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Latest Leak Shows NSA Spied On A US Law Firm Representing A Foreign Government In A Trade Dispute

from the the-business-of-the-spy-business-is-apparently-business dept

Remember the limitations imposed on the NSA by the administration’s minor reform efforts? Recently, ODNI director James Clapper “released” a copy-paste job on a month-old presidential directive that included this paragraph:

“in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

As I noted then, the NSA must be following these guidelines going forward because the most recent leak published at the New York Times shows the agency using its powers to “afford a competitive advantage to US companies/business sectors.”

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States…

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

This gives the agency a bit of deniability, depending on how it phrases its response (or if a specific response ever arrives — it only offered boilerplate earlier). It didn’t spy on the US law firm, another agency did. It’s just when the Australian agency offered to share the info, the NSA didn’t say no. Instead, it offered “guidance” and recommended Australian intelligence keep intercepting attorney-client communication.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.

On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”

The paths towards plausible legality are twofold. Attorney-client communications are not specifically protected from NSA surveillance by US law and the agency is more than welcome to intercept communications involving a foreign intelligence target, like Indonesian officials. At this point, minimization is supposed to kick in and remove information related to non-targeted US persons. The NSA’s canned answer deliberately avoids the specifics of the leak.

In a statement, Ms. Vines, the agency spokeswoman, said: “N.S.A. works with a number of partners in meeting its foreign-intelligence mission goals, and those operations comply with U.S. law and with the applicable laws under which those partners operate. A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign-intelligence requirement, and comply with U.S. attorney general-approved procedures to protect privacy rights.”

This would seem to be an admission by omission. If there’s no immediate answer or plausible deniability, simply pass along the agency’s mission statement as a “response.”

This isn’t the first time the agency has performed surveillance on behalf of US trade entities. As we’ve covered earlier, evidence of economic espionage in Brazil had previously been exposed and the New York Times is apparently in possession of other documents showing more trade-related spying.

A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations.

“The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”

So, the new guidance (as of January 17th) supposedly prevents the NSA from deploying surveillance for economically-motivated reasons. That’s of small comfort considering the agency has denied performing this sort of surveillance in the past, continually asserting that its interest is solely in national security, even as more evidence mounts that its intelligence “customers” include US businesses and trade groups.

Even if the NSA did nothing more than “offer guidance,” there’s still an object lesson in this story: no matter who you are, no matter where your country of origin, you’ll always be someone else’s “foreigner,” and afforded none of the minimal protections that your own country grants you.

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Comments on “Latest Leak Shows NSA Spied On A US Law Firm Representing A Foreign Government In A Trade Dispute”

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Anonymous Coward says:

Once again you see a story about the NSA followed very quickly by a response this time proving through their own words they lie. Be it by omission or be it on purpose doesn’t matter. What does matter is that the responses to the public, it’s political overseers, and the media have come out to be a list of the same. It underlines in the strongest way possible why nothing can be believed coming from that direction and why it is necessary to pull the NSA back into levels considered reasonable.

Following every American’s phone call, internet communications, or other methods of communications without justifiable reasons valid enough to obtain a search warrant with a judge is a huge reason why the public feels so against all this. It violates our principals right to the core of who we are supposed to be. Instead our government officials have turned this government into a laughing stock on the world stage with everyone murmuring hypocrite behind the back of their hand.

How have we sunk so low?

edpo says:

NSA and Law Firms

I hope my skeptical fellow attorneys will begin to understand now the issues with unchecked government surveillance.

At least half my client base are foreign entities involved in U.S. activities, often in some sense “opposed” to particular U.S. interests (depending on administration, tax policy, etc.). Regardless of stance, my clients have the right to consult with me openly and confidentially without fear of reprisal, surveillance and, frankly, cheating by the opposition.

