Bureau of Prisons Disclosure of Recorded Inmate Telephone Conversations

• Decision Date: 14 January 1997
• Docket Number: 97-2
• Citation: 21 Op. O.L.C. 11
• Parties: Bureau of Prisons Disclosure of Recorded Inmate Telephone Conversations
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

21 Op. O.L.C. 11

Bureau of Prisons Disclosure of Recorded Inmate Telephone Conversations

No. 97-2

United States Department of Justice

January 14, 1997

RICHARD L. SHIFFRIN Deputy Assistant Attorney General Office of Legal Counsel

Bureau of Prisons Disclosure of Recorded Inmate Telephone Conversations

The policy of the Criminal Division requiring outside law enforcement officials to obtain some form of legal process authorizing access to contents of inmate telephone conversations is not mandated by the Constitution or Title 111 of the Omnibus Crime Control and Safe Streets Act of 1968.

The practice of profiling specific groups of inmates for monitoring raises concerns when it requires or causes the Bureau of Prisons to alter its established monitoring procedures for purposes unrelated to prison security or administration.

Inmates have a First Amendment right to some minimum level of telephone access, subject to reasonable restrictions related to prison security and administration. Under certain circumstances they also may have a Sixth Amendment right to make telephone calls to their attorneys

MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION

You have requested our views on the extent to which Bureau of Prisons ("BOP") officials may disclose tape recordings of non-privileged inmate telephone conversations to other law enforcement officials to assist in criminal investigations unrelated to prison security or administration.^[1] In addition, you have asked for our views on the legal necessity of the Department of Justice's current policy regarding access by non-BOP law enforcement officials to such tapes.^[2]

At the outset, we believe it is helpful to distinguish several questions raised by your memorandum. The first question is the extent to which BOP officials may take tape recordings made for prison security and administration purposes and disclose their contents to outside law enforcement officials for reasons unrelated to institutional purposes. We understand this question to encompass the related issues whether outside law enforcement officials may obtain this same information by participating in routine prison monitoring and whether those officials must seek legal process prior to obtaining the information, as required by the Department's current policy. A second question is the extent to which BOP may monitor and record (and thereafter disclose) inmate telephone conversations for reasons unrelated to prison security and administration. Finally there is a question whether inmates have a constitutional or other legal right to telephone privileges [ 12] while incarcerated. We address each of these questions after setting forth some basic background principles that guide the analysis.^[3]

BACKGROUND

As a general matter, the interception of wire communications is governed by two sources of law: the Fourth Amendment^[4] and the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), Pub. L. No. 90-351, 82 Stat. 197 211-225, amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§2510-2522 (1994). The Supreme Court has not addressed the applicability of the Fourth Amendment or Title III to the practice of monitoring and recording inmate telephone conversations to ensure prison security and orderly administration. Many lower courts have addressed the issue, agreeing that neither poses an obstacle to the practice. These courts, however, have provided Utile analysis with respect to the Fourth Amendment and have diverged in their analyses with respect to Tide III. See Attachment I to Keeney Memorandum (collecting cases). Because we believe that the particular analysis that is controlling may affect the answers to your questions, we lay out the proper approaches below.

I. Fourth Amendment

The Fourth Amendment protects individuals from "unreasonable searches." U.S. Const, amend. IV. The applicability of the Fourth Amendment in a particular case turns on whether "the person invoking its protection can claim a 'justifiable, ' a 'reasonable, ' or a 'legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740 (1979). This inquiry, in turn, requires both an " 'actual (subjective) expectation of privacy' " and one that, viewed objectively, " 'society is prepared to recognize as "reasonable." ' " Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

