Bureau of Prisons seeks to erode financial privacy of friends and family

by Stephen Raher, August 20, 2015

Providing financial services to people in prison has become big business. Prisons, phone companies, and other contractors are reaping huge profits at the expense of incarcerated people and their friends and relatives.

As the operator of one of the largest prison systems in the country, the federal Bureau of Prisons (“BOP”) should be at the forefront of ensuring fair treatment of people who use prison financial systems. But are they? No, in fact they’re actively working to tear down existing protections.

Instead of proactively addressing problems like high fees for money transfer or release cards, the BOP has recently issued a proposed rule that would make it easier for the government to obtain private financial information from those who send money to people in prison. The rule would unilaterally declare that anyone who sends funds to a commissary account “agrees” to release ill-defined “transactional information” to the BOP.

The BOP’s proposed rule is not only bad policy, it goes against privacy rights established decades ago by the federal Right to Financial Privacy Act (the “RFPA”). RFPA protects consumers by prohibiting banks from sharing customer financial records with the government unless the customer is first given a notice and the opportunity to object. And the law still provides numerous ways to legally obtain the financial records if the BOP suspects illegal activity. But rather than using these available methods, the BOP proposes to force people to consent to disclosing their banking records—exactly the kind of coercion RFPA prohibits.

RFPA is clear: even though financial privacy is protected, the government can still access records to investigate crime. So we’re left to conclude that the BOP’s proposed rule is based on the presumption that anyone who sends money to someone in prison is engaged in an unlawful activity. This is untrue and offensive. Family and friends send money to loved ones in prison to help pay for phone calls or basic food and hygiene items (all generally priced at more than the incarcerated folks can afford on their own). No one should be forced to surrender their federally-recognized right to privacy just because the family member or friend they’re supporting is incarcerated.

And the repercussions wouldn’t be limited to the world of prisons. If the BOP can evade privacy laws, what other government agencies will follow? Can someone be forced to let the government go through their bank records simply because they receive unemployment benefits? What about people who pay parking tickets or other fines? Or recipients of tax refunds? Not only does the BOP’s proposal trample financial privacy rights of family and friends of incarcerated people, but it threatens to undermine those rights for all.

The BOP is accepting comments until September 8, 2015 and the Prison Policy Initiative is working on a letter with our allies.