Securus Breach and Attorney-Client Calls

When the Harris County Sheriff’s Office, then under the direction of Sheriff Adrian Garcia, first announced its intention to utilize the services of Securus Technologies, the defense bar and specifically the Harris County Criminal Lawyers Association (HCCLA) was skeptical and concerned given the problems experienced in other Texas counties.

In May 2014, the Sheriff’s Office launched a pilot program in which attorneys could choose to videoconference with inmates rather than make in-person visits to the jail. As this system launched, we were learning about security problems around Texas. While Securus would maintain that attorney-client privileged conversations would not be monitored or recorded, Austin attorneys were experiencing just the opposite. In November 2014, we became aware that Dallas had rejected the Securus video system because it would have banned all in-person visitation and thus was considered inhumane and seeking to profit off the backs of the poor families visiting loved ones.

Our members, including Mark Bennett (noted past president, tech guru, and First Amendment constitutional lawyer) met with Securus to seek information about the proposed Harris County system and its safeguards. The most telling fact was they sent a marketer to meet with us and refused to provide their security “white paper” explaining their system.

Despite assurances that calls would not be recorded, we located this information on Securus’ own website:
One of the primary advantages of implementing Securus Video Visitation is the ability to live monitor and record visits. This capability will not only create new investigative opportunities, but can also have a real impact on reducing violence within jail walls. It gets better. Through the Securus Video Visitation interface, jail staff can easily flag visits for later investigative review and lock down recordings from being purged after the standard retention window expires.

Then today we learn that an anonymous hacker has breached Securus security and retrieved 70 million records of calls including at least 14,000 readily identifiable attorney-client privileged calls which were supposed to be exempt from recording. The recording of these legally protected calls is a direct violation of the attorney-client privilege and the 6th Amendment to the United States and the right to effective assistance of counsel.

“This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not.”

It is concerning that Securus’ data was so easily hacked, but it is more concerning that they are violating constitutional rights by recording and storing legally privileged conversations.

Our concerns of well over a year ago were widely dismissed as unfounded when we spoke to Securus and Harris County; however, it certainly seems our concern was real and justified.

About JoAnne Musick

JoAnne Musick is a criminal, juvenile and family lawyer and is board certified in both criminal and juvenile law. She is a two-time past president of HCCLA (the only president to serve two terms) and is active in many legal organizations including TCDLA. JoAnne is also a regular contributor at Fault Lines, HCCLA, and her own blog. Catch up with her on social media @joannemusick.