ABA Journal


The Modern Law Library

Government surveillance revelations are having a chilling effect on lawyers, says author (podcast)

Sep 16, 2013, 02:00 pm CDT


The government has the power to know everything you communicate electronically.  If you believe that power will not be used against your clients or used to breach client-attorney confidentiality, well, good luck.  The government would not have developed the technology and programs to do it if they did not want to do it.  And who is going to turn the tide back?

Eternal vigilance was once the price of freedom, but now the cost has gone up dramatically.  I do not anticipate that anyone is going to be willing to pay when they find out how expensive it has become.  I will leave it to your imagination and historical understanding to determine what the cost of freedom is now.

By LawLOL on 2013 09 20, 1:22 pm CDT

I second the comment by LawLOL above.

There is a simple inescapable conclusion to be reached here:  The internet, emails and text messages are not private.  Of course they’re monitored!  Whether by an internet company or the NSA.  Not only are they monitored, but even once they reach the intended recipient such communications can be forwarded to anyone else who can forward it to anyone else and so on.

In truth, once you mail a hand-written letter you are intrusting it to third parties and assuming it will get where its going without being opened or diverted.  Yet, letters can be mailed relatively anonymously.  Emails, internet and texts cannot.

I had to laugh (bitterly, of course) the other day when President Obama stated in a speech something along the lines of: “the American People can rest assured…nobody is listening to your cell phone conversations”.  Immediately, I knew the opposite had to be true.  Intuitively, I knew it beforehand.

There is an easy cure.  Well, perhaps not a cure but at least a bitter pill that will help us live with the infection.  Stop communicating private thoughts.  People should simply avoid reliance on emails or texts or cell phones to communicate anything they feel is private.  Not that I’m agreeing the government or corporations or whomever are justified.  They are not.  And, I’m not ignoring the far broader implications and ramifications of spying.  I’m merely suggesting we are all armed with the truth of the situation: that we are being spied upon.  The technology is available.  No matter how much we complain, no matter how many pieces of legislation are drafted to protect us from spying, we know we will still be spied upon.  So, govern ourselves accordingly and be aware of what we say or write.  Do not simply blurt every private thought that enters your head.  The concept of privacy originates with the first person who publishes the information.  In other words, if it is private…. don’t say it under circumstances which are not private. 

This reminds me of something I learned as a child.  Once you tell someone a secret it is no longer a secret.

By Pierce on 2013 09 20, 5:29 pm CDT

It seems that the rules of ethics preclude us from using email communications with clients unless we have a waiver signed by both, attorney and client.  We have had various ethics opinions and attorneys general answering the query:  can lawyers ethically use email to communicate?  However, in light of the revelations about the government systematically reviewing every piece of data we send out this profession will have to answer the question:  Can we use email to communicate with our clients?

By John D. Watson on 2013 09 23, 2:37 pm CDT

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