06 Apr Attorney-Client Privilege Is Tested When It Comes To Email In Prison
Attorney-client privilege is supposed to be a guarantee in the United States. However, when it comes to people in prison, that isn’t always the case. Justice advocates say that the BOP is violating attorney-client privilege by monitoring email that goes through its system.
The email service that the BOP provides for incarcerated people in prison is TRULINCS. It is a fee-based system run by the private company Corrlinks. The federal BOP system and some states use its services.
TRULINCS gives people in prison access to email without letting them access the Internet at large. It limits emails to 13,000 characters and does not allow for attachments. Incarcerated people pay $0.05 per minute to use the system. It can cost up to $0.30 to send an email, a not-insignificant fee considering that wages in BOP prisons start at $0.12 per hour.
But another important element of TRULINCS is privacy, or the lack thereof. All messages that come in or go out through TRULINCS can be monitored. That’s true whether they are sent between an incarcerated person and their family or even their attorney.
Incarcerated people have to agree to monitoring to use the email system.
The reason that email communications are monitored is that the people who use them don’t have much of a choice. Before they can use TRULINCS, people must agree to the terms and conditions, which include monitoring.
This agreement explicitly states that the BOP can read emails between attorneys and their clients and that these conversations are not privileged. It also says that the BOP can share the content of these emails with law enforcement agencies and the courts. That creates an issue for people who want to use the email for what should be privileged communications.
NPR spoke to Federal Bureau of Prisons spokesperson Scott Taylor about TRULINCS. He said that people who use the system “voluntarily consent to having all system activity monitored and retained.”
But people must agree to these terms to use the system, to which there is no real alternative. If consenting to monitoring is the only way to use email, it is only so voluntary in nature.
Digital communication gives people easier access to counsel.
Taylor also told NPR that people in prison have other ways of communicating with their lawyers without being monitored. This includes visits, letters and phone calls. But the onset of the pandemic has limited travel in and out of prisons as well as movement inside them. Catherine Crump, director of the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law said that this has made these avenues exponentially more difficult to use.
“[The] BOP reading inmates’ email was concerning even before the pandemic, but now email is one of the few ways attorneys can reliably communicate with their clients when they’re in custody,” she said.
But even before the pandemic, email facilitated communication between attorneys and their clients in prison when that was otherwise difficult.
Other methods of communications have serious limitations.
People in prison do have access to phones, but that access is limited. They can make outgoing calls only. Incoming calls are strictly prohibited, meaning attorneys can’t call their clients with important information. In addition, the most common way of calling out from prison is via a collect call. But most cell phones won’t receive collect calls.
Letters come with their own issues. Time is a major factor. In the time it takes mail to travel, get sorted and then delivered to a person in prison, the information inside may no longer be relevant or of use to that person. If, for example, an attorney wants to deliver an important message ahead of a hearing, it may not reach their client in time.
There are also several barriers to in-person meetings. For starters, physical distance plays an enormous role. Many prisons are in deeply rural areas, many hours away from an incarcerated person’s home. The First Step Act did amend this somewhat, but even under those regulations, the BOP can place a person up to 500 driving miles from their home base.
That means that even if an attorney wants to speak with their client for 15 minutes, it could still take them an entire day of driving and waiting to do so.
Congress has started to act.
This issue of attorney-client privilege over email has made its way to Congress. And, perhaps surprisingly, it has received thoroughly bipartisan support.
Rep. Hakeem Jefferies (D-NY) first introduced the Effective Assistance of Counsel in the Digital Era Act (H.R. 5546) in 2020. While the bill passed the House, it was one of many that never made it past Senator Mitch McConnell’s desk to a Senate vote. But Jeffries reintroduced the bill as H.R. 546 earlier this year in February. It passed with almost unanimous support by a 414-11 margin. The bill would require the attorney general to prohibit the BOP from monitoring emails between attorneys and their incarcerated clients. Officials would have to obtain a warrant in order to read those emails.
While the bill sailed through the House, it may have a tougher time in the Senate due to its price tag. Officials at the Congressional Budget Office (CBO) suggested that the BOP would need to build a new email system to comply with the bill should it become law. It would also need to create a list of approved lawyers to create filters in the system. The CBO estimated that that project would cost upwards of $52 million over the next four years. That could cause the fight over attorney-client privilege via email to continue.
On Attorney-Client Privilege and Email
The Supreme Court has established the importance of attorney-client privilege in encouraging clients to make “full and frank” disclosures to their attorneys. Limiting this privilege in one form of communication or another presents an obstacle to the attorney’s ability to represent that client to the best of their ability.
For many people in prison, email is often the fastest and easiest way to communicate with people. And in situations like the ongoing pandemic, it is sometimes the only way to have expedient, reliable, two-way communications. TRULINCS offers a much-needed service to incarcerated people and their social connections. But it does so at the expense of an important pillar of Americans’ Sixth Amendment rights. That is something H.R. 546 looks to change.