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: U.S. lawyers.
A top-secret document obtained by former National Security Agency contractor Edward Snowden shows that a U.S. 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 of Americans ensnared by the eavesdroppers and is of particular interest because U.S. lawyers 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 National Security Agency’s Australian counterpart, the Australian Signals Directorate, notified the U.S. agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the U.S. law firm, and offered to share the information.
The Australians told officials at an agency 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 National Security Agency 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 eavesdropping agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”
The National Security Agency declined to answer questions about the reported surveillance, including whether information involving the U.S.law firm was shared with U.S. 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 the Australian or U.S. 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. “But I’ve never really thought I was being spied on.”
Most attorney-client conversations do not get special protections under U.S. law from National Security Agency eavesdropping. As concerns grow about surveillance and hacking, the American Bar Association in 2012 revised its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.
Last year, the U.S. Supreme Court, in a 5-4 decision, rebuffed a legal challenge to a 2008 law allowing wiretaps without warrants that was filed in part by lawyers with foreign clients they thought were likely targets of National Security Agency monitoring. The attorneys 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 National Security Agency 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 agency does not use the spy services of its partners in the so-called Five Eyes alliance - which includes Australia, Britain, Canada and New Zealand - to skirt the law.
Still, the agency can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials. The National Security Agency then is required to follow so-called minimization rules to protect their privacy, such as deleting the identities of Americans or information that is not deemed necessary to understand or assess the foreign intelligence before sharing it with other agencies.
A National Security Agency spokesman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.
“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee Vines, the spokesman.
The Australian government declined to comment about the surveillance. In a statement, the Australian Defense Force public-affairs office said that in gathering information to support Australia’s national interests, its intelligence agencies adhered strictly to their legal obligations, including when they engaged with international counterparts.
Several newly disclosed documents provide details of the cooperation between the United States and Australia, which share facilities and highly sensitive intelligence, including efforts to break encryption and collect phone-call data in Indonesia. Both nations have trade and security interests in Indonesia, where Islamic terrorist groups that threaten the West have bases.
The 2013 National Security Agency bulletin did not identify which trade case was being monitored by Australian intelligence, but Indonesia has been embroiled in several disputes with the United States in recent years. One involves clove cigarettes, an Indonesian export. The Indonesian government has protested to the World Trade Organization a U.S. ban on their sale, arguing that similar menthol cigarettes have not been subjected to the same restrictions under U.S. anti-smoking laws. The trade organization, ruling that the U.S. prohibition violated international trade laws, has referred the case to arbitration to determine potential remedies for Indonesia.
Another dispute involved Indonesia’s exports of shrimp, which the United States claimed were being sold at below-market prices.
The Indonesian government retained Mayer Brown to help in the cases concerning cigarettes and shrimp, said Ni Made Ayu Marthini, attache for trade and industry at the Indonesian Embassy in Washington. She said no U.S. law firm had been formally retained yet to help in a third case, involving horticultural and animal products.
Layton, a lawyer in the Washington office of Mayer Brown, said that since 2010 he had led a team from the firm in the clove cigarette dispute.He said Matthew McConkey, another lawyer in the firm’s Washington office, had taken the lead on the shrimp issue until the United States dropped its claims in August. Both cases were underway a year ago when the Australians reported that their surveillance included a U.S. law firm.
Layton and the other Mayer Brown lawyers do most of their work on the trade issues from Washington, he said. They also make occasional trips to Jakarta, Indonesia’s capital, and Geneva, where the World Trade Organization is based. Layton said most of his communications with officials in Jakarta had been done through email, while he also talked by phone with officials at the Indonesian Embassy in Washington.
The National Security Agency’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under U.S. indictment, according to previously disclosed agency rules. But the agency may still use or share the information for intelligence purposes.
Even though the Indonesian issues were relatively modest for the United States - about $40 million in annual trade is related to the clove cigarette dispute and $1 billion annually to shrimp - the Australian surveillance of talks underscores the extent to which the National Security Agency and its close partners engage in economic espionage.
Other documents obtained from Snowden reveal that the agency shares reports from its surveillance widely among civilian agencies. A 2004 National Security Agency document, for example, describes how the agency’s intelligence gathering was critical to the U.S. Agriculture Department in international trade negotiations.
“The USDA is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states.
The Australians reported another instance - in addition to the one with the U.S. law firm - in which their spying involved an American, according to the February 2013 document. They were conducting surveillance on a target who turned out to be an American working for the U.S. government in Afghanistan, the document said. It offered no details about what happened after the agency learned of the incident, and the agency declined to respond to questions about it.
In a statement, Vines said: “NSA works with a number of partners in meeting its foreign-intelligence mission goals, and those operations comply with U.S. law and with the applicable laws under which those partners operate. A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign-intelligence requirement, and comply with U.S. attorney general-approved procedures to protect privacy rights.”
Most of the collaboration between the National Security Agency and the Australian eavesdropping service is focused on Asia, with both China and Indonesia receiving special attention.
The Americans and the Australians secretly share broad access to the Indonesian telecommunications system, the documents show.
Information for this article was contributed by Charlie Savage of The New York Times.
Front Section, Pages 1 on 02/16/2014