02/16/15 – Dave Maass – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
Got my earphones on.
Next up is Dave Mass.
He's at the Electronic Frontier Foundation, EFF.org.
You won't even believe this.
Yeah, you will.
Hundreds of South Carolina inmates sent to solitary confinement over Facebook.
Are you kidding me?
Welcome to the show, Dave.
How are you doing?
Oh, I hit the wrong button.
Welcome to the show, Dave.
How are you doing?
I'm doing great.
How are you?
I'm doing good.
Appreciate it.
I hit the phone instead of the Skype button there.
I do that sometimes.
Let's see.
It says here you are media relations coordinator and investigative researcher at EFF.
Very good to have you here.
Is this really right?
Hundreds of men sent to solitary over Facebook.
How do they get on Facebook and how long are they being sent to solitary?
Well, inmates get on Facebook one of two ways.
Either they get a hold of a contraband cell phone and then they access it themselves.
Or what is also frequently the case, they have someone on the outside access Facebook for them.
Say, you know, somebody's in prison and says, hey, mom, can you post to Facebook saying, hey, I love everybody, I'm okay.
So those are the two ways they go about doing it.
But either way, whether it's through a contraband cell phone or whether it's through a loved one, those are against the rules in the South Carolina prison system.
And over the last three years, more than 400 inmates have received punishments under this policy.
Three-quarters of them received solitary confinement sentences ranging from anywhere from a day to 37 years.
The average punishment across the 400 was 512 days in solitary confinement.
Unreal.
All right.
Now.
So first we've got to parse that whole thing about the difference between using a smuggled cell phone versus writing a letter home to mom and saying, will you update my Facebook status to say, hey, everybody, you know, I'm doing OK or whatever, that they are getting solitary confinement for that.
It's it works both ways for the South Carolina Department of Corrections.
They don't care how you access.
I guess they can write the rule however they want.
Right.
Yeah.
It's not even a law.
It's just a rule.
Yeah, it's just a rule.
And half the time they don't even necessarily know how the person access Facebook.
They only know the person had a contraband cell phone if a they find the cell phone in the in the prisoner's cell or the inmate has posted a selfie of them in which it's, you know, self-evident that the person had a cell phone.
So sometimes they just don't know.
They just don't know at all.
Unreal.
And then now, 37 years, this is a guy who is a serial killer who serial killed a bunch of guards in order to update his Facebook page, right?
No, no, it's it's it's that's not the case at all.
Let me tell you how they how they break this down.
They have decided arbitrarily.
There's no rhyme or reason for why they decided to do this is they decided that the way they're going to level the punishment is that for every day an inmate accesses Facebook, that is a separate what's called level one offense.
So an inmate who accesses Facebook 100 times on Monday only gets one level offense, one level one offense.
But an inmate who accesses Facebook one day on Monday, once on Tuesday, once on Wednesday, gets three level one offenses.
So three times the punishment.
Now, with the individual who got it 37 times, he was there.
He's there in a on a burglary charge.
And he had access Facebook 38 times.
And as a result, he got 13,680 days in disciplinary detention, which is solitary confinement.
I'm looking at his other charges.
You know, when he was caught with with narcotics, he didn't get any disciplinary detention.
When he threatened to injure an employee, he only got 41 days in disciplinary detention.
Think about that.
Like you get you threaten a guard, you get 41 days in solitary confinement, you post to social media, you get 37 years in solitary confinement.
That's the kind of justice system we're talking about here.
Unreal.
And, you know, I don't know.
It's funny the way it works when people like us who aren't in prison, knock on wood, talk about and think about people in prison.
And it's sort of like Stalin and the one death is a is a crime and a sin.
But a million's just a statistic and all of that, where 30 years, you know, yeah, it's two digits, but it's a three.
It could be like 50 something or life or or, you know, the way you hear sentences named sometimes maybe in comparison, 30 something.
Anything sounds like maybe not that much.
But then another way to look at it would be that's all but one year of my entire lifetime.
I'm 38 years old, 37 years.
