NSA Domestic Monitoring and the Attorney-Client Privilege

A new development in the National Security Agency monitoring scandal has very serious implications for lawyers and their clients.  CNET is reporting that the NSA has told lawmakers that it does not need court authorization to listen to domestic telephone calls or apparently to read emails or text messages.  Jerrold Nadler, D-NY has disclosed that he learned in a briefing that any NSA analyst can make the decision to listen to any domestic call.

Obviously, the monitoring of citizens' telephone calls and email and text communications raises serious privacy concerns.  However on a professional level, as a federal criminal defense attorney whose entire practice involves litigation against the U.S. government, I am deeply disturbed that an analyst working for that same government can listen to my telephone conversations with clients and read my written electronic communications without any court or even supervisory oversight.  The risk is particularly acute for attorneys like me who sometimes handle cases involving allegations of terrorism or terrorism funding.

The attorney-client privilege protects communications between a lawyer and client and is supposed to be inviolate.  The privilege has deep roots in Anglo-American jurisprudence and the concept dates back hundreds of years.  The attorney-client privilege exists to encourage clients to make full disclosure to their lawyers.  The idea is that an attorney cannot effectively represent her client in the absence of complete information.

That any analyst in a U.S. government agency can monitor attorney-client communications at will means that going forward, attorneys will be forced to take steps to limit telephone conversations and electronic communications with their clients.  Attorney-client communications will need to take place in person and exchanges of data between attorneys and clients will need to be made by hand.  In this electronic age, this places an undue burden on attorneys and their clients.  Moreover, now that the NSA's monitoring program has been made public, I am concerned that the government may in some cases argue that the fact that attorneys and their clients engaged in electronic communications even though they knew about the existence of the monitoring program constitutes waiver of the attorney-client privilege as to those communications.

Some of these same concerns were raised in a case styled American Civil Liberties Union v. National Security Agency, et al.  In that case, journalists, attorneys and academics who had regular communications with contacts and clients overseas sued the NSA out of concern that their communications might be monitored under an NSA overseas surveillance program.  The Sixth Circuit Court of Appeals ordered the case to be dismissed on the ground that no plaintiff could prove that he had actually been monitored.  I anticipate that a similar challenge to the domestic monitoring program will soon be filed.

Overcriminalization - A New Congressional Task Force

A recent article by George Will published in the Washington Post shines a light on probably the most serious problem facing the federal criminal justice system: overcriminalization. Congress continues to legislate new federal crimes – now numbering at least 4,500 – with no end in sight. As Will points out, the proliferation of federal crimes and passage of mandatory minimum sentencing laws have increased incarceration rates and sentence lengths in this country to extraordinary levels. All that prosecution and incarceration costs money. Moreover, the expansion of regulatory offenses and concomitant dilution of the requirement that criminal conviction requires a “guilty mind” means that it is now eminently possible to commit a federal crime by accident. The newly created House Judiciary Committee’s Over-Criminalization Task Force House is a step in the right direction.