“Massive Hack” Reveals What Everybody Knew

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.

15 thoughts on ““Massive Hack” Reveals What Everybody Knew

  1. Jay

    True, but what about those private rooms? They routinely record those, too. Or what about when they bring you to the station house to assist at an interrogation and they leave the room to give you “privacy” and swear they aren’t recording? We have to demand that they change, because there really is no way to communicate with the incarcerated in a way that is private if the government decides not to play by the rules. Rage! Rage against the machine! Because otherwise you get things like that appellate decision in Washington state where they discovered the prosecutors were listening to the lawyer calls post-trial. Harmless error.

    1. SHG Post author

      You raise an interesting question. Are the rooms private? They put cameras into the meeting rooms of the newly constructed courthouse in Staten Island recently, and Legal Aid went to war. I’ve spent a lot of time looking around the rooms (cuz there’s not much to do for the hour waiting for the client to be brought in) and saw nothing to indicate it was being bugged, but I’m no expert.

      Paranoia is a good thing in this business. It keeps us safe from the unknowns, and we keep learning that there are always more unknowns.

      1. John Barleycorn

        Paranoid? WTF?

        Heck even if the jailers and or their contractors listen in for their own amusement now and then they are only trying to keep us safe from those criminals doing criminal stuff on the phone or through their lawyers and if they ever did pass any information along to a prosecutor only a rouge prosecutor would use it right?

        Even Kozinski is pretty certain that prosecutors, with few exceptions, are fair-minded, forthright and highly conscientious even though “things” could use some improvement.

        P.S. Just because the Intercept didn’t offer you a gig doesn’t mean you have to get all uppity sarcastic in your tone with them. Afterall they might look to adopt a criminal justice section one of these days after Laura, Jeremy, and that other dude who’s last name also starts out with Green sees the light. And no doubt about it you should call Laura and float the idea of doing a movie about the world of criminal defense lawyers.

        P.S.S. I sure hope the CDL’s of those hundred odd bikers who just got indicted down in that tiny little Texas juriduction weren’t talking to their clients on the phone even if, as we know, most prosecurors iron their own shirts and go to church every Sunday.

        1. John Barleycorn

          * and if they ever did pass any information along…

          There ought to have been the word privileged in there before information. But what the heck as you note in your last paragraph “privileged” is a myth unless you excange breath mints first and even then, not always.

          P.S. If any of you CDL’s are looking for a new marketing tool.
          For five percent I coukd hook you up with a guy that could make you a few cases of Paranoid Breath Mints you could give away to your clients with the scales of justice on one side of the mint and your mug on the other side.

        2. Jim Tyre

          P.S. Just because the Intercept didn’t offer you a gig doesn’t mean you have to get all uppity sarcastic in your tone with them. Afterall they might look to adopt a criminal justice section one of these days after Laura, Jeremy, and that other dude who’s last name also starts out with Green sees the light. And no doubt about it you should call Laura and float the idea of doing a movie about the world of criminal defense lawyers.

          I know Laura. Scott is no Laura.

      2. Mario Machado

        “Paranoia is a good thing in this business.”

        Spoken like a true prodigy. Sometimes it’s good to tell the uninitiated that it is not paranoia, just a heightened sense of self preservation.

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  3. Patrick Maupin

    Maybe they’re just not polite enough to the hackers. They should try changing their name to “Please Securus.”

  4. Franklin Michaels, Jr.

    Before I retired, I was a business bankruptcy lawyer, who interfaced with only one client while she was in a California state prison: both in person – at the family hug-time after dinner – and on the phone. And the many occasions we spoke on the phone, it was by pre-arrangment with a cell block supervisor, and then at the appointed hour we would accept a collect call – a normal rates – placed from the warden’s office, which all parties were assured would not be recorded.

    By any chance, is it still reasonable to believe those attorney/client calls from the warden’s office were treated as sacrosanct by the state? Or is it more likely that the only thing special about those calls were that someone in the AG’s office was responsible for making sure that when and if something interesting popped up, the state could then stumble on it “independently” of the recorded call?

  5. Alex Bunin

    I agree with everything you wrote. No lawyer should trust representations from correctional institutions that their mail, email, or conversations are safely private. Even though I had a stamp for “Special Mail” which I then dutifully signed, so my clients in BOP could allegedly receive mail from me unopened and unread, I was still much more careful about what I wrote or said than had they talked to me in my office. There is one point about the Securus story that I would be interested in an answer. The program has a function in which attorney phone numbers can be entered so that they are flagged to avoid recording. Our Sheriff set up a procedure to input attorney names. If those calls were actually recorded and then hacked, that would be bigger news.

    1. SHG Post author

      Saw that too, but the Intercept wouldn’t know who was supposed to be on the “do not eavesdrop” list, and it’s also unclear whether their database is sufficiently searchable in that way. That said, if you happen to have a number to be used as a test case, I might be able to help you get an answer to that very interesting question.

      As for the “Legal Mail” stamp, I had one too, but I never believed they didn’t look, one way or another.

      1. Alex Bunin

        I will send you something off-list, but because we are a large office, with many rollover numbers, I am not sure which would most likely appear. I did give them all of them.

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