U.S. Law Firm Entangled in N.S.A. Ally's Spying Net ; Australia Offered Agency Data on Indonesia Trade Case, Document Shows

By James Risen; Laura Poitras | International New York Times, February 17, 2014 | Go to article overview

U.S. Law Firm Entangled in N.S.A. Ally's Spying Net ; Australia Offered Agency Data on Indonesia Trade Case, Document Shows


James Risen; Laura Poitras, International New York Times


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 surveillance.

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 negotiators.

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 "speculative."

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. …

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