Government lawyers argue that because inmates knowingly consent to the inspection of all email messages, they waive the attorney-client privilege. That argument has been accepted by several federal judges who have ruled on this issue. The government also says it would cost too much to separate attorney-client emails from other kinds of email messages, and that inmates still have other means of communication like letters, phone calls and in-person visits. But email should not be treated any differently from these other methods.

Email is the most common form of modern communication, by far, and certainly among lawyers. For those behind bars, whose contact with the outside world is already severely restricted, its value is even greater. It can take weeks for confidential letters to be processed by prison officials, and one lawyer in The Times article said repeated requests to set up an unmonitored phone call with his imprisoned client went unanswered. Personal meetings in prison are difficult to arrange, time-consuming and costly.

At least one federal judge, Dora Irizarry of Brooklyn, has balked at the government’s rationales. In a case against a surgeon accused of Medicare fraud, the prosecutor told Judge Irizarry that he had no interest in reading a defendant’s emails to his lawyer for “strategic advantage,” but only because it would be a “tremendous waste” of resources to separate them out. “That’s hogwash,” the judge said. “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.” Judge Irizarry prohibited the government from looking at any emails between the surgeon and his lawyers.

If the Justice Department refuses to change its policy, which undermines the constitutional right to counsel, other judges should follow her lead and disallow this unprincipled practice. The government’s defense boils down to, we do it because prisoners are at our mercy. But it is a violation of prosecutors’ duty to seek justice, and not to twist the rules when they can get away with it.