To email someone in a federal prison, you can’t just fire up your inbox, type a message and hit “send” — electronic correspondence is part of a government-run service that makes clear that your messages “are accessible for review and/or download.”
This lack of privacy has long been a sticking point for attorneys representing incarcerated clients, especially since 2011, when federal prosecutors used a former Pennsylvania state senator’s “explosive” prison emails with his lawyers to obtain a lengthier sentence.
Representatives for the U.S. Department of Justice
and Bureau of Prisons have repeatedly said they consider all emails to be fair game for review and potential use at trial, and judges have repeatedly agreed, on the basis that users of the government email systems consent to monitoring when they sign up.
But last week, a bipartisan bill in the U.S. House of Representatives
proposed to protect attorney-client emails from being monitored at all, let alone used in cases.
“Email is the most efficient way for an attorney to communicate with an incarcerated client and should enjoy the same protection as telephone calls and other forms of private communication,” said Rep. Hakeem Jeffries, D-N.Y., a congressman who introduced similar legislation in the past, to no avail.
The latest bill, co-sponsored by Rep. Doug Collins, R-Ga., would require the BOP to “exclude from monitoring” the emails sent between attorneys and clients. Called the Effective Assistance of Counsel in the Digital Era Act, it has support from the American Bar Association
, the National Association of Criminal Defense Lawyers and numerous other proponents of justice reform.
ABA President Judy Perry Martinez personally applauded the proposal in a letter to Collins and Jeffries.
“While traditional letter mail, unmonitored telephone calls, and in-person meetings between attorneys and their clients incarcerated in Bureau of Prisons facilities are already protected communications, your bill would expand that protection to also cover any electronic communications between them,” she noted.
The DOJ did not respond to requests for comment on the measure, but Jumana Musa, Director of the NACDL’s Fourth Amendment Center, told Law360 it would drastically increase access to counsel for people in prison.
Other communication methods, she noted, have major shortcomings. Written mail comes with one- to two-week lag periods, and in-person meetings can be logistically and financially infeasible.
Visiting federal facilities requires attorneys to spend hours traveling and hours more waiting on a client to come down from the cells. All that time is billable to either the defendant or, in cases involving public defenders, American taxpayers.
Lawyers and their incarcerated clients can alternatively set up unmonitored phone calls to discuss privileged information. But Musa said scheduling such calls can be arduous in its own right — inmates must write letters to wardens, wardens must agree, schedules must line up, and in the end, calls are typically capped at 15 minutes.
Noting that, in the 21st century, most attorneys use emails to confer with clients, she said the bill “is really about making justice accessible to people.”
“It’s common sense, a bedrock principle of American law: when your attorney communicates with you, that's supposed to be privileged,” Musa added.
The U.S. government disagrees: In June 2014, a letter from an assistant U.S. attorney for the Eastern District of New York put the Federal Defenders of New York on notice that “emails between inmates and their attorneys ... are not privileged, and thus the office intends to review all emails.”
The announcement set off alarm bells in the defenders’ office, where many attorneys had assumed their emails were screened out of government monitoring. Within weeks, an attorney representing a doctor on charges related to Medicare fraud filed a letter of objection with a New York federal judge, but the government countered there was no way around the monitoring.
“Because of the technology that the BOP has and because of the way the emails are provided to the government, the possibility exists..., that the individual prosecutors, as they read through the scroll of emails, may see attorney-client emails,” said F. Turner Buford, the federal prosecutor in the case.
Between June 2014 and October 2017, however, the government’s technological capability apparently changed. In a letter to the Federal Defenders of New York, then-acting U.S. Attorney Bridget Rohde noted “BOP now has the technical capability to filter out of its production of BOP email communications emails to and from a particular email address.”
“The government now agrees to request that the BOP exclude from most productions communications between a defendant and his or her attorneys and other legal assistants and paralegals on their staff,” Rohde wrote.
That letter spurred the NACDL to submit Freedom of Information Act requests, seeking to determine how many other U.S. Attorney Offices were proactively filtering out attorney emails — and how many weren’t. After those requests went unanswered, the organization filed a FOIA lawsuit
in October 2018.
According to Megan Graham, an attorney representing NACDL, litigation has since led to scores of disclosures, but it's still hard to tell how often the government is reading through attorney client emails sent on its servers.
“The only way we would know, from court documents, that emails had been monitored, is either if DOJ proactively discloses that they’re reading the emails or if there’s an attempt to introduce emails into evidence,” she said. “But just because they haven’t made an attempt to introduce emails as evidence doesn’t mean they haven’t read them.”
Graham, who works as the clinical supervising attorney in the Samuelson Law, Technology & Public Policy Clinic at University of California Berkeley, School of Law, added that the newly proposed legislation would erase any uncertainty about emailing incarcerated clients.
“It doesn’t just bar the prosecutor from reading those emails,” she said. “It says emails between attorneys and clients are privileged and the government can’t monitor these — both prosecutors and the BOP and any other government entity that might seek the inmates’ emails.”
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--Editing by Katherine Rautenberg.