If there is one thing America is supposed to be about, it’s fair play. When the government itself is the one undermining fair play, it’s not longer the America that stands as a beacon for liberty and freedom, and that is sad. I can’t imagine how President Obama sleeps at night, knowing he not only wasted the votes of supporters like me, but that he actually increased the immoral actions of our government, from assassinations to over-reaching surveillance.

Anonymous Coward says:

Re: Re: Re: NSA and Law Firms

Which is sad, from the President of Hope and Change; however, I wouldn’t put all of the blame on Obama’s shoulders – this shit was happening years before Obama started. Without a doubt, though, there’s definitely the appearance of anti-embarrassment coming from his administration.

Anonymous Coward says:

Re: Re: Re:2 NSA and Law Firms

It’s not embarrassment he’s afraid of. It’s being able to continue in the same way with out the people getting too angry that he’s worried about. It appears that he spent his time as a Constitutional lawyer studying the Constitution merely so that he can figure out ways to effectively justify violating it whenever he wants. There is no intent to gain a nuanced understanding of it’s real meaning or a desire to uphold that. Only the desire to pick it apart in an attempt to find ways to justify subverting it whenever desired. A person like that isn’t embarrassed by anything even though they should be. What his administration has done are disgraceful (as are the actions of the prior administration) but he has no shame. He only seeks a way to squirm out of the controversy without while giving up as little of the ill gained power as possible while facing as few consequences as possible.

Anonymous Coward says:

Re: Re:

It doesn’t really matter if the NSA was directly doing it or whether the ASD was doing the dirty work on their behalf. It’s well documented that the five-eyes nations have an agreement to work cooperatively on surveillance where the NSA predominately runs the show. I don’t believe for a minute that ASD did the spying of their own accord and then said “Wow this may benefit our corporate friends in the US so why don’t we offer it up to the NSA?” No, it’s far more likely that the NSA knowing that they would be on shaky legal ground doing this, made a call to ASD and said “Here is what we want you to do. Here is how we want you to do it. And if any of this ever comes out, we just ‘provided clear guidance’ to you on how to conduct the operation at your request. Otherwise, this conversation never happened.”

Anonymous Coward says:

I almost hate to say this, but this isn’t as bad for the US as it could have been. Since the NSA was not directly spying (it was the Australians), there’s no reason to think that things would have been any different had they hired a law firm from some other country. So at least this particular incident shouldn’t discourage people from working with US law firms as opposed to any other country’s law firms.

Anonymous Coward says:

Re: Re:

This in spades for the GCHQ. Each are doing the dirty work for the other agencies blocked within their own country. New Zealand is the exception as Key recently got passed the allowance that their own agency could spy on it’s citizens legally.

Changes are coming down the pipes. Slowly but surely they will arrive. Changes beyond the cosmetic that Obama offered will have to be done. Either that or the NSA and other various spy agencies stand to loose a good portion of their abilities.

Brazil is teed and planning laying their own subsea line. Probably won’t help a lot as the US will just go tap in undersea beyond their depth to do something about it. Germany and France are planning on having talks about making their own internet connections that don’t require emails and net communications being routed through the US. The EU is looking at killing the financial spying arrangement set up over drugs with the US on privacy grounds and in addition considering laws to require Google and other major communications giants to keep their data in country. These are the first major rumbles to global reaction. Be sure that more comes.

Anonymous Coward says:

Just more proof the NSA has been, and always will be, unconstitutional liars. The NSA has repeatedly said they don’t use Five-Eyes to circumvent domestic law. Now we have proof they’re using the Australians to do exactly that.

The NSA is a bunch of compulsive liars. The facts show this to be true, over and over again. Trust the facts.

Anonymous Coward says:

Re: Re:

“The NSA is a bunch of compulsive liars. The facts show this to be true, over and over again. Trust the facts.”

Heh, yeah, I used to work with them as a contractor. Every single person I ever dealt with in a management position there was indeed a liar. It seemed to be a requirement to move into management. This was in contrast to most of the non-management worker bees.

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