Council looks to ban recording of detainee phone calls
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The City Council on Thursday introduced a bill that would ban the recording of detainee phone calls by the Department of Correction and Securus Technologies, the company contracted to run the DOC’s telecommunications network. AP file photo by Ted Shaffrey
By Jacob Kaye
The City Council on Thursday introduced a bill that they say would stop the city’s Department of Correction from recording calls made by detainees inside Rikers Island without first getting a warrant.
Led by City Councilmember Gale Brewer, the legislative body this week introduced the bill that would ban the recording of phone calls and other digital communications made by detainees without permission from a judge.
The legislation comes several months after a lawsuit was brought by a number of public defense groups claiming that the DOC commits illegal mass surveillance of its incarcerated population by universally recording phone calls made from behind bars. The lawsuit claimed that the DOC had not only systematically recorded calls between detainees and their loved ones or acquaintances, but also confidential conversations between detainees and their attorneys.
“The DOC’s surveillance system exists with no oversight and largely without the knowledge — let alone the consent — of those being surveilled, including people who are not incarcerated,” said Brewer, who serves as the chair of the Committee on Oversight and Investigations. “If a person can afford bail, then they and their children, parents, friends, and other loved ones are not subjected to warrantless surveillance.”
The bill, which has been in the works for months, is co-sponsored by Queens City Councilmmeber Shekar Krishnan and Councilmembers Carlina Rivera, Yusef Salaam, Diana Ayala and Sandy Nurse, who chairs the Committee on Criminal Justice.
“Conversations between people in custody and their friends and loved ones should be private,” Nurse said in a statement.
“The Department of Correction’s current practice violates the right to privacy of New Yorkers who are connected to people in custody,” she added. “The city should be protecting the rights of New Yorkers, not allowing agencies to undermine them.”
In addition to banning the recording of phone calls made by detainees without the DOC first obtaining a warrant, the bill would also force the destruction of data that has already been collected by the DOC and Securus Technologies, which is contracted to run the DOC’s communications system.
The bill would additionally create a private right of action for anyone whose communications are unlawfully surveilled or whose personal information was unlawfully collected, retained or disclosed.
Currently, Securus Technologies, which alongside telecommunications company ViaPath accounts for around 80 percent of the prison and jail communications market, uploads phone recordings and other data they collect to a database used by law enforcement agencies across the country, according to the lawmakers. The recordings are deleted after 18 months, unless a prosecutor or law enforcement entity asks that a call be preserved for an active investigation.
But the company’s recordings have long been the subject of civil rights abuse allegations.
In April, the Bronx Defenders, Brooklyn Defender Services, New York County Defender Services and Cleary Gottlieb Steen & Hamilton LLP sued the DOC for what they said was illegal surveillance conducted by Securus on behalf of the city agency.
“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 read. “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.”
Though a message plays before the start of every call made by an incarcerated person warning that the call is being recorded, the telecommunications company is not supposed to record calls made to attorneys, who are supposed to have their numbers included on a “Do Not Record” list, THE CITY reported.
However, in 2021, the Bronx Defenders raised red flags about some of their calls with clients being recorded and turned over to prosecutors, according to a DOI review of Securus’ practices.
Though Securus, who was not named in the lawsuit, created new reforms to remedy the fact that they were recording attorney-client calls, the public defense firms said the DOI’s review of the company didn’t go far enough.
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.
In addition to the lawsuit, the councilmembers said that a separate incident involving Securus’ alleged improper surveillance practices motivated them to draft the bill introduced Thursday.
Last year, former DOC Commissioner Louis Molina was seeking a policy change that would allow the DOC to open all physical mail sent to detainees on Rikers in an effort to cut back on the alleged practice of smuggling of fentanyl or other contraband through the mail.
The mail, after being reviewed by Securus, would be scanned and sent to the detainees via a tablet. Molina told the Board of Correction, the DOC’s civilian oversight body, that the idea for the policy change came from Securus.
“Everyone has the right to privacy,” said Ilona Coleman, the legal director of the Criminal Defense Practice at the Bronx Defenders. “It is especially essential for those who are incarcerated to be able to have private conversations with their loved ones, their attorneys, and their family members.”
“The Department of Corrections’ and its partners' systemic and deliberate surveillance of the personal phone calls of incarcerated people violate both the law and our values of decency and privacy,” Coleman added.
The DOC has long defended the recording of phone calls made by detainees, claiming the practice is needed as a means of investigating the flow of weapons and drugs through the jails.
“Monitoring of phone calls is essential for the safety of all staff and every person in custody,” a DOC spokesperson told the Eagle on Thursday. “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.”
“It is a critically important tool for public safety in our city,” the spokesperson added. “The department will review the proposed legislation.”
