Report About Spying on Law Firm to Get Spotlight in Congress

, Legal Times

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Headquarters of the NSA at Fort Meade, Maryland
Headquarters of the NSA at Fort Meade, Maryland

The revelation that an ally of the National Security Agency spied on an American law firm's communication with a foreign government will further expand the debate on Capitol Hill about the propriety of government surveillance.

The New York Times on Saturday said the Australian ally of the NSA eavesdropped on the communication of a law firm and its client, the Indonesian government. Sen. Patrick Leahy (D-Vt.), the judiciary committee chairman, intends to follow up on questions that the report raised, an aide said Tuesday.

A House Judiciary Committee aide said members also want more information about the report. House Judiciary Committee chairman Rep. Bob Goodlatte (R-Va.), who has called for some NSA reforms, declined to comment today through a spokesperson.

The Times story could become the latest entry on a lawmaker list of perceived surveillance overreach. Several members of Congress wrote to James Cole, the second-in-command at the U.S. Department of Justice, after he said recently that the NSA "probably" collects basic phone records on members of Congress. Lawmakers also were concerned over reports in January that the NSA collected personal information from smartphone apps.

That smartphone data-collection program was run in conjunction with a British intelligence agency. At an oversight hearing last month, Leahy questioned Holder about whether the NSA could use foreign allies to collect information that otherwise would be barred under U.S. law.

Leahy asked what protections are in place to ensure the NSA doesn’t do "an end-run around U.S. surveillance rules, including the Fourth Amendment, obviously, by just going to another foreign agency and say, 'Hey, we're prohibited from collecting this information on Americans. Would you do it for us?' "

Holder said that under an executive order "the intelligence community is not permitted to ask a foreign government to collect information that we ourselves would not be able to collect. And so any attempt to have a foreign government acquire information that we are not permitted to gather ourselves would be inappropriate and a violation of that executive order."

The Times article left questions unanswered about what happened to any information shared between the Australians and the NSA about the communication between the American law firm and Indonesia. (The article suggested the firm was Mayer Brown; the firm said there is no evidence that surveillance authorities intercepted communication between the firm and its client.)

The article said the NSA provided “clear guidance” to the Australian agency, which shared information to the agency.

"But just based on the story as it was published, it seems to me that we don't actually know either of those things," George Washington University Law School professor Orin Kerr wrote on The Volokh Conspiracy blog. "We don’t know what advice the NSA General Counsel’s Office gave. And we don’t know if the useful intelligence that the Australians provided had anything at all to do with the law firm."

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