A top-secret document shows that an American law firm was
monitored while representing a foreign government in trade disputes
with the United States.
The list of those caught up in the global surveillance net cast
by the National Security Agency and its overseas partners, from
social media users to foreign heads of state, now includes another
entry: American lawyers.
A top-secret document, obtained by the former N.S.A. contractor
Edward J. Snowden, shows that an American law firm was monitored
while representing a foreign government in trade disputes with the
United States. The disclosure offers a rare glimpse of a specific
instance in which Americans were ensnared by the eavesdroppers, and
is of particular interest because lawyers in the United States with
clients overseas have expressed growing concern that their
confidential communications could be compromised by such
The government of Indonesia had retained the law firm for help in
trade talks, according to the February 2013 document. It 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 Australians told officials at an N.S.A. liaison office in
Canberra, Australia, that "information covered by attorney-client
privilege may be included" in the intelligence gathering, according
to the document, a monthly bulletin from the Canberra office. The
law firm was not identified, but Mayer Brown, a Chicago-based firm
with a global practice, was then advising the Indonesian government
on trade issues.
On behalf of the Australians, the liaison officials asked the
N.S.A. general counsel's office for guidance about the spying. The
bulletin notes only that the counsel's office "provided clear
guidance" and that the Australian agency "has been able to continue
to cover the talks, providing highly useful intelligence for
interested US customers."
The N.S.A. declined to answer questions about the reported
surveillance, including whether information involving the American
law firm was shared with United States trade officials or
Duane Layton, a Mayer Brown lawyer involved in the trade talks,
said he did not have any evidence that he or his firm had been under
scrutiny by Australian or American intelligence agencies. "I always
wonder if someone is listening, because you would have to be an
idiot not to wonder in this day and age," he said in an interview.
"But I've never really thought I was being spied on."
A Rising Concern for Lawyers
Most attorney-client conversations do not get special protections
under American law from N.S.A. eavesdropping. Amid growing concerns
about surveillance and hacking, the American Bar Association revised
its ethics rules in 2012 to explicitly require lawyers to "make
reasonable efforts" to protect confidential information from
unauthorized disclosure to outsiders.
Last year, the Supreme Court, in a 5-to-4 decision, rebuffed a
legal challenge to a 2008 law allowing warrantless wiretapping that
was brought in part by lawyers with foreign clients they believed
were likely targets of N.S.A. monitoring. The lawyers contended that
the law raised risks that required them to take costly measures,
like traveling overseas to meet clients, to protect sensitive
communications. But the Supreme Court dismissed their fears as
The N.S.A. is prohibited from targeting Americans, including
businesses, law firms and other organizations based in the United
States, for surveillance without warrants, and intelligence
officials have repeatedly said the N.S.A. does not use the spy
services of its partners in the so-called Five Eyes alliance --
Australia, Britain, Canada and New Zealand -- to skirt the law.
Still, the N.S.A. can intercept the communications of Americans
if they are in contact with a foreign intelligence target abroad,
such as Indonesian officials. …