A couple of weeks ago, it was revealed that American and Australian spy agencies had been monitoring the law firm Mayer Brown while it was representing the Indonesian government in trade talks with the United States. The revelation made it clear that those two governments, and probably many others, have not limited themselves to spying on terrorist groups and other criminal enterprises, but have extended their activities to include trade discussions.
The tremendous spying capabilities of countries such as the United States put other countries at a disadvantage as American negotiators can avail themselves of the other side’s secrets even before they even sit at the negotiating table. What makes it especially outrageous is that those agencies were spying on supposedly privileged and protected communications: Conversations between the law firm and its clients, when there was no suspicion of any unlawful activity.
Lawyers especially have been outraged by this clear breach of trust and the confidentiality rules required for their conversations with clients. One former American judge has called this case a “shocking assault on American law.” Worse yet, it turned out that there is little that can be done to stop this practice.
It appears that two intelligence agencies, the US National Security Agency and the Australian Signals Directorate were conducting surveillance of the Indonesian-US trade talks, including communications between Indonesian officials and their American law firm, the Chicago-based Mayer Brown, although the law firm has yet to acknowledge this compromise.
The two agencies were apparently aware that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to a document leaked by Edward Snowden, the American former spy, but allowed the eavesdropping to continue, “providing highly useful intelligence for interested US customers.”
Most legal jurisdictions privilege conversations between lawyers and their clients. They enshrine into law the right of lawyers and their clients to speak freely and confidentially, without the knowledge of their adversaries, or the police, prosecution or other government agencies. In the US, for example, that privilege has been upheld for over a hundred years and has rarely been challenged or compromised to the degree reported in the Indonesia-US trade talks and the conversations between Indonesia and its American lawyer.
Andrew P. Napolitano, a former American judge and conservative writer, has strongly condemned the newly revealed practice by NSA to spy on trade negotiations as “profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case.”
Unfortunately for Judge Napolitano and others concerned about constitutional protections, it appears now that most attorney-client conversations do not get special protections under American law from NSA eavesdropping.
It is commonly accepted that the NSA is prohibited by law from targeting Americans, including US-based law firms and other businesses and organizations for surveillance without warrants. US officials have also repeatedly said in the past that the agency does not use the services of its partners in the “Five Eyes alliance” to go around those prohibitions. The “Five Eyes” are the spy services of Australia, Canada, the UK and the US.
However, the law appears to allow the NSA to intercept the communications of Americans if they are in contact with a foreign entity abroad, such as in this case Indonesian officials, regardless of the nature of those communications. It is merely required to take minimal measures such as deleting such things as the identity of Americans involved, but not the foreign actors, before sharing it with other agencies.
In 2013, the US Supreme Court, in a 5-to-4 ruling, sided with the spy agencies against lawyers when it upheld a 2008 law allowing warrantless wiretapping. Lawyers, especially those with foreign clients, had challenged the law as limiting lawyer-client confidentiality by making it difficult for lawyers to protect their conversations, requiring them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. The Supreme Court dismissed the case and as such the law still stands allowing eavesdropping without judicial authorization.
Resigned to these drastic changes in American law and practice, the American Bar Association revised its ethics rules in 2012. Now it merely asks lawyers to “make reasonable efforts” to protect their clients’ information.
Those of us who once studied in American law schools have now to review what they once considered to be rock-solid, if not sacrosanct, concepts, such as lawyer-client privileges and the prohibition against wiretapping without judicial authorization.
It is of course always wise to take precautions, whether you are a lawyer, client or trade officials. For example, you should turn down offers of complimentary accommodations or other gifts where spying bugs could be attached. One of my colleagues used to go a few steps further: He would not disclose where he is staying so as to avoid eavesdropping. When he talked about sensitive issues, he preferred to do them in low voice while TV was on, or a water fountain or some other source of noise to make it more difficult to decipher what we discussed.
In one meeting that was held in a “guest house,” we noticed that our hosts were not taking as copious notes as our time was. Most likely, the conversation was being taped professionally for more accurate transcription than our notes.
However, the new revelation shows that any phone conversation or e-mail can be intercepted by spy agencies, no matter what the subject. There is no substitute for face-to-face meetings. Even there, you have to guard against old-fashioned eavesdroppers.
