   Bureau of Prisons Disclosure of Recorded Inmate Telephone
                          Conversations

T he policy o f the C rim inal D ivision requiring outside law enforcem ent officials to obtain som e form
    o f legal process authorizing access to contents o f inm ate telephone conversations is not m andated
    by the C onstitution or T itle III o f the O m nibus C rim e Control and Safe Streets Act o f 1968.

T he practice o f profiling specific groups o f inm ates for m onitoring raises concerns when it requires
    or causes the Bureau of Prisons to alter its established m onitoring procedures for purposes unrelated
    to prison security or adm inistration.

Inm ates have a First A m endm ent right to som e m inim um level o f telephone access, subject to reason­
   able restrictions related to prison security and adm inistration. U nder certain circum stances they
   also may have a Sixth A m endm ent right to m ake telephone calls to their attorneys


                                                                                                   January 14, 1997

          M e m o r a n d u m O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l
                                               C r im in a l D iv is io n



   You have requested our views on the extent to which Bureau of Prisons
(“ BOP” ) officials may disclose tape recordings of non-privileged inmate tele­
phone conversations to other law enforcement officials to assist in criminal inves­
tigations unrelated to prison security or administration.1 In addition, you have
asked for our views on the legal necessity of the Department of Justice’s current
policy regarding access by non-BOP law enforcement officials to such tapes.2
   At the outset, we believe it is helpful to distinguish several questions raised
by your memorandum. The first question is the extent to which BOP officials
may take tape recordings made for prison security and administration purposes
and disclose their contents to outside law enforcement officials for reasons unre­
lated to institutional purposes. We understand this question to encompass the
related issues whether outside law enforcement officials may obtain this same
information by participating in routine prison monitoring and whether those offi­
cials must seek legal process prior to obtaining the information, as required by
the Department’s current policy. A second question is the extent to which BOP
may monitor and record (and thereafter, disclose) inmate telephone conversations
for reasons unrelated to prison security and administration. Finally, there is a ques­
tion whether inmates have a constitutional or other legal right to telephone privi­

    1Memorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from John
C Keeney, Acting Assistant Attorney General, Criminal Division, Re Request fo r an Opinion Regarding the Legality
o f the Disclosure by Bureau o f Prison Officials, Acting Without Court Process, o f Monitored/Recorded Non-Privileged
Inmate Telephone Conversations to Law Enforcement to Assist in Criminal investigations Unrelated to Prison Secu­
rity or Administration (Oct 11, 1996) ( “ Keeney M emorandum” )
    2 Id


                                                           11
                            Opinions o f the Office o f Legal Counsel in Volume 21


leges while incarcerated. We address each of these questions after setting forth
some basic background principles that guide the analysis.3

                                               BACKGROUND

   As a general matter, the interception of wire communications is governed by
two sources of law: the Fourth Amendment4 and the federal wiretapping statute,
Title III o f the Omnibus Crime Control and Safe Streets Act of 1968 ( “ Title
III” ), Pub. L. No. 90-351, 82 Stat. 197, 211-225, amended by the Electronic
Communications Privacy Act of 1986, 18 U.S.C. §§2510-2522 (1994). The
Supreme Court has not addressed the applicability of the Fourth Amendment or
Title III to the practice of monitoring and recording inmate telephone conversa­
tions to ensure prison security and orderly administration. Many lower courts have
addressed the issue, agreeing that neither poses an obstacle to the practice. These
courts, however, have provided little analysis with respect to the Fourth Amend­
ment and have diverged in their analyses with respect to Tide III. See Attachment
I to Keeney Memorandum (collecting cases). Because we believe that the par­
ticular analysis that is controlling may affect the answers to your questions, we
lay out the proper approaches below.

