[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10450 Introduced in House (IH)]
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118th CONGRESS
2d Session
H. R. 10450
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 17, 2024
Ms. Dean of Pennsylvania (for herself, Ms. Lee of Florida, Mr.
Jeffries, and Mr. Bacon) introduced the following bill; which was
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
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).
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