Texas Immigration Lawyer Sues DHS, CBP Over Seizure And Search Of His Work Phone

from the most-likely-place-to-find-plenty-of-privileged-information dept

A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they'd just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)

Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:

To facilitate his extensive travel, Mr. Malik applied for and received membership in CBP’s Global Entry Trusted Traveler Program (“Global Entry”). DHS approved him for Global Entry on or about November 2014 and approved his renewal in 2019.

To receive membership in Global Entry, Mr. Malik passed a layer of extremely thorough security checks conducted by DHS. Mr. Malik passed a DHS conducted background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices, a process that includes fingerprinting. He also passed an in-person interview with a DHS security officer.

Despite being a government-ordained "Trusted Traveler," Malik was detained upon his return from a trip to Costa Rica. During his trip, he had communicated with clients using his law firm issued iPhone. The CBP officers told Malik he had been "randomly selected" for an "eligibility review." Once they had him detained, they questioned him about his personal life, family, and immigration history.

More worryingly, they questioned him about his legal practice and clients, demanding to know who he was representing and which cases he had handled. Obviously, this involved plenty of litigation work involving the same agency now questioning him. Malik refused to answer those questions. That made the CBP unhappy, leading to the incident at the center of this lawsuit.

During interrogation, Officer Sullivan displayed anger to Mr. Malik when Mr. Malik would not reveal Privileged Information. In response to Mr. Malik’s assertion of privilege, Officer Sullivan asked Mr. Malik to place the iPhone on the table. Mr. Malik placed the iPhone on the table.

Officer Sullivan asked Mr. Malik to unlock the iPhone so that the digital contents could be inspected.

Mr. Malik explained to Officer Sullivan that the iPhone contains extensive Privileged Information and allows for the accessing of Privileged Information that is stored remotely. Mr. Malik told Officer Sullivan that he cannot consent to the search of the iPhone.

Texas bar rules prohibit divulging privileged information. Not that it mattered to the CBP officer, who took everything a disturbing step further.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

As the lawsuit notes, the CBP is given broad discretion on device searches. It can perform basic or in-depth searches of phones without a warrant and with nothing more than reasonable suspicion evidence of a crime may be found on the devices. It also has some national security powers which give it even more leeway. However, there's nothing reasonably suspicious about someone denying access to privileged communications, especially when doing so means they're abiding by their legal obligations as an attorney, rather than shirking them to avoid further border control nastiness from federal officers with too much power and too little oversight.

Despite all this leeway, Malik says the CBP still violated its very permissive directives. It did not attempt to disconnect the phone from any network, which would have allowed it access to data in motion, rather than just data at rest. It did not make any effort to restrict its search to non-privileged information by use of a filter team. Instead, it seized Malik's phone and searched its contents with it connected to the internet and without the aid of anything that would have steered it clear of information it had no business seeing. According to the lawsuit, the CBP is still in possession of the phone, nearly a month after it seized it.

As evidence of the illegal search, Malik states that he received a request for a verification code from FLYP (a call, text, and voicemail app) one day after he was forced to leave his phone in the CBP's possession. This indicated the phone was still connected to the internet and the CBP had unlocked the device.

Two weeks after seizing the phone, the CBP finally got around to getting a filter team together. It sent an email to Malik demanding a list of clients and their contact info. Supposedly this was to identify who his clients were so the CBP wouldn't access those communications. But, as Malik points out, he is forbidden from providing that information. Not only that, but identifying current and future litigants would compromise them and make them more susceptible to adverse actions by agencies opposing them or targeted by litigation.

Plaintiffs are prohibited from identifying such names because the identification for most, if not all the individuals, are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice.

Part of the Privileged Information contained on the iPhone and on the remote servers is identifiable only by a telephone number of the client. Telephone numbers of the clients are privileged and confidential and will lead to exposure of Privileged Information.

Filter team protocols suck when searches are performed by defendants in lawsuits filed by the lawyer whose phone they've seized.

CBP’s proposed filter team as implemented and as articulated in the Directive, creates the appearance of and potential for improprieties. The Directive authorizes CBP officers to rummage through attorney-client communications. The use of the filter team in these circumstances will chill the free flow of information between clients and lawyers.

Malik asserts a number of First and Fourth Amendment violations. The seizure and search of communications and other information protected by the First Amendment ("expressive content, associational information, and private information") without reasonable suspicion of criminal activity is just one of the problems. The same lack of suspicion carries over the Fourth Amendment, which guards against "unreasonable" searches, no matter what their context.

