In March 2018, the Virginia Department of Corrections (VA DOC) was trying to gain more control over the mail its approximately 30,000 incarcerated people received. Mainly, it wanted to close a loophole in which people posed as businesses so they could include color photos. A contact at the Pennsylvania Department of Corrections recommended they talk to a Florida company called Smart Communications about its product, MailGuard.
Smart Communications offered to do a whole lot more than that. It offered VA DOC a suite of products that would make it possible for prison officials to monitor and search all inmate communications with the outside world. It would create a searchable database of everything each prisoner said and received, along with who said it. And, the company claimed, it would include postal mail in this dragnet through its MailGuard product, by scanning each mail item at a remote facility and uploading PDFs for incarcerated people to view from a tablet. The people in prisons would never receive the physical letter.
The MailGuard system works by having senders address their mail not to the prison, but to a PO box rented by Smart Communications. For state DOCs, the company offers to set up a mail receiving facility in the state, and then ship the mail to its Florida facility for processing. There, the mail is opened, scanned, and uploaded. According to the proposal, inmates would then log into a kiosk to view the PDFs of their mail remotely. After 30 days, the mail is destroyed. There is no way for incarcerated people to ever physically hold or recover their mail.
And, the company said, it would not only track incarcerated people inside the walls, but their friends, family, and anyone who sent mail to them, too.
"Investigators will have access to the postal mail sender’s Email address, physical address, IP Address, mobile cell number, GEO GPS location tracking, exact devices used when accessing system [sic], any related accounts the sender may also make or use," Smart Communications said in a proposal for VA DOC. The proposal and other documents were obtained through a public records request.
Motherboard is posting the proposal, which was created specifically for the VA DOC, because it shows how a private company proposed a complex surveillance system that would keep tabs not just on incarcerated people but also on the people who sent mail to them, even if they were not suspected of a crime.
This system, Smart Communications boasted, "eliminates anonymity of postal mail, now postal mail has a digital fingerprint with new intelligence." And this intelligence could be used to crack down on "gang members."
When Motherboard asked Smart Communications for comment on this article, a lawyer for the company demanded that we not publish any of the documents, which were obtained using freedom of information laws that journalists regularly use to procure public documents about how taxpayer money is being spent and the general dealings of a democratic government.
"I understand you have obtained information relating to a confidential proposal that Smart Communications previously made to the Commonwealth of Virginia Department of Corrections. Please be advised that this proposal and the information therein was provided pursuant to a confidentiality understanding / NDA and was clearly and prominently designated as CONFIDENTIAL, PROPRIETARY, and TRADE SECRET," David Gann, general counsel with Smart Communications wrote in an email. "It should never have been shared with you or anyone else by the recipient. We will deal with that issue separately, but regardless, Smart Communications demands that you, Vice Media, Motherboard, and any other affiliated companies or entities immediately cease and desist all efforts to further disseminate or distribute any information obtained in that confidential proposal. Smart Communications further demands that you immediately destroy all copies of its proposal."
In its FOI response, the VA DOC claimed that it did not have any nondisclosure agreement with Smart Communications. The documents obtained as part of this request were automatically made available through Muckrock, the nonprofit platform Motherboard used to file the request on. Motherboard has redacted some inmate personal information and personal contact information for Smart Communications executives.
"Smart Communications takes the protection of its intellectual property and confidential / trade secret information very seriously, and it will pursue all violations to the fullest extent of the law," Gann continued. "Please immediately confirm receipt of this email, that you will not further violate Smart Communications' intellectual property rights by publishing any aspect of its confidential proposal, and that you have destroyed all copies of Smart Communications' confidential material."
The proposal, which VA DOC did not ultimately pursue, does not explain in detail how Smart Communications' platform works, it generally lists its capabilities and prices. VA DOC opted to spend about $7 million a year on an in-house solution of photocopying and shredding all mail before delivering the copied version to people in prison. But Pennsylvania did sign a contract with Smart Communications, through an emergency procurement process, due to a controversial and contested claim of a surge in mail being laced with synthetic marijuana.
The rollout was "a mess," according to Quinn Cozzens, staff attorney at the Pittsburgh-based Abolitionist Law Center, a public interest law firm.
