When Wesley McMillan eyeballed a bulging sack of ecstasy pills in his friend's maximum custody cell, he knew they hadn't entered the prison through postal mail. The bag was too big and the individual pills too bulky to conceal in a standard #9 envelope. Most likely, the pills hitched a ride inside an employee's pocket during a shift change, a daily occurrence in American prisons.
During his 20-plus years of serving life without parole for murder, the former resident of Robeson County, North Carolina, has encountered a pharmacy of illicit drugs: cannabis, cocaine, molly (MDMA), suboxone (a synthetic opioid), spice (a cannabinoid sprayed on smokable herbs), and pounds upon pounds of tobacco, which has been outlawed in North Carolina prisons since 2006. Drugs are not the only banned items he has encountered during his incarceration. He has seen a Case XX Hawkbill pocket knife and browsed the internet on dozens of smartphones.
That’s why, in 2020, when North Carolina’s Department of Public Safety announced its decision to contract TextBehind, the multimedia communication system created to manage communications between incarcerated persons and the outside world in order to intercept contraband in prison mail, it made no sense to McMillan. I interviewed McMillan at a steel table in the dorm of a medium custody prison at 6:00 a.m.—a time when only a few men were awake making coffee or watching the news. The block was otherwise quiet except for McMillan’s deep country twang, which belied his intelligence as he broke down complex processes in simple terms.
“I had plenty of phones. At least four or five,” he explained, while squirming restlessly. Dressed in black nylon shorts, a rumpled gray t-shirt, and tan rubber flip-flops, McMillan stroked his thick salt-and-pepper beard. “I got caught with two, and I definitely didn’t get them in the mail.”
North Carolina is one of at least seven states who now deploy a for-profit company to digitize incoming mail before it is distributed to incarcerated people as a purported smuggling prevention measure. When the North Carolina Department of Public Safety (NCDPS) announced their shift to digital mail in 2021, their press release made the ludicrous claim that “smugglers have learned to make the mail itself into a drug” by transmitting paper infused with substances like fentanyl and suboxone. Prison officials particularly blame postal service mail for the proliferation of one drug: K2. Also known as “2” or “Deuce,” K2 is a synthetic cannabinoid.
The transition to digital mail scanning produces troves of location-based and textual data on senders and recipients, further expanding the reach of prison surveillance to those on the outside who communicate with incarcerated people via mail. Whereas previously physical mail was subject to human inspection, prisons now have a new mechanism for mass archiving and analyzing the text and geolocation of the familial and social networks of incarcerated people. This new approach expands prisons’ arsenal of surveillance techniques, requiring families, friends, and allies of incarcerated people to surrender troves of data with no idea of how that data is used and no guarantee of how, and if, it is protected.
Like McMillan, I have been locked up for more than two decades while serving a life sentence for murder. I have seen enough to know that what companies like TextBehind and Smart Communications are selling isn't security. It's surveillance. As I unraveled the yarn of this digitized expansion into the lives of incarcerated people like me and our families, I began to appreciate the insidious depth of the issue, where companies mine information and profit at the expense of the poor and downtrodden.
THE MAIL BUSINESS
All mail scanning companies use a variation of the same method. Non-legal, personal mail to incarcerated people is sent to an offsite P.O. Box to be scanned and uploaded into a database. A PDF of the original document is then either reprinted at the prison or viewed by the recipient on an electronic device, such as a tablet or at a kiosk. The original paper mail is then destroyed.
The process extends the time it takes to receive a letter between two days and three weeks. I have always depended on mail to lift my spirits and to provide information about the outside. Any delay outdates current events and interrupts the continuity of my personal connections.
To avoid the delays that come with digitizing paper mail, people can forgo sending physical mail by creating an account with the mail scanning company, enabling them to send short letters or pictures electronically. The convenience of doing so incentivizes people towards a transition to electronic mail, but such convenience comes at a cost.
