b'Payment of Private Counsel Fees Under the\nDepartment of Justice Representation Program\nW h e th e r fee sta te m e n ts su b m itted to th e g o v e rn m e m by p riv a te counsel retain ed to\nrep re sen t a g o v e rn m e n t e m p lo y e e m ay be disclosed to the public w ith o u t v iolating\nap p licab le eth ical sta n d a rd s d e p e n d s upon the facts o f each case.\nT h e g o v e rn m e n t\xe2\x80\x99s p ra c tic e o f p ay in g som e fees and expenses c h a rg e d by p riv a te counsel\nbut not p ay in g o th e rs d o es n ot p resent a substantial eth ical question, as long as the\np ra c tic e is c learly u n d e rsto o d by the em p lo y ee-clien ts and th eir p riv a te atto rn ey s.\n\nF ebruary 7, 1980\nM E M O R A N D U M O P IN IO N F O R T H E A S S IST A N T\nA T T O R N E Y G E N E R A L , C IV IL D IV IS IO N\nW hen a governm ent em ployee is sued personally for som ething he\ndid or om itted to do in the course o f his employm ent, he can usually\nturn to the Civil Division for help. T he Civil Division will assign one\no f its ow n attorneys to defend him, or in some circum stances it may\nrecom m end that he retain private counsel at governm ent expense.1 The\nconditions under w hich private counsel may be retained are set forth\ngenerally in the so-called \xe2\x80\x9c Representation G uidelines.\xe2\x80\x9d See 28 C.F.R.\n\xc2\xa7\xc2\xa7 50.15, 50.16. In the usual case, the precise term s and conditions of\nany fee agreem ent betw een private counsel and the G overnm ent are\ndescribed in a w ritten contract signed by the Assistant A ttorney G en\xc2\xad\neral and the participating firm.\nAs a m atter o f billing practice, the Civil Division requires all private\nattorneys participating in the representation program to submit m onthly\nfee statem ents to the Civil Division that describe in detail the services\nfor w hich they seek compensation. T he attorneys have com plied with\nthis requirem ent in the way that attorneys usually com ply with the\ndemands o f an impecunious client w ho questions a fee: they have\nfurnished the Civil Division w ith actual time records or other relatively\nraw and explicit descriptions o f how they spent their time.\n1\nIn a series o f recent opinions rendered at the request o f the Civil Division, this O ffice has\ndiscussed the legal basis for the practice o f using governm ent attorneys and private attorneys to\nprovide governm ent em ployees w ith free legal representation to p rotect their personal interests in civil\nlitigation. G iven the perplexing questions that have been generated by those opinions and the practices\nthey authorize, we express no view , for purposes o f this opinion, on the question w hether these\npractices o u g h t to be modified.\n\n388\n\n\x0cBecause o f the large am ount of money that is being paid out in fees\nunder the representation program , the Civil Division has determ ined\nthat the public has a legitimate interest in knowing how this money is\nbeing spent. A ccordingly, the Civil Division has made available to the\npublic much o f the relevant information. It has disclosed: (1) the iden\xc2\xad\ntity o f each law firm participating in the program ; (2) the aggregate\namount paid annually to each law firm under the program ; and (3) the\nbasic terms o f the standard fee arrangement, including the agreed\nhourly rate. M oreover, despite the objection o f some o f the participat\xc2\xad\ning firms, the Civil Division has given some thought to the possibility\no f releasing additional information, including the detailed records and\ndescriptions of the services rendered by the participating firms. You\nhave requested our views regarding the ethical aspects of such an\nundertaking. Is there anything in the Code o f Professional Responsibil\xc2\xad\nity that would prevent the Civil Division from disclosing information of\nthat sort? 2\nYou have asked a second question that involves a related problem.\nOn occasion, the Civil Division declines to pay for some o f the services\nfor which firms seek compensation. F o r example, it will usually decline\nto pay for services rendered in connection with a counterclaim or\nancillary \xe2\x80\x9caffirm ative\xe2\x80\x9d litigation. It may also decline to pay certain\nextraneous expenses (e.g., \xe2\x80\x9centertainm ent\xe2\x80\x9d expenses). As a m atter of\npolicy, the Civil Division has never refused to pay for services ren\xc2\xad\ndered in connection with the developm ent o f an actual defense that was\nasserted in litigation, even though the defense may appear in retrospect\nto have been a waste o f time and therefore not \xe2\x80\x9c reasonably necessitated\nby the defense\xe2\x80\x9d within the meaning o f the fee agreem ent. But because\nthe decision concerning payment vel non may carry some potential for\ninfluencing the attorneys in the conduct o f their representation, and\nbecause the Canons generally require attorneys to exercise independent\nprofessional judgm ent on behalf o f their clients w ithout regard to eco\xc2\xad\n2\nY our question assumes that this D epartm ent has discretion to w ithhold this inform ation under the\nFreedom o f Inform ation A ct (F O IA ). W e express no view on that question, except to say in passing\nthat there is probably a rough congruence betw een the relevant ethical concerns and the relevant\nF O IA considerations. If there is a solid ethical reason for delaying o r denying disclosure in a\nparticular case, an exem ption from m andatory disclosure may be available under FO IA .