Access to Technology in the American Carceral State

You can find some of the worst traits of authoritarian governments being applied to incarcerated American citizens, writes Benj Azose. We should fix it.

There are two basic ideas of what a prison should be in the popular imagination. One is rehabilitative: as long as society didn’t send a person away for life, the state is currently holding a future citizen and for the good of everyone, it needs to help the incarcerated person become the best that they can be.

The other is punitive: like sending a child to a corner for being naughty, the point of a prison is to punish the prisoner without much concern for their humanity or how their experience in prison may affect society when they are released.

65% of Republicans and 45% of Americans say that the criminal justice system is “not tough enough on crime”, and Americans have gotten more punitive over time. Since the 1970s, “rehabilitation has taken a back seat to a ‘get tough on crime’ approach that sees punishment as prison's main function,” according to Professor Craig Haney. Now, prison administrators are using technology to act out their worst impulses.

Arguably, the American prison system is one of the world’s most technologically authoritarian societies. Punitive prisons actively work to dehumanize and villainize their occupants while separating them, nominally for safety but actively for punishment, from the rest of society. An ethos that justifies constant monitoring as necessary for safety has allowed the modern prison system to create a pay-as-you-go panopticon, where merely communicating with your loved ones is both expensive and subject to perpetual and frequently misused surveillance.

Every year, the non-profit Freedom House publishes a “Freedom on the Net” report based on how well people’s human rights online are protected or violated around the world by government and nongovernmental actors. They rate each country using 21 questions covering three main areas: Obstacles to Access, Limits on Content, and Violation of User Rights. Loosely using this framework to look at the access to and use of technology in prisons, you can find some of the worst traits of authoritarian governments being applied to incarcerated American citizens.

Obstacles to Access

Prisons and jails in the US are some of the last places that you can find pay-per-minute phone plans, and they are prohibitively expensive. There are jails in California where it costs fully $1 per minute to make a phone call, and the federal government has only managed to cap some calls at $.21 cents per minute. The Federal Communications Commission (FCC) does not have authority over phone calls within a single state, so it can only regulate calls where both parties are in different states.

It’s worth pointing out that the population these fees are assessed on includes some of the poorest people in the country. More than 1 in 3 families with an incarcerated member go into debt trying to pay for prison communication, according to the Ella Baker Center, representing an additional punishment assessed on families who cannot afford it.

Access is severely limited, even to people being held in pre-trial detention who wish to speak to their lawyers. As Katrina vanden Heuvel noted in The Washington Post, “the prohibitive cost of calls from jail can hurt a detainee’s ability to organize their defense — especially when those costs are billed to underfunded public defenders’ offices.” In 2013, the Missouri State Public Defender System filed an FCC comment saying that they pay more than $75,000 a year in calls and actually has to limit the number of collect calls that they receive.

Unlike other communication contracts, both sides -- the phone provider and the prison operator -- have incentives to raise prices, since they’re not the ones paying the bills. The two major prison phone providers -- Securus and Global Tel*Link -- are owned by private equity firms that seek to maximize profits despite negative social externalities. Sheriff’s departments can earn commissions based on the money spent by incarcerated people, with some earning kickbacks as high as 96% of every dollar spent.

The situation is just as bad for emails and video calls, though the impacts are less well studied. Emails regularly cost $.50 a piece, and sending photos or videos can cost $1 each. Video calls, which are often rolled out in prisons at the same time that they roll back in-person visitation, are $.50 - $1 per minute. Note- many prisons froze in-person visits due to the COVID-19 pandemic.

There are also physical and technical limitations. Normally, people stuck in bad phone contracts can find another phone provider, but in prisons, you are stuck with the one you have. In fact, the facility you are in determines your sole provider for accessing the outside world, including whether you have access to phone calls, emails or video calls, and the provider controls what content is available to you. The Guardian reports that the tablets in the San Francisco County jail “connect to a secure private network, are monitored remotely 24/7 and can be immediately shut down at the request of prison officials.”

When facilities change vendors, you can lose all of your content with no way to access it. Artemus Blankenship, an incarcerated journalist, reports in the Prison Journalism Project that his facility is changing tablet providers, and all of the content (both purchased content and letters and photos from home) will be sent to their address on a thumb drive, but inaccessible to the people who need it most. When the Florida DOC changed over to a new provider, the Florida Times-Union estimated that people lost access to $11.3 million worth of MP3 media files.

