March 2022

“To accept this free call, press one, to refuse this free call, press two,” the robotic and monotone operator says, relaying a call from Suffolk County Correctional Facility. After a pre-recorded voice says the facility is working hard to curb the coronavirus, the Securus carrier returns: “Thank you for using Securus. You may start your conversation now.” 

Travis Johnston, 38, has spent the last 13 years of his life in and out of prison, and describes himself hesitantly as a “lifetime criminal.” Johnston, who recently accepted a plea deal for his 2nd degree burglary charge, is spending a year at Suffolk County Correctional Facility (SCC) in Long Island, New York. Suffolk County, coined “Suffering County” by Johnston, has a history of terrible living conditions, a bad menu, and Johnston describes it as an overall “bare minimum” facility.

Johnston, along with his fellow inmates, are now subjected to a new surveillance technology, called Verus, that kick-started its first New York pilot program at SCC in 2019, thanks to a $700,000 grant provided to the Suffolk County Sheriff’s Office from the federal Department of Justice (DOJ). 

Verus was created by California-based LEO Technologies, a company founded by former law enforcement officers, and utilizes Amazon Web Services (AWS) Natural Language Processor (NLP), which is used to transcribe prison phone call recordings in real time and allows for certain keywords and phrases created by respective officials to alert prison officials using artificial intelligence. 

Verus is used in accompaniment with prison phone call providers, like Securus. Securus Technologies, which debuted in 2007, is one of the largest prison communications providers in the U.S. and helps prisons monetize inmate phone calls, monitor, and record them. As of December 2020, Securus handled 39% of the market, with contracts for 692 counties and 18 prison systems, accounting for a total of 860,000 people, according to “The Prison Industry: How it started. How it works. How it harms.” from Worth Rises, an organization dedicated to dismantling the industry and ending the exploitation of people who are incarcerated. Securus, according to “The Prison Industry,” makes roughly $700 million in revenue each year.

As of November 2021, Verus is used at Monterey County Jail in California, the Oklahoma Department of Corrections, the Houston, Texas Police Department, 10 jurisdictions in Alabama, more than 20 in Georgia, and now in SCC in New York.

The technology was created under the assumption that constant surveillance of phone conversations with real-time transcription would create safer environments within prisons and assist in external investigations — LEO’s CEO Scott Kernan told The Intercept in April 2020 that the system had transcribed 84,068,940 minutes of calls, which in context, is 159 years. But family members, activists and lawyers alike are concerned about the amount of data a system like this can collect, the privacy implications it places on populations affected by the carceral system, and the implicit biases the machine learning might display.

On Feb. 7, 2022, 42 civil and digital rights groups signed four different letters sent to the attorney general’s office in New York state, New York’s Inspector General and the DOJ looking to answer these underlying questions while urging for the expansion of this type of surveillance technology to be stopped, explaining that these tools can perpetuate racial biases and infringe on privacy rights. The Surveillance Technology Oversight Project, Worth Rises, the Immigrant Defense Project and The Bronx Defenders are among the signees.

“This surveillance infringes on the rights of incarcerated Americans, many of whom have not been convicted and are still working on their defenses, as well as those of their families, friends, and loved ones,” one of the letters read.

According to the letters, between April and May 2019, Verus surveilled over 2.5 million phone calls. In those calls, SCC officials created keywords that do not explicitly flag for the word they are looking for. An example of an innocuous keyword is “mara,” which in Spanish (as the system does translate Spanish conversations into English) could mean a group of friends — but Suffolk County Officials are flagging it to mean gang membership, falsely accusing Spanish-speaking New Yorkers of gang affiliation.

Aside from discriminatory monitoring, Verus was marketed extensively as a tool to curb the spread of COVID-19 in prisons and jails, but instead it targeted those who complained about the living conditions during the pandemic and “fuel[ed] cover-ups that prevent critical media and accountability. These types of restrictions on speech do not serve any legitimate penological goal,” the letters state.

The Attorney General and DOJ could not be reached for comment at the time of this writing.

