September 21, 2020 - Issue: Vol. 166, No. 163 — Daily Edition116th Congress (2019 - 2020) - 2nd Session

[Pages H4576-H4579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         EFFECTIVE ASSISTANCE OF COUNSEL IN THE DIGITAL ERA ACT

  Ms. SCANLON. Mr. Speaker, I move to suspend the rules and pass 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.

[[Page H4577]]

  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 5546

       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).

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Pennsylvania (Ms. Scanlon) and the gentleman from North Dakota (Mr. 
Armstrong) each will control 20 minutes.
  The Chair recognizes the gentlewoman from Pennsylvania.


                             General Leave

  Ms. SCANLON. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days to revise and extend their remarks and 
include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Pennsylvania?
  There was no objection.
  Ms. SCANLON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, H.R. 5546, the Effective Assistance of Counsel in the 
Digital Era Act would require the Federal Bureau of Prisons to 
establish a system to exempt from monitoring any privileged electronic 
communications between incarcerated individuals and their attorneys or 
legal representatives.
  The Sixth Amendment to the U.S. Constitution provides the right to 
counsel to assist in the defense of those accused of criminal offenses. 
In order to represent their clients in an effective manner, defense 
attorneys must have the ability to communicate candidly with their 
clients.
  The attorney-client privilege, which keeps communications between 
individuals and their attorneys confidential, exists, in part, to 
foster this sort of open communication.
  This privilege, of course, does not protect communications between a 
client and an attorney made in furtherance of, or in order to cover up 
a crime or fraud, also known as the crime-fraud exception. But to 
ensure free and open communication between individuals and their 
attorneys--a fundamental component of the effective assistance of 
counsel guaranteed by the Constitution--other communications between 
them may remain private.
  It goes without saying that defendants who are not in custody are 
less constrained in their ability to have candid conversations with 
their attorneys than those defendants who are in custody.
  Generally speaking, out-of-custody defendants can go to their 
attorneys' offices, speak with them freely on the phone, or write 
letters back and forth with their attorneys without fear of 
interference. To an extent, in-custody defendants also have these 
protections: Bureau of Prisons regulations ensure that inmates are able 
to meet with their attorneys without auditory supervision, and that 
they can talk on the phone and exchange letters with their attorneys 
without monitoring.
  But these same protections do not apply to email communications for 
the nearly 150,000 individuals currently in the Bureau of Prisons' 
custody, many of whom are in pretrial detention and have not been 
convicted of any crime.
  Since 2009, email communications have been available for Bureau of 
Prisons inmates through a system known as TRULINCS. TRULINCS requires 
inmates and their contacts to consent to monitoring, however, even in 
the case of communications between inmates and their attorneys.
  Over a decade ago, BOP clearly recognized the growing importance of 
email for purposes of efficiency and speed of communication between 
inmates and their outside contacts. Over time, email has rapidly grown 
into a primary means of communication between inmates and their 
attorneys, but without a system in place to maintain attorney-client 
privilege. Without that system, the Bureau of Prisons risks severely 
hindering the effective representation of inmates. It is even more 
important for us to enable these confidential communications at this 
point in time, given that the pandemic has severely hampered the 
ability of attorneys to meet with their clients in person.
  It is well past time to rectify this problem. I am pleased that H.R. 
5546 would do just that, by requiring BOP to put in place a system that 
will exempt

[[Page H4578]]

from monitoring any privileged electronic communications between 
incarcerated individuals and their attorneys or legal representatives.
  The bill also includes additional protections, including the 
requirement that the contents of electronic communications be destroyed 
when an inmate is released from prison, as well as authorizing the 
suppression of evidence obtained or derived from access to information 
in violation of provisions set forth in this bill.
  This is an important bill, and one that has been needed for quite 
some time. I commend our colleagues, Representatives Hakeem Jeffries 
and Doug Collins, for their efforts and leadership in developing this 
bipartisan piece of legislation.
  Mr. Speaker, I urge all of my colleagues to join me in support of 
this bill today, and I reserve the balance of my time.
  Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise today in support of H.R. 5546, the Effective 
Assistance of Counsel in the Digital Era Act.
  As a defense attorney, I cannot overemphasize the importance of 
protecting attorney-client privilege. The ability to have confidential 
discussions with a client for the purpose of providing legal advice is 
foundational to providing effective assistance of counsel.
  This bill will help modernize our criminal justice system by 
extending attorney-client privilege to electronic communications sent 
or received through the Bureau of Prisons' email system.
  This will allow incarcerated individuals to communicate with their 
attorneys efficiently and privately. And it would prohibit the Bureau 
of Prisons from monitoring privileged email communications.
  We all agree that attorney-client privilege is a vital component of 
our legal system, as it helps to ensure that a criminal defendant has 
an effective advocate in the courtroom.
  Emails between incarcerated individuals and their attorneys should 
absolutely fall under attorney-client protections. This bill would 
protect the rights of incarcerated men and women to speak openly and 
honestly with their attorneys via email without fear that the 
prosecution is monitoring those communications.

