IB 

Union Calendar No. 407 

116TH CONGRESS 

2D SESSION H. R. 5546 

[Report No. 116–507] 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 7, 2020 

Mr. JEFFRIES (for himself, Mr. COLLINS of Georgia, and Mr. NADLER) introduced the following bill; which was referred to the Committee on the Judiciary 

SEPTEMBER 16, 2020 

Additional sponsors: Mr. SENSENBRENNER, Ms. BASS, Mr. TAYLOR, Ms. 

CLARKE of New York, Mrs. WAGNER, Ms. NORTON, Mr. CLINE, Ms. 

ESHOO, Mr. COLE, Mr. NEGUSE, Mr. ARMSTRONG, Ms. SCANLON, Mr. 

CRENSHAW, Mr. COHEN, Mrs. RODGERS of Washington, Ms. JACKSON

LEE, Mr. BACON, Ms. DEAN, Mr. JOHNSON of South Dakota, Mr. RICHMOND, Mr. CICILLINE, and Mr. BLUMENAUER

SEPTEMBER 16, 2020 

Reported from the Committee on the Judiciary; committed to the Committee 

of the Whole House on the State of the Union and ordered to be printed 


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•HR 5546 RH

A BILL 

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. 


kjohnson on DSK79L0C42PROD with BILLS
3 

•HR 5546 RH

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Effective Assistance 

5 of Counsel in the Digital Era Act’’. 

6 SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN IN7 CARCERATED PERSON AND THE PERSON’S 

8 ATTORNEY. 

9 (a) PROHIBITION ON MONITORING.—Not later than 

10 180 days after the date of the enactment of this Act, the 

11 Attorney General shall create a program or system, or 

12 modify any program or system that exists on the date of 

13 enactment of this Act, through which an incarcerated per14 son sends or receives an electronic communication, to ex15 clude from monitoring the contents of any privileged elec16 tronic communication. In the case that the Attorney Gen17 eral creates a program or system in accordance with this 

18 subsection, the Attorney General shall, upon implementing 

19 such system, discontinue using any program or system 

20 that exists on the date of enactment of this Act through 

21 which an incarcerated person sends or receives a privileged 

22 electronic communication, except that any program or sys23 tem that exists on such date may continue to be used for 

24 any other electronic communication. 


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•HR 5546 RH

1 (b) RETENTION OF CONTENTS.—A program or sys2 tem or a modification to a program or system under sub3 section (a) may allow for retention by the Bureau of Pris4 ons of, and access by an incarcerated person to, the con5 tents of electronic communications, including the contents 

6 of privileged electronic communications, of the person 

7 until the date on which the person is released from prison. 

8 (c) ATTORNEY-CLIENT PRIVILEGE.—Attorney-client 

9 privilege, and the protections and limitations associated 

10 with such privilege (including the crime fraud exception), 

11 applies to electronic communications sent or received 

12 through the program or system established or modified 

13 under subsection (a). 

14 (d) ACCESSING RETAINED CONTENTS.—Contents re15 tained under subsection (b) may only be accessed by a per16 son other than the incarcerated person for whom such con17 tents are retained under the following circumstances: 

18 (1) ATTORNEY GENERAL.—The Attorney Gen19 eral may only access retained contents if necessary 

20 for the purpose of creating and maintaining the pro21 gram or system, or any modification to the program 

22 or system, through which an incarcerated person 

23 sends or receives electronic communications. The At24 torney General may not review retained contents 

25 that are accessed pursuant to this paragraph. 


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1 (2) INVESTIGATIVE AND LAW ENFORCEMENT

2 OFFICERS.— 

3 (A) WARRANT.— 

4 (i) IN GENERAL.—Retained contents 

5 may only be accessed by an investigative or 

6 law enforcement officer pursuant to a war7 rant issued by a court pursuant to the pro8 cedures described in the Federal Rules of 

9 Criminal Procedure. 

10 (ii) APPROVAL.—No application for a 

11 warrant may be made to a court without 

12 the express approval of a United States 

13 Attorney or an Assistant Attorney General. 

14 (B) PRIVILEGED INFORMATION.— 

15 (i) REVIEW.—Before retained con16 tents may be accessed pursuant to a war17 rant obtained under subparagraph (A), 

18 such contents shall be reviewed by a 

19 United States Attorney to ensure that 

20 privileged electronic communications are 

21 not accessible. 

22 (ii) BARRING PARTICIPATION.—A 

23 United States Attorney who reviews re24 tained contents pursuant to clause (i) shall 

25 be barred from— 


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1 (I) participating in a legal pro2 ceeding in which an individual who 

3 sent or received an electronic commu4 nication from which such contents are 

5 retained under subsection (b) is a de6 fendant; or 

7 (II) sharing the retained contents 

8 with an attorney who is participating 

9 in such a legal proceeding. 

10 (3) MOTION TO SUPPRESS.—In a case in which 

11 retained contents have been accessed in violation of 

12 this subsection, a court may suppress evidence ob13 tained or derived from access to such contents upon 

14 motion of the defendant. 

15 (e) DEFINITIONS.—In this Act— 

16 (1) the term ‘‘agent of an attorney or legal rep17 resentative’’ means any person employed by or con18 tracting with an attorney or legal representative, in19 cluding law clerks, interns, investigators, paraprofes20 sionals, and administrative staff; 

21 (2) the term ‘‘contents’’ has the meaning given 

22 such term in 2510 of title 18, United States Code; 

23 (3) the term ‘‘electronic communication’’ has 

24 the meaning given such term in section 2510 of title 


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1 18, United States Code, and includes the Trust 

2 Fund Limited Inmate Computer System; 

3 (4) the term ‘‘monitoring’’ means accessing the 

4 contents of an electronic communication at any time 

5 after such communication is sent; 

6 (5) the term ‘‘incarcerated person’’ means any 

7 individual in the custody of the Bureau of Prisons 

8 or the United States Marshals Service who has been 

9 charged with or convicted of an offense against the 

10 United States, including such an individual who is 

11 imprisoned in a State institution; and 

12 (6) the term ‘‘privileged electronic communica13 tion’’ means— 

14 (A) any electronic communication between 

15 an incarcerated person and a potential, current, 

16 or former attorney or legal representative of 

17 such a person; and 

18 (B) any electronic communication between 

19 an incarcerated person and the agent of an at20 torney or legal representative described in sub21 paragraph (A). 


kjohnson on DSK79L0C42PROD with BILLS
Union Calendar No. 407 

116TH CONGRESS 

2D SESSION H. R. 5546 

[Report No. 116–507] 

A BILL 

To regulate monitoring of electronic communicapurposes. ney or other legal representative, and for other reau of Prisons facility and that person’s attor- tions between an incarcerated person in a BuSEPTEMBER 16, 2020 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 


kjohnson on DSK79L0C42PROD with BILLS