That's back to the mid 70s, guys.
That's a long time.
And then solitary confinement.
That's the kind of thing where, you know, any civilized person could only even entertain the concept if it was a case where like I was joking there.
He he serial killed a bunch of guards in a day.
Well, you got to lock him in a hole for, I don't know, a few days or something, I guess.
I don't know.
I'll overlook something like that.
But but this is torture, really locking someone in solitary confinement.
It's even if you call it the lowest level, no touch type of torture.
It's still a psychological torture.
And when you're talking about decades and decades, is there no human being anywhere who can notice that the algorithm here is not working out the correct function or whatever, and that they need to to rethink this or or they're just full their arms and shrug and say law is the law.
I mean, that that might be what the prison's doing.
They seem to have dug in and are defending this policy.
But it's it's it's not only is it is it inhumane for the inmate.
I mean, it's totally impractical for the prison itself.
The prison has had to let suspend sentences for disciplinary detention on a regular basis because they have too many people who need to be in in solitary confinement, but not enough spaces in solitary confinement.
And, well, here's your reason for it right there.
I mean, I'm not saying anybody should be in solitary confinement for long periods of time, but it seems ridiculous to to have it fill up because you're giving people impossible sentences that they won't even be able to serve.
I mean, Henry Tyree Tyree Henry, who got the 37 years, is only set to be in prison for another 10 or 15.
So he's never going to actually be able to serve the 37 years they gave him.
But I mean, so why why level that kind of punishment if it's not going to actually have any impact whatsoever on this inmate?
Yeah.
Well, and still, you know, 15 years in solitary confinement is about as severe.
I guess, you know, all the prison is a few miles outside of town.
So most of the rest of us don't have to think about it very much.
And so, you know, it's it's complete inhumanity going on with just a shrug.
Now.
So there's got to be some kind of bleeding heart, somebody in South Carolina politics who's making a fuss about this.
No.
Well, you know, we only released this report on Thursday, so it's only been a couple of days.
What I can tell you is that, you know, there's a in South Carolina, there's a pretty popular blog called Fitz News, which has done a lot to, you know, point out inmates on Facebook and bring it to the attention of the authorities.
Like that has been one of their gourd go to news articles.
And they put out an article saying, whoa, you know, we've complained about this, but we had no idea the punishments were this harsh.
This is way too much for even even us.
The the Akeley Aikland Standard, sorry, Aiken Standard, which is one of the daily newspapers in South Carolina, put out an editorial.
I believe today saying that this needed to be overhauled.
See where it goes from there.
I mean, I think I think we've had an access in excess of 30 national news stories written on this at this point.
So whether the South Carolina policymakers care what everyone else in the country has to say, well, I don't know.
Hopefully it'll it'll it'll pick up.
Well, yeah.
You know why?
Because it has that kind of Terry Gilliam farce kind of of a flavor to it, too.
Where it's like, wait, 37 years for Facebook, where even people who don't care find it curious kind of thing, you know?
Well, you know, I mean, I think I think that, you know, most people, if they imagine themselves in prison, they can imagine, well, I would never stab somebody.
I would never rape somebody.
I would never try to escape.
But I think your average person imagine themselves behind bars.
Somebody hands them a contraband cell phone.
They're going to call their family.
And I just interviewed a lady, a reporter about a guy who's about to be executed for a crime that we know he didn't commit.
And that's a death penalty case.
So if you think innocent men aren't sitting in prison for burglary, you're crazy.
You know, for all I know, I don't presume he's guilty just because he's been convicted.
Anyway, hang on.
We'll be right back in just one second.
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All right, you guys, welcome back to the show.
I'm Scott Horton.
I'm on the line with Dave Mass from the Electronic Frontier Foundation, EFF.org.
And we're talking about this piece, which I'm very grateful to now understand has caused a bit of a reaction in journalistic circles and including in South Carolina.
The headline is hundreds of South Carolina inmates sent to solitary confinement over Facebook.
