“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,” said Stephanie Krent, a staff attorney with the Knight First Amendment Institute. “The county’s digitization of mail also enables new and sophisticated surveillance against both senders and recipients of mail, posing a grave threat to freedom of expression, association, privacy, and religion behind bars.”

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. 

“Banning physical mail is completely antithetical to the criminal justice system’s goal of reducing recidivism,” said Hannah Zhao, a staff attorney at the Electronic Frontier Foundation. “Numerous studies have shown that letter-writing between incarcerated folks and loved ones outside lowers stress, reduces depression, and tightens relationships. For those in jail, communicating this way is an integral part of establishing strong interpersonal ties and feelings of community, which are universally considered to decrease the likelihood of reoffending.”

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.

“We are deeply concerned about the growing practice of depriving people in jail and prison of valuable personal communications that are often their only connection to the outside world,” said Pilar Gonzalez Morales, managing attorney at the Social Justice Legal Foundation. “Through this lawsuit, we seek to send a message to other jails and prisons across the country considering adopting a policy of destroying mail and replacing it with a digital surveillance program.” 

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.

Read today’s complaint here.

Lawyers on the case include, in addition to Krent, Mayze Teitler and Alex Abdo of the Knight First Amendment Institute at Columbia University; in addition to Zhao, Cara Gagliano, Aaron Mackey, and Mukund Rathi of the Electronic Frontier Foundation; and in addition to Gonzalez, Shubhra Shivpuri and Emily Olivencia-Audet of the Social Justice Legal Foundation. Silicon Valley De-Bug, Social Justice Legal Foundation’s grassroots partner and a nonprofit in San Mateo County that supports the families of incarcerated individuals, helped lead activism efforts and obtained key details about the county’s adoption of MailGuard through a public records request filed in 2021.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

As legal practitioners, we’ve seen that promise thwarted. Incarcerated people are often deprived of the benefits of digital communication, while facilities are quick to adopt technologies that push out traditional means of communication and foist unwarranted new surveillance on already-marginalized communities. Two of our recent projects highlight this double bind.

In 2023, the Knight First Amendment Institute at Columbia University, where we work, the Electronic Frontier Foundation, and the Social Justice Legal Foundation sued a county in California for its policy prohibiting physical mail in jail. San Mateo County contracted with Smart Communications, a private telecommunications company, to digitize and then destroy physical mail—replacing personal letters, pictures, birthday cards, and children’s drawings with scanned versions that are retained and surveilled by the county and by Smart Communications. San Mateo County is one of many places nationwide that has adopted a policy eliminating physical mail in favor of digital substitutes. Many more have considered it.

In lieu of physical mail, loved ones are forced to rely on low-quality digital scans of the physical mail sent to them. Smart Communications has marketed its mail-digitization program as a surveillance windfall by offering “a searchable database and ... a whole new field of intelligence.” The company’s CEO once told a reporter that it had never deleted a single piece of mail from its vast stores of personal correspondence. Smart Communications also pledges to track the mail senders more closely, collecting data like IP addresses, GPS locations, and banking details—information it makes available for law enforcement use. It is chilling that merely sending a letter to a loved one behind bars would subject that person’s writings, physical movements, and financial accounts to intrusive surveillance by the state and a private company.

As jails and prisons eradicate conventional methods of communication, they also seek to limit access to modern forms of expression. Earlier this year, the Knight First Amendment Institute submitted a public comment opposing a new rule proposed by the Bureau of Prisons (BOP) that would punish incarcerated people for using social media. The BOP, the agency responsible for over 150,000 federal prisoners, intends to make social media use a high-level disciplinary infraction, punishable to the same extent as fighting or damaging property. Of course, the BOP does not provide direct internet access to people in custody, and the use of unapproved devices is already an infraction behind bars. The proposed rule seems to serve two narrower purposes: making it easier to punish incarcerated people without evidence they were using a contraband device; and allowing facilities to punish incarcerated people even when they use social media only indirectly, by asking family members to post on their behalf.

The harms caused by these policies are immense. Physical mail in jail settings can ease often-debilitating loneliness, strengthen parent-child relationships, reduce depression, and improve mental health. It is associated with a host of positive post-incarceration outcomes, including reduced recidivism and a higher likelihood of housing stability, income self-sufficiency, and educational or vocational attainment. Social media, while less intimate than physical mail, has become an important vector for those incarcerated to remain connected to their communities and to share their experiences in prison with the public, especially on the subjects of racial justice and abuse behind bars. In our comment to the BOP, for example, we highlighted the story of Kastellio Vaughan, an individual incarcerated in an Alabama prison who received care for a life-threatening medical emergency only after photos depicting his emaciated body went viral on social media.

Prohibiting access to physical mail and social media is a detriment to us all. It deprives those incarcerated–and those of us on the outside–of important communication tools that mitigate the pain of incarceration and expose its often-grim realities to the public. On top of that, these policies usher in even more surveillance behind bars: in the case of San Mateo County, by allowing law enforcement indefinite and unlimited access to scanned mail; and in the case of the BOP, by encouraging corrections officers to hunt for social media posts and punish incarcerated people who authored them, whether directly or indirectly.

The Knight First Amendment Institute’s work challenging these policies foregrounds these harms. Our lawsuit against San Mateo County argues that the jurisdiction’s mail policy violates the California Constitution’s protections for free expression and freedom from unreasonable searches and seizures. On behalf of several clients, we’ve argued the county’s mail policy deprives those incarcerated of the uniquely expressive benefits of physical mail, deprives their loved ones of their ability to communicate in the manner of their choosing, and chills expression through the unprecedented surveillance of scanned mail. Earlier this year, the county filed a motion seeking to end the lawsuit prematurely, arguing that its policy was insulated by the deferential standard of review courts often apply to restrictions of speech in correctional facilities (known as the Turner review) and by the traditional understanding that searches of mail in jails and prisons do not violate the Fourth Amendment or its state corollaries. The San Mateo Superior Court allowed the case to move forward to discovery on the free expression claim.

