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Hacked Data Obtained By The Intercept Highlights Wholesale Spying On Inmate, Attorney Privileged Communications

Published: November 12, 2015
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Source: Tech Dirt

A few months ago the FCC voted to crack down on the ripping off of inmates and their families by prison telecom companies, which for decades now have charged upwards of $14 per minute for services that cost little to nothing to provide. At the time, prison telecom companies like Securus complained hysterically about the FCC's decision, CEO Richard Smith declaring the new price caps would have a "devastating effect" on its business, potentially ending its participation in "services and continuing inmate related programs." 

According to a massive new trove of data obtained by the Intercept, one of the "services" Securus was apparently providing was of the wholesale spying variety. Hacker-obtained data examined by The Intercept includes 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note are the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."
Securus alone provides telecom services and "secure" storage of communications for 2,200 prisons around the United States, processing a million or so calls each day. Securus and other such companies serve a relatively captive and unregulated market, where prisons are paid upwards of $460 million annually in "concession fees" (read: kickbacks) to win exclusive telecom-related prison contracts. Part of Securus' pitch to prisons is that it will offer cutting edge secure storage for these communications, though the Intercept notes this latest hack wasn't the first. 

Prisoners obviously don't expect the full historical right to privacy; indeed Securus makes sure to include a message warning inmates that "this call is from a correctional facility and may be monitored and recorded" at the beginning of each call. Waivers of rights and the monitoring and securing of phone communications was originally pushed as a way to prevent riots, witness tampering and generally secure the prison back in the 90s. But as the Intercept points out, that doesn't make the long-term storage of this data any less problematic, and securing the facility certainly shouldn't include recording secure communications between inmates and their lawyers. A behavior, it should be noted, Securus itself claimed it didn't do:
"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.” But the database provided to The Intercept shows that over 12,000 recordings of inmate-attorney communications, placed to attorneys in Missouri, were collected, stored, and ultimately hacked."
The Intercept's findings are particularly problematic for Securus, since the company is the target of a federal civil rights suit filed in Texas in 2014. That suit, by the Austin Lawyers Guild and a prisoners' advocacy group, alleges that Securus had been recording privileged conversations, and that intrusion into this communications (and the prosecutors' failure to disclose this information during discovery) undermines the legal ability to defend them. This despite Securus contracts explicitly stating that phone calls "to telephone numbers known to belong [to] attorneys are NOT recorded," and that "if any call to an attorney is inadvertently recorded, the recording is destroyed as soon as it is discovered." Or not. 

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