Hacked Contents of Millions of Prisoner Phone Calls Leaked to The Intercept (Updated: Securus Responds)

Likely violations of attorney-client privilege

Credit: abardwell / photo on flickr

An anonymous hacker has sent the journalists at The Intercept records of 70 million phone calls from prisoners in 37 states, some complete with links to actual recordings of the calls.

To be clear, the fact that the calls were recorded is not the scandal. Prisoner calls have been recorded (and both parties are warned) for some time. The surprise is that these calls are apparently stored for unknown amounts of time, that they include potentially privileged conversations with defense attorneys, and that apparently outside parties can hack into them and hear the conversations. Intercept journalists Jordan Smith and Micah Lee write:

Particularly notable within the vast trove of phone records are what appear to be at least 14,000 recorded conversations between inmates and attorneys, a strong indication that at least some of the recordings are likely confidential and privileged legal communications — calls that never should have been recorded in the first place. The recording of legally protected attorney-client communications — and the storage of those recordings — potentially offends constitutional protections, including the right to effective assistance of counsel and of access to the courts.

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that's certainly something to be concerned about," said David Fathi, director of the ACLU's National Prison Project. "A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."

The Intercept was actually able to follow the links provided and listen to the recordings themselves, conversations between prisoners and relatives talking about all sorts of things. The Intercept was also provided evidence that this wasn't the first time this company, Securus, was hacked. In 2014, somebody broke into the system to access calls made by a gentleman by the name of Aaron Hernandez.

The Intercept notes that Securus promises states that calls will be monitored and recorded unless they're privileged calls, like those to defense attorneys. Yet thousands of calls between inmates and attorneys were recorded. And if you think those recordings aren't being used, well:

The data provided to The Intercept also includes at least 27 recordings of calls to attorneys in Austin, Texas, made between December 2011 and October 2013 — a fact that is particularly compelling in light of a federal civil rights suit filed there in 2014 against Securus, which provides phone service to the county's jails. At the heart of the lawsuit is the allegation that calls to known attorneys have been — and continue to be — recorded. The company's contract specifically provides that calls "to telephone numbers known to belong [to] attorneys are NOT recorded" and that "if any call to an attorney is inadvertently recorded, the recording is destroyed as soon as it is discovered."

The lawsuit was brought by the Austin Lawyers Guild, four named attorneys, and a prisoner advocacy group, and alleges that, despite official assurances to the contrary, privileged communications between lawyers and clients housed in the county jails have been taped, stored, "procured," and listened to by prosecutors. The plaintiffs say that while some prosecutors have disclosed copies of recordings to defense attorneys as part of the regular evidential discovery process, other prosecutors have not, choosing instead to use their knowledge of what is in individual recordings to their "tactical advantage" in the courtroom "without admitting they obtained or listened to the recordings." (None of the recordings provided to The Intercept appear to be connected to any of the Austin attorneys named in the suit.)

The Austin attorneys argue that the intrusion into their communications with clients undermines their ability to effectively represent them. 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. Austin defense attorney Scott Smith, who discovered this summer that an intern in the prosecutor's office had inadvertently listened to a portion of a phone call he had with a jailed client, points out that it rigs the adversarial legal process in favor of the state. "How do you plan your strategy? It's like being at the Superbowl and one team gets to put a microphone in the huddle of another team."

They also uncovered calls between prisoners and prosecutors' offices. Why would that matter? These may be guys offering up information about crimes or offering to be sources. If this information can be hacked and heard by outsiders, it jeopardizes the prisoners' safety.

Read more about the massive hack here.

UPDATE: Securus sent out a response to the report by The Intercept Wednesday evening:

Securus is contacting law enforcement agencies in the investigation into media reports that inmate call records were leaked online.  Although this investigation is ongoing, we have seen no evidence that records were shared as a result of a technology breach or hack into our systems.  Instead, at this preliminary stage, evidence suggests that an individual or individuals with authorized access to a limited set of records may have used that access to inappropriately share those records.

We will fully support law enforcement in prosecution of any individuals found to have illegally shared information in this case.  Data security is critically important to the law enforcement and criminal justice organizations that we serve, and we implement extensive measures to help ensure that all data is protected from both digital and physical breaches.

It is very important to note that we have found absolutely no evidence of attorney-client calls that were recorded without the knowledge and consent of those parties.  Our calling systems include multiple safeguards to prevent this from occurring.  Attorneys are able to register their numbers to exempt them from the recording that is standard for other inmate calls.  Those attorneys who did not register their numbers would also hear a warning about recording prior to the beginning of each call, requiring active acceptance.

We are coordinating with law enforcement and we will provide updates as this investigation progresses.