by Dave Maas

Imagine you’ve been arrested and are sitting in county lock-up. You need to make arrangements for bail, a lawyer, and a caretaker for your kids or pets. Maybe you need someone to bring your prescription or you need to talk to your AA sponsor. On top of that, you’re traumatized by the invasive booking process and scared to the bone of what might happen to you, all too aware that many people wind up injured or dead while awaiting trial.

An officer hands you a digital tablet and assures you that you can use it to communicate to sort out your affairs. It’s a glimmer of a lifeline … but then you try to use the device.

A pop-up opens on the tablet’s screen, and you’re forced to watch a commercial for a shady bail bond firm before being allowed to access the video call app. When your family member picks up, you both have to sit through another advertisement. When you finally get to talk, both you and your relative have the logos of a local law firm hovering over your shoulder, like the worst Zoom background ever. Throughout the call, your conversation is interrupted with periodic video advertisements that you have to watch to keep the line open. There’s also, an ever-present scrolling text ad, and another ad that is bouncing around the screen trying to get your attention.

Suddenly the call is cut off, the tablet freezes up, and an alert blinks on the screen: your privileges have been revoked because an algorithm determined someone on the video flashed a gang sign. It must have been a mistake, but the message says you have to go through the appeal process to have your account reinstated.

This horrific but fictional scenario is based on a very real patent titled “Advertisements in controlled-environment communication systems using tablet computing devices,” that was granted to prison communications vendor Securus in 2016. The patent describes a system that, among other things, would display pop-up advertisements during video calls that would be based on “characteristics” of the callers and the interests of the advertiser.

It’s important to note that patents on their own are not products or even an indication of a company’s plans. They’re ideas that companies have developed and want to get a commercial lock on before a competitor does. Companies may stake a claim on an invention by patenting it, without ever building the system they describe.

Nevertheless, the fact that companies are devoting resources to developing these ideas should serve as an early warning sign of what may be just over the horizon.

We reached out to Securus about this patent. A spokesperson responded via email: “Securus values its Intellectual Property Portfolio, although we may not currently be practicing this patent, we are continuously looking to provide ways to reduce the costs of communications while allowing more contact between incarcerated individuals and their friends and families.”

Although Securus filed for this patent in 2014, which may seem a long time ago, it’s important to view this patent in the context of the long, slow-moving efforts to reform prison payphone costs. For years, detention facilities and telecommunications vendors have gouged imprisoned people and their families with exorbitant phone rates — $5.74 for a 15-minute call — while some detention facilities have required phone providers to pay them kickbacks called “site commissions.”

With some of those practices coming to an end, an advertising-based model could be one way to replace the lost profits. Securus itself now supports rate caps and moving to a subscription-based model. Although Securus has not mentioned advertising in this context, we have seen advertising applied to subscription models in streaming and other subscription models.  And the patent certainly provides a roadmap for how Securus might incorporate advertising into its communications systems.

Whatever Securus’ intentions are for filing the patent, the language used in it invites prison and jail officials to view inmates as a source of revenue, even if they’re indigent.

“This situation may arise in a law enforcement context when an arrestee, prisoner, or other detainee, who is being held in a holding cell, jail, prison or other law enforcement facility, does not have a trustee account, calling account, prepaid account or other means by which to pay for telephone calls,” Securus writes in the introduction to its patent. “The detainee is then unable to initiate calls, but usually desires to make telephone calls. This results in lost revenue for the law enforcement facility. Depending upon the nature of the law enforcement facility, the detainee may be offered free calls. For example, a recent arrestee may be able to make free telephone calls to try to secure legal representation or bail. These free calls also represent lost revenue to the law enforcement facility and or telecommunication vendor.”

The system envisioned by the patent is a digital interface jam-packed with advertisements targeting both the person behind bars and the person they’re trying to reach on the other side. The patent describes several different possibilities for when it might deploy ads: before a person can initiate an app, background advertisements behind the speakers on a video call, audio ads that run during a call, a scrolling text ad under the images, and even an option for advertisers to purchase an ad “that moves or slides around the screen, then the viewing party may be more likely to notice and watch the advertisement.” The ads aren’t always random either: the system proposed by the patent allows for serving ads based on location, demographics or other unarticulated “parameters.”

Since the patent was ostensibly written to cover all scenarios in which advertising could be displayed during a video call, it doesn’t necessarily mean that all of these ad systems would be run simultaneously during any given call. If implemented, however, the patent appears to leave almost no opportunity for people to communicate without some form of advertisement potentially intruding on that conversation.

Studies have consistently shown that incarcerated people are healthier and better able to re-enter society if they maintain meaningful relationships, through communication and visitation, with a support network on the outside, including family and friends. This patent raises the question of how meaningful those communications will be if they are drowning in invasive advertising.

This patent imagines being simultaneously an advertising broker and an automated prison guard, through an integrated “communications monitoring system” that listens in on calls and issues discipline when a person violates policies. As Securus writes in the patent: “[The] [c]ommunication monitoring engine monitors calls for improper content, such as gang signs, pornography, sexual content, and criminal activity, and/or may monitor calls for feedback on advertisements.”

When the system detects “improper content,” it would disconnect the communication “and/or alert a monitoring agent or authority.” The system could also “document revocation of the resident’s privileges by recording the violation in the resident’s record or file in the resident database.”

The patent provides a specific scenario (for clarity, we’ve removed numbers that referred to parts of a diagram):

“For example, an inmate may be advised of a system’s flexible one-strike rule on improper content when the inmate is provided with the inmate’s identification number and PIN. By using the system, the inmate agrees to the monitoring and also to comply with the content restrictions. When the inmate violates the one-strike rule, the system is flexible in how the inmate’s access to the system will be limited. For example, the first violation may result in a warning from the interactive communication engine, a one-day suspension from use of the telecommunication system, or a complete revocation of telecommunication privileges. While the system is flexible in how the inmate is disciplined for violations of the improper content rule, the system strictly enforces the improper content rule. In some embodiments, the communication monitoring engine will also send the suspected communication to prison officials for review. Upon review, the prison official may reinstate the inmate’s privileges by overwriting the violation in the resident database.”

The concept described in the patent should indeed raise red flags. Automated systems used in investigations — from face recognition to automatic license plate readers to acoustic gunshot detection — frequently make mistakes, often with a disproportionate impact on people of color. The patent doesn’t specify how this monitoring would occur. One could easily imagine how an algorithm monitoring jail calls could mistake affectionate slang for a threat or confuse American Sign Language gestures with gang signs.

There are many good reasons for incarcerated people to have access to digital communications and resources, especially in an age of Covid restrictions. These systems should always center the humanity of the person incarcerated and the value that comes from communicating with their loved ones, family, and community, not the revenue potential for the facility or the vendor.

Unfortunately, the U.S. incarceration system has a long track record of imposing predatory fees on incarcerated people and their loved ones in an effort to supplement their budgets and generate profits for vendors.

With this history in mind, we hope that this patent, aimed at a new form of profiting from the needs of imprisoned people, remains confined to paper. 

This article was originally published by the Electronic Frontier Foundation on April 7, 2022, on eff.org. It is reprinted here with permission.

As investigations director of the Electronic Frontier Foundation, Dave Maas researches and writes about surveillance technology, government transparency, press freedoms, the U.S.-Mexico border and immigration enforcement, prisoner rights, and other digital rights issues. He leads the Atlas of Surveillance project in partnership with the Reynolds School of Journalism at the University of Nevada, Reno, where he is a Reynolds Scholar in Residence.

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