                                            I. Fourth Amendment

   The Fourth Amendment protects individuals from “ unreasonable searches.”
U.S. Const, amend. IV. The applicability of the Fourth Amendment in a particular
case turns on whether “ the person invoking its protection can claim a ‘justifiable,’
a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by
government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979). This inquiry,
in turn, requires both an “ ‘actual (subjective) expectation of privacy’ ” and one
that, viewed objectively, “ ‘society is prepared to recognize as “ reasonable.” ’ ”
Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concur­
ring)).
   In Hudson v. Palmer, 468 U.S. 517, 530 (1984), the Supreme Court held that
“ the Fourth Amendment’s prohibition on unreasonable searches does not apply
in prison cells.” In that case, a prison inmate brought a § 1983 action, see 42
U.S.C. § 1983 (1994), alleging that prison officials had conducted a random, unan­
nounced “ shakedown” of his cell solely to harass him. The Court rejected his
claim, holding that prison inmates have no legitimate expectation of privacy in

   3 We respectfully decline to answ er your question concerning the extent to which an inmate’s recorded conversa­
tions constitute Jencks Act o r Brady material in the main because that question is the subject o f ongoing litigation.
See Keeney M emorandum at 5
   4 The Fourth Amendment provides: “ The right o f the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath ot affirmation, and particularly describing the place to be searched, and the
persons o r things to be seized ” U.S. Const, amend. IV.


                                                          12
               Bureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations


their cells. 468 U.S. at 530. Although the Court observed that prisoners retain
certain constitutional rights while incarcerated, it reasoned that an expectation of
privacy in the contents of a prison cell is incompatible with “ what must be consid­
ered the paramount interest [of the prison] in institutional security.” Id. at 528.
This interest is so compelling, the Court found, that it justifies categorical treat­
ment of cell searches. Thus, given the complete absence of any legitimate expecta­
tion of privacy, even when a particular cell search is conducted for “ calculated
harassment unrelated to prison needs,” the Fourth Amendment provides no protec­
tion. Id. at 530.5
   Although Hudson concerned the applicability of the Fourth Amendment to
prison cells, we believe its reasoning applies with full force to inmate telephone
conversations. As in Hudson, recognizing an expectation of privacy in inmate tele­
phone conversations would conflict with the objectives of prison officials. See
United States v. Clark, 651 F. Supp. 76, 81 (M.D. Pa. 1986) (recognition of a
reasonable expectation of privacy would frustrate BOP objectives “ to enhance
the security of federal prisons through monitoring and recording of telephone con­
versations” ), a j f d sub. nom. United States v. Weeden, 869 F.2d 592 (3d Cir.),
cert, denied, 490 U.S. 1073 (1989); United States v. Van Poyck, 11 F.3d 285,
291 (9th Cir.), cert, denied, 519 U.S. 912 (1996). Inmates may use their telephone
privileges in a variety of ways that violate prison regulations and threaten prison
security. For example, they may request illegal drugs or weapons from the outside;
they may plan prison escapes; they may relate information concerning illegal
activities within the prison; they may facilitate illegal activities outside of the
prison. The prison’s interest in detecting and preventing this type of conduct out­
weighs any expectation of privacy inmates might have in their telephone conversa­
tions.
   Furthermore, we believe inmates lack a credible claim of privacy with respect
to their telephone conversations because they receive ample notice of the moni­
toring and taping practice. BOP, for example, posts notices of its monitoring
system in English and Spanish on each inmate telephone and requires inmates
to sign forms acknowledging their awareness of the system. In addition, public
notice of the system is contained in the Code of Federal Regulations. 28 C.F.R.
§§540.100—540.101 (1996). Under these circumstances, it would be difficult for
inmates to argue that they have an actual expectation of privacy. See United States
v. Amen, 831 F.2d 373, 379-80 (2d Cir. 1987), cert, denied, 485 U.S. 1021
(1988).6 Even if inmates nonetheless subjectively expected their telephone con­
   5 In such a case, however, Che Court stated that a prisoner may pursue claims under the Eighth Amendment or
state tort and common-law remedies. Hudson, 468 U.S. at 530
   6 Indeed, it could be argued that inmates expressly or impliedly consent to have their telephone conversations
monitored and recorded. See Amen, 831 F.2d at 379, Van Poyck, 77 F 3 d at 291. Consent — whether express of
im plied— would render the prison’s monitoring procedure lawful, even if it constituted a search See Schneckloth
v. Bustamonte, 412 U S. 218, 219 (1973) (consent is “ one o f the specifically established exceptions to the require­
ments of both a warrant and probable cause” ); McGann v Northeast H i Regional Commuter R R Corp., 8 F.3d
                                                                                                           Continued