  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 could 
take hours to travel to a detention facility and visit with that 
client.
  H.R. 5546 requires the Attorney General to ensure that BOP's email 
system excludes the contents of electronic communications between an 
incarcerated person and his or her attorney.
  The bill stipulates that the protections and limitations associated 
with attorney-client privilege, including the crime-fraud exception, 
apply to electronic communications. It does permit BOP to retain 
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 to suppress evidence obtained or derived 
from access to the retained contents if such access were granted in 
violation of the act.
  Congress must continually address the application of existing law to 
emerging technology. This is a commonsense application of existing law 
to a technology that is decades old. It is time we act.
  Mr. Speaker, I urge my colleagues to join me in supporting H.R. 5546, 
and I reserve the balance of my time.
  Ms. SCANLON. Mr. Speaker, I yield 5 minutes to the gentleman from New 
York (Mr. Jeffries).
  Mr. JEFFRIES. Mr. Speaker, I thank the distinguished gentlewoman from 
the Commonwealth of Pennsylvania for her leadership and for yielding.
  Mr. Speaker, I rise in support of H.R. 5546, the Effective Assistance 
of Counsel in the Digital Era Act.
  The Sixth Amendment to the United States Constitution provides that 
in all criminal prosecutions the accused shall have the assistance of 
counsel for his defense.
  To effectively represent a client and provide the best possible legal 
advice, an attorney must be fully informed about the facts of the case. 
But this can only be achieved through confidential communication 
between the attorney and their client. That is why the attorney-client 
privilege is so critical.
  The Supreme Court stated in Lanza v. New York that ``even in a jail, 
or perhaps especially there, the relationships which the law has 
endowed with particularized confidentiality must continue to receive 
unceasing protection.''
  There are nearly 127,000 individuals currently in BOP custody, many 
of whom are in pretrial detention and have not been convicted of a 
crime. These Americans are innocent until proven guilty. Like any 
person involved in a criminal proceeding, these individuals need to be 
able to confidentially communicate with their attorneys in order to 
vindicate their rights under law.
  The bipartisan Effective Assistance of Counsel in the Digital Era Act 
will enable incarcerated individuals to communicate with their legal 
representatives privately, efficiently, and safely by prohibiting the 
Bureau of Prisons from monitoring privileged electronic communications.
  While BOP regulations place protections on attorney visits, phone 
calls, and traditional mail, no such protections currently exist in the 
context of email communications sent through BOP's electronic mail 
service, the Trust Fund Limited Inmate Computer System, otherwise known 
as TRULINCS. The TRULINCS email system has become the easiest, fastest, 
and most efficient method of communication available to incarcerated 
individuals and their attorneys.
  Even a brief client visit can take hours, as the distinguished 
gentleman from North Dakota pointed out, hours out of an attorney's day 
when you include travel and wait times. Confidential phone calls are 
often subject to time limitations and cannot usually be scheduled 
immediately.

                              {time}  1415

  Postal mail can take an especially long time to reach an incarcerated 
individual because it must first be opened and screened. These delays 
should be unnecessary in a prison system that currently permits 
electronic communications and would be if the attorney-client privilege 
was consistently applied to email communication.
  The situation has become even more urgent in light of BOP's decision 
to suspend legal visits as part of its COVID-19 Modified Operations 
Plan.
  To solve this challenge, H.R. 5546 would require the Attorney General 
to ensure that the BOP email system excludes from monitoring the 
contents of electronic communications between an incarcerated person 
and their attorney.
  BOP would, of course, be allowed to retain the contents of those 
messages up until the incarcerated person is released, but they would 
be accessible only under very limited circumstances. The bill also 
allows a court to suppress evidence that is obtained or derived from 
illegal access to the retained contents.
  Our criminal justice system depends on the attorney-client privilege 
to ensure that lawyers are able to effectively represent their clients. 
That is why this legislation is so critical.
  I thank my good friend, Representative Doug Collins, Chairman Jerry 
Nadler, and Ranking Member   Jim Jordan for their leadership, as well 
as Members on both sides of the aisle.
  I also thank the ACLU, the American Bar Association, Americans for 
Prosperity, #cut50, Due Process Institute, Faith and Freedom Coalition, 
Families Against Mandatory Minimums, Federal Defenders, FreedomWorks, 
National Action Network, National Association of Criminal Defense 
Lawyers, Prison Fellowship, and Right on Crime for their support of 
this legislation.
  Mr. Speaker, I urge my colleagues to vote ``yes'' on H.R. 5546.
  Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may 
consume.
  I do appreciate this bill, and the only question I sometimes have is 
that it seems like email has been around for a long time, and we are 
just getting to it, but better later than never.
  But I also think it is really important to recognize a lot of these 
cases are public defense cases. You will have public defenders who have 
bigger caseloads than we would like sometimes

[[Page H4579]]

and clients that don't necessarily trust the system.
  This is good for defendants. This is good for lawyers. This is good 
for overall faith in the criminal justice system. It protects people, 
and it doesn't just protect the client who that public defender is 
recognizing. It helps all of his other clients if he or she can 
communicate with all of their clients quicker and more efficiently.
  This is a really good bill. I urge everybody to support it, and I 
yield back the balance of my time.
  Ms. SCANLON. Mr. Speaker, H.R. 5546 is an important measure to 
reinforce the attorney-client privilege, an issue that is essential to 
the fair administration of our criminal justice system and one that is 
even more urgent in this pandemic.
  For all the reasons discussed here today, I urge my colleagues to 
join me in supporting this bipartisan legislation, and I yield back the 
balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Pennsylvania (Ms. Scanlon) that the House suspend the 
rules and pass the bill, H.R. 5546.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________