Civil Rights Groups Decry Proposed Federal Prison Social Media Crackdown

Two civil rights groups castigated the federal Bureau of Prisons (BOP) this week for a proposed crackdown on imprisoned peoples’ access to social media—including a possible ban on accounts run by family on the outside. The two organizations, the American Civil Liberties Union (ACLU) and Knight First Amendment Institute at Columbia University (KFAI), said the BOP’s suggested new procedures would violate basic civil rights and run afoul of the U.S. Constitution.

To change administrative policies, federal agencies must submit written proposals to the federal register and allow for public comment. In a proposed rule published on Feb. 2, the BOP floats a series of changes to “inmate discipline regulations,” including stricter bans on possessing hazardous tools, escaping from prison, or encouraging others to engage in work strikes. But multiple sections pertaining to the use of social media particularly caught the eye of First Amendment defenders. 

If enacted, one measure would ban “accessing, using, or maintaining social media, or directing others to establish or maintain social media accounts on the inmate’s behalf.” As it stands, many incarcerated people either access social media on tablets or contraband devices or send information to loved ones to post. Many state prison systems already ban imprisoned people from accessing social media and a handful of states, including Alabama and Iowa, ban third parties from posting on prisoners’ behalf.

Violating the new federal code would be considered a “High Severity Level” incident, which could bring a host of punishments, including solitary confinement, damage to parole eligibility, or fines.

Another proposal would label the use of social media to commit “criminal acts,” as well as the use of money-transfer apps such as CashApp, as “Greatest Severity Level” prohibited acts, the most severe offensive level. 

“When inmates use these services to send and receive money, Bureau staff are unable to monitor those transfers,” the proposal says. “CashApp and similar applications employ encryption technology that enables inmates to avoid detection, allowing them to use these platforms for unlawful purposes such as money laundering.”

The period for public comment closed on April 1. The federal register website shows that the proposed rule received 219 comments, though only 22 have been posted online.

In a six-page rebuttal submitted Monday, KFAI attorneys said a blanket social media crackdown would likely violate the Constitution.

“For the nearly 2 million people who are incarcerated in U.S. jails and prisons, maintaining connection with loved ones and communities is associated with better physical and mental health outcomes, reduced recidivism, and successful reentry into society,” wrote attorneys Jennifer Jones, Nicole Mo, and Stephanie Krent. “Social media is increasingly becoming an important part of that connection. As one formerly incarcerated journalist recently recounted, using social media through his wife allowed him to pursue a writing career, stay in touch with his community, and give him hope of reintegration upon release.”

The lawyers highlighted WikiLeaks whistleblower Chelsea Manning, who tweeted from prison through an intermediary to keep in contact with the outside world, and an artist named Alex Cook, who would send his pieces to his mother to post online.

KFAI also warned that the ban would prevent imprisoned people from calling out poor conditions or seeking help from the public. The memo noted the case of Kastellio Vaughan, who posted an image of his emaciated body inside an Alabama prison with the message, “Get help,” after he’d rapidly lost weight inside the facility. 

“Of course, the technology of social media is new, but the importance of allowing those behind bars to participate in public discourse is not,” the letter said. “Dr. Martin Luther King Jr. authored his famous ‘Letter from Birmingham Jail’ on scraps of paper while imprisoned and gave those scraps to his attorneys to compile and circulate on the outside.”

In a separate, six-page memorandum, Corene Kendrick, director of the ACLU’s National Prison Project, laid out numerous instances in which she said the BOP proposals would violate the rights of incarcerated people and fuel longer sentences. Kendrick raised particular concern that a social media crackdown would flout standards set by the U.S. Supreme Court—most notably the 1987 decision Turner v. Safley, in which the court ruled that prison regulations must be related to “legitimate penological concerns” and not have excessive “ripple effects.” Kendrick also said the rule would stifle whistleblowers, attorneys, and journalists. 

The ACLU also took issue with the BOP’s proposed prohibition on petitioning incarcerated workers to engage in strikes, calling the measure “overly broad, vague, and unjustified,” especially considering work stoppages are a nonviolent form of protest. She similarly warned that increased penalties for “feigning an illness” would discourage imprisoned people from seeking medical care.

“These disciplinary violations can make people ineligible for home confinement or early release under parole, compassionate release, clemency, or for residents of the District of Columbia, deny resentencing under the Second Look Amendment Act,” Kendrick wrote. “In addition to the incalculable toll that increased incarceration takes on incarcerated people and their families, this will increase the financial costs to the federal government for incarcerating people pursuant to rules that serve no public interest and infringe on the First Amendment rights of both incarcerated people and those who wish to communicate with them.”

The pushback against the BOP’s proposed rule change comes during a year of intense negative press for the agency. In February, an audit found that BOP staff had failed to prevent numerous deaths within the prison system, in part due to neglect, shoddy paperwork, and poor training. In U.S. Senate hearings last month, BOP Director Colette S. Peters testified that the federal agency is in “crisis” due to a staff shortage, poor training, crumbling facilities, and bureaucratic red tape. BOP officials said the agency’s low pay rates had led them to lose job candidates to grocery stores and fast food restaurants. Higher skilled workers, such as mental health professionals, are often forced to cover guard shifts due to missing staff.

With the open comment period for the BOP’s proposed rule change ending earlier this week, the agency will likely now proceed with developing a final rule and submitting it to the federal register.