Spying by N.S.A. Ally Entangled U.S. Law Firm
Spying by N.S.A. Ally Entangled U.S. Law Firm
By JAMES RISEN and LAURA POITRAS FEB. 15, 2014
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.
RELATED COVERAGE
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 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 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. The N.S.A. is then required to follow so-called
minimization rules to protect their privacy, such as deleting the identity of
Americans or information that is not deemed necessary to understand or assess
the foreign intelligence, before sharing it with other agencies.
An N.S.A. spokeswoman 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 M. Vines, the
spokeswoman.
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 foreign 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 N.S.A. 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 United States ban on their sale,
arguing that similar menthol cigarettes have not been subject to the same
restrictions under American antismoking laws. The trade organization, ruling
that the United States prohibition violated international trade laws, 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, attaché
for trade and industry at the Indonesian Embassy in Washington. She said no
American law firm had been formally retained yet to help in a third case,
involving horticultural and animal products.
Mr. 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 an American law firm.
Mr. Layton said that if his emails and calls with
Indonesian officials had been monitored, the spies would have been bored. “None
of this stuff is very sexy,” he said. “It’s just run of the mill.”
He 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. Mr. 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 N.S.A.’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 indictment in the United States, according to previously
disclosed N.S.A. rules. But the agency may still use or share the information
for intelligence purposes.
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. He helped create the bar association’s
ethics code revisions that require lawyers to try to avoid being overheard by
eavesdroppers.
“You run out of options very quickly to communicate with
someone overseas,” he said. “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.”
In addition to its work on trade issues with the United
States, Mr. Layton said, Mayer Brown was representing Indonesia in a dispute
with Australia. He said Indonesia had been arguing that Australia’s
requirements for plain packaging for tobacco products under its antismoking
rules were excessive.
Economic Espionage
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 N.S.A. and its close
partners engage in economic espionage.
In justifying the agency’s sweeping powers, the Obama
administration often emphasizes the N.S.A.’s role in fighting terrorism and
cyberattacks, but disclosures in recent months from the documents leaked by Mr.
Snowden show the agency routinely spies on trade negotiations, communications
of economic officials in other countries and even foreign corporations.
American intelligence officials do not deny that they
collect economic information from overseas, but argue that they do not engage
in industrial espionage by sharing that information with American businesses.
China, for example, is often accused of stealing business secrets from Western
corporations and passing them to Chinese corporations.
The N.S.A. trade document — headlined “SUSLOC (Special US
Liaison Office Canberra) Facilitates Sensitive DSD Reporting on Trade Talks”—
does not say which “interested US customers” besides the N.S.A. might have
received intelligence on the trade dispute.
Other documents obtained from Mr. Snowden reveal that the
N.S.A. shares reports from its surveillance widely among civilian agencies. A
2004 N.S.A. document, for example, describes how the agency’s intelligence
gathering was critical to the Agriculture Department in international trade
negotiations.
“The U.S.D.A. is involved in trade operations to protect
and secure a large segment of the U.S. economy,” that document states. Top
agency officials “often rely on SIGINT” — short for the signals intelligence
that the N.S.A. eavesdropping collects — “to support their negotiations.”
The Australians reported another instance to the N.S.A. —
in addition to the one with the American 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 United States government in Afghanistan, the document said. It offered
no details about what happened after the N.S.A. learned of the incident, and
the agency declined to respond to questions about it.
In a statement, Ms. Vines, the agency spokeswoman, said:
“N.S.A. 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.”
The documents show that the N.S.A. and the Australians
jointly run a large signals intelligence facility in Alice Springs, Australia,
with half the personnel from the American agency. The N.S.A. and its Australian
counterpart have also cooperated on efforts to defeat encryption. A 2003 memo
describes how N.S.A. personnel sought to “mentor” the Australians while they
tried to break the encryption used by the armed forces of nearby Papua New
Guinea.
Most of the collaboration between the N.S.A. and the
Australian eavesdropping service is focused on Asia, with China and Indonesia
receiving special attention.
The Americans and the Australians secretly share broad
access to the Indonesian telecommunications system, the documents show. The
N.S.A. has given the Australians access to bulk call data from Indosat, an
Indonesian telecommunications provider, according to a 2012 agency document.
That includes data on Indonesian government officials in various ministries,
the document states.
The Australians have obtained nearly 1.8 million
encrypted master keys, which are used to protect private communications, from
the Telkomsel mobile telephone network in Indonesia, and developed a way to
decrypt almost all of them, according to a 2013 N.S.A. document.
James Risen reported from Washington, and Laura Poitras
from Berlin. Charlie Savage contributed reporting from Washington.
A version of this article appears in print on February
16, 2014, on page A1 of the New York edition with the headline: Spying by
N.S.A. Ally Entangled U.S. Law Firm.
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