CorrLinks: Watering Down the Attorney-Client Privilege Since 2005

If you’ve ever had a loved one in a federal prison, you know exactly what I’m talking about when I say the word “CorrLinks.” According to its website, “CorrLinks is a way for family and friends to communicate with their loved ones incarcerated in prison.” If you want to stay in touch with your loved one in prison, CorrLinks, a privately owned company that operates the Trust Fund Limited Inmate Computer System (TRULINCS), is the way to go.

The Bureau of Prisons (BOP) started TRULINCS in 2005. The goal was to create a system that allowed incarcerated people to communicate with members of the public using an email-style system. Like email, the communications are, in fact, electronic. However, it is not as simple as sending and receiving messages from your go-to email account. Rather, you can receive notifications when you receive a message, log into your account and view it.

CorrLinks also has a few limits that you probably don’t run into using your ordinary email account. For example, each email has a limit of 13,000 characters. Because the system counts letters, numbers, punctuation and even spaces, you’re probably looking at less than 2,000 words per email. You can send multiple emails, but all of them will run into the 13,000-character limit. You also can only use plain text without images or videos. And, perhaps most importantly, you have to wait more than an hour for each message to go through.

You have to pay for CorrLinks, but the cost is more than you probably think.

Like every other communication method you might use to stay in touch with a loved one on the inside, CorrLinks comes at a price. The cost depends on what facility your loved one is in, how much time your loved one spends on the computer system, whether your loved one wants to print the messages and a number of other factors. One way or the other, you could be looking at anywhere between $0.05 per minute to more than $36.00 per month (and, frankly, probably more).

What’s interesting about CorrLinks is, if you’re reading this at home, you’re probably not the one paying for CorrLinks. Instead, your loved one in BOP custody is on the hook for those costs. But when you’re the one behind bars earning only a few cents a day or a friend or family member with a loved one inside, the costs of CorrLinks can hurt. Unfortunately, those costs aren’t limited to dollars and cents. And when it comes to the attorney-client privilege, the costs can hurt even more.

The ABA calls the attorney-client privilege “the backbone of the legal profession.”

The attorney-client privilege is important. In fact, as Jackie Unger wrote for the American Bar Association almost a decade ago, “[t]he attorney-client privilege is the backbone of the legal profession.” Or, as former Chief Justice William Rehnquist wrote for the U.S. Supreme Court more than 40 years ago, “[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.”

“The attorney-client privilege is in play on a daily basis,” Unger continues, because “it encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations.” Chief Justice Rehnquist put it like this: “Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.”

As Unger writes, “[t]o invoke the attorney-client privilege, the proponent must establish a communication between attorney and client in which legal advice was sought or rendered, and which was intended to be and was in fact kept confidential.” The privilege protections “both communications from client to attorney and from attorney to client….”

But there’s a catch. If you waive the attorney-client privilege, all of this goes out the window. As Steven D. Ginsburg explained for the ABA, “[a] waiver can occur from a variety of conduct that fails to maintain the confidentiality of the communication.” Even if the waiver is “inadvertent,” Ginsburg accurately says, the disclosure of an attorney-client communication to a third party “can result in waiver as a matter of law.”

The message is clear: If you want an attorney-client privilege, don’t use CorrLinks.

CorrLinks is designed to let the BOP and other government officials capitalize on these inadvertent waivers. Every time someone in BOP custody uses TRULINCS, he or she must must agree to the “TRULINCS Inmate Acknowledgment,” which includes two noteworthy things. First, it includes a “Warning” that warns you that the DOJ “may monitor activity on the system and search and retrieve any information stored within the system.”

But the “Warning” doesn’t just warn you about government monitoring and searching. It also makes you agree to that monitoring and searching: “By accessing and using this computer, I am consenting to such monitoring and information retrieval for law enforcement and other purposes. I have no expectation of privacy as to any communication on or information stored within the system.”

The “TRULINCS Inmate Acknowledgment” also has a “Responsibility” paragraph. And, between this paragraph and the “Warning” above, CorrLinks and the government work together to make sure you waive the attorney-client privilege on your CorrLinks messages, even if they’re with your lawyer: “I understand and consent to having my electronic messages and system activity monitored, read, and retained by authorized personnel. I understand and consent that this provision applies to electronic messages both to and from my attorney or other legal representative, and that such electronic messages will not be treated as privileged communications, and that I have alternative methods of conducting privileged legal communication….”

The attorney-client privilege shouldn’t only protect the privileged.

Incarcerated people may “have alternative methods of conducting privileged legal communication,” but none of those alternatives are convenient. Sure, you can send and receive “special mail” to and from your attorney. To do so, it has to be appropriately marked, and even then it is inspected for contraband even if it’s not read. You can also talk to your attorney on the phone. Yet you still need permission from your unit team for that, too.

In theory, maybe these sound like good alternative options. But, as a lawyer, I can count on one hand the amount of phone calls and snail-mail letters I’ve dealt with in the past few months. At the opposite end of the spectrum, though, is the amount of emails I’ve sent: hundreds.

The only other alternative for lawyers and their in-prison clients is in-person visits. As one judge said who considered — but ultimately rejected — an argument that the attorney-client privilege should cover CorrLinks communications, some facilities allow “[a]ttorneys [to] meet with their clients seven days a week from 6:30 a.m. to 8:00 p.m., and do not need an appointment.”

But what kind of attorneys have the time and resources to have in-person visits with all of their clients in lieu of exchanging an email? The ones with time. And the ones with clients who have money. According to the Defender Services Division, court-appointed lawyers represent 85 percent of criminal defendants at some point during their case. For the other 15 percent, resorting to snail mail, phone calls or in-person visits might be just fine. But for the vast majority, taking advantage of the protections provided by the attorney-client privilege isn’t as easy. Maybe that’s why we call it a privilege.