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house Bill H.R. 546

Should Emails Between Inmates in Federal Prisons & Their Attorneys be Protected by Attorney-Client Privilege?

Argument in favor

Attorney-client privilege is a cornerstone of the justice system. Inmates in federal prisons, who currently use a monitored email system to communicate with their attorneys, are not afforded this important protection. Reconfiguring the Bureau of Prisons email system to shield emails from monitoring would protect an ever-more important means of communication between attorneys and their clients in federal detention.

Miranda's Opinion
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02/23/2021
Absolutely. Technology doesn’t change basic human rights
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jimK's Opinion
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02/25/2021
Federal prisoners still have civil rights. Until and unless the sentencing judge specifically denies the right to attorney-client privilege via email communication for some due cause, their civil rights to commune with their attorneys must be protected. Covid transmission in enforced congregate environs is greater for imprisoned populations; a lawyer’s fear of being repeatedly exposed can limit their ability to communicate with their clients in person and in a timely manner. Covid issues have required changes in procedures everywhere around the world. Sorry, this one is on the prison system to upgrade their email services to protect attorney-client privilege - just like everyone else has had to adjust their operations due to the pandemic. Some standards need to be developed.
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larubia's Opinion
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02/23/2021
Yes, the emails should be subject to client-attorney privilege....unless the email or the contents of the email are shared with others. I can see how witness tampering & other nefarious deeds could be “handled” through a knowing/unknowing attorney. Just imagine tRump’s (from prison) & Guilliani’s emails...enough said.
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Argument opposed

The Bureau of Prisons email system was never meant to be, and has never pretended to be, confidential. Both attorneys and clients understand this fact and are capable of conducting themselves accordingly. In cases where confidentiality is necessary, phone calls, in-person visits and mail are all available.

John's Opinion
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02/23/2021
I think it depends upon the prisoner. You wouldn’t want to give this privilege to a mob boss, who could run his mob from prison. Just because someone is an attorney, doesn’t mean they should be trusted. There are several in Congress I wouldn’t trust as far as I could throw them.
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Robert 's Opinion
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02/23/2021
If an inmate wants to communicate with their lawyer they have letters or phone or request a personal visit from the lawyers. Why does a prisoner have access to an email account in the first place.
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Kelly's Opinion
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02/23/2021
1.) Electronic communications in a prison is a safety and security risk. (ie: cell phones, computers) 2.) If approved, the next step will be to provide REQUIRED access for inmates to receive emails. This will open the door to unlimited security risk. 3.)
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What is House Bill H.R. 546?

This bill — the Effective Assistance of Counsel in the Digital Era Act — would apply attorney-client privilege, including the crime fraud exception, to electronic communications sent or received through the Bureau of Prisons (BOP) email system. This would prohibit the Dept. of Justice (DOJ) from monitoring the contents of a privileged electronic communication between an incarcerated person and their legal representative.

The BOP would be permitted to retain the contents of electronic communications until a person’s release, but the contents of those communications could only be accessed under very limited circumstances. Upon a defendant’s motion, a court could suppress evidence obtained or derived from access to the retained content if such contents were accessed in violation of this legislation’s provisions.

Impact

Inmates in federal prisons; attorneys to inmates in federal prisons; the Bureau of Prisons (BOP); and the Bureau of Prisons’ TRULINCS email system.

Cost of House Bill H.R. 546

$52.00 Million
In the 116th Congress, the Congressional Budget Office (CBO) estimated that this bill would cost $52 million to implement over the five-year period from 2020-2025.

More Information

In-DepthSponsoring Rep. Hakeem Jeffries (D-NY) reintroduced this bill from the 116th Congress, when it was passed on a bipartisan voice vote, in order to bring prison policy into the 21st Century:

“Most fair-minded individuals understand that our system of justice requires a dynamic where people have access to the effective assistance of counsel necessary to adequately defend themselves. This is not just common sense—it is a constitutionally-protected right. The ability to send and receive confidential electronic communications has never been more important now that email has become the safest and most efficient way for attorneys and their incarcerated clients to communicate.”

In a press release, Rep. Jeffries’ office observes that email “is often the easiest and best method of communication available to incarcerated individuals and their attorneys,” especially during the current pandemic. Amid an environment in which visiting clients in person has become more difficult and more potentially dangerous for all parties, email offers significant advantages over both in-person visits and phone calls (which are often limited in length and require advance notice).

