Washington, DC (Oct. 18, 2018) – Today, the National Association of Criminal Defense Lawyers (NACDL) filed suit in federal court demanding that the Federal Bureau of Prisons (BOP) and Department of Justice (DOJ) release records about their monitoring of the attorney-client communications of individuals in federal prisons as well as federal prosecutors’ use of those emails against those individuals in court.
“Denying individuals in federal prisons access to attorney-client privileged email makes absolutely no sense,” said NACDL President Drew Findling. “Clients in the federal prison system are often incarcerated far from where their attorneys are based. This means that, short of using traditional postal mail or scheduling an unmonitored call, either of which often takes weeks, counsel is forced to expend significant travel time to engage in the constitutionally-protected, privileged communications to which our clients are entitled. And all because the federal government chooses to impose this burden on defense lawyers and our clients and to deny protection for the far more efficient and readily available mode of communication in the 21st century -- email. NACDL is committed to shining a light on this serious and wholly unnecessary problem and bringing it to an end.”
There are more than 150,000 individuals in federal custody held in BOP facilities. To send email, these individuals must use a BOP system known as TRULINCS. This system requires them to acknowledge that their communications, including messages to or from their attorneys, will be monitored and not treated as privileged. The federal government can—and has—used emails sent between individuals in federal prisons and their attorneys against those individuals in court.
While courts have ruled that the government is barred by the Constitution from reading the legal postal mail of individuals in federal prisons, courts have not resolved this question for email, and the government has taken the position that it is entitled to read these individuals’ legal email. “If the Constitutional rights already established by the courts are going to carry forward into the 21st century, then they must apply equally to email communications,” said Catherine Crump, Director of UC Berkeley School of Law’s Samuelson Clinic for Law, Technology & Public Policy, and lead counsel on the case.
In order to bring this problem to light and inform the critically important policy discussions that are called for on these issues, NACDL submitted Freedom of Information Act (FOIA) requests to the BOP and to multiple other DOJ components seeking the release of records concerning the federal government’s collection and monitoring of email communications between individuals in federal prisons and their attorneys, copies of which requests are annexed as Exhibits A and B to NACDL’s October 18, 2018, Complaint. The deadline for the agencies to respond under the FOIA has long since passed, and no requested records were produced. Accordingly, NACDL today filed this federal lawsuit in the U.S. District Court for the District of Columbia.
Ms. Crump, Director of UC Berkeley’s Samuelson Clinic for Law, Technology, & Public Policy is lead counsel in this matter. Megan Graham, Clinical Teaching Fellow at the Samuelson Clinic, is serving as co-counsel and Berkeley Law students Diane Aguirre-Dominguez, Nomi Conway, and Ernan Kiselica participated in preparation of the lawsuit. NACDL Past President Barry J. Pollack, a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, is also serving as counsel.
A complete copy of the October 18, 2018, complaint in National Association of Criminal Defense Lawyers v. Federal Bureau of Prisons and Department of Justice is available here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.