The Bureau of Prisons has piloted a program that can give authorities “huge secret intelligence into the public sender of postal mail.”

by Lauren Gill, originally published by The Intercept, September 26, 2021

In a Pennsylvania federal prison, Joe used to trace his girlfriend’s handwriting with his finger as the faint smell of her perfume wafted into his cell. Her letters elicited rare feelings of intimacy in an otherwise cold environment. But after his facility, United States Penitentiary Canaan, replaced physical mail with photocopies in 2019, those feelings have disappeared.

“It’s just like receiving a fake dollar bill,” Joe told The Intercept in an email through a prison communications system. The Intercept is using a pseudonym because Joe fears retaliation from prison staff.

Over the past two years, dozens of facilities across the Federal Bureau of Prisons, or BOP, which oversees approximately 156,000 people and 122 facilities, have adopted policies of photocopying mail and withholding the originals from their recipients. Prison officials say the change is an effort to stop drugs that are entering facilities by being sprayed on mail, which officials claim is affecting staff, though there is scant evidence of this phenomenon.

USP Canaan is one of 33 federal facilities in 18 states using prison staff to scan mail in-house, according to an informal survey of incarcerated people’s loved ones conducted by The Intercept. And the Pennsylvania prison was one of two BOP facilities that participated in a recent pilot program to outsource the scanning of mail to a private company. BOP union heads told The Intercept that they are pushing for the bureau to enroll all of its facilities in the private service, known as MailGuard, whose creators boast that it can “gain huge secret intelligence into the public sender of postal mail.”

The BOP did not respond to The Intercept’s questions about plans to expand MailGuard or details of prisons scanning mail in-house, though a spokesperson told Slate in August that the bureau is “considering the expansion of mail scanning pending funding.”

Advocates for incarcerated people warn that MailGuard, which is also being used in county jails and state prisons, is chilling communications between incarcerated people and their loved ones. “It’s surveillance on a scale that we haven’t really seen before in prisons,” said Quinn Cozzens, an attorney with the Abolitionist Law Center, which sued the Pennsylvania Department of Corrections over its use of the service for legal mail.

Postal mail was the last means of communication that was not heavily monitored by the BOP. The bureau’s transition to mail scanning, coupled with its refusal to release details of the program’s operations to the public, presents novel privacy concerns for incarcerated people and the people who send them mail.

The Knight First Amendment Institute at Columbia University has sued the BOP in an effort to publicize some of those details, such as its record retention policy and rates of drug introduction through the mail.

Stephanie Krent, an attorney with the Knight First Amendment Institute, said the programs’ retention policies will be key to understanding the scope of the surveillance. “The overarching problem is the same, which is that instead of looking at a letter quickly, to determine whether or not anything in the letter could pose a safety threat,” Krent said, “you are potentially creating a record that lives on far longer than the amount of time that that letter is in the scanner.”

Prison mail has long been subject to inspection, albeit through an analog process. Before scanning, staff in the prison mailroom were responsible for opening and browsing the mail for contraband or inappropriate communications. Mail that passed this test was then distributed to its recipient. An exception was made for privileged communications, such as legal mail, which were supposed to only be opened in the presence of its recipient.

Federal prisons in Illinois, South Dakota, Pennsylvania, Alabama, North Carolina, Kentucky, California, Georgia, Texas, Minnesota, Mississippi, Colorado, West Virginia, Virginia, Florida, Tennessee, New York, and New Jersey are now scanning mail in-house, The Intercept found. This list is not exhaustive, and the BOP did not answer questions about the numbers and locations of facilities using scanning.

Some have been scanning mail for more than a year, while others have changed their policies over the last few weeks. At those prisons, two to four mailroom staff open the mail then digitally scan it, making photocopies to deliver to incarcerated people, according to Jose Rojas, the southeast regional vice president for Council of Prison Locals C-33, the union that represents federal corrections officers. It is unclear whether the BOP stores digital copies of the mail scans in a database.

While the workload in the mailrooms has increased, staffing has not, Rojas said. Causing further delays with scanning, he said, mailroom staff are sometimes reassigned to the housing units under the BOP’s practice of augmentation that requires staff such as nurses and cooks to step in as corrections officers when staffing shortages arise.

Several incarcerated people told The Intercept that their legal mail has been opened, and sometimes copied, before it reaches them.

The shift to scanning has resulted in extended wait times for mail delivery, and once it is delivered, the scans can be hard to read, said incarcerated people and their loved ones. Photos and cards appear blurred, pages go missing, and parts of the letters get cut off, they said. Joe shared a photocopy of a letter he received with The Intercept that had been clipped on the margin during the scanning process, making some words illegible.

Joe’s girlfriend, who asked not to be named because she fears retaliation from prison staff, said she writes to him daily. It used to be one of their most reliable means of communication, especially with visits suspended during the COVID-19 pandemic and long lines to use phones inside the prison. Now, she said, she sometimes doesn’t receive his letters for a week. “You’re left wondering, ‘Is he safe? Is he in quarantine because of corona?’ It’s very nerve-wracking,” she said.

Lynn Espejo, a formerly incarcerated leader of the advocacy group Inside the Walls and Beyond, said she’s heard stories about women not receiving Christmas cards until March because of delays at facilities doing scanning. “It’s confusing to me why they think this is good,” she said.

In February 2020, the Bureau of Prisons issued a request for information on mail scanning services aimed to “reduce costs, streamline BOP operations, eliminate contraband and provide a whole new field of valuable investigative intelligence not currently available.” The ability to retain a “searchable database for each registered sender and all correspondence received” and to store all hard copies of mail for at least 45 days were among the services the BOP sought.

