Viewing Privilege through a Prism: Attorney-Client Privilege in Light of Bulk Data Collection

By Beach, Paul H. | Notre Dame Law Review, March 2015 | Go to article overview

Viewing Privilege through a Prism: Attorney-Client Privilege in Light of Bulk Data Collection


Beach, Paul H., Notre Dame Law Review


INTRODUCTION

On June 22, 2009, President Obama signed into law the Family Smoking

Prevention and Tobacco Control Act, banning the sale of flavored cigarettes in the United States (1)--including clove cigarettes. (2) The move was not without opposition, particularly from abroad. Indonesia, a major manufacturer and exporter of clove cigarettes, filed a dispute over the law with the World Trade Organization in response. (3) That dispute quickly became "one of the WTO's more high-profile" disputes, highlighting a clash between the competing interests of free trade and domestic health policy. (4)

Surprisingly, the legacy of that four-year-long trade dispute may have little to do with health policy, free trade, or clove cigarettes. Rather, the dispute may be best remembered for its role in uncovering the surveillance of American law firms by foreign intelligence services and for expanding the role of bulk data collection in the United States. In February 2014, as the WTO dispute between Indonesia and the United States waned, the Australian

Signals Directorate intercepted the communications of an American law firm representing the government of Indonesia in the proceedings. (5) According to the leaked document at the center of this revelation, "the Australian agency received 'clear guidance'" from the office of the National Security Agency's (NSA) general counsel as part of its activities. (6) Despite notifying the NSA that the contents of the communications appeared to be privileged attorney-client communications, the Directorate continued covering the communications between the law firm and its client, "providing highly useful intelligence for interested US customers" (7) after receiving guidance from the American agency.

News of this monitoring understandably raised immediate concerns for many attorneys. The American Bar Association (ABA) responded quickly in an open letter to General Keith Alexander, the director of the NSA. (8) In that letter, ABA Director James R. Silkenat voiced the concern on many lawyers' minds: that confidential client communications were being compromised by government surveillance. (9) The ABA acknowledged the policies in place that aim to minimize the impact of gathering potentially privileged information by the NSA (10) and requested additional information regarding policies to protect communications from third parties and other foreign surveillance organizations. (11)

Understandably, General Alexander's response to the ABA was silent regarding the allegations of spying on an American law firm. (12) His response did, however, set out to reassure the ABA that the NSA respected, and would continue to respect, the attorney-client privilege. (13) The NSA, General Alexander assured, was unable to target the communications of Americans anywhere in the world where they enjoy a reasonable expectation of privacy. (14) The General also noted the considerable procedures in place aimed at handling and protecting privileged communications inadvertently gathered by the NSA. (15) In the months since this exchange, there has been little to no development to this story.

Importantly, this saga does not appear to be an isolated event. As a result of the bulk data collection programs uncovered by former NSA contractor Edward Snowden, (16) news agencies have spent considerable energy covering, discussing, and debating government bulk data collection. (17)

This Note will argue that the attorney-client privilege is justified not only by the popular instrumentalist rationales, but also by noninstrumentalist thinking. It will further argue that Federal Rule of Evidence 502 gives federal courts the tools to protect the attorney-client privilege in light of bulk data collection. Even where courts do not find that traditional modes of communication constitute reasonable steps to protect a confidential communication, general considerations of fairness--as noted in Rule 502's committee notes--should encourage courts to uphold attorney-client privilege in future situations of bulk data collection disclosures. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Viewing Privilege through a Prism: Attorney-Client Privilege in Light of Bulk Data Collection
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.