by Gregory P. Teixeira

A decision by California’s San Mateo County to ban physical mail from county jails – enforcing a digital-only communication system – drew a legal challenge in state Superior Court on March 9, 2023. The lawsuit represents the first major legal challenge to digitization of personal mail within U.S. prisons and jails.

The county’s policy, implemented in 2021, requires friends and family to send their letters to Smart Communications, a private, Florida-based company, which scans and destroys the physical copies. Jail detainees are then expected to access the letters digitally through a limited number of shared tablets and kiosks located in public spaces within the jails.

In response to the controversial move, attorneys with the Electronic Frontier Foundation (EFF), the Knight First Amendment Institute at Columbia University, and the Social Justice Legal Foundation filed the complaint to challenge the policy’s constitutionality. The lawsuit’s named plaintiffs – Kenneth Roberts, Zachary Greenberg, Ruben Gonzalez-Magallanes, Domingo Aguilar, Kevin Prasad, Malti Prasad, and Wumi Oladipo – are all incarcerated in San Mateo County jails. They are joined by additional plaintiff A.B.O. Comix, a collective of artists who correspond with prisoners and jail detainees.

Together, they argue that the new mail policy infringes upon the expressive, associational, and privacy rights of those incarcerated, as well as their loved ones who send them letters.  At the heart of their complaint is the contention that the current policy violates the privacy of some 850 individuals incarcerated in the county’s main Maguire Correctional Facility in Redwood City, as well as their families. Moreover, with only a limited number of tablets available, mail digitization also severely restricts detainees’ ability to dedicate ample time to reading their correspondence, exacerbating the isolation and emotional strain experienced during incarceration. The significance of written letters as a vital connection to the outside world cannot be overstated within the context of U.S. jails and prisons, the complaint emphasizes.

The suit underscores EFF’s battle against privatizing elements of the carceral system for profit, while eroding the privacy rights of those incarcerated. A familiar example is the outsourcing of communications to private firms, which then leverage their monopoly over an entire prison or jail’s population to charge exorbitant fees for phone calls. Though Congress passed legislation in 2014 to curb the practice for interstate calls, the vast majority of calls from prisons and jails – 80% – are placed within the same state; those did not become subject to regulation until Pres. Joseph R. Biden, Jr. (D) signed the Martha Wright Reed Just and Reasonable Communications Act on January 5, 2023. It remains to be seen what the rules to enforce that law look like when the Federal Communications Commission publishes them.

Across the nation, some 514,000 people are held in county jails, according to Prison Policy Initiative, of whom a staggering 427,000 have not been found guilty of any crime because they are still awaiting trial. EFF and its fellow plaintiffs hope this lawsuit establishes a significant legal precedent, reaffirming fundamental rights of incarcerated individuals and their families, friends, and correspondents. It is a crucial step in countering ongoing attempts to exploit individuals’ interactions with the criminal justice system for financial gain, without sacrificing their rights. See: A.B.O. Comix v. Cty. of San Mateo, Cal. Super. (Cty. of San Mateo), Case No. 23-CIV-01075.

Additional sources: New York Times, Prison Policy Initiative, Washington Post

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