By Michael Bazeley
The law school’s Samuelson Law, Technology and Public Policy Clinic filed a lawsuit today in federal court to compel the Federal Bureau of Prisons and Department of Justice to release records related to the monitoring of email messages between federal inmates and their attorneys.
The complaint, filed on behalf of the National Association of Criminal Defense Lawyers, follows on three Freedom of Information Act requests that NACDL submitted in early August. To date, the government has not released any of the requested records.
At issue are policies and guidance that allow Bureau of Prisons employees to monitor the contents of inmate email messages—including those to or from their attorneys. Inmates are required to agree to this monitoring if they want to use the BOP email system, called TRULINCS. Under some circumstances, prosecutors have asked that BOP employees share the contents of the messages so they can be used in court.
Inmates and attorneys can still communicate with each other by postal mail, at in-person meetings, or by unmonitored phone calls. But exchanging letters can take weeks, meeting in person can involve hours of travel and processing time at the prison, and phone calls can take weeks to arrange.
“Federal monitoring of email messages makes it excessively difficult for inmates to communicate confidentially with their lawyers,” said Megan Graham, a teaching fellow with the Samuelson Clinic. “It places these inmates at an unfair disadvantage if their lawyers must rely on more costly or time-consuming methods of communications, while federal prosecutors face no such obstacles.”
In its FOIA requests, NACDL requested records from the BOP regarding the technical features of the inmate email system and policies and guidance from the Department of Justice regarding the circumstances under which prosecutors may access inmate-attorney emails.
NACDL—which has many thousands of direct members, including private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges—wants access to the documents, in part, to raise the visibility of the issue among the public and federal lawmakers.
Catherine Crump, director of the clinic, contends that the federal government’s policy raises constitutional and policy concerns, and notes that courts have already held that the government cannot read postal correspondence between inmates and their attorneys. “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,” Crump said.
The email monitoring practice has met resistance in recent years from both lawyers and judges.
In 2015, a federal judge in Hawaii characterized the practice as “troubling,” nonetheless ruling that inmates waive the attorney-client privilege when they use the system. But in 2014, a judge in the Eastern District of New York stopped prosecutors from accessing e-mail communications between an inmate and his lawyer.
In 2016, the American Bar Association House of Delegates passed a resolution saying the practice “raises serious constitutional concerns.” A bill to forbid the process was introduced in Congress in 2016, but stalled.
Ten clinic students have worked on parts of the clinic’s inmate email project with NACDL, including drafting the FOIA requests. This semester, second-year students Nomi Conway and Diane Aguirre-Dominguez helped draft the follow-up lawsuit to compel the records’ release. Conway said NACDL and the clinic hope that access to the records will help plot a way forward on this issue.
“We’re trying to understand the whole landscape so we can develop a strategy to grapple with the problem,” Conway said.
Before coming to law school, Aguirre-Dominguez worked with the legal team at a financial services technology company, which piqued her interest in technology law. She called the experience of drafting a lawsuit with far-reaching ramifications both “exciting and scary.”
“It’s something I didn’t really expect to be able to do,” she said. “But I’m really glad I did.”