“The Effective Assistance of Counsel in the Digital Era Act would protect the rights of incarcerated men and women to speak openly and honestly with their attorneys online.”

WASHINGTON — Reps. Doug Collins (R-Ga.), Ranking Member of the House Judiciary Committee, and Hakeem Jeffries (D-N.Y.), Chairman of the House Democratic Caucus, introduced the bipartisan Effective Assistance of Counsel in the Digital Era Act.

This legislation would bring prison regulations into the 21st century by applying the attorney-client privilege to electronic communications sent or received through the Bureau of Prisons’ (BOP) email system. Other forms of communication, including telephone calls, currently receive this kind of protection. Unlike other forms of communication, inmates who use the email system at BOP facilities must currently consent to government review of their attorney-client communications, the contents of which can be accessed by prosecutors. This bill would prohibit BOP from monitoring privileged email communications, allowing incarcerated individuals to communicate with their attorneys efficiently and privately.

“Attorney-client privilege is a pivotal part of our legal system because it helps ensure fairness. Emails between those incarcerated and their attorneys should fall under attorney-client protections, but currently that’s not the case. The Effective Assistance of Counsel in the Digital Era Act would protect the rights of incarcerated men and women to speak openly and honestly with their attorneys online. I appreciate Hakeem Jeffries’ leadership on this legislation, and I look forward to continue working with him on criminal justice reform,” said Collins.

“Most fair-minded people would agree that our system of justice requires a dynamic where individuals are able to have the effective assistance of counsel necessary to adequately defend themselves. Email is the most efficient way for an attorney to communicate with an incarcerated client and should enjoy the same protection as telephone calls and other forms of private communication. Congressman Collins should be thanked and commended for his leadership in this regard,” said Jeffries.

Other methods of communication besides email can be especially burdensome and time consuming. Even in metropolitan areas like New York, it can take an attorney more than three-hours round trip to travel to a detention facility to visit a client. Additionally, attorneys may have to wait hours for guards to bring a client from his or her cell to the room where visits occur. 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). Moreover, confidential phone calls between an incarcerated person and his or her 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 inmates.

Background on the Effective Assistance of Counsel in the Digital Era Act:

  • Requires the attorney general to ensure that BOP’s email system excludes from monitoring the contents of electronic communications between an incarcerated person and his or her attorney or an agent of his or her attorney;
  • Stipulates 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;
  • Permits 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
  • Allows 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.

Supporters of the bill include: American Civil Liberties Union, American Bar Association, Americans for Prosperity, #cut50, Due Process Institute, Faith & Freedom Coalition, Families Against Mandatory Minimums, Federal Defenders, FreedomWorks, National Action Network, National Association of Criminal Defense Lawyers, Prison Fellowship and Right on Crime.