Jeremy Busby & Isabella Lucia Maitino Truthout/TheAppeal
Congress is grappling with the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA), the controversial program that allows the U.S. government to surveil foreigners and the individuals that correspond with them, including Americans. Its proponents say it’s vital to national security, but civil liberties advocates say it’s unconstitutional.
Section 702 expired on June 12 because lawmakers could not agree on terms for a renewal and, without a permanent director of national intelligence following Tulsi Gabbard’s resignation (until prosecutor Jay Clayton’s recent confirmation for the role), talks about resuming the program — with reforms or otherwise — have stalled.
Section 702, which is considered a counterterrorism mechanism, grants government officials authorization to track foreigners abroad to obtain “intelligence information” in the interest of national security. But when tracking what it deems “intelligence information” about a foreigner, the government also collects ordinary information that has absolutely nothing to do with counterterrorism or security.
Day-to-day communications from law-abiding U.S. citizens get caught up in this web of surveillance without their knowledge or consent, and without a warrant. This information is stored in government databases for years, if not indefinitely. Officials at the NSA, CIA, FBI, and other agencies can review this information for a wide variety of reasons, including criminal prosecution and immigration enforcement.
At a time when the Trump administration seeks to expand the definition of terrorism to encompass a wide range of dissenting views, Americans’ fears of abuse of government surveillance of their communications are more justified than ever; 15 activists in Minneapolis were recently indicted based largely on Signal chats, for example.
Regardless of what happens with Section 702, the government is still spying on millions of U.S. citizens daily through its system of mass incarceration. These abuses — also conducted using security concerns as pretext — deserve every bit as much scrutiny as the government’s overreach under Section 702. Unseen surveillance has already eroded the privacy rights of millions of incarcerated individuals and those on the outside who communicate with them.
Surveillance of Prison Communication
The U.S. is the world’s leader in incarceration. According to the Prison Policy Initiative, there are nearly 2 million people held in the nation’s jails, prisons, and detention centers. Securus and ViaPath are the country’s largest prison and jail telecom corporations. Collectively, they dominate about 80 percent of the U.S. telecom market.
In addition to its contracts with the federal government, this duopoly has agreements with at least 43 different states and over 800 county jails. They facilitate hundreds of millions of calls and electronic messages between incarcerated individuals, their legal teams, and loved ones.
Under the guise of security, anyone who utilizes their services is given advance warning that their phone calls could be recorded. What happens to those recordings outside their stated security purposes is largely unknown. Calls between incarcerated individuals and their legal representation are supposedly exempt from this policy. As an incarcerated journalist, all my reporting is surveilled in some way or another.
Just as “foreign intelligence information” is defined broadly under FISA Section 702, “security” is loosely interpreted by Securus and ViaPath. Actions by both telecom corporations reveal “security” to mean anything that advances their profit margins or the U.S.’s expanding police state.
Back in 2018, a New York Times investigation revealed that Securus exploited a location-based services program run by cellphone providers Sprint and T-Mobile. It abused the program to illicitly access the customer location information (CLI) of people communicating with incarcerated individuals, without their knowledge or consent.
These acts were illegal. First, Sprint and T-Mobile violated the Communications Act, which requires telecommunications carriers to protect the confidentiality of customers’ information, including CLI. Next, Securus enabled the government to systemically violate the Fourth Amendment of the U.S. Constitution, which protects people against unreasonable searches and seizures.
Most disturbing were the “security” justifications Securus used to collect customer data: expanding law enforcement capabilities, including for non-law enforcement purposes.
Law enforcement agencies used the CLI to track the movements of law-abiding citizens simply because they could. This illegal arrangement with Securus allowed the government to circumvent Fourth Amendment safeguards, as well as federal privacy laws like the Privacy Act of 1974 and its state counterparts, which mandate that consumers be informed in advance before their data is collected by the government. Additionally, consumers should know the purpose of the collection of their data and how the data will be used, protected, and stored.
The CLI debacle was just the start of jail telecom corporations’ race to track Americans in ways Section 702’s proponents can only dream of. Corporations like Securus are investing enormous resources to develop more advanced surveillance capabilities. These intrusive efforts range from the collection of voice prints, signature architecture, hand geometry, fingerprints, facial recognition, biometrics, and eavesdropping spy technologies. ViaPath has been accused of similarly disturbing surveillance abuses.
In 2024, The Bronx Defenders, Brooklyn Defender Services, New York County Defender Services, and the law firm Cleary Gottlieb Steen & Hamilton LLP filed a class-action lawsuit against the New York City Department of Correction (DOC). According to the complaint, the DOC is responsible for operating a mass surveillance system throughout its jails that violates state, federal, and constitutional law aimed at protecting incarcerated individuals and the community members with whom they communicate.
This lawsuit comes on the heels of a 2021 partial review of New York’s Department of Correction practices, in which it was discovered that thousands of privileged legal telephone conversations between incarcerated individuals and their defense attorneys were illegally recorded and disseminated to prosecutors and law enforcement.
With the help of Securus, the DOC has successfully constructed an unlawful system of mass surveillance by monitoring and recording nearly all incarcerated New Yorkers’ calls. The data collected can be used to track and identify community members.
The result is that certain demographics of New Yorkers — most notably Black, Brown, and low-income communities — bear the brunt of these violations. These communities have historically borne the brunt of New York City’s discriminatory policing and prosecution, and are often unable to afford the bail that would allow their loved ones to fight criminal cases from home. The consequence is that these communities become subject to surveillance in the most intimate ways.
These types of violations are not isolated to Securus, or to New York. In 2015, an anonymous hacker leaked 70 million Securus phone call records across 37 states, including 14,000 privileged legal conversations, which shouldn’t have been recorded in the first place.
This leak also exposed the vulnerable state of Securus’s data storage system. The depth of the personal information collected raises the question: How much of our legally guaranteed right to privacy can be stripped away under the guise of public safety?
While we debate foreign intelligence collection under FISA Section 702, which the government has used to unconstitutionally collect and search Americans’ data, we must not forget another full-fledged constitutional crisis happening on U.S. soil: jail telecom corporations’ data collection under the pretext of security.
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