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NSA surveillance may ‘seriously undermine and weaken’ legal privilege, says ABA

Calls on the NSA to ‘further clarify the principles and policies in this area’

24 February 2014

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By Manju Manglani, Editor (@ManjuManglani)

The American Bar Association (ABA) has written to the National Security Agency (NSA) to express concerns over reported breaches of attorney-client privilege in intelligence work.

The letter to the NSA's USA director, General Keith B. Alexander, and general counsel, Rajesh De, follows reports alleging that the Australian Signals Directorate intercepted privileged communications between the government of Indonesia and a US law firm and then shared that information with the NSA.

Citing that allegation, the ABA's president, James R. Silkenat, expressed concern that if confidential information was intercepted and shared with the NSA, it could be improperly utilised by the US government or third parties.

"Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege, because as the U.S. Supreme Court noted in Upjohn Co. v. United States, 449 U.S. 383 (1981), 'an uncertain privilege…is little better than no privilege at all'," said Silkenat.

Silkenat called on the NSA to "further clarify the principles and policies" it uses when issues of potential attorney-client privilege arise on information that it collects or receives.

He also asked the NSA to clarify and explain "whether these policies and practices were followed" in the reported interception of privileged communications between the US law firm and its overseas client.

"If NSA obtains such confidential information inadvertently - or such information is obtained by foreign intelligence services or others and then shared with NSA - we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties.

"We would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients."


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