Cultivated Compendium

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.’"

Development groups have called upon the United Nations to make media freedom and access to information central to the global body's sustainable development agenda, according to The Guardian. Some advocates prefer a "distinct global development plan on good governance, with access to information at its heart." The argument, Thomas Hughes opines in The Guardian, is that "quality, current and accessible information is crucial to establishing the scope and nature of development challenges. It empowers people to hold their leaders to account and participate in the decisions that affect their lives. It also forms the basis of a free and independent media, which, as media development NGOs such as Internews have emphasised, plays a vital role in safeguarding development. A free media informs, facilitates public participation through open debate and helps to hold those in power to account."

The Delaware Coalition for Open Government is arguing to the U.S. Supreme Court that it should not take up a case in which the Delaware Court of Chancery is trying to reinstate its secret, confidential arbitration program, my former colleague, Delaware Business Court Insider's Jeff Mordock, reports. "'Judicial arbitrators are deciding the substantive legal rights of the parties,'" the coalition's attorney argued, DBCI reports. "'That is a core basis for the First Amendment right of public access.'" The chances of the petiton being granted are 3.8 percent, DBCI concludes.
 

There have been more positive developments this week in favor of same-sex marriage and LGBT rights:

One, Virginia's ban on same-sex marriage was struck down, Christian Science Monitor reports. The ruling is the first in the south to overturn a voter-backed prohibition on same-sex matrimony as unconstitutional.

Two, the Associated Press reports that a federal judge ruled this week that Kentucky must recognize same-sex marriages performed in other states. The judge struck down the clause on recognizing out-of-state same-sex matrimony as imposing a traditional or faith-based limitation without a sufficient justification for it, the AP also reports.

Three, the Southern Poverty Law Center has filed a lawsuit challenging Alabama's same-sex marriage ban, the Washington Blade reports. The issue involves a same-sex couple in which one spouse was killed in a car accident and his widower is barred from receiving the majority of any settlement money in a wrongful death action. Opposite-sex spouses get that privilege in Alabama.

Special master Louis Freeh found that an official involved in the administration of settled claims over the BP oil spill frequented a New Orleans bar that received $500,000 in oil-spill compensation and mishandled an email regarding the claim, the National Law Journal reports. While Freeh recommended procedural changes, BP wants witness statements and transcripts, NLJ reports. Freeh and plaintiffs lawyers oppose that request.

Politico's Josh Gerstein reports that the 7th Circuit is questioning its authority to review an "unprecedented order giving defense attorneys access to the paperwork supporting secret Foreign Intelligence Surveillance Act orders used to build a criminal case." The 7th Circuit issued a one-page order expressing doubt that it has the jurisdiction to consider the pre-trial ruling. Responses to the jurisdictional question have to be filed next week, Politico further reports.

"The collection of phone records by the National Security Agency has no basis in the law, a member of an independent federal advisory board said Wednesday," The Hill reported on a Congressional hearing yesterday in which members of the Privacy and Civil Liberties Oversight Board testified. The Hill further reported: "'With all respect to both executive branch officials and judicial officials, nobody looked at the statute as carefully was we did,' James Dempsey, the vice president for public policy at the Center for Democracy & Technology, told members of the Senate Judiciary Committee."
 

An Indiana Senate committee voted this week to send a proposed constitutional ban on same-sex marriage to the full legislative body, the Associated Press reports. House legislators stripped out a sentence that would ban civil unions, but the amendment's supporters want the sentence restored. If the sentence is restored, a public vote could happen this fall. If the sentence is not restored, then legislators would have to pass the amendment a second time in another legislative session before the measure could go to voters.

The cause of same-sex marriage and LGBT  rights advanced in several states around the country this week:

* The Idaho Supreme Court will now allow the adoption of a same-sex partner's children, The Washington Post's Eugene Volokh writes: "More broadly, the court concludes that such a second-parent adoption doesn’t require that the parties be married to each other, so that adoption of an opposite-sex partner’s (or even friend’s) children would be allowed as well, so long as the other requirements for adoption are met."

* Nevada has withdrawn its appeal to uphold that state's same-sex marriage ban, Bloomberg reports: "Nevada was defending a constitutional ban on same-sex marriages established by a voter-approved amendment. A federal judge in 2012 ruled that the state law didn’t violate the equal protection rights of eight same-sex couples that sued to overturn it. Yesterday, the state dropped its defense of the ban in the U.S. Court of Appeals in San Francisco" due to the 9th Circuit's ruling that heightened constitutional scrutiny would not allow a gay man to be excluded from a trial involving an AIDS drug.

* Same-sex couples have filed a lawsuit to challenge Texas' same-sex marriage ban, Reuters reports.

* Same-sex couples have filed a lawsuit to challenge Ohio's ban on allowing both same-sex partners on children's birth certificates, the Associated Press reports. A similar Ohio lawsuit over death certificates had success, and the attorney prosecuting the cases says his tactics "will give the U.S. Supreme Court a wider variety of legal arguments to consider when appeals from various states reach their chambers."

Millions of Americans are stuck in a health coverage gap created by the Supreme Court strucking down the Obamacare mandate that states expand Medicaid and the refusal of many states to voluntarily expand their existing Medicaid programs, The Wall Street Journal reported this week. The WSJ reports on one woman who earns $7,000 as a cleaner, which is too little to get help buying coverage on the healthcare insurance exchanges and too much to get coverage in Alabama's Medicaid program.

Twenty-four Republican-led states have declined the expansion, WSJ also reports. That might be changing in some states: "Some GOP-led states are revisiting their decision as complaints pile up over the coverage gap—and its consequences for businesses—in such states as Utah and Florida. The state senate in New Hampshire last week reached a tentative deal to expand Medicaid. In Virginia, newly elected Democratic Gov. Terry McAuliffe hopes to get legislators to reverse his Republican predecessor's stance against expansion," according to WSJ.

The Washington Post editorialized this week that Virginia should expand Medicaid because "people above and below them get help from other federal health-care provisions — and while Virginia’s citizens pay federal taxes to fund the coverage expansion but get none of those dollars back."