EM are significant, particularly for vulnerable populations.   

For many, EM still evokes bulky wrist or ankle “shackles” that can monitor a subject’s location, and sometimes even their blood alcohol levels. These devices have matured with digital technology however,  increasingly imposed through more sophisticated devices like smartwatches or mobile phones applications. Newer iterations of EM have also followed a trajectory of collecting much more data, including biometrics and more precise location information.

This issue is more pressing than ever, as the 2020 COVID pandemic led to an explosion in EM adoption. As incarceration and detention facilities became superspreader zones, judges kept some offenders out of these facilities by expanding the use of EM; so much so that some jurisdictions ran out of classic EM devices like ankle bracelets.

Today the number of people placed on EM in the criminal system continues to skyrocket. Fighting the spread of EM requires many tactics, but on the front lines are the criminal defense attorneys challenging EM impositions. This post will focus on the main issues for defense attorneys to consider while arguing against the imposition of this technology.

PRETRIAL ELECTRONIC MONITORING

We’ve seen challenges to EM programs in a variety of ways, including attacking the constitutionality of the program as a whole and arguing against pretrial and/or post-conviction imposition. However, it is likely that the most successful challenges will come from individualized challenges to pretrial EM.

First, courts have not been receptive to arguments that entire EM programs are unconstitutional. For example, in Simon v. San Francisco et.al, 135 F.4th 784 (9 Cir. 2025), the Ninth Circuit held that although San Francisco’s EM program constituted a Fourth Amendment search, a warrant was not required. The court explained their decision by stating that the program was a condition of pretrial release, included the sharing of location data, and was consented to by the individual (with counsel present) by signing a form that essentially operated as a contract. This decision exemplifies the court’s failure to grasp the coercive nature of this type of “consent” that is pervasive in the criminal legal system.

Second, pretrial defendants have more robust rights than they do after conviction. While a person’s expectation of privacy may be slightly diminished following arrest but before trial, the Fourth Amendment is not entirely out of the picture. Their “privacy and liberty interests” are, for instance, “far greater” than a person who has been convicted and is on probation or parole. United States v. Sco