[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5580 Introduced in Senate (IS)]
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118th CONGRESS
2d Session
S. 5580
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 SENATE OF THE UNITED STATES
December 18 (legislative day, December 16), 2024
Mr. Wyden (for himself and Ms. Lummis) introduced the following bill;
which was read twice and 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) Definitions.--In this section--
(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''--
(A) has the meaning given such term in section 2510
of title 18, United States Code; and
(B) includes the Trust Fund Limited Inmate Computer
System;
(4) 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;
(5) the term ``monitoring'' means accessing the contents of
an electronic communication at the time that, or anytime after,
such communication is sent; and
(6) the term ``privileged electronic communication''
means--
(A) an electronic communication between an
incarcerated person and a potential, current, or former
attorney or legal representative of the incarcerated
person that falls within the legally recognized scope
of attorney-client privilege and is subject to the
limitations or exceptions associated with such
privilege; and
(B) an electronic communication between an
incarcerated person and the agent of an attorney or
legal representative described in subparagraph (A).
(b) Prohibition on Monitoring.--Not later than 2 years after the
date of enactment of this Act, the Attorney General shall issue a
report regarding, establish guidelines for, and create a program or
system, or modify a program or system that exists on the date of
enactment of this Act, through which an incarcerated person may send or
receive an electronic communication that excludes from monitoring the
contents of any privileged electronic communication.
(c) Features of Program or System.--The program or system created
or modified under subsection (b) shall comply with the following:
(1) Retention of contents.--The Bureau of Prisons may
retain, and provide access by an incarcerated person to, the
contents of electronic communications, including the contents
of privileged electronic communications, of the incarcerated
person until the date on which the incarcerated person is
released from the custody of the Bureau of Prisons or the
United States Marshals Service.
(2) Attorney-client privilege.--Attorney-client privilege,
and the protections and limitations associated with such
privilege (including the crime fraud exception), shall apply to
electronic communications sent or received through the program
or system.
(d) Accessing Retained Communications.--
(1) In general.--Privileged electronic communications
retained under subsection (c)(1) may only be accessed by or
provided to a person other than the incarcerated person for
whom such privileged electronic communications are retained in
accordance with paragraphs (2) and (3) of this subsection.
(2) Attorney general.--The Attorney General, or a designee,
may only access such privileged electronic communications if
necessary for the purpose of creating and maintaining the
program or system created or modified under subsection (b), or
any modification to the program or system. The Attorney General
may not review the contents of privileged electronic
communications pursuant to this paragraph.
(3) Investigative and law enforcement officers.--
(A) Warrant.--
(i) In general.--Such privileged electronic
communications may only be accessed and the
contents of such privileged electronic
communications may only be reviewed 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) Waiver.--An incarcerated person may
waive the requirement to obtain a warrant under
clause (i).
(iii) Approval.--No application for such a
warrant may be made to a court without the
express approval of a United States attorney,
an Assistant Attorney General, or a designee
thereof.
(B) Privileged information.--The Attorney General
shall establish procedures concerning the review of
privileged electronic communications under subparagraph
(A), which shall include the following:
(i) Review.--Before the contents of such
privileged electronic communications may be
reviewed by an investigative or law enforcement
officer pursuant to a warrant described in
subparagraph (A), the privileged electronic
communications shall be reviewed by a United
States attorney, an Assistant Attorney General,
or a designee to determine if a limitation or
exception to the attorney-client privilege
applies to any of the privileged electronic
communications.
(ii) Barring participation.--A United
States attorney, an Assistant Attorney General,
or a designee who reviews privileged electronic
communications pursuant to clause (i) shall be
barred from--
(I) participating in a legal
proceeding in which an individual who
sent or received such a privileged
electronic communication is a
defendant; or
(II) sharing with an attorney who
is participating in such a legal
proceeding such a privileged electronic
communication.
(4) Motion to suppress.--Upon motion of a defendant, a
court may suppress evidence obtained or derived from accessing
privileged electronic communications or reviewing the contents
of privileged electronic communications in violation of this
subsection.
(e) Notice Until Program or System Is Operational.--The Attorney
General shall provide written notice to each individual who is an
incarcerated person at any time during the period beginning on the date
of enactment of this Act and ending on the date on which the program or
system created or modified under subsection (b) is operational that the
privileged electronic communications of the individual are subject to
monitoring.
(f) Rules of Construction.--
(1) Inapplicability to non-privileged electronic
communications.--Nothing in this section shall be construed to
limit the ability of investigative or law enforcement officers
to monitor, record, access, review, or retain nonprivileged
electronic communications of an incarcerated person.
(2) Verification of agent of an attorney or legal
representative.--Nothing in this section shall limit the
authority of the Bureau of Prisons to establish policies that
require a potential, current, or former attorney or legal
representative to verify their identity, employment status, or
licensure to practice law prior to being granted authorization
to receive or send electronic communications from or to an
incarcerated person.
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