                                                         13
                            Opinions o f the Office o f Legal Counsel in Volume 21


versations to remain private, we believe that expectation would not be “ one that
society is prepared to recognize as ‘reasonable.’ ” Katz, 389 U.S. at 361. “ If
security concerns can justify strip and body cavity searches and wholly random
cell searches, then surely it is reasonable to monitor prisoners’ telephone conversa­
tions, particularly where they are told that the conversations are being monitored.”
Amen, 831 F.2d at 379-80 (citations omitted). But even if inmates possessed a
subjectively and objectively reasonable expectation of privacy in their telephone
conversations, we believe that monitoring such conversations would be “ reason­
able” in light of the prison’s compelling interest in security and orderly adminis­
tration so long as the monitoring w as conducted consistent with that purpose. See
Van Poyck, 77 F.3d at 291.

                                                   II. Title III

   Title III generally prohibits the use of any “ electronic, mechanical, or other
device” to intercept “ any wire, oral, or electronic communication,” in the absence
of authorization by a court order. 18 U.S.C. § 2 5 1 1(a), (b) (1994).7 The statute
provides several exceptions to this general prohibition, however. For example, it
permits interception of oral communications uttered by a person with no justifiable
expectation of privacy. See 18 U.S.C. §2510(2). Interception o f wire communica­
tions— the type of communications at issue here — does not similarly turn on
expectation of privacy. Rather, Title III contains specific conditions under which
interception of such communications is permissible. Section 2510(5)(a), for
example, permits interception of wire communications by “ an investigative or
law enforcement officer in the ordinary course o f his duties.” 18 U.S.C.
§2510(5)(a) (“ ordinary course of duties exception” ).8 Section 2511(l)(c) permits
interception upon consent from a party to the communication. Id. § 2511(1 )(c)
(“ consent exception” ).9 Courts have held that one or both o f these exceptions
apply to monitoring and recording o f inmate telephone conversations.
  To qualify for the ordinary course of duties exception to Title III, interception
of a wire communication must b e conducted (1) by an investigative or law
enforcement officer (2) in the ordinary course of his duties. Courts generally have

1174, 1181 (7th Cir. 1993) (reviewing factors establishing implied consent, including whether “ the person searched
was on notice that undertaking certain conduct . . . would subject him to a search” ). As discussed infra in the
Title III context, several courts have questioned w hether consent based solely on notice is valid.
   7 It is well settled that Title III applies to the prison system. See Van Poyck, 77 F.3d at 291; Am en, 831 F.2d
at 377; U nited States v. Paul, 614 F.2d 115, 117 (6th Cir.), cert, denied, 446 U.S. 941 (1980); Campiti v. Walonis,
611 F.2d 387, 392 (1st Cir. 1979).
   8Section 2510(5)(a) does so by excluding from the definition o f “ electronic, mechanical, or other device” equip­
ment used by “ an investigative o r law enforcement officer in the ordinary course o f his duties.” 18 U.S.C.
§2510(5)(a). Investigative officers using an electronic, mechanical, or other device in the ordinary course of duties
may intercept any wire, oral, o r electronic communication
   9 Such consent may be express o r implied. S e e United States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988)
(citing S. Rep. No. 90-1097, at 94 (1968), reprinted in 1968 U .S.C .C A .N . 2112, 2182), cert, denied, 488 U.S.
1033 (1989).


