Chairman Nadler Statement for the Markup of H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act
Washington, D.C. –Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks, as prepared, during the markup of H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act:
"The Sixth Amendment to the United States Constitution provides the right to counsel to assist in the defense of those accused of criminal offenses. In order to represent their clients in an effective manner, defense attorneys must have the ability to communicate candidly with their clients.
"The attorney-client privilege, which keeps communications between individuals and their attorneys confidential, exists—in part—to foster this sort of open communication.
"This privilege, of course, does not protect communications between a client and an attorney made in furtherance of, or in order to cover up, a crime or fraud, also known as the crime-fraud exception. But to ensure free and open communication between individuals and their attorneys—a fundamental component of the effective assistance of counsel guaranteed by the Constitution—other communications between them may remain private.
"It goes without saying that defendants who are not in custody are less constrained in their ability to have candid conversations with their attorneys than those defendants who are in custody.
"Generally speaking, out-of-custody defendants can go to their attorneys’ offices, speak with them freely on the phone, or write letters back-and-forth with their attorneys without fear of interference. To an extent, in-custody defendants also have these protections: BOP regulations ensure that inmates are able to meet with their attorneys without auditory supervision, and that they can talk on the phone and exchange letters with their attorneys without monitoring.
"But these same protections do not apply to email communications for the nearly 150,000 individuals currently in BOP custody, many of whom are in pretrial detention and have not been convicted of any crime.
"Since 2009, email communication has been available for BOP inmates through a system known as TRULINCS. TRULINCS requires inmates and their contacts to consent to monitoring, however—even in the case of communications between inmates and their attorneys.
"Over a decade ago, BOP clearly recognized the growing importance of email for purposes of efficiency and speed of communication between inmates and their outside contacts. Over time, email has rapidly grown into a primary means of communication between inmates and their attorneys, but without a system in place to maintain attorney-client privilege, the Bureau of Prisons risks severely hindering the effective representation of inmates.
"It is well past the time to rectify this problem. I am pleased that H.R. 5546 would do just that, by requiring BOP to put in place a system that will exempt from monitoring any privileged electronic communications between incarcerated individuals and their attorneys or legal representatives.
"The bill also includes additional protections, including the requirement that the contents of electronic communications be destroyed when an inmate is released from prison, as well as authorizing the suppression of evidence obtained or derived from access to information that is in violation of the provisions set forth in the bill.
"This is important legislation, and one that has been needed for quite some time. I am proud to be an original cosponsor of H.R. 5546, and I commend Mr. Jeffries and Ranking Member Collins for their efforts to develop this legislation. I urge all of my colleagues to join me in support of this bill today."