In addition to being expensive, the quality of service is often terrible. For video calls, users experience substantial downtime-- in one study, about 30% of participants had tech issues that caused their visits to be shortened.

Limits on Content

Prisons have had aggressive content moderation for hundreds of years in the form of banning books. According to the Equal Justice Initiative, “[t]here is arguably no government institution that censors reading material more broadly and arbitrarily than American jails and prisons.” While it’s easy to laugh at the most irrational of these (the New York Times reported that a book of maps of the moon was banned for “present[ing] risks of escape”), there is no clear reason for the bans and no clear explanation of why books are or aren’t approved.

The sinister new bent is that as new technologies come to prisons, authorities deprecate and remove older, cheaper ones and replace them with new, expensive and monitorable ones. In a recent article in Protean Magazine, Alex Skopic lays out the various ways that prisons are reducing access to books under the pretense of reducing contraband: eliminating donations, banning used books, requiring approved vendors, removing prison libraries, and more.

As these free and low-cost options go away, poor technological options replace them. The West Virginia Department of Corrections entered a tablet contract where people in prison pay per minute to read free eBooks from Project Gutenberg. Not only does it cost money, but the majority of books requested from groups like the Appalachian Prison Book Project are not available and would cost per minute to read. Slate reports on an another example in Pennsylvania, where the state prison banned book donations and reading requires buying a $147 tablet as well as each book which are priced between $2.99 and $24.99.

People in prisons and jails have no access to the open web. This is an issue for their re-entry, where so much of modern life is carried out digitally. In MIT Technology Review, Joe Garcia writes “Even though the internet is a given in the rest of society, access in prison is so restricted it’s almost nonexistent.”

Communicating with people outside and then having them post that material to social media can be against the policy of correctional facilities. The Electronic Frontier Foundation (EFF) reported on more than 400 cases of prisoners being sent to solitary confinement for violating a South Carolina Department of Corrections rule against “Creating and/or Assisting With A Social Networking Site”. “In 16 cases, inmates were sentenced to more than a decade in what’s called disciplinary detention, with at least one inmate receiving more than 37 years in isolation.”

Violation of User Rights

There is no expectation of privacy in communication with people outside of prisons or jails, which severely limits freedom of expression. In many prisons, phone calls in and out of the facility are recorded, and what you say can and will be used against you in a court of law. This means that pre-trial detainees can only talk about their cases with a lawyer; any conversation with a family member or friend is fair game for surveillance.

Facilities have been abusing the recording system to look for unrelated content, according to Thomson Reuters. “In Calhoun County, Alabama, prison authorities used [keyword monitoring of jail phone calls] to identify phone calls in which prisoners vouched for the cleanliness of the facility, looking for potential ammunition to fight lawsuits.”

Also, sometimes attorney-client privileged calls are illegally recorded, severely hampering due process rights of incarcerated people. The Intercept, reporting on the hack of cloud storage at Securus, found a database of 70 million recorded calls included at least 14,000 calls with attorneys. David Fathi, the head of the ACLU’s National Prison Project, called this possibly the “most massive breach of the attorney-client privilege in modern U.S. history”. The company quietly settled the case in June of 2020 and by August of 2020 was caught doing it again.

The full metadata of calls coming into and out of prison opens up the support network of incarcerated people to further surveillance. Securus was sued for improperly collecting and storing location data for people receiving calls from prison. The company joined call metadata to a location dataset used for marketing and sold this to prisons as an additional security feature. Organizations are supposed to have a valid warrant to access this information, but Sen. Ron Wyden (D-OR) said that the oversight was “the legal equivalent of a pinky promise”.

Recent patents suggest even more egregious future plans, like the tracking of all purchases by people found in outgoing phone records. To demonstrate the promise of such a system, Securus included an example in its patent: an incarcerated person calls their girlfriend before escaping, but the girlfriend has bought skiing equipment and made an AirBnB reservation for a remote area in the Colorado mountains, so investigators know right where to find the couple. “If implemented, the patent would be a massive civil liberties violation and a dangerous expansion in the powers of prison administrators to surveil people not under their carceral control,” note EFF’s Cooper Quintin and Beryl Lipton.

