Vote on Jail Calls Contract Tests County’s Commitment to Landmark Surveillance Policy

When Santa Clara County adopted its surveillance tech ordinance in 2016, it boasted about the policy being the first in the nation. The ACLU, which worked closely with Supervisor Joe Simitian to craft the measure, held it up as a model for other jurisdictions looking to protect the public from government overreach.

The landmark law requires the county at the outset to weigh the benefits of any spy-tech against the cost—both financial and in terms of how it might infringe on privacy, civil rights and civil liberties. It also mandates written guidelines governing a technology’s application and impact before acquiring, activating or changing its use.

Analysis, advisement, approval—in that order.

Earlier this week, a proposal to give prosecutors unprecedented access to inmate phone calls became a test of the county’s fidelity to its own oversight standards.

In a 3-0-1 vote—with Simitian abstaining and Supervisor Dave Cortese absent—the Board of Supervisors approved a one-year contract extension with jail telephone vendor Global Tel-Link. At County Executive Jeff Smith’s behest, the revised deal includes language that grants the District Attorney’s Office a direct line to listen in on inmates.

Critics of the plan say the board of supes got it all backwards, approving ramped-up surveillance without the requisite analysis or advisement.

To Public Defender Molly O’Neal, the vote violated the county policy by green-lighting what would be a new spy-tech tool for the DA while skipping the first steps of creating a cost-benefit study and a set of bespoke rules. “The board should make no exception for this completely avoidable disregard of the surveillance ordinance,” she wrote in a memo addressed to the board. “It would create a precedent encouraging other departments to avoid compliance when acquiring new surveillance technology.”

O’Neal said the order in which the county went about this violates the “plain language” of the surveillance policy. The deal with the DA raises serious concerns about checks and balances, attorney-client privilege and due process—concerns that she believes could’ve and should’ve been addressed in public view before any vote.

DA Jeff Rosen argued otherwise.

“It’s hard for me to understand how a technology that the county has had for nine years is new technology,” Rosen said on Tuesday.

While the Global Tel-Link contract dates back to 2010, the latest amendment could be considered a new application of its monitoring service. And per county policy, novel use of existing technology still require prior study and strictures.

Yet instead of carving out language about DA access until determining whether it met that new use-or-new tech threshold, the board brushed aside uncertainty enough to approve the contract. Albeit, with a caveat: that the latest provisions would only go into effect once Rosen produces the required reports and guidelines.

The vote this week stems from a months-long dispute between the Sheriff’s Office and the DA over how easily prosecutors should listen in on inmates. After years of simply handing over call recordings whenever the DA asked for them, Sheriff Laurie Smith began requiring court orders to curb what she called a burdensome uptick in requests.

That was last fall. In January, Rosen appealed to the county executive, saying the additional paperwork for search warrants and subpoenas delayed investigations and threatened public safety. County CEO Jeff Smith, in turn, directed county procurement to add the DA to the contract, granting his office the same access as the sheriff’s.

In March, the sheriff agreed to ease up on the court-order standard as long as prosecutors agreed to not bombard her staff with reams of requests, which can each take up to a couple weeks to process. By then, the contract revision was set in motion.

By framing this as a procurement matter, however, the county exec kept the debate shrouded from public view. Inmate rights advocates, namely Silicon Valley De-Bug, only heard about the proposal last week when San Jose Inside published a story about it.

Christine Clifford, who became a criminal justice reform activist for De-Bug because she had family in jail, questioned why the county would put the vote ahead of any scrutiny over how it would affect the lives of pretrial detainees. “You have no idea to know what it is like to have no conversation with your loved one about their case knowing that any discussion may implicate them further—or you,” she told county officials.

De-Bug founder Raj Jayadev said giving the DA the access he requested would have a chilling effect on families with loved ones in jail. “That lack of connection is a problem,” he warned, “not just for the people inside but their families and loved ones at home.”

Public defenders said ideally the jails would to go back to demanding court permission for the DA’s phone recording requests. Because while attorney-client calls are protected by registering certain numbers on a do-not-record list, Assistant Public Defender Damon Silver said prosecutors still get a huge upper hand from listening to inmates talk about strategy in non-privileged calls with family, friends and confidantes.