According to a Verus fact sheet shared by LEO, Verus was built with a focus on individuals’ right to privacy, basing their model on 28 CFR 23 in the Electronic Code of Federal Regulations in the Department of Justice’s Criminal Intelligence Systems Operating Policies. This regulation exists to “assure that all criminal intelligence systems are utilized in conformance with the privacy and constitutional rights of individuals,” according to Cornell Law. The data collected by these systems must follow this regulation as data must be relevant to criminal activity, or “suspected involvement,” in order to maintain constitutional values.

But do recordings of every single call going in and out of jails and prisons represent suspicion of criminal activity, or are most of them unimportant and simple human communication? Where is the legal line, if any?

Dr. John S. Shaffer, a retiree of the Pennsylvania Department of Corrections after 31 years and has worked with the National Institute of Justice, the National Institute of Corrections, the National Law Enforcement Corrections Technology Center and the Department of Justice to develop prison phone call technology, says that in his experience, most inmate calls are innocuous.

“They are calls just like anyone else, they call their family and their friends and tell them what’s going on in the world,” he said. “It’s only a very small portion or fraction of those calls that really have any significant security interest.”

Every American holds Fourth Amendment rights, or the expectation of privacy. Those who are incarcerated have diminished Fourth Amendment rights, which creates a gray area in cases surrounding surveillance technologies like Verus, but pretrial detainees remain innocent until proven guilty. But there is no clear line drawn in the law regarding their right to privacy.

Hannah Zhao, a staff attorney at the Electronic Frontier Foundation (EFF), one of the groups that signed onto the joint letters, says that those who are pretrial, in theory, should receive their full Fourth Amendment rights, or at the very least, have the right to a different type of analysis regarding their expectations of privacy while held pretrial. Those who are pretrial are usually held without bond, or because they are unable to afford high bails or bonds — which perpetuates the economic side of Constitutional freedoms — but “civil liberty groups like EFF say that it is a violation of their Fourth Amendment rights, that is our position.”

In 2015, The Intercept received documents from an anonymous hacker of a Securus security breach, and proved that the company was violating inmates’ Sixth Amendment rights. The leaked information, shared to the publication via SecureDrop, included 70 million phone records of calls placed by inmates to at least 37 states — from December 2011 to spring 2014 — with downloadable audio files of every phone call’s recording. Of the 70 million records, at least 14,000 were recorded attorney-client privileged phone calls.

“We found out that they were recording many attorney calls which has raised a number of issues,” said Jerome Greco, a supervising attorney of the Digital Forensics Unit at the Legal Aid Society, and a community advisory board member at S.T.O.P., a 501(c)(3) surveillance abolitionist organization that was founded in 2019 and focuses specifically on government and police surveillance tactics. “Why do these calls get recorded? We all agree that they’re not supposed to be, and they violate somebody’s right to attorney-client privilege, and in terms of artificial intelligence, if they were to now say ‘Destroy those calls or make them inaccessible,’ have they already been used to help train the artificial intelligence and is there any way to backtrack there? That’s not entirely clear to me.”

A study from the CyLab Security & Privacy Institute at Carnegie Mellon University says that around 75% of people who have not been convicted are subjected to this surveillance due to high bail and bonds that they cannot afford. Some participants in the study were also under the impression that they could request deletion of their data after their loved ones were no longer incarcerated, but the study says they do not believe that is accurate.

Cases brought to court regarding inmates’ or pretrial detainees’ rights to privacy have not held up particularly well in court, Zhao says.

For example, Riley v. California, a 2014 Supreme Court case, explored how the digital world is evolving and the ability of law enforcement to get information from individuals has expanded dramatically. David Leon Riley, a member of the Lincoln Park gang of San Diego, California, was charged with a shooting based on ballistics evidence, and subsequently was charged with attempted murder, shooting at an occupied vehicle and assault with a semi-automatic firearm. When Riley was arrested, he was holding his cellphone, and police analyzed the data, which included photos and videos, overall proving his gang affiliation. Riley argued against the evidence found on his phone, but the Court denied his motion.

The Court believed cell phones were comparable to “minicomputers,” and held “massive amounts of private information.” Cell phones, according to the court, were considered different from the simple search and seizure of a wallet on an arrestee’s person. “The Court also held that information accessible via the phone but stored using ‘cloud computing’ is not even on the arrestee’s person,” the concluding opinion said.