In addition to findings in favor of his Constitutional claims, Malik is also asking for an independent team to be involved in the search of information on the iPhone and to be given the right to challenge any search that may result in privileged communications being accessed by the government. He also wants CBP blocked from searching the phone until his demands are met and a Special Master put in place to oversee the search. Finally, he asks for a permanent injunction blocking the government from searching the phone at all, which, if granted, would make the intermediate demands unnecessary.

From these allegations, it appears the CBP retaliated against the lawyer because he refused to break his code of ethics. And it appears CBP officers were willing to violate long-held ethics itself if this "Trusted Traveler" wouldn't do it for them. This is the unsurprising side effect of giving border control agencies almost complete control over travelers and their possessions. When there are few restraints, very few will act with restraint. Hopefully a lawsuit like this will start nudging our borders back into Constitutional territory.

Filed Under: 4th amendment, adam malik, attorney client privilege, cbp, dhs, seizure, texas

Securus Quietly Settles Lawsuit Over Illegally Spying On Inmate Attorney Conversations

from the dainty-little-wrist-slaps dept

We've noted repeatedly how interstate inmate calling service (ICS) companies have a disturbingly cozy relationship with government, striking (technically buying) monopoly deals that let them charge inmate families $14 per minute. Worse, some ICS companies like Securus Technologies have been under fire for helping the government spy on privileged inmate attorney communications, information that was only revealed in 2015 after Securus was hacked. Given the apathy for prison inmates and their families ("Iff'n ya don't like high prices, don't go to prison, son!") reform on this front has been glacial at best.

The 2015 Hacker-obtained data featured 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note were the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."

Two former prisoners and a criminal defense attorney sued Securus for the practice, and last week Securus quietly settled that suit (pdf) after spending years insisting that the recording of privileged calls was a system error. While the company promised to improve its lax use of call recording technology, most of the more significant demands were stripped from the final settlement:

"The lawsuit had sought $5,000 for anyone whose conversation was wrongly recorded – resulting in a damages payout as high as $70m – though the class action's lawyers ultimately dropped the demand after the courts repeatedly ruled against them on what they needed to prove to win the case. A US federal judge in San Diego decided the lawyers would have to prove that Securus intended to record the privileged calls. They appealed the decision, and the Ninth Circuit refused to hear the case."

Securus has promised to cover attorney costs of $840,000 and $20,000 to each of the class representatives while denying any wrongdoing.

Granted this is just one small subset of the problem that is Securus' cozy, monopolized relationship with the US law enforcement and prison apparatus, which in addition to aggressively overcharging inmate families for 20 years, has also resulted in scandals relating to the abuse of sensitive location data obtained from mobile carriers. That scandal also resulted in some performative wrist slaps and a few pinky swears as US lawmakers and regulators, with very few exceptions, continue to look the other direction.

Filed Under: attorney client privilege, conversations, inmates, phone records, prisons, surveillance
Companies: securos

Another Prison Phone Service Caught Recording Privileged Conversations And Passing Them On To Law Enforcement

from the criminals-on-both-sides-of-the-bars dept

A few years back, prison communications provider Securus was caught -- via hacker-obtained data -- recording privileged calls between inmates and their legal reps. Yes, ALL CALLS ARE RECORDED, as the sign says, but certain calls shouldn't be. Securus did it en masse, hoovering up 14,000 privileged calls over an unspecified time period. The total could be much higher than that. The data obtained only covered part of Securus' massive network, with 12,000 privileged calls alone in this data dump coming from a single state.

Now, another prison phone company has been caught recording privileged conversations and turning them over to law enforcement.

An Orange County Sheriff’s Department employee revealed this week during a court hearing that the department improperly recorded more than 1,000 privileged phone calls between county jail inmates and their attorneys over a three-year period.

An employee with Global Tel Link Corp., a contractor that oversees the jail phone system, wrote in a July 27 letter to Sheriff Sandra Hutchens — obtained by the Daily Pilot on Thursday — that an update in the company’s system in January 2015 caused “a technical error” that led to 1,079 such phone calls being recorded, in violation of state law.”

In violation of state law. It violates a lot of things, not just state law. But that's OK, state law enforcement was there to make sure laws were enforced.

Senior Deputy District Atty. Cynthia Nichols, the prosecutor in Waring’s case, became aware of the issue during Boston’s testimony Monday in Orange County Superior Court.

Nichols asked him during the hearing whether the Sheriff’s Department has made any effort to contact the district attorney or defense attorneys whose phone numbers and client communications were compromised.

“Not to my knowledge,” [director of inmate services Greg] Boston responded.

