[Congressional Record Volume 166, Number 163 (Monday, September 21, 2020)]
[House]
[Pages H4576-H4579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EFFECTIVE ASSISTANCE OF COUNSEL IN THE DIGITAL ERA ACT
Ms. SCANLON. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 5546) 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.
[[Page H4577]]
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5546
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).
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
Pennsylvania (Ms. Scanlon) and the gentleman from North Dakota (Mr.
Armstrong) each will control 20 minutes.
The Chair recognizes the gentlewoman from Pennsylvania.
General Leave
Ms. SCANLON. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from Pennsylvania?
There was no objection.
Ms. SCANLON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 5546, the Effective Assistance of Counsel in the
Digital Era Act would require the Federal Bureau of Prisons to
establish a system to exempt from monitoring any privileged electronic
communications between incarcerated individuals and their attorneys or
legal representatives.
The Sixth Amendment to the U.S. Constitution provides the right to
counsel to assist in the defense of those accused of criminal offenses.
In order to represent their clients in an effective manner, defense
attorneys must have the ability to communicate candidly with their
clients.
The attorney-client privilege, which keeps communications between
individuals and their attorneys confidential, exists, in part, to
foster this sort of open communication.
This privilege, of course, does not protect communications between a
client and an attorney made in furtherance of, or in order to cover up
a crime or fraud, also known as the crime-fraud exception. But to
ensure free and open communication between individuals and their
attorneys--a fundamental component of the effective assistance of
counsel guaranteed by the Constitution--other communications between
them may remain private.
It goes without saying that defendants who are not in custody are
less constrained in their ability to have candid conversations with
their attorneys than those defendants who are in custody.
Generally speaking, out-of-custody defendants can go to their
attorneys' offices, speak with them freely on the phone, or write
letters back and forth with their attorneys without fear of
interference. To an extent, in-custody defendants also have these
protections: Bureau of Prisons regulations ensure that inmates are able
to meet with their attorneys without auditory supervision, and that
they can talk on the phone and exchange letters with their attorneys
without monitoring.
But these same protections do not apply to email communications for
the nearly 150,000 individuals currently in the Bureau of Prisons'
custody, many of whom are in pretrial detention and have not been
convicted of any crime.
Since 2009, email communications have been available for Bureau of
Prisons inmates through a system known as TRULINCS. TRULINCS requires
inmates and their contacts to consent to monitoring, however, even in
the case of communications between inmates and their attorneys.
Over a decade ago, BOP clearly recognized the growing importance of
email for purposes of efficiency and speed of communication between
inmates and their outside contacts. Over time, email has rapidly grown
into a primary means of communication between inmates and their
attorneys, but without a system in place to maintain attorney-client
privilege. Without that system, the Bureau of Prisons risks severely
hindering the effective representation of inmates. It is even more
important for us to enable these confidential communications at this
point in time, given that the pandemic has severely hampered the
ability of attorneys to meet with their clients in person.
It is well past time to rectify this problem. I am pleased that H.R.
5546 would do just that, by requiring BOP to put in place a system that
will exempt
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from monitoring any privileged electronic communications between
incarcerated individuals and their attorneys or legal representatives.
The bill also includes additional protections, including the
requirement that the contents of electronic communications be destroyed
when an inmate is released from prison, as well as authorizing the
suppression of evidence obtained or derived from access to information
in violation of provisions set forth in this bill.
This is an important bill, and one that has been needed for quite
some time. I commend our colleagues, Representatives Hakeem Jeffries
and Doug Collins, for their efforts and leadership in developing this
bipartisan piece of legislation.
Mr. Speaker, I urge all of my colleagues to join me in support of
this bill today, and I reserve the balance of my time.
Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today in support of H.R. 5546, the Effective
Assistance of Counsel in the Digital Era Act.
As a defense attorney, I cannot overemphasize the importance of
protecting attorney-client privilege. The ability to have confidential
discussions with a client for the purpose of providing legal advice is
foundational to providing effective assistance of counsel.
This bill will help modernize our criminal justice system by
extending attorney-client privilege to electronic communications sent
or received through the Bureau of Prisons' email system.
This will allow incarcerated individuals to communicate with their
attorneys efficiently and privately. And it would prohibit the Bureau
of Prisons from monitoring privileged email communications.
We all agree that attorney-client privilege is a vital component of
our legal system, as it helps to ensure that a criminal defendant has
an effective advocate in the courtroom.
Emails between incarcerated individuals and their attorneys should
absolutely fall under attorney-client protections. This bill would
protect the rights of incarcerated men and women to speak openly and
honestly with their attorneys via email without fear that the
prosecution is monitoring those communications.
Other methods of communication, such as in-person meetings and
letters, can be particularly burdensome and time consuming. Even if an
attorney is in close proximity to the incarcerated client, it could
take hours to travel to a detention facility and visit with that
client.
H.R. 5546 requires the Attorney General to ensure that BOP's email
system excludes the contents of electronic communications between an
incarcerated person and his or her attorney.
The bill stipulates that the protections and limitations associated
with attorney-client privilege, including the crime-fraud exception,
apply to electronic communications. It does permit BOP to retain
electronic communications until the incarcerated person is released but
specifies that the contents may only be accessed under very limited
circumstances.
Finally, it allows a court to suppress evidence obtained or derived
from access to the retained contents if such access were granted in
violation of the act.
Congress must continually address the application of existing law to
emerging technology. This is a commonsense application of existing law
to a technology that is decades old. It is time we act.
Mr. Speaker, I urge my colleagues to join me in supporting H.R. 5546,
and I reserve the balance of my time.
Ms. SCANLON. Mr. Speaker, I yield 5 minutes to the gentleman from New
York (Mr. Jeffries).
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.
{time} 1415
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.
Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may
consume.
I do appreciate this bill, and the only question I sometimes have is
that it seems like email has been around for a long time, and we are
just getting to it, but better later than never.
But I also think it is really important to recognize a lot of these
cases are public defense cases. You will have public defenders who have
bigger caseloads than we would like sometimes
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and clients that don't necessarily trust the system.
This is good for defendants. This is good for lawyers. This is good
for overall faith in the criminal justice system. It protects people,
and it doesn't just protect the client who that public defender is
recognizing. It helps all of his other clients if he or she can
communicate with all of their clients quicker and more efficiently.
This is a really good bill. I urge everybody to support it, and I
yield back the balance of my time.
Ms. SCANLON. Mr. Speaker, H.R. 5546 is an important measure to
reinforce the attorney-client privilege, an issue that is essential to
the fair administration of our criminal justice system and one that is
even more urgent in this pandemic.
For all the reasons discussed here today, I urge my colleagues to
join me in supporting this bipartisan legislation, and I yield back the
balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from Pennsylvania (Ms. Scanlon) that the House suspend the
rules and pass the bill, H.R. 5546.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________