The New York Times recently reported that the NSA, through intermediaries in Australia, was actively engaged in collecting communications between the Government of Indonesia and their U.S. law firm hired in connection with a trade dispute. The case, and its logical consequences, raises the questions of whether or not there is anything left of the time-honored and venerated privilege of communications between lawyers and their clients. If the U.S. government has its way, the answer will be, “probably not.”
The attorney client privilege, and a related doctrine called attorney work product protection, protects both communications between attorneys (and their agents) and clients or prospective clients, which are intended to provide legal advice or representation. A creature of the common law (although codified in some jurisdictions) the privilege exists because it is in the interest of the government and society that people feel free to seek out such advice and representation. The privilege is (for the most part) inviolate.
While it does not cover communications intended to further a crime or fraud, and can be penetrated if there is an imminent harm to health or safety, protecting the privilege is one of the most sacred vows a lawyer takes.
The attorney work product privilege is broader than the “communications” privilege. It protects the work that the attorney does in furtherance of such representations – who the attorney interviewed, the documents the attorney prepares, etc.
The privilege exists under the theory that the communications (or work product) would not exist but for the existence of the privilege. It doesn’t act to conceal information that previously existed – it acts to promote the creation of new information (privileged communications) that would not otherwise exist.
But the modern surveillance society in general, and the NSA’s activities with its sister intelligence agencies threatens to destroy the privilege in its entirety.
Scope
Treatises have been written about the scope of the attorney client privilege and work product doctrine. Suffice it to say that the privilege exists in civil and criminal cases – what you say to your divorce attorney is every bit as privileged as what you say to your jailhouse lawyer. It protects communications about legal advice before litigation or liability, as well as communications about litigation or trial.
One key caveat about privilege is that the communications between attorney and client must be made under circumstances where it is reasonable to expect that the communications will be confidential, and cannot be made in the presence of third parties outside the scope of a privilege. Thus, courts have allowed the government to listen in on privileged communications in jail houses (because how could the incarcerated reasonably expect privacy) or at Guantanamo.
Similarly, if your 15-year-old is arrested for DUI, and you hire a lawyer to represent him, when the lawyer interviews your kid, if YOU are in the room, not only can YOU be called as a witness to what your kid told the lawyer, the lawyer can now be called as a witness about what your kid told him (or her) because the privilege has been “waived” by your presence in the room.
The requirement that the communication be made under circumstances where it is reasonable to expect it to be confidential has had some interesting consequences. Bar associations, ethics committees and courts have grappled with the issue of whether things like e-mail communications, text messages, tweets and Facebook postings (or direct messages and private Facebook messages) are sufficiently secure to not constitute a waiver of the privilege.
The cases fall all over the map, with early cases suggesting that it is unethical for an attorney to communicate with a client via cell phone, cordless phone or e-mail (because there is no reasonable expectation of privacy) and later cases recognizing that this is the normal and acceptable way for lawyers to communicate. So the jury is still out on this.
Third Party Document and Digital Trail
As noted, in addition to the attorney client privilege, attorneys are protected by the Work Product doctrine as well. This protects things that the lawyer does in connection with the representation – research, studies, and expert witnesses, interviews, etc.
The problem here is that much of what an attorney does he or she does online.
Under the “third party” doctrine expressed by the Supreme Court in Smith v. Maryland, documents or records held by a third party generally belong to that third party, and the person has consented to that third party’s creation of these records.
Thus, when an attorney conducts legal research on LEXIS/NEXIS or WESTLAW, two popular legal research tools, the queries themselves are delivered to a third party company, as are the results. These communications would ordinarily be protected by work-product, but the government could argue that the lawyer waived any privileges by conducting these searches in the open. The same is true of searches in Google Scholar or any other database. If the government wanted to know what a client was up to, even without invading the attorney client privilege, the government (or a private litigant) could subpoena the browser or search history of the client’s lawyer.
The same is true of telephone records. Wanna know what expert witnesses counsel is conferring with? Just subpoena the lawyers’ phone records. Or get the lawyers’ GPS records to see where the lawyer is travelling, and with whom. A satellite, drone or other video surveillance can reveal even more information about the activities of counsel.
