Update May 8, 2015: JPay has changed its terms of service and will no longer claim intellectual property rights over correspondence. 

JPay, a company that provides digital communications systems to corrections facilities in at least 19 states, is charging inmates and their families an unusual fee to stay in touch: the intellectual property rights to everything sent through its network.

The corrections industry is undergoing a technological renaissance when it comes to inmate communication, with prison contractors offering increasingly sophisticated digital services, such as email and video visitation. These companies promise safer and more efficient alternatives to traditional snail mail and in-person visits, but they come at a high price for prisoners and their families, who may be unaware of the extent of the fees and surcharges until they get the bill. 

With JPay, though, there’s an extra charge that won’t show up on any credit card statement: the user’s rights to their letters, pictures, videos, and other forms of creative expression.

As Bloomberg reported, JPay aims to be the “Apple of the U.S. Prison System,” offering an array of digital services to inmates, including video visitation, money transfers, and multimedia tablets that inmates can use to listen to music or read books.  The company also offers a telecommunications system that allows inmates to send and receive emails (including “videograms”) from their tablets or from kiosks within corrections facilities.

These services aren’t cheap, of course, but many users won’t realize they are handing over more than money. When an inmate or their family member on the outside uses JPay, they agree to a lengthy Terms of Service contract that contains this buried clause: 

You … acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.

In other words, JPay is leveraging its exclusive access to prisoner communications to claim rights over anything they or their friends and family transmit.

JPay's terms of service also forbid users from duplicating anything they receive through the system. This means:

• If an inmate writes a poem and sends it to his mom on Mother’s Day via JPay’s email services, JPay could own the poem.
• If a child sends a photo of a drawing to their incarcerated parent, JPay could own the drawing. 
• If a radio journalist used the JPay system to conduct extensive interviews with an inmate, JPay could claim ownership of a large portion of the resulting podcast series. (Serial’s Sarah Koenigfamously used Global Tel*Link, a competing but also problematic company, to talk to convicted murderer Adnan Syed.)

It's unclear why JPay wants ownership of these communications and what they plan to do with them. However, if an inmate wanted to fight JPay over who has rights to use the content, they can’t necessarily take it to a regular court. JPay’s terms of service mandate that all disputes be handled through arbitration in Florida.

These are hypotheticals, of course, but this issue is playing out in a real legal battle taking place in Indiana, where prison officials have been aggressively enforcing JPay’s intellectual property rights and terms of service.

Valeria Buford has been running an Internet campaign to get her brother Leon Benson’s murder conviction overturned.  In August 2014, Benson used JPay to record a 30-second videogram thanking his supporters and asking them to attend an upcoming hearing in his appeal. Buford posted this to Facebook, but when prison staff discovered it, Buford’s JPay access was suspended and, according to the Indianapolis Star, Benson was disciplined, sent to solitary confinement, and stripped of good-time days. To justify the discipline, they claimed that they were simply enforcing JPay’s intellectual property rights and terms of service.

(The Buford case is not the first time we have seen corrections officers use “Terms of Service” violations to censor inmates.  Over the last year, for example, we have reported on how prisons leverage Facebook’s Terms of Service to have inmates’ profile pages suspended.)

Buford is currently suing the Indiana Department of Corrections with the help of the American Civil Liberties Union of Indiana. Although Buford’s JPay access has since been restored, she argues that her First Amendment rights are chilled because she “continues to face loss of her ability to communicate with her brother through [JPay] if she so much as posts an internet message from him.”  

Buford may find support for her suit in a recent decision by a Pennsylvania federal court that knocked down Pennsylvania’s Revictimization Relief Act, which allows crime victims to sue inmates who engage in “conduct which perpetuates the continuing effect of the crime on the victim,” including online speech. The court concluded:

A past criminal offense does not extinguish the offender’s constitutional right to free expression. The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive.

According to court records, JPay told Buford directly that she was free to do what she liked with the videogram, including posting it to social media. But JPay hasn’t done the really important thing: change its terms of service.

Last month, JPay was acquired by Securus, one of the largest suppliers of telephone systems to prisons and jail. Before Securus proceeds with its expansion plans, it should immediately remove these clauses. Contractors that provided inmate services within prisons benefit from what amounts to a government-granted monopoly, since their customers literally can’t go anywhere else to do their shopping. That means its incumbent on these companies, and the prisons that contract with them, to ensure that prices are fair and proportionate.

JPay’s intellectual property grab is neither. 

This article was original published by the Electronic Frontier Foundation. It is reprinted with the author's permission.