[Congressional Record Volume 167, Number 34 (Tuesday, February 23, 2021)]
[House]
[Pages H557-H560]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EFFECTIVE ASSISTANCE OF COUNSEL IN THE DIGITAL ERA ACT
Ms. JACKSON LEE. Madam Speaker, I move to suspend the rules and pass
the bill (H.R. 546) 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 546
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page H558]]
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
Texas (Ms. Jackson Lee) and the gentleman from North Carolina (Mr.
Bishop) each will control 20 minutes.
The Chair recognizes the gentlewoman from Texas.
General Leave
Ms. JACKSON LEE. Madam Speaker, I ask unanimous consent that all
Members 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 Texas?
There was no objection.
Ms. JACKSON LEE. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, the first thing I would like to do is thank our
distinguished chair of the Democratic Caucus, Mr. Jeffries, for working
with us and moving forward on this bill, along with the chairman of the
full committee, Mr. Nadler.
Madam Speaker, H.R. 546, the Effective Assistance of Counsel in the
Digital Era Act requires the Federal Bureau of Prisons to establish a
system that ensures the confidentiality of all privileged electronic
communications between incarcerated individuals and their attorneys or
legal representatives.
H.R. 546 is identical to bipartisan legislation sponsored by
Representative Hakeem Jeffries last Congress. Last September, the House
approved this bill by voice vote. However, the Senate failed to take up
the measure prior to adjournment. As we move forward today, I hope that
the House will approve this bill with broad support, again, so that the
Senate will take swift action and President Biden can sign this much-
needed proposal into law.
Madam Speaker, H.R. 546 addresses important constitutional
protections for criminal defendants, and all of these I support. The
Sixth Amendment to the United States 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
open communications. This privilege is a fundamental component of the
effective assistance of counsel guaranteed by the Constitution. Of
course, this privilege 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. We understand that.
Outside of any custody setting, defendants are less constrained in
their ability to have candid conversations with their attorneys.
Generally, out-of-custody defendants can go to their attorneys'
offices, speak with them freely on the phone, or send written or
electronic correspondence without fear of interference or monitoring.
To an extent, in-custody defendants also have these protections.
For example, in the Federal system, Bureau of Prisons' regulations
ensure that inmates can meet with their attorneys without auditory
supervision. Current regulations also allow confidential phone calls
and letters between inmates and their attorneys. But these same
protections do not apply to email communications for the nearly 152,000
individuals currently in Federal custody, including those in pretrial
detention who have not been convicted of any crime.
I know that my colleagues can see that that is definitively a denial
of the civil rights, civil liberties, and the criminal justice rights
that these individuals should have access to.
H.R. 546 would ensure that all communications between attorneys and
their clients remain confidential, including email.
Madam Speaker, over a decade ago, the Federal Bureau of Prisons
recognized the growing importance of email, which is important in
providing efficient and swift communications between inmates and
individuals on the outside.
Since 2009, Bureau of Prisons' inmates have been able to access
emails
[[Page H559]]
through a system known as TRULINCS. However, TRULINCS requires inmates
and their contacts to consent to monitoring of all communications, even
email exchanges between inmates and their attorneys. That, I think we
all understand, is unfair.
Madam Speaker, during the last decade, email has grown rapidly and is
the primary means of communication between inmates and their attorneys.
During the current pandemic, emails have become even more important
given how difficult it is for attorneys to meet with their clients.
Without appropriate safeguards, the Bureau of Prisons risks severely
hindering the effective representation of inmates by limiting attorney-
client privilege for electronic communications. Therefore, H.R. 546
would require the Bureau to implement an adequate system to ensure that
these attorney-client communications remain confidential--again, a
constitutional provision or principle of the right to counsel.
H.R. 546 also includes additional protections, including the
requirement of 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
that is in violation of the provisions set forth in the bill.
Madam Speaker, this is an important bill. Its time is now. I commend
our colleague, Representative Jeffries, for his effort and leadership
in developing this bipartisan legislation. This proposal has already
received broad support by the House during the last Congress, and now
we must act swiftly to see it enacted into law, moving to the United
States Senate, and seeing the United States Senate act quickly for it
to be signed by President Joe Biden.
Madam Speaker, I urge all of my colleagues to join us in support of
this bill today, and I reserve the balance of my time.
Madam Speaker, as a senior member of the Judiciary, Committee, I rise
in strong support of H.R. 546, the bipartisan ``Effective Assistance of
Counsel in the Digital Era Act,'' reintroduced by Congressman Jeffries
of New York, legislation that ensures that email communications between
people in Federal Bureau of Prisons (BOP) custody and their legal teams
are protected with the same privilege as legal visits, letters, and
phone calls.
