Incarcerated people in the federal system are uniformly denied privileged email communications with their lawyers through TRULINCS, the Federal Bureau of Prisons (BOP) email system and the only email system accessible to them. A report by UC Berkeley's Samuelson Law, Technology & Public Policy Clinic and the National Association of Criminal Defense Lawyers details misguided policies and concrete harms surrounding this issue — and urges Congress to act.
The report, Preserving Incarcerated Persons’ Attorney-Client Privilege in the 21st Century, details the unacceptability of this situation, one made even worse during the COVID-19 pandemic. It also calls for the BOP to stop its practice of requiring incarcerated clients to "voluntarily" agree that their email will be monitored and that attorney-client privilege will not apply to legal emails. And it implores the BOP to respect attorney-client privileged legal email, just as the government is required to in other contexts.
Earlier this year, the U.S. House of Representatives passed the Effective Assistance of Counsel in the Digital Era Act, H.R. 5546. Previous coverage available here. If passed by the Senate and signed into law, this legislation would prohibit the BOP from monitoring legal emails between individuals incarcerated in the federal system and their attorneys, with certain limited exceptions. It currently awaits action by the Senate Judiciary Committee. This report underscores the need for immediate action by the Senate to protect the attorney-client privilege.