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Buckley Commentary & Analysis

"Attorney-client privilege should not stop at the prison gate" by Elizabeth R. Bailey

Buckley Commentary & Analysis

Elizabeth R. Bailey

U.S. law respects the confidentiality of a prisoner’s communications with counsel, including phone calls and visits, but with one critical exception that goes unnoticed by many attorneys: The government routinely monitors — and then uses in court — emails between federal prisoners and their legal counsel.

This exception has been an ongoing source of controversy, but the response to the current Covid-19 health crisis, which emphasizes putting attorneys at physical remove from their clients, has made the need for protected email communications abundantly clear.

It appears that Congress may be coming around to the same view. Despite past failures, two members of the House, Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), have reintroduced H.R.5546, the Effective Assistance of Counsel in the Digital Age Act. Under the proposed legislation, privileged legal emails would be excluded from monitoring by the Federal Bureau of Prisons and suppressed from use in court proceedings. Similar bills failed to gain traction in past years and never made it out of committee, but this time the House Judiciary Committee unanimously voted to report out H.R.5546 favorably to the full House.

BOP prisoners required to sign away privilege in emails

The BOP provides federal prisoners with access to a proprietary emailing system called Trust Fund Limited Inmate Computer System (TRULINCS). Prisoners can use TRULINCS to communicate with approved outside contacts, including their counsel, but prisoners must first agree to the system’s participation agreement — under which prisoners must consent to the BOP monitoring, reading, and retaining all incoming and outgoing emails. The agreement expressly states that the BOP can monitor emails to and from attorneys and that communications with attorneys will not be privileged. The BOP also reserves the right to share emails with criminal, civil, and regulatory law enforcement agencies, the media, and the court presiding over any proceeding to which the emails are relevant.

Courts have compounded the issue by applying a different standard to monitored prisoner emails compared to monitored employee emails. The seminal case about whether a worker waives privilege by using an employer’s email system to email a personal attorney obligates courts to weigh a series of factors instead of applying a bright line rule. Where the factors are evenly split, courts have upheld privilege based on the sanctity of attorney-client privilege in our legal system. But courts have then refused to similarly consider the sanctity of the privilege held by prisoners in BOP custody, even when the judges otherwise express sympathy for prisoners’ predicament. For example, when the Federal District Court for Hawaii ruled in 2015 that a prisoner had waived privilege by using TRULINCS, the judge noted that the current legal framework “made no sense” and that the different treatment of physical legal mail and legal email was “a distinction without cause.” 

Prohibiting privileged emails creates legitimate disadvantages for prisoners

The current regime establishes a double standard in which people in custody — including pre-trial detainees who have not yet been convicted of any crime — are not afforded the same Sixth Amendment protections enjoyed by the rest of society. Even if a prisoner and their attorney both have carefully read the fine print in the TRULINCS participation agreement, a mistaken expectation of privacy is not the only problem with the current regime. A prisoner’s access to counsel is severely handicapped if they are limited to in-person visits with or calls to their lawyer, compared to email. Calls and visits are routinely canceled or restricted by prison officials due to prison lockdowns or other unexpected events — such as a Coronavirus pandemic — and are subject to the whim of a particular inmate’s case manager for scheduling.

And not every attorney lives or works close enough to a prison to make in-person visits a viable option, particularly when a case is taken on a pro bono basis. Of course, physical mail remains privileged, but this type of communication is numbingly slow and requires a prisoner to find funds for stationery, postage, and a writing implement, which may be taken away from prisoners for violations. Email is a far faster, more reliable alternative that does not require such supplies.

Long overdue, Congress may finally step in

This is the fourth time Reps. Jeffries and Collins have tried to get this bill passed. But the 2020 iteration currently under consideration significantly strengthens prior language by adding more protections, such as requiring law enforcement agents to get a warrant to review retained emails and requiring a walled-off prosecutor to first screen the emails for privilege. The current version of the bill also establishes grounds for defendants to bring a motion to suppress if prisoner emails are accessed in violation of the law.

Significantly, the 2020 bill has bipartisan support both in the House and in the criminal justice community, with over 20 cosponsors from both parties, and the public backing of well-known organizations such as the American Bar Association, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, FreedomWorks, the Federal Defenders, Right on Crime, and Families Against Mandatory Minimums. Whether the bill can break through the current deadlock in Congress is a different question, but reform may have finally found the momentum it needs to change the law to better safeguard prisoners’ rights.

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