Activists protest San Mateo County ‘jail mail’ policy as case over constitutional rights moves to federal court

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Mail is a lifeline for many incarcerated people. But as of two years ago, any physical letters sent to people incarcerated in the San Mateo County jail are directed to a private, for-profit company in Florida that digitizes and destroys them.

On April 18, activists stood outside of Maguire Correctional Facility in Redwood City to demand an end to the county’s mail digitization policy on the second anniversary of when it was enacted. They say it passed quietly in 2021 — with no opportunity for public feedback.

“Mail is a right,” said Zach Kirk, an organizer with Silicon Valley De-Bug, one of the groups that led the “Jail Mail Solidarity Rally.” “(The ordinance) decreases the amount of contact between families and their loved ones inside, and decreases any chance of rehabilitation.”

Three free-speech groups, Electronic Frontier Foundation, Knight First Amendment Institute at Columbia University and the Social Justice Legal Foundation, filed a lawsuit on behalf of five people incarcerated in San Mateo County on March 9. The lawsuit was also filed on behalf of a group of their friends and family members and A.B.O. Comix, an organization that sends and receives art and writing from incarcerated people.

It alleges mail digitization of incarcerated people violates their First and Fourth Amendment rights, and their rights under the California Constitution because it denies inmates the “ability to use a uniquely expressive medium of communication” and “involves the seizure of correspondence and other information … without any suspicion of wrongdoing.”

“We feel that the county’s actions to get rid of physical mail are dehumanizing,” said attorney Pilar Gonzalez Morales with the Social Justice Legal Foundation, one of the organizations that filed the lawsuit. “They cut off our clients’ connections to their loved ones, to their children, to their family members, their partners…”

According to the suit, senders must route their mail through a system called MailGuard, owned by Smart Communications, which stores it in a searchable database for at least seven years, even if the recipient is released from custody.

San Mateo County permits law enforcement officers across all jurisdictions to search MailGuard correspondences “for any reason, or no reason at all,” the lawsuit says. Officials can specify keywords of their choosing and receive alerts whenever a piece of mail contains one. Incarcerated people at Maguire Correctional Facility and Maple Street Correctional Center can view those letters on a shared tablet in public during their free time, but only if they agree to certain terms.

San Mateo County first signed a contract with Smart Communications in May 2020 authorizing the use of its “SmartVisit Video Visitation System” in the San Mateo County Sheriff’s Office’s correctional facilities. The contract states visits will be “monitored and recorded and will be preserved for seven years.” The county then extended its contract with Smart Communications in September 2021, tacking on additional services offered by the inmate communication company, including its SmartTablet system, electronic messaging software and MailGuard, the service in question, which digitizes mail sent to people incarcerated at its jails at no cost to the county.

MailGuard is patented as a service that digitizes physical mail and consolidates sender, recipient and institutional information “into a format that is easily reviewable and provides tracking data,” according to the Smart Communications website. Smart Communications could not be reached for comment.

San Mateo County’s contract with Smart Communications places no limit on how the company can use the information it gathers from physical mail.

According to Smart Communications, MailGuard has become increasingly popular in correctional facilities across the U.S., with implementations ranging from modest 100-inmate county jails to extensive state prison systems holding over 50,000 inmates.

In San Mateo County, former Sheriff Carlos Bolanos said the county’s mail policy was meant to “prioritize … safety and security” over concerns about fentanyl exposure when it was enacted, according to the lawsuit. Smart Communications’ website advertises MailGuard as a service that eliminates “contraband and secret communications in inmate postal mail.”

A San Mateo County spokesperson deferred to the Sheriff’s Office. The San Mateo County Sheriff’s Office did not respond to this news organization’s requests for comment.

San Mateo County settled a different lawsuit last December filed by a group of criminal defense lawyers on the Peninsula in opposition to MailGuard. It alleged the county gave no warning it would be able to see correspondence between incarcerated people and their attorneys. The county admitted no fault or liability for the alleged practice but said it would implement a “professional account” feature on Smart Communications for attorneys to communicate confidentially with their clients beginning Jan.22.

The March 9 lawsuit, now in a federal court, comes as mail scanning is becoming an increasingly common trend nationwide, with Smart Communications being one of several for-profit inmate communication companies nationwide.

The case against San Mateo County was escalated to federal court on April 17 after Sheriff Christina Corpus requested the higher court remove the case from the county’s court on the grounds that the alleged First and Fourth Amendment violations should be tried in a federal court due to the case involving the constitutionality of the rights of the incarcerated individuals of which San Mateo County has no jurisdiction.

The county case has been stayed or paused pending the outcome of the federal case.

San Mateo County is due to respond to the lawsuit by May 29. The county’s current contract with Smart Communications runs through 2024.

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