Since at least 2011, U.S. prisons have had a special arrangement with Facebook. Prison officials would send links to profiles belonging to inmates that they wanted Facebook to take down. Facebook would then suspend the profiles, often no questions asked, even when it wasn’t clear if any law or Facebook policy was being violated.

Over the last year, we have reported on numerous inmates being punished with solitary confinement, some receiving decades-long punishments, simply for posting to Facebook or even just having their families manage their Facebook accounts for them. Meanwhile, records obtained by EFF showed that Facebook had secretly censored hundreds, perhaps even thousands, of inmate accounts.

In the wake of the scandal, prisons are now learning that Facebook has changed its practices and is being far more discerning when it comes to suspending inmate profiles.

But one thing that hasn’t changed: Facebook’s lack of transparency.

A History of Facebook’s Censorship of Inmates

“I believe connectivity is a human right, and that if we work together we can make it a reality.”

– Mark Zuckerberg, CEO of Facebook, August 2013

Here’s a dose of reality: for more than four years, Facebook has been cooperating with state and federal prisons to block inmates from connecting to the networking site without reporting that cooperation in its transparency report.

Inmates typically access Facebook two ways: either they have someone on the outside manage their profiles for them or the inmates access Facebook directly through a contraband cell phone. EFF began engaging Facebook on the issue of inmate accounts in summer 2014, after an inmate in New Mexico was sentenced to 90 days in solitary confinement because his family posted updates and photos to his Facebook account on his behalf.

Facebook representatives repeatedly told EFF that they only removed inmate profiles when they believed that inmates have violated the social network’s community standards, which are part of its Terms of Service (ToS). Specifically, Facebook pointed out that users are not allowed to have third parties access their accounts; so Facebook would suspend an inmate’s account if staff determined that a profile had been accessed by someone other than the inmate. Facebook said these measures protected the security of the user’s account. Facebook also said it treated inmate profiles involved in criminal activity or harassment in the same way it handles accounts belonging to users in the free world.

One other thing Facebook emphasized is that the company was not in the business of enforcing prison regulations that ban inmates from having social media profiles or accessing the Internet. Facebook went on record saying that it did not consider inmates who directly access the site to be in violation of its ToS.

Facebook’s claims are contradicted by the public records obtained through freedom of information laws, including emails between Facebook and prisons. These documents revealed that Facebook routinely, and explicitly, took down profiles because inmates broke prison regulations. What’s worse: these new documents obtained by EFF show Facebook may have taken down profiles when there were no allegations at all that inmates had violated prison policies or the site's terms of service. The prisons simply asked to have the profiles taken down because they belonged to incarcerated people.

Facebook made it exceptionally easy for prisons to censor inmates by creating an “Inmate Account Takedown Request” page that generally allowed prison officials to file requests without creating a public record trail. In the rare occasions that Facebook and prisons communicated via email, Facebook staff promised that these takedowns would remain confidential.

To date, we don’t know how many inmate profiles in total Facebook has removed. In every country other than the U.S., Facebook discloses the number of profiles, pages, and posts it censors pursuant to government demands. But here, Facebook has consistently refused to open up and include what appears to be significant government censorship of inmate speech in its transparency report.

We do have numbers for two states: South Carolina and California. The South Carolina Department of Corrections says Facebook processed 512 requests between 2012 and 2014. The California Department of Corrections and Rehabilitation (CDCR) reported that it submitted more than 212 takedown requests to Facebook between 2011 and 2014.

California Inmate Takedowns

CDCR had been particularly proud of its partnership with Facebook, which it announced to much media fanfare back in 2011. The department’s victims rights office went so far as to publish an instruction manual in September 2014, titled “Procedures to Take Down an Active Inmates [sic] Facebook Account.” Typically, these takedowns are requested (ironically) by staff in CDCR’s public information office.

(It’s important to note that the 212 takedowns are limited to those recorded by CDCR’s victim services office and communications department. CDCR requested $1,704.46 in fees before it would electronically search for communications with Facebook across the entire prison system to see if other departments filed takedown requests.)

Here’s the rub: nothing in CDCR regulations say inmates can’t have social media profiles. Nothing in the agency’s policies give staff the authority to request anything be taken down off the Internet.