Over the years, the increase and monetary accessibility to storing data, like cell phone cloud storage, has expanded the use of heightened surveillance technology, creating questionable applications of privacy rights for all parties involved.

At first, correctional facilities would keep only a few calls at a time, says Elizabeth Daniel Vasquez, the director of the Science and Surveillance Project at Brooklyn Defender Services and a community advisory board member of S.T.O.P.

“Securus now allows an institution to keep every recording,” she said. “So every phone call that gets made is recorded, and every recording is stored in a database.”

Legally, there is a vague separation between what constitutes as a violation of a detainee or inmates’ Fourth Amendment rights, but the rights of their family members, loved ones and friends come into question. How does this type of surveillance imply they are guilty by association?

According to the Verus fact sheet, Verus is not considered a voice recognition software, as the NLP focuses on “what words are being said and how words are said by focusing on frequency, volume and tone.”

Albert Fox Cahn, the executive director of S.T.O.P., says that the issue of this surveillance is not simply the recordings of the conversations, but rather the biometric data that is potentially collected at the same time.

“No one should be subjected to this surveillance,” Cahn said. “The fact that you have children being recorded simply because their speaking to loved ones who are being held in prisons and jails, to me that is really disturbing and beyond any defense, and this is not something that I think should be normalized for anyone, but is particularly problematic when you’re dealing with individuals whose rights are being stripped away for no other reason then who they’re related to.”

While Verus may not independently act as a biometric tool for voice recognition, Securus does use voice print analysis tools to track those incarcerated and who they call. Their website entices correctional facilities to add Securus’ Investigator Pro package to their contracts, which would use voice prints to “expose incarcerated individuals who try to hide their identities and commit crimes using their legal telephone system.” They claim, “You’ve Never Seen Voice Biometrics Like This” and “Accuracy With Ease,” bulleting the packages advantages to prison officials and its widespread capabilities, like identifying an incarcerated individual by name despite what PIN is used to access the call.

According to the United States Patent and Trademark Office (USPTO), Securus obtained a patent in January 2021 for electronic sampling of inmates’ voices. These samples are then compared to other samples of people with criminal records. If a match is made, any data or evidence surrounding the two individuals is then shared with the respective facility’s staff to “identify key issues, such as active warrants,” the patent’s abstract states.

The comparison of these matches, however, began in 2018 when Securus was granted an initial patent that would be used to investigate “networks of criminals by gathering associations between phone numbers, the names of persons reached at those phone numbers, and voice print data.” In doing this, the goal was to identify scams based on known voice prints, and automatically provides voice-to-text transcription.

According to “The Prison Industry,” since the implementation of these patents, Securus has logged more than 20,000 voice prints of inmates.

The Massachusetts Institute of Technology (MIT) describes the functions of a machine learning system as something that is used to assist in AI technology, but the terms are sometimes used ambiguously because they work hand in hand. The first step is “descriptive,” where data is shared with the system to help it understand the past collection and how it works; the second step is “predictive,” where the system then uses that previously learned data to predict what will happen; and the third step is “prescriptive,” where the system then uses both the descriptive data and prescriptive data to suggest the system to act accordingly.

Mikey Shulman, lecturer at MIT and head of machine learning at Kensho, a financial technologies company, says that machine learning is a way to teach computers to repeat tasks based on examples they’ve seen before, which is similar to how humans learn.

Regarding bias, though, Shulman says that first, its important to look at the data itself, as this data is what is used to train the algorithm. The data and the algorithm have another layer though — the human element.

An example of this, according to Shulman, is stereotypical, but explains how data has a huge impact on how machines learn. If there’s a database of celebrity faces, and you’re looking to have a computer generate more that don’t technically exist, machine learning is the next step.

“If that dataset, for example, is 80% men, the computer is going to learn, no matter what, to preferentially generate men,” Shulman said.

Cahn says that while Verus is supposedly stopping incarcerated people from committing crimes, he is alarmed by the idea that you can have predictive analytics that determines when someone is going to commit a crime before it happens. On their website, LEO says “By implementing Verus in U.S. prisons, we can shift the paradigm of law enforcement from reactive to predictive.”

