Confidentiality's existence tenuous under new surveillance regime

 Edward Poll, The Daily Record Newswire

The major distinction between lawyers and other professionals is that attorneys are covered by a rule of confidentiality. Only the clergy and doctors abide by anything approaching such a rule. However, that confidentiality may be at risk in our new surveillance-dominated society.

A recent headline in The New York Times read, “Spying by N.S.A. Ally Entangled U.S. Law Firm.” The article, written by James Risen and Laura Poitras, noted that according to a top-secret document from famed whistleblower Edward J. Snowden, a former National Security Agency contractor, an American law firm was the latest victim of NSA spying.

Specifically, the NSA and its international affiliates, as part of their global surveillance efforts, were monitoring talks between an American law firm and the Indonesian government, a client that the firm is representing in trade disputes with the U.S.

The article suggested that the firm that became entrapped in surveillance was Mayer Brown, a Chicago-based practice with a global presence. Law firms with clients overseas have become increasingly concerned that their “confidential communications” are or will be compromised by American surveillance.

If that’s the case, what is left of the rule and privilege of confidentiality? Depending on one’s political persuasion, the scenario can be interpreted as paranoia or as one more invasion of American liberty. The sad fact is that we will probably never know. Obviously, the government will not tell us the truth, and it is unlikely that another Snowden will come along soon. Unfortunately, the courts seem intent on ignoring this potential threat to American liberties and, in particular, legal confidentiality. In 2013, according to the New York Times article, the U.S. Supreme Court “rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as ‘speculative.’”

In this case, the court is living in a world of make-believe. Time and time again, it has been shown that the government has overreached the boundaries of the law. It has taken more than 200 years to create and protect our civil liberties. In one fell swoop, we find them being stripped away.

Lawyers have been at the forefront of the fight for civil liberties. Now, even communication with one’s own lawyer is at risk. The NSA is not allowed to target Americans, “including businesses, law firms and other organizations based in the United States, for surveillance without warrants,” according to the Times. However, as we have seen, such technical legalities do not seem to have made a difference. In addition, the NSA is allowed to spy on the communications of Americans if those Americans are communicating with a “foreign intelligence target abroad” — even if that “target,” such as the government of Indonesia, is entitled to representation in this country. There are rules in place to minimize the effect of such surveillance on our privacy, but still …

In medical terminology, sometimes the cure is worse than the disease. Has our government, under the veil of security and protection against terrorism, allowed our civil rights and liberties to be torn asunder? Is this cure worse than the disease?

—————

Edward Poll is the principal of LawBiz Management. He coaches lawyers to greater profits with less stress and is the creator of the new “Life After Law” coaching program, which enables lawyers to plan for profitable exits. He can be contacted at edpoll@lawbiz.com. Also visit www.lawbiz.com.A recent headline in The New York Times read, “Spying by N.S.A. Ally Entangled U.S. Law Firm.” The article, written by James Risen and Laura Poitras, noted that according to a top-secret document from famed whistleblower Edward J. Snowden, a former National Security Agency contractor, an American law firm was the latest victim of NSA spying.

Specifically, the NSA and its international affiliates, as part of their global surveillance efforts, were monitoring talks between an American law firm and the Indonesian government, a client that the firm is representing in trade disputes with the U.S.

The article suggested that the firm that became entrapped in surveillance was Mayer Brown, a Chicago-based practice with a global presence. Law firms with clients overseas have become increasingly concerned that their “confidential communications” are or will be compromised by American surveillance.

If that’s the case, what is left of the rule and privilege of confidentiality? Depending on one’s political persuasion, the scenario can be interpreted as paranoia or as one more invasion of American liberty. The sad fact is that we will probably never know. Obviously, the government will not tell us the truth, and it is unlikely that another Snowden will come along soon. Unfortunately, the courts seem intent on ignoring this potential threat to American liberties and, in particular, legal confidentiality. In 2013, according to the New York Times article, the U.S. Supreme Court “rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as ‘speculative.’”

In this case, the court is living in a world of make-believe. Time and time again, it has been shown that the government has overreached the boundaries of the law. It has taken more than 200 years to create and protect our civil liberties. In one fell swoop, we find them being stripped away.

Lawyers have been at the forefront of the fight for civil liberties. Now, even communication with one’s own lawyer is at risk. The NSA is not allowed to target Americans, “including businesses, law firms and other organizations based in the United States, for surveillance without warrants,” according to the Times. However, as we have seen, such technical legalities do not seem to have made a difference. In addition, the NSA is allowed to spy on the communications of Americans if those Americans are communicating with a “foreign intelligence target abroad” — even if that “target,” such as the government of Indonesia, is entitled to representation in this country. There are rules in place to minimize the effect of such surveillance on our privacy, but still …

In medical terminology, sometimes the cure is worse than the disease. Has our government, under the veil of security and protection against terrorism, allowed our civil rights and liberties to be torn asunder? Is this cure worse than the disease?

—————

Edward Poll is the principal of LawBiz Management. He coaches lawyers to greater profits with less stress and is the creator of the new “Life After Law” coaching program, which enables lawyers to plan for profitable exits. He can be contacted at edpoll@lawbiz.com. Also visit www.lawbiz.com.

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