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

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.

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