Title: Effective Assistance of Counsel in the Digital Era Act
Policy area: Crime and Law Enforcement

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.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3524 Introduced in Senate (IS)]

<DOC>






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.

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

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 INCARCERATED PERSON AND 
              THE PERSON'S ATTORNEY.

    (a) Definitions.--In this section--
            (1) the term ``agent of an attorney or legal 
        representative'' means any person employed by or contracting 
        with an attorney or legal representative, including law clerks, 
        interns, investigators, paraprofessionals, 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''--
                    (A) has the meaning given such term in section 2510 
                of title 18, United States Code; and
                    (B) includes the Trust Fund Limited Inmate Computer 
                System;
            (4) 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;
            (5) the term ``monitoring'' means accessing the contents of 
        an electronic communication at the time that, or anytime after, 
        such communication is sent; and
            (6) the term ``privileged electronic communication'' 
        means--
                    (A) an electronic communication between an 
                incarcerated person and a potential, current, or former 
                attorney or legal representative of the incarcerated 
                person that falls within the legally recognized scope 
                of attorney-client privilege and is subject to the 
                limitations or exceptions associated with such 
                privilege; and
                    (B) an electronic communication between an 
                incarcerated person and the agent of an attorney or 
                legal representative described in subparagraph (A).
    (b) Prohibition on Monitoring.--Not later than 2 years after the 
date of enactment of this Act, the Attorney General shall issue a 
report, establish guidelines, and create a program or system, or modify 
a program or system that exists on the date of enactment of this Act, 
through which an incarcerated person may send or receive an electronic 
communication that excludes from monitoring the contents of any 
privileged electronic communication.
    (c) Features of Program or System.--The program or system created 
or modified under subsection (b) shall comply with the following:
            (1) Retention of contents.--The Bureau of Prisons may 
        retain, and provide access by an incarcerated person to, the 
        contents of electronic communications, including the contents 
        of privileged electronic communications, of the incarcerated 
        person until the date on which the incarcerated person is 
        released from the custody of the Bureau of Prisons or the 
        United States Marshals Service.
            (2) Attorney-client privilege.--Attorney-client privilege, 
        and the protections and limitations associated with such 
        privilege (including the crime fraud exception), shall apply to 
        electronic communications sent or received through the program 
        or system.
    (d) Accessing Retained Communications.--
            (1) In general.--Privileged electronic communications 
        retained under subsection (c)(1) may only be accessed by or 
        provided to a person other than the incarcerated person for 
        whom such privileged electronic communications are retained in 
        accordance with paragraphs (2) and (3) of this subsection.
            (2) Attorney general.--The Attorney General, or a designee, 
        may only access such privileged electronic communications if 
        necessary for the purpose of creating and maintaining the 
        program or system created or modified under subsection (b), or 
        any modification to the program or system. The Attorney General 
        may not review the contents of privileged electronic 
        communications pursuant to this paragraph.
            (3) Investigative and law enforcement officers.--
                    (A) Warrant.--
                            (i) In general.--Such privileged electronic 
                        communications may only be accessed and the 
                        contents of such privileged electronic 
                        communications may only be reviewed 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) Waiver.--An incarcerated person may 
                        waive the requirement to obtain a warrant under 
                        clause (i).
                            (iii) Approval.--No application for such a 
                        warrant may be made to a court without the 
                        express approval of a United States attorney, 
                        an Assistant Attorney General, or a designee 
                        thereof.
                    (B) Privileged information.--The Attorney General 
                shall establish procedures concerning the review of 
                privileged electronic communications under subparagraph 
                (A), which shall include the following:
                            (i) Review.--Before the contents of such 
                        privileged electronic communications may be 
                        reviewed by an investigative or law enforcement 
                        officer pursuant to a warrant described in 
                        subparagraph (A), the privileged electronic 
                        communications shall be reviewed by a United 
                        States attorney, an Assistant Attorney General, 
                        or a designee to determine if a limitation or 
                        exception to the attorney-client privilege 
                        applies to any of the privileged electronic 
                        communications.
                            (ii) Barring participation.--A United 
                        States attorney, an Assistant Attorney General, 
                        or a designee who reviews privileged electronic 
                        communications pursuant to clause (i) shall be 
                        barred from--
                                    (I) participating in a legal 
                                proceeding in which an individual who 
                                sent or received such a privileged 
                                electronic communication is a 
                                defendant; or
                                    (II) sharing with an attorney who 
                                is participating in such a legal 
                                proceeding such a privileged electronic 
                                communication.
            (4) Motion to suppress.--Upon motion of a defendant, a 
        court may suppress evidence obtained or derived from accessing 
        privileged electronic communications or reviewing the contents 
        of privileged electronic communications in violation of this 
        subsection.
    (e) Notice Until Program or System Is Operational.--The Attorney 
General shall provide written notice to each individual who is an 
incarcerated person at any time during the period beginning on the date 
of enactment of this Act and ending on the date on which the program or 
system created or modified under subsection (b) is operational that the 
privileged electronic communications of the individual are subject to 
monitoring.
    (f) Rules of Construction.--
            (1) Inapplicability to non-privileged electronic 
        communications.--Nothing in this section shall be construed to 
        limit the ability of investigative or law enforcement officers 
        to monitor, record, access, review, or retain nonprivileged 
        electronic communications of an incarcerated person.
            (2) Verification of agent of an attorney or legal 
        representative.--Nothing in this section shall limit the 
        authority of the Bureau of Prisons to establish policies that 
        require a potential, current, or former attorney or legal 
        representative to verify their identity, employment status, or 
        licensure to practice law prior to being granted authorization 
        to receive or send electronic communications from or to an 
        incarcerated person.
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