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. 

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


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1 SECTION 1. SHORT TITLE. 

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

3 of Counsel in the Digital Era Act’’. 

4 SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN IN5 CARCERATED PERSON AND THE PERSON’S 

6 ATTORNEY. 

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

8 180 days after the date of the enactment of this Act, the 

9 Attorney General shall create a program or system, or 

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

11 enactment of this Act, through which an incarcerated per12 son sends or receives an electronic communication, to ex13 clude from monitoring the contents of any privileged elec14 tronic communication. In the case that the Attorney Gen15 eral creates a program or system in accordance with this 

16 subsection, the Attorney General shall, upon implementing 

17 such system, discontinue using any program or system 

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

19 which an incarcerated person sends or receives a privileged 

20 electronic communication, except that any program or sys21 tem that exists on such date may continue to be used for 

22 any other electronic communication. 

23 (b) RETENTION OF CONTENTS.—A program or sys24 tem or a modification to a program or system under sub25 section (a) may allow for retention by the Bureau of Pris26 ons of, and access by an incarcerated person to, the conVerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546

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1 tents of electronic communications, including the contents 

2 of privileged electronic communications, of the person 

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

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

5 privilege, and the protections and limitations associated 

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

7 applies to electronic communications sent or received 

8 through the program or system established or modified 

9 under subsection (a). 

10 (d) ACCESSING RETAINED CONTENTS.—Contents re11 tained under subsection (b) may only be accessed by a per12 son other than the incarcerated person for whom such con13 tents are retained under the following circumstances: 

14 (1) ATTORNEY GENERAL.—The Attorney Gen15 eral may only access retained contents if necessary 

16 for the purpose of creating and maintaining the pro17 gram or system, or any modification to the program 

18 or system, through which an incarcerated person 

19 sends or receives electronic communications. The At20 torney General may not review retained contents 

21 that are accessed pursuant to this paragraph. 

22 (2) INVESTIGATIVE AND LAW ENFORCEMENT

23 OFFICERS.— 

24 (A) WARRANT.— 


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1 (i) IN GENERAL.—Retained contents 

2 may only be accessed by an investigative or 

3 law enforcement officer pursuant to a war4 rant issued by a court pursuant to the pro5 cedures described in the Federal Rules of 

6 Criminal Procedure. 

7 (ii) APPROVAL.—No application for a 

8 warrant may be made to a court without 

9 the express approval of a United States 

10 Attorney or an Assistant Attorney General. 

11 (B) PRIVILEGED INFORMATION.— 

12 (i) REVIEW.—Before retained con13 tents may be accessed pursuant to a war14 rant obtained under subparagraph (A), 

15 such contents shall be reviewed by a 

16 United States Attorney to ensure that 

17 privileged electronic communications are 

18 not accessible. 

19 (ii) BARRING PARTICIPATION.—A 

20 United States Attorney who reviews re21 tained contents pursuant to clause (i) shall 

22 be barred from— 

23 (I) participating in a legal pro24 ceeding in which an individual who 

25 sent or received an electronic commuVerDate Sep 11 2014 03:56 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5546.RFS H5546

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1 nication from which such contents are 

2 retained under subsection (b) is a de3 fendant; or 

4 (II) sharing the retained contents 

5 with an attorney who is participating 

6 in such a legal proceeding. 

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

8 retained contents have been accessed in violation of 

9 this subsection, a court may suppress evidence ob10 tained or derived from access to such contents upon 

11 motion of the defendant. 

12 (e) DEFINITIONS.—In this Act— 

13 (1) the term ‘‘agent of an attorney or legal rep14 resentative’’ means any person employed by or con15 tracting with an attorney or legal representative, in16 cluding law clerks, interns, investigators, paraprofes17 sionals, and administrative staff; 

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

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

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

21 the meaning given such term in section 2510 of title 

22 18, United States Code, and includes the Trust 

23 Fund Limited Inmate Computer System; 


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

2 contents of an electronic communication at any time 

3 after such communication is sent; 

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

5 individual in the custody of the Bureau of Prisons 

6 or the United States Marshals Service who has been 

7 charged with or convicted of an offense against the 

8 United States, including such an individual who is 

9 imprisoned in a State institution; and 

10 (6) the term ‘‘privileged electronic communica11 tion’’ means— 

12 (A) any electronic communication between 

13 an incarcerated person and a potential, current, 

14 or former attorney or legal representative of 

15 such a person; and 

16 (B) any electronic communication between 

17 an incarcerated person and the agent of an at18 torney or legal representative described in sub19 paragraph (A). 

Passed the House of Representatives September 21, 

2020. 

Attest: CHERYL L. JOHNSON, 

Clerk. 


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