Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
NSA Implicated in Spying on U.S. Law Firms: Part II
February 19, 2014
The precursor to today's blog post may be found here. There was just too much to put in one post. Many of you will not be able to get to an article published in The American Lawyer yesterday (subscription required).
As yesterday's post noted, the conclusion of the February 15th New York Times story was that the NSA was implicated in surveillance of an American law firm which was thought to be Chicago-based global firm Mayer Brown.
Mayer Brown did not issue a complete denial, but early Monday it released the following carefully worded statement: "Media reports indicate that some attorney-client communications related to Mayer Brown's representation of the Government of Indonesia may have been intercepted through electronic surveillance of Indonesia's communications by the Government of Australia. There is no indication, either in the media reports or from our internal systems and controls, that the alleged surveillance occurred at the firm. Nor has there been any suggestion that Mayer Brown was in any [way] the subject of the alleged scrutiny. Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure."
This statement is clearly aimed at reassuring international clients, which Mayer Brown contacts regularly by phone and e-mail, that their communications are safe.
Here's an earlier statement: "I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age,” said Duane Layton, the Washington, D.C.–based partner who leads Mayer Brown's government and global trade practice. "But I've never really thought I was being spied on." Well said Mr. Layton – you would have to be an idiot not to wonder.
My partner, John Simek, was interviewed for the article. Needless to say, we had discussed the official firm statement at length. As John noted, no matter how robust Mayer Brown's own mechanisms for preventing snooping are, there is only so much that is within the firm's control given the way information whips around the world these days. He therefore doesn't put much stock in the carefully crafted public statement.
"You have no idea where the communications may have been intercepted," he said, adding, "I think in general law firms have not done enough to properly secure their own environments and communications networks." Another thing to consider is the proficiency of those doing the eavesdropping. "These guys are good. I wouldn't expect you to know whether they've been getting access to your communications." As John and I discussed, the NSA or its counterparts could well be in the law firm's network undetected. It could be intercepting at the Internet provider level. It could be intercepting phone calls. The level of law firm security is nowhere near the level needed to foil the NSA or its counterparts – and the government has advantages that the private sector does not – like the authority to break the law and perform unconstitutional acts at will with impunity (yes, my editorial comment). A ghostly FISA court oversees the NSA here, and it is largely unaccountable. The situation is likely much the same in other countries.
The recent revelations may provide new impetus for the U.S. Supreme Court to revisit a 2013 decision that involved electronic surveillance law.
The justices could reconsider their 5-4 decision in Clapper v. Amnesty International USA. The Center for Constitutional Rights last month filed a petition for review asking the high court to hear their challenge to surveillance by the NSA in light of Edward Snowden's revelations about the extent of the surveillance program. The petition, Center for Constitutional Rights v. Obama, was filed on behalf of the organization itself and its legal staff.
"We have always been confident that our communications—including privileged attorney-client phone calls—were being unlawfully monitored by the NSA, but Edward Snowden’s revelations of a massive, indiscriminate NSA spying program changes the picture," said CCR Senior Attorney Shayana Kadidal in a statement last month. "Federal courts have dismissed surveillance cases, including ours, based on criteria established before Snowden’s documents proved that such concerns are obviously well-founded."
Surveillance of a major law firm has happened before. Crowell & Moring senior litigation partner Stuart Newberger had a case against the Turkish government. He later learned that the Turkish government had obtained secret court orders allowing it to intercept thousands of e-mails and hundreds of cellphone calls between him and his client. "I'm not surprised it happened," says Newberger. "I'm surprised it was disclosed." To Newberger, who says he generally supports the government's legal tactics where it is fighting terrorism, what the Times documented is "over the line, not a gray area."
If you think you hear an echo, that it is precisely what I said yesterday. Newberger went on to say,
"My government should not be in the business, for anybody's sake, of intercepting what we as a society consider sacrosanct, which is privileged communication. This is a threat to the rule of law." For laws firms—and especially those that practice internationally, given the breadth of their business and the scope of the global security apparatus—the stakes are simple, he adds: "No privilege, no business."
In a statement to the Times, the NSA declined to comment on the details included in the Snowden document. Broadly speaking, the agency said, "Any allegation that the NSA relies on foreign partners to circumvent U.S. law is absolutely false. The National Security Agency does not ask its foreign partners to undertake any intelligence activity that the U.S. Government would be legally prohibited from undertaking itself." The statement went on to say that "NSA's Office of the General Counsel is consulted when issues of potential privilege arise" and that "a variety of steps might be taken to protect potentially privileged information, consistent with NSA's foreign intelligence mission."
Unfortunately, the credibility of the NSA is zilch. Our prediction is that (are you ready for this?), is that law firms, in sensitive national or international matters, may take an old world approach and dispatch lawyers to talk to clients in person – and not necessarily in a setting where surveillance might be expected.
Remember the old movie scenes of international spies talking to their informers in parks? What's old may well be new again.
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