Court curbs privacy rights for prisoner phone calls

People held in Massachusetts jails have no right of privacy in phone calls if they are warned in advance the calls are monitored, a divided Supreme Judicial Court ruled today.

Because of that, the court ordered Suffolk County Andrea Cabral to turn over tapes of phone calls by one person held at one of her jails to a grand jury investigating the person. The ruling, which upholds a lower court's contempt citation against Cabral, does not say whether the person is awaiting trial or is already serving a sentence.

Cabral argued that "the recent allowance of a motion to suppress by a judge in the Superior Court in an unrelated case had called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees' and inmates' telephone calls."

But four of the court's seven justices concluded that:

[W]here the sheriff's policy of monitoring and recording detainees' and inmates' telephone calls is preceded by notice to all parties, and further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.

In a dissent, Chief Justice Margaret Marshall - joined by justices Margot Botsford and, in part, Robert Cordy - said she could not believe how deeply her fellow justices were cutting into a fundamental privacy right:

The implications of this are profound, for under today's decision prison officials (and prosecutors) are no longer constrained in any respect by art. 14 [the Massachusetts equivalent of the Fourth Amendment] from any use they may make of the private telephone conversations of any inmate, including pretrial detainees.

She added:

It bears repeating that this country has long abandoned an inquisitorial system in which the government is constrained by no bounds in prosecuting possible criminals. For this reason, this court has consistently sought to maintain the appropriate balance between the "public interest in the investigation by grand juries of criminal conduct" and the rights of individuals "to be free from unreasonable intrusions on their privacy." A decision from this court that permits unconstrained eavesdropping by prosecutors on intimate personal conversations with no requirement that a prosecutor demonstrate to an impartial tribunal that the eavesdropping is reasonable and consistent with the legitimate functions of a grand jury is a decision that represents a sharp departure from the precedents of this court setting a different path. I would adhere to those precedents.

Complete ruling.