Beginning in 2003 the Correctional Service of Canada (“CSC”) imposed huge restrictions on prisoners’ access to, and use of, digital media.
Since then, in the face of metamorphosis in the very nature of community in the digital age, CSC has doubled down, increasingly denying prisoners access to a growing list of communication staples that are enjoyed every day by most citizens.
The effect of this on prisoners’ meagre financial resources, on their access to justice, on their relations with families and on their basic human rights has been significant , and risks becoming even worse.
A. 2003 A Kryptic Crisis
The initial thrust of this war on digital tools was CSC ‘s approach to inmate computers, Prisoners had always been allowed to purchase computers for in-cell use, subject to security inspection and monitoring to prevent their misuse for surreptitious communications and crime – e.g. bringing in drugs.
Then, an abrupt change.
In 2003 CSC security staff convinced the Service to ban any digital mechanism that prisoners could feasibly use to communicate with persons outside institutions. This was purportedly to combat the planning and execution of crimes, especially bringing drugs into penitentiaries, which officials felt was a growing risk for staff, inmates and others.
The 2004-2005 Annual Report of th Correctional Investigator (“the CI”), the federal prisoners’ ombudsman stated:
Last year, based upon its review of reports on a
series of incidents involving misuse of in-cell
computers, CSC decided to prohibit the further
introduction of computers to individual cells. The
Service recognized the importance of inmate access
to computers, however, and stated its intention to
make computers in designated areas outside cells
available for inmate use. These areas would be
supervised and would make use of equipment that
was secure from misuse.
Inmates, this Office and a number of community
stakeholders voiced concerns about the necessity for
the measures taken and the serious impact of
reducing access to computers on offender programs,
reintegration and personal uses (e.g. litigation or
recreation). Providing sufficient outside-of-cell
computers has proved extremely problematic for
CSC. Far fewer computers are currently available
than would be necessary for adequate inmate
In 2004 CSC had agreed to establish a working group to deal with the issues arising from the computer ban. The mandate of this group was: to provide tangible, early
solutions that will permit broad access to computers
for all inmates in a safe and secure fashion.
The CI recommended:
- the solutions proposed by the working group be prioritized for implementation, so that the matter may be substantially resolved in the current fiscal year
- these solutions include providing effective access to all inmates who wish to acquire computer skills and to benefit from the information technology of the 21st century
The CSC response was:
CSC recognizes the benefits that computer access can bring to offender educational and work skills, and will continue to manage, within its resource base, the risks that computer access can pose.
CSC has worked very closely and productively with a broad range of stakeholders and experts in Information Technology on this issue since 2004, and has an established minimum of four computers in each institution and a minimum ratio of one computer for every 50 inmates.
CSC is currently conducting a study to determine whether the ratio of computers to inmates needs to be adjusted, and to establish a Protocol for Inmate Access to CSC-owned computers. The study will also include a Threat and Risk Assessment of in-cell use of computers.
As the C.I. reported, in the course of the working group’s efforts there had been considerable opposition to CSC’s policy from inmate advocates, the CI and the prison bar.
They argued, for example:
a) that use of computers and other electronic technologies were important skills of life in the community, which released prisoners would have to acquire in order to succeed, economically and socially.
b) that digital tools provided inmates important educational pathways, both formal learning and for information to support everyday living.
c) that computers and the internet were a vital support to prisoners who were representing themselves before the Courts on appeals and other matters
d) that internet applications and cellphone communication could permit robust and inexpensive communication with families and other community contacts
e) that the Corrections and Conditional Release Act provides that prisoners should lose only such rights as was necessary for effectiv operation of institutions.
All through this discussion, and ever since, CSC’s arguments about the risk of computers have referred to techniques that prisoners could use to convert devices into communication tools.
When asked for examples of such subversive processes and for examples of abuse CSC almost always responded that they could not reveal this information, for security reasons! Information disclosed, they said, would give potential transgressors the capacity to broaden security breaches and to thnk of new. improved means to defeat security.
