San Jose Mercury News
September 14, 2022
Peninsula lawyers allege in federal complaint that with new system, jail officials have failed to shield protected legal communications from the eyes of correctional staff
REDWOOD CITY — A group of Peninsula defense lawyers has sued San Mateo County in federal court on allegations that a recently installed jail email system is exposing privileged attorney-client communications of inmates to correctional staff.
The complaint — filed in the U.S. District Court of Northern California on behalf of attorneys Curtis Briggs, Robert Canny and Matthew Murrillo — alleges that the San Mateo County Sheriff’s Office has instituted the system in a way that allows authorities to comb through protected messages between attorneys and in-custody defendants at the county’s two jails.
The complaint says the sheriff’s office gave no notice or warning that it had the ability to look through private communications between attorneys and inmates.
Ara Jabagchourian, who is one of three law firms representing the plaintiffs, said the sheriff’s office has failed to implement an available feature to screen out the private communications.
“This new system effectively scans everything that comes in and out electronically, including email and even hard mail,” Jabagchourian said. “Especially during COVID, attorneys wouldn’t be able to come in as much and relied on email as communication. What’s happening is the deputies have been reviewing emails and they failed to screen out what’s attorney-client privilege.”
The county began implementing the jail messaging infrastructure from Florida-based Smart Communications Holding, Inc. in September 2021, with the current contract running until 2024. The company, which did not respond to a request for comment, provides electronic tablets and pay-per-message emailing at a rate of $0.50 per email and $1 per prescreened photo, with a weekly allowance of two free messages “to satisfy the needs of indigent inmates,” according to the contract.
In response to inquiries about the lawsuit, sheriff’s spokesman Lt. Eamonn Allen said in a statement that the county has yet to be served with the federal complaint, but called the publicized allegations “false” and that the messaging system is not intended for legal correspondence.
“The email system that the plaintiffs appears to be attacking is not for legal mail,” Allen said. “That email system clearly and specifically tells all persons in custody who use it that it is not for communicating with attorneys. Further, all others who use it are clearly informed that emails can be monitored and are not private.”
Relatedly, the complaint alleges that correctional staff have departed from existing law and practice of opening legal mail in front of the inmate and checking it for contraband before handing it over, which Allen disputed, saying the sheriff’s office has “the utmost respect for the legal system and its safeguards, including attorney/client privilege.”
That stance reportedly does not conform with what the plaintiff attorneys have observed, with Jabagchourian saying in response: “Thank God we have courts so we don’t have to take what the county gives us as the final word.”
The new system, he added, makes it nearly impossible to have confidential communications between attorneys and inmates, who rely on the tablets as their primary means of outside contact.
“I think it’s horrifying,” said Paula Canny, whose law firm is part of the plaintiffs’ legal team. “It’s been around maybe a year, and I don’t think anyone realized the extent of the surveillance.”
Jabagchourian said the plaintiffs are seeking an injunction of the new practices “until a court can fully hear the matter,” adding they want people in custody to get more clear disclaimers that their activity on the tablets and email system are monitored. The lawsuit is also asking the sheriff’s office to not only activate a blocking function for privileged materials, but also stop the policy of scanning and transmitting paper mail electronically through the new system.
That last point brings up an issue that civil-rights advocates have voiced since the Smart system was approved and instituted in the county with little public fanfare, which they attribute to the public policy fog of the pandemic.
Personal mail to people held in San Mateo County jails has to be sent to a P.O. Box for Smart Communication in Seminole, Florida, where letters and other paper correspondence is scanned electronically, reviewed for content, then entered into the system at the jail where it can be viewed with the tablets. The actual paper material is shredded after 30 days, but electronic records are retained for at least seven years, according to the contract.
Zachary Kirk, an organizer with the civil-rights group Silicon Valley De-Bug, said inmates’ families became belatedly aware of the new system, and echoed their concerns about how it de-personalizes family contact, which he contends is vital to the well being of the in-custody population, most of whom have not been convicted of a crime.
“Little kids’ crayon drawings getting scanned and incinerated, it shouldn’t sit right with us,” he said.
One premise for the system was to protect correctional staff, and to cut off the flow of contraband getting to in-custody defendants through mail. But Canny and Kirk said that concern is exaggerated, and point to a string of cases — and convictions — showing that a steady source of contraband at the jails has been jail employees.
“This overblown fear has resulted in mass surveillance,” Kirk said. “The sheriff has a new investigative power that is invasive.”