                                                         14
               Bureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations


assumed that prison officials constitute “ law enforcement” officers.10 The “ ordi­
nary course of duties” requirement has engendered more discussion. Courts have
concluded that prison monitoring occurs in the ordinary course of duties if con­
ducted pursuant to an established policy that is related to institutional security,
generally applicable rather than directed at a particular inmate, and made known
to inmates.11 We agree that a prison monitoring program will not violate Title
III if it exhibits these characteristics.
   Many courts have gone considerably further, holding that prison monitoring is
exempt under Title III if inmates merely have notice of its occurrence. These
courts imply consent under § 251 l(l)(c) from circumstances suggesting that
inmates voluntarily choose to make telephone calls with knowledge that they will
be tape recorded.12 Other courts have rejected or criticized this application of
§ 2511(1 )(c). Some reason that consent to monitoring is not voluntary because
inmates have no choice but to forego telephone privileges.13 Others frame the
problem as a failure to distinguish between knowledge and implied consent.14
As Judge Posner has stated:

          [KJnowledge and consent are not synonyms. Taking a risk [that
          prison officials will not detect an abuse of telephone privileges]
          is not the same thing as consenting to the consequences if the risk
          materializes. A person who walks by himself late at night in a dan­
          gerous neighborhood takes a risk of being robbed; he does not con­
          sent to being robbed. We would be surprised at the argument that

    10 An “ (i)nvestigalive or law enforcement officer” is defined as “ any officer of the United States or of a State
or political subdivision thereof, who is empowered by law to conduct investigations of or to make arTests for offenses
enumerated in this chapter ” 18 U S C § 2510(7). Although prison officials are not empowered to conduct investiga­
tions of offenses directly related to Title 111, they have authority to conduct investigations relating to prison security
See 28 C F R § 541 14(b) (1996) Courts have found such authority sufficient for Title III purposes See, e.g., Clark,
651 F Supp at 78-79, Crooker v United States Dept o f Justice, 497 F. Supp 500, 503 (D. Conn. 1980)
    11 Sec, e .g , United States v Lanoue, 71 F.3d 966, 982 (1st Cir. 1995) ( “ If the call was intercepted to gather
evidence for Agent Brosnan’s investigation, rather than for prison security purposes, it was not done in the ordinary
course o f d u ty ” ), Paul, 614 F.2d at 117 (monitoring in ordinary course of duties where conducted pursuant to
the policy of the BOP and local prison rules that were posted by each telephone), Campiti, 611 F 2 d at 390-92
(monitoring not in ordinary course o f duties where unrelated to prison security, not pursuant to prison policy, without
notice to inmates, and focused on one inmate); United States v Green, 842 F Supp 68, 73-74 (W.D.N Y. 1994)
( “ These facts, including the focus on the calls o f one particular prisoner, the extraordinary long time period in
which the taping continued, and the large volume o f tapes sent to other investigative agencies, all contrast starkly
with pnor cases in which a few calls were taped in the course o f routine monitoring.” ), a f f d sub nom United
States v. Workman, 80 F.3d 688 (2d C ir), cert denied, 519 U S 955 (1996), United States v. Cheely, 814 F Supp
 1430, 1442-43 (D Alaska 1992) (defining “ ordinary course of duties” to exclude “ ad hoc monitoring of a single
inmate” and distinguishing Camptn), a ffd , 36 F 3d 1438 (9th Cir. 1994); Clark, 651 F Supp at 79-80 (same).
United States v Noriega, 764 F Supp 1480, 1491 (D. Fla. 1991) ( “ If in fact the interception o f Noriega’s conversa­
tions was unrelated to any institutional considerations, then it would fall outside the scope of an MCC official’s
‘ordinary course of duties.’ ” )
    12 United States v Workman, 80 F 3d 688, 693 (2d C ir), cert denied. 519 U S 955 (1996), Van Poyck, 11
F 3d at 291, United States v Horr, 963 F 2d 1124, 1126 (8th C ir ). cert denied, 506 U S 848 (1992), Willoughby,
860 F 2d at 20, Amen, 831 F.2d at 378; Green, 842 F Supp at 72
    n See Langton v Hogan, 71 F 3d 930, 936 (1st C ir 1995)
    14 United States v Daniels, 902 F 2 d 1238, 1245 (7th C ir) (Posner, J ), cert, denied, 498 U S 981 (1990), Cheely,
814 F Supp. at 1443; Crooker, 497 F. Supp at 503


