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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Effective Assistance 
of Counsel in the Digital Era Act’’. 
SEC. 2. ELECTRONIC COMMUNICATIONS BETWEEN AN IN-
CARCERATED 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 per-
son sends or receives an electronic communication, to ex-
clude from monitoring the contents of any privileged elec-
tronic communication. In the case that the Attorney Gen-
eral 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 sys-
tem that exists on such date may continue to be used for 
any other electronic communication. 
(b) RETENTION OF CONTENTS.—A program or sys-
tem or a modification to a program or system under sub-
section (a) may allow for retention by the Bureau of Pris-
ons of, and access by an incarcerated person to, the con-
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tents 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 re-
tained under subsection (b) may only be accessed by a per-
son other than the incarcerated person for whom such con-
tents are retained under the following circumstances: 
(1) ATTORNEY GENERAL.—The Attorney Gen-
eral may only access retained contents if necessary 
for the purpose of creating and maintaining the pro-
gram or system, or any modification to the program 
or system, through which an incarcerated person 
sends or receives electronic communications. The At-
torney General may not review retained contents 
that are accessed pursuant to this paragraph. 
(2) INVESTIGATIVE
AND
LAW
ENFORCEMENT 
OFFICERS.— 
(A) WARRANT.— 
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(i) IN GENERAL.—Retained contents 
may only be accessed by an investigative or 
law enforcement officer pursuant to a war-
rant issued by a court pursuant to the pro-
cedures 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 con-
tents may be accessed pursuant to a war-
rant 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 re-
tained contents pursuant to clause (i) shall 
be barred from— 
(I) participating in a legal pro-
ceeding in which an individual who 
sent or received an electronic commu-
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nication from which such contents are 
retained under subsection (b) is a de-
fendant; 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 ob-
tained 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 rep-
resentative’’ means any person employed by or con-
tracting with an attorney or legal representative, in-
cluding law clerks, interns, investigators, paraprofes-
sionals, and administrative staff; 
(2) the term ‘‘contents’’ has the meaning given 
such term in 2510 of title 18, United States Code; 
(3) the term ‘‘electronic communication’’ has 
the meaning given such term in section 2510 of title 
18, United States Code, and includes the Trust 
Fund Limited Inmate Computer System; 
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(4) the term ‘‘monitoring’’ means accessing the 
contents of an electronic communication at any time 
after such communication is sent; 
(5) the term ‘‘incarcerated person’’ means any 
individual in the custody of the Bureau of Prisons 
or the United States Marshals Service who has been 
charged with or convicted of an offense against the 
United States, including such an individual who is 
imprisoned in a State institution; and 
(6) the term ‘‘privileged electronic communica-
tion’’ means— 
(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 at-
torney or legal representative described in sub-
paragraph (A). 
Passed the House of Representatives September 21, 
2020. 
Attest: 
CHERYL L. JOHNSON, 
Clerk. 
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