Implications of NSA surveillance got a shot in the arm this weekend as the New York Times revealed that an American law firm was monitored while representing a foreign country during a trade dispute with the U.S. A top secret document provided by Edward Snowden was behind the discovery and fuels concerns that confidential attorney-client communications may be vulnerable to spying.
The case involves the government of Indonesia who was working with a U.S. law firm in trade talks in 2013. The document does not identify the U.S. law firm but says the NSA’s Australian counterpart offered surveillance gatherings to the U.S. agency. Here’s the New York Times with the details:
The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.
On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”
The NSA and Australians have declined to comment, but current law, as the New York Times notes, seems to be on their side. Most attorney-client conversations do not get special protection from NSA surveillance and while the NSA is barred from spying on U.S. citizens and businesses, they may intercept communications between Americans and foreign intelligence targets abroad. Lawyers argue this puts a special strain on them, requiring outsized efforts – such as traveling to meet their clients overseas – to keep communications private. Then there's the issue of using surveillance for economic, rather than security, reasons. Read more over at the New York Times.