The law was broken and no one on the law enforcement side did anything to fix it. That split-second decision made during an rapidly-evolving situation (or whatever) may come back to haunt Boston and his Sheriff's department cohorts. In this mess of 1,000 calls hang 58 serious criminal cases, running the gamut from gang-related charges to the attempted murder prosecution of the offspring of a reality TV star.

The "technical error" was exposed during the trial of Joshua Waring, the son of a star of "Real Housewives of Orange County." Inmate services director Greg Boston testified during this case, exposing Global Tel Link's screwup and the apparent partaking of ill-gotten goods by local law enforcement.

The Orange Court Sheriff's Department claims it instructed the service provider to fix the problem when it discovered it had access to privileged recordings. But that hardly explains how Global Tel Link managed to record 1,000 calls it never should have recorded before someone on either end actually noticed the issue. According to Waring's attorney, the "technical error" went unaddressed for three years, suggesting the OCSD didn't mind having access to privileged conversations, even when it knew the recordings were illegal under state law.

And the official statement from the OCSD covers only part of the problem. Telling the provider to stop intercepting privileged calls is one thing. Deciding to keep this information to itself, rather than pass it on to affected legal reps and the DA's office, isn't nearly so noble or proactive.

Filed Under: attorney client privilege, law enforcement, prisons, recording phone calls
Companies: global tel link

FBI, Prosecutors Given Copies Of Defense Documents By Duplication Service Defense Was Instructed To Use

from the pixels-are-cheap dept

So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.

Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”

The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

[...]

Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial.

The government has responded with a filing [PDF] claiming it has done nothing wrong. It acknowledges the FBI and the US Attorney's office received copies of the files from the duplication service, but claims it never asked the company to perform this "service." That's at odds with other information gleaned by the defense, as well as an admission by a federal prosecutor.

The motion contends that company president Montero “lied” to Arteaga-Gomez about the copying process, and instead of making sure the government did not see the defense’s hand-selected files, provided FBI case agent Deanne Lindsey with duplicate copies.

[...]

Hayes, the federal prosecutor on Schapiro’s case, first informed Srebnick and his associate that agent Lindsey “had been surreptitiously receiving the CDs” on April 22, according to the defense motion.

“Hayes proposed to immediately destroy the CDs,” but the lawyers asked instead that he give them to the defense, “which he did,” the motion says.

The defense also claims to have a document in hand written by the owner of the duplication company stating that he has turned over duplicates of defense documents to the government multiple times over the past decade.

The government's response to the defense's motion makes a couple of points -- one more credible than the other.

The first is the government's assertion that all work product is not created equal, in terms of privilege.

The sole issue before the Court is whether the file name titles created by the defense late in the discovery process, or the patient files that SA Lindsey viewed, can be considered protected opinion work product, and if so, whether there is any legal basis to sanction the United States based upon her exposure to them.

Simply, there has been no showing that the documents at issue were protected work product, and there is no basis for the sweeping remedies Defendant seeks. Work product protection does not apply to every selection, opinion or mental process of an attorney. While Defendant’s argument conflates fact work product, which enjoys no protection or privilege, and opinion work product, which may be protected, he bears the burden of showing that work product protection covers each document at issue—and he has failed to do so.

This is an interesting assertion considering the government -- in response to FOIA requests -- tends to treat all work product as privileged and thus out of the reach of requesters. Here, it claims there are varying levels of privilege and tosses the burden of proof over to the defense to show why these documents should not have been seen by prosecutors.

The second assertion the government makes, however, undercuts the severity of the defense's claims -- if only in this particular case. All documents duplicated by the third-party service for the defense (and shared with the government) were already in the FBI's possession. They were taken from 220 boxes of medical/patient files seized by the FBI during its investigation. While viewing the illicit duplicates may have given the government some insight into the defense's preparations, it did not give prosecutors access to documents they otherwise wouldn't have had access to.

The government has also instructed the duplication service to stop providing "courtesy copies" (as the owner of the service refers to them) of defense documents to prosecutors.

Whether or not there was any impropriety, there's certainly the appearance of impropriety. The prosecutor's office, along with the FBI, apparently accepted the unauthorized duplicates without complaint, only seeing fit to provide clear instructions to the duplication service after its improper access was exposed.

Filed Under: attorney client privilege, fbi, florida, photocopies

Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret

from the how's-that-working-for-you? dept

Last we had checked in on the ongoing legal wrangling between Google and Mississippi Attorney General Jim Hood, a court had ruled pretty strongly against Hood, accusing him of acting in "bad faith," for "the purpose of harassing" Google in violation of its First Amendment rights. Checking back in on the case to see what's been going on, it appears that things have continued to get more and more heated. A little while after that ruling slamming Hood, Wingate ordered Hood to provide a bunch of information to Google as part of the discovery process for the case -- including, bizarrely, responses to Techdirt's FOIA request, which we had declined to continue after Hood's office demanded over $2,000 and made it clear that they still likely wouldn't give us anything. However, Judge Wingate thought that Hood's office should turn that info over to Google:

Any documents already gathered in connection with the Techdirt Mississippi Public Records Act request that are responsive to Google’s requests.

