ABA President Writes NSA – How Does it Handle Attorney/Client Communications?

– By Sharon Nelson and John Simek

Nelson and Simek have been frequent presenters at ABA TECHSHOW. Nelson served as Chair of the 2006 TECHSHOW Planning Board. Together, they are the principals of Sensei Enterprises.

On February 20th, ABA President James Silkenat sent a letter to the National Security Agency 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 alleged that the Australian Signals Directorate intercepted privileged communications between the government of Indonesia and an American law firm (thought to be Mayer Brown) and then shared the information with the NSA. Citing that allegation, 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 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.

The letter is a good one. Let’s see if Mr. Silkenat gets a response by the time this issue is discussed at ABA TECHSHOW. The ethical implications of NSA surveillance for law firms is sure to be a hot topic.