Latest Leak Shows NSA Spied On A US Law Firm Representing A Foreign Government In A Trade Dispute

Failures

from the the-business-of-the-spy-business-is-apparently-business dept

Remember the limitations imposed on the NSA by the administration’s minor reform efforts? Recently, ODNI director James Clapper “released” a copy-paste job on a month-old presidential directive that included this paragraph:

“in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

As I noted then, the NSA must be following these guidelines going forward because the most recent leak published at the New York Times shows the agency using its powers to “afford a competitive advantage to US companies/business sectors.”

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States…

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

This gives the agency a bit of deniability, depending on how it phrases its response (or if a specific response ever arrives — it only offered boilerplate earlier). It didn’t spy on the US law firm, another agency did. It’s just when the Australian agency offered to share the info, the NSA didn’t say no. Instead, it offered “guidance” and recommended Australian intelligence keep intercepting attorney-client communication.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.

On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”

The paths towards plausible legality are twofold. Attorney-client communications are not specifically protected from NSA surveillance by US law and the agency is more than welcome to intercept communications involving a foreign intelligence target, like Indonesian officials. At this point, minimization is supposed to kick in and remove information related to non-targeted US persons. The NSA’s canned answer deliberately avoids the specifics of the leak.

In a statement, Ms. Vines, the agency spokeswoman, said: “N.S.A. works with a number of partners in meeting its foreign-intelligence mission goals, and those operations comply with U.S. law and with the applicable laws under which those partners operate. A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign-intelligence requirement, and comply with U.S. attorney general-approved procedures to protect privacy rights.”

This would seem to be an admission by omission. If there’s no immediate answer or plausible deniability, simply pass along the agency’s mission statement as a “response.”

This isn’t the first time the agency has performed surveillance on behalf of US trade entities. As we’ve covered earlier, evidence of economic espionage in Brazil had previously been exposed and the New York Times is apparently in possession of other documents showing more trade-related spying.

A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations.

“The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”

So, the new guidance (as of January 17th) supposedly prevents the NSA from deploying surveillance for economically-motivated reasons. That’s of small comfort considering the agency has denied performing this sort of surveillance in the past, continually asserting that its interest is solely in national security, even as more evidence mounts that its intelligence “customers” include US businesses and trade groups.

Even if the NSA did nothing more than “offer guidance,” there’s still an object lesson in this story: no matter who you are, no matter where your country of origin, you’ll always be someone else’s “foreigner,” and afforded none of the minimal protections that your own country grants you.

Filed Under: edward snowden, indonesia, james clapper, leak, nsa, odni