Legal professionals around the world were shocked when the New York Times reported that an intelligence agency had intercepted communications between a law firm and their client abroad. An Australian spying agency intercepted emails between a large U.S.-based law firm and their client, a foreign government engaged in trade negotiations with the U.S. Similarly, the National Lawyers Guild (along with several other groups ranging from the California Gun Owners Association to People for the American Way) suffered a dramatic decrease in calls to their legal helplines after the NSA’s telephone records collection program was revealed.
Ever since Edward Snowden released information on the unprecedented level of data collection being undertaken by the National Security Agency (NSA), many experts have speculated that the sweeping data collection could be potentially be capturing confidential communications between clients and lawyers. It wasn’t until the article in the New York Times was there clear evidence of specific law firms actually being caught in the NSA dragnet.
Lawyers are in a position where their confidential communications may be intercepted and their calling records tracked. While The American Bar Association raised some concerns, concrete actions to protect lawyer-client communications have been absent. One organization has raised those concerns as part of a bigger lawsuit against NSA spying. Since 1990, there has been one organization that has fought for individual privacy and security for all users of the internet, including lawyers.
The Electronic Frontier Foundation (EFF) has been successful in protecting free speech and innovation on the internet. You might be familiar with a recent Supreme Court case to which the EFF contributed, Riley v. California. This case now requires law enforcement to obtain a warrant in order to search cellphones seized incident to an arrest. In a ruling that has been called “a sweeping victory for privacy rights in the digital age,” the EFF has been involved from the early stages in the case’s history.
The EFF submitted one of the three amicus curiae briefs that helped convince the Supreme Court to grant certiorari. The EFF also submitted an amicus curiae brief that supported the outcome of requiring warrants for cellphones. The EFF was instrumental in monitoring the case, and communicating detail via blog posts and press releases to a public that wants more privacy and security. That’s just one case that the EFF monitored.
The EFF is actively participating in dozen of cases that cover freedom of speech, privacy, and security, including the NSA’s potentially breaching attorney-client confidentiality. In Jewel v. NSA, the EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records, including potential communications between lawyers and clients.
In First Unitarian Church of Los Angeles v. NSA, where NLG is a client, EFF is suing to stop the mass telephone records collection program and focusing on the violations to the First Amendment right of association that result from the NSA collecting the telephone records of 24 organizations that work to make political change. “The NSA’s position is that no one—not attorneys and clients, priests and penitents or doctors and patients—should be able to have a conversation free from the possibility of government surveillance.
That’s not consistent with our constitution or our values as Americans. The Supreme Court just reemphasized in Riley the need to protect against general warrants with regard to our smart phones—EFF looks forward to raise those same concerns with regard to the mass surveillance of our communications and communications records.” Considering the EFF has only 14 lawyers on staff, their impact is amazing in reach.
Still, there is more work that needs to be undertaken to protect attorney confidentiality.