Jail phone system appears to violate provincial privacy rights policy

Incarcerated people in Nova Scotia provincial prisons are raising concerns over the terms of service they and their families must agree to in order to use the phone system and tablets provided by the jails.

Prisoners say the agreement violates their privacy rights. The policies on the Telmate site appear to be in violation of Nova Scotia privacy law, legal sources say.

The province’s phone system is administered by Telmate, which offers a contact for their headquarters in Fruitland, Idaho. Telmate operates in the province as Synergy Phone Solutions. According to the Telmate website, Telmate is now “part of the GTL family.”

GTL (Global Tel*Link Corporation) which provides “technology solutions” to prisons is the subject along with two other phone services providers of a class action law suit “that alleges the entities are behind a scheme to artificially inflate prices for calls between incarcerated individuals and those on the outside.” GTL is based in Mobile, Alabama.

Prisoners in the province have long been raising concerns about the system’s predatory phone charges. In the past couple of years, changes have been made that offer more affordable phone packages if users buy in bulk: to purchase the phone packages, however, users must use the online system operated by Telmate at gettingout.com.

At that link you can see the list of Nova Scotia facilities in which the services operate when you click to “deposit funds.”

Under the Privacy Policy made available on the site, Telmate collects information including your “name, telephone number, physical address, mailing address, billing address, or email address”; your “birth date, credit card or other financial account information”; and “drivers’ license number, social security number, type of payment you are making, or information related to the purpose of the payment.”

In addition, according to the site:

When you use our services to communicate with an inmate, GTL records and stores the communication, which may include your image and/or voice. By using the services, you are expressly providing consent for GTL to collect your voice and image and to use them as described in this Privacy Policy, in accordance with the Terms and Conditions.

During the COVID-19 pandemic, visits have been stopped to provincial jails. Video visits are supposed to replace this in-person contact, but in order to participate in these visits family members and loved ones are agreeing to make a frightening amount of data available in perpetuity to a foreign corporation.

Details of the province’s contract with Telmate are difficult to find. The 2013 tender for telephone services can be found on the province’s procurement site. As Robert Devet reported in 2017:

The Synergy system, operational in Nova Scotia since 2013,  is run by the company at no cost to the province. “The successful proponent’s revenue will come solely from the user-pay system,” the Request for Proposals (RFP) specifies.

On top of that, Synergy is committed to paying the province a commission for the right to make money off the prisoners who use its system, the contract addendum to the RFP stipulates.

Prisoners say that in order to use the tablets provided by the province’s jails, they must agree to a terms of service that, among other things, allows law enforcement to use their biometric data. According to the Terms of Use posted on the Telmate site:

Telmate collects personal information through its services, including but not limited to your location, voiceprint and facial geometry, and shares such data (and access to such data) with law enforcement and correctional facilities. 

These policies also apply to families and loved ones using the services for video visits or phone calls.

Particularly disturbing is that self-represented prisoners must use the tablets to prepare their cases. CanLii, the case law database, for example, is housed on the tablets. These tablets used for case preparation do not have internet access: the law library is downloaded and stored on the devices. Prisoners who are preparing submissions for court must also do so on the tablets. They cannot use the tablets without agreeing to the Terms of Service and must submit identifying information in order to log on. One self-represented prisoner tells the Halifax Examiner:

I have the right to a fair trial under Section 7 of the Charter. And what this is telling me is that if I don’t want any law enforcement agency to be able to use my data forever, or the company to use my image in advertising, then I can’t even get access to case law that I need for my trial.

I haven’t been convicted of anything. I’m an innocent person under the law and now even if I get off [my charges], my face, all my identifying information, my mom’s credit card can be with any law enforcement agency or correctional facility anywhere in the world. I don’t think that’s fair, and I don’t think it should be legal. 

Other features of the Terms of Use include:

With respect to any content or information you submit or make available via the Services, such as your image, voice, comments, endorsements, reviews, testimonials, pictures, videos and other content, you grant to Telmate a perpetual, irrevocable, worldwide, royalty-free, transferable, non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works of, commercialize and sublicense such content, in whole or in part, in any media, now or hereafter known or developed, for all lawful purposes, without any additional consideration due to you.

