For years, many of Brooklyn Defender Services’ incarcerated clients suspected that phone calls with their lawyers were being recorded. While such communications are ostensibly protected from surveillance under the Sixth Amendment of the US Constitution and the Federal Wiretap Act, there had been little trust that prison telecommunications vendor Securus Technologies was properly distinguishing between personal calls—which incarcerated people are told are monitored—and private calls with attorneys.
“There was a general sense of unease,” Elizabeth Daniel Vasquez, director of the Science & Surveillance Project at Brooklyn Defender Services, told Motherboard. Then, around 2019, defense attorneys learned that prosecutors handed over attorney-client phone calls during the discovery process in several cases. But they were assured the disclosures were isolated exceptions.
After several more attorney-client calls surfaced in discovery, Brooklyn Defender Services’ Civil Rights Counsel at the time, Brooke Menschel, confronted the Department of Corrections. “They repeatedly assured us that they had fixed all problems. We then demanded an audit,” said Daniel Vasquez. Internal audits conducted by the company at the DOC’s request revealed more than 1,500 protected jailhouse phone calls had been recorded, affecting at least 353 defendants’ cases, according to the New York Daily News. In a statement to the Daily News, Securus claimed the issue was not widespread and that wrongfully recorded calls were prefaced with an automated message warning that the call was being recorded. Several defense attorneys said they weren’t aware the calls were recorded, however.
The violations in New York City are just the tip of the iceberg, according to the advocacy organization Worth Rises and Motherboard’s analysis of court documents and local news articles. Securus has allegedly recorded tens of thousands of phone calls between attorneys and their incarcerated clients in at least seven other states, according to lawsuits that have been filed in California, Kansas, Louisiana, Maine, Missouri, Texas, and Wisconsin. Global Tel Link (GTL), another major prison telecommunications vendor, allegedly recorded phone calls with attorneys in Florida, California, and Maine. In some cases, it was discovered that prosecutors had listened to privileged communications.
Bianca Tylek, attorney and Executive Director of Worth Rises, told Motherboard that she believes the recording of privileged phone calls is a “systemic practice” that has consistently violated people’s rights for years. “While systemic violations of basic constitutional rights might typically result in a federal investigation the localized coverage of these regular violations has allowed Securus and GTL to quietly settle individual lawsuits without meaningful accountability,” Worth Rises wrote in a blog post,
Securus disputed this characterization in response to Motherboard’s request for comment. “The occasional inadvertent recordings are not evidence of a ‘systemic practice,’” a Securus spokesperson wrote in an email. “In fact, it is quite the opposite. Issues involving the inadvertent recording of calls to attorney numbers involve less than one-tenth of a percent of all calls on the Securus platform, demonstrating that these issues are rare and occasional, not systematic.”
The company further stated that calls from correctional facilities are recorded by default, and that private numbers, such as attorneys, must be added to a list to prevent the system from recording calls. “If a number is not registered as private and the called party ignores the warning, the call to that number will be recorded,” the company wrote. “On rare occasion[s], this has resulted in the inadvertent recording of calls to unregistered attorney numbers.” Securus claimed that it makes an effort to delete improper recordings, and said it does “everything in [its] power to avoid recording these calls.”
Securus’ audits in New York, however, revealed more than 100 Brooklyn defense attorney phone numbers did not wind up on the do-not-record list despite requests for privacy. Defense attorneys in Maine, California, and Texas have raised similar objections, and some private defense attorneys have waited for over a year to end up on a jail’s call list in New Orleans, according to a report produced by Court Watch NOLA, a non-profit. One sheriff does not allow unrecorded calls between attorneys on their cell phones and clients, Court Watch NOLA’s executive director Simone Levine told Motherboard.
It is the universal recording project itself that is fundamentally flawed, according to Daniel Vasquez. “A system that is set to default universal surveillance—regardless of individualized suspicion—will always result in authoritarianism and oppression, regardless of a corporation’s empty promises,” she said. “Understanding this, our Constitution sets the default position instead at a presumption of innocence, a preference for privacy over monitoring and control, and a commitment to freedom.”
But Securus claimed it is actively implementing changes to prevent the recording of calls with attorneys by adding an option which lets incarcerated people specify when they believe a call being made is private. If this option is selected and the number is not on the facility’s list, the call will not be completed, according to the company.
