II 

117TH CONGRESS 

2D SESSION S. 3524 

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 SENATE OF THE UNITED STATES 

JANUARY 19 (legislative day, JANUARY 18), 2022 

Mr. WYDEN (for himself and Ms. LUMMIS) introduced the following bill; which 

was read twice and 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’’. 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 3524 IS

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

3 ATTORNEY. 

4 (a) DEFINITIONS.—In this section— 

5 (1) the term ‘‘agent of an attorney or legal rep6 resentative’’ means any person employed by or con7 tracting with an attorney or legal representative, in8 cluding law clerks, interns, investigators, paraprofes9 sionals, and administrative staff; 

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

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

12 (3) the term ‘‘electronic communication’’— 

13 (A) has the meaning given such term in 

14 section 2510 of title 18, United States Code; 

15 and 

16 (B) includes the Trust Fund Limited In17 mate Computer System; 

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

19 individual in the custody of the Bureau of Prisons 

20 or the United States Marshals Service who has been 

21 charged with or convicted of an offense against the 

22 United States, including such an individual who is 

23 imprisoned in a State institution; 

24 (5) the term ‘‘monitoring’’ means accessing the 

25 contents of an electronic communication at the time 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 3524 IS

1 that, or anytime after, such communication is sent; 

2 and 

3 (6) the term ‘‘privileged electronic communica4 tion’’ means— 

5 (A) an electronic communication between 

6 an incarcerated person and a potential, current, 

7 or former attorney or legal representative of the 

8 incarcerated person that falls within the legally 

9 recognized scope of attorney-client privilege and 

10 is subject to the limitations or exceptions asso11 ciated with such privilege; and 

12 (B) an electronic communication between 

13 an incarcerated person and the agent of an at14 torney or legal representative described in sub15 paragraph (A). 

16 (b) PROHIBITION ON MONITORING.—Not later than 

17 2 years after the date of enactment of this Act, the Attor18 ney General shall issue a report, establish guidelines, and 

19 create a program or system, or modify a program or sys20 tem that exists on the date of enactment of this Act, 

21 through which an incarcerated person may send or receive 

22 an electronic communication that excludes from moni23 toring the contents of any privileged electronic commu24 nication. 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 3524 IS

1 (c) FEATURES OF PROGRAM OR SYSTEM.—The pro2 gram or system created or modified under subsection (b) 

3 shall comply with the following: 

4 (1) RETENTION OF CONTENTS.—The Bureau of 

5 Prisons may retain, and provide access by an incar6 cerated person to, the contents of electronic commu7 nications, including the contents of privileged elec8 tronic communications, of the incarcerated person 

9 until the date on which the incarcerated person is 

10 released from the custody of the Bureau of Prisons 

11 or the United States Marshals Service. 

12 (2) ATTORNEY-CLIENT PRIVILEGE.—Attorney13 client privilege, and the protections and limitations 

14 associated with such privilege (including the crime 

15 fraud exception), shall apply to electronic commu16 nications sent or received through the program or 

17 system. 

18 (d) ACCESSING RETAINED COMMUNICATIONS.— 

19 (1) IN GENERAL.—Privileged electronic commu20 nications retained under subsection (c)(1) may only 

21 be accessed by or provided to a person other than 

22 the incarcerated person for whom such privileged 

23 electronic communications are retained in accord24 ance with paragraphs (2) and (3) of this subsection. 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 3524 IS

1 (2) ATTORNEY GENERAL.—The Attorney Gen2 eral, or a designee, may only access such privileged 

3 electronic communications if necessary for the pur4 pose of creating and maintaining the program or 

5 system created or modified under subsection (b), or 

6 any modification to the program or system. The At7 torney General may not review the contents of privi8 leged electronic communications pursuant to this 

9 paragraph. 

10 (3) INVESTIGATIVE AND LAW ENFORCEMENT

11 OFFICERS.— 

12 (A) WARRANT.— 

13 (i) IN GENERAL.—Such privileged 

14 electronic communications may only be 

15 accessed and the contents of such privi16 leged electronic communications may only 

17 be reviewed by an investigative or law en18 forcement officer pursuant to a warrant 

19 issued by a court pursuant to the proce20 dures described in the Federal Rules of 

21 Criminal Procedure. 

22 (ii) WAIVER.—An incarcerated person 

23 may waive the requirement to obtain a 

24 warrant under clause (i). 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 3524 IS

1 (iii) APPROVAL.—No application for 

2 such a warrant may be made to a court 

3 without the express approval of a United 

4 States attorney, an Assistant Attorney 

5 General, or a designee thereof. 

6 (B) PRIVILEGED INFORMATION.—The At7 torney General shall establish procedures con8 cerning the review of privileged electronic com9 munications under subparagraph (A), which 

10 shall include the following: 

11 (i) REVIEW.—Before the contents of 

12 such privileged electronic communications 

13 may be reviewed by an investigative or law 

14 enforcement officer pursuant to a warrant 

15 described in subparagraph (A), the privi16 leged electronic communications shall be 

17 reviewed by a United States attorney, an 

18 Assistant Attorney General, or a designee 

19 to determine if a limitation or exception to 

20 the attorney-client privilege applies to any 

21 of the privileged electronic communica22 tions. 

23 (ii) BARRING PARTICIPATION.—A 

24 United States attorney, an Assistant At25 torney General, or a designee who reviews 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 3524 IS

1 privileged electronic communications pur2 suant to clause (i) shall be barred from— 

3 (I) participating in a legal pro4 ceeding in which an individual who 

5 sent or received such a privileged elec6 tronic communication is a defendant; 

7 or 

8 (II) sharing with an attorney who 

9 is participating in such a legal pro10 ceeding such a privileged electronic 

11 communication. 

12 (4) MOTION TO SUPPRESS.—Upon motion of a 

13 defendant, a court may suppress evidence obtained 

14 or derived from accessing privileged electronic com15 munications or reviewing the contents of privileged 

16 electronic communications in violation of this sub17 section. 

18 (e) NOTICE UNTIL PROGRAM OR SYSTEM IS OPER19 ATIONAL.—The Attorney General shall provide written no20 tice to each individual who is an incarcerated person at 

21 any time during the period beginning on the date of enact22 ment of this Act and ending on the date on which the 

23 program or system created or modified under subsection 

24 (b) is operational that the privileged electronic commu25 nications of the individual are subject to monitoring. 


kjohnson on DSK79L0C42PROD with BILLS
8 

•S 3524 IS

1 (f) RULES OF CONSTRUCTION.— 

2 (1) INAPPLICABILITY TO NON-PRIVILEGED

3 ELECTRONIC COMMUNICATIONS.—Nothing in this 

4 section shall be construed to limit the ability of in5 vestigative or law enforcement officers to monitor, 

6 record, access, review, or retain nonprivileged elec7 tronic communications of an incarcerated person. 

8 (2) VERIFICATION OF AGENT OF AN ATTORNEY

9 OR LEGAL REPRESENTATIVE.—Nothing in this sec10 tion shall limit the authority of the Bureau of Pris11 ons to establish policies that require a potential, cur12 rent, or former attorney or legal representative to 

13 verify their identity, employment status, or licensure 

14 to practice law prior to being granted authorization 

15 to receive or send electronic communications from or 

16 to an incarcerated person. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS