Together with the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers of New Jersey, the ACLU-NJ submitted an Amicus brief on February 11, 2019, arguing that prosecutors wishing to listen in on calls a defendant makes from jail must first get a warrant. The State has suggested that incarcerated people surrender all privacy rights in their calls because they consent to be monitored by jail staff for institutional security reasons. But constitutionally, a person can reasonably expect to keep his information private from some groups but not others, and for some purposes but not others. A prosecutor is not free to commandeer a jail’s security practices to make an end run around the constitution.
A practice that deters people in jail from connecting with their loved ones under threat of losing their privacy rights presents profound policy problems, in addition to constitutional ones. Family contact during incarceration reliably reduces the risk of recidivism. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the momentous constitutional and policy interests the calls implicate.