But, more importantly, Judge Wingate ordered Hood to turn over the documents that the MPAA/movie studios and their lawyers at Jenner & Block had written for Hood, as well as emails with the MPAA's government affairs boss, Vans Stevenson:

Any draft subpoenas provided to the Attorney General by the third parties identified in Google’s request.

Attorney General Hood’s November 13, 2013 email to Vans Stevenson, and any replies or responses thereto;

Attorney General Hood’s August 28, 2014 letter to the Attorneys General in all 50 states regarding setting up a working group;

Less than two weeks after that, Google told the court that Hood was refusing to turn over a bunch of that stuff, claiming that it was "privileged" material:

The Attorney General has withheld most of the documents called for by the Court’s order. But there is no valid basis to assert privilege. Most of the documents in question were prepared by third parties lobbying the Attorney General to take action against Google. Neither the attorney-client privilege nor the work product doctrine permits public officials to shield such interactions from scrutiny. The privilege log provided by the Attorney General confirms that there is no basis to withhold the documents.

According to Google's filing:

On April 15, the Attorney General served his responses and objections for the five priority document categories, along with a privilege log and 65 pages of heavily redacted documents.... He produced no documents at all within the fifth category specified by the Court, later explaining that while documents had been “identified” in relation to the Techdirt Mississippi Public Records Act request, none had been “gathered.” He also refused to produce much of the responsive material in his possession, claiming that the documents are protected by the attorney-client privilege, the work product doctrine, the common interest doctrine, or some combination thereof.

And, Google points out that the idea that Hood has attorney-client privilege over this material makes no sense, as he does not have such a relationship with the people in question:

It also concedes that the Attorney General does not know who drafted many of the withheld documents and instead states, “on information and belief,” that they “were prepared by or at the direction of” one of two or three named lawyers in private practice, at the law firms Jenner & Block LLP (“Jenner”), Orrick, Herrington & Sutcliffe LLP (“Orrick”), and SNR Denton US LLP (“Denton”).... The Attorney General confirmed that he had no attorney-client relationship with these firms. Published accounts indicate that, in connection with lobbying activities, Orrick represents Microsoft and Jenner represents the MPAA.

There's a lot more in that filing that absolutely destroys the arguments that Hood is making as to how these documents, prepared by the MPAA's lawyers, could possibly be privileged material, blocked from discovery.

A week later, Hood responded to Google's filing seemingly spending about half of the space simply reiterating one of his misguided rants about how evil Google must be -- none of which seems even remotely relevant to the question at hand, concerning whether or not Hood needs to produce these documents, including the emails from the MPAA and its lawyers, as they plotted to use Hood in their plan to take down Google, a company they don't like. After that, it basically just repeats "attorney-client privilege" and "work product" as frequently as possible, insisting that revealing any of this to Google would completely undermine all that is good and holy by revealing to Google what Hood and his staff were thinking. That, of course, leaves out the fact that it wasn't what Hood was thinking, but rather what the MPAA -- an organization that has made it clear it wants to harm Google -- was thinking in terms of how it could use Hood's office to that end.

Allowing Google access to these documents and communications would reveal the nature of the Attorney General’s mental impressions and strategy regarding future litigation against Google.

Or, you know, the MPAA's "mental impressions and strategy" which apparently include funding/hiring one of Hood's closest friends (who Hood himself then hired to help with the subpoenas to Google), Mike Moore (the previous Attorney General who helped get Hood elected). The whole reason why the judge ordered Hood to turn this over was to find out about those "impressions and strategy," as Judge Wingate believed that those "impressions and strategy" show a "bad faith" plan to attack Google in violation of the First Amendment. Hiding behind a bogus attorney-client privilege claim (when Hood has no such relationship here) is incredibly weak.

Finally, earlier this month, Google responded again and laid out the situation in a fairly straightforward manner:

The Attorney General served the 79-page subpoena at the heart of this case after sustained lobbying from the MPAA. The Court has found that Google is likely to succeed on the merits of its claims, including its claim that the Attorney General conducted his investigation in bad faith. The Attorney General is now trying to throw a veil of secrecy over his interactions with the MPAA and other lobbyists during his investigation, refusing to produce the draft subpoenas the lobbyists wrote, and the multiple policy memos (with titles like “Google must change its behavior”) that the lobbyists sent him. He asserts, for example, that documents created by the MPAA’s lawyers are somehow his work product, and thus beyond the scope of discovery absent a showing of substantial need, simply because he read them. That is flatly wrong. The work product doctrine exists to shield from discovery an attorney’s thoughts and impressions developed in preparation for litigation. It does not protect a trade association’s communications with a government official, aimed at inducing the official to pressure a business rival.

