11/4/13

NSA Makes all Email Use Privilege Waiving?

Puzzle me this: If a lawyer conversed with a client in front of a law enforcement representative, would the conversation be privileged?

Answer: No.

Conversations held in the presence of any third party, let alone one representing the government, would constitute a waiver of privilege.

Previously on 3Geeks (and perhaps too many times) we have tackled the subject of the use of free email services and how that waives privilege. But now the NSA has upped the ante on the topic, basically spreading it to all email.

Unless you live under a rock with no wifi, you will be aware that the NSA is tracking global email communications and storing them in Utah (a nice place to visit). So, as a lawyer should you now expect that a government agency is obtaining copies of all of your confidential client communications? If so, you might want to ....

Oh never mind. If we actually took this rule seriously, all lawyers would be encrypting their email communications. And we know they are not and no one is asking them to do so.

I withdraw the statement.

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6 comments:

Maureen Blando said...

Toby,

I am not a lawyer. I don't think that using unencrypted email constitutes a waiver of privilege, as you conclude. But if NSA snooping becomes commonplace and if data increasingly leaks from the NSA, maybe it will. In any case, I like your question, basically acknowledging that we now have data that there is no privacy in email and if we do nothing are we negligent?

As far as encrypting of email goes, NSA aside (for a while), to keep email from industrial espionage or private investigators or all kinds of malicious actors firms should encrypt email.

It's not terribly prescient of me to predict that we will see a rise of encrypted email. Personally, I'm nearly ready to pay for email with no ads, minimal spam, a good client and encryption.

James Milles said...

I'm having a very hard time getting my head around all this because of all the uncertainty. Maureen worries "if NSA snooping becomes commonplace," but news reports suggest it is already ubiquitous and has been for several years. On the other hand, I don't think the courts or the legal profession are ready to discard the ideas of confidentiality or attorney-client privilege, even though evidence suggests no lawyer can reasonably believe (as opposed to hoping or withing) his or her communications with a client are in confidence.

Ron Smith said...

I don't think it's an exact analogy. A better example would be where an attorney visits a client in jail in what's represented as a "safe" room, where there is no eavesdropping. If, unbeknownst to the attorney and client, the jail personnel are secretly taping the conversation, I still think it's privileged, since the attorney was under the impression that the communications were, in fact, confidential. I don't think that the authorities should be allowed to benefit from their own wrongdoing.

Toby Brown said...

Ron - My point is that you should assume all conversations held in the "safe" room are not privileged since you are aware a third party is listening in.

James T said...

It sounds like the NSA snooping is commonplace, we just didn't know about it.

The safest and best place to always meet a client is in the office.

David Collier-Brown said...

A very late comment (I saw you on the clawbies) on the NSA...

I fear that if you store anything on a computer system with a system administrator, you're in trouble. If the sysadmin works for someone else, you're looking at a privilege problem.

If he works for you (especially if you are doing something arguably bad, like the NSA), you need to ensure he won't pass everything on to the newspapers.

--dave

 

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