Effective Assistance of Counsel in the Digital Era Act

Floor Speech

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Ms. SCANLON. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5546) to regulate monitoring of electronic communications between an incarcerated person in a Bureau of Prisons facility and that person's attorney or other legal representative, and for other purposes.

The Clerk read the title of the bill.

The text of the bill is as follows: H.R. 5546

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the ``Effective Assistance of Counsel in the Digital Era Act''. SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN INCARCERATED PERSON AND THE PERSON'S ATTORNEY.

(a) Prohibition on Monitoring.--Not later than 180 days after the date of the enactment of this Act, the Attorney General shall create a program or system, or modify any program or system that exists on the date of enactment of this Act, through which an incarcerated person sends or receives an electronic communication, to exclude from monitoring the contents of any privileged electronic communication. In the case that the Attorney General creates a program or system in accordance with this subsection, the Attorney General shall, upon implementing such system, discontinue using any program or system that exists on the date of enactment of this Act through which an incarcerated person sends or receives a privileged electronic communication, except that any program or system that exists on such date may continue to be used for any other electronic communication.

(b) Retention of Contents.--A program or system or a modification to a program or system under subsection (a) may allow for retention by the Bureau of Prisons of, and access by an incarcerated person to, the contents of electronic communications, including the contents of privileged electronic communications, of the person until the date on which the person is released from prison.

(c) Attorney-Client Privilege.--Attorney-client privilege, and the protections and limitations associated with such privilege (including the crime fraud exception), applies to electronic communications sent or received through the program or system established or modified under subsection (a).

(d) Accessing Retained Contents.--Contents retained under subsection (b) may only be accessed by a person other than the incarcerated person for whom such contents are retained under the following circumstances:

(1) Attorney general.--The Attorney General may only access retained contents if necessary for the purpose of creating and maintaining the program or system, or any modification to the program or system, through which an incarcerated person sends or receives electronic communications. The Attorney General may not review retained contents that are accessed pursuant to this paragraph.

(2) Investigative and law enforcement officers.--

(A) Warrant.--

(i) In general.--Retained contents may only be accessed by an investigative or law enforcement officer pursuant to a warrant issued by a court pursuant to the procedures described in the Federal Rules of Criminal Procedure.

(ii) Approval.--No application for a warrant may be made to a court without the express approval of a United States Attorney or an Assistant Attorney General.

(B) Privileged information.--

(i) Review.--Before retained contents may be accessed pursuant to a warrant obtained under subparagraph (A), such contents shall be reviewed by a United States Attorney to ensure that privileged electronic communications are not accessible.

(ii) Barring participation.--A United States Attorney who reviews retained contents pursuant to clause (i) shall be barred from--

(I) participating in a legal proceeding in which an individual who sent or received an electronic communication from which such contents are retained under subsection (b) is a defendant; or

(II) sharing the retained contents with an attorney who is participating in such a legal proceeding.

(3) Motion to suppress.--In a case in which retained contents have been accessed in violation of this subsection, a court may suppress evidence obtained or derived from access to such contents upon motion of the defendant.

(e) Definitions.--In this Act--

(1) the term ``agent of an attorney or legal representative'' means any person employed by or contracting with an attorney or legal representative, including law clerks, interns, investigators, paraprofessionals, and administrative staff;

(2) the term ``contents'' has the meaning given such term in 2510 of title 18, United States Code;

(3) the term ``electronic communication'' has the meaning given such term in section 2510 of title 18, United States Code, and includes the Trust Fund Limited Inmate Computer System;

(4) the term ``monitoring'' means accessing the contents of an electronic communication at any time after such communication is sent;

(5) the term ``incarcerated person'' means any individual in the custody of the Bureau of Prisons or the United States Marshals Service who has been charged with or convicted of an offense against the United States, including such an individual who is imprisoned in a State institution; and

(6) the term ``privileged electronic communication'' means--

(A) any electronic communication between an incarcerated person and a potential, current, or former attorney or legal representative of such a person; and

(B) any electronic communication between an incarcerated person and the agent of an attorney or legal representative described in subparagraph (A).

Mr. Speaker, H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act would require the Federal Bureau of Prisons to establish a system to exempt from monitoring any privileged electronic communications between incarcerated individuals and their attorneys or legal representatives.

The Sixth Amendment to the U.S. Constitution provides the right to counsel to assist in the defense of those accused of criminal offenses. In order to represent their clients in an effective manner, defense attorneys must have the ability to communicate candidly with their clients.

The attorney-client privilege, which keeps communications between individuals and their attorneys confidential, exists, in part, to foster this sort of open communication.

This privilege, of course, does not protect communications between a client and an attorney made in furtherance of, or in order to cover up a crime or fraud, also known as the crime-fraud exception. But to ensure free and open communication between individuals and their attorneys--a fundamental component of the effective assistance of counsel guaranteed by the Constitution--other communications between them may remain private.

It goes without saying that defendants who are not in custody are less constrained in their ability to have candid conversations with their attorneys than those defendants who are in custody.

Generally speaking, out-of-custody defendants can go to their attorneys' offices, speak with them freely on the phone, or write letters back and forth with their attorneys without fear of interference. To an extent, in-custody defendants also have these protections: Bureau of Prisons regulations ensure that inmates are able to meet with their attorneys without auditory supervision, and that they can talk on the phone and exchange letters with their attorneys without monitoring.

But these same protections do not apply to email communications for the nearly 150,000 individuals currently in the Bureau of Prisons' custody, many of whom are in pretrial detention and have not been convicted of any crime.

Since 2009, email communications have been available for Bureau of Prisons inmates through a system known as TRULINCS. TRULINCS requires inmates and their contacts to consent to monitoring, however, even in the case of communications between inmates and their attorneys.

Over a decade ago, BOP clearly recognized the growing importance of email for purposes of efficiency and speed of communication between inmates and their outside contacts. Over time, email has rapidly grown into a primary means of communication between inmates and their attorneys, but without a system in place to maintain attorney-client privilege. Without that system, the Bureau of Prisons risks severely hindering the effective representation of inmates. It is even more important for us to enable these confidential communications at this point in time, given that the pandemic has severely hampered the ability of attorneys to meet with their clients in person.

It is well past time to rectify this problem. I am pleased that H.R. 5546 would do just that, by requiring BOP to put in place a system that will exempt from monitoring any privileged electronic communications between incarcerated individuals and their attorneys or legal representatives.

The bill also includes additional protections, including the requirement that the contents of electronic communications be destroyed when an inmate is released from prison, as well as authorizing the suppression of evidence obtained or derived from access to information in violation of provisions set forth in this bill.

This is an important bill, and one that has been needed for quite some time. I commend our colleagues, Representatives Hakeem Jeffries and Doug Collins, for their efforts and leadership in developing this bipartisan piece of legislation.
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Ms. SCANLON. Mr. Speaker, H.R. 5546 is an important measure to reinforce the attorney-client privilege, an issue that is essential to the fair administration of our criminal justice system and one that is even more urgent in this pandemic.

For all the reasons discussed here today, I urge my colleagues to join me in supporting this bipartisan legislation, and I yield back the balance of my time.

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