And as we discussed, the the checkboxes on the form are so, you know, set up in such a way that this one guy has been, I guess, sent us on the exact term for it.
They've sent him away for 37 years of solitary confinement over some Facebook posts when he's not even facing that much time left on his sentence overall.
At least they haven't extended his sentence to 37 years just to keep him in solitary.
But if we understand that part right, Dave, I guess.
But now, so I guess I want to ask you, what can prisons do about cell phones?
Because everybody in prison who wants a cell phone has one, right?
I mean, it tends to it tends to be a big problem.
You know, from what I read, lots of prisons, lots of cell phones are getting into prisons.
Inmates are getting their hands on it, whether that's from guards smuggling them in or people throwing them over the fence.
I mean, it's it's a recognizable problem.
I don't think the solution to it is to come up with an extremely draconian system of punishing per social media post.
That's like saying if somebody, you know, they're trying to keep pencils out of the prison and then you, you know, you go out and punish somebody for every post-it note they write on.
You know, like the punishment is having the pencil, not having not the various notes you wrote with it.
Unless, of course, you know, an inmate is using the phone to harass, you know, a victim or to engage in criminal enterprise.
But those are usually crimes in and of themselves.
Yeah.
And, you know, what about no TV for two weeks or something rather than put them in the hole?
Oh, well, they get that.
I mean, I mean, typically, you know, they might get 37 years in solitary, but they're going to get 75 years loss of television, visitation, canteen and telephone privileges.
So they're going to lose all communication with the outside world, which is kind of sad because the only reason people, you know, want to access – the main reason people want to access Facebook or any social media is to maintain a connection with the outside world.
And people are desperate to do so and that's been shown to be very important to reducing recidivism rates, to making sure people reintegrate into communities.
So, you know, cutting someone off from Facebook and then cutting them off from everything else, I don't know that that really serves the population at large, doesn't serve the inmate, doesn't serve the community.
It's just a very, very severe punishment.
Well, I got a great idea for a letter to the editor there in South Carolina would be something like, hey, when these guys are in solitary confinement, that means they're not being forced to work for free.
And we all know that's what prisoners are for.
That's the loophole in the 13th Amendment after all.
And so these guys have all been convicted of something.
And so shouldn't they be out there in the fields making money for this or that tobacco farmer or this or that alfalfa farmer?
That's beyond my knowledge as a researcher at the Electronic Frontier Foundation.
But you probably aren't too far from the truth there.
I can I can see, you know, all the ears and eyes, eyebrows perking up.
Hey, he's got a good point there.
We ought to let these guys out of solitary so that they're not just making license plates.
You know, they're answering phones for for big corporations.
I guess you might know about that.
You know, guys in prison being forced to do technology work for industry.
I mean, 10 cents on an hour or whatever.
Yeah.
A lot of telemarketing.
I've heard that lots of different kinds of prison industry.
For sure.
For sure.
That's definitely going on.
Great.
All right.
So now let's move on to this other thing that you wrote, because I'm hoping that you understand the latest developments here in a way that you could explain them to me, because there is a big announcement.
And I know it was after as according to this note on the article, it says the announcement came after the article that Eric Holder was going to scale back to some tremendous degree.
The federal civil asset forfeiture program.
And then there are a few developing stories that seem to come out after that saying, well, you know, maybe not so much.
And I was wondering if before we get into, you know, the real meat of this thing and, you know, how it works and all, if you can talk about, you know, where we're at with that, if there really has been a significant change made or just, you know, on TV.
Sure, sure.
So, you know, what happened was back in the mid-January, Eric Holder, attorney general of the United States, said that he was going to be reining in the federal asset forfeiture program.
And it was rolled out saying that this would be something that would significantly limit a lot of the problems that have been reported, both in like the Washington Post and in John Oliver's TV show.
And a lot of things that, you know, people like you and I have been railing about for years.
And, you know, initially people were very optimistic about what this would mean.
I think Reason and a few other publications have pointed out that when he says he's going to cut down the civil forfeiture program, it leaves a giant loophole for any kind of local law enforcement task force that's involved with federal law enforcement at all.
