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116th Congress     }                                   {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                   {      116-507

======================================================================



 
         EFFECTIVE ASSISTANCE OF COUNSEL IN THE DIGITAL ERA ACT

                                _______
                                

 September 16, 2020.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5546]

    The Committee on the Judiciary, to whom was referred 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, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures and Congressional 
  Budget Office Cost Estimate....................................     4
Duplication of Federal Programs..................................     5
Performance Goals and Objectives.................................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     5

                          Purpose and Summary

    H.R. 5546, the ``Effective Assistance of Counsel in the 
Digital Era Act,'' would prohibit the Federal Bureau of Prisons 
(BOP) from monitoring privileged electronic communications 
between incarcerated individuals and their attorneys or legal 
representatives. The protections and limitations associated 
with the attorney-client privilege--including the crime-fraud 
exception\1\--would apply to electronic communications sent or 
received through the new (or modified) BOP email system. BOP 
would be permitted to retain the contents of electronic 
communications until the incarcerated person is released. Those 
contents would be accessible, but only under very limited 
circumstances. The bill would also allow a court to suppress 
evidence obtained or derived from access to the retained 
contents if such contents were accessed in violation of the 
procedures and rules set forth in the bill.
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    \1\If a communication between a client and an attorney is made in 
furtherance of or in order to cover up a crime or fraud, it is not 
protected by the attorney-client privilege.
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                Background and Need for the Legislation

