January 20, 2016 | By Dave Maass and Aaron Mackey

The FCC Should Ensure Digital Rights for Prisoners and Their Families

Through the lens of someone with little direct experience with prisons and jails, corrections systems in the United States may look like they're improving how prisoners communicate with the outside world through new technologies, such as inmate email, video visitation, and media tablets.

But from the perspective of inmates and their friends and family, these new technologies often do not result in stronger lines of communication at all. Some prison officials use the technology to justify restricting in-person visitation or traditional mail. Many communications services are offered under unfair terms and with artificially inflated fees that are only possible because the services operate monopolies at each prison or jail. In addition, users of these systems face potential privacy violations, as illustrated by the recent Securus data breach of more than 70-million prisoner phone calls.

EFF filed comments this week with the Federal Communications Commission (FCC), which is considering new regulations for telecommunications technology in corrections facilities, also known as inmate communication services (ICS). We urge the commission to use its power to ensure that consumers—inmates, their friends, relatives, and legal representatives—benefit from telecommunications services.

EFF made five recommendations to the FCC:

The use of video calling and other communications services in prisons and jails should increase, not reduce, contact between prisoners and their families.

EFF strongly believes that technology can expand opportunities for everyone to communicate, organize, and express themselves. This too should be the case for inmates and their families. As we write in the comments:

When it comes to prisons and jails, however, video and other electronic communications services are all too often being to used to restrict, and in some cases, replace, in-person visits. As the Prison Policy Initiative’s report [.pdf] on video calling in prisons and jails describes, these services are often supplanting face-to-face visits by either replacing visiting hours entirely or requiring prison visitors to use on-site video chat terminals.  Providers of video calling services, jails, and prisons are thus using new technology to create new and substantial barriers between prisoners and their families, flipping the promise of new communications technology on its head. Moreover, PPI’s report on current video calling systems in prisons and jails demonstrates that current video calling services suffer from poor video quality and delay, further demonstrating that the services are not an actual substitute for in-person conversations. 

The FCC must protect the privacy of inmate communications service customers. 

In our comments, EFF agreed with Public Knowledge that the FCC must investigate the leak of more than 70 million phone calls by Securus, one of the largest providers of inmate communication services in the country.  But the FCC shouldn’t stop there. As we write in our comments:

EFF recognizes that prisons, jails, and ICS companies might often have an interest in monitoring and storing the communications of detainees and prisoners for legitimate security purposes. Prisons, jails, and ICS companies, however, have no legitimate need nor the legal authority to store all prisoner communications permanently, and are not categorically exempt from the Fourth Amendment’s guarantee against unreasonable searches.

Specifically, we ask the FCC to limit the collection and storage of call records and contents to only what is demonstrably necessary to meet a correction institutions’ security needs. This should include limits on what a provider may collect as well as a requirement that data be purged when it is no longer needed. The FCC should also bar communications providers from profiting from the collection and storage of customer data. 

A prisoner’s use of certain online services should not, by itself, result in punishment.

Over the last year and a half, EFF has documented how many inmates (most notably in South Carolina) have received extreme sentences for maintaining profiles on social media. Sometimes inmates manage these profiles using contraband phones, but often inmates rely on their friends and family to manage their profiles on their behalves. 

As we write in our comments:

The mere use of online services should not, by itself, be a crime or result in punishment of prisoners. Services such as Facebook enable greater communications between prisoners, their families, and friends, a goal the Commission has explicitly endorsed in this rulemaking. Violations of a website’s terms of service or other agreement should not automatically be elevated into punishment within a facility. Rather, violations of a contract, such as Facebook’s rule against third parties using another’s profile, should ordinarily be dealt with between the service and its users. 

Inmate communication service providers should not abuse their position and subject their customers to onerous contractual terms.

Last year an inmate in Indiana recorded a short video using the prison’s official videogram system and sent it to his sister. After she posted it to Facebook, the prison punished the inmate and cut the sister off from further communication. The prison administrators claimed that they had violated the provider JPay’s intellectual property rights. As EFF discovered, JPay’s agreement included unfair terms that all communications passing through JPay’s system belonged to the company.

As we write in the comments:

If found to be enforceable, this would give the company ownership, for example, of any poems that prisoners wrote for their families and transmitted over a company channel. Although JPay later removed this provision from its Terms of Service, it is yet another example of the inherently imbalanced power dynamic between ICS customers and providers, most of which are prisoners’ sole means of communicating with family by phone or online.

Charges for video calling and other advanced communication services should be cost-based.

When a general consumer is deciding between Internet  service providers, they are likely to choose the company offering the best bang for buck. In a prison context, however, the consumers shelling out the cash (often inmates’ families) have no option but to use the system chosen by the prison or jail. Unfortunately, jails and prisons have often based their contracting decision not on the benefit to the user, but rather perks and profit sharing offered by the companies bidding on the contracts.

As we write in our comments, developments in communication technology should result in lower costs, not higher ones:

Just as it costs almost nothing for a nonprisoner to make a phone call, the cost of using a video calling service such as Apple FaceTime or sending an email are similarly minimal. ICS providers use the same underlying technology and infrastructure that the general public relies on to make video calls or send emails.  Thus, the actual costs of the communications is likely to be low, subject to the initial costs involved in installing video calling terminals and other devices within a facility and ongoing costs of running a network. 

Read EFF’s comments to the FCC on inmate communications services.

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