Did the NSA violate attorney-client privilege in domestic surveillance?

Technically no, but if the latest revelations from Edward Snowden are true, perhaps only technically. One document from the Snowden trove provides a glimpse at how the NSA could get around FISA safeguards on domestic intelligence-gathering by partnering with an allied nation to get the information NSA could not legally collect. But did it? The Australian Signals Directorate offered to share data it collected on an American law firm that represented another government in a trade dispute, the New York Times’ James Risen and Laura Poitras report, and may have compromised attorney-client privilege — but did the NSA bite? The answer is far from the lead (via Instapundit):

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 foreign government represented by the American firm was Indonesia, according to the NYT’s transcript of the top-secret communication. The State Department describes Indonesia in fairly glowing terms as an American ally:

Indonesia’s democratization and reform process since 1998 has increased its stability and security, and resulted in strengthened U.S.-Indonesia relations. In 2010, Presidents Obama and Yudhoyono inaugurated the U.S.-Indonesia Comprehensive Partnership, which has fostered consistent high-level engagement on issues related to democracy and civil society, education, security, climate and environment, energy, and trade issues, among others.

The document does not provide any clue as to whether the NSA took up the offer from the ASD. If it did, though, it would have violated FISA laws as well as the legal privilege accorded attorney-client communications in the US — in principle, anyway. That won’t make American law firms very happy with the Obama administration, as it may tend to make things a little difficult with client recruitment, or at least in hardening communications. As Risen and Poitras note, though, that protection is actually quite limited when it comes to intelligence operations.

It’s not the first suggestion that NSA used its partnerships to conduct end runs around FISA. Last June, the revelation of the involvement of the UK’s GCHQ opened up that possibility. As I noted at the time, the sharing of the surveillance capabilities made a “criss-cross” arrangement possible, akin to the plot of Alfred Hitchcock’s Strangers on a Train. What makes this even more curious is that it doesn’t appear to have had any national-security import, but instead offered merely diplomatic and trade advantages to the US — if we took up the offer at all.

This isn’t part of the massive data trawling operation that made headlines. It looks more like standard spycraft from Australia, not data-trawling from the NSA, and a partnership-building offer that may or may not have been accepted. That doesn’t make it any better, but it’s not exactly news — except for the possible intrusion on attorney-client privilege, which as I wrote above wouldn’t make trial lawyers too happy with the White House if it took place. And to the extent that this implicates NSA in economic espionage, it’s going to further erode our standing with allies who find themselves targeted by those efforts … even if those allies conduct exactly the same kind of industrial espionage themselves.

The Lawfare blog calls this mostly overblown, though, and look to the story below the jump:

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm.

Deep in the story, write Benjamin Wittes and Jane Chong, one sees rather clearly that the NSA applied the practice of minimization when this arose:

Piece all this together, and it sounds like NSA probably asked the Australians to observe practices similar to what would have been the rules had the surveillance been conducted by NSA itself, at least with respect to those materials the ASD meant to share with NSA. Judging from the fact that the Australians managed to share information in a “highly useful” fashion, it appears they complied with this request—which was presumably the reason they sought the guidance in the first place.

So what would those rules have been? The key is minimization. When the U.S. conducts this sort of surveillance under FISA Section 702 (the minimization rules under Executive Order 12333 probably differ somewhat), NSA cannot target anyone for Section 702 collection—not even foreign persons overseas—without a valid foreign intelligence purpose.

There’s less here than meets the eye, conclude Wittes and Chong. It’s less Strangers on a Train, and more like playing footsie.