Some People in Congress Agree with Us About Our E-Mails with Clients.
- A bill has been introduced in Congress that would prohibit BOP from monitoring attorney-client e-mails on the Corrlinks or Trulincs system.
- One of the bill’s sponsors is quoted in a New York Times article as expressing skepticism about BOP claims that it can’t separate out attorney-client e-mails, and the article reports an explanation from an IT expert about how it could be done.
- Even if the bill doesn’t move through the legislative process, think about using it in a case where you might want to seek an anticipatory order like one in New York that was the subject of a post last year.
NOW THE BLOG:
Last year, I put up a post about attorney-client use of the BOP “Corrlinks” or “Trulincs” e-mail system. (See “Do They Get to Read Your Attorney-Client E-Mail Just Because They Say They’re Going To? What If You Tell Them In the E-Mail They Can’t? Or Get a Court to Tell Them?” in the July 2014 link at the right.) I reminded you of the BOP warning given to both clients and attorneys who use this system that it reserves the right to monitor the e-mails and so they may not be kept confidential. I also noted some recent litigation in New York in which a judge had ordered that prosecutors would not be permitted to look at any e-mails between the attorneys and clients in that case. I attached some of the briefing and talked a little bit about the arguments made there, as well as additional arguments we might make.
Well, there’s at least a couple of Congressmen who agree with the judge in New York about this being a problem. Congressman Jeffries of New York, a Democrat, and Congressman Collins of Georgia, a Republican, recently introduced a bill – numbered H.R. 3864 – that provides, “Except as provided in subsection (b) [creating an exception for communications believed to ‘pose[ ] a threat to national security’] it shall be unlawful for any person acting under the authority of the United States to monitor any electronic communication (as defined in section 2510 of title 18, United States Code) to which a prisoner in a Bureau of Prisons correctional facility is a party, if that communication is subject to attorney-client privilege.” A pdf copy of the bill is linked here and it can also be found on the www.congress.gov website, along with the latest action on the bill, if you want to enter that internet link on your browser (or just click here to go to it).
In an interview about the bill reported in the New York Times (see the attached article linked here), Congressman Jeffries expressed skepticism about BOP concerns that the BOP e-mail system didn’t allow BOP to filter attorney-client e-mails out from other e-mails. He opined that “[i]t seems to me that we have the ability to develop a system where attorney-client communication can be segregated out.” The article then reports an explanation by an IT company research director about easy ways to do this, including the use of criteria such as “sent to” or “received from.” This same article also quotes two former United States Attorneys who are now defense attorneys explaining the need for such confidential e-mail communication.
Whether this bill will pass is of course impossible to say, and it’s just at the early stages of the legislative process, but we might think about using it as a little extra leverage if and when we have to litigate the issue like the attorneys in New York. We can now point not just to the district court ruling in the case I posted about last year, but also the views of at least some Congressmen and the others quoted in the New York Times article. And remember the argument that worked in the New York case, as described in my prior post and reflected in the documents linked to that post, wasn’t an argument that the BOP was absolutely precluded from monitoring e-mails as a matter of law. The argument was that the court had discretion to proactively order it in circumstances where e-mail communication was shown to be critical to the attorney’s effective representation and consultation with the client. This suggests the approach of filing anticipatory motions seeking discretionary “pre-email” rulings is something to consider, at least in the right case.