The South Carolina Department of Corrections has been bringing the hammer down hard on inmates who are caught posting to social networks, but are the punishments a bit over the top?

The Electronic Frontier Foundation used South Carolina’s Freedom of Information Act to find that more than 400 disciplinary cases have been brought against inmates since the SCDC made “creating and/or assisting with a social networking site” a level-one offense in 2012, and the penalties are harsh, with one inmate receiving more than 37 years in isolation for 38 posts on Facebook.

According to the EFF, level-one offenses usually cover “the most violent violations of prison conduct policies,” and the social-networking punishments are made harsher by the fact that each day on which an infraction occurs is counted as a separate level-one violation.

The EFF said in a release announcing its findings:

In other words, if a South Carolina inmate caused a riot, took three hostages, murdered them, stole their clothes and then escaped, he could still wind up with fewer level-one offenses than an inmate who updated Facebook every day for two weeks. So extreme is the application of this policy that SCDC is forced to regularly suspend solitary-confinement sentences because of a lack of space in disciplinary segregation. In many cases, the punishments associated with using social media are so unnecessarily long that inmates will never actually serve them since they exceed their underlying prison sentences.

The EFF said the average punishment length for social media infractions was 512 days in disciplinary detention, and it highlighted three extreme cases:

In October 2013, Tyheem Henry received 13,680 days (37.5 years) in disciplinary detention and lost 27,360 days (74 years) worth of telephone, visitation and canteen privileges, and 69 days of good time — all for 38 posts on Facebook.

In June 2014, Walter Brown received 12,600 days (34.5 years) in disciplinary detention and lost 25,200 days (69 years) in telephone, visitation and canteen privileges, and 875 days (2.4 years) of good time –all for 35 posts on Facebook.

In May 2014, Jonathan McClain received 9,000 days (24.6 years) in disciplinary detention and lost 18,000 days (49 years) in telephone, visitation and canteen privileges, and 30 days of good time — all for 25 posts on Facebook.

The EFF wrote on the policy in general:

Prison systems have a legitimate interest in keeping contraband devices out of their facilities and preventing inmates from engaging in illegal activities through the Internet. But South Carolina’s policy goes too far, and not only because of the shockingly disproportionate punishments. The policy is also incredibly broad; it can be applied to any reason an inmate may ask someone outside to access the Internet for them, such as having a family member manage their online financial affairs, working with activists to organize an online legal defense campaign, sending letters to online news sites or just staying in touch with family and friends to create the type of community support crucial to reintegrating into society.

And on Facebook specifically, the EFF said:

Facebook has processed hundreds of requests from SCDC officers who want inmates’ profiles taken down. Facebook’s stated policy is to suspend these pages under the auspices of terms of service violations — specifically, purported violations of terms banning users from using aliases or sharing passwords with third parties — effectively allowing SCDC to censor inmates’ online speech. Yet, as described below, Facebook goes beyond its stated policy and agrees to SCDC requests to censor inmate pages even when no ToS violation has been alleged. In addition, Facebook seems to have taken no action against SCDC investigators who regularly violate these same terms in uncovering inmate profiles. What’s more, this process is veiled in secrecy, with both Facebook and SCDC failing to create a public record paper trail documenting the takedown of inmate pages. Facebook has made it all too easy for prisons to report inmates for having profiles: The site has a form titled “Inmate Account Takedown Request.” A corrections officer only needs to enter a few pieces of information about the inmate — the inmate’s name, profile link and the crime for which they’re being imprisoned, but not the purported violation of Facebook’s terms of service — to get the inmate’s profile taken down.

In direct discussions with EFF, Facebook repeatedly asserted that it does not enforce prison policies. Rather, according to Facebook, when a corrections officer contacts Facebook about an inmate page, Facebook staff may suspend the account on the grounds that the inmate violated the site’s terms of service. Specifically, Facebook pointed to terms that forbid users from sharing their passwords or otherwise allowing other people to access their accounts, a practice common among inmates. Facebook claims that they suspend inmate accounts for violations of this policy not only because of the ToS violation, but also because it protects the inmate’s privacy. Facebook also forbids the use of aliases, which inmates also frequently employ. However, prisons are very aware of how to exploit Facebook’s terms of service, with the Federal Bureau of Prisons even quoting the terms in handbooks and presentations, adding that “Facebook also deactivates prisoner pages, regardless of who set up the page.” Facebook says this isn’t true, but its claim that it does not enforce prison policies is contradicted by correspondence that shows Facebook explicitly censored a South Carolina inmate’s page when no ToS violation was alleged.

The EFF urged Facebook to take the following steps:

Stop censoring inmates without first evaluating whether a serious ToS violation has occurred (such as harassing a victim or engaging in a criminal enterprise).

Eliminate the inmate takedown feature, or, at the very least, ensure that a public record (such as a receipt email) is generated every time a prison official files a takedown request and every time Facebook complies.

Revise its transparency report to include detailed numbers of takedown requests Facebook has received, what agency sent each request and how Facebook responded.

Hold law enforcement agencies, such as prisons, accountable for abusing Facebook’s ToS.

The EFF concluded:

Balancing the rights of inmates with public safety is a tricky task, but prisons — and the companies that assist them — must consider proportionality and fairness for justice to be truly served.

Readers: What are your feelings on the punishments being doled out by the SCDC for inmates’ use of Facebook and other social networks?

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