    The Sixth Amendment to the U.S. Constitution provides that 
``in all criminal prosecutions, the accused shall . . . have 
the Assistance of Counsel for his defence.''\2\ Confidential 
communication between attorneys and their clients is an 
essential component of effective representation in a criminal 
prosecution. The principle of client-lawyer confidentiality is 
given effect by rules established in professional ethics, which 
generally prohibit a lawyer from revealing information relating 
to the representation of a client.\3\
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    \2\ U.S. Const. amend. VI.
    \3\Model Rules of Prof'l Conduct R. 1.6(a) (2018).
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    There are over 130,000 individuals currently in BOP 
custody, many of whom are in pretrial detention and have not 
been convicted of a crime.\4\ Like any person involved in a 
criminal proceeding, these individuals need to be able to 
communicate confidentially with their attorneys. As technology 
has advanced, email has come to replace mail in many instances 
of daily life, and that is certainly the case for its use in 
the legal context. The increased use of email among legal 
counsel is in part due to the fact that it does not require 
another person's availability, it provides a written version of 
a conversation, and it can be saved and easily accessed 
later.\5\
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    \4\Population Statistics, Fed. Bureau of Prisons, https://
www.bop.gov/mobile/about/population_statistics.jsp#pop_totals (last 
updated July 9, 2020).
    \5\Robert E. Crotty, Chapter 62: Litigation Management by Law 
Firms, in 4A Commercial Litigation in New York State Courts Sec. 62: 41 
(Robert L. Haig ed., 3d ed. 2014).
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    But many defense lawyers do not use the BOP email system to 
communicate with their clients because prosecutors have used 
attorney-client emails as evidence in court.\6\ Failing to 
extend the attorney-client privilege to the easiest, fastest 
and most efficient method of communication available to inmates 
and their lawyers places a significant burden on defense 
attorneys' ability to represent incarcerated clients 
effectively.
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    \6\Stephanie Clifford, Prosecutors Are Reading Emails From Inmates 
to Lawyers, N.Y. Times, July 22, 2014, https://www.nytimes.com/2014/07/
23/nyregion/us-is-reading-inmates-email-sent-to-lawyers.html.
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    At present, BOP regulations ensure protections for attorney 
visits, phone calls and mail in order to safeguard the 
attorney-client privilege, but no such protections exist in the 
context of email communications. BOP staff are prohibited from 
subjecting visits between an inmate and their attorney to 
auditory supervision\7\ or monitoring inmate calls to 
attorneys.\8\ Furthermore, BOP treats mail from an attorney as 
``Special Mail,'' which may not be read or copied if it is 
properly marked and the sender is adequately identified on the 
envelope.\9\
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    \7\28 C.F.R. 543.13(e).
    \8\28 C.F.R. 540.102.
    \9\28 C.F.R. 540.18(a); 28 C.F.R. 540.2(c).
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    Although electronic mail serves the same function as 
traditional mail, no similar ``special mail'' regulation has 
been issued by BOP for emails between attorneys and their 
clients. Before using the Trust Fund Limited Inmate Computer 
System (TRULINCS)--BOP's electronic mail service--inmates and 
their contacts must consent to monitoring.\10\ Despite the 
importance of the attorney-client privilege to an attorney's 
ability to effectively represent an incarcerated client, BOP 
does not currently extend the privilege to electronic 
communications.
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    \10\Communications, Fed. Bureau of Prisons, https://www.bop.gov/
inmates/communications.jsp (last visited Dec. 2, 2019)
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    These limitations in attorney-client communications do not 
exist for out-of-custody defendants. Moreover, when out-of-
custody defendants communicate with their attorneys via email, 
these are generally covered by the attorney-client privilege, 
even though the email provider can access the emails.\11\ In 
the case of out-of-custody defendants, the attorney-client 
privilege is protected in three ways. First, the warrant 
requirement for law enforcement to obtain the contents of email 
communications--although not limited to attorney-client 
privileged communications--provides an independent check on the 
government's ability to obtain privileged messages.\12\ Second, 
the Department of Justice has a policy of obtaining high-level 
sign-off authority before seeking this type of privileged 
information.\13\ Finally, the Department of Justice might also 
use a ``clean team'' (or ``taint team'') to review and 
segregate out communications that are privileged from the view 
of the prosecutors that are involved in a particular case.\14\ 
H.R. 5546 endeavors to extend these same protections to in-
custody defendants.
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    \11\See Convertino v. U.S. Department of Justice, 674 F.Supp.2d 97 
(D.D.C. 2009), rev'd on other ground, 684 F.3d 93 (D.C. Cir. 2012).
    \12\See, e.g., United States v. Warshak, 631 F.3d 266, 284-88 (6th 
Cir. 2010).
    \13\See U.S. Dep't of Justice, Justice Manual 9-19.220; see also 
id. 9-13.420 (2018) (explaining the process for obtaining materials 
from an attorney who is a suspect, subject, or target of an 
investigation).
    \14\See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 520 (6th 
Cir. 2006).
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    Federal regulation has fallen behind technical developments 
in attorney-client communication to the detriment of BOP 
inmates. Moreover, the three methods of private communication 
currently available to inmates and their attorneys--in-person 
visits, phone calls, and mail--are inadequate because they are 
time-consuming and inefficient.
    Even in metropolitan areas like Brooklyn, NY, it can take 
an attorney more than three hours round trip to travel to a 
detention facility to visit a client.\15\ Additionally, 
attorneys may have to wait hours for guards to bring a client 
from his or her cell to the room where visits take place.\16\ 
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). It goes without saying that the current 
pandemic has only exacerbated these problems--with frequent 
lockdowns and visitation restrictions often making it nearly 
impossible for attorneys to communicate with their client 
confidentially and reliably.
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    \15\Joel Rose, When Prisoners Email Their Lawyers, It's Often Not 
Confidential, NPR, Nov. 18, 2015, https://www.npr.org/sections/
alltechconsidered/2015/11/18/456496859/when-prisoners-email-their-
lawyers-its-often-not-confidential.
    \16\Id.
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    Confidential phone calls between an incarcerated person and 
their attorney are often limited in time and require advanced 
notice.\17\ Additionally, legal documents and other written 
materials cannot be shared over the phone, and postal mail can 
take up to two weeks to reach inmates. Such delays should be 
unnecessary in a prison system that permits electronic 
communication and would be if the attorney-client privilege 
were consistently applied. Failing to extend the attorney-
client privilege to the easiest, fastest and most efficient 
method of communication available to inmates and their lawyers 
places a significant burden on defense attorneys' ability to 
represent incarcerated clients effectively. H.R. 5546 addresses 
this problem.
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    \17\Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus 
& Katherine Koehler, Reading the Prisoner's Letter: Attorney Client 
Confidentiality in Inmate Correspondence, 109 J. Crim. L. & Criminology 
559 (2019) https://scholarlycommons.law.northwestern.edu/jclc/vol109/
iss3/3/.
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                                Hearings

