Could Connecticut prisons record inmate calls using only the inmate's written consent?

Plain-English summary

The Connecticut Attorney General concluded that Department of Correction officials did not fall within the “criminal law enforcement official” exception to the state's 1991 private telephone call recording statute. The department proposed to record inmate collect calls from higher-security facilities. It planned to obtain inmates' written consent, post notices, and provide separate unrecorded phones for attorney calls. The opinion said the inmate's consent alone did not satisfy Conn. Gen. Stat. § 52-570d because people receiving the calls also needed the consent or notice described in the statute.

The statute allowed three routes: prior consent of all parties, with that consent written or obtained and recorded at the start of the call; a verbal notification recorded at the beginning of the call by the recording party; or an automatic warning tone repeated at roughly fifteen-second intervals. The Attorney General said one of those methods had to inform all participants. The federal prison system's one-party approach did not answer the Connecticut-law question. A footnote expressly left open whether an inmate could challenge the proposed consent as coerced.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For correction officials: The opinion rejected reliance on the exception for officials enforcing criminal law. It contrasted DOC's statutory responsibilities with crime detection and general criminal-law enforcement and required the proposed recording system to satisfy the ordinary consent or notice provisions.

For inmates and call recipients: A signed form from the inmate and posted prison notices did not address notice to every outside caller. The opinion described statutory methods that could notify or obtain consent from all participants. It did not decide whether consent obtained from inmates under the proposed policy could be legally challenged as coerced.

For attorney calls: The proposal reserved separate unrecorded telephones for calls to attorneys and told inmates about them. The opinion recorded that fact but analyzed the proposed recording of other inmate calls; it did not resolve a separate attorney-call question.

Common questions

Were Connecticut prison staff treated as criminal law enforcement officials for this recording exception?

No. The Attorney General said DOC officials did not qualify under the exception in § 52-570d(b)(1), so the department had to follow the ordinary recording conditions.

Was an inmate's written permission enough to record a call to someone outside the prison?

No. The opinion said the statute required consent or notice to all parties. It warned that the department's proposed system was unlikely to have the prior consent of, or notice to, every person an inmate might call.

How could the 1991 statute notify a person receiving an inmate call?

The opinion quoted a recorded verbal notice at the beginning of the call or an automatic warning tone repeated about every fifteen seconds as alternatives to prior consent from all parties.

Background and statutory framework

Conn. Gen. Stat. § 52-570d barred recording an oral private telephone communication unless one of the listed consent or notice conditions applied. It exempted a criminal law enforcement official recording in the lawful performance of duties. The Attorney General found that DOC officials did not fit that category, based on the department's assigned powers and the narrower criminal enforcement function. He distinguished the federal one-party recording standard and required compliance with Connecticut's statute for the proposed system.

Citations and references

The original opinion below quotes the recording statute and preserves its explicit reservation about possible coercion of an inmate's consent.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1991-formal-opinions/honorable-larry-r-meachum-department-of-correction-1991039-formal-opinion-attorney-general-of-connec

Original opinion text

Honorable Larry R. Meachum, Department of Correction, 1991-039 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 30, 1991

Honorable Larry R. Meachum

Commissioner

340 Capitol Avenue

Hartford, Connecticut 06106

Dear Commissioner Meachum:

You have requested our advice on the applicability of 1990 Public Acts No. 90-304, now codified in Conn. Gen. Stat. §52-570d, to the Department of Correction. You specifically ask whether an official of the Department of Correction is a criminal law enforcement official for purposes of the exception contained in subsection (b)(1) of Conn. Gen. Stat. §52-570d. Our answer to the question is no.

As background to your question, you advised us that you propose to install a recording system which will record all inmate telephone calls originating from the inmate telephones at all level three and higher correctional facilities. The inmate telephones permit inmates to make collect telephone calls to outside of the correctional facility. The purposes of the recording system are to gather information on inmate activities to ensure security of the correctional institutions and to prevent inmates from pursuing criminal enterprises from within the correctional facilities. Inmates will be required to give prior written consent to the recording. Moreover, the policy will be included in the inmate handbook and posted at the locations of the telephones.1 Separate unrecorded telephones will be available for telephone calls to attorneys and inmates will be notified of their availability.

