Government Surveillance Undermines Attorney-Client Privilege

August 26, 2014

Attorney-client privilege and surveillance

Crossposted in New York Law Journal.

The government's practice of monitoring attorney-client communications over prison email systems was on display in two New York cases this summer. Prosecutors argued that by using the prison-provided email system, inmates consented to monitoring. Inmates wanting to speak privately with their attorneys should have sent letters or arranged visits through the prison's Byzantine bureaucracy, they said.

Defense attorneys countered that email is the modern version of postal mail, and should be afforded the same level of confidentiality. The judges reached opposite results in the two cases, a clear display of the level of confusion in the law in this new era of mass surveillance.

The confidentiality of conversations between lawyers and their clients is the oldest privilege recognized by Anglo-American law. Its purpose is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." The privilege buttresses the constitutional right to counsel and the privilege against self-incrimination. Without the privilege, it is impossible for legal practitioners to give accurate legal advice because clients could never be certain they could tell their lawyers the whole story behind a case. It matters to everyone who relies on a lawyer, from the individual accused of drug dealing to the firm defending against charges of securities fraud.

It's not just prisons where the attorney-client privilege is being undermined. The government can monitor attorney-client communication with few constraints in intelligence operations, too. Under the Foreign Intelligence Surveillance Act (FISA), a specialized court that operates in secret can order covert surveillance of individuals the government alleges are probable "agents of a foreign power." Two prominent American Muslim lawyers have recently been revealed to be subjects of FBI surveillance under this authority. The FISA statute purports to honor legal privileges, such as attorney-client communications, through secret "minimization procedures."

In practice, the FISA minimization procedures do not prohibit the government's acquisition of privileged communications, but only prevent them from being introduced directly in court as evidence. So under FISA, the government can covertly listen in on a subject's pre-indictment consultations with their lawyer, hear the lawyer's strategy, and gain a head start on addressing the legal shortcoming of their own case, so long as they don't use the recorded conversations as evidence at trial.

Moreover, under a more recently enacted provision of FISA, the special court has secretly authorized the government to collect Americans' international e-mails and phone records so long as it targets the foreign end of the communications, and to review the tens of thousands of purely domestic communications it picks up "inadvertently" each year because its filters don't properly exclude them.

Some of these communications undoubtedly include confidential legal information protected by the privilege, but the special minimization procedures the court authorized for this provision only apply when the target is known to be under criminal indictment. The scope of this mass surveillance program, combined with the weak protections for privileged attorney communications, undermines our legal system. As a National Association of Criminal Defense Lawyers (NACDL) amicus brief (Jewel v. NSA) challenging this FISA provision argues, "When every reasonable modern method of communication is apparently subject to routine mass search and seizure by the government, the right to consult with counsel, under the protection of the attorney-client privilege, simply disappears."

To combat the risk that confidential conversations will get picked up by mass surveillance programs, lawyers have had to take extraordinary steps to protect client communications.

As documented in a new report by Human Rights Watch, lawyers have declined to take on cases in which intelligence agencies might be interested, shouldered additional costs to meet face-to-face with witnesses and clients, and even switched to untraceable "burner" phones to communicate privately with clients. Lawyers should not have to act like fugitives in order to keep their clients' confidences.

It doesn't have to be this way. Under the Wiretap Act, originally passed in 1968, the government has built successful cases against organized crime families, drug traffickers, and money launderers, all while affording protection to communications between lawyers and clients. Court-tested methods for minimizing the interception of attorney-client communications include real-time muting of recorders when subjects of surveillance speak to their attorneys and reviewing intercepted communications with a "clean team" to insulate investigators and prosecutors. These models should be developed and adapted for the digital age to ensure that the confidential communications are protected.

As government surveillance becomes more pervasive and intrusive, it isn't just innocent or mundane conversations that are scrutinized. Information about our most sensitive and confidential business and legal concerns are routinely making their way into the hands of the government, shorn of meaningful attorney-client confidentiality.

The integrity of our adversarial legal system requires that defendants be able to consult with their lawyers in private, and experience shows that it is possible to devise ways of protecting these communications without jeopardizing legitimate government interests. The bar should advocate adding stronger protections of attorney-client communications to the various FISA reforms currently under consideration in Congress.

(Photo: Thinkstock)