For the more than 150,000 individuals currently incarcerated in federal correctional facilities, the ability to send and receive mail is a lifeline, connecting them to loved ones, community members, educators, religious leaders, and social services. Physical correspondence is unique: It allows incarcerated people to hold a picture painstakingly drawn by their child, to keep a letter from a loved one under their pillows, or to display a holiday card sent from a well-meaning stranger. During the COVID-19 pandemic, as in-person visitation has been restricted or eliminated entirely, letter writing has become one of the few remaining forms of communication available to those behind bars.

But in recent years, prison mail has come under threat. Many correctional facilities have begun digitizing physical mail, denying incarcerated people the original mail sent to them, and subjecting both the senders and recipients of those letters to heightened surveillance. These programs have found footing in both local jails and statewide correctional agencies; even the federal Bureau of Prisons began a pilot program with Smart Communications, one of the primary telecommunications contractors offering mail digitization services.

Earlier this summer, the Knight Institute filed a Freedom of Information Act (FOIA) request with the Bureau of Prisons to understand how federal corrections officers are storing and using the trove of personal information collected by Smart Communications. Because the bureau didn’t respond to our request, we filed suit last month.

Since then, we’ve learned that the bureau has paused its pilot program, although it is still actively considering expanding the program in the future, with the support of BOP union heads. We’re litigating over this request to ensure that before the bureau makes a final decision, it has provided the public with a full accounting of the pilot program, including the data it collected, the policies that governed the use of that data, and the safeguards, if any, it put in place to prevent abuse of the system. These records are particularly important given the serious First Amendment concerns presented by this new form of carceral surveillance.

Considering the immense harms suffered when correctional facilities destroy original mail and ratchet up surveillance, the government must do far more to justify their program before resuming mail scanning at any facility.   

Mail digitization systems collect and retain deeply personal information, not only about those in prison, but also about their loved ones, their educators, and their religious advisors. Facilities that have contracted with Smart Communications, for example, direct letter writers to send all incoming non-legal mail to a site in Florida, where Smart Communications employees scan and upload images of the mail into a searchable database accessible to employees at correctional facilities. Correctional officers review the incoming mail in the database and forward a digital copy or photocopy of approved mail to the recipient. Originals, including handwritten letters, drawings, and photographs, are never shared.

Through its “Smart Tracker” service, Smart Communications also surveils the senders of mail who attempt to track their letters, storing information about senders’ IP addresses and GPS locations, their contact information, copies of letters they’ve sent, and a list of all “connections”—that is, every incarcerated individual the sender has communicated with. Long after the copied mail is delivered, these electronic records live on in Smart Communications’ database, never more than a click away from corrections officers. The company’s CEO told a reporter in 2018 that “Smart Communications has never lost or deleted any records or any data from our database. There are hundreds of millions of data records stored for investigators at anytime.”

Because the bureau has not turned over any documents in response to our FOIA request yet, we don’t know how exactly its pilot program worked. But it’s clear that the pervasive surveillance enabled by Smart Communications and vendors like it has already chilled the expression of members of the public who wish to send mail to those held in correctional facilities. In response to Pennsylvania’s adoption of the Smart Communications system in 2018, for example, the spouse of one incarcerated individual said that she would not “send any pictures to [her husband] that have faces of our children, our grandchildren,” because she and her husband “want … no family faces saved in that database whatsoever.” Another spouse stopped sending her child’s original artwork to her husband serving a life sentence.

Mail digitization systems have also erected unnecessary barriers to meaningful communication, further isolating people in prisons and jails. People in facilities that have adopted or tested such systems report long delays in receiving mail and incorrect copying, including distorted photographs, illegible letters, and lost pages. And the loss of original mail weighs heavily on them. Gregory Marcinski, who has been incarcerated for almost 20 years, told a reporter last year that he could still smell the scent of his father’s favorite cigarettes on the last letter he received before his father passed away in 2016. He treasured the ability to “see the ink he used on that paper,” especially as he could no longer receive original letters from his partner or her children.

These programs may also violate the confidentiality standards required for certain sensitive communications. Just Detention International, a human rights organization, has argued that these systems are inconsistent with the national standards set under the Prison Rape Elimination Act requiring correctional facilities to “enable reasonable communication between inmates and [victim advocacy] organizations and agencies, in as confidential a manner as possible.”

To be sure, correctional facilities enjoy significant leeway when they create programs that are designed to keep prisons—and the people in them—safe. But this discretion is not limitless: Restrictions on the speech of those incarcerated must be rationally related to the government’s goals, and must leave alternate means of communication open. Unfortunately, there is little evidence that these invasive programs have any meaningful impact on security. Although ostensibly designed to curb the introduction of contraband into facilities, the adoption of mail digitization in Pennsylvania did not lead to a decrease in the average drug test positivity rate. And reporting suggests that correctional officers—not letter writers or even in-person visitors—are primarily responsible for the introduction of contraband to correctional facilities. Considering the immense harms suffered when correctional facilities destroy original mail and ratchet up surveillance, the government must do far more to justify their program before resuming mail scanning at any facility.