                                                          15
                    Opinions o f the Office o f Legal Counsel in Volume 21


       if illegal wiretapping were widespread anyone who used a phone
       would have consented to its being tapped and would therefore be
       debarred from complaining o f the illegality.

United States v. Daniels, 902 F.2d at 1245.
   Although we believe Judge Posner’s analogy inapt, equating assumption of a
risk with knowledge for the purpose of distinguishing voluntary consent, we do
agree that, in certain circumstances, construing or equating knowledge as implied
consent would allow the government to evade the requirements of Title III (and
the Fourth Amendment) simply by announcing its intention to do so. We further
appreciate without necessarily conceding that such circumstances may arise in the
prison setting, on the theory that inmates have no alternative comparable to tele­
phone facilities and thus no choice but acquiescence with respect to wiretapping.
We therefore have reservations about reliance on the consent exception to Title
III to monitoring of inmate telephone conversations based solely on evidence of
notice. Nonetheless, we include this theory in our discussion below because it
remains valid in several jurisdictions.

                                     DISCUSSION

         I. Monitoring for Purposes of Prison Security and Administration

  In this section, we address issues related to BOP’s practice of monitoring and
recording inmate telephone conversations pursuant to established policy and for
reasons related to prison security o r administration. We address each issue under
the applicable Fourth Amendment and Title III standards.

A. Disclosure for Purposes Unrelated to Prison Security

   Because we believe inmates have no legitimate expectation of privacy in their
telephone conversations, the seizure of those conversations by BOP officials
(through routine monitoring and recording) does not implicate the Fourth Amend­
ment. As a result, the subsequent disposition of those conversations does not
implicate the Fourth Amendment. Cf. Hudson, 468 U.S. at 538-39 (O’Connor,
J., concurring) ( “ [I]f the act of taking possession and the indefinite retention of
the property are themselves reasonable, the handling o f the property while in the
government’s custody is not itself of Fourth Amendment concern.” ). Thus, the
Fourth Amendment does not prevent BOP officials from disclosing the contents
of those conversations to outside law enforcement officials, even for purposes
unrelated to prison security or administration.
   Although Title III may impose greater constraints than the Fourth Amendment
on the interception of wire communications, it furnishes no greater barrier to their
disclosure in this instance. Title III expressly authorizes law enforcement officers

                                             16
                Bureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations


to disclose the contents of lawfully obtained communications to “ another inves­
tigative or law enforcement officer to the extent that such disclosure is appropriate
to the proper performance of the official duties of the officer making or receiving
the disclosure.” 18 U.S.C. §2517(1). In addition, Title III permits law enforce­
ment officers to use the contents of lawfully obtained communications “ to the
extent such use is appropriate to the proper performance of his official duties.”
Id. §2517(2).15 We believe that either or both of these provisions permits BOP
to disclose the contents of inmate telephone conversations to other law enforce­
ment officials consistent with statutory limitations.

