Oh, I'm sorry, was that the record button I just pushed?

On Wednesday Grits for Breakfast gave us the inside scoop on a scandal in Austin over video-monitoring at the county jail. It seems that, despite promises to the contrary, that the contractor running the system records video conferences between inmates and their attorneys. As a result a federal lawsuit has been filed in Travis County seeking to stop the recording and to destroy all existing recordings.

The company, Securus Technologies, claims that the problem lies with deputies working in the jail not checking a box on a form. Oops.

Now that tells us that the default is to record the conversations. That isn't what the company promised attorneys. That isn't what the county promised attorneys.

Says Grits:

The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”

Grits goes on to say that the same issues have been raised in other states in which Securus installed and managed a video conferencing system for the jail. In each case the company, and the government, lied to attorneys about the technology. In each case the company, and the government, shifted the blame.

Securus Technologies is the same company hired by Harris County to run its video conferencing system. When the county first introduced the idea both county officials and the company swore up and down that none of the conversations would be recorded.

We now know that was a lie.

Back in 2012 I wrote an article following Sheriff Adrian Garcia's announcement that video conferencing was coming to the Harris County Jail. It now seems somewhat prophetic:

But do you really know for sure? The county maintains the equipment. The county maintains the software. You know, the same people who are trying to convict your client of whatever alleged misdeed he committed. Are you really having a secure conversation?

Jails maintain visitor logs. They record all outgoing inmate calls. They read all the mail - both incoming and outgoing - unless (fingers crossed) it says "attorney-client communication" (or words to that effect) on the envelope. What are they doing with the video feeds?

Does the software just facilitate the transfer of video and audio from one monitor to another? Does the software allow the state to "capture" audio or video? Does the software allow a third party to monitor the communication?

Does it really come as a surprise that we were lied to (again)? It shouldn't. Anyone who bought the promises of Securus and Harris County really needs to get their head examined because there are some synapses that aren't firing on all cylinders.

And it doesn't really matter if no one from the DA's office or law enforcement ever listens to, or views, the conferences. The mere fact that the state has a back door available to obtain privileged communications is troubling enough. And we should all be aware of the fact that in 2014, any back door that is available will be exploited by the government.

So the next time someone from the government stands up and says they have a great idea that will make life easier for defense attorneys, ask yourself why on earth the state would do anything at all to help us defend our clients.