In this age where spying is used as one of the most powerful weapon against global terrorism, are there adequate legal safeguard to protect the confidentiality between U.S. law firms
and their overseas clients when their communication are intercepted?
Australia, Canada, New Zealand, the United Kingdom and the United States, the so-called “Five Eyes Alliance”, are bound by a multilateral agreement, a treaty for join cooperation in signal intelligence. Australians have been long cooperating with the National Security Agency (NSA), focusing on the Asia region, mainly China and Indonesia.
Concerned about the lack of special protection – under American law from N.S.A. eavesdropping – for attorney-client privileged conversations, already in 2012, ABA revised its ethic rules and explicitly required lawyers to make “reasonable effort to protect confidentiality”.
The New York Times reported that a top-secret document, dated February 2013 – obtained by the former U.S. NSA contractor Edward J. Snowden, also former employee of the Central Intelligence Agency and American computer specialist – shows that an American law firm was monitored while representing the Indonesian government in trade disputes with the United States; such document also reports that the Australian Signals Directorate notified to NSA that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information. The Australians told to officials at Canberra NSA liaison office that the intelligence gathering might include information covered by attorney-client privilege. On behalf of the Australians, the liaison officials asked the NSA general counsel’s office for guidance about the spying, NSA’s guidance apparently allowed the Australian agency “to continue to cover the talks, providing highly useful intelligence for interested US customers.”
Newly disclosed documents provide details of the cooperation between the United States and Australia, including efforts to break encryption and collect phone call data in Indonesia. The Australian have obtained nearly 1.8 million encrypted master keys, which are used to protect private communications, from Telkomsel mobile telephone network in Indonesia. According to a 2013 NSA document, they have also developed a way to decrypt almost all of them.
James R. Silkenat, the ABA’s President, in his letter dated February 20, 2014- Preservation of Attorney-Client Privilege for U.S. Law Firms and their Overseas Clients – addressed to two NSA officials said: “… However, irrespective of the accuracy of the recent press reports, we would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients. In addition, if NSA obtains such confidential information inadvertently — or such information is obtained by foreign intelligence services or others and then shared with NSA — we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties”. ABA is substantially requesting a support in order to preserve attorney client privilege protection and avoid the erosion of such fundamental principle. ABA said: “the attorney client privilege is a bedrock legal principle of our free society.”
ABA’s President also respectfully requested the two NSA officials to clarify and explain NSA’s current policies and practices design to protect such bedrock legal principle, according to The Times, NSA declined to answer questions related to the top secret document.
However, on March 10, NSA replayed to ABA’s President whit a letter that in sum, states that NSA:
- Recognizes the importance of attorney-client privilege communications consistent with our legal traditions and provisions of the Foreign Intelligence Surveillance ACT;
- Has privacy procedures approved by the Attorney General and the Foreign Intelligence Surveillance Court to address any incidentally acquired U.S person information and issue of attorney-client privilege when they arise;
- Has take a variety of appropriate step to protect potentially privilege information in any circumstance in which it may be encountered;
Works closely whit the Department of Justice to ensure that privileged communications are handled properly in the context of criminal proceedings.
Is this response of NSA going to give lawyers, with foreign clients, a great deal of comfort or just a consolation? Looks like it’s still very hard to see what lawyers can do in order to meet their obligation imposed by ABA – already in 2012 – to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.
Cav. Piero Salussolia, Esq.
Avv. Gemma A. Caterini (admitted only in Italy).
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