Everybody, except maybe The Intercept, who has anything to do with the criminal justice system knows that you don’t talk about anything that matters on a jailhouse phone*.
There are signs by the phones: All Calls Are Recorded.
They’re not kidding. They’re not kidding when they say they’re “recorded.” They’re not kidding when they say “all.” And yet, amazement fills the air when people learn that all calls are recorded.
AN ENORMOUS CACHE of phone records obtained by The Intercept reveals a major breach of security at Securus Technologies, a leading provider of phone services inside the nation’s prisons and jails. The materials — leaked via SecureDrop by an anonymous hacker who believes that Securus is violating the constitutional rights of inmates — comprise over 70 million records of phone calls, placed by prisoners to at least 37 states, in addition to links to downloadable recordings of the calls.
Ah, Securus. Jails love Securus, and Securus loves jails.
Particularly notable within the vast trove of phone records are what appear to be at least 14,000 recorded conversations between inmates and attorneys, a strong indication that at least some of the recordings are likely confidential and privileged legal communications — calls that never should have been recorded in the first place. The recording of legally protected attorney-client communications — and the storage of those recordings — potentially offends constitutional protections, including the right to effective assistance of counsel and of access to the courts.
Yes, attorney/client communications should be sacrosanct, as recording them certainly seems to “offend constitutional protections.” But note how the authors, Jordan Smith and Micah Lee, throw in the word “potentially”? Why would they say “potentially”?
Because there is a friggin’ sign that says “all calls are recorded,” and nowhere does that sign have a little asterisk that says, “except calls with your lawyer.” Should it? You bet it should, because detained inmates have a constitutional right to counsel, to effective representation of counsel, and they can’t walk out of jail whenever they want to have a chat.
Of course, the lawyer can always walk into jail to talk, with the proviso that they have a half a day to lose to ask a question that takes thirty seconds to answer. While lawyers are (usually) given access to their clients, they suffer lines, delays, magnetometers, more delays, and the unique smell of jails just like everyone else. Not that any other player in the system feels badly about any of this.
But what’s the big deal about differentiating attorney/client telephone calls from any other inmate use of the phone? Well, it would require minor adjustment, such as inputting into the computer system the lawyer’s telephone number so that the recording doesn’t happen. But that would require (minimal) effort, and Securus has a clause in its contract with jails that says it doesn’t have to put in any effort at all beyond sending a piece of the vig by check to the jail.
So when a prisoner decides to have a chat with his lawyer from the jailhouse by phone, he should look at the sign. All calls are recorded. Including the one he’s about to make. After all, he could be directing his lawyer to facilitate his commission of a crime, and that’s not protected. How else would the jail know?
The response of the Jailer Telephone Cabal to cries that the recording of attorney/client communications violates the defendants’ constitutional rights is . . . pffft. See the sign? “All calls are recorded.” We told you. There’s no privilege. Want a private communication? Get your lazy lawyer ass over to the jail and meet with your client in one of our luxurious private rooms. Problem solved!
As lawyers, we know this is happening, although there are exceptions, jails that don’t record calls between lawyers and clients. Or at least that’s what they say. Who knows for sure? So we tell our clients that they cannot talk about anything on the phone. We tell our clients, “all calls are recorded, including this one.” So don’t say anything on the phone that you don’t want your prosecutor to hear.
Some listen to our advice. Most don’t. They just can’t stop themselves from talking. And if it’s not about talking to us, it’s about talking to their spouses, their friends, their co-conspirators. And they say the most remarkable things, in the sense of “remarkable” meaning “really damaging.” Lawyers only know the stupid stuff they say to us. We learn the stupid stuff they say to others at trial. Fun times.
The only part of the Intercept’s amazement that’s new is that someone hacked into the Securus system, gaining access to 70 million calls. Do you realize how much money Securus is making off this gig? But Securus, as its name suggests, pitches itself as secure.
Securus markets itself to government clients as able to provide a superior phone system — its Secure Call Platform — that allows for broad monitoring and recording of calls. The company also promotes its ability to securely store those recordings, making them accessible only to authorized users within the criminal justice system. Thus, part of the Securus promise is not only that its database is vast, but also that it meets rigorous standards for security. “We will provide the most technologically advanced audio and video communications platform to allow calls with a high level of security,” reads the company’s Integrity Pledge. “We understand that confidentiality of calls is critical, and we will follow all Federal, State, and Local laws in the conduct of our business.”
So it turns out the Securus is just as insecure and subject to hack as, well, everybody else on the interwebs, despite its puffery in marketing its services to jails. Go figure.
It seems that the Intercept is somehow surprised that a company that keeps using the word “secure” in its name and sale pitches ought to be, well, secure. After all, if you can’t believe what you see in writing, then what can you believe? Like that sign over the phones that says “all calls are recorded.”
*Not for nothing, but the same is true of emails and the cloud. Never put anything in an email or on the cloud unless you want the government to see it. Sorry, but that’s just how it is.