Last week, the New York Times reported a story about the continuing practice of the U.S. Justice Department to monitor and read emails from federal prisoners to their lawyers. This practice, which first became known to the public after the tragedy of 9/11 with the revelation that prison officials had been monitoring communications between imprisoned suspected terrorists and their attorneys, has now spread to other types of prisoners, most recently including alleged organized crime figures and white collar offenders. This continuing monitoring of the communications of ordinary prisoners, as opposed to suspected terrorists, has been creating quite a controversy among both lawyers and judges.

Traditionally, courts have recognized what is called “attorney-client” privilege, a legal rule that says that communications between lawyers and clients must be confidential unless the client consents to their disclosure. The reason for this rule is that only by granting such confidentiality will people be willing to be fully honest with their lawyers. If folks cannot tell their lawyers the truth then, in theory, our adversarial justice system will not operate properly. Lawyers need to know as much as possible about their clients’ cases in order to represent them adequately.

The attorney-client privilege had been virtually sacrosanct for more than a century with little challenge from prosecutors or judges. After 9/11 many people, including some lawyers, accepted that the need to protect Americans from future terrorist attacks might justify monitoring some conversations between alleged terrorists and their lawyers by law enforcement and prosecutors to assure that the attorney-client privilege would not be used to permit terrorists to communicate with other terrorists through their attorneys. But now this monitoring has been greatly expanded.

This newest trend to extend monitoring to inmate-lawyer communications when the prisoner is not a terrorist and there is no indication that the inmate has any involvement in a terrorist plot is, in my opinion, a radical change. Indeed, one of the principal justifications for this monitoring, according to the NY Times report, is that it is simply too expensive for the government to take the time and make the effort to distinguish between communications that would not be privileged (such as communications to people who are not lawyers) and those that might be confidential under the traditional doctrine.

The government has also argued that prisoners who want to use prison email services (normally the only email they can use) agree, under the terms of service contract that they sign to get access to email, that the government has the right to read their emails, regardless of subject or intended recipient.

Whatever the reasons, this extension of government monitoring and the implicit attack on the attorney-client privilege is just one more example of how the current administration is willing to quietly challenge traditional legal rights of individuals and extend post-9/11 emergency powers to non-emergency situations when it suits them. I believe that this is a dangerous trend, indeed, and bodes ill for the future of individual rights in this country.