Attorneys Adam Crane and David Johnson sued private prison company CoreCivic and the for-profit phone and video visitation service Securus Technologies in federal court for recording and storing confidential communications between pretrial detainees and their attorneys.
Crane and Johnson allege [PDF] CoreCivic and Securus made recorded communications available to law enforcement agencies, including prosecutors, which not only violates the bedrock American legal principle of attorney-client privilege, but also violates the Sixth Amendment right to a fair trial.
Both attorneys represent federal pretrial detainees in the custody of the United States Marshal Service and held at the CoreCivic prison in Leavenworth, Kansas.
The lawsuit alleges CoreCivic (formerly known as Corrections Corporation of America) and Securus swept up and stored privileged communications, which took place over the phone, by video conference, and in-person.
Attorneys routinely communicate with their clients in person and by phone to discuss legal strategies and other critical information pertaining to their defense. If prosecutors were able to listen to these conversations, they may have crafted their strategy in ways to unfairly preempt what defense attorneys planned to argue.
Securus allegedly stored recordings of conversations between detainees and their defense attorneys on a computer server, “to which it gave local law enforcement agencies direct online access. They were able to review any recorded call at their leisure.”
The complaint further claims law enforcement agencies “accessed recordings of confidential attorney-client communications from CCA-Leavenworth,” and the government turned over recorded attorney-client calls to defense attorneys during the discovery phase of their trial.
Securus argues prisoners know they are being recorded because a voice comes on the line to inform them of this fact when they are on the phone. By going ahead with the call (even though the incarcerated have no other approved way to communicate with the outside world), Securus argues consent is granted.
However, even if this is true, the attorneys maintain it does not resolve the high risk of infringing upon Sixth Amendment rights because this interferes with privileged communications between a prisoner and their defense attorney.
Securus knows about these collection and storage issues and their questions of constitutionality from lawsuits brought against the company in other states, like Texas and California.
The company also knows about them because in 2015, the Intercept reported on 70 million leaked prison phone records disclosed to the media organization by an anonymous hacker. The cache included metadata and actual audio recordings of communications between prisoners and their attorneys, which could be accessed through a link.
Defense attorneys in Missouri told the Intercept the state’s Department of Correction does not let them provide phone numbers for inclusion on a do-not-record list.
Attorneys in Austin, Texas, said they learned their phone calls were recorded and provided to the prosecution because they were turning up in discovery. They said information gleaned from those recordings was used to tactical advantage of the prosecution.
In 2016, the Intercept published another report on the trove, finding at least 43,000 call records between attorneys and clients, and 33,000 calls to detainees placed to the Missouri State Public Defenders office, a low-end estimate according to the Intercept’s methods. The data was stored for years, regardless of the outcome of the case or the impact on facility safety.
The Missouri Attorney General claimed it did not listen to or access the recordings.
The leak included records of calls from prison to the U.S. attorney’s office in Missouri, which presented the risk of identities of confidential informants and cooperating witnesses becoming exposed and endangered.
In August 2016, all detention facilities in Kansas and Missouri were ordered by the courts to cease and desist audio and visual recordings of privileged meetings between attorneys and their clients.
While Securus touts its information security technology as part of its effort to acquire new prison contracts, the Intercept maintained the leaks came from a hack in Missouri, which is where Crane and Johnson’s lawsuit originates. (It is unknown if the attorneys’ communications were among the hacked records.)
Securus and CoreCivic argue their practice of blanket surveillance is all by the books and contains adequate safeguards in the face of numerous allegations and reports that they record privileged communications accessible to law enforcement, which could jeopardize a prisoner’s right to fair trial.
Unmistakably, there exists a financial incentive for the companies to make the recordings and maintain a facade of legality and security. Their entire business relies on the confidence of law enforcement agencies, which in turn fill their prison beds, pay their invoices, and have the power to take legal action against them if faced with substantial public pressure over complaints of corruption and misconduct.