by Anthony W. Accurso

On the last day of 2021, the New York City Department of Correction (DOC) revealed a stunning privacy breach: Over 500 detainees in city jails had their calls to their attorneys recorded. Worse, the recordings were then turned over to prosecutors.

The Constitution guarantees the privacy of these calls. The breaches were disclosed to three public defender groups in response to requests made under the state’s Freedom of Information Law (FOIL). PLN obtained copies with its own FOIL request in April 2022.

The three groups — New York County Defender Services, the Legal Aid Society, and the Neighborhood Defender Service of Harlem — had filed “do not record” requests with DOC. Each request listed the phone numbers of their attorneys. DOC was supposed to forward those numbers to Securus Technologies, its privately contracted phone service provider. Securus was then supposed to make sure that no calls placed from the numbers were recorded.

However, the company said lists were not properly forwarded. DOC countered that Securus had the numbers but recorded them in the wrong place.

As early as April 2018, the Harlem group faxed its request to DOC. But when asked about it, DOC said it had “no record of receiving this request.” It said other privileged calls were recorded because the numbers were on a list it didn’t receive until after the calls were made and their recordings had been surrendered.

After defense attorneys flagged the problem in December 2020, DOC conducted an audit in February 2021 that divulged more than 1,500 privileged calls were illegally recorded. Expanded audits then found at least 779 more.

Of those calls, 347 from New York County Defender Services involved 73 people; 1,302 came from the Legal Aid Society, involving 266 people; and 630 were from the Neighborhood Defender Service of Harlem, involving 93 people.

However, Securus maintains call records for only 18 months. So there are likely a number of earlier violations for which DOC has no records.

DOC Commissioner Vincent Schiraldi insisted that “it is not the Department’s policy to record confidential attorney calls.” But he called it “worth noting” that all calls include “a pre-recorded admonishment” warning that it is being recorded. So “[t]here could not have been a reasonable expectation that [the] phone calls were private,” he said.

Public defender offices are understaffed, however. In-person visits to incarcerated clients are not practical. Phone meetings are commonplace. Both DOC and Securus should be working to protect the sanctity of attorney-client conversations, not pointing fingers at one another — much less at jail detainees and their overburdened lawyers. 

Additional source: Daily News