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It took me five years and fervent appeals by my wife and son, who quite understandably resented spending 45 minutes in traffic every time we came to a toll booth, to finally acquiesce in the use of an electronic toll pass. That is how doggedly I am determined to safeguard my privacy. But with each passing day, the task becomes ever more difficult. Electronic surveillance is now deployed in so many ways by so many governmental and private entities that it is hard to document them all. The computers, laptops, and handheld electronic devices that provide access to a world of information and instant communication capacity are also exposing our every thought and interaction to unlimited surveillance. Accordingly, as a privacy fanatic, I cheer every effort to rein in unfettered government snooping.
It is in this context that I am thrilled to report that on March 10, 2015, NACDL joined a major new lawsuit challenging the National Security Agency’s (NSA) mass interception and searching of Americans’ international Internet communications, including emails, Web browsing content, and search engine queries. The American Civil Liberties Union (ACLU) filed the lawsuit. In addition to NACDL, the other plaintiffs include the following array of educational, legal, human rights and media organizations: Wikimedia Foundation, Human Rights Watch, Amnesty International USA, Pen American Center, Global Fund for Women, The Nation magazine, the Rutherford Institute, and Washington Office on Latin America.1 The complaint in the cases seeks declarative and injunctive relief.2
At issue is the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the Internet backbone inside the United States — the physical infrastructure that carries Americans’ online communications with each other and with the rest of the world. The NSA conducts this spying under a law called the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (FAA), which allows the agency to monitor the communications of foreigners abroad, even when they are communicating with Americans.
In the course of its upstream surveillance, the NSA copies and combs through substantially all international text-based Internet communications — and many domestic Internet communications as well — looking for tens of thousands of search terms, or “selectors,” associated with its foreign targets. Critically, the NSA not only searches for communications to and from its foreign targets, but it also searches the contents of the communications it is copying. This practice — also known as “about surveillance” — results in the NSA’s warrantless review of the emails and Internet activities of millions of ordinary Americans. The NSA then retains the emails of Americans who are not targeted or communicating with anyone who is targeted, but whose communications include one or more of these “selectors” associated with a targeted foreign person.
It is important to understand the full extent of upstream surveillance: the government is not just surveilling its targets’ communications, it is surveilling essentially everyone — all without a warrant. This surveillance is a direct violation of both privacy rights under the Fourth Amendment and free speech and association rights protected by the First Amendment. It is not hard to see how the government’s tactics chill expression and impair the value of the Internet as a tool for fostering the exchange of ideas, learning, and intellectual discourse.
NACDL’s particularized interest in stopping this systemic and unchecked snooping stems directly from the need of NACDL members to engage in international and domestic Internet communications in order to render effective representation to clients. It is impossible for many criminal defense lawyers to fulfill their constitutionally mandated duties without routinely engaging in sensitive, confidential, and privileged Internet communications with non-U.S. persons located in other countries. In the course of a representation, it is essential that lawyers communicate internationally with clients, clients’ families, witnesses, journalists, human rights organizations, experts, investigators and foreign government officials, some of whom may well be the target of NSA surveillance. Because upstream surveillance is conducted without limitation, these private communications are exposed to government review.
The NSA surveillance is particularly problematic for lawyers who may be representing individuals who were themselves subject to surveillance conducted pursuant to the FAA. In those cases, it is highly likely that defense attorneys who communicate internationally with or about someone who has been targeted by the NSA will have their communications intercepted and retained by the government, just as occurred with their clients’ communications.
All of this raises profound ethical obligations for defense counsel. Defense lawyers must render effective representation and at the same time protect the confidentiality of their clients’ information, including information that may implicate the attorney-client privilege.
As defense lawyers know, the limits on government excess are often defined on a case-by-case basis in criminal litigation. But when the opportunity arises, NACDL will take a more proactive approach to limit government overreach.3 NACDL’s participation in the lawsuit challenging the NSA’s massive and systematic snooping reflects the Association’s determination to rein in this unconstitutional practice by challenging it at its source.
- The name of the case, which was filed in the U.S. District Court for the District of Maryland, is Wikimedia v. National Security Agency (NSA). The complaint is available at https://www.aclu.org/sites/default/files/assets/wikimedia_v2c_nsa_-_complaint.pdf.
- Plaintiffs are represented by Deborah A. Jeon and David R. Rocah of the ACLU of Maryland; Patrick Toomey, Jameel Jaffer, Alex Abdo, and Ashley Gorski of the ACLU; and Charles S. Sims, David A. Munkittrick, and John M. Browning of Proskauer Rose LLP.
- For example, in recent years NACDL participated in a lawsuit, albeit unsuccessfully, challenging border laptop searches (Abidor v. Napolitano, 990 F. Supp. 2d 260 (E.D.N.Y. 2013)) and currently is pursuing Freedom of Information Act litigation to compel the government to disgorge the so-called discovery blue book (National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys, — F. Supp. 3d —, 2014 WL 7205392 (D.D.C. Dec. 18, 2014)). This case is now pending on appeal in the D.C. Circuit Court of Appeals.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
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