NYC defenders decry unlawful recording of attorney-client jail calls

May 8, 2023 Rob Abruzzese

Public defenders from New York City's coalition of organizations express concern over the breach of attorney-client confidentiality in city jails. The Rikers Island jail complex. Photo: Seth Wenig/AP.

Share this:

In response to the recent New York City Department of Investigation (DOI) report regarding the improper recording of attorney-client phone calls in city jails, a coalition of New York City public defender organizations — including Brooklyn Defender Services, The Bronx Defenders, The Legal Aid Society, Neighborhood Defender Service of Harlem, New York County Defender Services, and Queens Defenders — have expressed deep concern about the breach.

“The widespread, illegal practice described in this investigation undermined one of the most fundamental tenets of the constitutional right to counsel: the ability of people to receive confidential advice from their legal team,” the statement said. “Thousands of confidential phone calls between incarcerated people and their attorneys were wrongly recorded, and many were even supplied to district attorneys, the NYPD, and other law enforcement agencies.

“The Department of Investigation is correct that this improper recording of phone calls was ‘unacceptable.’ However, this investigation and its conclusions are simply inadequate.”

The DOI report revealed significant breaches, resulting in numerous attorney-client privileged conversations being captured. Securus, the company responsible for the breach, took responsibility and quickly worked with the Department of Corrections (DOC) to correct the issue and implement safeguards to prevent future problems.

Despite Securus’ remediation efforts, the error has raised questions about whether New York City should continue to do business with the company or seek inmate phone system (IPS) services elsewhere. The report highlights the challenges of changing IPS providers, including the lengthy and costly process that would require a new procurement process and removal of over 1,800 phones and related hardware owned and operated by Securus in DOC facilities.

The DOI report concludes that while the recordings of privileged communications are unacceptable, the breaches involved a small percentage of numbers contained in the Do Not Record (DNR) list. DOC and Securus have acted quickly and implemented a series of changes and protections deemed appropriate by the DOI.

The DOI report provides several recommendations, including additional training for DOC staff members to recognize potentially privileged calls, the memorialization of existing protocols to prevent monitoring and recording of privileged calls in a written Departmental Directive, and immediate notification to the DOI upon discovering an improperly recorded privileged call.

The defender groups criticized the investigation’s limited scope, calling for an end to the city’s contract with Securus, the company responsible for the breach, and a cessation of universally recording calls made by incarcerated individuals.

The groups argue that the practice violates privacy rights and disproportionately impacts Black and Latino communities. The statement also expressed concern over the collection of biometric data, such as voiceprints, and the city’s plans to expand Securus’s surveillance capabilities.

“While NYC made the historic step to make phone calls in city jails free for all incarcerated people in 2019, this significant breach underscores that the societal costs of recording phone calls remains great,” the statement continued. “DOC records every phone call involving an incarcerated person, excluding — they claim — calls involving numbers included on its ‘Do Not Record’ list, such as those belonging to defense teams. Even if legal calls were properly protected, universal recording of people in jails is a violation of privacy and subjects incarcerated people, their friends, and family members — overwhelmingly from Black and Latine communities — to undue monitoring and control.

“One of the most troubling aspects of the universal recording project is the collection of biometric data known as ‘voiceprints.’ These speech patterns of incarcerated people and those they call are saved to a central database by Securus, along with call recordings and other personal information. Logging over 30,000 calls per day, Securus’s biometric database of New Yorkers is immense and ever growing.

“Equally concerning is that, following this breach of confidential phone calls and the inability to properly safeguard the privacy of New Yorkers, the city decided to expand Securus’s services to include tablets and proposed mail scanning and, thus, enlarge Securus’s surveillance web.”

The DOC shared the following: “We take the privacy of attorney-client communications seriously. When we were made aware of the breach we immediately took action to rectify the situation. We have made changes to prevent this from happening again in addition to implementing the recommendations outlined in DOI’s report.”