H. R. 5546
IN THE SENATE OF THE UNITED STATES
September 22, 2020
Received; read twice and referred to the Committee on the Judiciary
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.
This Act may be cited as the
Effective Assistance of Counsel in the Digital Era Act.
Electronic communications between an incarcerated person and the person’s attorney
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.
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.
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).
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:
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.
Investigative and law enforcement officers
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.
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.
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.
A United States Attorney who reviews retained contents pursuant to clause (i) shall be barred from—
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
sharing the retained contents with an attorney who is participating in such a legal proceeding.
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.
In this Act—
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;
the term contents has the meaning given such term in 2510 of title 18, United States Code;
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;
the term monitoring means accessing the contents of an electronic communication at any time after such communication is sent;
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
the term privileged electronic communication means—
any electronic communication between an incarcerated person and a potential, current, or former attorney or legal representative of such a person; and
any electronic communication between an incarcerated person and the agent of an attorney or legal representative described in subparagraph (A).
Passed the House of Representatives September 21, 2020.
Cheryl L. Johnson,