The revelation that protected communications between an American law firm and the Indonesian government were intercepted by a foreign spy agency and shared with the NSA has the American Bar Association raising concerns about a threat to attorney-client privilege.
When a surveillance effort catches a privileged conversation between a lawyer and an overseas client, how does that affect the client’s legal rights?
That’s a question the American Bar Association (ABA) wants to know the answer to. After a report that an Australian spy agency’s surveillance program gathered information from an American law firm that was passed on to the U.S. National Security Agency (NSA), the group is questioning how such a situation affects attorney-client privilege, one of the legal profession’s most important rights. More details:
The issue: As The New York Times reported earlier this month, a document leaked by former NSA contractor Edward Snowden appears to show that the Australian Signals Directorate, the NSA’s counterpart and information-sharing partner in that country, was conducting surveillance of communication between Indonesian government officials and an American law firm representing it in trade talks with the U.S. government. According to the document, the Australian agency offered to share the intelligence, noting that it was likely to include information covered by attorney-client privilege. The NSA counsel general’s office “provided clear guidance” on the issue, stating that the Australian agency was “able to continue to cover the talks, providing highly useful intelligence for interested U.S. customers.”
The ABA’s take: In his letter to two top NSA officials, ABA President James R. Silkenat argued [PDF] that surveillance of confidential communications between lawyers and their clients calls a “bedrock legal principle” into question. “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 … ‘an uncertain privilege … is little better than no privilege at all.'” The association’s rules of professional conduct state that lawyers should make reasonable efforts to protect clients from unauthorized information leaks.
Drawing support: The ABA’s statement earned praise from the Electronic Frontier Foundation, which is closely monitoring the situation. In a blog post, EFF’s Nadia Kayyali noted that the National Association of Criminal Defense Lawyers (NACDL) has actively opposed such surveillance—and Kayyali recommended the ABA follow their lead. “What is key here is that if the NSA does not respond to the ABA’s letter, the ABA must not stop asking for answers,” she wrote. “In fact, like NACDL, the ABA should go even further by pushing for legislative reform and by condemning unconstitutional NSA surveillance.”