Bottomline: Not only was CSC relieved of independent review of its prohibitions, it was also absolved of having to explain why responses other than blanket prohibtions were necessary. No prisoners or advocates could make informed recommendations for alternative, reasonable approaches to combatting computer misuse
B. Spit and Scotch-Tape
In the event, the working group faded away ; stakeholder arguments basically went for nought and since 2003, no functional or sufficient access to institutional computers has been provided.
Prisoners were indeed denied purchase of new computers. They could keep the ones they had purchased prior to 2003 as long as they could keep them functioning. This has resulted in a shrinking supply of increasingly obsolete devices held together by the spit- and- scotch tape creativity of some prisoners.
As to institutionally-provided computers, prisoners have consistently complained of restricted scheduling of computer access and of inadequate software and applications for educational, legal or other purposes.
C. Doubling down
Since the events of 2003-2004 there have been increasingly widely- based prohibitions on all kinds of technologies that might be used for stealth communications. For example:
- All electronic devices and parts thereof that could feasibly be used to conceal or communicate information were banned and devises were strictly inspected for this purpose
- Email has remained a complete non-starter
- Access to the internet has been effectively forbidden except in very limited circumsances
- To prevent misuse of phones, a very expensive system (for offenders) was installed to channel calls, at high rates, through exclusive, interceptable pathways
- Cellphones, for inmates and ther visitors, were prohibited, as were blue tooth connectors and computer chips and even most electronic games.
CSC officials have refused almost all individualized approaches for dealing with the problem, such as inspeciting and removing communication features of computers at time of admission to the instiution or individualized sanctions on inmates who broke the rules.
They argue that technology improves too rapidly to keep up with new app licationsand that they lack resources to deal with one- off cases of abuse.
In general they have said that they lack the training to keep up with the cybernetic wave – ergo, complete prohibition is the only option.
When asked to outline their concerns in order to permit an informed discussion they have declined to do so, saying that such disclosure could itself weaken security measures.
D. The Back to the Future effect
In the 15 years since the prohibitions, new developments in digital communication have done nothing to resolve the problem. Au contraire, in fact.
As recent “smart” devices have entered the market, so has a proliferation of “bluetooth”-style applications.
For example, TV and stereo remotes and internal systems contain many features that could feasibly be used to communicate surreptitiously.
To respond to these new issues, CSC indicates it is considering permitting purchase of devices provided that software is removed that would allow improper access to information .
The problem here is that CSC would cause prisoners to pay for the necessary “surgery” and to pay the full, initial retail price for the resulting, partially- disabled products.
So, prisoners who have been inside for all or some of the past 15 years have found themselves effectively deprived of the commnications tools of everyday life in the community.
Long- term offenders leaving the system these days report that the challenges of adjusting to the digital age are akin to Marty McFly’s time machine experiences.
Absent the skills and knowledge that ordinary folks have acquired, released prisoners have huge problems acquiring employment and simply functioning inter-personally
E. The Digital Community and the Charter
As inmate rights to communication have been surpressed the legal rights associated with communication have concurrently been expanding.
Communications via social media has become a major facet of expression, and this has significantly altered the meaning of “assembly”, ” association” and “speech”
On freedom of assembly, see this excerpt from Wikipedia: [https://en.wikipedia.org/wiki/Right_to_Internet_access#Right_to_freedom_of_speech]
Traditionally the right to freedom of assembly covered peaceful gatherings such as protests in physical public spaces such as town squares but as technology progresses we are seeing a revolution in the way people meet and interact. U.S. Secretary of State Hillary Rodham Clinton has stated, “cyber space, after all, is the public square of the 21st century”. Today we are seeing an increase in the relevance of internet and the right to freedom of assembly. Even signing an online petition has been known to cause arrests and the internet has become a useful tool in the organization of protest movements and demonstrations.
It is widely recognized that without the contribution of the Internet and social media networks such as Twitter and Facebook recent political events such as the Arab Spring could not have occurred, or at least not to the same extent. The role these mediums had were to allow the communication and mass dispatch of protests and other movements.
Internet access was also pivotal in the Occupy movement. A collective of journalists involved in the movement stated in regards to access to internet, “[a]ccess to open communications platforms is critical for the human species evolution and survival”.
