Effective Assistance of Counsel in the Digital Era 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. Short title This Act may be cited as the Effective Assistance of Counsel in the Digital Era Act 2. Electronic communications between an incarcerated person and the person’s attorney (a) Prohibition on monitoring Not later than 180 days after the date of the enactment of this Act, the Attorney General shall create a program or system, or modify any program or system that exists on the date of enactment of this Act, through which an incarcerated person sends or receives an electronic communication, to exclude from monitoring the contents of any privileged electronic communication. In the case that the Attorney General creates a program or system in accordance with this subsection, the Attorney General shall, upon implementing such system, discontinue using any program or system that exists on the date of enactment of this Act through which an incarcerated person sends or receives a privileged electronic communication, except that any program or system that exists on such date may continue to be used for any other electronic communication. (b) Retention of contents A program or system or a modification to a program or system under subsection (a) may allow for retention by the Bureau of Prisons of, and access by an incarcerated person to, the contents of electronic communications, including the contents of privileged electronic communications, of the person until the date on which the person is released from prison. (c) Attorney-Client privilege Attorney-client privilege, and the protections and limitations associated with such privilege (including the crime fraud exception), applies to electronic communications sent or received through the program or system established or modified under subsection (a). (d) Accessing retained contents Contents retained under subsection (b) may only be accessed by a person other than the incarcerated person for whom such contents are retained under the following circumstances: (1) Attorney General The Attorney General may only access retained contents if necessary for the purpose of creating and maintaining the program or system, or any modification to the program or system, through which an incarcerated person sends or receives electronic communications. The Attorney General may not review retained contents that are accessed pursuant to this paragraph. (2) Investigative and law enforcement officers (A) Warrant (i) In general Retained contents may only be accessed by an investigative or law enforcement officer pursuant to a warrant issued by a court pursuant to the procedures described in the Federal Rules of Criminal Procedure. (ii) Approval No application for a warrant may be made to a court without the express approval of a United States Attorney or an Assistant Attorney General. (B) Privileged information (i) Review Before retained contents may be accessed pursuant to a warrant obtained under subparagraph (A), such contents shall be reviewed by a United States Attorney to ensure that privileged electronic communications are not accessible. (ii) Barring participation A United States Attorney who reviews retained contents pursuant to clause (i) shall be barred from— (I) participating in a legal proceeding in which an individual who sent or received an electronic communication from which such contents are retained under subsection (b) is a defendant; or (II) sharing the retained contents with an attorney who is participating in such a legal proceeding. (3) Motion to suppress In a case in which retained contents have been accessed in violation of this subsection, a court may suppress evidence obtained or derived from access to such contents upon motion of the defendant. (e) Definitions In this Act— (1) the term agent of an attorney or legal representative (2) the term contents (3) the term electronic communication (4) the term monitoring (5) the term incarcerated person (6) the term privileged electronic communication (A) any electronic communication between an incarcerated person and a potential, current, or former attorney or legal representative of such a person; and (B) any electronic communication between an incarcerated person and the agent of an attorney or legal representative described in subparagraph (A). September 16, 2020 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Summary: Effective Assistance of Counsel in the Digital Era Act This bill prohibits the Department of Justice from monitoring the contents of a privileged electronic communication between an incarcerated person and his or her legal representative.