This legislation was reported out of the Judiciary Committee
unanimously in the 116th Congress and was passed in the House twice--
once as part of a COVID relief bill and later without objection on the
House floor.
The principles of justice, fairness, and due process upon which our
legal system is built necessitate confidentiality between the accused
and their defense counsel.
Attorney client privilege is one of the oldest privileges for
confidential communications and has been an important part of the
American legal system for hundreds of years.
This privilege is critical when clients are in custody, and the form
of communication--whether it be in person, by letter, by telephone, or
by email--should have no bearing on that protection.
Currently, individuals held in BOP facilities are uniformly denied
the ability to have privileged communications with their lawyers
through TRULINCS, the only email system available to them.
In order to use the BOP system, incarcerated individuals must sign a
waiver acknowledging that their communications may be monitored.
Without signing the waiver, they cannot use the email system, cutting
off any opportunity to communicate electronically.
The need for access to privileged email is long overdue, and it is
more critical than ever today.
As the COVID pandemic has raged across the country and spread through
detention facilities, BOP has restricted in-person visits, and
unmonitored calls and legal mail are more difficult to use.
But incarcerated clients' need to have access to their lawyers is
undiminished, and in many instances is heightened by the delays and
fears brought on by the pandemic.
Email is the safest and most cost-effective means of communicating.
The Effective Assistance of Counsel in the Digital Era Act remedies
many of these concerns by striking the right balance between the
government's limited interest in accessing certain email communications
with a warrant and the need to properly protect communications subject
to the attorney-client privilege.
This legislation will only require the Department of Justice to
change procedures concerning attorney-client communications and still
maintains the ability for United States Attorneys to access other
emails.
Privileged communication is the cornerstone of attorney-client
relationships and inseparable from the due process rights on which the
U.S. legal system is founded.
It is past time for BOP to bring its policies into the 21st century
and ensure that electronic communications between people in custody and
their legal teams are protected.
I urge all Members to join me in voting for H.R. 546, the ``Effective
Assistance of Counsel in the Digital Era Act.''
Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time
as I may consume.
Madam Speaker, I rise today in support of H.R. 546, the Effective
Assistance of Counsel in the Digital Era Act.
This bill will modernize our criminal justice system by extending
attorney-client privilege to electronic communication sent or received
through the Bureau of Prisons' email system. This will ensure that
incarcerated individuals can communicate with their attorneys
efficiently and privately, as it should be.
Under the legislation, the Bureau of Prisons will be prohibited from
monitoring privileged email communications between incarcerated
individuals and that individual's attorney.
The attorney-client privilege is a vital component of our legal
system that ensures a criminal defendant has an effective advocate in
the courtroom. Emails between incarcerated individuals and their
attorneys should fall under the attorney-client protections, but
currently, that is not the case.
This bill will 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 near
the incarcerated client, it can take hours to travel to a detention
facility and visit with the client.
Madam Speaker, H.R. 546 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 from the current
email monitoring process.
The bill 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. The BOP will be allowed to retain electronic
communications until the incarcerated person is released, but the bill
specifies that the contents may only be accessed under very limited
circumstances.
Finally, H.R. 546 allows a court to suppress evidence obtained or
derived from access to the retained emails if the emails were accessed
in violation of the act.
Madam Speaker, I urge my colleagues to join me in supporting H.R.
546, and I reserve the balance of my time.
Ms. JACKSON LEE. Madam Speaker, I yield 4 minutes to the
distinguished gentleman from New York (Mr. Jeffries), the sponsor and
author of this bill, the chairman of the Democratic Caucus.
{time} 1700
Mr. JEFFRIES. Madam Speaker, I thank the distinguished gentlewoman,
my good friend from Texas (Ms. Jackson Lee), for yielding and for her
tremendous leadership on so many different criminal justice issues,
including with respect to this particular piece of legislation. I thank
the distinguished gentleman from North Carolina (Mr. Bishop) for his
support as well.
I rise to support H.R. 546, the Effective Assistance of Counsel in
the Digital Era Act, a critical bipartisan bill to protect the
constitutional right to effective representation. This legislation
passed the House last Congress, and I urge my colleagues to pass it
once again today.
The Sixth Amendment to the Constitution provides that in all criminal
prosecutions, the accused shall have the assistance of counsel for his
or her defense. An attorney must be fully informed about the facts of
the case in order to effectively represent a client
[[Page H560]]
and provide the best possible legal advice and guidance. That is why
confidential communication between attorneys and their clients is so
critical and why the attorney-client privilege must be protected.
