[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5546 Referred in Senate (RFS)]

<DOC>
116th CONGRESS
  2d Session
                                H. R. 5546


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 22, 2020

  Received; read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
    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.

    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).

            Passed the House of Representatives September 21, 2020.

            Attest:

                                             CHERYL L. JOHNSON,

                                                                 Clerk.