On a Wednesday morning in May, Hannah got a call from her lawyer—there was a warrant out for her husband’s arrest. Her thoughts went straight to her kids. They were going to come home from school and their father would be gone. “It burned me,” Hannah says, her voice breaking. “He hasn’t done anything to get his bond revoked, and they couldn’t prove he had.”
Hannah’s husband is now awaiting trial in jail, in part because of an anti-pornography app called Covenant Eyes. The company explicitly says the app is not meant for use in criminal proceedings, but the probation department in Indiana’s Monroe County has been using it for the past month to surveil not only Hannah’s husband but also the devices of everyone in their family. To protect their privacy, WIRED is not disclosing their surname or the names of individual family members. Hannah agreed to use her nickname.Prosecutors in Monroe County this spring charged Hannah’s husband with possession of child sexual abuse material—a serious crime that she says he did not commit and to which he pleaded not guilty. Given the nature of the charges, the court ordered that he not have access to any electronic devices as a condition of his pretrial release from jail. To ensure he complied with those terms, the probation department installed Covenant Eyes on Hannah’s phone, as well as those of her two children and her mother-in-law.
In near real time, probation officers are being fed screenshots of everything Hannah’s family views on their devices. From images of YouTube videos watched by her 14-year-old daughter to online underwear purchases made by her 80-year-old mother-in-law, the family’s entire digital life is scrutinized by county authorities. “I’m afraid to even communicate with our lawyer,” Hannah says. “If I mention anything about our case, I’m worried they are going to see it and use it against us.”
Covenant Eyes is part of a multimillion-dollar market of “accountability” apps sold to churches and parents as a tool to police online activity. For a monthly fee, the app monitors every single thing a user does on their devices, then sends the data it collects, including screenshots, to an “ally” or “accountability partner,” who can review the user’s online activities.
For Hannah’s family, their Covenant Eyes “allies” are two probation officers in Monroe County’s Pretrial Services Program charged with scrutinizing their web activity and ensuring that Hannah’s husband does not violate the terms of his bond while using one of his family members’ devices.
Covenant Eyes doesn’t permit its software to be used in a “premeditated legal setting,” such as monitoring people on probation, according to its terms of service. But public spending documents, court records, and interviews show that courts in at least five US states have used Covenant Eyes to surveil the devices of people who are awaiting trial or released on parole.
Neither Covenant Eyes nor multiple officials in Monroe County responded to repeated requests for comment and detailed questions about the app’s monitoring.
While the use of Covenant Eyes in a criminal-legal setting likely only represents a tiny fraction of the hundreds of thousands of people under court-ordered electronic surveillance, the stakes are still high for those required to use it. The app’s accuracy could determine whether a loved one lives at home or behind bars. Legal experts say that its use raises serious constitutional and due process concerns.
“This is the most extreme type of monitoring that I’ve seen,” says Pilar Weiss, founder of the National Bail Fund Network, a network of over 90 community bail and bond funds across the United States. “It’s part of a disturbing trend where deep surveillance and social control applications are used pretrial with little oversight.”
Jonathan Manes, an attorney at the MacArthur Justice Center’s Illinois office, says the surveillance Hannah’s family faces likely violates several of their constitutional rights. “This feels like an extraordinarily intrusive violation of the family’s First Amendment rights to be able to access the Internet and communicate without being monitored,” he says. Manes adds that because the software effectively enables continuous and suspicionless searches of the devices of people who haven’t been charged with a crime, the family’s Fourth Amendment rights were potentially violated.
Lastly, Manes points out that by indiscriminately surveilling whatever the phone is displaying, the app could collect sensitive data that includes the family’s communications with their lawyers, as Hannah feared. “It’s interfering with his right to speak in confidence with his attorney,” he says of Hannah’s husband. “It’s impeding his ability to prepare a defense and exercise that Sixth Amendment right.”
“This strikes me as quite chilling,” Manes adds. “It’s what happens when someone’s home becomes their jail cell, and now everyone they live with is subject to the same kind of surveillance as the person who is charged.”
Several legal experts expressed concern about the monitoring conditions imposed by the judge in Hannah’s husband’s case. But Phyllis Emerick, the chief deputy public defender in Monroe County, argues that because Hannah’s husband and his family consented to the surveillance, they gave up their rights to privacy. “He agreed that he would not access electronic devices in his household in exchange for release,” she says. “It was the family’s choice to continue living with him.”
Weiss, of the National Bail Fund Network, disagrees with the idea that any type of surveillance is permissible so long as a person agrees to it to avoid jail time. “Sure, they consented to this, but it’s at the barrel of a gun,” she says.