By the way, if this is legal and appropriate for the NSA, then it is legal and appropriate for the FBI, DOJ, and private litigants. Wanna know if a company is engaged in a takeover bid for another company? Put a tracking device on their lawyers’ cars, track their phones, monitor their communications, and cache histories. And of you can’t do it in real time, just subpoena the historical records. Oh, and you can also subpoena the records of your local Assistant United States Attorney or Judge Advocate General to find out what the government is up to as well. Sauce for the goose, after all.
Testimonial Privilege
Another problem with the attorney client privilege in the context of surveillance is the fact that the privilege is generally a testimonial privilege. That means that either an attorney or their client, faced with a subpoena or other compulsion to produce records, can resist by asserting the privilege. The Supreme Court has said that the privilege, because it reduces the authority of the grand jury (and other entities) to receive information, must be read narrowly, and – and this is key – must be affirmatively asserted or it is waived. Get that? The failure to assert the privilege acts as a waiver of the privilege.
But when the government merely Hoovers up attorney client privileged communications, and then cloaks those collections with state secrets and classified information privilege, neither the attorney nor the client has the opportunity to assert the privilege.
What’s worse, the Supreme Court last year rejected an attorney’s assertion of the privilege with respect to the NSA because the attorney could not prove that the NSA had actually collected privileged communications because the collection was classified. If you can’t prove that privileged communications were intercepted, you lack legal standing to challenge the collection. But if you don’t challenge the collection, you have waived the privilege. Fun stuff.
Scope of Privilege
The NSA and the federal government have different interpretations of what communications are covered by the attorney client privilege from that almost every court has. As noted, the privilege applies in civil and criminal cases, and indeed in any case where a person or company seeks legal advice or representation. It applies to all communications except those that are intended to further a crime or fraud. It applies to communications between the client or the client’s agents to the lawyer or the lawyer’s agents.
Not to the NSA.
The NSA will ONLY consider a communication to be privileged if it is between a lawyer and a client. Law clerks, secretaries, investigators, etc., nope. The NSA only recognizes the privilege in criminal cases. Everything else is fair game.
Indeed, the NSA will only recognize the privilege if the client is currently under criminal charges in the United States, (and they may only be including federal charges) and the communications between the lawyer and the client directly pertain to those criminal charges. Everything else is fair game.
When one of the DC area snipers was under arrest in Virginia, but under investigation in Maryland for shootings, he had a lawyer representing him in the Virginia case. The Maryland prosecutors wanted to question him, but ethics rules prohibited them from communicating with a party represented by counsel. So they got an idea. They surreptitiously dismissed the charges in Virginia (at least for a few hours) so that there was no “case” for him to be represented.
Of course, his Virginia lawyer didn’t know this, and the defendant didn’t either. The Maryland prosecutors then interviewed him because he was no longer a “party represented by counsel.” After the interview, they were free to reinstate the charges in Virginia, (although I don’t believe they did this) and initiate new charges in Maryland. So the NSA can do the same thing.
They could have criminal charges against someone they want to investigate dropped, not tell them or their lawyers, and then put a tap on the lawyers’ communications. At that point, the defendant is not “charged” with a crime, and the NSA is free to listen in. It matters not that they don’t know they are not charged. Imagine if the FBI and DOJ took the same position with respect to the scope of the privilege.
Outsourcing
Of course, the NSA is not permitted by law to deliberately target U.S. persons for surveillance. The New York Times shows how easy this is to skirt. The lawyers whose communications were intercepted were clearly U.S. persons. But it wasn’t their communications that the NSA wanted – it was the communications of their Indonesian clients. So the lawyers’ communications were not deliberately targeted.
But what about communications between two U.S. lawyers about their Indonesian clients? There the NSA would be deliberately targeting U.S. persons. A no-no. No problem. Just pick up the phone and call ASIS in Canberra. Have our friends down under conduct the collection and give it up to us. They have no restrictions on targeting U.S. persons. And what they give us on a “silver platter” is, well dessert.
We don’t violate privilege. We outsource it.
The Death of Privilege
So what’s a U.S. lawyer to do? Sure, they can try to encrypt their communications with clients. But the third party records are very difficult to hide. In light of the fact that the privilege only protects communications where it is reasonable to conclude that the communication is confidential, and in light of the fact that the NSA doesn’t consider these communications confidential and feels free to collect and intercept them, this may signal the death knell for attorney client privilege generally. Not just vis a vis the government but anyone else. Considering the fact that the privilege is intended to benefit society by fostering free and open communications, I think that’s a bad thing.
But what would I know? I’m just a lawyer.