Letter From the President of The New York County Lawyers' Association

2015-10-02 15:36

Attorney-Client Email Monitoring in the Federal Prison System

Telecommunications are integral to human relationships in today’s society. For attorneys, email has supplanted other technologies as the primary medium for communicating with clients. Email has even become an important tool for attorneys to communicate with their incarcerated clients.  In 2005, the Federal Bureau of Prisons (“BOP”) launched a pilot program offering inmates limited email access through the Trust Fund Limited Inmate Computer System known as TRULINCS. Today, all BOP facilities provide inmates email access through TRULINCS.  However, to use TRULINCS, inmates must acknowledge that all of their emails, including legal emails, are monitored by the BOP, and consent to the monitoring. The compulsory acknowledgment and consent to monitoring of their legal emails waives the attorney-client privilege with respect to inmates’ TRULINCS emails. There is no exception for attorney-client email communications as there is for traditional postal mail correspondence, unmonitored telephone calls, and in-person meetings. Relying on the privilege waiver, the United States Attorney’s Office in at least some federal districts requires the BOP to turn over copies of TRULINCS communications between criminal defendants and counsel, and prosecutors have been permitted to offer the emails in evidence against the defendants.

Prison monitoring of inmates’ email communications creates at least two significant problems. First, although defense lawyers must avoid making confidential disclosures and warn their clients against doing so, defendants sometimes discuss confidential information in TRULINCS emails. More troubling, the BOP’s email monitoring policy deprives attorneys of the most effective means to promptly inform and consult with their inmate clients regarding important case matters, as required by Model Rule of Professional Conduct 1.4,8, and frustrates their ability to provide meaningful Sixth Amendment representation. Moreover, by forcing inmates and their attorneys to rely on traditional media to communicate confidentially, the BOP’s legal email monitoring policy causes significant administrative burdens and may thereby decrease prison security.

Additionally, because the BOP’s legal email monitoring policy restricts inmates’ ability to communicate with their attorneys, it is ripe for challenge on constitutional grounds. The BOP’s policy raises serious constitutional concerns and may be vulnerable to challenge on the grounds that it is not reasonably related to legitimate penological interests and unreasonably restricts pretrial detainees’ Sixth Amendment right of access to counsel.

The New York County Lawyers' Association has issued a report on this subject, and also explains that the BOP could provide a secure, unmonitored legal email system at a relatively low cost using existing email encryption technology. It concludes that a change in BOP policy to permit attorneys and their incarcerated clients to communicate confidentially via email would improve both the quality of representation of criminal defendants detained in BOP facilities and the reality of justice in the federal criminal justice system. The New York County Lawyers' Association has urged the BOP to change its policy to allow confidential attorney-client email communications in its report, “Attorney-Client Email Monitoring in the Federal Prison System.”

For more information about this issue and to read the NYCLA report, click here

 

Truly yours, 

Carol A. Sigmond, president, New York County Lawyers' Association