Should jailed convicts have access to social media?

If you live in Costa Rica, the answer to the question appears to be ‘No’. La Nacion newspaper reports today that Facebook has decided to close the accounts of 19 convicts, who had maintained a presence in the social network despite being in jail. FB took this decision prompted by a direct request from the Costa Rican Ministry of Justice, which objected to the presence of these pages after earlier news reports had highlighted the practice of jailbird social media usage.

This news report highlights an interesting question of modern times. Should jailed convicts have their access to sites like Facebook removed when they lose their freedom? If so, what is the legal basis for such practice? Digging a little bit, I was very surprised to find that the case seems to be based on completely shaky legal foundations.

The report in La Nacion is not clear, but apparently Facebook removed the offending pages alleging that they violated their terms of use. I have scoured through FB’s infamous policies before, so I was very surprised to read that this was the case, so I had another look. There are a few clauses that might apply to specific cases, for example:

“We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:[…]
6. You will not bully, intimidate, or harass any user.[…]
7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.[…]
10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.”

All of these are very specific issues. There were some profiles where the convicts were posing in menacing fashion, or in which they were showing knives and drug paraphernalia. There was also some discussion of smuggling items into jail. These specific cases may have fallen under some of the above prohibitions, but I have seen much worse. Then there is this other section:

“We respect other people’s rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.”

This is more specific. If posting to FB from jail is against the law in Costa Rica, then clearly they can remove the content. So, is it illegal to use social media from jail? Interestingly, I was not able to find a single piece of legislation that deals specifically with this issue. The main regulation about what convicts can and cannot do is a statutory instrument in the shape of the 1993 Executive Decree N° 22139-J on the rights and duties of prisoners. This clearly states that those deprived of freedom have full use of their constitutional rights, except those incompatible with their captivity. Art 6 of the decree reads:

“All prisoners or detainees shall have the same individual, social and economic rights that all citizens of the Republic hold, except those which are inconsistent with imprisonment itself. Also enjoy the guarantees to be derived from their stay in the prison system.”

Similarly, Art 12 allows prisoners a limited right to communicate to the exterior world “by mail, pay phones installed in the center, and receive regular visits”. I have to concede that there may be a more recent norm that I have missed, but at least in light of the above, there is nothing that specifically prohibits communication through social media sites. Perhaps there is a specific ban on cellular phones, which are the preferred device of choice to connect to FB, but I could not find it. Moreover, as stated in this blog, access to the Internet has been declared as a fundamental right by the Constitutional Court of Costa Rica, so any ban on communicating online would violate that principle.

So let’s assume that connecting to social media sites from jail is not illegal in Costa Rica. What is left? Facebook has a devastatingly broad Termination clause in its Terms of Use:

“If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account.”

Notice that the mere act of creating a “risk or possible legal exposure” for Facebook can be enough to have one’s account removed. In this case, the mere fact that there was a complaint from a small Central American government was enough to have the accounts removed, as it could be construed as the a possible legal risk for FB.

In short it seems like the removal could just be justified legally, but from what I have read this is not straightforward. I am more concerned that a media storm was started by newspapers in Costa Rica that were appalled at what they saw as a flaunting of the prison regime.

Expect this question to come up more and more in the future.