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NSA About Attorney-Client Privilege Concerns: We'll Probably Grab Your Communications But We'll Try Not To 'Listen In'

from the sorry,-but-it's-not-like-everything's-going-to-collect-itself dept

Fri, Mar 14th 2014 7:39pm — Tim Cushing

A couple of weeks back we covered the American Bar Association asking for assurance from the NSA that attorney-client communications, even those involving foreign clients, would remain out of the agency's reach. This was prompted by a leak that showed the NSA had given an Australian intelligence agency the go-ahead to intercept communications between a US law firm and its Indonesian clients.

For whatever it's worth, the NSA has responded and is promising to ~~respect the boundaries of~~ not actively collect and access privileged attorney-client communications.

The outgoing head of the National Security Agency has a message to the nation’s lawyers: Your clients’ secrets are in safe hands.

NSA director Gen. Keith Alexander assured the American Bar Association in a letter that the U.S has policy and legal safeguards to prevent the mishandling of confidential attorney information collected during surveillance missions.

That's the summary version of Alexander's response letter. The letter itself goes into a bit more depth on minimization procedures, but Alexander also takes time to throw out a few statements and asides that are somewhat questionable, when not being entirely self-serving.

Alexander jabs the entities reporting on leaks not once, but twice, and that's just on the first page.

At a time when certain aspects of the reporting and commentary about the National Security Agency (NSA) shed more heat than light on important matters of security, liberty, and privacy worthy of meaningful public discussion, we also appreciate the thoughtful and constructive approach of your inquiry…

Although it is not possible to address press reports about any specific alleged intelligence activities--and thus to point out the absence of critical factual information in any such reports--we appreciate the opportunity to clarify our current policies and practices…

"They're completely wrong and I'd love to tell you exactly how wrong, but national security and all that. Just trust me."

Here's Alexander in the middle of a long-delayed rebuttal to the attorney-client surveillance story, making a statement that plays to the very edges of the "questionable" box.

Moreover, NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law…

The agency doesn't "ask," but it's not as if it's in any hurry to say "no" when foreign agencies offer access to their surveillance treasure troves. Our own domestic telcos have been enthusiastic in their compliance with intelligence and investigative agencies, often offering services above and beyond what's actually been "asked" for. Likewise, the cozy "five eyes" relationship has resulted in a great deal of mutually beneficial data sharing, none of which any agency had to specifically "ask" for. Alexander's statement is not unlike a corrupt politician noting he never asked for a bribe but wasn't just going to leave the suddenly unattended suitcase full of money laying where anyone else could pick it up.

Alexander spends the bulk of the letter detailing the various minimization procedures the NSA must adhere to, with the most relevant procedure being handed down by the FISA court itself.

As soon as it becomes apparent that a communication is between a person who is known to be under a criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose. The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein.

Of course, the problem here is that anything not related to someone "under a criminal indictment" is still fair game. And the rest of the letter, while reassuring, also notes that it's inevitable that attorney-client communications will be swept up, simply because the agency runs a variety of bulk collection programs. So, the response is more of a "we'll do our best to minimize" rather than a promise it won't intercept attorney-client communications.

That's the problem with bulk, untargeted surveillance. All anyone has left is the hope that the agency rigorously adheres to its minimization policies, and there's plenty of evidence that suggest the NSA has overstepped its boundaries in the past. In the end, the ABA is right back where it started -- operating under an "uncertain privilege" which, as it pointed out in its earlier letter (quoting the Supreme Court), "is little better than no privilege at all."

Nsa Response 03102014 (PDF)Nsa Response 03102014 (Text)

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Filed Under: attorney client privilege, law firms, minimization, nsa, surveillance
Companies: aba, american bar association

33 Comments

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kenichi tanaka (profile), 14 Mar 2014 @ 7:48pm

The American Bar Association has no business asking the NSA that. They should be filing a lawsuit against the NSA in federal court demanding that the NSA stop eavesdropping on communications between attorneys and their clients.

If a communication involves an attorney, you stop monitoring. Plain and simple.

I'm offended that the American Bar Association is asking the NSA permission about this sort of thing.
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- Anonymous, 14 Mar 2014 @ 7:55pm
  
  Re:
  Next thing you know, some politician will propose making lawyers "mandated reporters". Hey, if the government can trample on privacy, confidentiality, and the first amendment in other professions...
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- That One Guy (profile), 14 Mar 2014 @ 9:16pm
  
  Re:
  But you see to be able to tell whether or not it's a communication between a lawyer and their client, and not a communication between two 'normal' people, they'd have to listen in, and that would be a violation of their privacy, something the NSA is careful to never accidentally do. /s
  
  Yeah, with their 'grab it all' mentality when it comes to scooping up every big of data they can find, they will scoop up lawyer/client communications, and since the only way to not do so would be to only tap select, specific communications between certain people, you can be sure that they will continue to intercept lawyer/client communications, though everyone can at least rest easy knowing they would never listen in on or use those communications for any purpose.
  
