DOC sued for alleged ‘mass surveillance’ practices
/
The Department of Correction was sued this week for its alleged practice of mass surveillance, which the suit claims was carried out by recording all phone calls made by detainees being held at Rikers Island and elsewhere. AP file photo by Seth Wenig
By Jacob Kaye
The city’s Department of Correction unlawfully recorded all calls made and received by detainees in the city’s custody, a new class action lawsuit alleges.
The lawsuit, which was brought by The Bronx Defenders, Brooklyn Defender Services, New York County Defender Services and Cleary Gottlieb Steen & Hamilton LLP on Monday evening, claims that the DOC is committing illegal mass surveillance of its incarcerated population by universally recording phone calls made from behind bars.
The lawsuit claims that the DOC has not only systematically recorded calls between detainees and their loved ones or acquaintances, but also confidential conversations between detainees and their attorneys. In some cases, those conversations have been turned over to law enforcement and prosecutors, the lawsuit alleges.
The DOC’s recording and monitoring of “nearly every call made by people in custody” has amounted to a number of constitutional violations, according to the class action suit.
“DOC’s surveillance subjects incarcerated people, their family members, and friends to increased government monitoring, data collection, and scrutiny in violation of their constitutional and privacy rights under federal and state law,” the lawsuit reads. “DOC’s history of downplaying and failing to correct the well-documented breaches in the past while steadily increasing its surveillance capabilities makes clear that DOC will not fix the problems in its unlawful surveillance system without judicial intervention.”
Ilona Coleman, the director of The Bronx Defenders’ Criminal Defense Practice Legal Department, said in a statement that detainees, like every New Yorker, have “the right to privacy, especially when speaking with their attorney.”
“Recording conversations between individuals awaiting trial and their legal counsel is not only immoral, but unlawful,” Coleman said. “Attorney-client privilege was codified to ensure open communication between attorneys and their clients.”
“When DOC records and then disseminates these privileged calls, they contravene the law and, in the process, undermine the trust we have worked so hard to build with those we represent,” Coleman added. “DOC has blatantly disregarded the basic principles of our legal system.”
The public defenders also say that beyond the alleged damage done to attorney-client relationships caused by the recording of conversations, the practice also has a disproportionate negative impact on communities in New York that have historically been surveilled.
“This mass surveillance system sweeps up not just those who are incarcerated in Rikers Island, but entire communities who yearn to stay connected with their loved ones on the inside – small children, teenagers, grandparents, spouses, cousins, friends,” said Rebecca Phipps, a special litigation attorney at New York County Defender Services.
“The result is that certain communities of New York City, notably the Black and brown communities who have historically borne the brunt of NYC's discriminatory policing and prosecution, and the low-income communities who cannot afford the bail that would allow their loved ones to fight their cases from home, are surveilled in these intimate ways,” Phipps added. “The rest of NYC's communities are not.”
Frank Dwyer, the top spokesperson for the DOC, defended the troubled agency’s practice of recording calls.
He said the practice was needed as a means of investigating the flow of weapons and drugs through jails like Rikers Island.
“Monitoring of phone calls is essential for the safety of all staff and every person in custody,” Dwyer said in a statement. “This lawful practice is used throughout New York State, prevents contraband – including weapons and drugs like fentanyl – from entering facilities, and is part of the department’s robust efforts to prevent violence inside of city jails and far beyond the walls of Rikers Island.”
The spokesperson also defended the legality of the practice, claiming that messages played to those on calls warn of the potential of recording and that all recordings – except those used for investigatory purposes – are deleted after 18 months.
“It is a critically important tool for public safety in our city,” Dwyer added.
According to the lawsuit, public defenders first complained that their privileged phone calls with clients were being recorded to the DOC in 2018.
In 2021, the agency launched a partial review into the practice, however, the lawsuit claims that the review excluded instances where calls were made to private attorneys or public defenders without explanation.
Though not named as a defendant in the lawsuit, Securus Technologies is contracted to run the DOC’s phone and communications systems for detainees. The firm has run into a number of controversies regarding the recording of calls, including in New York City. Securus and ViaPath, a separate telecommunications firm, account for around 80 percent of the country’s prison telecom industry, according to recent reporting by The Appeal.
“In the guise of a phone service system, the Department of Correction has constructed a full-scale domestic spying program with the help of Securus,” Elizabeth Daniel Vasquez, the director of Brooklyn Defenders’ Science and Surveillance Project, said in a statement.
“Collecting, storing, and sharing deeply personal, biometric, and financial information from New Yorkers, DOC and Securus unlawfully expose countless people to government surveillance on the sole basis of their being detained pretrial or wanting to speak with a loved one who is in DOC custody,” Vasquez added.
The suit calls for a judge to order the DOC to return to a policy that would require warrants to be served before recordings of conversations could be turned over to law enforcement.
It also calls for the city’s contract with Securus to be severed and for a monitor to be appointed to oversee the new communication system, whoever may run it.
