Former NSA Lawyer Thinks American Bar Association Should Be Equally Outraged By Chinese Hacking Of Attorney-Client Communications

from the because-all-hacking-is-equal,-whether-it's-your-own-govt-or-not dept

Fri, May 30th 2014 8:46am — Tim Cushing

Stewart Baker is still defending the NSA, but his latest piece advancing the agency's cause deploys a particularly disingenuous argument. He feels the American Bar Association acted hypocritically when it sent a letter to the NSA asking it to respect attorney-client privilege.

Baker begins his questionable attack by presenting actual hypocrisy in defense of his forthcoming argument.

When the Justice Department’s indicted six People’s Liberation Army hackers, it directly accused the PLA of stealing “privileged attorney-client communications related to Solar World’s ongoing trade litigation with China.”

This is not a surprise to knowledgeable observers. Chinese attacks on large U.S. law firms have been widely acknowledged, and last summer the American Bar Association condemned “unauthorized, illegal intrusions into the computer systems and networks utilized by lawyers and law firms.” But the ABA flinched from actually mentioning China or the PLA in the resolution…

When the DOJ made a lot of ridiculous noise with its indictment, it only managed to further highlight the double standard the US deploys in its foreign relations. The NSA's hacking of Huawei's servers went unmentioned, as well as its numerous interception programs (both for hardware and communications) currently in place worldwide.

Baker believes the ABA's silence on China's hacking efforts is hypocritical in light of its letter to the NSA on the subject of attorney-client privilege. This letter was the result of another leak that showed the agency had offered a solid "whatever" when an Australian intelligence agency informed the NSA that it was listening in on privileged communications between Indonesian clients and American lawyers. Baker pretends to cede some ground on the ABA's complaint before arriving at his supposedly damning "point."

Fair enough. But it’s now been three days since we saw a much more direct accusation that the PLA was spying on privileged attorney-client communications in the US.

Who’s taking bets on whether the American Bar Association will be as quick to call out the Chinese government as it was to call out its own?

This is Baker's knockout punch, apparently, one that only manages to come within several inches of its target.

Of what possible use would it be for the ABA to call out the Chinese army? Even if US attorney communications were being intercepted, there's very little the Association could hope to accomplish with a strongly-worded letter. As the NSA's defenders often point out, foreigners are not provided with the same protections as natural citizens. The same undoubtedly goes double for China, which isn't exactly extending a great deal of rights to its own citizens.

Sure, the ABA could make a lot of noise about Chinese spying, but limiting its complaints to an agency of its own government makes more sense. Baker seems to want Americans to be more offended by something everyone expects the Chinese government to be doing, rather than by their own government doing things they never would have expected.

Baker also seems to be childish enough to believe that pointing out the wrongdoing of others somehow excuses the wrongdoing of the agency he's defending. This is particularly galling considering how often the NSA reminds world citizens that they simply aren't protected by US law and that their communications and data are fair game. The ABA addressed the real issue -- spying on communications historically awarded confidentiality by US statutes -- and the real problem in its letter. Its silence on the issue of Chinese spying isn't hypocrisy. It's reality. By petitioning its own government, it was able to have its complaint addressed. Complaining about China would be nothing more than angrily yelling into the void. The DOJ doesn't mind being greeted with little more than faint echoes, but those on the outside of government agencies aren't going to be nearly as reassured by the sound of their own reflected voices.

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Filed Under: attorney-client, china, hacking, lawyers, nsa, stewart baker, surveillance
Companies: aba, american bar association

15 Comments

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Anonymous Coward, 30 May 2014 @ 8:49am

but let the same thing being done by America towards the Chinese is ok ? Jeez! another two faced idiot!
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Anonymous Coward, 30 May 2014 @ 8:49am

A foreign government spying on you is "just as bad" as your own government spying on you! Umm...NOT. The local government can actually act on that surveillance and against people in its own country, much more often than a foreign government would.
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Michael, 30 May 2014 @ 8:58am

Who�s taking bets on whether the American Bar Association will be as quick to call out the Chinese government as it was to call out its own?

Let me take a stab at why the ABA should not have to send a letter to the Chinese government complaing about their spying.

BECAUSE THAT IS THE US GOVERNMENT'S JOB.

Trust me, if every company or association that the US government has spied on started sending them letters, we would need a second NSA to capture all of that communication.
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Anonymous Coward, 30 May 2014 @ 9:10am

Moron or Evil...Sucky Choice
So, yet again, we can only infer that Baker is an incompetent fool, who believes this tripe, or a cagey dissembler, attempting to misdirect an American public, whom he believes to be comprised mostly of incompetent fools. We're screwed either way.

Revolution 2.0 starts looking more 'n' more needful.
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Anonymous Coward, 30 May 2014 @ 9:23am

HISTORICALLY awarded confidentiality by US statutes? How about STILL awarded confidentiality by US statutes. And in criminal matters, violation of those statutes is a violation of the Due Process afforded by the constitution. Of course this is what happens when you have a USAG that thinks due process is just "a process you do."
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Actual Tripe (profile), 30 May 2014 @ 9:23am

Re: Moron or Evil...Sucky Choice
"Baker is an incompetent fool, who believes this tripe.."

I, as actual tripe, speak for tripe around the world by stating emphatically that...

"Real Tripe is offended at being associated with Baker and everything the NSA has been caught doing that offends the sensibilities of tripe."
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Jay Fude (profile), 30 May 2014 @ 9:35am

But mom!
But mom, they spied on me first!
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Anonymous Coward, 30 May 2014 @ 9:36am

Don't do unto others what you don't want others to do unto your..... Dog.
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Ninja (profile), 30 May 2014 @ 9:49am

Yes, because communications go through Chinese infrastructure when you are in America, right? I wonder if he really believes what he is saying because I'd find it very hard to spew such stupidity with a straight face.
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Anonymous Coward, 30 May 2014 @ 10:44am

Look!!! Over there!!! It's black grass!!!

Ah, don't pay any attention to the men behind the curtain, they're spying for your own good.
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Anonymous Coward, 30 May 2014 @ 11:54am

Dear BAR association...
True to form, the legal profession has done nothing but burden the citizenry. You sit about with your political buddies and create illogical and complex laws that contradict each other without cease.

Now that you have helped build enough power for the bullies you cozied up with, they have learned that they are beyond needing you and will have no trouble making short work out of the lot of you... and because most of you can be paid off, plain and simple, they will just buy enough of you to fight the rest of you off. This is your own creation, enjoy it!
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Anonymous Coward, 30 May 2014 @ 1:45pm

Stewart Baker seems to have no concept of jurisdictional authority. The first word in American Bar Association, is America. They're not the Chinese Bar Association, obviously!
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Anonymous Coward, 30 May 2014 @ 1:46pm

Re:
Your own government is suppose to protect you from being spied on by foreign governments, not join in and participate and exchange information. They act like our information is fucking trading cards.
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Anonymous Coward, 30 May 2014 @ 1:46pm

Re:
He needs disbarred.
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Anonymous Coward, 31 May 2014 @ 11:26am

Re: Re:
Prism : The Gathering
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