Haiyun Damon-Feng (Yeshiva University – Benjamin N. Cardozo School of Law; NYU School of Law) has posted Conscripted Surveillance (Florida Law Review, forthcoming) on SSRN. Here is the abstract:
Two powerful immigration detention systems have developed in tandem in the United States: the first, a network of physical detention facilities largely mirroring criminal incarceration; the second, an amalgamation of physical, electronic, and surveillance-oriented constraints that attach to immigrants subject to Immigration and Customs Enforcement’s (ICE) Intensive Supervision Appearance Program (ISAP). Although ISAP was originally developed as an “alternative” to physical immigration detention, it has morphed into its own pervasive form of carceral control that is administered through a multi-billion-dollar contract with one of the world’s largest for-profit prison companies. ISAP captures 2.6 times as many people as are housed in immigrant jails, and its potential for continued expansion faces fewer legal, structural, and financial barriers than those that constrain the expansion of physical detention. ISAP’s reach also extends beyond the individuals it supervises—it operates as a form of mass surveillance with the capacity to monitor immigrant communities and social networks through coercive and punitive tactics.
This Article provides a rich descriptive account of ISAP’s surveillance powers and posits a new theory of ISAP as a form of “conscripted surveillance.” ISAP’s incredible and invasive reach has largely been justified on the grounds that individuals consent to its terms, but this consent is a fallacy. It is based on a coercive choice—agree to ISAP or go to jail—and an empty threat—ICE could not actually send everyone it threatened with ISAP to jail if they refused. As such, ICE functionally conscripts immigrants into service as beacons of community surveillance, using the data it collects through ISAP to make mass arrests and facilitate mass deportations. Understanding ISAP in this way reveals how our administrative and legal systems fail to meaningfully oversee the harms that ISAP perpetuates, and provides a new lens through which to evaluate and critique the terms and scope of immigration detention in the United States.
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