“This sort of crystal ball capacity sold to law enforcement, with the promise that you can find out who’s going to commit a crime before it even happens, when in reality, technology at best is crudely profiling people based off of policing patterns from the past,” Cahn said. The list of terms, which are created by prison officials at facilities that use Verus, are completely distorted by specific ways of thinking, he added — leading to an unconscious bias impacting the machine learning of the AI.

Shulman, referencing predictive analytics, points out that these models are tools, “they’re not silver bullets. They’re a tool to understand the world and they do provide a lot of value in understanding.”

“Humans make the same stupid bias mistakes that these models do as well. We’re just less good at understanding them,” he said. While he said he may be blaming humans for the technologies mistakes, but really does believe humans are usually at fault in terms of teaching the machine a bias through data, which in turn leads to bias-enhanced algorithms that then lead to the type of artificial intelligence system Verus is using. The terms created by officials may perpetuate this coded bias.

Verus’ fact sheet says that the “system stays objective,” but Zhao says there is no actual independent auditing of this type of technology, and the public has no access to the technology to examine it from an outside perspective.

“It gets used against this population without any real input or approval by civil liberties groups, which is why we have signed onto that letter to say that we shouldn’t be providing funding to these unproven technologies,” Zhao said. “They can do exactly as they do, which is to make this fact sheet with these claims, and a lot of these claims upon scrutiny might hold up, but we don’t know because we’re not even allowed to scrutinize.”

Dr. Shaffer, who joined the carceral industry in the 1970s, says inmates didn’t have access to phones, but instead would write letters as a part of their literacy program. Soon, it moved towards requests for emergency calls, but the requests were not often granted. As a former counselor, it was in their job description to assist in the process of providing the emergency call, but first, they had to be convinced.

When working in May of 1987, Dr. Shaffer shared an office with another counselor named Jack Bowen. An inmate asked Bowen if he could call his mom, as he received a letter that said she was terminally ill, and Bowen gave the standard response at the time: “Write her a letter.” Shaffer says the inmate was very insistent on using an emergency call to speak to his mother.

“Jack, who was kind of a smart-ass guy said, ‘Hey, you weren’t worried about your mom when you did what you did to come here [so why] worry about her now,’ and turned around and walked away,” Dr. Shaffer recalls. “The inmate slit his throat ear to ear. To this day, Jack has a paralyzed face.”

This, Dr. Shaffer believes, is the reason phone calls are so important to inmates, as for decades it was their only means of communication with the outside if visits were inaccessible. Bowen never did return to work in the prison again.

Verus, aside from concerns of privacy, has assisted in solving major cases. One notable case is the abduction of 3-year-old Kamille “Cupcake” McKinney. MicKinney was abducted from a birthday party in 2019. Because of eyewitness accounts, officials used “candy” as a keyword, and flagged 20 phone calls discussing the kidnapping. “This les to a call that placed a suspect purchasing candy before the kidnapping and ultimately led to a murder charge and the location of the girl’s body,” Verus’ fact sheet says.

“Let’s say you’re saying you think that a particular term is used by a particular gang, and somebody uses it just because that’s a term that’s used in their neighborhood, not because they’re part of a gang, are you not going to falsely flag them as being a gang member?” Greco said. “If so, what consequences do they suffer from? Are they going to get treated worse? Are they going to have their cell tossed more often or have their calls listened to more closely?”

A second phone call from Johnston, however, proved his unconscious fear: he was called down to the security office, and was suspected of being involved in some conspiracy over the phone. As Greco said, a particular term can flag officials, and a conversation with a journalist about this AI system does not land beyond those constraints. The Suffolk County Sheriff’s Office could not be reached for comment in time of this writing.

“They came in with a dog, tore my cell up, put me down in security, put me in handcuffs and told me I am being investigated for conspiracy,” Johnston said. “They asked ‘Have you seen the papers? Do you know about the conspiracy that’s going on in Riverhead jail?’ Then I see my face on a screen with like 16 other people.” Johnston never called again.