Asked why CDCR staff is allowed to take these actions, particularly when no ToS violation has occurred, a department spokesperson involved in these takedowns responded:

If an inmate possesses a cell phone while incarcerated that is a crime under California state law. If an inmate administers a Facebook account via a contraband cell phone then that Facebook account was administered during the commission of a crime. Just like cars, houses and other possessions may be seized as a result of being used in the commission of a crime, we shut down Facebook pages.

This is troubling on so many levels. It just isn’t how it works in U.S.: when police catch someone stealing a computer or phone, the police do not get to go around demanding websites erase everything the person said on the Internet using that device.

Further, with asset forfeiture there are due process measures in place that allow people to challenge the seizure of their property. There is currently no process in place for inmates to appeal to have their Facebook profiles reinstated.

With regards to inmates having friends and family members (i.e. "third parties") access Facebook for them: prisons generally should not be using their authority to enforce a digital service provider's terms of service. That's between the company and the user.

One key point to remember: when Facebook takes down an inmate’s profile, it isn’t just censorship of the inmate. Everyone who commented on the profile or posted links to the profile loses that content when the account is suspended.

Facebook’s New Enforcement Procedures

In February, EFF publicly called for Facebook to overhaul how it handles inmate profiles. Primarily, we asked that Facebook “stop censoring inmates without first evaluating whether a serious ToS violation has occurred (such as harassing a victim or engaging in a criminal enterprise).” We also urged Facebook to begin generating email receipts for inmate takedown requests, so that copies of these takedown requests can be obtained through public records requests. Nearly 28,000 people signed a Care2 petition further demanding an end to the censorship.

By March, prisons were confronted with a new set of practices from Facebook:

The “Inmate Account Takedown Request” page has been retitled, “Report An Inmate's Account.”

Facebook now asks for information regarding the inmate's offense, the date the inmate was confined, and the date when the inmate is expected to be released.

Facebook now requires prisons to include links to “applicable law or legal authority regarding inmate social media access.”

If there is no law barring inmate access to social media, then prisons must provide “specific reasons why granting Facebook access to this particular inmate poses a serious safety risk.”

According to emails provided to EFF by the Daily Beast, which confirm these changes, Facebook has also begun generating email receipts and sending prisons explanations of the actions the company has taken regarding each reported account.

Assuming Facebook sticks to these measures, then this is a major, although imperfect, victory for inmate speech.

Under this new regime, Facebook would still honor inmate takedown requests from Alabama and Louisiana prisons, since each state has a law on the books forbidding inmates from maintaining accounts on social media sites. However, corrections departments in states such as Oregon, California, and South Carolina will no longer be able to ask for takedowns without demonstrating a real public safety risk.

CDCR was so outraged when it heard about the change, a communications officer sent Facebook this message:

When the agreement was announced it received international attention, I’ve included just a couple of the MANY articles below. I’m sure that it will garner just as much attention if we have to announce that the agreement is no longer being upheld by Facebook.

We commend Facebook for standing strong against the thinly veiled threat. However, CDCR’s concerns are overblown. The department claims that of the 74 takedown requests it filed last year, every single one of them was related to harassment of victims. Indeed, CDCR staff provided EFF with shocking examples of inmate misconduct on Facebook, including one inmate who allegedly posted threats against a witness who testified in his case. With cases like these, CDCR should not have a problem articulating a safety risk and Facebook will likely continue to remove posts that violate its ToS

What this new system may protect is cases where inmates use Facebook just to communicate with their families, raise awareness for their innocence campaigns, or engage in dialogue over public policy. Facebook says it will still uphold its ban on third-party access to accounts, but says it will not take down prisoner “pages” (as opposed to “profiles”) created by third parties.

Release the Stats

Although we applaud these new policies, we are disappointed that Facebook is refusing to release statistics regarding the number of inmate takedown requests it has received.

Facebook provides information about government requests for content removal from other countries, but not from the United States. Other companies have in fact provided details about domestic content removal requests, including one where Google rejected a request from the Georgia Department of Corrections to remove a video showing abuse of inmates.

Moving forward, Facebook needs to embrace transparency and show exactly how many requests it receives each year and how it handles these requests. Secret online censorship has no place at a company that believes connectivity is a human right.