[House Report 116-507]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-507
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EFFECTIVE ASSISTANCE OF COUNSEL IN THE DIGITAL ERA ACT
_______
September 16, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5546]
The Committee on the Judiciary, to whom was referred 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, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 4
Duplication of Federal Programs.................................. 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Purpose and Summary
H.R. 5546, the ``Effective Assistance of Counsel in the
Digital Era Act,'' would prohibit the Federal Bureau of Prisons
(BOP) from monitoring privileged electronic communications
between incarcerated individuals and their attorneys or legal
representatives. The protections and limitations associated
with the attorney-client privilege--including the crime-fraud
exception\1\--would apply to electronic communications sent or
received through the new (or modified) BOP email system. BOP
would be permitted to retain the contents of electronic
communications until the incarcerated person is released. Those
contents would be accessible, but only under very limited
circumstances. The bill would also allow a court to suppress
evidence obtained or derived from access to the retained
contents if such contents were accessed in violation of the
procedures and rules set forth in the bill.
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\1\If a communication between a client and an attorney is made in
furtherance of or in order to cover up a crime or fraud, it is not
protected by the attorney-client privilege.
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Background and Need for the Legislation
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.''\2\ Confidential
communication between attorneys and their clients is an
essential component of effective representation in a criminal
prosecution. The principle of client-lawyer confidentiality is
given effect by rules established in professional ethics, which
generally prohibit a lawyer from revealing information relating
to the representation of a client.\3\
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\2\ U.S. Const. amend. VI.
\3\Model Rules of Prof'l Conduct R. 1.6(a) (2018).
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There are over 130,000 individuals currently in BOP
custody, many of whom are in pretrial detention and have not
been convicted of a crime.\4\ Like any person involved in a
criminal proceeding, these individuals need to be able to
communicate confidentially with their attorneys. As technology
has advanced, email has come to replace mail in many instances
of daily life, and that is certainly the case for its use in
the legal context. The increased use of email among legal
counsel is in part due to the fact that it does not require
another person's availability, it provides a written version of
a conversation, and it can be saved and easily accessed
later.\5\
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\4\Population Statistics, Fed. Bureau of Prisons, https://
www.bop.gov/mobile/about/population_statistics.jsp#pop_totals (last
updated July 9, 2020).
\5\Robert E. Crotty, Chapter 62: Litigation Management by Law
Firms, in 4A Commercial Litigation in New York State Courts Sec. 62: 41
(Robert L. Haig ed., 3d ed. 2014).
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But many defense lawyers do not use the BOP email system to
communicate with their clients because prosecutors have used
attorney-client emails as evidence in court.\6\ Failing to
extend the attorney-client privilege to the easiest, fastest
and most efficient method of communication available to inmates
and their lawyers places a significant burden on defense
attorneys' ability to represent incarcerated clients
effectively.
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\6\Stephanie Clifford, Prosecutors Are Reading Emails From Inmates
to Lawyers, N.Y. Times, July 22, 2014, https://www.nytimes.com/2014/07/
23/nyregion/us-is-reading-inmates-email-sent-to-lawyers.html.
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At present, BOP regulations ensure protections for attorney
visits, phone calls and mail in order to safeguard the
attorney-client privilege, but no such protections exist in the
context of email communications. BOP staff are prohibited from
subjecting visits between an inmate and their attorney to
auditory supervision\7\ or monitoring inmate calls to
attorneys.\8\ Furthermore, BOP treats mail from an attorney as
``Special Mail,'' which may not be read or copied if it is
properly marked and the sender is adequately identified on the
envelope.\9\
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\7\28 C.F.R. 543.13(e).
\8\28 C.F.R. 540.102.
\9\28 C.F.R. 540.18(a); 28 C.F.R. 540.2(c).
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Although electronic mail serves the same function as
traditional mail, no similar ``special mail'' regulation has
been issued by BOP for emails between attorneys and their
clients. Before using the Trust Fund Limited Inmate Computer
System (TRULINCS)--BOP's electronic mail service--inmates and
their contacts must consent to monitoring.\10\ Despite the
importance of the attorney-client privilege to an attorney's
ability to effectively represent an incarcerated client, BOP
does not currently extend the privilege to electronic
communications.
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\10\Communications, Fed. Bureau of Prisons, https://www.bop.gov/
inmates/communications.jsp (last visited Dec. 2, 2019)
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These limitations in attorney-client communications do not
exist for out-of-custody defendants. Moreover, when out-of-
custody defendants communicate with their attorneys via email,
these are generally covered by the attorney-client privilege,
even though the email provider can access the emails.\11\ In
the case of out-of-custody defendants, the attorney-client
privilege is protected in three ways. First, the warrant
requirement for law enforcement to obtain the contents of email
communications--although not limited to attorney-client
privileged communications--provides an independent check on the
government's ability to obtain privileged messages.\12\ Second,
the Department of Justice has a policy of obtaining high-level
sign-off authority before seeking this type of privileged
information.\13\ Finally, the Department of Justice might also
use a ``clean team'' (or ``taint team'') to review and
segregate out communications that are privileged from the view
of the prosecutors that are involved in a particular case.\14\
H.R. 5546 endeavors to extend these same protections to in-
custody defendants.
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\11\See Convertino v. U.S. Department of Justice, 674 F.Supp.2d 97
(D.D.C. 2009), rev'd on other ground, 684 F.3d 93 (D.C. Cir. 2012).
\12\See, e.g., United States v. Warshak, 631 F.3d 266, 284-88 (6th
Cir. 2010).
