San Mateo jails are spying on attorney messages, a new lawsuit says

Three lawyers allege that their privileged communications with their clients were monitored and passed on to prosecutors.

A cellblock at Deuel Vocational Institution in Tracy. It serves primarly as a reception center for new inmates of the California Department of Corrections prison system, and has a reputation for inmate violence. Inmates return to their celss after showering in a cellblock at Deuel Vocational Institution in Tracy. Built in 1953, the rpison currently houses more than 3,700 convicts in a facility designed for about 1,700 inmates. It serves primarly as a reception center for new inmates of the California Department of Corrections prison system, and has a reputation for inmate violence. Deuel also has some of the most woefully inadequate prisoner health care facilities in the CDC system. (Photo by Luis Sinco/Los Angeles Times via Getty Images)

“We are talking about violations of constitutional rights,” said Bianca Tylek, executive director of the prison reform nonprofit Worth Rises.

Photo: Luis Sinco/Los Angeles Times via Getty Images

Jails in San Mateo County have allegedly been using prison communication technology to surveil private messages between lawyers and their clients, according to a lawsuit filed against the county and the sheriff’s office earlier this month by three attorneys who say they were spied on.

The complaint alleges that San Mateo County and the sheriff’s office used messaging technology provided by the firm Smart Communications to monitor their conversations with clients, and funnel information to prosecutors, without adequate notice. They argue that the county failed to make available a special attorney version of the platform, which would have protected those conversations. The attorneys argue that violates their First Amendment rights and the right to attorney-client privilege.

Curtis Briggs, one of the plaintiffs in the case, said he first noticed the alleged surveillance when he received discovery documents from prosecutors, which included private communications between his client and the client’s prior lawyer. “I realized that while [the previous lawyer] was preparing for trial, they were monitoring his communications with his client, their strategic discussions. They were printing them out and putting them in the prosecution's file,” Briggs told Protocol.

But Briggs' client wasn't alone, according to the suit. The other plaintiffs in the case, Robert Canny and Matthew Murillo, came to similar conclusions after viewing privileged communications in discovery documents as well, the complaint alleges. In one instance, according to Briggs, police searched the home of his client based on information his client gave his previous lawyer about the location of evidence that could be used to exonerate him. “This is an invasion of the attorney-client privilege, which is one of the most sacred rights,” Briggs said.

Smart Communications didn’t respond to Protocol’s requests for comments on the allegations. In a statement, Eamonn Allen, public information officer for the San Mateo County Sheriff's Office, said the office had not yet been served with a suit, but said the claims in the complaint are "false."

"The email system that the plaintiffs appear to be attacking is not for legal mail. It was intended as an optional service to provide people in custody another opportunity to keep in touch with friends and family," Allen said.

While jails and prisons have been adopting tech to replace in-person visits since long before COVID-19, the pandemic led to an increased reliance on their services. Visitations ceased, and letters, cards and photos became off limits. “Prisons are petri dishes where COVID could so easily spread,” said Bianca Tylek, executive director of the prison reform nonprofit Worth Rises. “There was not enough information, so there was a heightened need for communication,” leading even more detention facilities to turn to commercial prison telecom providers, Tylek told Protocol.

Smart Communications provides a range of services for prisons, from scanning physical mail and then sending it electronically to incarcerated people, to providing kiosks at correctional facilities where incarcerated people can go to make and receive video calls. Founded in 2009, the company now serves “over 100 correctional facilities across more than 20 states,” from Washington to South Carolina. The company previously struck a contract with Pennsylvania’s Department of Corrections in 2018, which was reported to be worth $4 million annually. That contract was described by one legal advocate in the state as “the most harmful policy change in recent times” because of how its mail scanning service deprives people in prison of receiving actual mail.

At issue in the San Mateo County case is the company’s Smart Jail Mail service, which functions like any email service except that users pay 50 cents per email. According to documents obtained by a journalist through a Freedom of Information Act request, San Mateo County and Smart Communications entered into a contract to provide this service as well as tablets, kiosks for video calls and mail scanning technology in May 2020.

The company does offer a version of Smart Jail Mail for attorneys that is supposed to keep communications with clients protected. Its terms of service even warn that “using a personal account for professional activities” is “a reckless violation of attorney-client privilege.” But according to the suit, the county did not implement that service for attorneys.

Instead, the plaintiffs say they received invitations to join the non-attorney version of the service from their clients. They say they were prompted to sign up for it in order to read their clients’ messages, and agreed to the company’s terms of service without realizing their messages would not be private. They argue this puts them “at a distinct disadvantage compared to law enforcement and county prosecutors.”

In a statement, Allen of the Sheriff's Office said, "That email system clearly and specifically tells all persons in custody who use it that it is not for communicating with attorneys. Further, all others who use it are clearly informed that emails can be monitored and not private."

Incarcerated people have always had their non-legal calls monitored and mail opened and inspected to prevent inflows of contraband. But prison telecom services provide “new tools for heightened surveillance,” by prison authorities and the companies that hold that information, Tylek told Protocol. “They can layer on top of that text tools that allow for the system to actually read and flag words or read mail faster and more accurately than a human would just parsing your mail,” she added.

The rise of digital communication technology in prisons has been the subject of criticism for years. Prison reformers have raised alarms about the financial drain that paying for phone and video visits have on families of incarcerated people. Others have pointed out that glitchy systems often prevent incarcerated people from communicating with loved ones at all, when prisons move to virtual visits only. Even photos that are scanned and sent to incarcerated people sometimes get distorted in the process. “If it's a photograph, oftentimes they [are] not dealt with in a way that contrast and color matters, so details disappear so much that you can't even tell who is in the picture,” Tylek said. After 60 days, according to Smart Communications’ terms of use, the original pieces of mail and photos are destroyed.

But the alleged surveillance of attorney-client communications is an emerging issue. Last year, reports surfaced that Securus, one of the industry’s leading phone system providers, had recorded nearly 2,300 calls between attorneys and their clients in two New York jails.

In addition to concerns about their digital messages being screened, the plaintiffs in the case are also asking the court to stop San Mateo County from implementing a new policy in which legal letters would be scanned by Smart Communications, with only electronic copies sent to the incarcerated individual.

They argue in the complaint that legal representation cannot meaningfully take place “unless the lawyer and client can freely communicate.” They are also asking the court to compel the county to implement the attorney version of Smart Jail Mail or provide adequate warning to users of the mail service, clearly stating that their communications are subject to monitoring.

For prison reform advocates like Tylek, the harm that surveilling attorney-client communication does cannot be understated. “We are talking about violations of constitutional rights,” Tylek said. “Any erosion of one right is the erosion of all of our rights.”

This story has been updated to include comments from the San Mateo County Sheriff's Office.

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