On March 16, 1992, the Washington DOC signed a contract with AT&T (American Telephone and Telegraph) for the latter to provide telephone services to all the prisons in the Washington prison system. AT&T in turn has subcontracted with three Local Exchange Companies (LEC's) to provide local telephone service.

The contract covers two types of LEC public telephones. One is services for prisoners who can only make collect calls. The others are public phones for use by staff and visitors which can make collect and pay calls.

The subcontractors and the facilities they service are: GTE for the Washington State Reformatory, Twin Rivers, Indian Ridge and the Special Offender Center. PTI does Clallam Bay, Purdy, Olympic CC, Pine Lodge Pre Release and Coyote Ridge. USWC does Shelton, Walla Walla, McNeil Island, Airway Heights, Tacoma Pre Release, Cedar Creek and Larch.

The DOC does not own the telephone monitoring and recording equipment it has installed. Rather, as part of the contract each telephone company is being contracted to provide and maintain: public telephone sets, all associated equipment, lines, dictaphone recording/monitoring equipment, call timing and call blocking software. Title to all the phones, recording equipment, etc., remains with the contractor. The DOC has agreed to defend against any and all litigation challenging the contractor's provision of call recording and call monitoring equipment. That provision will extend beyond the actual life of the contract, which is for five years.

Each contractor provides the superintendent of each prison with a monthly report that details, by institution, the date, time, payphone number, called number and length of each call made from a prison telephone. Using this information prison officials can target specific phone numbers called or dates and times to choose which calls to listen to after they have been recorded. The Washington DOC policy on phone recording, DOC Policy 450.200, states that the tapes of all phone calls will be maintained for at least a one year period.

With regards to the kickback that the DOC receives from prisoner phone calls the contract states: "7.A In return for the right to provide Inmate and Public Telephone Service under this agreement, Contractor GTE, PTI and USWC shall each pay to the department on a monthly basis the commissions set forth in attachment 1 to this agreement. Each carrier's monthly commission checks shall be sent to the superintendent of each covered correctional institution or work release program, made payable to the Inmate Welfare Fund, unless and until the Department shall specify a different payee for the carriers commission checks."

The commission rates that the contract specifies is 24% of billed revenues from calls carried by ATT, 27% for those calls carried by GTE and PTI, and a whopping 35% for all calls carried by USWC. Needless to say, the telephone companies aren't giving the DOC these commissions out of their profit margin, rather they are adding this on as a surcharge to what they bill the people we call.

The contract states that it is the responsibility of the contractor to abide by the rates established by the FCC (Federal Communications Commission). I've done some preliminary research into this matter and it seems that 47 U.S.C. § 202-207, which prohibits telephone carriers from discriminating among their clients and charging them more, would provide a means by which to challenge this. 18 U.S.C. § 2510 and 2511, limit the conditions in which phones can be tapped or recorded by the government. The law applies to prisons, See: Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC 1991); United States v. Amen, 831 F.2d 373 (2nd Cir. 1987); but has been held not to apply to prisoners' calls because prison officials are considered law enforcement personnel. See: United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); Lee v. Carlson, 645 F. Supp 1430 (SD NY 1986).

My thinking is that a challenge to both the extortionate surcharge and the monitoring would have to be brought by the outside person receiving the phone call. As a matter of standing the prisoner making the call is not affected because they don't pay the phone bill and are not being provided with the service. Thus the prisoner does not have standing to challenge the practices. There are other issues as well such as the outside person's right to choose the carrier that carries the call, etc. The outside people can challenge the fact that their right not be charged discriminatory prices under 47 U.S.C. § 202-207 is being violated by this practice. They can also assert their right to privacy under the fourth amendment concerning the telephone recording/monitoring. All the published cases that uphold prison officials recording of prisoner calls have been brought by a prisoner. None have been filed by the free person being called.

To get the applicable telephone rates, which are centrally filed with the government, write to: Federal Communications Commission, Common Carrier Bureau, 1919 M St. N.W. Washington D.C. 20554 (202) 632-6910. Ask for the rates applicable for your area, the company in question, etc.

While the phone company or DOC being sued on this issue would argue that by accepting a collect call from a prisoner the person being called is consenting to being recorded that type of reasoning has been rejected by courts dealing with free world visitors to prisoners being searched. See: Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985); Daugherty v. Campbell, 935 F.2d 780 (6th Cir. 1991); Marriot by and through Marriot v. Smith, 931 F.2d 517 (8th Cir. 1991). The courts have held that forcing a person to choose between a search that violates the fourth amendment and being allowed to visit their loved one in prison is not a "choice" at all and thus is not a valid consent. The same argument and reasoning can be applied to the phone recording issue: that a "choice" between talking to their friend or family member on the phone or consenting to a search and seizure of the telephone conversation by government officials is no choice at all and thus not a valid consent.

The supreme court has held that both federal wiretapping statutes and the fourth amendment require particularized suspicion that someone has committed a crime when a non prisoner's phone is recorded or monitored by government officials. A court order authorizing the tapping is also required. See: United States v. Donovon, 429 US 413, 97 S.Ct. 658 (1977). Obviously the free person being called by the prisoner is the party who has to assert this right.

At least one court has held that charging prisones ' families excessive phone rates is unconstitutional. See: Tuggle v. Barksdale, 641 F. Supp 34 (MD TN 1985). But that seems to be an isolated ruling. I think the best results will likely be obtained by an outside person challenging the pricing scheme on statutory grounds and asserting their fourth amendment rights against the recording. I am interested in hearing from anyone who has litigated this issue or who has any ideas.

Currently CURE (Citizens United for the Rehabilitation of Errants) is working on getting a bill passed in Congress which would allow prisoners to direct dial their phone calls and would ban this type of telephone extortion by the DOC and phone companies. They require more information on the phone set up in different states and prisons. Their address is: CURE, P.O. Box 2310, Washington D.C. 20013.

The following method is suggested by CURE on how to determine the actual cost of prisoner telephone calls. This can be used for litigation challenging the rates and/or be sent to CURE for their lobbying campaign on this issue.

1.Receive a one minute telephone call from a prisoner calling collect from a prison. Save your telephone bill which shows the cost of the call.

2.From the same telephone number that you received the prisoner call in No. 1 above, call the prison direct. When the phone answers the charge on your bill should be for a one minute call. Save your telephone bill which shows the cost of this call.

3.When visiting at the same prison from and to which the above telephone calls were made, call the same telephone number the prisoner called in No. 1 above from a pay phone in or near the prison. Make this call collect, operator assist. Save your telephone bill which shows the cost of this call.

4.Immediately after the above phone call is made, call the same telephone number direct, using coins, from the pay phone at or near the prison. Determine the connection charge which should be the same as a one minute call. Make a notation of the charge. The calls should all be received and made using the same structure, i.e. weekend rate, holiday rate, day or evening rate, etc., in order that the charges you submit accurately reflect the same rate.

The issue of telephone access is a vital one to prisoners. Virtually all US prisons are located far from the urban centers most prisoners come from. The isolation of prisons makes visitation difficult if not impossible. As a group prisoners and our families tend to be poor and ill able to afford this type of rip off. The telephone represents the best way, aside from personal visits, for prisoners to maintain family ties and relationships with their friends, family, loved ones and the community. It should not be held hostage to extortionate pricing by the telephone monopolies and the DOCs.

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