  Probably.
  
  Maybe.
  
  Well, perhaps, but only if an NSA employee/contractor gets curious and has nothing better to do that hour...
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  - Anonymous Coward, 15 Mar 2014 @ 10:24am
    
    Re: Re:
    Don't you know it though it's only an invasion of their privacy if they know it's happening. Just ask Mike Rogers.
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- Anonymous Coward, 14 Mar 2014 @ 10:48pm
  
  Re:
  I'm more offended people actually believe anything the NSA says anymore.
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zip, 14 Mar 2014 @ 8:20pm

myth of attorney-client privilege
But hasn't the US government frequently listened in on (supposedly) confidential attorney-client conversations?

For example, Manuel Noriega while he was imprisoned in Miami, and numerous suspects in Guant�namo.

It would seem that in reality, attorney-client privilege only exists when and if the accused person's jailers decide that it should exist.
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- John Fenderson (profile), 17 Mar 2014 @ 8:14am
  
  Re: myth of attorney-client privilege
  Yes, this has happened -- but when they've been caught doing this, there was a reasonable chance that they'd suffer some kind of penalty for it -- not being able to introduce evidence, or getting fired, etc.
  
  What the NSA is arguing is that this should be normalized and legal. That's a whole different ball game.
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velox (profile), 14 Mar 2014 @ 8:28pm

The legal profession likes to talk about "failure to take reasonable precautions" when discussing liability. It's pretty tough to argue now that reasonable precautions wouldn't include encryption. Will lawyers now get serious about encryption in their own communications?
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- Anonymous Coward, 14 Mar 2014 @ 9:15pm
  
  Re:
  In the cases at Guantanamo, lawyers would have to speak encryption as well as when they sent communications in order to protect their attorney/client privileges.
  
  This is another law totally ignored and broken by the security agencies in the pursuit of capturing everything. For so long they have felt they were above the law that now when it comes out they are breaking it, "so what?" is the basic answer. Not we are wrong, not we will stop, not that it is illegal; the best they can muster is it's inevitable that attorney-client communications will be swept up.
  
  It is long ago past time to put these security agencies in their place.
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  - Anonymous Coward, 14 Mar 2014 @ 9:26pm
    
    Re: Re:
    Is that place a jail cell or the bottom of the ocean?
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- edpo, 15 Mar 2014 @ 8:25am
  
  Re:
  "Will lawyers now get serious about encryption in their own communications?"
  _______________________
  
  I personally try. All of our cloud storage is encrypted before it moves off the firm computers. Emails are prominently marked as privileged, but encryption is a tough sell. My PGP key is readily available, but virtually none of my clients have PGP keys out there, despite how easy it is. I've started going back to voice communications on landlines because those have more legal protections. It makes us all much less efficient, which is yet another reason why NSA mass surveillance is bad for our economy.
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kenichi tanaka (profile), 14 Mar 2014 @ 10:15pm

We're slowly moving to the point where the right to a free trial will be replaced with the gulag.

Gone: your right to an attorney
Gone: your right to a fair trial
Gone: the idea that you are innocent until proven guilty
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- That One Guy (profile), 14 Mar 2014 @ 10:44pm
  
  Re:
  'Slowly moving to'? As has been mentioned a few times, the treatment of those in Guantanamo, and anyone else the government classifies as a 'terrorist' already matches all of those, they just haven't quite scaled it up to cover the general populous yet.
  [ link to this | view in chronology ]
- Anonymous Coward, 15 Mar 2014 @ 6:02am
  
  Re:
  Prone to hyperbole?
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- Anonymous Coward, 15 Mar 2014 @ 7:10am
  
  Re:
  These things have been and remain available only to the rich and well connected.
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Anonymous Coward, 14 Mar 2014 @ 11:27pm

lawyer's not the issue
the problem is still the bulk collection without specific warrants.