    On October 17, 2019, the Subcommittee on Crime, Terrorism, 
and Homeland Security held a hearing titled, ``Oversight of the 
Federal Bureau of Prisons and Implementation of the First Step 
Act,'' which discussed various aspects of the operation of the 
Bureau of Prisons.

                        Committee Consideration

    On March 11, 2020, the Committee met in open session and 
ordered the bill, H.R. 5546, favorably reported, by a voice 
vote, a quorum being present.

                            Committee Votes

    No record votes occurred during the Committee's 
consideration of H.R. 5546.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report. These include conclusions 
by the Committee following the October 17, 2019, oversight 
hearing on the Federal Bureau of Prisons, including the 
testimony of the Honorable Kathleen Hawk Sawyer, Director of 
the Bureau of Prisons.

  New Budget Authority and Tax Expenditures and Congressional Budget 
                          Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this bill from the 
Director of Congressional Budget Office (CBO). The Committee 
has requested but not received from the Director of the CBO a 
statement as to whether this bill contains any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures.

                    Duplication of Federal Programs

    No provision of H.R. 5546 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5546 would facilitate the Federal government's ability to 
comply with and facilitate the provision of confidential 
communications between attorneys and detained criminal 
defendants.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5546 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short title. Section 1 sets forth the short 
title of the bill as the ``Effective Assistance of Counsel in 
the Digital Era Act.''
    Sec. 2. Electronic communications between an incarcerated 
person and the person's attorney. Section 2 directs the 
Attorney General to create, within 180 days from enactment of 
the bill, a program or system (or to modify an existing program 
or system) for sending or receiving electronic communications 
used by persons in custody of the U.S. Marshals or the Bureau 
of Prisons that excludes from monitoring any privileged 
communications. Privileged communications are defined as those 
between an incarcerated person and a potential, current or 
former attorney, or legal representative or any agent of such. 
The bill would mandate that any existing program or system of 
electronic communication remain in place only for non-
privileged communications. The bill would also allow BOP to 
retain the contents of the electronic communications of an 
incarcerated person (including privileged communications), and 
make these accessible to the person, only until the date they 
are released from prison. The attorney-client privilege--and 
any protections and limitations associated with it (such as the 
crime-fraud exception\18\) would apply to the new program or 
system established or modified. The contents of communications 
under this new or modified electronic communications system 
would only be accessible by the incarcerated person for whom 
they are retained, except also by (1) the Attorney General when 
creating, modifying, or maintaining the program or system of 
electronic communication (but the Attorney General may not 
review the accessed contents) or (2) an investigative or law 
enforcement officer pursuant to a warrant issued by a court 
following procedures set forth in the Federal Rules of Criminal 
Procedure, but only with the express approval of a U.S. 
Attorney or an Assistant Attorney General. The bill sets forth 
a procedure that would mandate review of contents by a U.S. 
Attorney before a warrant may be sought, in order to ensure 
that privileged communications are not accessible. The bill 
would further bar the particular U.S. Attorney who reviews 
retained contents from participating in any legal proceeding in 
which the person whose retained contents were reviewed is a 
defendant or from sharing the contents with an attorney 
participating in such legal proceedings. The bill would provide 
that a court may suppress evidence obtained or derived from 
access to contents that have been obtained in the violation of 
the procedures set forth in the bill.
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    \18\See supra note 1.
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    Finally, the bill defines various terms used in the bill, 
including: ``agent of an attorney or legal representative'', 
``contents'', ``electronic communication'', ``monitoring'', 
``incarcerated person'', and ``privileged electronic 
communication.''

                                  [all]