You can download TextBehind's app for free, but then you are faced with multiple and ever-increasing costs. TextBehind charges at least $1.29 per message, more than double the price of a postage stamp, unless the consumer buys one of four discount deals. The cheapest deal costs $5.95 for 5 credits, and offers a fifteen percent discount per message. The best, and most costly, deal costs $24.95 for 35 credits, with a 50% discount. (Users are also charged a four percent transaction fee to add money to their account with a credit card.) Although these discounts are framed as helpful deals, they are designed to compel the consumer to spend more money. Families of the incarcerated are generally poor people who cannot consistently take advantage of these so-called discount deals by purchasing an expensive package, and will most likely end up paying the higher, single-use fee.
While families of the incarcerated face increasing costs to use these services, the prisons that have implemented them suffer no cost. After reading several of TextBehind’s contracts and proposals, I learned that the company typically operates “at no cost” to the prison as long as they remain the “exclusive inmate communication service available,” as noted in their pitch to jail officials in Davidson County, North Carolina. If the jail solicited a competitor, TextBehind then charged $1.59 per mail item processed. Private companies like TextBehind establish a monopoly by centralizing their services. It was Smart Communications’ CEO Jon Logan who originally devised this method to “centralize and automate a prison’s mail collection system” in 2016, as reported by Prison Legal News (PLN).
These companies provide a specialized service that the state relies on once it replaces an existing system. Further, the company controls the collected data, making severance difficult, if not impossible, without losing the accumulated information. States will renew contracts to maintain access to the data. Centralized data, then, is appealing to prisons, not just for the ease it lends to the mail process. Centralization also makes increased surveillance of incarcerated people a lot easier. The threatened loss of this data gives private companies an advantage in establishing a monopoly with prisons.
Following Logan’s lead, more prison tech companies soon capitalized: Securus, Pigeonly, and TextBehind are now the major players profiting from the plight of mass incarceration.
This follows the grow-at-any-cost approach other tech companies such as Uber and Amazon have deployed: foregoing profits by offering competitive rates to corner an emerging market. The drive to capture market-share embeds these corporations within prisons. In order to offset the cost associated with expanding surveillance beyond prison walls, many companies have foisted the cost onto incarcerated people and their social networks.
Two contracts, for example, provided by the Prison Policy Initiative (PPI), with the North Carolina Department of Public Safety, beginning on September 30, 2019 (a one-year contract) and July 1, 2021 (a two-year contract), do not detail cost information to prisons. However, a September 2021 article from The Robesonian states that North Carolina paid “nothing for the [TextBehind] service” because “the company earns its revenue through app fees.” The financial model for mail contracting companies is user-funded expansion of prison intelligence systems.
Meanwhile, there is little evidence that these systems actually help to reduce contraband. A November 2022 report by the PPI noted that mail scanning had no measurable effect on whether drugs entered the prison system.
In all five North Carolina prisons where I have served, scoring a variety of drugs was as easy as choosing a candy bar in the grocery checkout line. If you could afford it, you could get it. I no longer use drugs, but I certainly understand why some incarcerated people rely on substances to cope with the despair of a mundane life behind bars. Writing is my escape. For many others, mail, pictures, letters, and other correspondence provides a vital connection and necessary escape—something the digitization of letters impedes. The transition away from analog prison mail through the US postal service to private tech platforms has worsened incarcerated people’s social isolation.
This expansion of surveillance is being subsidized by already struggling families who are trying to keep in touch with incarcerated loved ones. In addition to providing money for their incarcerated relatives’ commissary, they’re now forced to subsidize tech companies seeking to expand market-share.
“Before using TextBehind, my people sent pictures, cards, and letters from my nieces and nephews,” McMillan said. “Now, I barely get mail because they don't want to spend a bunch of money for what used to cost a stamp.”
Mail scanning isolates incarcerated people from their networks on the outside. Not only does it make sending physical mail more complicated, it forces people into an arrangement in which their awareness of being subject to greater surveillance leads to self-censorship and the withholding of treasured items such as personal photos.