The American Bar Association (ABA) supports this legislation. In a January 28, 2021 letter to Rep. Jeffries and lead Republican cosponsor Rep. Van Taylor (R-TX), ABA President Patricia Lee Refo wrote:

“The attorney-client privilege is fundamental to our system of justice and critical to the work of lawyers who rely on confidential communications with their clients to represent their clients’ interests in legal proceedings and to ensure fairness in the federal criminal justice system. While traditional letter mail, unmonitored telephone calls, and in-person meetings between attorneys and their clients incarcerated in Bureau of Prisons (BOP) facilities are already protected communications, your bill would expand that protection to also cover any electronic communications between them. We recognize that there are certain narrow exceptions to the attorney-client privilege and that the BOP must monitor activity on its servers to ensure system security and integrity. We share your view, however, that while it may be appropriate for the BOP to monitor and retain nonprivileged messages sent or received by an incarcerated person in certain circumstances, a warrant should be required before law enforcement officers can access these messages… We believe your bill strikes the right balance between legitimate government interests and the countervailing importance of attorney-client confidentiality.”

District courts that have considered the issue of prisoner email confidentiality have arrived at differing conclusions on this issue. In United States v. Asaro, a case in the Eastern District of New York, Judge Allyne R. Ross found that the government’s TRULINCS policy did not “unreasonably interfere” with a defendant’s ability to consult with counsel because other privilege communication channels, including phone calls, mail, and in-person visits were also available.

In November 2015, then-federal prosecutor James McGovern pointed out that the BOP’s email system was never meant to be confidential, and that both inmates and their attorneys are well aware of this fact. “We don't want to read attorney-client communications. We are not doing this for some strategic advantage… Nobody ever intended the system to be confidential,” he said. McGovern also observed that prosecutors in Brooklyn experimented with assigning an extra lawyer to separate out emails between inmates and their defense attorneys, but that effort was abandoned because it proved too burdensome “to go and constantly have to review thousands of pages and try and remove attorney-inmate emails."

This legislation has 11 bipartisan House cosponsors, including seven Republicans and four Democrats, in the 117th Congress. In the 116th Congress, Rep. Jeffries introduced it with the support of 24 bipartisan House cosponsors, including 13 Democrats and 11 Republicans. The bill passed the House on a voice vote but stalled in the Senate.

The American Civil Liberties Union (ACLU), American Bar Association (ABA), National Association of Criminal Defense Lawyers, and others supported this legislation in the previous session of Congress.  


Of NoteThe Sixth Amendment to the U.S. The Constitution guarantees the accused’s right to counsel for their defense. This guarantee requires that an attorney and their client be able to communicate confidently about a broad range of issues, including the facts of the case and the potential legal outcomes. While the Bureau of Prisons (BOP) extends privacy protections for attorney visits, phone calls, and traditional mail, the Bureau doesn’t treat email communications sent through its electronic mail system the same way. This means that nearly 150,000 individuals in BOP custody, including persons in pretrial detention who have not been convicted of any crimes, have limited abilities to communicate with their attorneys through BOP’s TRULINCS system.

In a recent joint report, the National Association of Criminal Defense Lawyers and Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic concluded that the BOP’s decision to monitor emails “causes concrete harm to incarcerated persons.” They added:

“BOP’s decision to monitor emails causes concrete harms to incarcerated persons. The permitted methods of communication are insufficient on their own, given the extensive costs and administrative hassle they entail. Moreover, BOP’s requirement that incarcerated persons ‘ voluntarily’ agree to monitoring and waiver of privilege means attorneys cannot ethically use the system for anything other than the most mundane emails. This is because lawyers are required to safeguard the confidences of their clients, and they cannot do so using a system that is monitored. In some cases, when incarcerated persons and their attorneys have gone ahead and used the system anyway, BOP has handed their emails over to prosecutors, who have used them against the clients in their legal cases. Finally, the harm of lack of access to a privileged email system falls disproportionately on certain incarcerated persons, such as those experiencing a disability, people of color, incarcerated persons who are seeking representation, and those relying on public defenders or who retain their own counsel but face funding limitations.”

According to the report, attorneys practicing in the federal criminal system are less able to communicate with their clients and therefore less effective in defending their clients. Given their findings, the report called on Congress to immediately act to protect attorney-client privilege in emails sent through the BOP email system.

From a technical perspective, should this bill pass, TRULINCS would need to be reconfigured to filter out legal emails from monitoring. In 2020, the Congressional Budget Office (CBO) estimated that this would cost $33 million to design, develop, and install a new monitoring program over a three-year period. On an ongoing basis, it would then cost about $10 million annually to operate and maintain the system (for comparison, the BOP’s telephone system for inmates costs about twice that amount on an annual basis).


