Government Surveillance: Is Client Confidentiality Out the Window?

From Legal Management, May 2014

Lawyer-client confidentiality has long been a cornerstone of not only the legal profession, in particular, but also of the United States on a larger scale. Is that cornerstone in danger of crumbling in the new regime of lack of privacy? Are we in danger of the whole structure of freedom falling down under the weight of the increased surveillance of the National Security Agency (N.S.A.)? Is this surveillance, designed to thwart terrorism, more frightening and ultimately more harmful than the terrorism itself?

The major distinction between lawyers and other professionals is that lawyers are covered by a rule of confidentiality. Only the clergy and doctors have anything approaching this rule. However, that confidentiality may be at risk in our new surveillance-dominated society.

On the front page of The New York Times in its Saturday, February 15, 2014 edition, a headline read, "Spying by N.S.A. Ally Entangled U.S. Law Firm." The article, written by James Risen and Laura Poitras, noted that, according to a top-secret document from famed whistle-blower Edward J. Snowden, a former N.S.A. contractor, an American law firm was the latest victim of N.S.A. spying. Specifically, the N.S.A. and its international affiliates, as part of their global surveillance efforts, were monitoring talks between an American law firm and the Indonesian government, a client that the firm is representing in trade disputes with the United States. The article suggested that the firm that became entrapped in surveillance was Mayer Brown, a Chicago-based law firm with a global practice.

The major distinction between lawyers and other professionals is that lawyers are covered by a rule of confidentiality.

Law firms with clients overseas have become increasingly concerned that American surveillance will and is compromising their confidential communications. And, according to some, that surveillance is not restricted to form communications. If this is the case, what is left of the early rule and privilege of confidentiality? To what extent are law firms responsible for ensuring lawyer-client confidentiality without a doubt? To what extent will the new surveillance regime affect the desire of international governments and businesses to do business with American law firms?

Depending on one’s political persuasion, this surveillance scenario can be interpreted as paranoia or as one more invasion of American liberty. The sad fact is that we will probably never know, and it is unlikely that another Snowden will come along soon.

Unfortunately, the courts seem intent on ignoring this potential threat to American liberties and, in particular, legal confidentiality. In 2013, according to The New York Times article, the U.S. Supreme Court:

...rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as "speculative."

In this case, the Court is living in a world of make-believe. Time and time again, it has been shown that the government has overreached the boundaries of the law. It has taken more than 200 years to create and protect our civil liberties. In one fell swoop, we find these liberties being stripped away.

Law firms with clients overseas have become increasingly concerned that American surveillance will and is compromising their confidential communications.

Lawyers have been at the forefront of this fight for civil liberties. Now, even communication with one’s own lawyer is at risk.

The N.S.A. is not allowed to target Americans, "including businesses, law firms and other organizations based in the United States, for surveillance without warrants," according to The New York Times article. However, as we have seen, such technical legalities do not seem to have made a difference. In addition, the N.S.A. is allowed to spy on the communications of Americans if those Americans are communicating with a "foreign intelligence target abroad" – even if that target, such as the government of Indonesia, is entitled to representation in this country. There are rules in place to minimize the effect of such surveillance on American privacy, but still. Furthermore, what will happen in the future? Once Americans become accustomed to surveillance, will the rules of that surveillance change such that there will be fewer protections for Americans caught in the web of spying?

The N.S.A. document that revealed this surveillance of a law firm and the Indonesian government did not note the particular trade case that was being monitored. There have been a number of trade disputes involving Indonesia, including one involving clove cigarettes, a major export of Indonesia that has been subjected to what the Indonesian government considers to be excessive restrictions; and one involving shrimp, which, according to the United States, were sold at below-market prices.

The economics were relatively minor, which makes one wonder why the N.S.A. needs to be monitoring such disputes at all. In the case of clove cigarettes, the annual trade was $40 million; in the case of shrimp, the annual trade was $1 billion.

Lawyers have been at the forefront of this fight for civil liberties. Now, even communication with one’s own lawyer is at risk.

Such information can — and might very well be — used for industrial espionage. "American intelligence officials do not deny that they collect economic information from overseas, but argue that they do not engage in industrial espionage by sharing that information with American businesses," according to The New York Times article. However, according to the article, Snowden’s revelations confirm that the surveillance results were shared with government agencies and others. If results have been shared, this information could assist these agencies in international trade negotiations, the very essence of industrial espionage.

In medical terminology, sometimes the cure is worse than the disease. In this case, the disease is terrorism, and the cure is surveillance. But the cure is also, by default, fewer civil rights and liberties. Has our government, under the veil of security and protection against terrorism, allowed our civil rights and liberties to be torn asunder? Has our government, by instituting its cure, compromised the immune system of the United States? Is this cure worse than the disease?

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