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NSA Approved Australian Spying on US Lawyers

Commentary Notes First Amendment
By Travis West - Edited by Husam El-Qoulaq [caption id="attachment_4115" align="alignleft" width="150"] Photo By: Jeremy Keith - CC BY 2.0[/caption] A document leaked by Edward Snowden shows that the Australian Signals Directorate ("ASD") spied on communications between the Indonesian government and a US law firm that the foreign government had retained for assistance in trade negotiations. When the ASD sought advice from the National Security Agency ("NSA") about continuing to report on the Indonesian communications, the NSA's Office of the General Counsel "provided clear guidance," possibly regarding the reporting of "information covered by attorney-client privilege." The document states that the ASD was able to continue covering the talks between the Indonesian government and its US counsel and that it had provided “highly useful intelligence for interested US customers.” The New York Times broke the story and posted an excerpt of the leaked document. The Chicago Tribune reports a response from Mayer Brown, the law firm advising Indonesia at the time of the document's publication in an NSA monthly bulletin. Ars Technica and the ABA Journal provide additional commentary. The Guardian further reports on the ASD’s surveillance of Indonesia, as well as the NSA’s involvement in helping the ASD to crack Indonesian encryption.  Lawfare Blog views the document as a sign of the tight cooperation between the NSA and ASD and criticizes the New York Times for overselling the story. The leaked document raises several questions. First, it is unclear what guidance that the NSA provided to the ASD. The NSA’s own guidelines for distributing intelligence gathered from conversations between US lawyers and their foreign clients calls for minimization if the client is under indictment in the United States. However, since the Indonesian government was not under US indictment, it is unclear how much minimization the NSA guidelines required. Second, the document indicates the degree to which foreign intelligence gathering may overlap with economic espionage. The document suggests that US customers received the information collected by the ASD. Although the NSA has denied committing economic espionage for the benefit of US companies, other documents leaked by Snowden have shown that the NSA conveys economic intelligence to other governmental agencies for use in international trade negotiations. Recently, the US has been embroiled in arbitration with Indonesia over clove cigarettes and shrimp imports, and it could have potentially used the ASD intelligence to better understand Indonesia's bargaining position. However, the procedures governing the NSA's sharing of economic intelligence with both governmental and non-governmental actors remain unclear, as does whether the NSA shared the ASD intelligence with anyone outside of government. Last, the document raises concerns about the risks for US lawyers who have overseas clients. While the ABA has developed ethical guidelines that encourage US lawyers to avoid breaching attorney-client privilege, the ABA is concerned that US lawyers will now have to presume that all of their conversations with foreign clients are being monitored. The possibility of such monitoring could inspire wariness among foreigners considering US legal representation. US lawyers may have to adopt new technologies, such as email encryption, to persuade their international clients that other governments will not intercept their privileged communications.