Bipartisan House Bill Seeks to Protect Privacy of Emails Between Federal Inmates, Lawyers

The Metropolitan Correctional Center, which is operated by the Federal Bureau of Prisons, stands in lower Manhattan in New York City on Nov. 19, 2019. Spencer Platt/Getty Images

Two members of the House Judiciary Committee introduced a bill that seeks to protect the privacy of electronic communications between federal inmates and their attorneys.

Reps. Doug Collins (R-Ga.), Ranking Member of the House Judiciary Committee, and Hakeem Jeffries (D-N.Y.), Chairman of the House Democratic Caucus, introduced the bill on Wednesday, saying that it would “[allow] incarcerated individuals to communicate with their attorneys efficiently and privately.”

Currently, federal law protects the privacy of other forms of communications such as telephone calls, but emails are currently exempt. Federal inmates who use the Bureau of Prisons’ (BOP) email system to contact their attorneys have to give consent for a government review of their attorney-client communications. The same content can also be accessed by prosecutors.

The bill, titled the “Effective Assistance of Counsel in the Digital Era Act” (H.R. 5546) would prohibit the BOP from monitoring such email communications.

“Attorney-client privilege is a pivotal part of our legal system because it helps ensure fairness. Emails between those incarcerated and their attorneys should fall under attorney-client protections, but currently, that’s not the case,” Collins said in a prepared statement.  “[The Act] would protect the rights of incarcerated men and women to speak openly and honestly with their attorneys online.”

Jeffries said in a prepared statement that email communications “should enjoy the same protection as telephone calls and other forms of private communication.”

“Most fair-minded people would agree that our system of justice requires a dynamic where individuals are able to have the effective assistance of counsel necessary to adequately defend themselves,” he also said, adding that email is the “most efficient way” of communication for inmates and their attorneys.

The bill was previously introduced to Congress on Oct. 29, 2015, but was not enacted.

In a joint announcement of the bill, the two congressmen noted that other ways of communication besides email “can be especially burdensome and time-consuming.” Face to face meetings can cost attorneys hours of time, which takes away time the attorney could be working on the client’s case, they pointed out.

Meanwhile, phone calls are often “limited in time and require advance notice,” they said. The phone also cannot allow the sharing of legal documents and other legal documents, and using postal mail to send such documents can take up to two weeks, they noted.

The bill would stop the BOP from monitoring the emails between inmates and their attorneys. In a court of law, upon a motion by the defendant, the bill can suppress evidence obtained from accessing such emails. The BOP is still able to keep the emails until the inmate is released, but the emails’ contents “may only be accessed under very limited circumstances,” a release notifying of the bill states.

A number of groups are in support of the bill, with the American Civil Liberties Union, American Bar Association and FreedomWorks among them.