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / South_agency)

AKA

Effective Assistance of Counsel in the Digital Era Act

Official Title

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.

bill Progress


  • Not enacted
    The President has not signed this bill
  • The senate has not voted
      senate Committees
      Committee on the Judiciary
  • The house Passed February 24th, 2021
    Roll Call Vote 414 Yea / 11 Nay
      house Committees
      Committee on the Judiciary
    IntroducedJanuary 28th, 2021

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    Absolutely. Technology doesn’t change basic human rights
    Like (46)
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    I think it depends upon the prisoner. You wouldn’t want to give this privilege to a mob boss, who could run his mob from prison. Just because someone is an attorney, doesn’t mean they should be trusted. There are several in Congress I wouldn’t trust as far as I could throw them.
    Like (30)
    Follow
    Share
    Federal prisoners still have civil rights. Until and unless the sentencing judge specifically denies the right to attorney-client privilege via email communication for some due cause, their civil rights to commune with their attorneys must be protected. Covid transmission in enforced congregate environs is greater for imprisoned populations; a lawyer’s fear of being repeatedly exposed can limit their ability to communicate with their clients in person and in a timely manner. Covid issues have required changes in procedures everywhere around the world. Sorry, this one is on the prison system to upgrade their email services to protect attorney-client privilege - just like everyone else has had to adjust their operations due to the pandemic. Some standards need to be developed.
    Like (33)
    Follow
    Share
    Yes, the emails should be subject to client-attorney privilege....unless the email or the contents of the email are shared with others. I can see how witness tampering & other nefarious deeds could be “handled” through a knowing/unknowing attorney. Just imagine tRump’s (from prison) & Guilliani’s emails...enough said.
    Like (27)
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    Yes, obviously. Texts too. Any communication with your legal team needs to have Attorney/Client Privilege. Technology doesn’t change your basic rights.
    Like (14)
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    If we begin to chip away at rights we will have a time when there are no rights. When considering such issues we must always ask "will there be a time when I need such protections?" If aprosecution cannot prove a case without such advantages it has a weak case that cannot stand without help anyway
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    Are we talking about Trump communication and his lawyers that should be in jail or are in jail?
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    Since the other communication vehicles, eg: mail, unmonitored telephone calls, in-person meetings, etc. are available, this all boils down to whether we want to make a $52 million dollar investment to either update or replace the e-mail system. While Covid may affect in-person meetings, it has no effect on the other communication vehicles presently available, including monitored e-mails, therefore fails as a justification. This is a time to reflect upon expenditures, whether it be this or any other program, etc.
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    Attorney-Client privilege should be extended to emails, or else clients should not be allowed to email with their attorneys. There should be an expectation of a full and fair defense for ALL inmates and prosecuted people, no matter what they did or who they are: we all deserve equal protection under the law.
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    Keeping Attorney-Client communications safe from ease-dropping or recording even when they are electronic seems like a No-Brainer. Okay, why does this need a stand alone bill? I got to ask what else is in this bill???
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    Attorney/client privilege definitely should apply. That said, I’ve often pointed out that nothing should be written in an email that you wouldn’t want displayed on a Times Square Billboard. Unless you’re using an encrypted email service, or encrypting what is written before it is sent, there’s really no guarantee of privacy.
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    Attorney client privilege is extremely important. If an inmate can not communicate with their attorney with confidence that the communication is private they cannot be guaranteed a fare hearing
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    Of course. There are also a hell of a lot more important things to be voting on than this. Get to work for the people.
    Like (6)
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    If an inmate wants to communicate with their lawyer they have letters or phone or request a personal visit from the lawyers. Why does a prisoner have access to an email account in the first place.
    Like (6)
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    protect attorney client rights.
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    Protect emails with Attorney-Client Privilege seems to be a total no brainer It is undoubtedly feasible to have two way encrypted email. Parameters can be set such that a convict can lose the privilege for certain extreme infractions, but not arbitrarily or due the stupid, inevitable events steming from incarceration, living in captivity and close quarters.
    Like (4)
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    Why would email differ from any other protected attorney-client privilege such as letters and notes? That, to me, makes no sense and potentially has the effect of interfering with attorney-client communication and ability to mount a defense.
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    Attorney-client interaction must be protected but I do not see a priority of redoing the DOC email system during a pandemic. Updating the DOC email for private attorney client communication should be a budget item for next year. I think all other e-mail traffic between prisoners and the community should still be monitored.
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    1.) Electronic communications in a prison is a safety and security risk. (ie: cell phones, computers) 2.) If approved, the next step will be to provide REQUIRED access for inmates to receive emails. This will open the door to unlimited security risk. 3.)
    Like (4)
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    Absolutely, and without exception emails between inmates (any/all charged with a crime) and their attorneys should certainly be privileged. This is sacrosanct to our legal system. It is bad enough that our justus (spelling intentional) system is multi tiered; one for the wealthy, another for the financially viable, and the lowest tier for people of color and poor whites (of course, just like our socio-economic system, the top tier is becoming more pronounced, as the middle shrinks, and the bottom tier grows). The further we let this slide continue, the harder it wil be to establish a system more in line with the US constitution. In a system where we find so many that have been falsely convicted there are no sufficient reason(s) to fail in this duty.
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