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

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

Fri, Feb 28th 2014 8:36am — Tim Cushing

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.

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

25 Comments

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kenichi tanaka (profile), 28 Feb 2014 @ 8:41am

The only way to prevent the NSA from collecting your data is stop using cell phones, landline phones, the internet and email to conduct your communications with other people if it's sensitive information.

Only morons would use communications platforms to discuss confidential or sensitive information that you don't want other people to have.

This is why I don't like using email and why I don't use my phone to talk to other people as I prefer face to face communications.
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Anonymous Coward, 28 Feb 2014 @ 8:59am

"Uhh...we can't confirm nor deny whether your client-attorney privilege has been violated".
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Anonymous Coward, 28 Feb 2014 @ 9:05am

You keep using that word...
"target"...

I don't think it means what you think it means.
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Anonymous Coward, 28 Feb 2014 @ 9:17am

Re:
I use my shoe phone inside the Cone of Silence. Can't be too careful.
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John Fenderson (profile), 28 Feb 2014 @ 9:22am

Re: You keep using that word...
True. If you're collecting everyone's information, then you aren't targeting anybody in particular. Or, to put it another way, you're targeting everybody.

English is fun!
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Loki, 28 Feb 2014 @ 9:25am

You know, when even lawyers are questioning the ethics of your actions, there's a serious problem.
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Taiganaut, 28 Feb 2014 @ 9:33am

Uhhhhhhhhh yeah so there's this thing called encryption?
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John Fenderson (profile), 28 Feb 2014 @ 9:39am

Re:
While prudent, using encryption doesn't begin to address the legal or political problems surrounding this. I suspect those problems are what concern the ABA the most.
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Baldaur Regis (profile), 28 Feb 2014 @ 9:41am

Do rights exist only at the whim of a government agency?

When, in the interests of 'national security', our freedoms are compromised, is there no contrary view in these agencies?

Do these people truly believe they are pure enough, their goals noble enough, to continually state that the data they collect will never be repurposed, in spite of what history teaches us?
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Anonymous Coward, 28 Feb 2014 @ 9:46am

Not even the ABA can depend American laws, to protect both them and their clients. I thought the NSA wasn't supposed to listen in, if there's a coin flip plus 1% chance, that there's an American on one end of the phone conversation.

Isn't what the NSA authorized Australia to do, both unconstitutional and highly illegal?

This appears to be an example of the NSA using the Five Eyes coalition, in order to by-pass domestic spying laws.
Many have suspected the Five Eyes coalition were using each other to by-pass their own domestic spy laws. We now have conclusive evidence, this is indeed what is actually going on in Five Eyes.
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AricTheRed (profile), 28 Feb 2014 @ 10:04am

James "The Clap" Clapper says...
You only have rights if I don't know you exist.
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Fatal Flaw or is it?, 28 Feb 2014 @ 10:10am

Second to last para (beginning "We know that..") allows the NSA to respectfully respond that they cannot comment on classified matters and roundfile the letter.
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Anonymous Coward, 28 Feb 2014 @ 10:16am

Official response from the NSA:
We will not collect any data under attorney-client privilege unless;
a) We have reason to believe the data has information that may jeopardize national security
b) We have reason to believe the data has evidence of criminal activity.
c) You are a foreign national.
d) We don't like you.
e) Because we're the government and we can do anything we want.
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Anonymous Coward, 28 Feb 2014 @ 10:50am

Re:
Imma gonna choosee....

"e) Because we're the government and we can do anything we want."
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Alan, 28 Feb 2014 @ 11:19am

Re:
Tin cans with string works for me.
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Anonymous Coward, 28 Feb 2014 @ 11:29am

Re:
No, Rights do exist. The government just has a secret interpretation that states that the government can revoke those rights. It is on the same chapter that states that citizens are required to follow the law but the government and its employees don't have to follow the law if they don't get caught.
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That One Guy (profile), 28 Feb 2014 @ 11:44am

You'd think lawyers would know better...
Than to leave such a huge loophole in their 'request'.

Asking if the NSA 'knowingly' collects any specific data is pointless, as they don't, they just grab everything and browse over it at their leisure, completely side-stepping any laws that might otherwise limit who they could spy on.

As for the idea that the NSA would ever delete 'accidentally acquired data' unless forced to(and even then I wouldn't trust them to do so), especially something as potentially valuable as client-lawyer communications... yeah, not going to happen with the NSA as it is now.
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John Fenderson (profile), 28 Feb 2014 @ 11:45am

Re:
Rights exist regardless of government. Things the government allows you to do are not rights, they're privileges.
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M. Alan Thomas II (profile), 28 Feb 2014 @ 5:35pm

I'd hope that lawyers, at least, would notice technical truth-telling and evasive answers.
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M. Alan Thomas II (profile), 28 Feb 2014 @ 5:47pm

Re: Re:
Well, I'd make a distinction between natural rights (which you'd have in the absence of government), civil rights (which the government assures but wouldn't exist without government*), and privileges (which have some prerequisite or are easily revocable). But that's not a universal division.

*In some cases that's because they're rights protecting you from the government. In the absence of a government, such a right would be meaningless.
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annon coward, 1 Mar 2014 @ 3:43pm

Re: face to face communications.
It's the face to face lawyer client jail house consults. Are they being recorded or not?
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John Fenderson (profile), 1 Mar 2014 @ 6:25pm

Re: Re: Re:
Yes, you're right. No pun intended. :)
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Yoshord, 1 Mar 2014 @ 6:45pm

Re: Re:
Are you sure that string hasn't been tapped?
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Niall (profile), 3 Mar 2014 @ 4:41am

Re: Re:
Lip readers and lidar will get round that. Just wait until the NSA's budget is boosted to have a spook on every street and corner. Think of the jobs!
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Eddie Bates, 16 Mar 2014 @ 3:52am

Attorney Client Priviledge
So in the last couple of days it has been revealed that "Attorney-Client Priviledge" means nothing to the NSA and the Apple I-Phones have been compromised. This problem is getting worse as deliberate errors into software or hardware designs, many of which are developed in collaboration with the NSA; or by recommending the use of security protocols that the NSA knows to be insecure, in its dual role as cryptographic standards-setter and codebreaker. Because of this, the safeguards have been broken down to gain access to your information making it easier than ever for hackers and cyber criminals.

As increasing infringements on our Email and online privacy rises, we see great demand for a solution. The threats against your personal Internet privacy is increasing everyday as "free" Email providers, hackers, NSA's PRISM program, and the amended US Patriot Act are just a few of a growing list that are compromising our freedoms. As we stand at a crossroads, it may appear hopeless to protect our God given rights to privacy but rest assured, there are real solutions to this serious problem!

www.americansrighttoprivacy.com offers 100% guaranteed online privacy because our servers are located in Switzerland, a safe-haven for secure digital communications. As a law abiding citizen, you can be sure your digital data is safe from any agency, business, or anyone at all wanting to retrieve your information. Access to your online data communications by any authority requires an official warrant issued by a federal judge of Switzerland while most countries surrender your data without consent.
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