Did the NSA really help spy on U.S. lawyers?

February 16

The front page of the Sunday New York Times features a new Snowden-based story that looks, at first blush, like a really big deal.  Authored by James Risen and Laura Poitras, the story opens with considerable drama by suggesting that the NSA is spying on U.S. lawyers:

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.

Sounds like the NSA helped spy on U.S. lawyers, right?  Well, not so fast.  If you unpack the story and ignore the opening spin, the story ends up delivering considerably less than it promises.  Here are the facts from the story:

  • The Indonesian government  hired a U.S. law firm, Mayer Brown, to assist it in international trade talks involving cigarettes and shrimp.
  • The Australian Signals Directorate, Australia’s version of the NSA, was conducting surveillance of the Indonesian government. The Australian agency began monitoring Indonesia’s trade talks, and it contacted the NSA’s liaison in Australia with an offer to share its intelligence from the trade talks with the NSA.
  • The Australian agency also informed the NSA that the intelligence it collected included communications between the Indonesian government and a U.S. law firm (presumably Mayer Brown).
  • The Australian agency asked the NSA liaison for advice on how to proceed in light of the attorney/client communications.   Presumably the advice was sought for how to proceed because at least some of the surveillance (or its fruits) would be sent on to the U.S., but the story isn’t particularly clear on that.  In any event, the NSA liaison in turn asked the NSA General Counsel’s Office for legal guidance on how to proceed.
  • The NSA General Counsel’s Office provided “clear guidance” to the NSA liaison — and in turn, to the Australian agency — on what to do. Unfortunately, we don’t know the content of that “clear guidance.”
  • The only clue we have about what guidance the NSA General Counsel’s Office offered is a statement by NSA spokeswoman Vanee Vines.  (Some readers will discount or ignore what an NSA official said, but it’s all we have to go on right now.) According to Vines, the advice of the NSA General Counsel’s Office in such circumstances “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.”
  • Although we don’t know what advice the NSA General Counsel’s Office provided, or what happened in response to its apparent advice, we do know that the Australian agency provided the NSA with useful intelligence from surveillance of the trade talks.
  • We know about all of the above because it was written up in a monthly internal NSA bulletin published in February 2013 under the headline “SUSLOC (Special US Liaison Office Canberra) Facilitates Sensitive DSD Reporting on Trade Talks.” Snowden copied the NSA bulletin as part of the trove of documents he took from the NSA.

Based on these facts, it seems to me that  the story here isn’t ‘NSA helped spy on U.S. lawyers.’ Rather, the story here is more like ‘Australian government obtained legal guidance from NSA General Counsel’s Office on what to do when Australian monitoring of a foreign government includes attorney/client communications between the government and its U.S law firm.’ Of course, that’s not as shocking a story. And presumably it’s not something that lands on the front page of the Sunday Times. But it’s a more accurate reflection of the facts, at least based on the facts found in the story.

Perhaps there are other facts not found in the story that would make the event it reports more troubling. For example, if we knew what advice the General Counsel’s Office gave, perhaps the substance of that advice would be troubling. Similarly, if we knew that the useful intelligence  the Australians provided was somehow connected to the law firm, then perhaps that would be troubling. But just based on the story as it was published, it seems to me that we don’t actually know either of those things. We don’t know what advice the NSA General Counsel’s Office gave. And we don’t know if the useful intelligence that the Australians provided had anything at all to do with the law firm. We just know that monitoring began; a subset of that monitoring triggered concerns; legal advice was provided; and then monitoring continued.

This raises a broader problem with some of the reports based on the Snowden documents. With some reports, the documents largely speak for themselves. Opinions from the Foreign Intelligence Surveillance Court can tell you a lot just from reading them.  But in other cases, the documents leave a lot of open questions.  That seems to be the case here. As I understand it, the Times story is based on a short entry in an NSA internal bulletin celebrating the liaison office’s accomplishment. It reports that the liaison helped clear up a legal issue, and that it all ended well, as the Australians ended up giving useful intel to the U.S.  But because it’s just an internal bulletin, it doesn’t tell us what we want to know: What advice was provided, and whether the intel was related to the legal issue.  Without that information, it’s hard to know if there’s a significant story here.

Or so it seems to me. If there’s something in the story that I’m missing, I’ll be happy to post an update.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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