They basically “game the system and hear how our clients are telling their families about their case and the decisions they are weighing,” he told the board. “This information has no legitimate law enforcement value, but provides a massive tactical advantage.” added:

“As a result, citizens in custody have a Hobbesian choice of seeking no outside counsel with loved ones, or having them risk being eavesdropped,” he added. “We believe that is an unfair ... and deserves judicial review.”

If the DA does end up gaining the contractual right to direct access, however, officials from O’Neal’s office said they would at least want to see a clear plan in place about how to prevent ethical lapses and outright abuses. The public defender said she would also prefer more information about how the DA intends to protect privileged attorney-client calls and how it plans to prevent questionable “fishing expeditions.”

In addition to her disagreement about process, O’Neal raised several other worries and questions about the DA’s phone deal.

Like, for example, the language granting prosecutors “read only” access. Several weeks ago, O’Neal said jailers gave a demonstration of how the Global Tel-Link software works, and that she can attest there’s no transcription option. Thus, she wrote in her memo, “there is nothing to ‘read,’” and the contract may be promising something it can’t deliver.

When asked about the wording, Rosen said “read only” is more “a term of art.”

“It means we’re not the administrators of the system,” he explained, but it would allow his office to listen to and download calls on demand.

Further, O’Neal said, the county should consider how this pending policy change would affect the poor, disproportionately minority inmates whose calls are in question. People awaiting trial in jail are so often there because they can’t afford bail, she said, which puts them at a huge disadvantage compared to defendants who remain free before trial.

“We should be asking whether people who cannot afford bail should receive fewer protections simply because they are poor and incarcerated,” she wrote in her memo.

Finally, time is not of the essence, O’Neal contended. The board could have waited until all these concerns about civil liberties and constitutional rights were addressed.

Supervisor Susan Ellenberg seemed to agree, saying the DA’s access made this more of a policy discussion instead of a contract update, and should probably have been less rushed. “I’m hesitant about making a decision very quickly,” she said before casting her vote on the contract amendment anyway.

All that aside, Simitian commended his colleagues for at least having some debate about it in the first place. That is, after all, what the surveillance ordinance set out to do.

“As painful as this conversation has been, for a variety of reasons, I think it shows that this policy is working in the way it was intended to work,” he said. “Which is, we’re actually having the important policy discussion that I think we should be having, about  how to keep people safe while protecting their privacy and due process.”

Historically, in this county “and every other county in the country,” Simitian added, people would make these decisions without much transparency, if any at all—and quite often as an afterthought.

“So before you go home and tell everybody what a painful meeting you sat through,” he said, “I hope you'll say to yourselves ... ‘You know what? Our Board of Supervisors grappled with some fundamental constitutional issues today that are important, and didn’t just look the other way on a routine matter of contracting and procurement.’”

Whether it appropriately dealt with this as a surveillance matter is another question.

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @jennwadsworth.

7 Comments

  1. This vote is the affirmation of county supervisors to support the biggest “legally” criminal in this county, JEFF ROSEN. RECALL JEFF ROSEN AND THE SYSTEMIC DA office’s corruption!

  2. The bottom line is that District Attorney Jeff Rosen does not play by the rules established by our County or State. His “Go To” response is always to let the “Courts Decide” if his behavior or his staff’s is a problem. This is a brutal cycle that never allows these attorney’s to be disciplined…. They get a free pass and we all know it…

    He refuses to follow any and all of our county Surveillance Policies and Procedures.

    Time and time again I have heard this straight out of “Frozen” Rosen’s mouth at multiple venues that involve our criminal justice system.

    He will cheat the system folks like he has done for most of his time in office. Let’s not forget he already tried to cheat tax payers and county workers with his overtime Scam. That resulted in an Investigation by the Department of Justice that was pretty much ignored by the public. Just because he paid the money back that he stole should not result in an investigation being closed. This would never be the case with ANY and ALL members of the public. We would fry…..

    Rosen will do whatever it takes to win and protect the Judiciary in our County. Just last week his office could not supply the Chest Camera Footage from my May1st 2019 arrest out in front of the family justice center. This was valid exculpatory evidence that would have benefited my defense and also showed the involvement of the Presiding Judge ordering my rights to be violated. They set me up….

