How US Government Surveillance Threatens Attorney-Client Privilege

American lawyers have been concerned for some time that the legally protected space for attorney-client communications is shrinking. But recent reports detailing massive electronic surveillance by the US government suggest truly confidential communications may largely be a thing of the past.

Documents leaked to the press over the past year by former NSA contractor Edward Snowden reveal that the US government is sweeping up vast amounts of private data and communications, including confidential information related to ongoing legal matters and privileged communications between attorneys and their clients.

In researching a new report over the past year, I interviewed over 40 attorneys and data security experts covering a range of legal practice areas to find out what impact, if any, these revelations have had on their work. Many expressed the concern that surveillance fears were undermining their ability to represent their clients effectively.

“I feel ethically obligated to tell all clients that I can’t guarantee anything [they] say is privileged . . . or will remain confidential,” a defense attorney specializing in national security and terrorism cases told me. Another has begun including a bolded auto-signature in her work-related emails: “Warning: Based on recent news reports, it is possible that the NSA is monitoring this communication.”

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