The Wrongologist

Do the incarcerated lose the right to email privacy when they are institutionalized? Last week, the NYT reported on a case where prosecutors were reading the email correspondence between a prisoner and his lawyers. But this wasn’t a case at GITMO, it was at a federal prison in Brooklyn, NY.

The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, but even as he was sending daily emails to his lawyers:

…federal prosecutors informed Mr. DiFiore last month that they would be reading the emails sent to his lawyers from jail, potentially using his own words against him.

The Times says that federal prosecutors around the country have begun reading prisoners’ emails to their lawyers. The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored. So prosecutors point out that defendants are forewarned. Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Prosecutors say there are other ways for defense lawyers to communicate with clients; defense lawyers say the other methods are very inefficient.

In Brooklyn and across the country, the issue is being decided case by case.

The Times reports on a case In Georgia, in which a man named Jared Wheat used Trulincs email to work on ads for a banned weight-loss product. The FTC used the emails as part of a successful contempt case, arguing he violated a permanent injunction barring him from making unsubstantiated weight-loss claims.

Mr. Wheat’s lawyers said the trade commission’s request for the emails was illegal. Federal regulations allow mail sent to prisons to be marked as privileged:

…and email, particularly in the 21st century, has effectively replaced US Postal Service mail for most communications, and this court should not treat it differently than traditional mail.

But judge Charles A. Pannell Jr. of the US 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.”

That’s like saying that by using the space in prison for in-person meetings with lawyers, the prisoner “consents” to eavesdropping. A prisoner has a right to communicate with his lawyer, and the burden should be on the prison to see that the right to the confidentiality is preserved through each avenue of communication provided by the prison as much as it is through other avenues.

In the DiFiore case, his lawyer, Steve Zissou, tried to persuade a judge to stop prosecutors from monitoring his client’s emails:

Regardless of whether such communications qualify for protection under the attorney-client privilege, the government’s decision to read our communications with our client is entirely inappropriate.

The judge overseeing that case, Allyne R. Ross, ruled last Thursday that the government was allowed to review the emails. She wrote:

The government’s policy does not ‘unreasonably interfere’ with Mr. DiFiore’s ability to consult his counsel.

In the case of another Brooklyn-based prisoner, Syed Imran Ahmed, a surgeon accused of Medicare fraud who is being held at the Metropolitan Detention Center in Sunset Park, Brooklyn, the decision went another way. In Dr. Ahmed’s case, the judge, Dora L. Irizarry, ruled against the government last month, barring it “from looking at any of the attorney-client emails, period.”

She seemed to take particular offense at an argument by a prosecutor, F. Turner Buford, who suggested that prosecutors merely wanted to avoid the expense and hassle of having to separate attorney-client emails from other emails sent via Trulincs. The government was not otherwise interested in the contents of those messages, he said. From Judge Irizarry:

That’s hogwash…You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.

Communications between lawyer and client should be privileged no matter the form of communication. It is disturbing to see Americans asleep at the wheel as our civil liberties over the past decade have eroded with little resistance.

So, the crux of the matter is that if the law is denied to some, we are all at risk.

The majority who say that they “have nothing to hide” do not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, in particular, those with whom we disagree, those who live differently from us, or who think differently from the majority.

America as we know it can easily survive without everyone having access to assault rifles, but it cannot survive without everyone having access to due process.

As go our due process rights, so will go our democracy.