Inside federal prison inmates are asked to “voluntarily” consent to electronic surveillance in order to use the office’s email system. Above is a prison cell block at the El Reno Correctional Facility in Oklahoma in 2015. Saul Loeb / AFP via Getty Images hide the caption
Saul Loeb / AFP via Getty Images
Saul Loeb / AFP via Getty Images
It’s a staple for some of the longest-running crime shows on television: communication between individuals charged with crime and their attorneys is protected from government snooping in what is known as the Attorney-Client Privilege.
In practice, things don’t always work that way, especially when it comes to email messages between prisoners in the federal system and their lawyers. This is because inmates within federal prison are being asked to “voluntarily” consent to electronic surveillance in order to use the office’s email system.
The National Association of Criminal Defense Lawyers says there is nothing voluntary. If detained persons do not consent to the surveillance, they are excluded from e-mail communication. The group and a prominent civil liberties clinic at the University of California at Berkeley are now sounding the alarm. They say their concerns were heightened during a pandemic that has made personal visits particularly risky.
“BOP’s reading inmates’ emails was a problem before the pandemic, but now email is one of the few ways lawyers can reliably communicate with their clients when they are in custody,” said Catherine Crump, Director of Samuelson Law, Technology & Public Policy Clinic at Berkeley Law.
Together with the NACDL, the clinic has sued the Federal Prison Office for more information on how and where email messages exchanged through the prison service known as TRULINCS are being monitored.
“We are in 2021 – the system has not caught up,” said Jumana Musa, director of the NACDL’s Fourth Change Center. Musa said her group had not found an “overarching policy” in the Justice Department, with some disagreement even among prosecutors at the same US law firm. While some DOJ offices have developed specific guidelines that determine when federal prosecutors can read the emails, others either have no guidelines or have not described what they are doing.
Action in Congress
Critics also urge Congress to act. In February, the House of Representatives overwhelmingly approved effective legal advice in the digital era law by 414 votes to 11.
Legislation awaiting action in the Senate would The attorney general must ensure that the BOP does not monitor the content of emails between detainees and their lawyers and receives an arrest warrant for access to their content. The bill makes it clear that in situations where a prisoner or detainee is suspected of working with an attorney to actively commit or cover up a crime or fraud, the authorities can breach attorney and client privilege.
Bill sponsor Rep. Hakeem Jeffries, DN.Y., said the vote had won a large bipartisan majority at a time when lawmakers disagreed on much.
“It is time we looked into this formidable practice of breaking the presumption of innocence, facilitating due process and permitting a basic fairness that pervades all aspects of our judicial system,” Jeffries said.
The Congressional Budget Office forecast that the federal prison office would have to build a new email system and register of licensed attorneys if the legislation passed the Senate – measures that could cost it $ 52 million by 2025.
Scott Taylor, a spokesman for the Federal Bureau of Prisons, noted that inmates and their contacts who use the e-mail system “voluntarily consent to the monitoring and maintenance of all system activity.” He said prisoners and their lawyers can communicate via phone, letter, or visit that is not monitored by staff.
An essential tool
Federal judges have responded differently to the concerns. Some have expressed dismay that it is happening. Others have ordered the government not to read the emails.
Email can be an essential means of communication for lawyers and their clients. Ken White, a defense attorney in California, points out that visiting someone in jail, let alone in jail, is “extremely time-consuming and arduous.”
“Visiting someone, even for five minutes, is often a process that takes several hours,” said White.
Now that the coronavirus pandemic has hit the US, some personal visits have been restricted overall and the mail is slow. However, White said he is still trying to restrict his communications on the BOP email system to inform detained clients of the dates of their next hearings, but not the strategy or facts of their case.
Peter Goldberger, a defense attorney based in Ardmore, Pa., Has firsthand experience of how email surveillance can harm a defendant.
Prosecutors collected communications from his client, former Senator Vincent Fumo, after Fumo was convicted of conspiracy, fraud, obstruction of justice and tax violations.
The government used Fumo’s own emails against him at his retrial when the judge partially quoted them to pin another six months to his prison sentence. On the news, Fumo expressed “frustration” with prosecutors, saying that he was “convicted of technical convictions [BS]”and called the jury that convicted him” stupid, “said his lawyer.
Clients want to communicate with their attorneys, and it’s easy to forget their attorneys’ warnings, Goldberger said.
“It seems to me that it would be so easy to repair electronically and so fair and appropriate for everyone,” Goldberger said. “The ability of lawyers to communicate with their clients is made easier – not more difficult and not more risky.”