Just ask Jared Smith. His elderly uncle is incarcerated in a North Carolina prison, and Smith is his uncle's primary supporter. When TextBehind was first implemented in North Carolina prisons, Smith tried sending letters to his uncle through its P.O. Box service (the address is in Maryland). Almost every letter was rejected without reason. His 82-year-old grandmother experienced the same thing. The rejections led Nava to create a TextBehind account to send mail electronically, which discouraged him from sending mail at all. “There’s no privacy,” he explained. “I’m trying to help my uncle advocate for himself, but anyone can read what I’m writing. It puts a strain on our communication and relationship.”
The extent of surveillance invited by using TextBehind is another reminder for Nava that prisons are more interested in gaining intelligence on people than stopping drug smuggling. “I don't know if there are laws against them storing my content without telling me. What are they doing with all this data? Who is authorized to access it?”
Not surprisingly, prison and state officials know that implementing mail scanning jeopardizes the connections of incarcerated people.
“We realize how important contact with people on the outside is, and how a sense of alienation from the world beyond prison can complicate our mission to prepare offenders for a successful reintegration,” Brad Deen, a spokesperson for the North Carolina Department of Public Safety, told the Daily Tar Heel in November 2021. Nevertheless, he continued, “the more immediate safety and security threats from smuggled contraband outweigh other concerns.”
I know the importance of maintaining bonds, even fragile ones. When I was first released from prison in 2001, I was homeless. I often wonder what would have happened if I had maintained outside bonds while in prison. I have settled into the belief that the isolation and insecurity I experienced during my release contributed to my return the next year, this time without the possibility of parole. Anything that exacerbates the fraying of connections to those on the outside is too high a cost to pay.
But family members aren't the only people negatively affected by mail scanners. Ana Noriega, who volunteers for the Prison Library Support Network (PLSN)—a group of prison abolitionists that is focused on helping people inside access information and conduct research—has encountered her own barriers.
Most incarcerated individuals do not have access to a computer or the internet, so PLSN provides a necessary service for incarcerated people struggling to educate themselves with few resources. PLSN fills research requests from facilities across the country, then mails print-outs of the requested information gathered from books and internet searches to requesters inside.
Aside from cost and surveillance, mail services sometimes have opaque rules, like a page limit for transmissions, that are either never disclosed or change without warning. When a friend or loved one unwittingly sends a message that exceeds the allowed limits, they often aren’t notified. Noriega noted that sometimes such letters are “not received at all or in part.”
This may result from the cost of materials. When rising costs of paper or printer toner reduces profits, companies may decide to decrease the number of pages allowed. By not notifying users of why a specific page limit is enforced in the first place, the company never needs to address the changes, despite the ambiguity of its requirements.
Noriega notes her displeasure. “If rejected, the package is not returned. We have no way of knowing what people receive until they write back with complaints.”
Charlotte West, editor of a higher education-themed newsletter for the incarcerated and people generally interested in prison education called Open Campus Media, expressed her own frustrations. "I've gotten lots of complaints because they are often missing pages or have pages out of order. States like Florida and Missouri are actually the most problematic -- not only do they scan physical mail, they deliver the scans digitally ... and then in most cases charge people to print them out.”
What are these incarcerated people, and their families, friends, and allies, subsidizing at such great financial and social costs? The answer is intelligence gathering.
Most people who are communicating with their loved ones behind bars are not computer scientists but nonetheless are able to deduce that electronic mail is intensifying and changing the scrutiny they’re being subjected to. TextBehind's archival system allows cops to access scanned and electronically delivered mail dating back at least seven years, including archived mail for those who have been released. According to public documents published by Davidson County, TextBehind sold their “Inmate Mail Management” service as a method to gather intelligence. Their “Inmate Mail Management” presentation alerted jail officials to the possibility of lost intelligence containing “threats” if the jail did not archive mail for “future investigative purposes.”
