Washington, D.C. — U.S. Senators Ron Wyden, D-Ore., and Cynthia Lummis, R-Wyo., today reintroduced their bipartisan bill to protect the confidentiality of email communications between incarcerated individuals and their attorneys.
Despite mail, phone calls, and in-person meetings at federal prisons being protected against government surveillance, current federal policies require that inmates at Bureau of Prison facilities must allow the government to review all their attorney-client emails. Wyden and Lummis’ Effective Assistance of Counsel in the Digital Era Actwould close this loophole and ensure the Sixth Amendment’s right to counsel and attorney-client privilege also apply to digital communications.
“The government shouldn’t be in the business of keeping tabs on people’s email conversations with their attorneys,” Wyden said. “Attorney-client privilege is a fundamental right and shouldn’t only apply to snail mail and phone calls. All forms of communication between incarcerated people and their attorneys should be private, full stop.””
“People who are incarcerated deserve the right to have private email conversations with their attorneys that are free from government monitoring,” Lummis said. “When I was an attorney in Wyoming, I saw the importance of attorney-client privilege daily. Folks who are incarcerated should not lose their right to privacy, which is why I am proud to cosponsor this important piece of legislation.”
U.S. Representatives Madeleine Dean, D-Pa., Laurel Lee, R-Fla., Hakeem Jeffries, D-N.Y., and Don Bacon, R-Neb., introduced companion legislation in the House.
“Our system of justice depends on the constitutional right to the assistance of counsel for every person accused of a criminal offense. Incarcerated individuals must be able to communicate with their attorneys confidentially,” Jeffries said. “The bipartisan Effective Assistance of Counsel in the Digital Era Act would enable incarcerated individuals to communicate with their legal representatives privately, safely and efficiently by prohibiting the Bureau of Prisons from monitoring privileged electronic communications. I thank Senators Wyden and Lummis for their leadership on this issue and for introducing this incredibly important companion legislation.”
“Incarcerated individuals should be able to freely speak with their legal representative without having to worry about their conversations being monitored,” Bacon said. “They need to have the trust and confidence that their conversations are private for the system to work effectively. I am pleased to join my colleagues in this bipartisan effort.”
In a letter to Wyden and Lummis, ABA President Bill Bay applauded the bill, “Extending protection to electronic communications between attorneys and their clients incarcerated in Bureau of Prisons (BOP) facilities has been a longstanding priority for the ABA. We urge Congress to enact this important bipartisan bill as soon as possible.”
Bay continued, “The attorney-client privilege is fundamental to our system of justice and critical to the work of lawyers who must rely on candid, confidential communications with their clients to render competent legal advice under law. While unmonitored telephone calls, U.S. mail, and in-person meetings between attorneys and their incarcerated clients in BOP facilities are already protected communications, these often take days and weeks to arrange. Your bill would ensure the same protection is guaranteed for electronic messages, too: the most common, rapid, and cost-effective means of communication.”
Specifically, the Wyden-Lummis legislation would:
● Require the Department of Justice to ensure the BOP’s email system excludes from monitoring the contents of privileged electronic communications between incarcerated clients and their legal representatives;
● 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;
● Allow BOP to retain the contents of the electronic communications of an incarcerated person, and make these accessible to the person, only until their date of release from custody, after which these privileged communications are to be purged;
● Establish the narrow procedures for an investigative or law enforcement officer, pursuant to a warrant issued by a court, to access privileged electronic communication; and
● Allow for the suppression of evidence obtained or derived from access to the retained contents if such contents were accessed in violation of the Act.
The text of the bill is here.
A web version of this release is here.
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