The report notes that Securus calls begin with an automated message that the conversation may be monitored or recorded-passive consent to which could be construed as a waiver of privilege-but also that the company’s government contracts typically pledge not to record calls to lawyers.
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To be clear, the fact that the calls were recorded is not the scandal.
A hack of jail phone service provider Securus has revealed millions of illegally recorded calls between attorneys and inmates.
Securus says on its website that it does not record calls between inmates and their attorneys.
While recording phone calls is a routine practice, there is a carve-out for such calls to protect attorney-client privilege. This, The Intercept says, is “a strong indication that at least a few of the recordings are likely confidential and privileged legal communications-calls that never should have been recorded in the first place”.
The Intercept does not provide any details on its source, apart from that they are a hacker who hacked access to the records (presumably as opposed to an internal whistleblower at Securus).
“This may be the most massive breach of the attorney-client privilege in modern USA history, and that’s certainly something to be concerned about”, said David Fathi, director of the ACLU’s National Prison Project was quoted as saying.
However, the Sixth Amendment grants inmates the right to speak freely and honestly with their attorneys, and so calls between them aren’t supposed to be recorded.
Securus was also hacked in 2014, Smith and Lee reported. In 2014, somebody broke into the system to access calls made by a gentleman by the name of Aaron Hernandez.
In fact, the actual number of calls with attorneys may well be even higher, because the 14,000 number was reached by crosschecking the hacked data with the known landline numbers of lawyers only – not accounting for mobile phones.
The breach highlights two major issues, the first being that Securus’ systems aren’t as well protected as they claim; the second is that the current system for preventing attorneys’ calls from being recorded isn’t watertight. “Instead, at this preliminary stage, evidence suggests that an individual or individuals with authorised access to a limited set of records may have used that access to inappropriately share those records”. And those most disproportionately impacted are often clients who are the most disadvantaged: those who can’t afford bail and have to stay in jail awaiting prosecution.
If privacy groups sue, and they will surely do, the case can be a cornerstone in U.S. law, and help launch a restructuring of the entire prison phone call logging system. “It’s like being at the Superbowl and one team gets to put a microphone in the huddle of another team”.
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They also uncovered calls between prisoners and prosecutors’ offices. Why would that matter?
