Viewing Privilege Through a Prism: Attorney-Client Privilege in Light of Bulk Data Collection

INTRODUCTION On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act, banning the sale of flavored cigarettes in the United States (1)--including clove cigarettes. (2) The move was not without opposition, particularly from abroad. Indonesia, a major manufacturer and exporter of clove cigarettes, filed a dispute over the law with the World Trade Organization in response. (3) That dispute quickly became "one of the WTO's more high-profile" disputes, highlighting a clash between the competing interests of free trade and domestic health policy. (4) Surprisingly, the legacy of that four-year-long trade dispute may have little to do with health policy, free trade, or clove cigarettes. Rather, the dispute may be best remembered for its role in uncovering the surveillance of American law firms by foreign intelligence services and for expanding the role of bulk data collection in the United States. In February 2014, as the WTO dispute between Indonesia and the United States waned, the Australian Signals Directorate intercepted the communications of an American law firm representing the government of Indonesia in the proceedings. (5) According to the leaked document at the center of this revelation, "the Australian agency received 'clear guidance'" from the office of the National Security Agency's (NSA) general counsel as part of its activities. (6) Despite notifying the NSA that the contents of the communications appeared to be privileged attorney-client communications, the Directorate continued covering the communications between the law firm and its client, "providing highly useful intelligence for interested US customers" (7) after receiving guidance from the American agency. News of this monitoring understandably raised immediate concerns for many attorneys. The American Bar Association (ABA) responded quickly in an open letter to General Keith Alexander, the director of the NSA. (8) In that letter, ABA Director James R. Silkenat voiced the concern on many lawyers' minds: that confidential client communications were being compromised by government surveillance. (9) The ABA acknowledged the policies in place that aim to minimize the impact of gathering potentially privileged information by the NSA (10) and requested additional information regarding policies to protect communications from third parties and other foreign surveillance organizations. (11) Understandably, General Alexander's response to the ABA was silent regarding the allegations of spying on an American law firm. (12) His response did, however, set out to reassure the ABA that the NSA respected, and would continue to respect, the attorney-client privilege. (13) The NSA, General Alexander assured, was unable to target the communications of Americans anywhere in the world where they enjoy a reasonable expectation of privacy. (14) The General also noted the considerable procedures in place aimed at handling and protecting privileged communications inadvertently gathered by the NSA. (15) In the months since this exchange, there has been little to no development to this story. Importantly, this saga does not appear to be an isolated event. As a result of the bulk data collection programs uncovered by former NSA contractor Edward Snowden, (16) news agencies have spent considerable energy covering, discussing, and debating government bulk data collection. (17) This Note will argue that the attorney-client privilege is justified not only by the popular instrumentalist rationales, but also by noninstrumentalist thinking. It will further argue that Federal Rule of Evidence 502 gives federal courts the tools to protect the attorney-client privilege in light of bulk data collection. Even where courts do not find that traditional modes of communication constitute reasonable steps to protect a confidential communication, general considerations of fairness--as noted in Rule 502's committee notes--should encourage courts to uphold attorney-client privilege in future situations of bulk data collection disclosures. …