It further explains how all those chants of "attorney-client privilege" and "work product" make no sense at all:

The draft subpoenas, CIDs, and white papers do not constitute the work product of the Attorney General because they were not created by his counsel or agent, but instead by private third-parties seeking to influence his official conduct.

The same documents do not constitute the work product of private counsel because their clients (the MPAA, Microsoft, and others) were not anticipating litigation as a party. And any protection was waived when the documents were provided to the Attorney General to encourage an attack.

The letter to attorneys general is not work product because the unredacted portion of the document makes clear its primary purpose was to form a working group to induce Google to change its policies, not to prepare for litigation. And the common interest doctrine does not include unsolicited invitations to join such an effort.

Oh, and the Google filing also highlights the fact that both the MPAA and Hood appeared to employ Mike Moore separately to work on this same project, and this also further undermines the attempts to keep these communications a secret:

The record also suggests that any privilege was waived by the Mike Moore Law Firm’s parallel representation of the Attorney General and a private lobbying group, as well as Mr. Moore’s repeated disclosures of confidential information to outside interests.

This back and forth is kind of fascinating. The Judge has already made it quite clear that he's not buying Hood's story, and it seems pretty obvious from the Sony leaks and deeper reporting from the NY Times last year, that Hood's fishing expedition was based almost entirely on the MPAA's big plan to hamstring Google just because the MPAA really, really doesn't like Google. That Hood would use his office as a state Attorney General to assist in such an action does not speak very well of Hood. That he's now scrambling to hide the details of his relationship with the MPAA only serves to call more attention to that relationship.

Filed Under: attorney client privilege, discovery, first amendment, jim hood, mississippi, section 230
Companies: google, mpaa

Humiliating Admission By UK Government That Yet More Of Its Surveillance Was Unlawful

from the well,-not-*completely*-legal dept

A couple of weeks ago, we reported on a small but important defeat for the UK government when the Investigatory Powers Tribunal (IPT) ruled that intelligence sharing between the NSA and GCHQ was unlawful. Now, in a sign that the cracks in the UK's impenetrable silence on its surveillance activities are beginning to spread, the Guardian reports on the following surprising development:

The regime under which UK intelligence agencies, including MI5 and MI6, have been monitoring conversations between lawyers and their clients for the past five years is unlawful, the British government has admitted.

Here's why the UK government has suddenly started owning up to these misdeeds:

The admission that the regime surrounding state snooping on legally privileged communications has also failed to comply with the European convention on human rights comes in advance of a legal challenge, to be heard early next month, in which the security services are alleged to have unlawfully intercepted conversations between lawyers and their clients to provide the government with an advantage in court.

Remarkably, the confession has brought with it an unprecedented explanatory statement:

"In view of recent IPT judgments, we acknowledge that the policies adopted since [January] 2010 have not fully met the requirements of the ECHR, specifically article 8 (right to privacy). This includes a requirement that safeguards are made sufficiently public.

"It does not mean that there was any deliberate wrongdoing on their part of the security and intelligence agencies, which have always taken their obligations to protect legally privileged material extremely seriously. Nor does it mean that any of the agencies' activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings."

This surprise admission shows once again the value of taking legal action against government surveillance, even when the odds of succeeding seem slim. Twice now the UK has revealed details purely as a result of challenges. Perhaps even more importantly, twice now the UK government's standard response to leaks -- that it wouldn't confirm or deny anything, but the British public could rest assured that whatever may have happened was completely legal -- has been shown to be false.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: abuse, attorney client privilege, gchq, human rights, mi5, mi6, nsa, privacy, surveillance, uk

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

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."

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

Attorney-Client Privilege Goes Away If You Email Your Lawyer From Your Work Email

from the not-a-huge-surprise dept

It probably goes without saying that if you're planning to sue your employer, you shouldn't use your work email address to contact your lawyer. However, if you did do that, according to a California court, that email is not protected by attorney-client privilege. I don't find this to be all that surprising (or really, problematic). It's quite common that employers control the rights to your work emails, so it's hard to see why that wouldn't extend to emails you send your lawyer. All it really makes me wonder is why someone would use their work email for sending those types of emails.

Filed Under: attorney client privilege, email, employers