The NSA’s surveillance overreach is making it difficult for American businesses to compete, and just last week the German chancellor stated that she disapproved of companies like Facebook and Google keeping data centers in the United States. This week the damage continues. Based on this New York Times article published Sunday, it’s now an open question whether a US-based attorney can assume that the government will respect attorney-client privilege.
Attorney-client privilege is at the foundation of our legal system. Without privilege, its irresponsible to ask clients to make “full and frank” disclosures, and effective legal representation and advice is impossible.
How Privilege Is Violated by Surveillance
The Australian government intercepted privileged communications between a US-based law firm (the article suggests this firm is likely Mayer Brown) and the Indonesian government trying to negotiate a trade deal with the US government. Where did the Australians route these messages? Back to the US government.
If the article is correct about the identity of this firm, how do you think this weekend went at Mayer Brown’s Chicago office? It’s possible the Indonesian government already called and told them they’re switching to new counsel.
Government overreach and our own complacency about encryption has real consequences.
If you are a foreign government looking to negotiate with the US government, are you ever going to retain the services of a US-based law firm again? If you are a foreign company trying to access US markets, what are you going to do? If you are rational, you will dump your US-based law firm immediately. Working on a big international trade deal for foreign clients? Expect some phone calls on Monday.
If you are representing international clients and you have to worry about your privileged communications being intercepted by a third party and routed back to the government, that’s more than just an invasion of privacy – that puts your entire practice at risk. The reality this week is that every attorney who represents clients overseas is going to have to assure those clients that the government isn’t intercepting their emails and attachments.
For Monday: Start Encrypting All Emails to International Clients
We know how you can reassure them. Start encrypting your communications. For your email, use Virtru. Stop sending any sensitive communication over unencrypted email, and start taking more control over the documents you send. Virtru is easy to install, and it integrates with Gmail, Outlook, iOS and Android. It takes a minute to set up, and, once it’s installed, you’ll know that your email won’t just be free for the taking if a government wants to read it.
As a practicing lawyer you need to take action to preserve the privacy of privileged communication. If you use email to communicate with international clients you should start using Virtru today to encrypt these messages.