For the millions of people incarcerated in the United States and their loved ones, digital communication should be a godsend. Given the difficulties of in-person visiting, the sometimes slow pace of postal mail, and the expense of phone calls, technologies like email and social media should make social connection for people behind bars easier than ever.

As legal practitioners, we’ve seen that promise thwarted. Incarcerated people are often deprived of the benefits of digital communication, while facilities are quick to adopt technologies that push out traditional means of communication and foist unwarranted new surveillance on already-marginalized communities. Two of our recent projects highlight this double bind.

In 2023, the Knight First Amendment Institute at Columbia University, where we work, the Electronic Frontier Foundation, and the Social Justice Legal Foundation sued a county in California for its policy prohibiting physical mail in jail. San Mateo County contracted with Smart Communications, a private telecommunications company, to digitize and then destroy physical mail—replacing personal letters, pictures, birthday cards, and children’s drawings with scanned versions that are retained and surveilled by the county and by Smart Communications. San Mateo County is one of many places nationwide that has adopted a policy eliminating physical mail in favor of digital substitutes. Many more have considered it.

In lieu of physical mail, loved ones are forced to rely on low-quality digital scans of the physical mail sent to them. Smart Communications has marketed its mail-digitization program as a surveillance windfall by offering “a searchable database and ... a whole new field of intelligence.” The company’s CEO once told a reporter that it had never deleted a single piece of mail from its vast stores of personal correspondence. Smart Communications also pledges to track the mail senders more closely, collecting data like IP addresses, GPS locations, and banking details—information it makes available for law enforcement use. It is chilling that merely sending a letter to a loved one behind bars would subject that person’s writings, physical movements, and financial accounts to intrusive surveillance by the state and a private company.

As jails and prisons eradicate conventional methods of communication, they also seek to limit access to modern forms of expression. Earlier this year, the Knight First Amendment Institute submitted a public comment opposing a new rule proposed by the Bureau of Prisons (BOP) that would punish incarcerated people for using social media. The BOP, the agency responsible for over 150,000 federal prisoners, intends to make social media use a high-level disciplinary infraction, punishable to the same extent as fighting or damaging property. Of course, the BOP does not provide direct internet access to people in custody, and the use of unapproved devices is already an infraction behind bars. The proposed rule seems to serve two narrower purposes: making it easier to punish incarcerated people without evidence they were using a contraband device; and allowing facilities to punish incarcerated people even when they use social media only indirectly, by asking family members to post on their behalf.

The harms caused by these policies are immense. Physical mail in jail settings can ease often-debilitating loneliness, strengthen parent-child relationships, reduce depression, and improve mental health. It is associated with a host of positive post-incarceration outcomes, including reduced recidivism and a higher likelihood of housing stability, income self-sufficiency, and educational or vocational attainment. Social media, while less intimate than physical mail, has become an important vector for those incarcerated to remain connected to their communities and to share their experiences in prison with the public, especially on the subjects of racial justice and abuse behind bars. In our comment to the BOP, for example, we highlighted the story of Kastellio Vaughan, an individual incarcerated in an Alabama prison who received care for a life-threatening medical emergency only after photos depicting his emaciated body went viral on social media.

Prohibiting access to physical mail and social media is a detriment to us all. It deprives those incarcerated–and those of us on the outside–of important communication tools that mitigate the pain of incarceration and expose its often-grim realities to the public. On top of that, these policies usher in even more surveillance behind bars: in the case of San Mateo County, by allowing law enforcement indefinite and unlimited access to scanned mail; and in the case of the BOP, by encouraging corrections officers to hunt for social media posts and punish incarcerated people who authored them, whether directly or indirectly.

The Knight First Amendment Institute’s work challenging these policies foregrounds these harms. Our lawsuit against San Mateo County argues that the jurisdiction’s mail policy violates the California Constitution’s protections for free expression and freedom from unreasonable searches and seizures. On behalf of several clients, we’ve argued the county’s mail policy deprives those incarcerated of the uniquely expressive benefits of physical mail, deprives their loved ones of their ability to communicate in the manner of their choosing, and chills expression through the unprecedented surveillance of scanned mail. Earlier this year, the county filed a motion seeking to end the lawsuit prematurely, arguing that its policy was insulated by the deferential standard of review courts often apply to restrictions of speech in correctional facilities (known as the Turner review) and by the traditional understanding that searches of mail in jails and prisons do not violate the Fourth Amendment or its state corollaries. The San Mateo Superior Court allowed the case to move forward to discovery on the free expression claim.

As outlined in our BOP comment, the federal agency’s proposed social media rule is also likely unconstitutional. The rule would impose serious burdens on the free speech rights of individuals who are incarcerated and also on the public, which increasingly relies on social media to learn about the experiences of those in prison. The proposed BOP rule should be subject to heightened scrutiny because it would punish people for simply sending messages to loved ones on the outside that they want to be posted on social media. Even under the more forgiving Turner standard, the BOP rule would still likely violate the First Amendment given the rule’s prohibition on even indirect social media use without a penological justification. Though the BOP may point to security concerns, the federal agency already monitors incoming and outgoing communications. A decision by a family member or friend of an incarcerated person to post content they’ve lawfully received is unlikely to pose a security threat. The BOP’s preexisting monitoring of communication also makes it unlikely an incarcerated individual could successfully use indirect social media posting to thwart restrictions on whom they can communicate with directly.

It is unclear if the San Mateo Superior Court will strike down the county’s mail policy or what the BOP’s final rule will look like. The final rule might change based on public input, according to a BOP spokesperson. Our hope is that continued legal advocacy will draw attention to how communities impacted by incarceration are often left out, or directly harmed, by the advent of digital technologies. Digital communication should serve everyone, including incarcerated individuals, their loved ones, and members of the public who want to learn from their unique perspectives.