The Terms and Conditions section of TextBehind's website does not provide users with an indication of how long the information company will store their information. Publicly, TextBehind has only issued a disclaimer stating that “any material” sent will be considered “non-confidential.” Using TextBehind, whether by sending mail to its P.O. Box or through its app, gives the company permission to “copy, disclose, distribute, incorporate, and otherwise use such material...for any and all commercial or non-commercial purposes.” Further, any person using the service surrenders copyright and other intellectual property rights in their material to TextBehind or their licensors.
TextBehind is not alone in capitalizing on prisons’ desire to enhance intelligence gathering by expanding and monetizing new and more pernicious forms of surveillance. Smart Communications also boasts that “investigators will have access to the postal mail sender's email address, physical [a]ddress, IP address, mobile cell number, GEO GPS location tracking, exact devices used when accessing system [sic], any related accounts the sender may also make or use,” as reported in an August 2021 issue of PLN.
This amount of information cannot be gleaned by scanning a paper letter alone. Through collecting such a spectrum of information on the people who use these systems to contact people in prison, these companies produce a geo-spatial archive, mapping incarcerated people’s social networks over time.
The further expansion of already-invasive surveillance practices into the networks of incarcerated people alarms Stephanie Krent, an attorney with the Knight First Amendment Institute. During a phone interview, Krent described this type of “unprecedented surveillance” as a dragnet that comes with “a huge loss of privacy” for free citizens. In a follow-up letter, Krent added that unchecked surveillance of already marginalized communities “hampers communication between families and loved ones across bars.”
“Digitizing mail to make it available for surveillance is a huge loss of privacy,” Krent added. “It's hard to justify scanning and storing letters for seven years. I don't see how that is related to the goal of preventing contraband from entering prisons."
In a 1987 ruling, Turner v. Safley, the United States Supreme Court granted prison officials the power to “impinge” on “inmates' constitutional rights” as long as a regulation is “…reasonably related…to legitimate penological interests.” Lack of a “logical connection between the regulation and asserted goal” would render the regulation constitutionally “irrational.”
It’s important to note that the Supreme Court allows impingement of incarcerated people's constitutional rights, not the rights of those who communicate with them.This may seem like grounds for the users of these digital mail systems to take action against these companies and the prisons that contract them. However, these companies have found a way to protect themselves. Every TextBehind contract I have reviewed contains an indemnity clause that protects states and their agents from liability of any kind, should someone sue. Protection is part of the bargain.
The civil suit Githieya v. Global Tel Link offers a good example of how these contractual protections work. Some Global Tel Link telephone system customers who had their accounts zeroed out because of inactivity up to 180 days between 2011 and 2021 shared a $67 million settlement, according to a January 2022 press release by Caplan Cobb, LLP, the suit's leading law firm. Global Tel Link paid all the money, then changed their name to ViaPath.
Indemnity clauses entice states to enter predatory contracts because, in theory, they safeguard against consumer protection violations, such as infringement upon intellectual property rights, as noted in TextBehind's contract with North Carolina prisons. While these indemnity clauses may not protect states against class action lawsuits over constitutionality, their inclusion in these contracts reflect how the prison system prioritizes its aims over the rights of the incarcerated and their various social networks. When it comes to legislation surrounding incarceration, the interests of incarcerated people and families are never really considered, so it is unsurprising these companies can operate with impunity. As society renegotiates analog forms of surveillance and social control toward digital ones, incarcerated people are especially vulnerable.
As a person who has spent over half his life in prisons, I have witnessed drastic changes in the use of enhanced communication technologies in the prison system. Some of those changes have been beneficial. But with no agency over the means of communication and technology we engage, my loved ones and I are left to shoulder significant costs.
That’s why monopolization of the prison telephone market is perhaps most instructive for what we can expect as these new forms of communication and surveillance expand within prisons and beyond.
When I began doing time in the late 1990s, North Carolina allowed us to make only two collect phone calls a month. An officer wrote down the number, then called and stood there for fifteen minutes.
Once Global Tel Link took over the phone service in the early 2000s, the state allowed us to make as many calls as we wanted, whenever we wanted—if we were willing to shell out more than $1 per minute.