Which is all of them.
Yeah, which is almost all of them.
I mean, to put it another way, if Los Angeles Police Department is involved in itself in a case, it can't necessarily seize the assets and then pocket them like it did before.
However, if the LAPD is involved in a special task force and there happens to be a member of the DEA on that task force, then they can probably still go about it like they did before.
So I still want to be, you know, I don't know that I'm as pessimistic as Reason is that this will be a drop in the bowl.
But I don't know if this is going to be the complete overhaul that we thought it was.
But perhaps one thing also to consider is that Eric Holder is not going to be the attorney general for very much longer.
And, you know, the next attorney general or the next administration's attorney general could easily flip this program back on.
Well, and in fact, the incoming attorney general, apparently not confirmed yet, but she's a big fan of this and says, oh, what are you talking about?
Get rid of it.
Yeah, yeah.
She had she had expressed support during her hearings.
And that was it was that was worrisome to me for sure.
In fact, I think it was even sort of in a context like, what are you talking about?
She never heard anyone complain before.
It's purely a wonderful tool for law enforcement to protect everybody with.
That's all.
What do you mean there's a problem?
Well, I mean, she worked in law enforcement.
So anyone who's in law enforcement likes the free money they've gotten out of it and what it's been allowed to do.
You know, they've been allowed to buy themselves nice little trinkets and gifts and and and make donations to their favorite charities and buy swag to give out to the community.
And also, you know, buy all sorts of toys, law enforcement toys that that would not necessarily have gotten through the normal budgeting process.
Well, and as you say in here, including a lot of real high tech stuff that's used to violate our privacy.
Oh, for sure.
So that's one of the things that, you know, I I've been digging into this research on asset forfeiture and electronic surveillance for many, many, many months.
And it was only I knew as big story was going to be coming up on asset forfeiture.
I didn't know that the announcement was going to be made.
And so I had to like rejigger it at the last minute.
But, you know, basically what you see is that law enforcement and we particularly look to California because we're based in California, that you can you can definitely see law enforcement using wiretaps and other types of electronic surveillance to go after cases that will result in them seizing lots of money and cars and things like that.
Then that money gets converted into asset forfeiture funds, which they then use to buy more equipment, to do more electronic surveillance, to grab more stuff that they can turn into money that they can use to buy more electronic surveillance.
And I can keep going in that until I pass out blue in the face on the floor.
But, you know, it is it is a cycle of electronic surveillance equals money equals electronic surveillance.
Well, you know, the thing about it is and this is true for me way back when.
And it's true for a lot of people that I've spoken with before.
This is one issue that just really makes regular nonpolitical type people really question what in the hell world they're living in, what country they're living in.
When they hear about purely innocent people who the government simply are the robbers and that's it.
And the cops are the robbers.
They come.
They take their money away.
And then they would have to spend a couple hundred thousand dollars on legal representation to get their twenty thousand dollars back.
Oh, well.
And, you know, I've just had people say, like, that's the thing that made me decide to be a political activist.
When I first learned about that, that's not fair.
That cuts right to the, you know, very most basic kind of even elementary school civics kind of presumptions about the way things are supposed to work in America.
And so it's important always to cover it, to celebrate any victory and to hiss at, you know, any further push along these lines.
Because, you know, if only for the recruitment benefits that come from making a stink out of this particular issue.
It just seems to be one that just cuts all the way across the board to any kind of political person or any kind of nonpolitical person reacts the same way when they learn about civil asset forfeiture in America.
They just can't believe it.
And then they're and then they're mad, you know.
Right.
Right.
Anyway, I'm sorry for just yelling at you.
I was really trying to say thank you.
That's why I really appreciate this work that you've done here.
I think it's really important to cover.
All right.
I've kept you over time.
So thanks very much, Dave.
Hey, thanks for having me.
You have a nice president's day.
Appreciate it.
All right, Joe.
That is Dave Mass.
He is at EFF dot org.
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