By Graham Rayman
New York Daily News
NEW YORK — New York City has built a massive unconstitutional database of recorded phone conversations between jailed suspects and people on the outside — with the ability to track and sort them by the sound of the speaker’s voice and words used, a new lawsuit alleges.
From Jan. 1, 2020 through Jan. 1, 2022, the database contained just under 18 million recorded calls, based on a disclosure by the Correction Department to the three nonprofits that filed the lawsuit Monday. The suit challenges the practice on federal and state Constitutional grounds. The sheer number of recorded calls was not previously known.
The groups filing suit in Bronx Supreme Court — the Bronx Defenders, Brooklyn Defender Services and New York County Defender Services — advocate for the rights of the accused in addition to providing free legal representation to criminal suspects who cannot afford lawyers.
While law enforcement agencies tout recording of jail calls as key to public safety both behind bars and outside, investigators actually listened to only 1.7% of the recordings, amounting to 305,000 calls, the city disclosure states.
For anyone who has spoken by phone to someone locked up in city jails, a recording of the conversation likely sits on a computer server in a largely unregulated setting overseen by the Correction Department and Securus Technologies, the lawsuit claims. Securus is not a defendant in the suit.
“The system is set up to grab literally every piece of information it can from these conversations,” said Elizabeth Vasquez, a lawyer with Brooklyn Defender Services. “We end up with a searchable database that has incredibly intimate information from largely Black and Brown people. It’s incredibly concerning.”
The lawsuit cites free speech and freedom of association provisions in the Constitution in demanding a return to a policy that required law enforcement to get a warrant before jail phone calls can be monitored. The lawsuit also seeks termination of the Securus phone contract and appointment of a monitor to oversee the system.
DOC Spokesman Frank Dwyer called recording calls a “critically important tool for public safety” in the city. All recordings, he said, are deleted after 18 months unless a call is preserved because of an active investigation.
“Monitoring of phone calls is essential for the safety of all staff and every person in custody,” Dwyer said. “This lawful practice is used throughout New York State, prevents contraband – including weapons and drugs like fentanyl – from entering facilities, and is part of the department’s robust efforts to prevent violence inside of city jails and far beyond the walls of Rikers Island.”
Securus spokeswoman Jennifer Luth declined comment on the suit.
“We have not, and will never, sell data generated by our public-safety software or services,” she said.
Plaintiff Samiyah De Freitas, 25, of Manhattan said she lent her name to the lawsuit because she said she was troubled that chats with her often-incarcerated aunt had been recorded since De Freitas was a teenager.
“It just feels very invasive,” said De Freitas, a health care worker who has never been in jail. “Knowing every word we shared, they are all just sitting somewhere. It feels like our right to privacy doesn’t matter.”
The court action comes three years after the Daily News broke the story that hundreds of confidential attorney-client calls out of Rikers had been improperly recorded. The new lawsuit claims that is just a snapshot of broader civil liberties violations taking place.
A previously jailed plaintiff, Marcus Reid, 30, had 43 of his lawyer calls improperly recorded in May and June 2020 alone and given to prosecutors, the suit alleges. “I became even more uncomfortable speaking on the phone,” Reid said.
A May 2023 report by the city Department of Investigation on the 2021 disclosures fell short of holding anyone accountable, the lawsuit alleges. A DOI spokeswoman declined comment.
Before 2008, correction officials had to show a judge they suspected a crime was taking place and get a warrant to listen to calls. Then in 2007, the Board of Correction passed a new one-paragraph rule allowing “with appropriate procedures” calls to be “listened to or monitored” when “legally sufficient notice” is given to those in jail. Calls involving lawyers, clergy, doctors and investigative agencies were exempt from monitoring.
The key phrase, “legally sufficient notice,” took the form of a recording heard at the start of calls and warning signs posted in the jails.
The rule said nothing about recording or storing the monitored calls, nor did it anticipate the evolution of the technology, advocates for suspects say.
In 2013, the Correction Department signed a contract with Securus Technologies, which has software called NextGen SCP that can identify specific voices using a “voice print.” A second program called WordAlert makes conversations searchable by key word. A third program called “Threads” allows the data collected from calls to be shared with law enforcement agencies nationwide, the lawsuit alleges.
Securus advertises that Threads “processes” more than two million calls a day, the suit says. The lawsuit states it is unclear how long the Correction Department keeps the recordings.
“There is no published or enforceable retention policy for this biometric data,” the lawsuit alleges. ”It appears that Securus retains all information indefinitely.”
In 2015, The Intercept reported Securus’ system was hacked exposing 70 million recordings, including 14,000 lawyer-client calls, across 37 states. Securus has been sued at least 10 times elsewhere for recording privileged calls, and has settled a number of those cases.
Starting in 2018, public defender groups in New York City began assembling anecdotes that lawyer-client calls were being improperly recorded.
As the evidence built, Correction Department leadership, including Commissioner Lynelle Maginley-Liddie, then a rising DOC official, resisted attempts to identify the scope of the problem, the suit alleges.
In March 2021, The News disclosed that 1,500 lawyer-client calls had been improperly recorded, with the Correction Department attributing it to a “clerical error.”
A later Correction Department audit found that 3,847 calls had been improperly recorded. But the analysis did not include calls prior to March 2020 or calls involving privately-retained lawyers.
Following those disclosures, the Correction Department renewed the Securus contract in April 2021, gave it a contract to provide electronic tablets to prisoners in July 2022 and in September 2022, when the department moved unsuccessfully to ban detainees from receiving physical letters, sought to give Securus the contract for scanning all letters.
The lawsuit accuses the Correction Department of not fixing the lawyer call problems that were revealed. Mayor de Blasio ordered the city Department of Investigation in 2021 to look into the problem. In its May 2023 report, DOI relied heavily on Correction Department audits and concluded only a “small percentage: of lawyer-client calls were recorded, the suit says.
“Securus took responsibility, quickly and transparently … and implemented safeguards to prevent future problems,” DOI concluded.
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