Attorney-client privilege is part of the foundation of our criminal justice system. Inmates and their attorneys don't expect that prison authorities will listen in on and record their private conversations, but that is what may have happened in Kansas.

In late September 2018, U.S. District Judge Stephen Bough ruled that attorneys alleging their phone calls and meetings with clients at Leavenworth Detention Center were illegally recorded can move forward with their class-action lawsuit. The judge decided a class-action lawsuit was the best way to go because it would prove “judicially uneconomical” or just plain too expensive for the court to go through possibly thousands of such claims.

At Least 1,300 Private Conversations Recorded

The lawsuit concerns CoreCivic, a Nashville, Tennessee-based private company running Leavenworth, and Securus Technologies, its Dallas, Texas-based technology provider. The latter is owned by a private equity firm and is one of the largest such firms in the nation. (CoreCivic was formerly known as the Corrections Corporation of America.)

At least 1,300 such privileged conversations were allegedly recorded, primarily between federal public defenders and their clients.  If prosecutors listened to these recordings, a judge might overturn charges and convictions against inmates whose Sixth Amendment rights were violated. If prosecutors did listen to them, what excuse do they have? They know full well that such conversations are off-limits.

This is not the first time Securus Technologies, which specializes in providing services to prisons, has been accused of unlawfully recording such calls. In 2016, the company settled a federal lawsuit involving similar accusations regarding inmates at a local jail in Austin, Texas.

In a press release after the settlement, Securus stated that there was no evidence that attorney-client calls had been recorded without consent and knowledge of the parties. The settlement included a stipulation that there was no evidence of intentional misconduct by Securus.

A Massive Hack

In addition, Securus Technologies was hacked in 2015 and a total of 70 million recorded phone calls made between 2011 and 2014 were released by the hacker via SecureDrop. Of these vast number of calls, approximately 57,000 contained privileged information. Many of these privileged calls were set up in advance by attorneys and not subject to recording.

Phone Calls and In-Person Meetings

CoreCivic claims that it is not responsible because all outgoing calls are preceded by a recorded message stating they are subject to recording. However, there was never any notification to inmates or their attorneys that in-person meetings were also recorded. The recordings first became public during a criminal case, in which inmates, guards and those on the outside were smuggling illicit items into the detention center.

Security Measures

Companies like Securus – which is also known for its extremely high phone call rates for inmates – tout the recording of inmate's calls as a security measure in its pitch to clients. While such recordings may make sense to prevent inmates from arranging to smuggle drugs or other contraband into the facility or to uncover plots against guards or other officials, it quite clearly violates the 6th Amendment right to counsel. America is based in liberty, not safety. Dwight D. Eisenhower famously once said, “If you want total security, go to prison.” We would have a “safer” if we had a police officer on every corner who could search you whenever they wanted. But play that out in your mind, in reality, it would be an unbearable life and probably not that much safer. We have rights, like the right to an attorney, which includes the right to confidential communications, for a reason.

In our current climate, many of our institutions are at risk, and so-called “security measures” are destroying the basis of U.S.  jurisprudence. This class-action lawsuit may help determine public trust in the legal system, and if successful, cost CoreCivic and Securus Technologies will face accountability for their unlawful actions.