The Recording of Prisoner Phone Calls: Privacy and the U.S. Constitution

3192996377_0af51c2e0d_1Prison and jail communications is a $1.2 billion a year business.  Securus Technologies, Inc. is leading provider of phone services inside the country’s prisons and jails serving approximately 2,000 correctional facilities and more than 850,000 inmates in 45 states.  The company processes over one million calls per day.

Securus’ website claims that its database contains the billing names and addresses of over half a million people who are not incarcerated, as well as information about more than 850,000 inmates from over 1,900 correctional facilities, that includes over 100 million call records.  Securus acknowledges that this is valuable data which it can make available at the fingertips of law enforcement and correctional authorities.  Securus states that the data which is available and being sold to corrections and law enforcement authorities through so-called “site commissions” is “growing every day” and can be provided to law enforcement investigators on demand.

Securus Sells Valuable Data

In 2014, Securus is reported to have generated hundreds of million dollars in revenue from tolls and fees it charges detainees and their families, friends, lawyers and for the privilege of speaking with a detainee.  It shares a large cut of those payments (kickbacks) with law enforcement authorities, which adds up to significant profit for both parties.

Yet Securus states that it does “not sell, trade, or otherwise transfer to outside parties your personally identifiable information,” including law enforcement, except under certain limited circumstances.  In fact, Securus does extensive business with local and county governments which operate the nation’s jails, as well as with state departments of correction which run the nation’s prison systems, and derives substantial revenue from the “site commissions,” paid to government law enforcement from revenue generated by recording of inmate calls.

Recording of Confidential Attorney-Client Phone Calls Offends the Constitution

Securus represents to the public it does not record attorney-client calls.  But, on or about November 11, 2015, the online publisher The Intercept announced it had received “an enormous cache of phone records” which revealed a major data breach by Securus of stored phone call recordings, including without limitation some 14,000 confidential attorney-client phone calls, and other personal information.

So, it appears that in reality Securus and law enforcement authorities do record and store confidential attorney-client communications, and they share it with prosecutors as evidenced by production of such recorded calls in discovery.  The opportunity for the prosecution to use the knowledge acquired through listening to the recorded phone calls to their tactical advantage, with or without admitting they obtained or listened to the recordings, creates a huge potential for abuse and a chilling effect on detainees’ constitutional rights, including the 4th and 6th Amendments to the U.S. Constitution.

The Securus Data Breach

Securus claims on its website that it has a superior, revolutionary technology that collects intelligence from more than 2,600 law enforcement and correction agencies “providing unbeatable lead generation.”  It promotes itself as “SAS 70 and Sarbanes-Oxley compliant.”  The company also promises that it’s platform will “allow calls with a high level of security and that it “understands that confidentiality of calls is critical, and [it] will follow all Federal, State, and Local laws in the conduct of [its] business.”  It also pledges to “provide and invest in security features that will make all parties and the public safe while maintaining the critical family connection to inmates.”

However, the sheer scale of the Securus hack shows that the company’s promotional and advertising claims about security aren’t true and that Securus has failed to live up to its own promises.  The materials leaked to The Intercept by an anonymous hacker comprise over 70 million recorded phone calls placed by prisoners in not less than 37 states.  The recorded and leaked calls span a nearly two and a half year period beginning in December 2011 and ending in the spring of 2014.

As it turns out, Securus is not so secure.


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