Confidentiality and mass surveillance

These are preliminary notes based on collaborative research in the Digital Security and Awareness folder at Zotero. This post is not legal advice and is offered for educational purposes only.

James Risen and Laura Poitras report in the New York Times on February 15, 2014: “Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. […] “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.”” [1]

In an April 2008 article in the Oregon State Bar Bulletin, T.H. Nelson and Mark J. Fucile write: “As a general proposition, when a lawyer knows or reasonably suspects that communications are being intercepted by the government (whether legally or not), the lawyer needs to take steps such as face-to-face meetings with clients and disabling cell phones or pagers that might otherwise be subject to electronic surveillance or tracking that would allow advance placement of “bugs.” [2]

T.H. Clarke and L.D. Andara, writing for a LexisNexis blog on July 24, 2013 suggest “the client needs to be informed of the risks inherent in all communications, and to give their informed consent to proposed modes of communication having been advised of the potential risks.” [3]

Kurt Opsahl and Trevor Timm, writing at the EFF Deeplinks blog on June 21, 2013, suggest that the risks include: “In sum, if you use encryption they’ll keep your data forever. If you use Tor, they’ll keep your data for at least five years. If an American talks with someone outside the US, they’ll keep your data for five years. If you’re talking to your attorney, you don’t have any sense of privacy.” [4]

Larson and Shane report in the New York Times on September 5, 2013 that the NSA “has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.” [5]

Timberg and Soltani report in The Washington Post on December 13, 2013 that “[e]ven with strong encryption, the protection exists only from a phone to the cell tower, after which point the communications are decrypted for transmission on a company’s internal data network. Interception is possible on those internal links, as The Washington Post reported last week.” [6]

Dominic Rushe reports in the Guardian on August 14, 2013: “People sending email to any of Google’s 425 million Gmail users have no “reasonable expectation” that their communications are confidential, the internet giant has said in a court filing.” [7]

Ed Pilkington reports in the Guardian on February 2, 2014, per the Committee to Protect Journalists (CPJ), that “the NSA could develop the capability to recreate a reporter’s research, retrace a source’s movements and listen in on past communications,” and according to CPJ internet advocacy coordinator Geoffrey King, “[i]t could soon be possible to uncover sources with such ease as to render meaningless any promise of confidentiality a journalist may attempt to provide.” [8]

According to Mikki Barry on September 10, 2013: “As attorneys, each one of us should be screaming bloody murder about this potential breach of attorney/client privilege at its very core. It’s not that it is “possible” to get our privileged information, our work product through Google Apps, both the “metadata” and the content of our correspondence, etc., it has already happened, and continues to this day. We KNOW our communications have been compromised. The question now is what to do about it.” [9]

Nadia Kayyali writes at the EFF Deeplinks blog on February 22, 2014: “The American Bar Association has responded to these allegations by urging the NSA to clarify its procedures for minimizing exposure of privileged information” and “ABA president James R. Silkenat writes in his letter to NSA Director Keith Alexander: “The attorney client privilege is a bedrock legal principle of our free society.”” [10]

References:

[1] Risen, J., & Poitras, L. (2014, February 15). Eavesdropping Ensnared American Law Firm. The New York Times. Retrieved from http://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared-american-law-firm.html

[2] Thomas H. Nelson, & Mark J. Fucile. (2008, April). When the Government Is Listening In: Advising Clients Under Surveillance. Oregon State Bar Bulletin. Retrieved from http://www.osbar.org/publications/bulletin/08apr/g-men.html

[3] Thomas H. Clarke, Jr., & Lael D. Andara. (2013, July 24). Ignorance Is Risk,: Response Options To NSA Monitoring Of Attorney-Client Communications, Part 2. LexisNexis Legal Newsroom Litigation Blog. Retrieved from http://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2013/07/24/ignorance-is-risk-response-options-to-nsa-monitoring-of-attorney-client-communications-part-2.aspx

[4] Kurt Opsahl, & Trevor Timm. (2013, June 21). In Depth Review: New NSA Documents Expose How Americans Can Be Spied on Without A Warrant. Electronic Frontier Foundation DeepLinks Blog. Retrieved from https://www.eff.org/deeplinks/2013/06/depth-review-new-nsa-documents-expose-how-americans-can-be-spied-without-warrant.

See also ACLU. (2013, June 21). How the NSA’s Surveillance Procedures Threaten Americans’ Privacy. American Civil Liberties Union. (procedures approved by the Foreign Intelligence Surveillance Court “permit the NSA to retain, forever, all communications—even purely domestic ones—that are encrypted.”) Retrieved November 24, 2013, from https://www.aclu.org/nsa-surveillance-procedures

[5] Larson, N. P., Jeff, & Shane, S. (2013, September 5). N.S.A. Able to Foil Basic Safeguards of Privacy on Web. The New York Times. Retrieved from http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html.

See also Ball, J., Borger, J., & Greenwald, G. (2013, September 5). Revealed: how US and UK spy agencies defeat internet privacy and security. The Guardian. Retrieved from http://www.theguardian.com/world/2013/sep/05/nsa-gchq-encryption-codes-security.

See also Talbot, D. (2013, September 23). Bruce Schneier: NSA Spying Is Making Us Less Safe. MIT Technology Review. Retrieved from http://www.technologyreview.com/news/519336/bruce-schneier-nsa-spying-is-making-us-less-safe/.

See also Greenwald, G., MacAskill, E., Poitras, L., Ackerman, S., & Rushe, D. (2013, July 11). Microsoft handed the NSA access to encrypted messages. The Guardian. Retrieved from http://www.theguardian.com/world/2013/jul/11/microsoft-nsa-collaboration-user-data

[6] Craig Timberg, & Ashkan Soltani. (2013, December 13). By cracking cellphone code, NSA has capacity for decoding private conversations. The Washington Post. Retrieved from http://www.washingtonpost.com/business/technology/by-cracking-cellphone-code-nsa-has-capacity-for-decoding-private-conversations/2013/12/13/e119b598-612f-11e3-bf45-61f69f54fc5f_print.html

[7] Rushe, D. (2013, August 14). Google: don’t expect privacy when sending to Gmail. The Guardian. Retrieved from http://www.theguardian.com/technology/2013/aug/14/google-gmail-users-privacy-email-lawsuit

[8] Pilkington, E. (2014, February 12). NSA actions pose “direct threat to journalism” leading watchdog warns. The Guardian. Retrieved from http://www.theguardian.com/world/2014/feb/12/nsa-direct-threat-journalism-cpj-report

[9] Barry, M. (2013, September 10). Why Lawyers Should Be Paying Attention to the NSA.  Barry Law – DC government contracts, licensing, cyberlaw and intellectual property attorney. Retrieved from http://www.barrylawfirmpc.com/2013/09/10/why-lawyers-should-be-paying-attention-to-the-nsa/ via http://www.simonhiggs.com/articles/lawyers-gmail-nsa.html

[10] Kayyali, N. (2014, February 22). Legal Community Disturbed About Recent Allegations of Spying on Privileged Communications. Electronic Frontier Foundation DeepLinks Blog. Retrieved from https://www.eff.org/deeplinks/2014/02/legal-community-disturbed-about-recent-allegations-spying-privileged.

See also Kayyali, N. (2014, March 21). The Tepid NSA-American Bar Association “Dialogue” Around Spying on Lawyers. Electronic Frontier Foundation DeepLinks Blog. Retrieved from https://www.eff.org/deeplinks/2014/03/tepid-nsa-american-bar-association-dialogue-around-spying-lawyers

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