The following month, the bureau enlisted the services of Smart Communications, a Florida-based prison communications company, to do the job. Two prisons, USP Canaan and Federal Correctional Institution Beckley in West Virginia, piloted its MailGuard program from March 2020 to June this year. In practice, this involved people sending mail to Smart Communications’ offices in Florida, where civilian staffers scanned the mail then sent photocopies to the prisons.

What little is known about the service comes from Smart Communications’ proposals to other correctional systems. Roughly 100 prisons and jails across the country use MailGuard, including the Pennsylvania Department of Corrections, according to a proposal to the Massachusetts Department of Corrections last year obtained by The Intercept under the Freedom of Information Act. Records show that MADOC officials signed a yearlong contract with Smart Communications in October 2020 then terminated it in May. It is unclear why MADOC ended the contract early; reached for comment, an agency spokesperson did not respond to questions about it. Smart Communications did not respond to requests for comment or a list of questions from The Intercept.

The proposal outlines various services the company can offer, including a review process that allows authorized people to access digitized scanned copies of mail and information on each sender through a database. Smart Communications says this data can be useful to investigators, who have the option to receive “real time text or email alerts and be instantly sent a copy when an inmate receives mail.” For legal mail, the company offers a machine for use within prisons where individuals can open and scan their mail in the presence of prison staff.

MailGuard takes surveillance a step further with its “Smart Tracker” system that not only allows senders to track the status of their mail, but also for corrections agencies to “gain huge secret intelligence into the public sender.” This includes people’s email address, home address, IP address, GPS location tracking, the names of devices used to access Smart Tracker, and any other accounts they use, according to the proposal. MailGuards creators say the system will store a list of all incarcerated people the sender has communicated with and save all of their mail in a profile for up to seven years after their release.

The company has indicated the timeline could be even longer. “To be honest [in] almost 10 years of business Smart Communications has never lost or deleted records or any data from our database. There are hundreds of millions of data records stored for investigators at anytime,” Smart Communications CEO Jon Logan told Mother Jones.

Corrections departments can choose whether they want to install kiosks and distribute tablets to go completely paperless or to administer the mail through photocopies. Electronic communications to and from people in prison are monitored in a similar way as MailGuard, but according to Krent, of Knight First Amendment Institute, “the bigger problem is that programs like MailGuard force writers to leave a lasting digital footprint of their words, even if they opted to send physical mail because they preferred greater privacy.”

In its proposal to MADOC, Smart Communications said the price tag for five years of the services throughout 16 facilities would cost $8.11 million. The company also told the agency that it would foot the bill for legal costs associated with lawsuits over the introduction of the service by advocates, a document obtained by The Intercept shows. The size of the company’s contract for the pilot program with the BOP is unclear, but one union leader from Pennsylvania, who spoke on the condition of anonymity because he is not authorized to speak to the media, said he’s heard that it would cost around $50 million to expand throughout the bureau.

He, and other BOP union heads, lauded the service and said that they are pushing the Biden administration to allocate funding for its expansion. “We really pushed back against the agency to keep it going and the agency just stated they had no money for it,” said the Pennsylvania union representative. They said they are working closely with Rep. Matt Cartwright, D-Pa., who is chair of the House Committee on Appropriations for Commerce, Justice, Science, and Related Agencies. Cartwright and Rep. Jerrold Nadler, who is the head of the House Judiciary Committee, which oversees the BOP, did not return a request for comment from The Intercept on the program.

Prison guards have described mail scanning as essential to stopping drugs from entering prisons and jails, but data is scarce, and the evidence that exists belies those claims. Despite MailGuard’s promise to stop contraband from entering facilities, drug positivity rates in Pennsylvania prisons increased after the service was implemented, reported The American Prospect. There have been numerous reports confirming that corrections staff are the primary source of drugs and other contraband in prisons and jails—a trend that was identified by the Justice Department as far back as 2003.

Rojas, the southeast union head, said some prison staff have gone to the hospital with headaches and increased heartbeats, after they thought they were affected by drugs sent in through letters and books. K2, a synthetic cannabinoid, had become a primary concern after staff thought they inhaled it while sorting mail. “It’s tough, it goes into your lungs,” said Rojas.

There is no publicly available data on drug positivity rates for BOP prisons, and BOP did not respond to questions about those figures or its methods for testing mail suspected to contain drugs. Dr. Ryan Marino, medical director of toxicology and addiction at the University Hospitals Cleveland Medical Center, challenged assertions that mail staff were absorbing K2 through their skin or by inhaling it. “You would need to smoke it to inhale it afterwards,” he said. “These compounds don’t just get into the air and don’t just cause effects at room temperature from touching them, which is why people don’t do drugs that way.”

What is indisputable is that the introduction of scanned mail has made incarcerated people and their loved ones uneasy. Some have stopped sending certain types of mail, like pictures, altogether. “It makes me uncomfortable because it’s a violation of my privacy,” Sharon, who has a loved one incarcerated at a federal prison using mail scanning, told The Intercept. (She asked to be referred to only by her first name because she feared retaliation.) “I understand that they are in prison, and I’m sure the mail gets scanned or read at some point to make sure that no crime is being committed but to know that my letters are sitting there with my personal private information—you don’t know what the corrections officers are doing with it.” 

This article was originally published on September 26, 2021. It is republished with permission from The Intercept. Sign up for The Intercept’s Newsletter at theintercept.com/newsletter

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