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Ltr. re Policy on Inmate Emails to Counsel on TRULINCS U.S. Atty's Office for E.D.N.Y. 2014

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U.S. Department of Justice

United States Attorney
Eastern District of New York

JM:EJK:DCP

271 Cadman Plaza East
Brooklyn, New York I l20l

June

9,2014

By First Class Mail
Peter Kirchheimer, Esq.

Attomey-in-Charge
Federal Defenders of New York
One Pierrepont Plaza, 16th Floor
Brooklyn, NY 11201
Re:

Inmate Emails On TRULINCS

Dear Counsel:
The United States Attorney's Office for the Eastern District of New York (the
"Office") writes to apprise you of this Office's policy regarding emails sent by inmates at the
Metropolitan Detention Center (the "MDC") to their attorneys using the Bureau of Prisons'
("BOP") Trust Fund Limited Inmate Computer System ("TRULINCS"). As you may know,
this Ofhce routinely obtains inmates' TRULINCS emails, including those that may have
been exchanged between inmates and their attorneys. For the reasons set forth below, emails
exchanged between inmates and their attorneys using the TRULINCS system are not
privileged, and inmates have other means to communicate with their attorneys in a privileged
setting. Accordingly, this Off,rce intends to review all email obtained from the TRULINCS
system.

I.

Legal Standard

"The attomey-client privilege protects communications (1) between a client
and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for
the purpose of obtaining or providing legal advice." United States v. Mejia, 655 F .3d 126,
133(2dCir.2011)(citingInreCountyofErie,473F.3d4l3,4l9(2dCir.2007)). With
regard to the second prong, the Second Circuit has previously held in an analogous context
that an inmate's communication over a telephone that the inmate knows is being recorded by
prison authorities is not protected by the attomey-client privilege. See Mejia, 655 F.3d at
133 ("We agree with the district court that, on the basis of the undisputed fact that
[defendant] Rodriguezwas aware that his conversation was being recorded by BOP,
Rodriguez's disclosure to his sister of his desire to engage in plea discussions with his
attomey was not made in confidence and thus constituted a waiver of the privilege.").

Mejia was a decision of first impression in the Second Circuit, but it is in line
that have considered the issue. Those circuits have similarly held that
circuits
with other
when an inmate is aware that his calls are being recorded, those calls are not protected by a
privilege. See United States v. Hatcher,323 F .3d 666, 674 (8th Cir. 2003) ("The presence of
the prison recording device destroyed the attorney-client privilege. Because the inmates and
their lawyers were aware that their conversations were being recorded, they could not
reasonably expect that their conversations would remain private. The presence of the
recording device was the functional equivalent of the presence of a third party."); United
States v. Madoch, 149 F .3d 596, 602 (7th Cir. 1998) (holding that marital privilege did not
apply when spouse seeking to invoke the privilege knew that the other spouse was
incarcerated); see also United States v. Pelullo, 5 F. Supp.2d285,289 (D.N.J. 1998) ("[T]o
the extent that defendant engaged in telephone conversations with attorneys on the monitored
line the communications were not privileged. Defendant had no expectation of privacy in
these conversations. They were knowingly made in the presence of the Bureau of Prisons
through its taping and monitoring procedures. This constitutes a waiver of any privilege that
might otherwise have existed."); United States v. Lentz,419 F. Supp. 2d820,827-28 (E.D.
Va. 2005) ("an inmate's telephone conversations with counsel are not protected by the
attorney-client privilege where, as here, the inmate is notified at the outset that the calls are
recorded and subject to monitoring").

In order to waive the privilege, the inmate must have notice that his or her
calls are being monitored. After receiving that notice, however, an inmate who
communicates with his or her attorney over the monitored telephone has waived the attomeyclient privilege by "voluntarily disclosing otherwise privileged information to a third pafi."
Lentz,418 F. Srpp. 2d at827. This is particularly true when there are other ways for the
inmate to communicate with his or her attomey in a privileged setting, but the inmate
chooses not to do so. See Mejia, 655 F.3d at 133 (noting defendant's failure to use options
offered by the BOP that preserve confidentiality).

il.