Why We Should Fix It

Liberalizing access to technology and making communications safe and secure to use won’t fix the broken problems of our prison system, but it should help outcomes for the people inside and their support networks outside. In Professor Joan Petersilia’s When Prisoners Come Home, she says “Every known study that has been able to directly examine the relationship between a prisoner’s legitimate community ties and recidivism has found that feelings of being welcome at home and the strength of interpersonal ties outside prison help predict post-prison adjustment.” (emphasis in original)

The most common objection to more liberal policies for the incarcerated to have access to communications technology is, “what if the prison population uses this newfound connectivity to continue to commit crimes or to harm people on the outside?” But evidence suggests that what people want is to simply talk to their family and friends, or indeed to bring to light harsh living conditions in prisons. We can see this from stories of contraband cell phones in prisons. The New York Times recently reported that “Inmates have used illegal cellphones to capture and transmit images — inmates fighting, broken toilets, holes in prison walls, dangling wires and dead rodents caught in sticky traps”.

If incarcerated people are engaging in criminal activity in the outside world, it is may be a sign of other problems. A recent story on a prison extortion scheme facilitated by contraband cellphones in the New York Times noted it took place in a prison system at 160% capacity with less than half of the required staffing. The victim in this story was killed in a “closely monitored cellbock” and it took 2 years to charge them. The phone is not the problem here.

Other objections are also often hyperbolically punitive. Bringing phones to prisons “will undermin[e] the very notion of incarceration,” as one prison official put it. Do we believe the incarcerated are somehow released from their bonds if they are able to freely talk to their four-year-old or their aging mother?

And regardless of the above, it’s critical that due process rights are respected and attorney-client confidentiality breaches like this are not possible. Communication methods that are secure and safe to use are crucial to democracy.

How We Can Fix It

Where is the federal government in all this? As mentioned above, the FCC has a limited amount of authority over phone lines, but in 2017 was dealt a major blow to its ability to deal with the majority of the problem. Global Tel*Link, one of the two major prison phone providers, sued the FCC over an order regulating prison phone rates. The DC Circuit Court ruling had two important consequences: the FCC only has authority to regulate phone calls between states, not phone calls that happen entirely in a single state. And, the FCC has no authority over video calls, so it’s not even allowed to collect data on how expensive video calling is.

There is legislation in Congress right now to address these issues. The current Congress should support H.R. 2489, known as The Martha Wright Prison Phone Justice Act, sponsored by Rep. Bobby Rush (D-GA); and S. 1541 the Senate version, sponsored by Sen. Tammy Duckworth (D-IL). The House bill eliminates site commissions and puts in an interim cap of 4 cents per minute. The Senate bill extends the FCC’s authority to cover “any audio or video communications service provided at a correctional institution, regardless of technology used”.

Until such legislation is passed, the authority to make reforms lies with states, counties, and cities all across the country. Some cities are taking a stand and starting to fix things. Right now, prison phone calls are free in New York, San Diego, and San Francisco. Los Angeles is doing a study on the subject, and the state of Connecticut has voted to make calls free. Individual states have outlawed site commissions, dramatically lowering cost of service.

The problems of prison communication are policy problems-- not technological ones. In a 1978 talk titled The Decline of the Rehabilitative Ideal in American Criminal Justice, Frank Allen, a law professor and scholar of the criminal justice system, said “Maybe we don't know very much about how to make prisoners better - I think we don't. But the whole history of the prison indicates that we know a great deal about how to make them worse.” We can never fully fix the system until we see people in prisons as people who deserve the right to communicate, and cease practices that limit them from doing so.

While reforms to prison communications may be necessary in the short term, in the long term it may be time for a more radical shift. In the 1790s, a group in Pennsylvania including Benjamin Rush (a signer of the Declaration of Independence) founded the Philadelphia Society for Alleviating the Miseries of Public Prisons. Due to the inhumane conditions of the jail there and corruption in jailers’ compensation, the society proposed dramatic changes in the way that justice is meted out, including the world’s first penitentiary. With the United States having 4 percent of the world’s population and 22 percent of its prison population, it’s time to think consciously about who we are incarcerating and why.