June 9, 2014
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 Office routinely obtains inmates’ TRULINCS emails, including those that may have been exchanged between inmates and their attorneys. For the reasons set fourth below, emails exchanged between inmates and their attorneys using the TRULINCS system are not privileged, and inmates have other means to communicatc with their attorneys in a privileged setting. Accordingly, this Office intends to review all email obtained from the TRULINCS system.
Inmates and Attorneys 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” conditíon, which providcs in relevant part:
I am notificd 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 [BOP 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 he treated as privileged commuuications.
(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 message to the inmate with the following warning:
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 of privacy as to any communication on or information stored with the system.
Further down the page, the same warning banner states:
I understand and consent to having my electronic messages and system activity monitored, read, and retained by authorízed 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 privleged 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 c1ick “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, ínter alía, “[b]y approving e1ectronic 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
(In addition, BOP’s TRULINCS
Program Statement 5265.13 specifically states that “special 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 exchanged with individuals will not be treated as privileged communications und will be subject to monitoring.)
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 specificaIIy provides multiple methods for an inmate to do so: (i) unmonitored, in-person visíts; (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.
Conclusion
For the above reasons, emails between inmates and their attorneys sent over the TRULINCS system are not privileged, and thus the Office intends to review all emails obtained frim the TRULINCS system.