Conn. Gen. Stat. §52-570d prohibits the "recording" of an oral private telephonic communication unless certain specified conditions are satisfied. Subsection (a) of Conn. Gen. Stat. §52-570d provides as follows:

No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically provides a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use. (Emphasis added).

It is thus clear that this statute requires consent or notice to all parties and not simply one party.

Subsection (b) of Conn. Gen. Stat. §52-570d provides for some exceptions to the provisions of subsection (a). It states in relevant part as follows:

The provisions of subsection (a) of this act shall not apply to: (1) any federal, state, or local criminal law enforcement official who in the lawful performance of his duties records telephonic communications...

Conn. Gen. Stat. 52-570d does not define what constitutes a criminal law enforcement official and the legislative history offers no guidance as to the intent of the legislature in employing the phrase. John J. Kelly, Chief State's Attorney, spoke in opposition to the bill at the committee hearings. He expressed his concern over the lack of a clear definition as to what is meant by a criminal law enforcement official. Joint Standing Committee Hearings, Judiciary, Part 4, 1091-92 (1990). No attempts were made, however, to correct this deficiency.

Subsection (b)(1) of Conn. Gen. State. §52-570d, requires the criminal law enforcement official to be acting in the lawful performance of his duties at the time the recording takes place in order for the exception to apply. Criminal law enforcement officials are responsible for the prevention or detection of crime and enforcement of the general criminal laws of the state. See, e.g., State v. Concaugh, 170 Conn. 95, 99, 365, A.2d 395 (1976). A review of the statutory authority of the Department of Correction, pursuant to Conn. Gen. Stat. §18-7, et seq., does not indicate that it encompasses criminal law enforcement functions such as the prevention or detection of crime. Compare e.g., Conn. Gen. Stat. § 29-7 (Powers and Duties of [State Police] Force).

Where a statute does not define a phase, and the legislative history does not provide adequate guidance, we may look elsewhere for an appropriate meaning. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). The meaning given the same phrase in an unrelated statute may be consulted for guidance. Id. The phrase "law enforcement officer" is defined in the Connecticut wiretap statutes, Conn. Gen. Stat. §54-41a, et seq., to mean "any officer of any organized police department of this state or of the state police of any other state, an official of the Federal Bureau of Investigation, Drug Enforcement Administration or the United States Custom Service, or the United States attorney for the district of Connecticut or a person designated by him in writing to receive the contents of any wire communication or evidence derived there from." It is clear that under this definition, an official of the department of correction would not be considered a law enforcement official and would therefore be excluded from the exception specified in subsection (b)(1) of Conn. Gen. Stat. § 52-570d.

Although the recording system you propose to install is modeled after a similar system now in use by the Federal Bureau of Prisons, we must advise you that under federal law, consent of or notice to one of the parties to the telephone call is sufficient to make a recording of that call lawful. 18 U.S. C. § 2511 (2) (c); U.S. v. Willoughby, 860 F.2d 15 (2d Cir. 1988); U.S. Amen, 831 F.2d 373, 379 (2d Cir. 1987), cert. denied, 485 U.S. 1020, 108 S.CT. 1573, 99 L.Ed. 2d 888 (1988). Connecticut law requires, however, compliance with the requirements set forth in subsection (a) of Conn. Gen. Stat. § 52-570d. Under the system you propose, prior consent of an inmate is readily obtainable but the prior consent of or notice to all persons to whom the inmate might make a telephone call is unlikely. Accordingly, one of the methods specified in subsection (a) of Conn. Gen. Stat. § 52-570d must be used to notify all the parties that their telephone conversation is being recorded.

Based on the foregoing discussion, it is our opinion that an official of the department of correction is not a criminal law enforcement official for purposes of subsection (b)(1) of Conn. Gen. Stat. § 52-570d and therefore you must comply with the requirements of subsection (a) of the statute.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Henri Alexandre

Assistant Attorney General

RB/HA/ec

1 It should be noted that in the context of this advisory opinion, we do not express an opinion on whether an inmate can make a valid claim that consent under the circumstances you described, may be deemed to be coerced.