ABA Presses the NSA Over Attorney-Client Privilege

, Legal Times


James Silkenat, partner at Sullivan & Worcester, and 2013-2014 President of the American Bar Association, during a hearing by the House Judiciary Committee on the effects the Federal government shutdown on the Judiciary.
Sullivan & Worcester's James Silkenat

The American Bar Association on Thursday pressed the National Security Agency for information about its policy concerning the protection of attorney-client communication amid surveillance efforts.

ABA President James Silkenat sent a letter to NSA Director Gen. Keith Alexander to express concern about the possible surveillance of American lawyers' confidential communications with overseas clients, as well as the use of that information by the federal government or third parties.

The letter notes The New York Times report this month that an Australian ally of the NSA eavesdropped on the communication of an American law firm and its client, the Indonesian government.

Silkenat requested that Alexander “clarify and explain NSA's current policies and practices that are designed to protect the attorney-client privileged status of information that it collects or receives, and whether these policies and practices were followed with respect to the alleged interception of privileged communications between the U.S. law firm and its overseas client referenced above."

The ABA in its letter acknowledged that in the course of national security surveillance "it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency."

Silkenat urged the agency not to actively seek that privileged information, and to take steps to protect it if it is inadvertently collected.

"The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation," Silkenat wrote.

"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.'"

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