In a particularly chilling section, Telmate uses capital letters to inform users:

TELMATE, OR AGENTS OF LAW ENFORCEMENT MAY ACCESS, REVIEW, SEARCH USE, RECORD, MODIFY, COPY, VIEW, LISTEN TO, DISPLAY OR DISTRIBUTE ANY AND ALL OF YOUR CONTENT AND PERSONALLY IDENITFIABLE INFORMATION AS PERMITTED BY LAW, WITHOUT PROVIDING NOTICE OR COMPENSATION. YOU HEREBY ACKNOWLEDGE YOUR AWARENESS OF, AND CONSENT TO ALL SUCH ACTIVITY. The personally identifiable information collected includes photos of you; your voice recordings, and your geo-location using the location services, GPS, or Wi-Fi functions on the mobile device are running the Services on. You acknowledge, understand and agree that Telmate and Law enforcement personnel will keep a record of any collected personally identifiable information. Telmate and Law enforcement personnel will also collect additional information, such as the name of your mobile service provider, operating system of the device you are running the Services on, and the date and time you access or use the Services. You acknowledge understand and agree that Telmate may use any information collected to help Telmate improve the Services and the services, application, content and features. You acknowledge understand and agree that law enforcement personnel may use any information collected in any manner permitted by law or if law enforcement personnel has good faith belief that the disclosure is necessary to prevent a serious and imminent threat to public safety.

Telmate will not disclose the personally identifiable information collected through your use of the Services to unaffiliated third parties. Telmate reserves the right, however, to provide such information to our employees, contractors, agents, and designees to the extent necessary.

At a time when the African Nova Scotian community is challenging the street check data kept by law enforcement, incarcerated people and anyone who communicates with them are forced to agree to have sensitive information shared with law enforcement. Given the disproportionate incarceration of Black and Indigenous people in the province, these agreements particularly target the privacy rights of Black and Indigenous people and families, and create a cross-border surveillance system of these communities.

Recently, the province decided to invest in electronic monitoring against the advice of the Criminal Justice Transformation Group. I have written here about the concerns with facial recognition, which is included in the data Telmate may share with law enforcement. Halifax Regional Police were among the law enforcement agencies in Canada caught secretly using the Clearview AI facial recognition technology, Global News uncovered.

Facial recognition is “particularly a threat to Black people” an ACLU study shows, and is proven to misidentify Black faces, particularly the faces of Black women.

Telmate’s Terms of Use would seem to be illegal under Nova Scotia law. According to the province’s FAQ about the Personal Information International Disclosure Protection Act:

PIIDPA makes it illegal for public bodies and municipalities to disclose information outside of Canada, or store personal information at (or allow it to be accessed from), locations outside Canada, unless certain circumstances exist.

Both Telmate and GTL are housed in the United States. According to the FAQ:

If the head of a public body, or the responsible officer of a municipality, determines that it “meets the necessary requirements” of the organization’s operation, they can permit storage and access outside the country. However, if they do so, they must report this to the Minister of Justice and explain the reasons why they have determined that it is necessary.

Section 9(3) of the Act itself indicates:

(3) In addition to the authority pursuant to this Section, a public body that is a law enforcement agency may disclose personal information in its custody or under its control to:

(a) another law enforcement agency in Canada; or

(b) a law enforcement agency in a foreign country under an arrangement, a written agreement, a treaty or an enactment of the Province, the Government of Canada or the Parliament of Canada.

Disclosure to a third-party provider would not seem to be included.

Since the province does not readily publicize the details of their contract, it is hard to say what agreements have been made about data. The multiple subsidiaries of these corporations also makes it difficult to trace their activity: for example, by operating as Synergy in Canada, Telmate may be evading provincial and federal privacy laws under the fiction that they are completely different entities. These complicated arrangements allow phone companies to dodge legal accountability.

As a user of the phone system for many years, I can verify that payments for phone calls for people incarcerated in the province go through the Telmate website, and when you are called from any provincial institution it shows up in your caller identification as Telmate.

While Nova Scotians may be inclined to believe that these privacy violations are simply part of being accused of a crime and of little concern to “law abiding citizens,” the lack of transparency, accountability, and disturbing implications of our province allowing sensitive data to be used by law enforcement agencies without any oversight should be terrifying to us all. Besides, these policies don’t only include people expected to “do the crime, do the time,” but include people who are neither accused or convicted of any crimes, and who are not even incarcerated themselves. Service providers and advocates also are included in policy, for example, if they communicate with incarcerated clients.

Allowing the erosion of our civil liberties does not keep us safe. It endangers the rights of us all.

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