In Lanza v. New York, the Supreme Court stated 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 124,000 individuals currently in BOP custody, many
of whom are in pretrial detention and have not been convicted of a
crime. In our system, defendants, American citizens, are innocent until
proven guilty. Like any person involved in a criminal proceeding, these
individuals who are incarcerated must be able to confidentially
communicate with their attorneys.
The bipartisan Effective Assistance of Counsel in the Digital Era Act
would enable incarcerated individuals to communicate with their legal
representatives privately, safely, and efficiently by prohibiting the
Bureau of Prisons from monitoring privileged electronic communications.
While BOP regulations do protect the confidentiality of in-person
attorney visits, phone calls, and traditional mail, no such protections
exist in the context of email communications sent through the BOP's
electronic mail system. This system, known as TRULINCS, has become the
easiest, fastest, and most efficient method of communication available
to incarcerated individuals and their attorneys.
Let's consider the alternatives. Even a brief client visit can take
hours when you factor in travel and wait times. Confidential phone
calls are perhaps useful, but they are subject to time limitations and
can be difficult to schedule even for urgent legal matters. Postal mail
must first be opened and inspected by staff for physical contraband,
which can significantly extend the time it takes for the communication
to reach an incarcerated individual.
These delays should be unnecessary in a prison system that permits
electronic communications and would be available if the attorney-client
privilege was consistently applied.
To address this serious problem, H.R. 546 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.
The SPEAKER pro tempore. The time of the gentleman has expired.
Ms. JACKSON LEE. Madam Speaker, I yield the gentleman from New York
(Mr. Jeffries) an additional 1 minute.
Mr. JEFFRIES. The BOP will be permitted to retain the contents of
these messages until the incarcerated person is released, but they
would be accessible only under limited circumstances.
The bill is supported by a wide variety of groups, including the
American Bar Association, ACLU, Americans for Prosperity, Dream Corps,
Due Process Institute, National Action Network, Prison Fellowship,
Right on Crime, Faith and Freedom Coalition, FAMM, Federal public and
community defenders organizations, and so many others.
I want to thank all the sponsors of this bill, most particularly
Representatives Van Taylor, Jerry Nadler, Tom McClintock, Don Bacon,
Nancy Mace, and Sheila Jackson Lee, as well as Dan Crenshaw and Dusty
Johnson. This has truly been a bipartisan journey.
Our criminal justice system depends on the attorney-client privilege
to ensure effective representation. I urge my colleagues to vote
``yes'' on H.R. 546.
Mr. BISHOP of North Carolina. Madam Speaker, I have no further
speakers, and I yield myself the balance of my time.
I wanted to say my compliments to the gentleman from New York in
pursuit of this bill and the things he spoke to about the presumption
of innocence and the right to counsel, among those sacred core rights
that our Constitution guarantees to every individual in this country.
This important bipartisan bill is preservative of that.
That is what we do in this Chamber. That is what this Congress should
always do. So my compliments to the gentleman from New York and the
cosponsors on this piece of legislation. I encourage my fellow Members
to support it.
Madam Speaker, I yield back the balance of my time.
Ms. JACKSON LEE. Madam Speaker, I yield myself the balance of my
time.
Let me thank the gentleman from North Carolina (Mr. Bishop) for his
collegial response and his very important remarks on collaboration for
important legislation like this.
Let me also thank the distinguished gentleman from New York for
finding an Achilles' heel that would really and continues to undermine
the true sense of attorney-client privilege and to respect that
privilege, whether you are in custody or not, and also recognizes the
increasing utilization of the digital world to file briefs, to make
arguments, and, of course, to find that divide between those in-custody
inmates incarcerated and those that are not in custody. We are now
moving to extensive virtual court proceedings.
As we well know, individuals in custody are making a number of
efforts to prove their innocence. They are appealing. They are seeking
new trials. They, too, have rights that should be respected under both
the Criminal Code and the Constitution.
So, again, I thank the gentleman for his thoughtfulness and all the
bipartisan cosponsors that he has.
Madam Speaker, H.R. 546 would ensure that the attorney-client
privilege, again, is safeguarded in all communications between criminal
defendants and their attorneys. This bipartisan legislation addresses
an issue that is essential to the fair administration of the criminal
justice system.
During this ongoing pandemic, this measure has become even more
urgent when there is even more reliance on electronic communications
between attorneys and incarcerated individuals.
For these reasons, I urge my colleagues to join me in supporting this
bipartisan legislation.
Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from Texas (Ms. Jackson Lee) that the House suspend the
rules and pass the bill, H.R. 546.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mrs. GREENE of Georgia. Madam Speaker, on that I demand the yeas and
nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution
8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this motion
will be postponed.
____________________