Effective Assistance of Counsel in the Digital Era Act

Floor Speech

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Mr. JEFFRIES. Mr. Speaker, I thank the distinguished gentlewoman from the Commonwealth of Pennsylvania for her leadership and for yielding.

Mr. Speaker, I rise in support of H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall have the assistance of counsel for his defense.

To effectively represent a client and provide the best possible legal advice, an attorney must be fully informed about the facts of the case. But this can only be achieved through confidential communication between the attorney and their client. That is why the attorney-client privilege is so critical.

The Supreme Court stated in Lanza v. New York that ``even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection.''

There are nearly 127,000 individuals currently in BOP custody, many of whom are in pretrial detention and have not been convicted of a crime. These Americans are innocent until proven guilty. Like any person involved in a criminal proceeding, these individuals need to be able to confidentially communicate with their attorneys in order to vindicate their rights under law.

The bipartisan Effective Assistance of Counsel in the Digital Era Act will enable incarcerated individuals to communicate with their legal representatives privately, efficiently, and safely by prohibiting the Bureau of Prisons from monitoring privileged electronic communications.

While BOP regulations place protections on attorney visits, phone calls, and traditional mail, no such protections currently exist in the context of email communications sent through BOP's electronic mail service, the Trust Fund Limited Inmate Computer System, otherwise known as TRULINCS. The TRULINCS email system has become the easiest, fastest, and most efficient method of communication available to incarcerated individuals and their attorneys.

Even a brief client visit can take hours, as the distinguished gentleman from North Dakota pointed out, hours out of an attorney's day when you include travel and wait times. Confidential phone calls are often subject to time limitations and cannot usually be scheduled immediately.

Postal mail can take an especially long time to reach an incarcerated individual because it must first be opened and screened. These delays should be unnecessary in a prison system that currently permits electronic communications and would be if the attorney-client privilege was consistently applied to email communication.

The situation has become even more urgent in light of BOP's decision to suspend legal visits as part of its COVID-19 Modified Operations Plan.

To solve this challenge, H.R. 5546 would require the Attorney General to ensure that the BOP email system excludes from monitoring the contents of electronic communications between an incarcerated person and their attorney.

BOP would, of course, be allowed to retain the contents of those messages up until the incarcerated person is released, but they would be accessible only under very limited circumstances. The bill also allows a court to suppress evidence that is obtained or derived from illegal access to the retained contents.

Our criminal justice system depends on the attorney-client privilege to ensure that lawyers are able to effectively represent their clients. That is why this legislation is so critical.

I thank my good friend, Representative Doug Collins, Chairman Jerry Nadler, and Ranking Member Jim Jordan for their leadership, as well as Members on both sides of the aisle.

I also thank the ACLU, the American Bar Association, Americans for Prosperity, #cut50, Due Process Institute, Faith and Freedom Coalition, Families Against Mandatory Minimums, Federal Defenders, FreedomWorks, National Action Network, National Association of Criminal Defense Lawyers, Prison Fellowship, and Right on Crime for their support of this legislation.

Mr. Speaker, I urge my colleagues to vote ``yes'' on H.R. 5546.

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