Effective Assistance of Counsel in the Digital Era Act

IIB 116TH CONGRESS 2D SESSION H. R. 5546 IN THE SENATE OF THE UNITED STATES SEPTEMBER 22, 2020 Received; read twice and referred to the Committee on the Judiciary AN ACT 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 5546 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Effective Assistance 2 of Counsel in the Digital Era Act’’. 3 SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN IN- 4 CARCERATED PERSON AND THE PERSON’S 5 ATTORNEY. 6 (a) PROHIBITION ON MONITORING.—Not later than 7 180 days after the date of the enactment of this Act, the 8 Attorney General shall create a program or system, or 9 modify any program or system that exists on the date of 10 enactment of this Act, through which an incarcerated per- 11 son sends or receives an electronic communication, to ex- 12 clude from monitoring the contents of any privileged elec- 13 tronic communication. In the case that the Attorney Gen- 14 eral creates a program or system in accordance with this 15 subsection, the Attorney General shall, upon implementing 16 such system, discontinue using any program or system 17 that exists on the date of enactment of this Act through 18 which an incarcerated person sends or receives a privileged 19 electronic communication, except that any program or sys- 20 tem that exists on such date may continue to be used for 21 any other electronic communication. 22 (b) RETENTION OF CONTENTS.—A program or sys- 23 tem or a modification to a program or system under sub- 24 section (a) may allow for retention by the Bureau of Pris- 25 ons of, and access by an incarcerated person to, the con- 26 VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 5546 RFS tents of electronic communications, including the contents 1 of privileged electronic communications, of the person 2 until the date on which the person is released from prison. 3 (c) ATTORNEY-CLIENT PRIVILEGE.—Attorney-client 4 privilege, and the protections and limitations associated 5 with such privilege (including the crime fraud exception), 6 applies to electronic communications sent or received 7 through the program or system established or modified 8 under subsection (a). 9 (d) ACCESSING RETAINED CONTENTS.—Contents re- 10 tained under subsection (b) may only be accessed by a per- 11 son other than the incarcerated person for whom such con- 12 tents are retained under the following circumstances: 13 (1) ATTORNEY GENERAL.—The Attorney Gen- 14 eral may only access retained contents if necessary 15 for the purpose of creating and maintaining the pro- 16 gram or system, or any modification to the program 17 or system, through which an incarcerated person 18 sends or receives electronic communications. The At- 19 torney General may not review retained contents 20 that are accessed pursuant to this paragraph. 21 (2) INVESTIGATIVE AND LAW ENFORCEMENT 22 OFFICERS.— 23 (A) WARRANT.— 24 VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 5546 RFS (i) IN GENERAL.—Retained contents 1 may only be accessed by an investigative or 2 law enforcement officer pursuant to a war- 3 rant issued by a court pursuant to the pro- 4 cedures described in the Federal Rules of 5 Criminal Procedure. 6 (ii) APPROVAL.—No application for a 7 warrant may be made to a court without 8 the express approval of a United States 9 Attorney or an Assistant Attorney General. 10 (B) PRIVILEGED INFORMATION.— 11 (i) REVIEW.—Before retained con- 12 tents may be accessed pursuant to a war- 13 rant obtained under subparagraph (A), 14 such contents shall be reviewed by a 15 United States Attorney to ensure that 16 privileged electronic communications are 17 not accessible. 18 (ii) BARRING PARTICIPATION.—A 19 United States Attorney who reviews re- 20 tained contents pursuant to clause (i) shall 21 be barred from— 22 (I) participating in a legal pro- 23 ceeding in which an individual who 24 sent or received an electronic commu- 25 VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 5546 RFS nication from which such contents are 1 retained under subsection (b) is a de- 2 fendant; or 3 (II) sharing the retained contents 4 with an attorney who is participating 5 in such a legal proceeding. 6 (3) MOTION TO SUPPRESS.—In a case in which 7 retained contents have been accessed in violation of 8 this subsection, a court may suppress evidence ob- 9 tained or derived from access to such contents upon 10 motion of the defendant. 11 (e) DEFINITIONS.—In this Act— 12 (1) the term ‘‘agent of an attorney or legal rep- 13 resentative’’ means any person employed by or con- 14 tracting with an attorney or legal representative, in- 15 cluding law clerks, interns, investigators, paraprofes- 16 sionals, and administrative staff; 17 (2) the term ‘‘contents’’ has the meaning given 18 such term in 2510 of title 18, United States Code; 19 (3) the term ‘‘electronic communication’’ has 20 the meaning given such term in section 2510 of title 21 18, United States Code, and includes the Trust 22 Fund Limited Inmate Computer System; 23 VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 5546 RFS (4) the term ‘‘monitoring’’ means accessing the 1 contents of an electronic communication at any time 2 after such communication is sent; 3 (5) the term ‘‘incarcerated person’’ means any 4 individual in the custody of the Bureau of Prisons 5 or the United States Marshals Service who has been 6 charged with or convicted of an offense against the 7 United States, including such an individual who is 8 imprisoned in a State institution; and 9 (6) the term ‘‘privileged electronic communica- 10 tion’’ means— 11 (A) any electronic communication between 12 an incarcerated person and a potential, current, 13 or former attorney or legal representative of 14 such a person; and 15 (B) any electronic communication between 16 an incarcerated person and the agent of an at- 17 torney or legal representative described in sub- 18 paragraph (A). 19 Passed the House of Representatives September 21, 2020. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546 pamtmann on DSKBC07HB2PROD with BILLS