September 17, 2014

ABA asks NSA how it handles attorney-client privileged information in intelligence work

WASHINGTON, Feb. 21, 2014 — The American Bar Association sent a letter to the National Security Agency on Feb. 20 expressing concerns over recent allegations of possible foreign government surveillance of American lawyers’ confidential communications with their overseas clients and the subsequent sharing of the privileged information with the NSA. The ABA also requested clarification on the agency’s current policies and practices designed to protect the attorney-client privileged information that it intercepts or receives and whether those directives were followed in connection with the alleged incident.

An article in The New York Times alleges that the Australian Signals Directorate intercepted privileged communications between the government of Indonesia and an American law firm and then shared the information with the NSA. Citing that allegation, ABA President James R. Silkenat expressed concern that if confidential information was intercepted and shared with the NSA, it could be improperly utilized by the U.S. government or third parties.

“The attorney-client privilege is a bedrock legal principle of our free society and is important in both the civil and criminal contexts,” Silkenat wrote. “It enables both individual and organizational clients to communicate with their lawyers in confidence, which is essential to preserving all clients’ fundamental rights to effective counsel.”

The ABA further urged the NSA not to actively seek confidential communications between U.S. law firms and their clients. If confidential information is obtained by the NSA inadvertently or from a foreign intelligence service, Silkenat wrote that the NSA should respect attorney-client privilege and take all appropriate steps to ensure that any such information is not further disseminated to other agencies or third parties.   

Silkenat’s letter to NSA Director Gen. Keith B. Alexander and NSA General Counsel Rajesh De is available here

With nearly 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at and on Twitter @ABANews.