“Something that's always a fear with these new technologies is that it becomes a way to target those who speak out against the way it's being used, and retaliation by corrections officials against inmates who stand up for civil rights is so commonplace it really is appallingly frequent,” Cahn said.

If certain terms are marked as flagged, this then gives officials what inmate is saying that specific term, which in turn causes for checking phone call recordings without any prior suspicion.

“While these terms may implicate those who are incarcerated, their family, friends and loved ones have no choice but to consent to the monitoring and recording of phone calls. “As law currently stands, that is enough,” Greco said. “Whether or not they can use artificial intelligence on a recording is something that people are normally not made aware of and seems to provide an additional or extenuating invasion to their privacy, which they’re not consenting to by receiving the call or accepting the call.”

Dr. Keeonna Harris’ life changed in 1994 at the age of 14 when she met her now-ex-husband Jason and got pregnant with their son Tre. Jason always pushed Dr. Harris to go to college, as to him, it was something out of a TV show — he was homeless, a high school dropout, a gang member, and a drug dealer — who supported Dr. Harris with money, as he was never keen on showing love in conventional ways.

One night, Dr. Harris waited for Jason to come home, but ended up falling asleep — until she woke up to the fateful “collect call.” Jason had been arrested for an attempted carjacking and told Dr. Harris he’d been on the run for a shooting the year before. Over the course of his trial, Dr. Harris finished high school while being a single mom, still succeeding in school with flying colors. After the trial, which Jason asked Dr. Harris not to attend, she assumed because of embarrassment, she looked at her one-year-old son and answered the phone — it was Jason. He’d been sentenced to 22 years.

At 24, Dr. Harris was still with Jason, making their long-distance incarcerated relationship work for almost a decade. She put on her Lane Bryant long, white, backless dress on and prepared to go visit Jason — it was their wedding day. At Calipatria State Prison in California, a correctional facility that also uses a Securus phone system, sometimes there’s a line at least three miles long of cars to visit loved ones, but that day, a friend greeted Dr. Harris excitedly, saving her a spot in front of her so Dr. Harris wouldn’t miss visiting hours due to the wait.

After going through security with her family, Dr. Harris waits for Jason. In the corner of the visiting area, the pair are married by the Justice of Peace, sharing vows in the crowded room in front of over 50 strangers. Their honeymoon took place over the next couple of hours, and soon enough, visitation ended, and so did her wedding day.

Now, over 10 years later the pair are divorced, but Dr. Harris says while it is not only the carceral system to blame, it did play a huge role.

“I married this person while they’re incarcerated, so it wasn’t about that,” she said. “But, I think the prison did the job that it’s supposed to do. I think prison is designed to try to destroy families and destroy individuals.”

Dr. Harris, who holds a PhD in Justice Studies from Arizona State University and was a PEN America Writing for Justice Fellow in 2018-19, centers her activism and academic work around prison abolition, and more specifically, motherhood and raising children with an incarcerated parent. Currently, she is a mother of three.

Dr. Harris describes phone communication as difficult, due to regulations surrounding phone time for inmates and the schedules of her and her children, because of school and extracurriculars, Harris felt it was difficult for her children to speak with their father.

“Behind Bars but Connected to Family: Evidence for the Benefits of Family Contact During Incarceration,” from the American Psychological Association’s Journal of Family Psychology found that in a study including 225 high-risk incarcerated women, having contact with family members over the phone was associated with a reduced risk of recidivism within five years of release.

“Family contact predicted fewer self-reported offenses and official records of arrest, symptoms of alcohol dependence, depression, stress, and borderline personality disorder, and more hours employed and adaptive community functioning,” the results of the study discovered.

Stephanie Krent, staff attorney at the Knight First Amendment Institute at Columbia University, says this type of technology can be “deeply damaging” for families, and that the cost of communicating with someone incarcerated has been “ratcheted up.”

Aside from the necessity of family contact and how they’re impeded by constraints placed on communication availability by prisons, the monitoring and recording of phone calls is weary for loved ones.

“At the very beginning it’s very invasive because people are possibly listening into your conversations, especially if you have to discuss very private issues or you’re discussing your feelings which are always personal to you,” Harris said, explaining that after a while, she became desensitized to the surveillance.

