You’ve just been arrested by the Federal Government and you’re shuttled off to a prison in a remote location, hours away from your home and your state. You are adamant that you’re innocent and you have lots and lots of thoughts about how the Government is persecuting you. You sit down to write these thoughts with pen and paper, but then the counselor who supervises you tells you that you can access email!
Email! The modern pen and paper; the standard mode of written communication in this day and age. You are delighted because your penmanship is atrocious and because it would take you hours to write all your thoughts and weeks to get your thoughts to your lawyers and weeks further still for them to write letters back. But email is instantaneous. So you fire up the email system and click accept and begin banging away at the keyboards.
You send these confidential thoughts about the defense of your case to your lawyer and, apparently, the prosecutors.
Yes. Federal prosecutors have readily admitted in several cases that they are monitoring suspects emails to their lawyers, reading them and then using that information to strengthen their case against those suspects.
Talk about system stacked against you: you’re charged with a crime by the Government. You have your liberty taken away by the Government. You have excessive bails set by the Government so you can’t leave. You are given limited and controlled access to your lawyers by the Government. And then, they monitor everything you say and then use that against you. How can they do this?
Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.
All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.
Budget cuts. That bureaucratic, administrative go-to. The liberty that this nation pretends to hold so dear won’t be lost by war, or a bloody coup, but rather in slow, incremental steps by bureaucracy.
It is “too expensive” to set up a filter in the email system to enable a bypass of emails sent to specific email addresses, something that can be done for free in as clunky an email system as Outlook.
Some judges, however, are supporting this practice because they claim that defendants sign waivers when they use the system:
But a judge, Charles A. Pannell Jr. of the United States District Court in Atlanta, ruled in 2012 that by using Trulincs, Mr. Wheat “consented to the monitoring and thus had no reasonable expectation of privacy.”
It’s coercive and, given the state of society today, we don’t really have a choice. Now imagine that coercive situation, but you’re in jail.
Comparing it to old-fashioned communication, however, shows how consent is a red herring. Letters written to lawyers are marked privileged and are not read. They can be, however. There’s nothing stopping correctional officers from opening those letters. They choose not to, because of a department wide policy and the general sense that doing so would violate confidentiality.
So either there’s a legal principle that bars them reading letters and that same legal principle should bar them from reading emails, or there’s a policy that prevents them from reading letters and they haven’t extended that policy to emails, but which shows that there’s no functional difference between the two modes and it’s merely a matter of convenience.
This is one of those things that, if pushed to a head, would necessarily spell trouble for the prosecution. We’ve had just that happen here in CT, where prosecutors read confidential word documents about the defense of the charges. A day after argument before the Supreme Court, he was ordered immediately released.
Sure, it’s good advice to never discuss confidential matters via modes of communication that have the potential to be monitored, but that applies to everything, including in person visits. But just because the Government can invade your confidentiality, doesn’t mean that they have the right to do so.