HR 3864 is a bill that was introduced to the House of Representatives at the end of October. Introduced by a Democrat from New York and a Republican from Georgia, the bill would make it illegal for federal prosecutors – or any other person acting under the authority of the United States – to read emails from prisoners in a Federal facility that should be subject to attorney-client privilege, the only exception being in cases of national security. This is an important measure towards safe guarding defendants Sixth Amendment rights and creating a more just legal system.
The New York Times highlights conflicting opinions from judges in Brooklyn on the issue. One judge forced prosecutors to stop, “suggesting they were looking for a strategic advantage.” Another judge decided that because defense lawyers have other ways to communicate with their clients, government monitoring of defendants’ email was not an unreasonable impingement on their rights.
The Democratic Representative, Hakeem Jeffries, noted that because of the “tremendous innovation” in this country, we should “have the ability to develop a system where attorney-client communication can be segregated out.” Of course, the Bureau of Prison email system requires users to acknowledge that every email is being monitored, and automated monitoring would make separating privileged messages from others impossible. Defense attorneys note that the cost of an improved email system would quickly be offset by saving tax payer dollars for court appointed defense that must spend hours getting in and out of prisons and jails.
This legislation does not address similar monitoring on telephone calls from prisons and jails, nor does it address the exorbitant prices charged by companies granted a monopoly inside a confinement facility. It is certainly a step towards leveling the playing field for defendants and their defense attorneys that must build a case for a client in custody.