BROOKLYN, NY – This week, U.S. Representative Hakeem Jeffries (NY-08), a Member of the House Judiciary Committee, reintroduced the Effective Assistance of Counsel in the Digital Era Act. This bipartisan legislation would bring prison policy into the 21st Century by applying attorney-client privilege to electronic communications sent or received through the Bureau of Prisons’ (BOP) email system. In 2020, the bill passed the House with overwhelming bipartisan support.
The Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, the accused shall “have the assistance of counsel for his defence.” That guarantee requires that an attorney and their client must be able to communicate confidentially about a wide variety of issues including the facts of the case and the potential legal outcomes. While BOP extends privacy protections for attorney visits, phone calls and traditional mail, the Bureau has failed to treat email communications sent through BOP’s electronic mail service between attorneys and their clients the same way.
“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,” said Rep. Jeffries.
Email is often the easiest and best method of communication available to incarcerated individuals and their attorneys, especially given the current circumstances. COVID-19 has made visiting a client more difficult and potentially dangerous for all parties. Additionally, attorneys can spend hours traveling to and waiting at a detention facility, even for simple conversations or updates. Moreover, confidential phone calls between an incarcerated person and their attorney are often limited in time and require advanced notice. Similarly, legal documents and other written materials cannot be shared over the phone, and postal mail can take up to two weeks to reach incarcerated clients. A recent report by the National Association of Criminal Defense Lawyers and Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic concluded that “BOP’s decision to monitor emails causes concrete harms to incarcerated persons.”
Specifically, the bill would:
· Require the Attorney General to ensure that BOP’s email system excludes from monitoring the contents of electronic communications between an incarcerated person and their attorney or an agent of their attorney;
· Stipulate that the protections and limitations associated with the attorney-client privilege — including the crime fraud exception — apply to electronic communications sent or received through the BOP email system;
· Permit BOP to retain the contents of electronic communications until the incarcerated person is released but specifies that the contents may only be accessed under very limited circumstances; and
· Allow a court — upon motion of the defendant — to suppress evidence obtained or derived from access to the retained contents if such contents were accessed in violation of the act.
The legislation is cosponsored by Judiciary Committee Chairman Jerrold Nadler (D-NY), Rep. Van Taylor (R-TX), Rep. David Cicilline (D-RI), Rep. Tom McClintock (R-CA), Rep. Joe Neguse (D-CO), Rep. Don Bacon (R-NE), Rep. Nancy Mace (R-SC) and Rep. Kelly Armstrong (R-ND).