Inmates and Attomeys Are Provided Express Notice
that Emails on the TRULINCS System are Monitored

As set forth below, inmates at the MDC and their counsel are provided with
ample notice that their emails are being monitored. Thus, no attorney-client privilege
attaches to such communications.
Prior to gaining access to TRULINCS, an inmate must consent to the
monitoring of all emails placed using TRULINCS. In order to gain access to TRULINCS,
each inmate must execute the "Inmate Agreement for Participation in TRULINCS Electronic
Messaging Program." That one-page agreement includes seven separate conditions of
participation. One of those conditions is the "Consent to Monitoring" condition, which
provides in relevant part:

I am notified of, acknowledge and voluntarily consent to having my
messages and transactional data (incoming and outgoing) monitored,

read, retained by Bureau staff and otherwise handled as described in

IBOP directives]. I am notified of, acknowledge and voluntarily
consent that this provision applies to messages both to and from
my attorney or other legal representative, and that such messages
will not be treated as privileged communications.
(emphasis added). The BOP retains, and is able to access, the Inmate Agreement for each
inmate at the MDC.

Moreover, each time an inmate logs onto TRULINCS, the system generates a
with the following warning:

message to the inmate

The Department may monitor any activity on the system and
search and retrieve any information stored within the system.
By accessing and using this computer, I am consenting to such
monitoring and information retrieval for law enforcement and
other purposes. I have no expectation ofprivacy as to any
communication on or information stored with the svstem.
Further down the page, the same waming banner states:

I understand and consent to having my electronic messages and
system activity monitored, read, and retained by authorized
personnel. I understand and consent that this provision
applies to electronic messages both to and from my attorney
or other legal representative, and that such electronic
messages will not be treated as privileged communications,
and I have alternative methods of conducting privileged
legal communication.
(emphasis added). In order to continue using the system and access their email, the inmate
must click o'I accept."

Similarly, non-inmate users of TRULINCS, including attorneys, are provided
with notice that all communications on the system are monitored. In order to use
TRULINCS, non-inmate users must be added to an inmate's "contact list." Once the inmate
adds someone to his or her contact list, the TRULINCS system sends a generated message to
the proposed contact's email address. That generated email states, inter alia, "[b]y approving
electronic correspondence with federal prisoners you consent to have the Bureau of Prison
staff monitor the content of all electronic messages exchanged." The message is written in
both English and Spanish. The recipient of the email is then directed to a website where he
or she must insert a specific code in order to be given access to TRULINCS.T

I

In addition, BOP's TRULINCS Program Statement 5265.13 specifically
mail" recipients or other legal representatives on an inmate's contact list
may be added to the TRULINCS system, with the acknowledgment that electronic messages
states that "special

Finally, the American Bar Association ("ABA") has acknowledged that the
communications between inmates and their attomeys on TRULINCS are not privileged. In
February 2006, when TRTILINCS was undergoing a limited initial rollout, the ABA's
Governmental Affairs Office submitted a leffer to Harley Lappin, the Director of the BOP.
In that letter, the ABA urged the BOP to make permanent and extend the TRULINCS
program, which was then being tested at several federal correctional institutions. In its letter,
the ABA acknowledged that the TRULINCS system would be monitored by the BOP and
stated that TRULINCS emails are utilized for unprivileged communications:
Although presenting confi dentiality concerns, TRULINC S
greatly enhances the attomey-client relationship by
supplementing unmonitored forms of communication. that is
legal mail, legal calls and professional visiting. It affords
attomeys and their incarcerated clients the possibilify of making
expedited contact when quick decisions must be made or nonprivileged information relayed. . . . TRULINCS also eases the
burden on institution staff by relieving them of the responsibility
of coordinating visits or calls for what are otherwise
administrative, though time-sensitive, matters.
(emphasis added).

m.

Inmates Have Adequate Alternative Means to
Communicate in Unmonitored Settings

The MDC's policy of monitoring all email on TRULINCS comports with the
suggestion in the case law that an inmate must have the means to communicate with his or
her attorney in an unmonitored setting. The MDC specifically provides multiple methods for
an inmate to do so: (i) unmonitored, in-person visits; (ii) unmonitored telephone calls, which
must be approved by a staff member; and (iii) "Special Mail" correspondence, which can
only be opened in the presence of an inmate.

exchanged with individuals
subject to monitoring.

will not be treated

as

4

privileged communications and will be

IV.

Conclusion

For the above reasons, emails between inmates and their attomeys sent over
the TRULINCS system are not privileged, and thus the Office intends to review all emails
obtained from the TRULINCS system.
Please let me know if you would like to discuss this issue or have any
questions.

Very truly yours,

LORETTA E. LYNCH

By:
U.S.

Criminal Di

The Honorable Carol B. Amon, Chief Judge, Eastern District of New York
The Honorable Cheryl L. Pollak, Chair, Eastern District Criminal Justice Act Panel
Committee

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