I 

116TH CONGRESS 

2D SESSION H. R. 5546 

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 

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. 

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’’. 


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1 SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN IN2 CARCERATED PERSON AND THE PERSON’S 

3 ATTORNEY. 

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

5 180 days after the date of the enactment of this Act, the 

6 Attorney General shall create a program or system, or 

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

8 enactment of this Act, through which an incarcerated per9 son sends or receives an electronic communication, to ex10 clude from monitoring the contents of any privileged elec11 tronic communication. In the case that the Attorney Gen12 eral creates a program or system in accordance with this 

13 subsection, the Attorney General shall, upon implementing 

14 such system, discontinue using any program or system 

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

16 which an incarcerated person sends or receives a privileged 

17 electronic communication, except that any program or sys18 tem that exists on such date may continue to be used for 

19 any other electronic communication. 

20 (b) RETENTION OF CONTENTS.—A program or sys21 tem or a modification to a program or system under sub22 section (a) may allow for retention by the Bureau of Pris23 ons of, and access by an incarcerated person to, the con24 tents of electronic communications, including the contents 

25 of privileged electronic communications, of the person 

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


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

2 privilege, and the protections and limitations associated 

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

4 applies to electronic communications sent or received 

5 through the program or system established or modified 

6 under subsection (a). 

7 (d) ACCESSING RETAINED CONTENTS.—Contents re8 tained under subsection (b) may only be accessed by a per9 son other than the incarcerated person for whom such con10 tents are retained under the following circumstances: 

11 (1) ATTORNEY GENERAL.—The Attorney Gen12 eral may only access retained contents if necessary 

13 for the purpose of creating and maintaining the pro14 gram or system, or any modification to the program 

15 or system, through which an incarcerated person 

16 sends or receives electronic communications. The At17 torney General may not review retained contents 

18 that are accessed pursuant to this paragraph. 

19 (2) INVESTIGATIVE AND LAW ENFORCEMENT

20 OFFICERS.— 

21 (A) WARRANT.— 

22 (i) IN GENERAL.—Retained contents 

23 may only be accessed by an investigative or 

24 law enforcement officer pursuant to a war25 rant issued by a court pursuant to the proVerDate Sep 11 2014 02:12 Jan 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.IH H5546

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1 cedures described in the Federal Rules of 

2 Criminal Procedure. 

3 (ii) APPROVAL.—No application for a 

4 warrant may be made to a court without 

5 the express approval of a United States 

6 Attorney or an Assistant Attorney General. 

7 (B) PRIVILEGED INFORMATION.— 

8 (i) REVIEW.—Before retained con9 tents may be accessed pursuant to a war10 rant obtained under subparagraph (A), 

11 such contents shall be reviewed by a 

12 United States Attorney to ensure that 

13 privileged electronic communications are 

14 not accessible. 

15 (ii) BARRING PARTICIPATION.—A 

16 United States Attorney who reviews re17 tained contents pursuant to clause (i) shall 

18 be barred from— 

19 (I) participating in a legal pro20 ceeding in which an individual who 

21 sent or received an electronic commu22 nication from which such contents are 

23 retained under subsection (b) is a de24 fendant; or 


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1 (II) sharing the retained contents 

2 with an attorney who is participating 

3 in such a legal proceeding. 

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

5 retained contents have been accessed in violation of 

6 this subsection, a court may suppress evidence ob7 tained or derived from access to such contents upon 

8 motion of the defendant. 

9 (e) DEFINITIONS.—In this Act— 

10 (1) the term ‘‘agent of an attorney or legal rep11 resentative’’ means any person employed by or con12 tracting with an attorney or legal representative, in13 cluding law clerks, interns, investigators, paraprofes14 sionals, and administrative staff; 

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

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

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

18 the meaning given such term in section 2510 of title 

19 18, United States Code, and includes the Trust 

20 Fund Limited Inmate Computer System; 

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

22 contents of an electronic communication at any time 

23 after such communication is sent; 

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

25 individual in the custody of the Bureau of Prisons 


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1 or the United States Marshals Service who has been 

2 charged with or convicted of an offense against the 

3 United States, including such an individual who is 

4 imprisoned in a State institution; and 

5 (6) the term ‘‘privileged electronic communica6 tion’’ means— 

7 (A) any electronic communication between 

8 an incarcerated person and a potential, current, 

9 or former attorney or legal representative of 

10 such a person; and 

11 (B) any electronic communication between 

12 an incarcerated person and the agent of an at13 torney or legal representative described in sub14 paragraph (A). 

Æ 


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