San Mateo County is being sued again over digital jail mail system
San Mateo County is being sued again over its digital jail mail system, this time by civil rights advocates and a high-powered legal coalition alleging that it violates the privacy and human rights of a vulnerable jail population reliant on physical mail as a lifeline during incarceration.
A lawsuit filed last week in county Superior Court takes aim at the system of digitizing paper messages sent to in-custody criminal defendants on the Peninsula, which is run by Florida-based Smart Communications Holding Inc. through a county contract.
The heart of the suit — led by Columbia University's Knight First Amendment Institute, the Bay Area-based Electronic Frontier Foundation and the Social Justice Legal Foundation — focuses on how family members and other people who want to send paper mail to a loved one in county jail cannot send it directly. Instead, they have to address it to a Florida post-office box run by the vendor.
Letters and other paper correspondence is scanned electronically, reviewed for content, then entered into a system at the jail where it can be viewed with vendorprovided tablets. The actual paper material is shredded after 30 days, but electronic records are retained for at least seven years, according to the contract.
“We're really all coming at it from the same concerns about speech and privacy issues, and the basic inhumanity of it,” said EFF staff attorney Cara Gagliano. “There is also the emotional aspect of it, the importance for people in prison and jail to have these physical mementos to keep them going, to keep them committed to whatever they're working on.”
The San Mateo County Sheriff's Office, which runs the county jails, did not respond to a request for comment on the lawsuit. A county spokesperson deferred to the sheriff's office.
Approved and instituted by the county in fall 2021 with little public fanfare — which critics attribute to the public policy fog of the pandemic — the MailGuard system was the subject of a lawsuit last fall by a group of criminal defense lawyers who alleged that the sheriff's office did not automatically exempt attorneyclient mail and messages from correctional deputies' review and thus exposed constitutionally protected communications.
That lawsuit was later settled in part through an agreement by the county to create an attorney registry to automate protections for legal correspondence.
According to the county contract, a main premise for adopting the new system was to protect correctional staff, and to cut off the flow of contraband getting to incustody defendants through mail. But opponents of the system point out that a major of source of contraband, as documented in criminal charges over the years, has been correctional staff themselves.
Stephanie Krent, a staff attorney with the Knight institute at Columbia, emphasizes that the loss of physical mail for people in San Mateo County custody can't be overstated.
“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,” Krent said in a statement.
She also said the system “enables new and sophisticated surveillance against both senders and recipients of mail.” Pilar Gonzalez Morales, managing attorney at the Social Justice Legal Foundation, added that the lawsuit is meant to counteract a “growing practice of depriving people in jail and prison of valuable communications that are often their only connection to the outside world.”
Along those lines, the lawsuit states that the plaintiffs once “held letters and drawings that their loved ones also held, and they frequently re-read mail in the privacy of their cells, when they awoke in the morning or before falling asleep. Many in the county's jails also relied on physical mail to take correspondence courses, because the physical copies allowed them to annotate readings, fill out worksheets, and send completed coursework back to their instructors.”
Zachary Kirk, an organizer with the civil-rights group Silicon Valley De-Bug — whose records requests about the MailGuard system helped lay the foundation for the lawsuit — said the realization that mail correspondence is reviewed and retained at the digital level has made people in custody and their families fearful of communicating as they once did.
“It's decreasing mail,” Kirk said. “There are connections being broken because of these barriers that break what the flow of mail has been for 50 to 60 years. It's fallen totally on families to absorb this change.”
The named plaintiffs in the lawsuit are five people currently being held in San Mateo County jail, a couple of their family members, and A.B.O. Comix, an artist collective that corresponds with people in jail custody. In the filing, the plaintiffs affirmed Kirk's assessment of how the new system either slowed or stopped their desire to mail letters and other documents.
The main objective of the lawsuit, according to the filing and the attorneys, is to get a judge to declare the mail system is violating its subjects' First and Fourth Amendment rights, and order the county to stop using it and purge all of its retained data.
Gagliano also emphasized a scarcity of access since there isn't a one-toone ratio of the tablets for in-custody people. There is also the matter of cost: According to the vendor contract, use of the electronic tablets entails pay-per-message emailing at a rate of $0.50 per email and $1 per prescreened photo, with a weekly allowance of two free messages “to satisfy the needs of indigent inmates.”
“It's funneling profit at the expense of people's privacy and ability to communicate,” Gagliano said. “This goes far beyond the basics of making sure drugs are not getting into the jail.”