The American Bar Association has been very concerned regarding the attorney-client communications and the sanctity of this privilege, particularly in light of the NSA surveillance debacle that got leaked to the world. The concerns stems from the recent revelations that NSA had allowed an Australian intelligence agency to tap into the communications between an Indonesian client and its American law firm.
On his part, the outgoing chief of the National Security Agency has assured the Bar Association that the attorney-client privilege will not be violated by the agency. In a letter to the Association, NSA director Gen. Keith Alexander stated that the U.S. in fact has a policy in place that legally protects the confidential attorney information collected during surveillance missions.
Besides this summary, there is a lot more to the letter written by him. Some of it is the usual knee-jerk reaction that you would expect out of an official trying to defend the NSA and its actions. For example this statement, “At a time when certain aspects of the reporting and commentary about the National Security Agency (NSA) shed more heat than light on important matters of security, liberty, and privacy worthy of meaningful public discussion, we also appreciate the thoughtful and constructive approach of your inquiry…”
In his letter Alexander categorically states “NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law…” In lay terms this can be described as a moment where a foreign agency puts in a request for surveillance records and NSA doesn’t decline them nor do they say a complete yes.
Our very own telecommunications community is very eager to go the extra mile, when it comes to sharing records with the authorities. It is said that they sometimes even go overboard and pass on information that is not requested or required.
To sum up what his letter states, apparently once it is established that the recorded bit of information is indeed between “a person who is known to be under a criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney)”, the monitoring of such communication is stopped and logged in the books as “attorney-client communication”.
Action steps to ensure the client-attorney privilege is adhered to, are taken according to the guidelines set and the National Security Division of the Department of Justice notified of the same. The key words – under a criminal indictment – are not good, as they don’t cover the non-criminal cases. Back to you, ABA.