Viewing privilege through a prism: attorney-client privilege in light of bulk data collection.

AuthorBeach, Paul H.

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. Part I will discuss the establishment, development, and operations of the national security surveillance and signals intelligence apparatuses in the United States. It will also examine the legal basis for state surveillance and bulk data collection programs and legal challenges to those programs with an eye toward the issue of attorney-client privilege. Part II of this Note will examine the establishment and development of attorney-client privilege and the waiver of that privilege in the United States. Finally, Part III will analyze the methods courts should adopt in considering a future case involving privileged information gathered through bulk data collection.

  1. BULK DATA COLLECTION IN THE UNITED STATES

    1. Background

      Recognizing in 1952 that the "communications intelligence ... activities of the United States are a national responsibility," (18) President Truman set out to lay the framework to modernize American signals intelligence for the modern age. (19) In a memorandum to the Secretaries of State and Defense, the President made the first references to a "National Security Agency," (20) conceptualizing the agency as "provid[ing] an effective, unified organization and control of the communications intelligence activities of the United States conducted against foreign governments." (21) Just days after the President's memorandum, on November 4, 1952, (22) Secretary of Defense Robert A. Lovett "accomplished the actual establishment of the new National Security Agency" in a "remarkably sparse announcement" and memorandum. (23)

      The next sixty-one years of the NSA's existence were impressive. The Agency proved vital to American intelligence gathering, providing communications and signals intelligence in a number of crucial situations. For example, in 1952 the NSA exposed "a massive soviet espionage effort." (24) The organization also provided intelligence support during the Cuban Missile Crisis, (25) provided signals intelligence during Operation Desert Storm, (26) and provided continuing integral signals intelligence throughout the United States' engagement in Iraq and Afghanistan. (27)

      Despite this storied history, the NSA was able to largely avoid media attention and recognition. That became more difficult in the wake of the September 11 attacks, (28) and the situation changed dramatically in June of 2013, when then-NSA contractor Edward Snowden leaked information regarding NSA bulk data collection programs to the press. (29) In the following months, a number of previously unknown or little-known data collection programs would become public knowledge. (30) While this was hardly the first instance of government surveillance of Americans' communications, (31) the "dragnet" style of the NSA's programs startled many commentators. (32)

      Much of the coverage of Snowden's leaks centered largely on two NSA data collection programs: PRISM and XKeyscore. (33) The program garnering most of the attention from the press has been PRISM, which "collect[s] [data] direcdy from the servers of ... Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, Youtube, [and] Apple." (34) "That program, which has been known for years, copies [metadata] as it enters and leaves the United States, then routes it to the NSA for analysis." (35) Another NSA program revealed is called XKeyscore. XKeyscore is the "'widest reaching' means of gathering data from across the Internet," (36) and collects not only metadata, but also content data from the Internet. (37) An advantage of XKeyscore is the ability to catalog tremendous amounts of metadata and content data for later review, sometimes up to five years later. (38)

      In the wake of these leaks, much of the focus centered on the NSA's collection of metadata, which can be described as "data about data." (39) Metadata collection apparently constitutes the vast majority of the information gathered by NSA bulk data collection programs. (40) However, disclosures about programs such as XKeyscore, suggest that NSA surveillance goes beyond merely collecting information about the delivery path or forwarding information of communications. (41) Rather, the NSA and other agencies have "tapp[ed] directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets." (42) Perhaps this is unsurprising, considering that the concerns that triggered the ABA's letter to General Alexander were due to monitoring of communications, not simply the collection of metadata about those communications. (43) This is important to keep in mind when considering an application to attorney-client privilege.

    2. Legal Basis for Bulk Data Collection Programs in the United States

      The legal basis for the government's bulk data collection is anchored in the Foreign Intelligence Surveillance Act (FISA), originally enacted in 1978. (44) A key purpose of FISA was "to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes." (45) The Act was seen as "an important first step towards full-scale legislative regulation of the intelligence activities" in the United States. (46) To achieve this goal, Congress also established a court charged with evaluating applications for electronic surveillance and granting those applications where appropriate. (47) Judges for this Foreign Intelligence Surveillance Court (FISC) were appointed by the Chief Justice of the United States, and served for nonrenewable terms of seven years. (48) The FISC offered a detached oversight element to intelligence gathering. (49) Some have argued, however, that over time, the FISC eventually came to approve surveillance programs that even Congress would have balked at. (50)

      In 2008, Congress amended FISA. (51) The 2008 amendments are often cited as providing...

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