I'm not sure what the right answer here is but i'm not sure it would be wise to have a rule to never spy on lawyers. Otherwise, the bad guys could safely funnel all dangerous messages through attorneys. (or all become attorneys). I think that when they are communicating with court certified violent foreign targets, those communications may be ok to spy on.
Like i said, I'm not so sure, though. It would be a challenge to ensure no possible violation of future due process.
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- Anonymous Coward, 15 Mar 2014 @ 8:37am
  
  Re: lawyer's not the issue
  Funny how the rights of others are fair game, but when it is their rights being violated then it is a really big deal.
  Hypocrites are found everywhere.
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Anonymous Coward, 15 Mar 2014 @ 12:22am

Just like they tried not to spy on all the AP journalists early last year - but they DID?
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Steve, 15 Mar 2014 @ 12:51am

Why is tech dirt redirecting to a ladbrooks betting app via the AppStore, has your site been hacked?
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- Anonymous Coward, 15 Mar 2014 @ 7:11am
  
  Re:
  It's probably your DNS
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Anonymous Coward, 15 Mar 2014 @ 5:39am

Two points:

1) Seeing as how the US intelligence agencies happily monitor not only the 99% but even congress, "trust us" is beginning to sound a little bit silly, isn't it?

2) And let me get this straight: the NSA is claiming that the one time I have a right to private communications is when I'm talking to a lawyer? Shouldn't this also be the default for when I'm NOT FUCKING A SUSPECT?
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- Michael Price, 16 Mar 2014 @ 6:18am
  
  Re:
  " the one time I have a right to private communications is when I'm talking to a lawyer? "
  No, it's only if you're talking to a lawyer and you've been indicted _and the lawyer and you are discussing the matter you've been indicted for. So if you are accused of say, shooting someone, and you're not discussing shooting someone, you're discussing the legality of owning the gun in the first place, it's fair game.
  
  So talking to a lawyer is a necessary but not sufficient condition.
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- Anonymous Coward, 17 Mar 2014 @ 4:44am
  
  Re:
  "for when I'm NOT FUCKING A SUSPECT?"
  
  Are you the lawyer in this example?
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Anonymous Coward, 15 Mar 2014 @ 6:59am

I smell a social justice meme...
NSA to ABA: Check your attorney-client privilege!
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edpo, 15 Mar 2014 @ 8:20am

International Clients
"As soon as it becomes apparent that a communication is between a person who is known to be under a criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease..."
_________________________

I represent international clients in business deals in the United States, including middle eastern sovereign wealth funds. Why in the hell should my communications be fair game simple because my clients aren't under criminal indictment? That's bass ackwards.

(Not that the attorney-client communications in a criminal matter should be fair game either...)
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- Anonymous Coward, 15 Mar 2014 @ 8:39am
  
  Re: International Clients
  A warrant should be required not matter what.
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- Michael Price, 16 Mar 2014 @ 6:24am
  
  Re: International Clients
  Imagine if a politician or favored business group wanted to stop a particular merger or other business dealing. You talk to your clients and point out that said move is legal. Suddenly, before your clients to effect the move somebody changes the law to make it illegal. Coincidence? Or did the NSA help out it's political masters?
  
  Just one of the possible abuses. No doubt you can think of a dozen more.
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Mort, 15 Mar 2014 @ 9:15am

If the NSA is not careful they will over take their boss as the greatest liar in government. Their next goal will be to over take the IRS in the lying department. Too bad that the fourth amendment means nothing to the government.
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- Anonymous Coward, 17 Mar 2014 @ 4:47am
  
  Re:
  ".. IRS in the lying department"
  
  What exactly is this in reference to?
  You do realize the IRS "scandal" has been debunked each and every overtime it has been resurrected - right?
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Anonymous Coward, 15 Mar 2014 @ 10:13am

Sure the NSA doesn't "ask". It's more like this...

http://youtube.com/watch?v=ona-RhLfRfc
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Coyne Tibbets (profile), 15 Mar 2014 @ 5:24pm

Surreal?
Truly amazing: The NSA telling a bunch of lawyers to, "Trust us."
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Anonymous Coward, 16 Mar 2014 @ 6:19am

Why do you think federal prosecutor dropped the case against Connecticut librarians just the day judge was to deliver order invalidating NSLs altogether?

How do you think they got to know they will lose the entire NSL game in this order?

Looks like Snowden knew what he was doing. We have to wait for SCOTUS judges' personal stuff being published.

And I can't wait for that Diane Feinstein spring break of 1954 8mm film.
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Zonker, 17 Mar 2014 @ 12:00pm

The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein.
Note that even when identified as attorney-client privileged communication, they will still retain the communication and use it for "foreign intelligence information", thus bypassing the privilege altogether. That combined with parallel construction means anything you say to your attorney can and will be used against you in the court of law, just not directly.
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