Wyden, Lummis Introduce Bipartisan Bill to Protect Attorney-Client Privilege in the Digital Age

Wyden, Lummis Introduce Bipartisan Bill to Protect Attorney-Client Privilege in the Digital Age

Bill would safeguard digital communications between incarcerated individuals and their attorneys

Washington, D.C. - U.S. Senators Ron Wyden, Cynthia Lummis, R-Wyo., today introduced bipartisan, bicameral legislation to protect digital communications between incarcerated individuals and their attorneys.

"Attorney-client privilege is a constitutional right, not a suggestion," Wyden said. "It's time for the federal government to bring its outdated laws into the 21st century, which is why today's legislation would once and for all ensure that all communications between incarcerated individuals and their attorneys are granted equal protection."

"A nation governed by law and order cannot pick and choose when the Constitution applies," Lummis said. "We are well into the technology age, and it is past time for the government to evolve and comply with the Constitution by ensuring that incarcerated individuals and their attorneys are guaranteed attorney-client privilege through email, not just physical mail, phone calls, or in-person meetings."

Madeleine Dean, D-Pa., introduced companion legislation in the House.

"People incarcerated in federal prisons have the right to attorney-client privilege enshrined in our Sixth Amendment - yet our justice system has not adapted to modern methods of communication," Dean said. "Americans rely on email daily for personal, educational, and professional purposes, including communication between lawyers and their clients-yet those incarcerated are not able to access it without compromising their rights. I am grateful to Leader Jeffries and our colleagues across the aisle and in the Senate for coming together to defend some of America's most fundamental rights."

While physical mail, phone calls and in-person meetings at federal prisons are currently protected against government surveillance, inmates at Bureau of Prison facilities must allow the government access to all attorney-client emails, under current federal policies.

The Effective Assistance of Counsel in the Digital Era Act would close this loophole and ensure that the Sixth Amendment right to counsel and attorney-client privilege also applies to digital communications.

The legislation:

• Requires the Department of Justice to ensure the BOP's email system excludes from monitoring the contents of privileged electronic communications between incarcerated clients and their legal representatives;
• Stipulates that the protections and limitations associated with the attorney-client privilege - including the crime-fraud exception - apply to electronic communications sent or received through the BOP email system;
• Allows BOP to retain the contents of the electronic communications of an incarcerated person, and make these accessible to the person, only until their date of release from custody, after which these privileged communications are to be purged;
• Establishes narrow procedures for an investigative or law enforcement officer, pursuant to a warrant issued by a court, to access privileged electronic communication; and
• Allows for the suppression of evidence obtained or derived from access to the retained contents if such contents were accessed in violation of the Act.

The legislative text is here.

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