NSA About Attorney-Client Privilege Concerns: We'll Probably Grab Your Communications But We'll Try Not To 'Listen In'

Privacy

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