Early Signs of Surveillance Inroads Into the Attorney-Client Privilege

About a week ago, the New York Times broke a story that the NSA had obtained the attorney-client-privileged communications of an American law firm that was representing a foreign client in trade negotiations. Apparently, the NSA was informed by its Australian counterpart—the Australian Signals Directorate (ASD)—that ASD was conducting surveillance on the trade talks, including of attorney-client communications, and ASD offered to share the information. The offer was accepted.

The American legal profession has raised concern over the issue, and a couple days ago, the Electronic Frontier Foundation published this summary of the recent history of happenings, including a February 20 letter to the NSA by the President of the American Bar Association, James R. Silkenat, that asked the agency to “clarify and explain [its] current policies and practices that are designed to protect the attorney-client-privileged status of information that it collects or receives.”

Overall, these issues of surveillance, security, freedom, and privacy are more complex than anyone can cover in a blog post, but they’re among the most important questions that we will contend with this century, and they deserve our attention, especially as governments consolidate their ability to conduct total mass surveillance, and the cost of doing so continues to fall. It may already be the case that there is no protection at all for attorney-client communications in terrorism investigations, given what’s been reported in these cases. One Supreme Court Justice has even mused that it may be malpractice for a lawyer to communicate by phone with some clients overseas, given what we know.

All of this may seem okay to many as long as we’re talking about serious terrorism cases, but here’s what one lawyer, Robert Gottlieb, had to say about it. He is a former prosecutor who once ran for district attorney of his county on the slogan, “Bob Gottlieb convicted international terrorists. No one in Suffolk County is going to push him around.” But after discovering that the government had intercepted every one of his 42 phone calls with a client in a high-profile terrorism case, he tapped the table emphatically as he answered the reporter’s question:

“The time that we really test ourselves to see whether we really believe in this country’s principles arises in the most serious cases, and if you can’t protect the constitutional rights and the sacred principles that underlie our entire system of law in a serious case then it is in danger, even in minor cases, depending on the whim of the officials who are in power. That’s not the way this country was formed to operate.”

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