"Mail was delayed for weeks or months and was regularly delivered to the wrong person. Color photos were scanned and delivered in black and white, often with portions of the picture cut off. They rejected mail and returned it to the sender without explanation for why it was rejected." Plus, the promised kiosks never materialized, as PA DOC staff printed out the PDFs on copy paper and handed them to incarcerated people just like VA DOC does.
While Pennsylvania's deal with Smart Communications was widely reported at the time, the extent of the company's capability to track people not in prison has not been previously known.
"Smart Communications has been boasting of their dystopian surveillance system at least since they were awarded a contract by the Pennsylvania Department of Corrections in 2018," said Cozzens. "Smart Communications’ total surveillance of every aspect of communications with incarcerated people is a chilling convergence of the expansion and privatization of the surveillance state on one hand, and a growing private industry that profits from holding human beings in cages on the other."
The extent of Smart Communications' reach across the U.S. mass incarceration landscape is not yet known. In communications with the Nebraska Department of Corrections in October 2018, which Motherboard also obtained via a public records request, a company representative boasted of its contract with Pennsylvania and claimed to be "under contract negotiations with Virginia, Georgia, South Carolina, Tennessee, Maryland, Utah, and Florida!"
At least in Virginia's case, this was a bit of an exaggeration, as Virginia received a proposal but never pursued it. The majority of the company's clients appear to be regional and county prisons.
"Written correspondence is one of the most, if not the most, important means for incarcerated people to maintain connections with family and loved ones outside of prison," Cozzens said. "Smart Communications prevents incarcerated people from ever holding a drawing sent to them by their child, or an original photograph, or a handwritten letter from a loved one that hasn’t been scanned and reprinted on a sheet of copier paper."
In the proposal, Smart Communications estimated it would pocket $1.8 million in profits over a five-year period through payments from VA DOC for equipment and maintenance. At least in PA DOC's case, incarcerated people do not have to pay to access their mail, although Smart Communications told VA DOC that if it opted for its digital communications suite, people sending messages to people in prisons would have to pay 50 cents a message or $1 a photo.
Smart Communications offered VA DOC a system to monitor, approve, and potentially reject mail using a "management console" giving them "instant access to the entire VADOC database of inmate mail." Investigators can receive real-time alerts via text or email when an inmate marked as a gang member or otherwise flagged receives an item of mail.
The company further offered VA DOC the "Smart Tracker" system, the one that tracks the people who send incarcerated people mail. The proposal doesn't detail how the system works, but it appears to use the data people input to create an account through the "Smart Jail Mail" portal to connect them to the letters they send. The company retains all digital copies of mail for seven years, meaning if the system is used in enough prison systems, over time it could generate a considerable database about who associates with whom.
This creates real privacy concerns for people whose only "crime" is trying to communicate with someone in prison, says Aaron Mackey, a staff attorney at the Electronic Frontier Foundation who has worked on prisoner privacy issues.
"People who communicate with prisoners are now going to have reduced autonomy, privacy and expression and associational rights," Mackey said, "because now, wholly innocent individuals who are trying to just communicate with family and loved ones, members of their community and so on, are now going to be caught up in this surveillance." Even institutions like social service organizations and religious leaders will be caught up in the dragnet, Mackey warned, potentially getting flagged as troublesome figures because they communicate with people in prisons.
But the most significant issue, both Mackey and Cozzens say, is the emotional toll not receiving physical mail takes on incarcerated people. Even before the pandemic, many prisons have gradually shifted to encourage mostly digital interactions through video visitation and similar efforts. Physical mail was a key link between people in prison and their support networks. That link is being cut.
To be sure, people in prison do not have a reasonable expectation of privacy even for physical mail. Prior to the Smart Communications contract, all postal mail in Pennsylvania state prisons was opened and physically inspected for contraband by prison staff and skimmed for contents, Cozzens said. But it was rarely scanned and preserved. Once the initial inspection was complete, the mail was delivered to the person it was addressed to.
Cozzens sees a huge difference between that approach and what Smart Communications is doing. "There is quite a difference between a prison guard potentially skimming over a letter one time before delivering it, and every person who sends mail to an incarcerated person having their letters scanned, rendered digitally searchable, stored for seven years, and on top of that their personal information is also stored and meticulously tracked." He compared it to police agencies merely writing down a license plate when they pull someone over versus deploying license plate readers on a mass scale.
"This is just another step down that road," Mackey said, "where prisoners increasingly have diminished rights and privacy."