B. Participation of Non-BOP Law Enforcement Officials

   From a Fourth Amendment perspective, the presence of outside law enforcement
officials during taping is indistinguishable from disclosure thereafter.16 Because
inmates have no reasonable expectation of privacy in their telephone calls, the
Fourth Amendment simply has nothing to say about the circumstances under
which, or even the manner in which, the BOP seizes those conversations. Cf.
Hudson, 468 U.S. at 529 (Fourth Amendment provides no protection for destruc­
tion of property during the course of lawful prison cell search). Thus, we believe
that the Fourth Amendment does not prevent outside law enforcement officials
from participating in routine prison monitoring and recording.17
   In our view, Title III presents a more complicated question. Unlike the Fourth
Amendment, the ordinary course of duties exception to Title III requires courts
to consider the circumstances under which monitoring occurs. Under certain condi­
tions, the unannounced or sporadic presence of outside law enforcement officials
might indicate a course of conduct out of the ordinary. Cf. United States v. Green,
842 F. Supp. at 73 (dicta) (monitoring not in ordinary course of duties where,
among other things, special arrangements for recording were set up and prison
officials sent an unusually large volume of tapes to outside investigative agencies).
As a general matter, however, we do not believe that the presence of outside
law enforcement officials — in the absence of other unusual circumstances — is
sufficient to call into question otherwise routine monitoring. Nor is it enough in
our view, to vitiate implied consent to monitoring, particularly where inmates have

    15 Inmates have argued that disclosure to other law enforcement officials renders the initial monitoring unlawful
under Title III, such that neither §2517(1) nor §2517(2) applies. Specifically, inmates have claimed that disclosure
takes the initial seizure outside the ordinary course o f duties. For the reasons discussed infra citing Green, we do
not believe, however, that disclosure to outside law enforcement officials— absent other peculiar circumstances —
 is sufficient to taint otherwise routine monitoring and recording Inmates also have argued that disclosure to other
law enforcement officials exceeds the scope o f their implied consent to monitoring In Noriega, the court flatly
rejected this argument, reasoning that Title 111 treats issues of consent and disclosure separately 764 F. Supp. at
1491.
    l6For purposes of this discussion, we assume that the presence or participation o f outside law enforcement officials
is not so significant as to change the routine and established nature o f the monitoring.
    17Although the Eighth Amendment “ always stands as a protection against ‘cruel and unusual punishments,’ ”
Hudson, 468 U S at 530, we do not believe that the presence o f outside law enforcement officials dunng routine
monitoring rises to that level.


                                                           17
                          Opinions o f the Office o f Legal Counsel in Volume 21


notice of the periodic presence of outside law enforcement personnel. Even when
inmates have no notice of the precise conditions under which monitoring occurs,
their consent to the practice of monitoring remains valid and sufficient for Title
III purposes. C f Workman, 80 F.3d at 694 (consent to monitoring valid even
though inmates had no notice that their calls were recorded).

C. The Extent to Which Court Process is Required

   We understand that the Criminal Division has voluntarily adopted a policy
requiring outside law enforcement officials to obtain some form of legal process
authorizing access to the contents of inmate telephone conversations.18 With
respect to previously recorded communications of a specifically identified inmate,
the policy requires the requesting agency to obtain a search warrant, grand jury
subpoena, administrative summons, or national security letter.19 For future tele­
phone conversations, the policy requires a Title III interception order from the
courts.20
   We do not believe that the policy of the Criminal Division is either constitu­
tionally or statutorily mandated. As discussed above, neither the Fourth Amend­
ment nor Title III limits or otherwise conditions disclosure to outside law enforce­
ment officials. While the Criminal Division or BOP may voluntarily adopt proce­
dural restrictions as a policy matter, they are not compelled by law to do so.
Thus, the Criminal Division is free to modify or repeal its current policy.

             II. Monitoring Unrelated to Prison Security and Administration

   In this section, we address whether non-BOP law enforcement agencies may
“ profile” specific groups of inmates for BOP to monitor and record. It is our
understanding that these profiles m ay enable non-BOP law enforcement agencies
to prevent inmates from using their telephone privileges to facilitate criminal
activities outside the institution and to gather information concerning the outside
criminal activities themselves.
   W e believe the practice of profiling raises concerns only to the extent it requires
or causes BOP to alter its established monitoring procedures. BOP has authority
to monitor and record all inmate telephone conversations for institutional purposes.
As discussed above, those conversations, once lawfully obtained, may be used
for purposes unrelated to prison security and administration. If profiling merely
enables outside law enforcement agencies to identify potentially useful inmate
telephone conversations before they are lawfully seized, it is no more problematic

   18 See M emorandum for All United Slates A ttorneys and Stnke Force Chiefs, from William F. W eld, Assistant
Attorney General, Criminal Division, Re Electronic Surveillance Procedures Within the Federal Prison System (Jan
9, 1987) (attaching guidelines).
  ™I d
  20 Id.


