Paradigms of Restraint

2007

Abstract:
Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology over the past ten years have changed that convention. A variety of new technologies - such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases - now vest the government with the power to control dangerous persons without relying upon any exertion of physical control. The government can engage in constant real-time location tracking, receive remote notification that an individual has ingested alcohol, or electronically zone a person into her home or out of a public park. It can prove conclusively that a particular person wore a hat or took a sip from a discarded soda can, or identify a single face in a 10,000 person crowd. In this day and age, restraint of the dangerous can be as much about keeping a person away from a place as it used to be about locking him up in one.

But whereas physical incapacitation of dangerous persons has always invoked some measure of constitutional scrutiny, virtually no legal constraints circumscribe the use of its technological counterpart. Across legal doctrines, courts erroneously treat physical deprivations as the archetypal “paradigm of restraint,” and thus largely overlook the significant threat to liberty posed by technological measures. Similarly, much scholarly interest has focused on the use of physical incapacitation as a means of regulatory control over, for example, illegal immigrants, pretrial detainees, or the mentally ill. An equivalent degree of notice has been given to the question of information privacy in general society. Yet virtually no attention has been paid to the connection between these two areas.

This Article examines the generally unheeded intersection between two well-documented trends: the state's increasing desire to preventively regulate targeted classes of individuals, and its increasing capacity to use innovative technologies, rather than physical incapacitation, to realize that desire. This Article identifies four loosely grouped emerging technologies of control: DNA databasing, electronic monitoring, electronic indexing, and biometric scanning. It then reviews the legal landscape upon which they operate, and demonstrates that, across the range of doctrines, courts unduly focus upon the physical world as the relevant metric against which all restraints are judged. As a result, technologies of restraint are imposed without necessary procedural safeguards. This Article then outlines four concerns peculiar to the technological nature of these restraints, and illustrates how these significant concerns are wholly overlooked when the physical world is the determinant referent of review. The Article closes by urging greater judicial scrutiny of technological restraints, and by laying out a series of potential inquiries that might aid in such an effort. ..more.. by ERIN MURPHY, University of California, Berkeley, School of Law (Boalt Hall)