In Hudson v. Palmer, 468 U.S. 517, 530 (1984), the Supreme Court held that "the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells." In that case, a prison inmate brought a § 1983 action, see 42 U.S.C. § 1983 (1994), alleging that prison officials had conducted a random, unannounced "shakedown" of his cell solely to harass him. The Court rejected his claim, holding that prison inmates have no legitimate expectation of privacy in [ 13] their cells. 468 U.S. at 530. Although the Court observed that prisoners retain certain constitutional rights while incarcerated, it reasoned that an expectation of privacy in the contents of a prison cell is incompatible with "what must be considered the paramount interest [of the prison] in institutional security." Id. at 528. This interest is so compelling, the Court found, that it justifies categorical treatment of cell searches. Thus, given the complete absence of any legitimate expectation of privacy, even when a particular cell search is conducted for "calculated harassment unrelated to prison needs, " the Fourth Amendment provides no protection. Id. at 530.^[5]

Although Hudson concerned the applicability of the Fourth Amendment to prison cells, we believe its reasoning applies with full force to inmate telephone conversations. As in Hudson, recognizing an expectation of privacy in inmate telephone conversations would conflict with the objectives of prison officials. See United States v. Clark, 651 F.Supp. 76, 81 (M.D. Pa. 1986) (recognition of a reasonable expectation of privacy would frustrate BOP objectives "to enhance the security of federal prisons through monitoring and recording of telephone conversations"), affd sub. nom. United States v. Weeden, 869 F.2d 592 (3d Cir.), cert, denied, 490 U.S. 1073 (1989); United States v. Van Poyck, 11 F.3d 285, 291 (9th Cir.), cert, denied, 519 U.S. 912 (1996). Inmates may use their telephone privileges in a variety of ways that violate prison regulations and threaten prison security. For example, they may request illegal drugs or weapons from the outside; they may plan prison escapes; they may relate information concerning illegal activities within the prison; they may facilitate illegal activities outside of the prison. The prison's interest in detecting and preventing this type of conduct outweighs any expectation of privacy inmates might have in their telephone conversations.

Furthermore, we believe inmates lack a credible claim of privacy with respect to their telephone conversations because they receive ample notice of the monitoring and taping practice. BOP, for example, posts notices of its monitoring system in English and Spanish on each inmate telephone and requires inmates to sign forms acknowledging their awareness of the system. In addition, public notice of the system is contained in the Code of Federal Regulations. 28 C.F.R. §§540.100-540.101 (1996). Under these circumstances, it would be difficult for inmates to argue that they have an actual expectation of privacy. See United States v. Amen, 831 F.2d 373, 379-80 (2d Cir. 1987), cert, denied, 485 U.S. 1021 (1988).^[6] Even if inmates nonetheless subjectively expected their telephone conversations [ 14] to remain private, we believe that expectation would not be "one that society is prepared to recognize as 'reasonable.'" Katz, 389 U.S. at 361. "If security concerns can justify strip and body cavity searches and wholly random cell searches, then surely it is reasonable to monitor prisoners' telephone conversations, particularly where they are told that the conversations are being monitored." Amen, 831 F.2d at 379-80 (citations omitted). But even if inmates possessed a subjectively and objectively reasonable expectation of privacy in their telephone conversations, we believe that monitoring such conversations would be "reasonable" in light of the prison's compelling interest in security and orderly administration so long as the monitoring was conducted consistent with that purpose. See Van Poydfc, 77 F.3d at 291.

II. Title III

Title III generally prohibits the use of any "electronic, mechanical, or other device" to intercept "any wire, oral, or electronic communication, " in the absence of authorization by a court order. 18 U.S.C. §2511(a), (b) (1994).^[7] The statute provides several exceptions to this general prohibition, however. For example, it permits interception of oral communications uttered by a person with no justifiable expectation of privacy. See 18 U.S.C. § 2510(2). Interception of wire communications-” the type of communications at issue here -” does not similarly turn on expectation of privacy. Rather, Title III contains specific conditions under which interception of such communications is permissible. Section 2510(5)(a), for example, permits interception of wire communications by "an investigative or law enforcement officer in the ordinary course of his duties." 18 U.S.C. §2510(5)(a) ("ordinary course of duties exception").^[8] Section 2511(1)(c) permits interception upon consent from a party to the communication. Id. § 2511(1)(c) ("consent exception").^[9] Courts have held that one or both of these exceptions apply to monitoring and recording of inmate telephone conversations.

To qualify...