As to expression, the United Nations recognised the effects of the digital age on human rights in a 2011 Rapporteur Report. http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf :
This report explores key trends and challenges to the right of all individuals to seek,
receive and impart information and ideas of all kinds through the Internet. The Special
Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole.
Based on such commentary – admittedly there doesn’t seem to be much developed jurisprudence in Canada- I believe that the digital age may lend expanded meaning to s. 2 of our Canadian Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.
That teenager sitting in the corner with his/her cellphone is not necessarily alone. He/she may well be communicating with, indeed meeting with, a host of others in the same demographic – place, age, interests, fears, hopes.
Merriam-Webster defines “community” as:
- a : the people with common interests living in a particular area; broadly : the area itself
- the problems of a large community
- b : a group of people with a common characteristic or interest living together within a larger society
- a community of retired persons
a monastic community
c : a body of persons of common and especially professional interests scattered through a larger society
- the academic community
- the scientific community
d : a body of persons or nations having a common history or common social, economic, and political interests
- the international community
Community, then, denotes a group or association with some kind of common identity or interest.
If so, surely the internet and other forms of digital communication vastly broaden the constituents of communities and make digitals tools an essential gateway to them.
More and more we speak to one another; we meet with one another and we associate as groups, in major part because digital tools permit us to do so. Should we be denied these tools we will be isolated from one another and denied the benefits of cognitive and affectual sharing that others enjoy as a matter of course.
Accordingly, prisoners, who are effectively denied access to s.2 Charter rights because of digital deprivation can make a case for breach of these rights before the Courts.
Armed with appropriate expert testimony, it should not be exremely difficult to convince the Courts of the meaning of community and of its associated rights..
The downside will be s.1 of the Charter:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In my view, the “demonstrable justification” involved in prisoner communication cases will relate to valid CSC rationales for prohibiting or restricting any form of electronic communication, from the wide range identified above, to which people in the community have normal access.
First, “restriction’ will involve more than some physical curtailment of a device’s communications capacity. It will also include barriers to the use of devices such as:
a) unfair, excessive pricing,
b) unreasonable limiting of the time and location of uses and
c) restriction of what items may be pruchased, or where
Second, CSC will have to show why reasonable alternatives to prohibition/restriction are not possible , including why security risk could not be addressed on a case-by-case basis – through, reasonable, proportionate disciplinary sanctions or administrative restriction in response to breahces of rules.
F. The Envelope
In litigation, the paradigm will probably be that the prisoner will claim an unjustified restriction on digital access and the breach of a right will be upheld, but the Respondent will claim a justified s.1 restriction on the right and will decline to say why, for security reasons.
In these circumstances the accepted procedure is normally for CSC to produce all the confidential information on which it relies for the sole use of the Court, without any input from the prisoner. The court is to decide if the information assists CSC’s case and if it was properly withheld from the prisoner for security or other reasons.
The problem for offenders with this approach is that there may be knowledge and expertise needed to assess information that the Court will not possess.
Moreover, the right of all parties to make submissions on evidence is often of great assitance to the Court in analysing information.
It is submitted that this would be all the more the case in the highly complex area of security investigatons in a digital communications systems context.
One solution would be for the Court to make a habit of not simply reading confidential materials but also conducting its own investigations and interogations where necessary.
Even better might be an “amicus curiae” (“frienfd of the court”) approach., where an independent officer, would be chosen by the Court on advice of the prisoner and CSC. This amicus would have in-depth knowledge of digital devices and of prison security issue ( or at least access to these).
This amicus could interview whomever he/she wished and would have extensive access to CSC’s and the prisoner’s records.
The sole limitation would be that the amicus would not be able to reveal confidential information to the prisoner without the Court’s permission.
Having conductedf his/her review the amicus would report to the Court with respect to;
.a) the confidential information that should be revealed
b) the justification for breach of the Charter that the concelaed information
c) possible means of resolving the issues short of the restrictions imposed by CSC
d) other suggetions of the parties or directions of the Court
A number of prisoners have contacted me on this issue. They are living with obsolescent, barely -functional in-cell computers. they are denied access to reasonably- priced, conveniently-obtained communications (e.g. e-mail) and devices (e.g. computers).
I intend to comence litigation on this in the near future.
Readers’comments would be appreciated.