Growing Need to Protect Attorney-Client Emails
“It’s common attorney sense, a bedrock of American law: when your attorney communicates with you, that’s supposed to be privileged,” said Jumana Musa, director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers (NACDL).
Common sense or not, that principle has not stopped federal prosecutors from prying into electronic communications to pursue convictions. The practice dates to at least 2011 when an incarcerated former Pennsylvania state senator’s emails to his attorneys were used as evidence to lengthen his sentence.
An assistant U.S. attorney in New York’s Eastern District warned defense lawyers in June 2014 that such communications were fair game, writing that “emails between inmates and their attorneys ... are not privileged, and thus the office intends to review all emails.”
A bipartisan bill passed in the U.S. House of Representatives on Sept. 21, 2020, seeks to end this practice by barring emails from prisoners to their lawyers from being monitored.
The Effective Assistance of Counsel in the Digital Era Act, co-sponsored by Georgia Republican Rep. Doug Collins and New York Democrat Rep. Hakeem Jeffries, drew praise from the American Bar Association, as well as the NACDL and civil rights advocates.
Jeffries has proposed similar bills before but hopes his persistence will be rewarded by the growing momentum of the criminal reform movement.
“Email is the most efficient way for an attorney to communicate with an incarcerated client and should enjoy the same protection as telephone calls and other forms of private communication,” Jeffries said.
The Bureau of Prisons had previously claimed its system lacked the complexity to sort emails to or from specific email addresses. An update in technology by October 2017 prompted then-Acting U.S. Attorney Bridget Rohde to inform the Federal Defenders of New York of the change in policy.
“The government now agrees to request that the BOP exclude from most productions communications between a defendant and his or her attorneys and other legal assistants and paralegals on their staff,” Rohde stated.
Several unanswered Freedom of Information Act (FOIA) requests by the NACDL led the group to file a FOIA lawsuit in October 2018 to discover to what extent prison emails were being filtered. Proponents of the new bill agree that it would allay fears of government intrusion into attorney-client communications to rest.