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Effective Assistance of Counsel in the Digital Era Act

Floor Speech

Date: Sept. 21, 2020
Location: Washington, DC

Mr. Speaker, I rise today in support of H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act.

As a defense attorney, I cannot overemphasize the importance of protecting attorney-client privilege. The ability to have confidential discussions with a client for the purpose of providing legal advice is foundational to providing effective assistance of counsel.

This bill will help modernize our criminal justice system by extending attorney-client privilege to electronic communications sent or received through the Bureau of Prisons' email system.

This will allow incarcerated individuals to communicate with their attorneys efficiently and privately. And it would prohibit the Bureau of Prisons from monitoring privileged email communications.

We all agree that attorney-client privilege is a vital component of our legal system, as it helps to ensure that a criminal defendant has an effective advocate in the courtroom.

Emails between incarcerated individuals and their attorneys should absolutely fall under attorney-client protections. This bill would protect the rights of incarcerated men and women to speak openly and honestly with their attorneys via email without fear that the prosecution is monitoring those communications.

Other methods of communication, such as in-person meetings and letters, can be particularly burdensome and time consuming. Even if an attorney is in close proximity to the incarcerated client, it could take hours to travel to a detention facility and visit with that client.

H.R. 5546 requires the Attorney General to ensure that BOP's email system excludes the contents of electronic communications between an incarcerated person and his or her attorney.

The bill stipulates that the protections and limitations associated with attorney-client privilege, including the crime-fraud exception, apply to electronic communications. It does permit BOP to retain electronic communications until the incarcerated person is released but specifies that the contents may only be accessed under very limited circumstances.

Finally, it allows a court to suppress evidence obtained or derived from access to the retained contents if such access were granted in violation of the act.

Congress must continually address the application of existing law to emerging technology. This is a commonsense application of existing law to a technology that is decades old. It is time we act.

Mr. Speaker, I urge my colleagues to join me in supporting H.R.

I do appreciate this bill, and the only question I sometimes have is that it seems like email has been around for a long time, and we are just getting to it, but better later than never.

But I also think it is really important to recognize a lot of these cases are public defense cases. You will have public defenders who have bigger caseloads than we would like sometimes and clients that don't necessarily trust the system.

This is good for defendants. This is good for lawyers. This is good for overall faith in the criminal justice system. It protects people, and it doesn't just protect the client who that public defender is recognizing. It helps all of his other clients if he or she can communicate with all of their clients quicker and more efficiently.

This is a really good bill. I urge everybody to support it, and I yield back the balance of my time.