ABA President Silkenat wrote to National Security Agency’s (NSA) Director General Keith B. Alexander and General Counsel Rajesh De on Feb. 20 to express the ABA’s concerns about alleged foreign government surveillance of American attorney communications with foreign clients and the potential harm this might cause to the attorney-client privilege.
Silkenat’s letter also requested clarification on policies and practices NSA has adopted to protect the attorney-client privileged status of information that it collects or receives. The ABA also sought clarification on whether these policies and practices were followed in connection with the recent controversy.
In a March 10 response, Alexander said he appreciated the opportunity for NSA to clarify its procedures and emphasized the agency’s commitment to “the rule of law and the bedrock legal principle of attorney-client privilege.”
The issue of foreign government surveillance and the attorney-client privilege came to the forefront amid press reports that the privileged communications of an American law firm representing a foreign government on trade issues had been intercepted by a foreign intelligence service and then shared with NSA.
In his February letter, Silkenat wrote that the interception and sharing of attorney-client privileged communications by government agencies – or any third party – raises concerns, including “chilling the full and frank discussion between lawyer and client that is essential for effective legal representation.”
Whether or not the reports are true, Silkenat added, the ABA understands the importance of the role NSA plays in ensuring national security and wants to work with NSA on this issue.
“We would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties,” he said.
The NSA director assured Silkenat that any privileged attorney-client communications will be given “appropriate protection.” He clarified that NSA does not ask any foreign partner to conduct any intelligence activity on its behalf that the agency would not legally be able to do itself, including privileged signal intelligence activities that could implicate potentially communications.
He acknowledged that at times collection of privileged communications may occur incidentally, stressing that in such cases the important issue is how to provide appropriate protections for such information.
Alexander pointed to recently declassified procedures, put in place under Executive Order 12333 and the Foreign Intelligence Surveillance Act, requiring destruction of any information, including privileged communications, collected about U.S. persons that is non-pertinent. The privacy procedures must be approved by the attorney general and at appropriate times by the Foreign Intelligence Surveillance Court.
He clarified that any information containing privileged communications or concerning criminal or judicial proceedings must be reviewed by the NSA Office of General Counsel on a case-by-case basis prior to dissemination to determine if the communication in question is indeed privileged and, if so, how to proceed.
Alexander did not comment on the specific press reports mentioned in the ABA’s original letter but said that in the past the NSA Office of the General Counsel has “provided clear guidance on the appropriate steps to protect privileged information,” including “requesting that certain collection or reporting be limited; that intelligence reports be written so as to prevent or limit the inclusion of privileged material and to exclude U.S. identities; and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on use.”
Silkenat issued a statement commending NSA’s response and expressing interest in a continued conversation on the subject.
“The American Bar Association appreciates the NSA’s expression of respect for the attorney-client privilege and looks forward to continuing a constructive dialogue with the NSA to ensure that American lawyers and their clients have confidence that their privileged communications are appropriately protected,” he said.
Last August, the ABA adopted policy urging the U.S. Government to work with other nations and organizations to develop legal mechanisms, norms, and policies to deter, prevent, and punish illegal intrusions into the computer system and networks utilized by lawyers and law firms, condemning these unlawful intrusions, and urging the government to examine and amend existing laws to fight such intrusions.
However, the association opposes any government actions that would erode the attorney-client privilege or the confidential relationship between a lawyer and his or her client.