Despite known flaws in the software, courts in at least five states have used the Covenant Eyes app to surveil the devices of people awaiting trial or released on parole, WIRED reports, raising concerns about constitutional violations.
Covenant Eyes is an “accountability” app marketed primarily to parents and churches to monitor online activities, WIRED reported. For a monthly fee, the app monitors everything a user does on a smartphone, laptop, or other device and sends data—including screenshots—to a designated “accountability partner” or “ally.”
The app provides almost real-time monitoring, WIRED wrote, taking at least one screenshot per minute. It analyzes the image, slightly blurs it, and saves it on a server, and it flags any images the software identifies as possibly “explicit.”
It also monitors online activity, blocking allegedly pornographic websites and sending alerts about any “suspicious” searches.
Court-Ordered Surveillance
The app’s terms of service don’t allow it to be used in a “premeditated legal setting,” but WIRED found that courts in Washington, Montana, and Ohio have each ordered a defendant to use the software at least once and Colorado courts have purchased services from Covenant Eyes 60 times since 2017.
And in Monroe County, Indiana, WIRED reported on the case of a man whose entire family was required to install Covenant Eyes on their devices as a condition of his pretrial release from jail. WIRED used only the wife’s nickname, Hannah, to protect the family’s privacy.
Hannah’s husband was charged with possession of child sexual abuse material. To ensure he complied with the court’s order that he not access any electronic devices, the Monroe County’s Pretrial Services Program installed Covenant Eyes on the phones of Hannah, her two children, and her mother-in-law.
The app sent probation officers screenshots of everything the family did on their phones—from videos Hannah’s 14-year-old daughter watched on YouTube to her 80-year-old mother-in-law’s online shopping for underwear, according to WIRED.
Hannah told WIRED it immediately had a chilling effect on the family. “I’m afraid to even communicate with our lawyer,” she said. “If I mention anything about our case, I’m worried they are going to see it and use it against us.”
She stopped online therapy sessions and said her children were afraid that texts to their friends or playing video games on their phones could get their dad sent back to jail. “It was like the family was being charged with a crime,” Hannah told WIRED. “It felt like entrapment.”
False Positives
The family’s concerns were not misplaced, according to reports reviewed by WIRED.
The app sent a report to a probation officer flagging an ad for a back brace that showed a woman in a tank top as “potentially concerning.”
It also sent officers a screenshot from Hannah’s mother-in-law’s phone taken during a phone call that shows the name of the person she called. Other screenshots showed her bank statements and Gmail inbox, although WIRED said the personal details were not readable.
Covenant Eyes is supposed to block only “adult” websites, but Hannah told WIRED she was blocked from accessing The Appeal, a nonprofit news site focused on the criminal legal system.
And after less than a week, her husband’s bond was revoked based solely on a report from Covenant Eyes that Hannah’s phone had visited Pornhub—even though the app is known to flag background network activity from websites that are not intentionally viewed.
Hannah says her husband did not use her phone and no one had visited Pornhub. She said the network request to the site’s servers was part of a background app refresh from a frequently visited Chrome browser tab. WIRED tested that claim and found that Covenant Eyes reported they had visited Pornhub even though they never touched their test phone.
This is a known issue with the app, WIRED reported, noting the company has documented the issue on its website and in its reports, which include a disclaimer explaining that “some apps generate activity in the background without the member’s consent.”
Constitutional Concerns
Legal experts expressed concern about the lack of oversight and accountability in the use of apps like Covenant Eyes that are not meant to be used in the criminal legal system and are known to produce false positives.
“We don’t know error rates, how the technology operates, or even if it’s reliable,” law professor Kate Weisburd told WIRED.
Few defense lawyers have the capacity to challenge this technology, she added.
And many don’t even know about it. Multiple public defense organizations and bail funds contacted by WIRED had never heard of Covenant Eyes and were not familiar with any similar apps being used for pretrial monitoring.
The use of Covenant Eyes also raises serious constitutional concerns for defendants and their families—who agree to surveillance because it’s the only way to keep their loved ones home and out of jail.
The app’s use in Hannah’s case potentially violates the family’s First Amendment rights to access the internet and communicate freely and their Fourth Amendment rights by allowing law enforcement to search their devices without cause, experts told WIRED.
And by interfering with his ability to talk confidentially with his lawyer, the app potentially violates Hannah’s husband’s Sixth Amendment right to counsel.
“This is the most extreme type of monitoring that I’ve seen,” Pilar Weiss, founder of the National Bail Fund Network, told WIRED. “It’s part of a disturbing trend where deep surveillance and social control applications are used pretrial with little oversight.”