Is 'Check it out, bro, I'm in prison!' an appropriate Facebook status update?

A first-of-its-kind "Facebook felon" bill, now working its way through the South Carolina legislature, would impose a $500 fine and as many as 30 more days in jail for any prisoner caught creating or using a Facebook or Twitter account.

In some jails nationwide, inmates are managing to get their hands on smart phones and surreptitiously tap out pithy updates, send messages to the outside world, and even post photos after lights-out.

It is a new wrinkle on the common problem of contraband cellphones in prison, which have been used to order outside associates around, intimidate potential witnesses, and even order gangland hits. States prison systems from Georgia to California have cracked down on contraband cellphones, with some also considering ways to jam wireless communications inside prisons.

For South Carolina state Rep. Wendell Gilliard, a law-and-order Democrat from Charleston, the use of social media by prisoners is "a slap in the face" to both society and to victims. But criminalizing cell block use of social media could infringe on First Amendment rights, some experts say. Moreover, they say, the law could obscure the real problem now being brought to light in prisons: an unchecked flow of contraband, including drugs and cellphones.

"This is a meaningless strategy that makes it look like you're doing something about contraband and you're not," says Michele Deitch, a prison policy expert at the University of Texas at Austin. "Adding 30 days to someone's sentence is not going to keep them from doing this. What needs to happen is better controls within the prison."

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'An insult to society'

For its part, Facebook prohibits third-party profiles and is also known to turn off prisoner pages once the company becomes aware of them. But for prison officials keeping the lid on restive prison populations clamoring for any kind of access to the outside, controlling smartphones and Twitter accounts is a never-ending battle, and one in which prisoners often gain the upper hand.

State Representative Gilliard, the bill sponsor, cites one story in particular where a rape victim found her imprisoned attacker on Facebook, grinning in a photoshopped image where he was shown with a lady on each arm. He says officials have also discovered coded Facebook messages that imply threats or guide drug deals.

The Associated Press recounted the tale of one South Carolina prisoner named Islam Dunn. In jail for being part of a gang who robbed a house and killed one person, Mr. Dunn admitted his Facebook use to a reporter. Among his jailhouse updates: "All i want is my life bac," and, after his birthday, "got SO high." Prison officials in South Carolina were not aware Dunn had a social media account.

And in Texas last week, inmate David Puckett escaped from Stiles Unit prison in Beaumont using a smart phone to befriend and cajole a Facebook fan who eventually helped in the breakout – one in a long string of cellphone related incidents in Texas facilities, which are some of the most locked-down and secure in the country, says Ms. Deitch, the University of Texas prison policy expert. Puckett was eventually apprehended in Nebraska.

"[Social media use by prisoners] is truly an insult to society, and by being silent on this issue we were putting out the message that crime does pay," say Gilliard. "You see guys on Facebook, they've got smiles on their faces, and here it is convenient for them to go to prison and get on Facebook, have a good time, and talk to their friends, and it's all being paid for by taxpayers, by people who haven't committed any crime."

Prisoners' free-speech rights

In 2003, a federal judge rejected the premise of an Arizona law that prohibited anyone from helping inmates access the Internet through indirect means, such as messages passed along in phone calls or letters, which were then posted by friends and family. The judge said that states could prohibit prisoners from using the Internet, but could not prohibit them from accessing the online world through proxies.

"The very nature of the internet medium makes prisons have these very strict rules on internet access, because, frankly, [prison officials] see them as tools to quickly organize a criminal enterprise – but that doesn’t mean that the content of the message itself should be suppressed," says Margaret Winter, associate director of the ACLU's National Prison Project.

She cites Martin Luther King Jr.'s "Letter from a Birmingham Jail" as one example of the kind of widely distributed prison communication that the South Carolina bill would criminalize.

"I'm not making the outrageous claim that every communication that goes out of prison is some great, world-changing human-rights document, but that ... the mere fact that a person is a prisoner does not mean that they are not entitled to try to speak to the world," she adds.

The South Carolina Facebook felon bill has the support of House Speaker Bobby Harrell as well as officials from the state's juvenile detention system, says Gilliard.

Missing the point?

But focusing on inmate behavior could also take the focus off the difficult challenge of preventing contraband goods. "Prisons are cities and they need to be stocked with supplies all the time, and that's how [most] contraband comes in," says Deitch, who also points the finger at corrupt guards.

"That said, I think it's entirely the wrong approach to criminalize having a Facebook or Twitter account. What needs to happen is you solve the contraband problem, and then you make [social media access] a violation of administrative rules," she adds. "There's plenty of ways to control prisoners' behavior in a well-run correctional system that doesn't involve criminalizing the behavior."