\13\See U.S. Dep't of Justice, Justice Manual 9-19.220; see also
id. 9-13.420 (2018) (explaining the process for obtaining materials
from an attorney who is a suspect, subject, or target of an
investigation).
\14\See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 520 (6th
Cir. 2006).
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Federal regulation has fallen behind technical developments
in attorney-client communication to the detriment of BOP
inmates. Moreover, the three methods of private communication
currently available to inmates and their attorneys--in-person
visits, phone calls, and mail--are inadequate because they are
time-consuming and inefficient.
Even in metropolitan areas like Brooklyn, NY, it can take
an attorney more than three hours round trip to travel to a
detention facility to visit a client.\15\ Additionally,
attorneys may have to wait hours for guards to bring a client
from his or her cell to the room where visits take place.\16\
Time spent in transit or waiting at the prison reduces an
attorney's ability to work on the client's case (or other
clients' cases). It goes without saying that the current
pandemic has only exacerbated these problems--with frequent
lockdowns and visitation restrictions often making it nearly
impossible for attorneys to communicate with their client
confidentially and reliably.
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\15\Joel Rose, When Prisoners Email Their Lawyers, It's Often Not
Confidential, NPR, Nov. 18, 2015, https://www.npr.org/sections/
alltechconsidered/2015/11/18/456496859/when-prisoners-email-their-
lawyers-its-often-not-confidential.
\16\Id.
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Confidential phone calls between an incarcerated person and
their attorney are often limited in time and require advanced
notice.\17\ Additionally, legal documents and other written
materials cannot be shared over the phone, and postal mail can
take up to two weeks to reach inmates. Such delays should be
unnecessary in a prison system that permits electronic
communication and would be if the attorney-client privilege
were consistently applied. Failing to extend the attorney-
client privilege to the easiest, fastest and most efficient
method of communication available to inmates and their lawyers
places a significant burden on defense attorneys' ability to
represent incarcerated clients effectively. H.R. 5546 addresses
this problem.
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\17\Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus
& Katherine Koehler, Reading the Prisoner's Letter: Attorney Client
Confidentiality in Inmate Correspondence, 109 J. Crim. L. & Criminology
559 (2019) https://scholarlycommons.law.northwestern.edu/jclc/vol109/
iss3/3/.
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Hearings
On October 17, 2019, the Subcommittee on Crime, Terrorism,
and Homeland Security held a hearing titled, ``Oversight of the
Federal Bureau of Prisons and Implementation of the First Step
Act,'' which discussed various aspects of the operation of the
Bureau of Prisons.
Committee Consideration
On March 11, 2020, the Committee met in open session and
ordered the bill, H.R. 5546, favorably reported, by a voice
vote, a quorum being present.
Committee Votes
No record votes occurred during the Committee's
consideration of H.R. 5546.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report. These include conclusions
by the Committee following the October 17, 2019, oversight
hearing on the Federal Bureau of Prisons, including the
testimony of the Honorable Kathleen Hawk Sawyer, Director of
the Bureau of Prisons.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office (CBO). The Committee
has requested but not received from the Director of the CBO a
statement as to whether this bill contains any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures.
Duplication of Federal Programs
No provision of H.R. 5546 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5546 would facilitate the Federal government's ability to
comply with and facilitate the provision of confidential
communications between attorneys and detained criminal
defendants.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5546 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title. Section 1 sets forth the short
title of the bill as the ``Effective Assistance of Counsel in
the Digital Era Act.''
Sec. 2. Electronic communications between an incarcerated
person and the person's attorney. Section 2 directs the
Attorney General to create, within 180 days from enactment of
the bill, a program or system (or to modify an existing program
or system) for sending or receiving electronic communications
used by persons in custody of the U.S. Marshals or the Bureau
of Prisons that excludes from monitoring any privileged
communications. Privileged communications are defined as those
between an incarcerated person and a potential, current or
former attorney, or legal representative or any agent of such.
The bill would mandate that any existing program or system of
electronic communication remain in place only for non-
privileged communications. The bill would also allow BOP to
retain the contents of the electronic communications of an
incarcerated person (including privileged communications), and
make these accessible to the person, only until the date they
are released from prison. The attorney-client privilege--and
any protections and limitations associated with it (such as the
crime-fraud exception\18\) would apply to the new program or
system established or modified. The contents of communications
under this new or modified electronic communications system
would only be accessible by the incarcerated person for whom
they are retained, except also by (1) the Attorney General when
creating, modifying, or maintaining the program or system of
electronic communication (but the Attorney General may not
review the accessed contents) or (2) an investigative or law
enforcement officer pursuant to a warrant issued by a court
following procedures set forth in the Federal Rules of Criminal
Procedure, but only with the express approval of a U.S.
Attorney or an Assistant Attorney General. The bill sets forth
a procedure that would mandate review of contents by a U.S.
Attorney before a warrant may be sought, in order to ensure
that privileged communications are not accessible. The bill
would further bar the particular U.S. Attorney who reviews
retained contents from participating in any legal proceeding in
which the person whose retained contents were reviewed is a
defendant or from sharing the contents with an attorney
participating in such legal proceedings. The bill would provide
that a court may suppress evidence obtained or derived from
access to contents that have been obtained in the violation of
the procedures set forth in the bill.
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\18\See supra note 1.
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Finally, the bill defines various terms used in the bill,
including: ``agent of an attorney or legal representative'',
``contents'', ``electronic communication'', ``monitoring'',
``incarcerated person'', and ``privileged electronic
communication.''
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