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New York Times
Spying by N.S.A. Ally Entangled U.S. Law Firm
The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.
A
top-secret document, obtained by the former N.S.A. contractor Edward J.
Snowden, shows that an American law firm was monitored while
representing a foreign government in trade disputes with the United
States. The disclosure offers a rare glimpse of a specific instance in
which Americans were ensnared by the eavesdroppers, and is of particular
interest because lawyers in the United States with clients overseas
have expressed growing concern that their confidential communications
could be compromised by such surveillance.
The government of Indonesia
had retained the law firm for help in trade talks, according to the
February 2013 document. It reports that the N.S.A.’s Australian
counterpart, the Australian Signals Directorate,
notified the agency that it was conducting surveillance of the talks,
including communications between Indonesian officials and the American
law firm, and offered to share the information.
The
Australians told officials at an N.S.A. liaison office in Canberra,
Australia, that “information covered by attorney-client privilege may be
included” in the intelligence gathering, according to the document, a
monthly bulletin from the Canberra office. The law firm was not
identified, but Mayer Brown, a Chicago-based firm with a global
practice, was then advising the Indonesian government on trade issues.
On
behalf of the Australians, the liaison officials asked the N.S.A.
general counsel’s office for guidance about the spying. The bulletin
notes only that the counsel’s office “provided clear guidance” and that
the Australian agency “has been able to continue to cover the talks,
providing highly useful intelligence for interested US customers.”
The
N.S.A. declined to answer questions about the reported surveillance,
including whether information involving the American law firm was shared
with United States trade officials or negotiators.
Duane
Layton, a Mayer Brown lawyer involved in the trade talks, said he did
not have any evidence that he or his firm had been under scrutiny by
Australian or American intelligence agencies. “I always wonder if
someone is listening, because you would have to be an idiot not to
wonder in this day and age,” he said in an interview. “But I’ve never
really thought I was being spied on.”
A Rising Concern for Lawyers
Most
attorney-client conversations do not get special protections under
American law from N.S.A. eavesdropping. Amid growing concerns about
surveillance and hacking, the American Bar Association in 2012 revised
its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.
Last year, the Supreme Court, in a 5-to-4 decision, 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.”
The
N.S.A. is prohibited from targeting Americans, including businesses,
law firms and other organizations based in the United States, for
surveillance without warrants, and intelligence officials have
repeatedly said the N.S.A. does not use the spy services of its partners
in the so-called Five Eyes alliance — Australia, Britain, Canada and
New Zealand — to skirt the law.
Still, the N.S.A. can
intercept the communications of Americans if they are in contact with a
foreign intelligence target abroad, such as Indonesian officials. The
N.S.A. is then required to follow so-called minimization rules
to protect their privacy, such as deleting the identity of Americans or
information that is not deemed necessary to understand or assess the
foreign intelligence, before sharing it with other agencies.
An
N.S.A. spokeswoman said the agency’s Office of the General Counsel was
consulted when issues of potential attorney-client privilege arose and
could recommend steps to protect such information.
“Such
steps could include requesting that collection or reporting by a
foreign partner be limited, that intelligence reports be written so as
to limit the inclusion of privileged material and to exclude U.S.
identities, and that dissemination of such reports be limited and
subject to appropriate warnings or restrictions on their use,” said
Vanee M. Vines, the spokeswoman.
The
Australian government declined to comment about the surveillance. In a
statement, the Australian Defense Force public affairs office said that
in gathering information to support Australia’s national interests, its
intelligence agencies adhered strictly to their legal obligations,
including when they engaged with foreign counterparts.Several newly
disclosed documents provide details of the cooperation between the United States and Australia, which share facilities and
highly sensitive intelligence, including efforts to break encryption
and collect phone call data in Indonesia. Both nations have trade and
security interests in Indonesia, where Islamic terrorist groups that
threaten the West have bases.
The
2013 N.S.A. bulletin did not identify which trade case was being
monitored by Australian intelligence, but Indonesia has been embroiled
in several disputes with the United States in recent years. One involves clove cigarettes,
an Indonesian export. The Indonesian government has protested to the
World Trade Organization a United States ban on their sale, arguing that
similar menthol cigarettes have not been subject to the same restrictions
under American antismoking laws. The trade organization, ruling that
the United States prohibition violated international trade laws, referred the case to arbitration to determine potential remedies for Indonesia.
Another dispute involved Indonesia’s exports of shrimp, which the United States claimed were being sold at below-market prices.
The
Indonesian government retained Mayer Brown to help in the cases
concerning cigarettes and shrimp, said Ni Made Ayu Marthini, attaché for
trade and industry at the Indonesian Embassy in Washington. She said no
American law firm had been formally retained yet to help in a third
case, involving horticultural and animal products.
Mr.
Layton, a lawyer in the Washington office of Mayer Brown, said that
since 2010 he had led a team from the firm in the clove cigarette
dispute. He said Matthew McConkey, another lawyer in the firm’s
Washington office, had taken the lead on the shrimp issue until the
United States dropped its claims in August. Both cases were underway a
year ago when the Australians reported that their surveillance included
an American law firm.
Mr.
Layton said that if his emails and calls with Indonesian officials had
been monitored, the spies would have been bored. “None of this stuff is
very sexy,” he said. “It’s just run of the mill.”
.....
NSA, Australian liaison office monitored U.S. law firm
A
top-secret document obtained by former NSA contractor Edward Snowden
shows that a U.S. law firm was monitored while representing a foreign
government in trade disputes with the United States, The New York Times
reports.
The Associated Press
The February 2013 document shows that the Indonesian government had retained the law firm for help in trade talks, The Times reported in a story posted on its website Saturday. The law firm was not identified in the document, but the Chicago-based firm Mayer Brown was advising the Indonesian government on trade issues at the time, according to the newspaper.
The document itself is a monthly bulletin from an NSA liaison office in Canberra, the capital of Australia. The NSA’s Australian counterpart, the Australian Signals Directorate, had notified the NSA that it was conducting surveillance of the talks, including communications between Indonesian officials and the U.S. law firm, and offered to share the information, The Times reported.
Liaison officials asked the NSA general counsel’s office, on behalf of the Australians, for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian eavesdropping agency “has been able to continue to cover the talks, providing highly useful intelligence for interested U.S. customers,” according to the article.
The NSA and the Australian government declined to answer questions about the surveillance. In statements to the newspaper and The Associated Press, the NSA said it “does not ask its foreign partners to undertake any intelligence activity that the U.S. government would be legally prohibited from undertaking itself.”
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