Knight Institute, Electronic Frontier Foundation, and Social Justice Legal Foundation say that the policy violates the rights to free speech and privacy.
REDWOOD CITY, CA—The Knight First Amendment Institute at Columbia University, the Electronic Frontier Foundation, and the Social Justice Legal Foundation today filed a complaint challenging San Mateo County’s policy of digitizing and destroying physical mail sent to people in its jails. The lawsuit was filed on behalf of five people incarcerated in San Mateo County jails, several of their family members, and A.B.O. Comix, a collective of artists that corresponds with people in jail. The complaint argues that the new mail policy violates the expressive, associational, and privacy rights of those in the county’s jails, and their family, friends, and supporters who send them letters. This lawsuit is the first major challenge to the digitization of personal mail in U.S. jails.
“Physical mail is a lifeline for people in jail, and digital copies are not a meaningful substitute. The county’s ban on physical mail severs the connection that people in jail rely on to stay in touch with their families, communities, and religious leaders,” said Stephanie Krent, a staff attorney with the Knight First Amendment Institute. “The county’s digitization of mail also enables new and sophisticated surveillance against both senders and recipients of mail, posing a grave threat to freedom of expression, association, privacy, and religion behind bars.”
Under the current policy, the county prohibits people in jail from receiving any physical mail other than attorney communications. Members of the public must route letters to a private for-profit company, Smart Communications, which scans and stores digital copies of mail for at least seven years—even if its recipient has long been released from jail. The original letters, cards, drawings, and religious and educational materials are destroyed, while the scanned copies are retained in a database that allows the county—and anyone to whom the county has provided login credentials—to monitor, read, and search through mail for any reason, or for no reason at all.
Incarcerated people can access digital copies of their mail through Smart Communications’ MailGuard service, but only if they agree to certain terms, and even then only through shared tablets and kiosks in public spaces. The limited availability of the tablets, and the technical problems with them, mean that incarcerated people often cannot access their mail at all.
“Banning physical mail is completely antithetical to the criminal justice system’s goal of reducing recidivism,” said Hannah Zhao, a staff attorney at the Electronic Frontier Foundation. “Numerous studies have shown that letter-writing between incarcerated folks and loved ones outside lowers stress, reduces depression, and tightens relationships. For those in jail, communicating this way is an integral part of establishing strong interpersonal ties and feelings of community, which are universally considered to decrease the likelihood of reoffending.”
San Mateo County has suggested that banning mail reduces drug use behind bars, but the complaint points to public reporting that similar policies in other states did not lead to a decrease in drug use or overdoses. Additionally, letter-writing has been linked to better outcomes for both the receivers and senders of mail, including reduced stress, closer relationships, and more opportunities upon release.
“We are deeply concerned about the growing practice of depriving people in jail and prison of valuable personal communications that are often their only connection to the outside world,” said Pilar Gonzalez Morales, managing attorney at the Social Justice Legal Foundation. “Through this lawsuit, we seek to send a message to other jails and prisons across the country considering adopting a policy of destroying mail and replacing it with a digital surveillance program.”
Similarly invasive digitization and destruction policies have been adopted in recent years by many jails and prisons across the nation. In 2018, Pennsylvania became the first state to begin digitizing and destroying mail using MailGuard. A group of legal organizations challenged the use of MailGuard to process legal mail, and the state quickly agreed to halt the practice.
Read today’s complaint here.
Lawyers on the case include, in addition to Krent, Mayze Teitler and Alex Abdo of the Knight First Amendment Institute at Columbia University; in addition to Zhao, Cara Gagliano, Aaron Mackey, and Mukund Rathi of the Electronic Frontier Foundation; and in addition to Gonzalez, Shubhra Shivpuri and Emily Olivencia-Audet of the Social Justice Legal Foundation. Silicon Valley De-Bug, Social Justice Legal Foundation’s grassroots partner and a nonprofit in San Mateo County that supports the families of incarcerated individuals, helped lead activism efforts and obtained key details about the county’s adoption of MailGuard through a public records request filed in 2021.
About the Knight First Amendment Institute at Columbia University
The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. It promotes a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government. https://knightcolumbia.org/
About Electronic Frontier Foundation
The Electronic Frontier Foundation, founded in 1990, champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. EFF’s mission is to ensure that technology supports freedom, justice, and innovation for all people of the world.
About Social Justice Legal Foundation
The Social Justice Legal Foundation is a legal startup that brings impactful and precedent-setting trial cases to fight oppression in the carceral system and beyond.