American Bar Assoc. Sends Letter To NSA Seeking Affirmation Of Attorney-Client Confidentiality

Privacy

from the NSA-to-ABA:-what-part-of-'collect-it-all'-did-you-misunderstand? dept

The American Bar Association (ABA) has written a letter to the NSA addressing an issue that surfaced via a recent leak: namely, the agency signing off on the interception of privileged attorney-client discussions by Australian intelligence. To make matters worse, the intercepted communications included a US attorney who was representing the Indonesian government in a trade dispute.

While the original article didn’t make it clear whether the NSA had accessed this collection, the agency did in fact authorize the surveillance. Even if the NSA chose not to “listen in,” the underlying concern remains: are attorney-client communications considered off limits to the agency?

The laws governing this provide no specific exception for attorney-client communications, and the fact that this particular incident involved a foreign nation makes it that much easier for the NSA to justify its actions.

In its letter to the NSA, the ABA asks for assurance from the agency that it won’t willingly target these communications, even if they do involve foreign entities or persons.

The ABA understands the critical role that NSA plays in gathering intelligence information and protecting our national security, and we acknowledge that during the course of these activities, it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency. However, irrespective of the accuracy of the recent press reports, we would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients. In addition, if NSA obtains such confidential information inadvertently—or such information is obtained by foreign intelligence services or others and then shared with NSA—we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties.

If the ABA ever receives these assurances (beyond a canned statement reiterating the NSA’s talking points), it likely won’t make any lawyer feel any more secure. The agency doesn’t have a great track record when it comes to accurately representing its activities. The NSA’s response may do nothing more than note these communications aren’t exempt from its surveillance efforts.

If so, this leaves the ABA in the same position it began in: reliant on a protection that may not actually exist.

The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation. Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege, because as the U.S. Supreme Court noted in Upjohn Co. v. United States, 449 U.S. 383 (1981), “an uncertain privilege…is little better than no privilege at all.”

That’s where we are as a nation — “little better than no privilege at all.” The Fourth Amendment is actively skirted by the NSA and any number of investigative and law enforcement agencies on a daily basis, using a very expansive reading of the Third Party Doctrine to access an immeasurable amount of data, some of which is just as revealing as the communications they can’t grab.

The ABA is right to press the issue, considering the NSA only very minimally addressed this when the leak first hit. The NSA obviously cherishes the large amount of confidentiality it and its lawyers enjoy. It should at least have the decency to extend it to the rest of the legal profession.

Filed Under: aba, australia, nsa, privacy, surveillance