Not So Securus: Massive Hack of 70 Million Prisoner Phone Calls Indicates Violations of Attorney-Client Privilege

Jordan Smith and Micah Lee, Not So Securus: Massive Hack of 70 Million Prisoner Phone Calls Indicates Violations of Attorney-Client Privilege. The Intercept, 11 November 2015. “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. The calls span a nearly two-and-a-half year period, beginning in December 2011 and ending in the spring of 2014.”

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….

The blanket recording of detainee phone calls is a fairly recent phenomenon, the official purpose of which is to protect individuals both inside and outside the nation’s prisons and jails. The Securus hack offers a rare look at this little-considered form of mass surveillance of people behind bars — and of their loved ones on the outside — raising questions about its scope and practicality, as well as its dangers….

[T]he Securus leak reveals just how much personal information the company retains about prisoners and the countless people to whom they are connected. It is information that, in the narrow context of incarceration, may not be considered private, but in the larger world raises serious questions about the extent to which people lose their civil liberties when their lives intersect, however briefly, with the criminal justice system….

Until now, Securus was probably best-known for the incredibly high rates it has traditionally charged for phone calls, a burden borne almost exclusively by the very people who are the least able to afford it. (The Federal Communications Commission in October voted to cap calling rates and fees, a move that Securus and other industry leaders had fought, claiming the change would have a “devastating effect” on their businesses.)…

[T]he scale of the Securus hack shows the company has failed to fulfill its own promises on security. The more than 70 million phone call records given to The Intercept include phone calls placed to nearly 1.3 million unique phone numbers by more than 63,000 inmates. The original data was contained in a 37-gigabyte file and scattered across hundreds of tables, similar to spreadsheets, which The Intercept merged into a single table containing 144 million records. A search for duplicates reduced this figure to more than 70 million records of individual phone calls….

The vast majority of the calls appear to be personal in nature…. But a subset of the recordings — a minimum of roughly 14,000 — were made by detainees to attorneys, in calls that range from under a minute to over an hour in length…. That 14,000 figure, however, is likely an underestimate because it does not include calls to attorney cellphone numbers. In other words, the 14,000 attorney calls are potentially just a small subset of the attorney-client calls that were hacked….

Prisoners do not generally enjoy a right to privacy while incarcerated — a fact that is emphasized in the course of virtually any communication with the outside world. Like other jail and prison telecoms, Securus inserts a recorded message at the beginning of each prisoner-initiated phone call, reminding recipients that “this call is from a correctional facility and may be monitored and recorded.” In this context, anyone who hears the warning and still chooses to use the phone has effectively waived a right to privacy during that call, a condition all too familiar to people with incarcerated loved ones. Still, it is hard to imagine that people on either end of the line would ever anticipate that their conversations would be stored for years, in a manner that could potentially expose their intimacies to the larger public. By failing to prevent hackers from accessing the calls, Securus appears to have done just that.

This is troubling to the ACLU’s [David] Fathi [director of the ACLU’s National Prison Project], because “waivers of rights are not meant to be all or nothing. Waivers are meant to be only as extensive as necessary to accomplish the goal underlying the waiver,” he said. If the goal for recording and monitoring detainee phone conversations is to enhance safety both inside and outside a facility that’s one thing — but those conversations should not be stored indefinitely, once they’re determined to be free of intelligence that would aide the institutional goal….

[T]hat a criminal defendant or inmate should be able to speak frankly and honestly with a lawyer is a cornerstone of the criminal justice system — inherent in a defense attorney’s ethical obligations, and firmly rooted in the Sixth Amendment right to competent and effective legal counsel. A review of contracts and proposals completed by Securus in a handful of states reflects the company’s understanding of this right. In a 2011 bid to provide phone service to inmates in Missouri’s state prisons, Securus promised that each “call will be recorded and monitored, with the exception of privileged calls….

The attorney-client privilege is “the oldest privilege of confidentiality known in our legal system,” said Fathi. In a criminal case it prohibits defense attorneys from divulging, or prosecutors from using, any case-related information that was obtained in confidence. But the reality is that keeping conversations with incarcerated defendants confidential is a challenge. Experts point out that the recorded notice embedded within phone calls initiated inside jails and prisons means that there should be no real expectation of privacy. “If a client is making an out-of-prison call to an attorney, the attorney-client privilege, arguably, doesn’t apply,” said Michael Cassidy, a professor of law at Boston College Law School, because by consenting to speak over a phone line that is subject to recording, the client and attorney should expect that is happening. But that isn’t the end of it: Even if the privilege doesn’t apply, “the Sixth Amendment right to counsel applies and the government can’t interfere with it,” he said. “So even if you could argue that notifying a prisoner that their calls are being recorded negates the privilege, it doesn’t negate the Sixth Amendment right to not have the government interfere with counsel.” And monitoring, recording, and potentially using information gleaned from attorney-client calls would do just that….

Fathi believes a case could also be made that the recording and storing of non-attorney calls is unconstitutional. “Prisoners do retain some privacy rights and certainly people on the outside who just happen to be talking to prisoners retain privacy rights. And, again, the fact that you’re passively consenting that the call can be monitored for security purposes doesn’t mean you’re consenting to all conceivable uses of that recording for all time,” he said. “I think even with the non-attorney calls there may be a case to be made that this is just so spectacularly overbroad that it is unconstitutional.”