James Risen and Laura Poitras report for the New York Times that Mayer Brown, while representing Indonesia in trade talks, might have been spied upon by the National Security Agency and its overseas partner. A February 2013 document "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 Directorate advised that attorney-client privilege could cover some of the information, The Times reports.
The Times also reports that there is only so much protection that the attorney-client privilege affords from NSA surveillance: "The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes."
Orin Kerr, writing over at The Washington Post's Volokh Conspiracy, struck a cautionary note: "It seems to me that the story here isn’t ‘NSA helped spy on U.S. lawyers.’ Rather, the story here is more like ‘Australian government obtained legal guidance from NSA General Counsel’s Office on what to do when Australian monitoring of a foreign government includes attorney/client communications between the government and its U.S law firm.’"
Lawyer and Legal Journalist