In a proposed rule change to Congress, dated July 28, 2021, the Federal Communications Commission (FCC) acknowledged that because "incarcerated people have no choice in their telephone service provider," the state chooses one who "typically operates on a monopoly basis."
For example, a 2019 PPI report lists consumer fees, such as “fees to deposit money, open accounts, or get a refund,” as a “hidden source of revenue” for prison phone companies. These companies give prisons a percentage of profits to entice lasting relationships. In this way, these companies siphon money from families of the incarcerated, aid in the continued imprisonment of their loved ones.
Once prison telecom companies began locking states down, the search for new revenue began, leading to new surveillance technologies and new opportunities for profit, including tools like TextBehind.
A December 2022 PPI report explains how two major providers, Securus and ViaPath (formerly Global Tel Link), have expanded into new businesses by gobbling up their competitors. The companies now control a range of platforms, including "video calling, tablets, electronic messaging, release cards, and money transfer platforms,” according to PPI.
During the COVID-19 pandemic, bundling services helped companies like Securus “make historic profits hand over fist,” according to Bianca Tylek, founder of the communications advocacy group Worth Rises, who called the profiteering “morally repugnant.” As many prisons instituted lockdowns and ended in-person visits to prevent the spread of the virus, people inside were, more than ever, reliant on these predatory private platforms to communicate with the outside world.
An analysis by Worth Rises found that Securus grew its revenue by ten percent, or $69.5 million, in 2020, compared to a two percent growth in 2019, before the pandemic hit. During the pandemic, tablets kept incarcerated people entertained while video visits connected families, but only by extracting costly fees, with the profits divided between prisons and their business partners.
Such profits did not escape the notice of the US Congress. On December 22, 2022, Congress passed the Martha Wright-Reed Just and Reasonable Communications Act, which clarifies the FCC's power to cap prison phone and video call rates to a “reasonable” standard based on a free-market average. (Smart Communications currently charges three dollars for a thirty minute video visit.) This legislation, which the FCC will begin enforcing in 2024, does not outlaw the monopoly contracts now held by mail scanners. Unfortunately, legislation regulating the fee structure of prison telecommunication systems ultimately won’t undo the harm to families, nor erase the data now being collected on incarcerated people and their networks.
North Carolina officials claim mail scanning has been effective. A December 2022 NC Newsline (formerly NC Policy Watch) report quotes prison officials touting a year-over-year decrease in disciplinary infractions for substance abuse in both the 2019-2020 and 2020-2021 fiscal years, since contracting with TextBehind. In an email to Newsline, Deen claimed that “because the original contents never enter the prison” the DPS could be “confident that the introduction of drugs into N.C. prisons through general offender mail has been all but eliminated.”
McMillan’s experience in prison makes him skeptical about such a spurious connection between a drop in substance violations and the switch to digital mail systems — especially when the data spans pre- and post-pandemic periods. He could think of many other possible explanations for the drop.
“They aren’t saying what kind of drugs,” McMillan explained. “It’s hard to test for K2. Too many different recipes. Less hot tests doesn’t mean less drugs. They might be testing less people.”
No incarcerated person needs to be mailed drugs when so many walk in through the front door with prison staff, as evidenced by the story of Wesley Thompson, a North Carolina corrections sergeant, who was charged in 2021 with smuggling contraband, including synthetic cannabinoids, into Tabor Correctional Institution.
As for McMillan, he no longer uses drugs. He has turned to yoga and is a senior in a prison college program, earning a bachelor’s degree. When he encounters drugs, he turns them away because he “wants something better” for himself.
Like other incarcerated people, he knows that North Carolina is unlikely to stop using TextBehind. He is resigned to the realities of oppression and surveillance imposed upon him and his loved ones.
"Drugs will be here whether we get mail or don't get mail," he said. "They know that. They just don't give a damn about what our families go through to keep loving us. All they want is money. What's worse is that they treat our families like they're locked up by constantly watching their every move, just like they do [with] us in prison. They haven't done anything wrong. They don't deserve that."