As outlined in our BOP comment, the federal agency’s proposed social media rule is also likely unconstitutional. The rule would impose serious burdens on the free speech rights of individuals who are incarcerated and also on the public, which increasingly relies on social media to learn about the experiences of those in prison. The proposed BOP rule should be subject to heightened scrutiny because it would punish people for simply sending messages to loved ones on the outside that they want to be posted on social media. Even under the more forgiving Turner standard, the BOP rule would still likely violate the First Amendment given the rule’s prohibition on even indirect social media use without a penological justification. Though the BOP may point to security concerns, the federal agency already monitors incoming and outgoing communications. A decision by a family member or friend of an incarcerated person to post content they’ve lawfully received is unlikely to pose a security threat. The BOP’s preexisting monitoring of communication also makes it unlikely an incarcerated individual could successfully use indirect social media posting to thwart restrictions on whom they can communicate with directly.

It is unclear if the San Mateo Superior Court will strike down the county’s mail policy or what the BOP’s final rule will look like. The final rule might change based on public input, according to a BOP spokesperson. Our hope is that continued legal advocacy will draw attention to how communities impacted by incarceration are often left out, or directly harmed, by the advent of digital technologies. Digital communication should serve everyone, including incarcerated individuals, their loved ones, and members of the public who want to learn from their unique perspectives.

Since 2021, San Mateo County has prohibited friends, family, and other community members from sending physical mail to individuals incarcerated in its jails. Under the policy, all non-legal mail—including letters, pictures, birthday cards, and children’s drawings—must be sent to Smart Communications, a private surveillance company that scans copies of the correspondence, destroys the originals, and retains the digitized versions for at least seven years. Last March, five people incarcerated in San Mateo County jails, two of their family members, and A.B.O. Comix—a collective of artists that corresponds with LGBTQ people in prisons and jails—filed a lawsuit arguing that the policy violates various provisions of the California Constitution. (I am one of the attorneys representing the plaintiffs in the lawsuit.) Among those provisions is California’s constitutional protection for free speech—Article I, Section 2—which, the state’s courts have said, provides even “broader and greater” protections for expressive and associational activity than its federal counterpart.2 2. Gerawan Farming Inc. v. Lyons (2000) 24 Cal. 4th 468, 489–449.

In September, San Mateo County moved for judgment on the pleadings, arguing that the plaintiffs failed to state a claim under Article I, Section 2 and asking the court to rule for defendants based on the pleadings alone. In its motion, the county claimed that it eliminated physical mail in its jails to limit the entry of fentanyl and other drugs. The crux of the county’s argument is that its jail policies are entitiled to heightened deference, and the court should take the county at its word—without evidence—that fentanyl enters jail through the mail, justifying its ban on physical mail to incarcerated people.

But judicial deference isn’t a blank check for jails to violate the right to free speech and association. On the contrary, courts are required to examine the facts carefully to determine whether there is a close fit between the regulation and the supposed interests it would serve. That requires courts to ask many questions that generally cannot be resolved at the pleading stage—before jail administrators have fully explained the basis for their policy, and before plaintiffs have had an opportunity to scrutinize that explanation through discovery.

Here, important questions remain about San Mateo County’s decision to make the drastic move of eliminating physical mail. What prompted the county’s alleged concerns about fentanyl exposures through mail, and how exactly does banning physical mail address that concern? Why can’t the county continue to utilize drug-sniffing dogs and detection devices to prevent access to opioids? How is the lack of physical mail impeding religious practice and educational opportunities? Are people incarcerated in the county’s jails actually able to access the scanned versions of their mail meaningfully through the tablets and kiosks provided by Smart Communications? Physical mail has long been the primary medium of communication between incarcerated people and those most invested in their rehabilitation—their partners, children, religious advisors, educators, and mental health counselors. Jail administrators should not be able to eliminate it arbitrarily.

The implications of allowing our plaintiffs’ lawsuit to proceed past the pleading stage—a decision that will compel the county to answer these important questions—extend far beyond San Mateo County. In the past few years, bans on physical mail for incarcerated people have become a cruel and exploitative trend, with prisons and jails in at least 27 states implementing policies that resemble the one we’ve challenged in San Mateo. Despite jail administrators’ frequent assertions that eliminating physical mail is necessary to prevent drug use and overdoses, mail digitization has demonstrated minimal to no benefit. Rather, states that have adopted MailGuard and similar programs have actually seen increases in drug test positivity rates and overdoses. As the first major challenge to the digitization of personal mail in U.S. jails, A.B.O. Comix v. San Mateo County could pave the way for lawsuits in other jurisdictions engaged in similar practices.

Fortunately, the San Mateo Superior Court agreed that further factual development is necessary to determine whether the county’s current mail policy is an “exaggerated” (and therefore unconstitutional) response to its claimed rationale that physical mail facilitates fentanyl exposures. And while there is much to be criticized about the court’s ruling on plaintiffs’ free speech claim more broadly, its ultimate conclusion that the case should proceed to discovery is an important victory for incarcerated people, for the loved ones who correspond with them, and for human dignity, which demands that the constitutional rights of everyone—including people behind bars—be respected.

Listen to the podcast here.