GTL declined to comment.
In 2015, an anonymous hacker brought the issue to light after leaking over 70 million phone calls placed by incarcerated people and recorded by Securus to The Intercept. An analysis of the calls revealed at least 57,000 privileged communications between attorneys and their clients had been recorded, the vast majority coming from prisons operated by the Missouri Department of Corrections. At the time, David Fathi, director of the ACLU’s National Prison Project called the recordings potentially the “most massive breach of the attorney-client privilege in modern U.S. history.”
The revelation led to several lawsuits against Securus—many of which have settled without the company admitting fault. In many of the cases, Securus and GTL claim that the calls were recorded as the result of human error, a clerical error, or a technology error.
But the problem is so widespread that advocates believe it can’t be explained away so easily.
“For these companies, it doesn't matter. They make a ton of money on these calls and that money covers the settlement costs,” said Tylek. Securus and GTL are both owned by deep-pocketed private equity firms and maintain a virtual duopoly over the prison-telecommunications services in the US. In 2018, the average cost of a 15-minute phone call in jail was $5.74, according to The Prison Policy Initiative.
In June 2021, Connecticut became the first state to pass legislation to make prison phone calls free. While Securus’ valuation had been shrinking prior to the pandemic, in 2020 the company’s revenue grew by 10 percent, to $767.5 million. In the midst of the boost, Platinum Equity was reported to be in merger talks with a Special Purpose Acquisition Company managed by MC Credit Partners.
Privacy violations have continued, Tylek believes, because prison telecommunication companies are financially incentivized to cater to law enforcement as their main customer base. “They settle these cases and move on,” she said. “But they’ll do it again because their clients are the institutions who benefit from it: prisons, police, and prosecutors. So it's just a cost of doing business.”
It hasn’t always been this way. For years, AT&T had provided communication services in jails and prisons at rates that mirrored those in the outside world. Security and surveillance services were sold separately on a limited basis. After a Department of Justice consent decree broke up AT&T’s monopoly in 1984, security-oriented companies gained a competitive edge by offering both communication and “free” security services. Companies offloaded security costs to families by charging them for phone calls and offering government agencies a cut of the profits.
Still, some large agencies didn’t universally monitor calls until the mid-to-early 2000s.
New York City jails, for example, started universally monitoring or recording calls in 2008, after the Board of Correction adopted a series of new amendments. Prior to this rule change, law enforcement needed to obtain a warrant backed by evidence that an individual was planning to commit a crime or was a security threat.
Originally justified as a way of maintaining security within prisons and jails, personal call recordings are now frequently used by prosecutors to build cases. Law enforcement also hasn’t shown much proof that recording calls has improved safety behind bars, Tylek said. All 50 states have contracts with prison telecommunication companies, and some prisons have used the resulting influx of data to build voice recognition databases. Through a service called “Call IQ,” GTL claims to use automated systems to generate call transcripts, detect keywords, and map out a network of associations for incarcerated people. Securus claims to offer “state-of-the-art voice analysis technology” that uses voice biometrics to identify incarcerated individuals by name.
“The amount of data that they're sitting on is deeply troubling,” Daniel Vasquez told Motherboard. “They've aggregated all of this information. That is a lot of money that's sitting there for them and there’s not a whole lot of clarity about how they are using it or why.”
Securus has not shied away from selling personal data in the past. For years, the company bought cell tower geolocation data from a data broker that acquires the information from major cell phone carriers and then re-sold it to law enforcement and marketers. In response, the FCC proposed fining the cell phone carriers in 2020.
The phone surveillance system also exacerbates racial and economic inequities, according to Brendon Woods, chief public defender in Alameda County, California. “Just think about it on a human level. A lot of people are in custody right now because they can't afford bail,” he told Motherboard.
One way forward, said Tylek and Woods, is for governments to pass legislation that bars companies and departments from surveilling calls between incarcerated people and their support networks altogether. This would prevent prosecutors from mining confidential phone calls to build cases against people being held pre-trial in US jails, who are disproportionately low-income and Black.
“It is grotesque that it comes down to money,” said Woods. “So my poor Black client can't consult with anyone about their case. A rich client who can afford to bail out can. You can see how the system just feeds on itself that way.”