Molly Greene, The Appeal’s strategy and legal director, calls the censorship alarming. “It’s incredibly concerning to hear readers say they can no longer access our website as a result of this app,” she says. “This kind of abuse of judicial power to restrict people’s autonomy and ability to access critical information on the criminal legal system is exactly why The Appeal exists.”
Less than a week after Covenant Eyes was installed on the four phones in her household, Hannah got a call from her husband’s probation officer saying that her husband had violated the terms of his bond. According to Hannah, the officer said Covenant Eyes detected that her phone had visited Pornhub. Court records WIRED reviewed cite a visit to the adult website as the reason for revoking his bond.
But Hannah claims that her husband didn’t touch her phone and that no one had visited Pornhub. Instead, she says, her phone had made a network request to the website’s servers as part of a background app refresh from a frequently visited tab on her Chrome browser.
WIRED tested Hannah’s claims that Covenant Eyes flags background network activity from websites that aren’t intentionally viewed. Using an iPhone, we visited Pornhub enough times that it was a frequently visited tab on Google Chrome. We then installed Covenant Eyes and restarted our phone. Within minutes, Covenant Eyes alerted our designated accountability partner that a request to Pornhub was made from our test device, even though we never touched it.
This is a known issue with Covenant Eyes. The alert Covenant Eyes sent when it detected a network request to Pornhub explicitly stated that the software cannot determine if the user “intentionally viewed” the webpage because “some apps generate activity in the background without the member’s consent.” The company has public documentation about the shortcoming.
This limitation in Covenant Eyes means it’s possible Hannah’s husband did not violate the terms of his bond. Moreover, the terms of her husband’s bond don’t prohibit Hannah from looking at pornography, and it would be impossible for probation officers to know who was using the device from Covenant Eyes reports alone. Yet, in the motion to revoke Hannah’s husband’s bond, the only evidence prosecutors presented was information from the Covenant Eyes report.
According to Kate Weisburd, an associate professor at George Washington University School of Law, challenging probation and parole violations is difficult, particularly when they’re based on electronic evidence. Courts are largely reluctant to find due process problems with electronic surveillance, she says, and overworked defense attorneys often lack the capacity to bring a challenge.
Hannah printed the Covenant Eyes documentation and hand-delivered it to the prosecutors, the judge, and the probation department. She never heard back. As a last resort, Hannah emailed Covenant Eyes CEO Ron DeHaas. In an email exchange Hannah shared with WIRED, DeHaas was apologetic. “Hannah, I’m sorry that you are going through this,” DeHaas wrote. “I will have our legal department follow up with you.”
Hannah says the legal department never reached out.
Constitutional Wrongs
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.”