                                                      18
                Bureau o f Prisons Disclosure o f Recorded Inmate Telephone Conversations


than allowing those officers to participate during the seizure or disclosing the tapes
to them thereafter.
   If profiling requires or causes BOP either to adopt special monitoring procedures
or change its monitoring policy for purposes unrelated to prison security or
administration, however, it may jeopardize the application of the ordinary course
of duties exception. In Green, the court held that monitoring was not in the ordi­
nary course of duties for purposes of Title III where focused on a particular inmate
and recorded on special audio cassettes, rather than reel-to-reel tapes. 842 F. Supp.
at 73; see also Campiti, 611 F.2d at 390-92 (monitoring not in ordinary course
of duties where directed at a specific inmate for reasons unrelated to prison secu­
rity and conducted without notice or regard to prison policy).21 Similarly, if a
prison that maintained a general policy of random monitoring (or random
screening of monitored calls) decided to monitor or review all telephone conversa­
tions of certain inmates at the behest of outside law enforcement officers, a court
might find the monitoring beyond the ordinary course of duties. Such a finding
would be fatal in jurisdictions that reject the implied consent theory of monitoring.
   Even in jurisdictions that accept the implied consent theory, however, the prac­
tice of targeting inmates for reasons unrelated to prison security raises troubling
issues. For example, inmates who receive express notice of random monitoring
(or random screening of monitored calls) might argue that their consent does not
extend to the unwritten practice of monitoring or review all of their telephone
conversations. To the extent inmates have been misled or deceived with respect
to prison policy, a court might refuse to find implied consent.

                         III. Constitutional Right to Telephone Privileges

   In this section, we discuss the extent to which the Constitution requires prisons
to provide inmates with access to telephones. We believe that inmates have a
First Amendment right to some minimal level of telephone access, subject to
reasonable restrictions related to prison security and administration. Under certain
circumstances, they also may have a Sixth Amendment right to make telephone
calls to their attorneys, subject again to reasonable restrictions.22
   The Supreme Court has recognized that “ ‘[p]rison walls do not form a barrier
separating prison inmates from the protections of the Constitution,’ . . . nor do
they bar free citizens from exercising their own constitutional rights by reaching
out to those on the ‘inside.’ ” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)
   21 See also Cheely, 814 F Supp at 1441 ( “ ad hoc monitoring” of particular inmates is beyond ordinary course
of duties), Lanoue, 71 F.3d at 982 ( “ If the call was intercepted to gather evidence for Agent Brosnan’s investigation,
rather than for prison security purposes, it was not done in the ordinary course of duty.” ), Noriega, 764 F. Supp
at 1491 ( “ If in fact the interception o f N onega’s conversations was unrelated to any institutional considerations,
then it would fall outside the scope o f an MCC official’s ‘ordinary course o f duties.’ ” ).
   22 At least one court has held that inmates have no Eighth Amendment claim to telephone access because it is
not a basic human need, such as food, medical care, and physical safety. See Douglas v DeBruyn, 936 F Supp.
572, 578 (S D. Ind 1996)


