A federal lawsuit filed in Austin over recorded phone calls between inmates and their lawyers brings to light what attorneys say are flaws plaguing telecommunication services at jails and prisons in Texas and across the country.
Discussions between defendants and their counsel are considered sacred in the legal system. The Constitution protects them. Investigators cannot use them to glean information, and prosecutors are banned from bringing them up in court. But as phone and video technology have evolved at correctional departments over the past two decades, attorneys say their privileged meetings with their clients have become harder to keep confidential.
Before automated phone services, deputies and correctional officers could turn off the tape when an inmate called an attorney. But newer digital systems instantly capture every inmate call, and interviews with more than a dozen defense lawyers, technology experts and law enforcement officials nationwide reveal that many counties do not take enough measures to ensure that attorney calls are kept off the record.
Breaches can be more widespread than reported, software engineers and tech architects said, and sheriff’s and correctional agencies often lack procedures to protect the sensitive data.
In Austin, defense lawyers and inmates have sued a Dallas telephone contractor and the offices of the sheriff, district attorney and county attorney in Travis County, alleging that officials are allowing prosecutors access to illegally taped conversations between prisoners and their counsel.
Attorneys for Securus Technologies Inc. and all three law enforcement agencies declined to comment. But in past interviews, District Attorney Rosemary Lehmberg and County Attorney David Escamilla have said that although some privileged phone calls might have been inadvertently captured, prosecutors did not listen to them.
Defense lawyers say they hope the class-action lawsuit will bring more transparency to the jail call system.
“Our clients should be able to tell us what they did and did not do without fear of someone listening,” said Ben Florey, who is among the Austin lawyers who say their calls have been unlawfully recorded. “Only if we know the truth can we properly defend our clients.”
All calls recorded?
Administrators at jails and prisons across the state say they must record inmate calls to ensure public safety and monitor for illicit behavior, such as inmates attempting to escape or coerce witnesses. With more facilities now also looking to offer Skype-like video visitation, the prison phone market has become a $1.2 billion industry dominated by Global Tel Link in Atlanta and Securus in Dallas.
Texas law enforcement officials said telecommunication companies often install phone and video equipment for counties at little or no cost. Some have “do not record” settings to ensure confidentiality for defense teams and pledge to destroy conversations when a privileged call is captured due to a glitch or user error.
But software engineers and tech architects said those privacy settings can be misleading because they do not always mean that calls are not recorded, but rather that they are merely rerouted to encrypted storage.
Such data can be easy to hack or access through backdoor channels, whether by law enforcement or private citizens with a few technical skills, tech experts said. It also can be difficult to fully erase, they said, and too expensive for counties to implement stricter security measures.
One of the more important questions in the case should be whether the data is encrypted or deleted, said Chris Soghoian, principal technologist with the ACLU.
“It’s like the difference between lighting something on fire and putting it in a safe,” he said. “If you put it in a safe and decide later you want it, all you need is a combination, whereas if you burn that piece of paper, it is not coming back.”
Multiple calls and emails to Global Tel Link went unanswered over the past two weeks. But smaller providers said the onus falls on law enforcement agencies and information technology departments — typically under the sheriff — to make sure calls between defense lawyers and inmates are protected.
Many agencies compile a database of attorney phone numbers that trigger private call sessions. But the departments, which often rely on bar associations for phone numbers, must update the lists to keep them current and complete. That can leave room for lapses, defense lawyers said, such as when attorneys represent clients in jurisdictions where they do not tend to practice.
And not all departments strive to keep attorney calls private.
Williamson County deputies said defense lawyers are alerted that all inmate calls are recorded and know to “respond accordingly,” meaning not to discuss privileged information over the phone.
Deputies in Houston said the Harris County sheriff’s office has only recently begun compiling a do-not-record database of attorney phone numbers — in response to the lawsuit filed in Austin.
How often officers and prosecutors get tapes of privileged attorney-client conversations is difficult to gauge. Breaches often are uncovered during preparation for trial, when the state must share evidence with defense counsel. But defense lawyers and software engineers said they probably occur more often than they come to light.
Sheriff’s and county officials in Williamson, Hays and Harris — all of which have contracts with Securus — and officials in Dallas and Bexar counties, which use Unisys Corp. and ICSolutions, respectively, said they had not received any complaints from defense attorneys about their calls being improperly recorded.
Yet attorneys in at least two of those counties — Harris and Dallas — said they were aware of instances in which their conversations or those of colleagues had been inadvertently captured.
The concerns extend beyond Texas. Incidents have been reported in Massachusetts and various cities in California, including San Diego, in which sheriff’s officials said they had to shut off their phone system for a month in 2008 to investigate the cause of the problem.
That same year, two inmates in Florida settled a class-action lawsuit after their protected calls were accidentally uploaded during a testing of a new phone system in 2006. Officials with the Alaska Corrections Department, which contracts with Securus, told the American-Statesman that 35 calls had been recorded this year because staffers did not have a set process for updating attorney phone numbers to a do-not-record database.
In the lawsuit filed in U.S. District Court in Austin, the Austin Lawyers Guild, the Prison Justice League and several independent defense attorneys are asking that a federal judge order authorities to stop what they call “unconstitutional eavesdropping.”
An amended complaint filed Monday says officials began recording attorney calls as early as 2012, insisting they would not monitor them without a court order. Securus, it states, captures every call to inmates in jail, giving police and prosecutors 24-hour online access to the recordings.
Some prosecutors are using the taped conversations to their tactical advantage as they prepare their cases, without admitting they obtained or listened to them, the suit says. Defense lawyers hope the lawsuit will bring into the discussions Securus, which they say has also been accused of recording confidential calls in Nevada and has skirted questions and concerns about its technology.
Court records show the company and all three offices being sued are seeking to have the case dismissed, saying the plaintiffs have not shown that the recorded calls hurt their clients.
Austin lawyer George Lobb, among the independent lawyers who filed the complaint, and Brian McGiverin, an attorney with the Texas Civil Rights Project, which is representing the plaintiffs, said the defendants are trying to duck liability by filing motions based on technicalities. Defense lawyers, they said, are requesting preventive relief and can prove there is a substantial risk the calls could cause future harm.
“It is a unique case, and the ramifications could make waves nationwide,” McGiverin said.
For now, Houston attorney Neal Davis III is among defense lawyers choosing to discuss cases only in person. During a capital murder trial in 2009, Davis said, the district attorney in Galveston alerted him that a call had been recorded between him and a capital murder defendant.
Davis was told that members of the prosecution team stopped listening as soon they recognized his voice and said the call happened to be inconsequential to his defense strategy. But Galveston sheriff’s officials did not implement a policy to address improper recording until 2012, when other lawyers reported having conversations with their clients taped.
From 2011 to 2013, there had been talk of reform, at least by the board of directors of the Harris County Criminal Lawyers Association. A remedy has not been found, defense lawyers said. “As far as the situation improving, I don’t think it has improved at all,” Davis said.
GETTING THE STORY
American-Statesman reporter Jazmine Ulloa provides in-depth coverage from the state and federal courthouses in Austin. For this story, she analyzed about 100 court records and reached out to more than two dozen sources, including technology experts, county and law enforcement officials and defense lawyers across Texas and in California and Alaska.