Now in Legal Rebels:
Posted Feb 18, 2014 01:07 pm CST
Updated: An Australian ally of the National Security Agency spied on communications between a U.S. law firm and its client, the government of Indonesia, according to a top-secret document obtained by Edward Snowden.
The New York Times reported on the document and identified the law firm apparently subjected to the surveillance: Mayer Brown, which was representing Indonesia in trade disputes with the United States. According to the story, the NSA’s Australian counterpart, the Australian Signals Directorate, notified the NSA of its surveillance of the talks and offered to share its findings. The Directorate said the surveillance may include information covered by attorney-client privilege and asked for guidance.
According to the document, the Australian agency received “clear guidance” from the NSA general counsel’s office, and was able to continue to monitor the communications, providing “highly useful intelligence for interested U.S. customers.” The Times sees the revelation as an example of spying for economic espionage rather than the fight against terrorism. American officials say they don’t share the information with U.S. businesses, however, the Times says.
Mayer Brown has issued a statement that “stop[s] short of a full-fledged denial,” the Am Law Daily (sub. req.) reports. The statement cites “media reports” about the surveillance and says, “There is no indication, either in the media reports or from our internal systems and controls, that the alleged surveillance occurred at the firm.”
The Chicago Tribune also reported on Mayer Brown’s statement. The newspaper asked a Mayer Brown spokesman whether the firm was saying that there was no evidence of spying at the firm, or that there was no evidence of spying of the firm. The spokesman replied “at the firm.”
The statement also says: “Nor has there been any suggestion that Mayer Brown was in any way the subject of the alleged scrutiny. Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.”
In the view of the Am Law Daily, “The statement is clearly aimed at reassuring the many international clients Mayer Brown’s lawyers contact regularly by email and cellphone that their confidential information is safe.”
The Times interviewed New York University law professor Stephen Gillers about NSA protections for attorney-client privilege. He said the rules are narrowly crafted to allow use of attorney-client information for intelligence purposes, but not for prosecution of a U.S. defendant.
ABA President James R. Silkenat told the Australian (sub. req.) that the facts weren’t all known, but the association is concerned about suggestions that lawyers’ communications with foreign clients were under surveillance.
“The ABA has consistently fought to preserve the attorney-client privilege and opposes government policies, practices and procedures that have the effect of eroding the privilege,” he told the publication.
On Thursday, Silkenat sent a letter on behalf of the ABA to the director and general counsel of the NSA. The letter (PDF) asked about what policies the agency has in place to protect information it receives or intercepts that is protected by attorney-client privilege, and whether the agency’s policies were followed in connection with this incident.
Last updated Feb. 21 to note the ABA letter to the NSA.