    Rather then produce this evidence Rosen dropped the case to protect the bench and prevent their secrets from coming out in trial.

    Rosen is also a “Bad Sport” when it comes to public criticism from inside our Board Chambers and will do anything to silence political dissent.

    A warrant was issued in February pertaining to the Family Justice Center arrest that was from last May. This was done on or around several public comments where I expressed my frustration with Jeff Rosen’s bad behavior and also his “Witch Hunt” to blame everything on Sheriff Laurie Smith. After these comments I was stopped in line at family court and detained.

    Sheriff Laurie Smith stepped up to the plate for a second time allowing me to only be cited and released with a court date rather then thrown in slammer per Rosen’s request.

    This is like a “BAD” High School movie and DA Jeff Rosen is the lead actor….

  3. The best protection people have in this county is to make your cases public every step of the process. This family court system in SANTA Clara County is a scam. Children are separated from their parents and families become victims of long divorce process that will take all their savings. These attorneys are not like the accident attorneys where they don’t charge if you do not win. These divorce attorneys charge even for the gasses they pass while talking to you and independently of the results for your case. The most corrupted public officials are in SANTA CLARA COUNTY. RECALL the SANTA CLARA COUNTY judiciary starting by supervising judge Julia A EMEDE!

  4. As much fun as it is to spy on the general public, it still illegal with out a warrant, and will likely result in millions of dollars in law suits and people guilty as hell getting released back into the public. Maybe that’s it’s purpose. Of course the tax payers get to eat it!

    • You’re right that if authorities do illegal searches then the evidence is inadmissible so people guilty as hell can be released back into the public. But recording jail calls isn’t an illegal search. Even ordinary employees who use their employer’s telephone or email services are usually put on notice that the employer might listen or read their private communications, so they might be advised to use their own paid services for anything they don’t want the employer to know. Of course inmates don’t have access to their own cell phones and email.
      Conversely, employees are told that they should use company services for company business because if they use personal services then eventually someone might try to discover those texts or emails in a company lawsuit. Same thing for public officials — when San Jose city councilmembers were texting each other during meetings, the state supreme court ruled that those texts were public records and had to be disclosed. If they never discussed city business on their personal phones they could argue that all their texts were private.
      Something that has been left out of the discussion is that sometimes there might be a recording that exonerates an inmate, like if the person on the other end admits he did it. Also the person on the other end might be a government agency and the recording might be evidence of government wrongdoing. I knew of a case where the child support agency was suing an inmate and he wanted to contest paternity. There’s a form for everything in family court and the agency was telling him he didn’t need to file the form. It was unclear whether they were dragging their feet until a deadline passed so he no longer had the option, but eventually he did get the test.

  5. Hopefully DA Jeffrey “Frozen” Rosen can handle the criticism and will not issue a Bench Warrant for my arrest just for speaking my mind (He did it in February) Let’s work on protecting our constitutional rights in Santa Clara County…. Jeff Rosen you need a time out!!

    Public comment from May 21st meeting / Line# 24 / Inmate Telephone Services Agreement Amendment

  6. Let us not forget that one year into the job Jeff Rosen broke the law and gave kickbacks in overtime to his favored employees in the DAO who had helped him get elected. AG Harris give him a free pass because the lawyers put back the public money they misappropriated. Mr. Rosen has been misusing public funds with impunity ever since.

    The County Board of Supervisors refuse to reel him in, and allowing him to have discretion over when he invades privacy is more dangerous to our democracy than one can imagine, It doesn’t just have a chilling effect on families, it has a chilling effect on attorney- client privilege for those who may need to call their lawyer while incarcerated and it has a chilling effect on those reaching out to the press. I have gotten calls from people in jail pointing me to prosecutorial misconduct (putting innocent people in jail), so Mr. Rosen apparently takes the position that his discretion trumps reporters privilege and the right to protect sources that is afforded by California’s Shield Law, and of course the First Amendment. Game on Mr. Jeff Rosen, I will take the court of opinion watching your conduct any day!

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