JDI IN THE NEWS - 2003

Katharine Mieszkowski, Life, Without the Possibility of E-mail, Salon, July 10, 2003.

The Pelican Bay State Prison Web page of the California Department of Corrections Web site boasts cabinetry, graphic arts and dry cleaning among the vocational "personal growth opportunities" available to inmates.

The site gives directions to the maximum-security facility in the northwest corner of California, announces visiting hours and touts the "innovative and collaborative environment" that the joint offers to the "state's most serious criminal offenders in a secure, safe and disciplined institutional setting."

This mix of useful info larded with correctional boosterism wouldn't be especially noteworthy, except for the way it's delivered online. Because Pelican Bay Prison administrators officially take a suspicious view of the Internet.

Even as the California Department of Corrections exploits the Web as a great way to brag to the not-currently incarcerated public at large about all its prisons have to offer, the state is maintaining that prison officials should be allowed to ban all materials downloaded from the Net, including e-mail, from reaching inmates.

California prisoners don't have Internet access, but they are allowed to receive regular mail. So what the state is saying, essentially, is that prisoners are not allowed snail mail that contains printouts of information from Internet sites or e-mail messages. It's a seemingly ludicrous position, ostensibly based on the premise that the Internet makes accessing information so easy that prisons are about to be overwhelmed by a flood of physical mail containing Web-page tidbits.

More than that, prison officials won't say, which leads outside experts to speculate that maybe they're keeping mum as to the real reason for the attempted crackdown on all things Net-related. Maybe the real problem, they suggest, is the proliferation of "prison pen pal sites" -- a kind of online dating service for incarcerated felons.

So far, the courts haven't agreed with the state of California. In September 2002, a district court judge, Claudia Walkin, ruled that in the case of Frank Clement vs. the California Department of Corrections, the Pelican Bay policy should be thrown out on First Amendment grounds. She also barred the California Department of Corrections from "enforcing any policy prohibiting California inmates from receiving mail that contains Internet-generated information." That ruling effectively struck down similar policies in other California prisons.

The California state attorney general is fighting to keep the ban, and has appealed the decision. The attorney general argues that prison officials can restrict the constitutional rights of prisoners, including their First Amendment rights, if it serves a "legitimate penological interest." The state maintains that banning Web page and e-mail printouts does serve a legitimate purpose, charging that such information could compromise security, and that allowing Internet printouts to be sent into prisons would overwhelm already strapped mailroom workers with sheer volume.

"First, the ease with which electronic communication can be manipulated heightens the risk that coded messages and other prohibited communications will be passed to prisoners and the identity of the sender concealed," state attorneys wrote in their appeal.

The ACLU is representing the plaintiff, a Pelican Bay inmate who has been incarcerated since 1985. Ann Brick, a staff attorney with the ACLU in Northern California, says that the Internet is no more risky than any other source.

"There is nothing about material printed from the Internet that makes it any more likely to contain a coded message than anything that is handwritten, typewritten or photocopied, and sent to a prisoner," says Brick.

"We could send the exact same material if we copied it off our Web site into a Word document," said Lara Stemple, the executive director of Stop Prisoner Rape. Stemple called the restriction on Internet print-outs "absolutely idiotic." Her group submitted a declaration in the case arguing that much of the material that it publishes on its Web site, such as first-person accounts of prison rape, is available nowhere else.

Lee Tien, a staff attorney with the Electronic Frontier Foundation, which filed an amicus brief in the case, points out that some advocacy groups can only afford to publish online. " And even the California Department of Corrections refers people to the Stop Prisoner Rape Web site, although it is apparently off limits to California prisoners," he said.

The state argues that it's not the information contained in the Stop Prison Rape Web site that is banned, just the traces of the verboten medium -- the Internet. "Pelican Bay's policy does not prohibit someone from writing a letter to an inmate communicating the contents of this, or any, Web site, or purchasing the books or pamphlets identified on the Stop Prison Rape Web site. Thus, the Pelican Bay policy does not prevent inmates from obtaining information," asserts the appeal. Books, letters, pamphlets, magazines and newspapers have been good enough for prisoners for decades, so there's no reason to complicate matters with this newfangled Internet. As the appeal puts it: "Simply because advances in technology have made the gathering and disseminating of information easier and less costly does not mean that the traditional means of communication are constitutionally inadequate."

The sheer volume of what's already out there and could be coming into prison mailrooms is the problem, argues the state. "The increase in mail occasioned by the introduction of large volumes of Internet materials would make it much more difficult for busy mailroom staff to detect contraband and coded gang messages hidden among material downloaded from the Internet," charge the supporting documents of the appeal. The state's attorneys predicted "lengthy delays" in the delivery of all prison mail if this policy isn't allowed to stand.

Attorneys for the ACLU countered in their own brief that to "arbitrarily exclude an entire category of mail" is no way to deal with an increase in mail volume. They suggested that there were other, less egregious alternatives: The prison could restrict the number of pages permitted in enclosures or the number of items of mail an individual prisoner could receive.

Is the state of California really worried about scads of documents from the Net clogging up prison mailrooms? The EFF's Tien doesn't think so. He speculates that the real motivation behind the Pelican Bay anti-Internet rule, and others like it, is a concern about prison pen pal Web sites, such as PrisonPenPals.com.

Such sites have inspired controversy around the country. To the horror of one murdered 13-year-old girl's parents, a Greenwich, Conn. man serving 30 years for first-degree manslaughter recently showed up on one site; the convict is pictured online wearing a tuxedo, bragging that he's "romantic and always funny," the New York Times reported.

The prison pen pal sites have inspired direct crackdown attempts. In Arizona, House Bill 2376, passed in 2000, banned prisoners from having information about them appear on Internet sites. The bill was inspired by the outrage of Stardust Johnson, the widow of a murder victim who discovered her husband's killer soliciting correspondents on PrisonPenPals.com. On the site, the inmate was pictured cuddling a kitten.

Arizona's legislation aimed to ban all information about Arizona prisoners from appearing on the Internet, and had provisions for punishing prisoners if they showed up online. But in May 2003, a federal district judge in Phoenix ruled that the restriction violated not only prisoners' First Amendment rights, but the rights of advocacy groups, including the Canadian Coalition Against the Death Penalty, a group that creates Web pages for death row inmates.

Tien argues that banning Web page and e-mail printouts won't really solve the problem of coded messages potentially being included in correspondence from pen pals: "I could make an e-mail look like a letter," he says. "I could strip off the headers, or I could copy the body of the message without the headers. I could copy the damn thing down in ink."

Tien's observations raise a salient point: Perhaps the California Department of Corrections should focus on monitoring the content of prisoners' communications, rather than tarring the medium used to generate them.