How a Terms-of-Service Agreement Can Land You in Solitary Confinement
Acton Institute Powerblog

How a Terms-of-Service Agreement Can Land You in Solitary Confinement

tosUpdate (May 10, 2015): JPay has provided the following statement: 

In response to your article, How a Terms-of-Service Agreement Can Land You in Solitary Confinement, JPay has removed that language from our Terms of Service and made the below statement.

“It has recently come to our attention that there is language in our Terms of Service that impacts our customers and their families. The language states that JPay owns all content transmitted through our Email, VideoGram and Video Visitation services. Our intention was never to take ownership and profit in any way from our customers’ content. That is not and has never been JPay’s business and we have removed this language from our Terms of Service.  From its inception, JPay has pledged to make our customers our top priority and we will continually strive to meet this pledge as best and as quickly as we can.”

For just about every service you use online, like Facebook or iTunes, you have to agree to a company’s “terms-of-service” (TOS) agreement. Most of us don’t bother to read the TOS; we merely click the “I Agree” button and get on with our lives. We aren’t likely to suffer any negative ramifications from our failure to read the fine print.

The same can’t be said, though, for the users of JPay, a company that provides digital communications systems to corrections facilities in at least 19 states. As their website says, JPay offers a variety of services for inmates and their families: “Send money to your loved one in state prison. Email your cousin in county jail. Chat with a friend using video visitation or give the gift of music with the JP4® player.”

But there’s a catch. Buried in JPay’s lengthy TOS is this 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.

As Dave Maass of the Electronic Frontier Foundation explains, 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 Koenig famously used Global Tel*Link, a competing but also problematic company, to talk to convicted murderer Adnan Syed.)

But nothing will come of that right? Wrong. As Maas notes, in Indiana 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.

JPay and other prison service providers already have a regrettable history of exploiting prisoners and their families. But taking their intellectual property and then allowing prison officials to use a TOS as a pretext to put an inmate in solitary confinement is particularly outrageous. Whatever their previous crimes, prisoners to not lose their constitutional rights to free expression. And they should not have to sign over such rights simply to be able to send an email to their family.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).