S. 3850 — Effective Assistance of Counsel in the Digital Era Act

This section defines "privileged electronic communication" to include electronic communications (i.e., as defined in 18 U.S.C. §2510, including the Trust Fund Limited Inmate Computer System) between an incarcerated person in federal custody and the person's attorney, legal representative, or agent that are protected by attorney-client privilege. This section directs the Attorney General, not later than two years after enactment, to issue a report, establish guidelines, and create or modify a program or system enabling incarcerated persons to send or receive electronic communications excluding monitoring of privileged electronic communications' contents. (The Bureau of Prisons may retain such contents until the incarcerated person's release, with attorney-client privilege and its exceptions fully applying.) This section limits access to retained privileged electronic communications to (1) the Attorney General solely for system maintenance without content review; or (2) investigative or law enforcement officers pursuant to a court warrant (approved by a U.S. attorney, Assistant Attorney General, or designee), following pre-review by such an official for privilege exceptions and with taint team procedures barring their involvement in related proceedings. It authorizes suppression motions for evidence obtained in violation and requires notice to inmates that privileged communications remain monitored until the program or system is operational.