On behalf of our client, grassroots advocacy organization Silicon Valley De-Bug, SJLF submitted a public records request seeking information about San Mateo County’s concerning new policy replacing physical mail with an intrusive electronic surveillance program – implicating the privacy of incarcerated individuals and their families, and chilling speech.
On March 9, 2023, the Knight First Amendment Institute at Columbia University, the Electronic Frontier Foundation, and the Social Justice Legal Foundation 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.
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.
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.
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.
“Is it too much to ask to be able to send a letter to my son in jail and know he’ll hold it in his hands? To know he can read it in his cell and then unfold and read it again and again whenever? To know he can keep it the way I keep his letters to me?” Malti Prasad, plaintiff