The CyLab study says that one in seven adults have a close family member, like a parent, child, sibling, or spouse, who’s been incarcerated for at least a year.

This surveillance, though, is done after consent from the person on the outside, as they are alerted that the conversation is being recorded and monitored. But, SCC’s intro-recording did not include this surveillance-type warning.

“I’m always skeptical that consent is truly consented because given the course of nature of the conditions in which people are agreeing to this, they oftentimes don’t have a real choice,” Cahn said.

Greco agrees with Cahn’s sentiment that there really is no choice. “Even if there’s the recording itself, if your choice isn’t between whether or not you get to talk to a loved one, and be recorded, or not talk to them at all, isn’t really much of a choice for most people,” he said.

In attempting to speak to his daughter, who is 12 years old, Johnston describes the situation as difficult. He doesn’t entirely blame the recording on the difficulty, but rather the phone system in general. “She knows how to answer my calls and what buttons to press, but it kind of bothers her,” Johnston said. “I try to keep my calls to a minimum, but it’s a lot, especially since I’m no there to add that extra money for them — now it costs them money for them to talk to me, it’s just a whole vicious cycle.”

After a collective 13 years behind bars, Johnston has become comfortable, or more so uncaring, of being recorded or monitored — but that doesn’t mean he is unaware of possible consequences.

“Do I think I might get pulled down to security and asked about the conversation that was had? Yes. But I know my rights as a person; freedom of speech, right or wrong,” he said.

The Prison Policy Initiative, a non-profit that researches the harm of incarceration and advocates for change, reported in 2017 that families spend around $2.9 billion on prison phone calls and commissary purchases annually.

In May 2019, New York City Mayor Bill de Blasio implemented Intro 741-A, a bill that would make New York City the first major city in the country to provide free phone calls for people in custody. This legislation hoped to ease the burden on families, and proved to be very beneficial when the pandemic ended in person visitations, and phone calls or video chats were the only means of communication for incarcerated people.

Bianca Tylek, founder and executive director of Worth Rises, says prison communication costs are predatory in nature. The legislation that was passed, she says, saved directly impacted families in New York roughly $10 million a year, considering taxes and fees.

This connection between loved ones and those incarcerated is important, as concluded by the Journal of Family Psychology. The legislation not only solved monetary issues but gave the family of incarcerated people the ability to communicate more freely.

“Call volume increased 40% overnight,” Tylek said. “That became the new normal which basically just told us not only are we able to save so many people money but also connect many who couldn’t afford to connect previously.”

“All of the [companies] are owned by private equity, and charge as much as $1 per minute for people to stay in touch, which drives one in three families with a loved one who’s incarcerated into debt over the cost of calls and visits” she added. “87% of those carrying that burden are women and largely and disproportionately women of color.”

Harris understands this burden all too well, as although she knew she was marrying someone who is incarcerated, she put herself through school, maintains a job, and must support her three children by herself. When they were younger, it was more difficult because of childcare.

“I have debt, because I had a missing person that was gone for most of my kid’s childhood, so I had to rely on myself as a mom,” she said. “So even though quote unquote I did all the right things — I went to school, I have a BA, I have a Master's, I do all these things — but I created student loans and debt for myself that is much higher someone else would have had.”

Tylek believes that many people miss the relationship between surveillance and the cost of calls. She says that these companies use these security and surveillance measures in order to justify high call costs. “When someone asks [why they charge these egregious rates], their excuse is [that they] have to conduct all of this security and surveillance that doesn't need to be conducted on the regular communication that we have in the free world,” she said.

The lack of objective limits placed on Verus is cause for alarm, and digital and civil liberties groups hope to halt further expansion, in hopes to realign the carceral system with constitutional rights in regard to privacy and attorney-client privilege and provide incarcerated people the ability to connect with their families without a fear of debt or retaliation.

“I think the use of these increasing surveillance capabilities, without clear safeguards in place, creates an unacceptable risk of abuse, and creates a very strong chilling effect that really burdens the speech of people who are incarcerated, and the people who love them, who want to communicate with them and keep that community tie in place,” Krent said.