                                                          19
                             Opinions o f the Office o f Legal Counsel in Volume 21


(quoting Turner v. Safley, 482 U.S. 78, 84, 94—99 (1987)). Thus, “ a prison inmate
retains those [consititutional] rights that are not inconsistent with his status as
a prisoner [and] with the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). With respect to telephone
privileges, courts generally agree that inmates have a First Amendment right to
some minimal level of access.23 Although courts have not reached consensus on
the precise level of access required,24 the touchstone is reasonableness.25 Thus,
limitations on the right to telephone access will not violate the First Amendment
if they are reasonable.26 We acknowledge, however, that certain bases exist that
justify a complete ban on telephone access by a particular inmate or a class of
inmates, consistent with the First Amendment. See 28 C.F.R. § 501.2 (1996) (upon
direction of Attorney General, Director of BOP may authorize Warden to limit
telephone use as reasonably necessary to prevent the disclosure of classified
information); id. §501.3 (upon direction of Attorney General, Director of BOP
may authorize Warden to limit telephone use as reasonably necessary to protect
persons against the risk of acts o f violence or terrorism). There may be other
circumstances as well that support a similar revocation of telephone privileges.
   In addition to the First Amendment, the Sixth Amendment may guarantee
inmates a right to some telephone contact with their attorneys.27 Even this right
is not unlimited, however.28 A prison need only provide access to counsel that
is “ adequate, effective, and meaningful when viewed as a whole.” Aswegan, 981
F.2d at 314.29 Thus, reasonable restrictions on access to attorney telephone calls
are permissible, especially when other means o f attorney contact are available.

                                                                       RICHARD L. SHIFFRIN
                                                                    Deputy Assistant Attorney General
                                                                        Office o f Legal Counsel

    23 See Pope v. H ightower, 101 F.3d 1382, 1384 (11th Cir. 1996); Washington v. Reno. 35 F.3d 1093. 1099 (6th
Cir. 1994); Tucker v. Randall, 948 F.2d 388, 391 (7th C ir 1991), Strandberg v. City o f Helena, 791 F.2d 744,
747 (9th Cir. 1986); Morgan v. LaVallee, 526 F.2d 221, 225 (2d C ir 1975); Montana v. Commissioners Court,
659 F.2d 19, 23 (5th Cir. 1981), cert, denied, 455 U S 1026 (1982), Feeley v. Sampson, 570 F.2d 364, 374 (1st
Cir. 1978); Johnson v. Gallic 596 F. Supp. 135, 138 (D. Nev. 1984). This is true even though other forms of commu­
nication with the outside exit. C f Pell v Procunier, 417 U.S. 817 (upholding prison regulations prohibiting face-
to-face interviews by media o f individual inmates because alternative means of communication existed).
    24 See Wooden v Norris, 637 F. Supp 543, 555 n.4 (M.D. Tenn. 1986) (collecting cases).
    25 See Pope, 101 F.3d at 1384 ( “ [W]hen a prison regulation impinges upon an inmate’s constitutional rights,
the regulation is valid if reasonably related to legitimate penological interests.” ) (citing Turner, 482 U.S. at 89),
Washington, 35 F 3 d at 1100 (prisoner’s right to telephone access is “ ‘subject to rational limitations in the face
o f legitimate security interests o f the penal institution’ ” ); Strandberg, 791 F.2d at 747
    26See Washington, 35 F.3d at 1099; Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir.), cert, denied, 493 U.S.
895 (1989); Strandberg, 791 F 2 d at 747; Lopez v. Reyes, 692 F 2 d 15, 17 (5th Cir 1982); Carter v. O ’Sullivan,
924 F. Supp. 903, 909 (C.D. 111. 1996).
    27 See Tucker, 948 F.2d at 391; Strandberg, 791 F.2d at 747; Carter, 924 F. Supp. at 909
    28 See Asw egan v Henry, 981 F.2d 313, 314 (8th Cir. 1992) ( “ Although prisoners have a constitutional right
o f meaningful access to the courts, prisoners do not have a right to any particular means o f access, including unlimited
telephone use.” ) (citing Bounds v. Smith, 430 U.S. 817, 823, 832 (1977)).
    29 See also Wooden, 637 F Supp. at 554-55 (coinless telephone system does not violate First or Sixth Amendment
rights o f inmates o r First A mendment rights of inm ates’ families).


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