WASHINGTON — Rep. Doug Collins (R-Ga.), Ranking Member of the House Judiciary Committee, made the following opening statement at today’s markup of H.R. 5546.
Below are the remarks as prepared.
Ranking Member Collins: Mr. Chairman, thank you for bringing H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act, before us today. This act would help modernize our criminal justice system by extending attorney-client privilege to electronic communications sent or received through the Bureau of Prisons’ (BOP) email system and 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. This bill would protect the rights of incarcerated men and women to speak openly and honestly with their attorneys online without fear that those communications are being monitored by the prosecution.
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 can take hours to travel to a detention facility and visit with the client. 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. Telephone calls in prison can be expensive and difficult to schedule. Additionally, legal documents and other written materials cannot be shared over the phone, and postal mail can take weeks to reach inmates.
H.R. 5546 requires the attorney general to ensure that BOP’s email system does not monitor electronic communications between an incarcerated person and his or her attorney or an agent of his or her attorney. It 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. It 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. Finally, it 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.
I want to thank my friend and colleague, the gentleman from New York, Mr. Jeffries, for joining me in introducing this legislation, and I urge my colleagues to join me in supporting H.R. 5546.