Update: A few hours after we posted this, New Mexico Corrections Department informed us that inmate Eric Aldaz's Facebook-related disciplinary infractions have been thrown out. More information at the bottom.
Like more than a billion other people on the planet, Eric Aldaz had a Facebook profile. What made Aldaz’s profile different from most is that he was unable to post to it himself: he didn’t hold the login credentials or even have any kind of access to the Internet. He is an inmate of the New Mexico Corrections Department (NMCD) and his family maintained the page on his behalf.
New Mexico has an obscure prison policy that forbids inmates from accessing the Internet directly or through “third parties.” Now, Aldaz is facing 90 days in solitary confinement because he refused to tell his family to take his Facebook profile down.
To New Mexico’s credit, the corrections department agreed to reopen Aldaz’s disciplinary case and to review the policy after EFF started asking questions and filing public records requests. The inmate has yet to be placed in disciplinary segregation. With hopes of heading it off, EFF, the American Civil Liberties Union of New Mexico, the Human Rights Defense Center and Prison Legal News have sent a letter to NMCD asking the agency to repeal the policy and undo the punishment leveled at the inmate.
EFF first learned of NMCD’s policy when a local Albuquerque television station aired a report about how an inmate at the Northeast New Mexico Detention Facility in Clayton was violating the prison’s social media ban by having a Facebook page. The one-line rule was buried on page 28 of the department's "Information Technology Management" policy, a document primarily for staff that contained no further definitions or guidance:
Offenders in the custody or supervision of the Department are not permitted access to the Internet, nor are they permitted to obtain access to the Internet through third parties.
Records indicates that the same day of the news broadcast, NMCD (by way of Geo Group, the private contractor that runs the facility) began disciplinary proceedings again Aldaz. Initially, Aldaz claimed he had no way to access the profile. Later, when officers overheard Aldaz asking a family member to upload new profile photos and to post a response about the news story and people “hating” on him, he was punished for disobeying orders with three months in disciplinary segregation.
Last October, the ACLU of New Mexico and the New Mexico Center on Law and Poverty issued a detailed investigation into the abuse of solitary confinement in New Mexico prisons and jails, concluding that the status quo violated fundamental civil rights and was psychologically damaging to inmates. Prison officials conceded the point that too often nonviolent offenders are being placed in solitary, and agreed to address the problem. Even New Mexico Corrections Secretary Gregg Marcantel spent time in disciplinary segregation to experience firsthand what it’s like to spend 23 hours of every day in a cramped cell with severely limited social interaction.
In the letter, we write that Aldaz’s punishment seems extraordinarily disproportionate considering the nonviolent nature of the offense, which we would argue is not an offense at all.
In nearby Arizona, restrictions on inmate access to Internet through third parties were ruled unconstitutional a decade ago when a judge determined that the policies served no legitimate penological interest. We argue the same principles apply here: these prohibitions infringe on the free speech rights of not only the inmates, but the inmates' friends and family and anyone who seeks to speak on their behalves. Although NMCD claims it only applies this policy to social media pages, the language is so broad that it could be used to punish inmates for innocuous acts such as asking their family to pay their outstanding credit bills through online banking or to send print-outs of medical information from health websites. The rule could also pose a chilling affect for anyone who would like to post information online about an inmate for fear that the prison may believe the inmate had some control over the speech.
In reviewing the records, EFF identified several additional concerns. For one, NMCD had not developed any kind of detailed process for enforcing the policy. They had not well publicized the rule, which was buried deep in a document geared towards NMCD staff and contractors, not inmates. It was unclear whether Aldaz had ever been notified of the policy at all. We were also alarmed to learn that NMCD had been contacting online service providers to get inmate pages taken down, without keeping any records. NMCD told EFF it was able to get Aldaz’s page removed over the phone with Facebook.
NMCD has expressed its openness to overhauling the policy and we look forward to working with them. As we write in the letter:
No one should serve 90 days, or even a single day, in solitary confinement for simply having a Facebook page.
Update: A few hours after we posted this, NMCD Public Affairs Director Alex Tomlin informed us that inmate Eric Aldaz's Facebook-related disciplinary infractions had been thrown out as of July 1, just a few days after they agreed to re-examine his case and the policy. However, this information did not reach the administrative offices until after we published. This is great news, but we are still waiting to hear whether NMCD will scrap the policy altogether.