\nLikewise, y our question assumes that there is no statutory bar to disclosure and that the Civil\nDivision is legally free to disclose this inform ation if it can do so ethically. Because this inform ation\nrelates to financial m atters and in some instances may reveal m ethods of professional operation not\nordinarily made public in the course o f the attorney-client relationship, som e consideration ought to be\ngiven to the applicability in this context o f 18 U.S.C. \xc2\xa7 1905, w hich bars public disclosure o f certain\nkinds of confidential business inform ation that com es into the hands o f governm ent officers by virtue\no f reports and o th e r submissions from the private sector. T he recent decision in Chrysler v. Brown, 441\nU.S. 281 (1979), is obviously relevant here, as will be the position taken by the G overnm ent regarding\nthe scope and applicability o f \xc2\xa7 190S on the rem and in that case. T h ere is very little legislative history\nrelevant to \xc2\xa7 1905. W e express no firm view regarding its applicability in this context. W e should say,\nhow ever, that in o ur opinion there is a substantial question w h eth er C ongress intended this statute to\nsubject governm ent officers to crim inal liability for disclosing to the public the am ount o f public\nm oney expended under governm ent co n tracts o r the nature o f the services provided the G overnm ent\nin return.\n\n389\n\n\x0cnomic o r o ther pressures exerted by third parties, you have asked\nw hether this practice o f paying some fees and expenses and not paying\nothers, presents any ethical difficulty.\nO ur views on both questions are set forth below.\n\nI. The Ethics of Disclosure\nT he attorneys them selves have suggested that public disclosure o f the\ndetailed billing inform ation may violate Canon 4 o f the Code. Canon 4\nrequires all attorneys to preserve the \xe2\x80\x9cconfidences\xe2\x80\x9d and \xe2\x80\x9csecrets\xe2\x80\x9d of\ntheir clients. T he attorneys have argued that the fee statements submit\xc2\xad\nted to the Civil Division under the representation program do indeed\ncontain the \xe2\x80\x9cconfidences\xe2\x80\x9d and \xe2\x80\x9csecrets\xe2\x80\x9d o f the em ployee-defendants\nand that these \xe2\x80\x9cconfidences\xe2\x80\x9d and \xe2\x80\x9csecrets\xe2\x80\x9d must be preserved.\nW e have three observations to make on this point:\nFirst, to the extent, if any, that these billing materials do contain\n\xe2\x80\x9cconfidences\xe2\x80\x9d o r \xe2\x80\x9csecrets\xe2\x80\x9d within the scope o f Canon 4, we think this\nD epartm ent should preserve those confidences or secrets and should\nnot disclose them publicly w ithout the consent o f the employees. We\nrecognize that these em ployees are not the \xe2\x80\x9cclients\xe2\x80\x9d o f this D epart\xc2\xad\nm e n t W e cannot say that public disclosure o f their confidences or\nsecrets by the Civil Division w ould violate the letter o f the relevant\ndisciplinary rules. But we think that disclosure would be inconsistent\nw ith the spirit o f Canon 4 and w ith the purposes o f the representation\nprogram itself. T he w hole purpose o f that program is to provide gov\xc2\xad\nernm ent employees w ith legal representation, and one o f the essential\ncharacteristics o f legal representation is that it protects the client\xe2\x80\x99s\ninterests by preserving his confidences and secrets. If the Civil Division\nw ere representing these people directly, Canon 4 w ould prevent it from\ndisclosing their confidences or secrets.3 It seems to us that the practice\nshould be the same w hen the Civil Division chooses to provide repre\xc2\xad\nsentation indirectly. In both cases the purpose o f the exercise is to\nprotect interests o f governm ent em ployees, not to expose their confi\xc2\xad\ndences and secrets to the public.4\n3 T h e general question w h eth er a go v em m en i law yer is ev er perm itted o r required by law o r the\nethics o f his profession to disclose em barrassing, detrim ental, o r incrim inating inform ation concerning\nfellow em ployees w h o com e for legal advice o r professional help is a com plex one. T here are many\ndifferent circum stances in w hich th e issue can arise, and the answ er can differ from case to case. We\nthink it clear, ho w ev er, that w hen an atto rn ey from th e C ivil Division is assigned to appear as the\natto rn ey o f reco rd for a governm ent em ployee w h o has been sued personally in a civil case, the\natto rn ey \'s d u ty under the C o d e (and therefore under departm ental regulations) is to preserve the\nconfidences and secrets o f the client. See. e.g.. O pinion 73-1 o f the Professional E thics Com m ittee,\nFederal B ar A ssociation, 32 Fed. B. J. 71 (1973); A B A C om m , on E thics and Professional Responsibil\xc2\xad\nity, Inform al O p. 14)3 (1978). T h a t has been the traditional view o f this Office.\n4 T h e basic justification for any discretionary disclosure o f the billing inform ation, including disclo\xc2\xad\nsure o f any actual confidences o r secrets, is that disclosure will enable the public to m onitor the\nexpenditure o f g o vernm ent resources. But g o vernm ent resources are expended w hen C ivil Division\natto rn ey s provide representation directly. T h e only econom ic difference betw een direct representation\nand indirect representation is the difference betw een paying a salary and paying a fee. It is difficult to\nsee h o w that difference can perm it the preservation o f secrets in the one case and require disclosure in\nthe other.\n\n390\n\n\x0cSecond, Canon 4 is designed to protect clients, not attorneys. If a\nclient has no objection to a disclosure o f billing information, his attor\xc2\xad\nney has no reason to resist disclosure insofar as Canon 4 is concerned.\nTherein lies a possible solution to your problem. Most o f these employ\xc2\xad\nees will ultimately have no interest w hatever in preserving the confi\xc2\xad\ndentiality o f the great bulk o f the billing information in question here. If\nthey are requested at the proper time to review these docum ents with\nan eye to identifying those parts, if any, that record the substance o f\nconfidential attorney-client com munications o r secret m atters that\nwould be embarrassing or dam aging to their interests if disclosed, they\nmay well be in a position to approve the disclosure o f all the rest. W e\nare not suggesting that they be asked to \xe2\x80\x9c w aive\xe2\x80\x9d their right to protect\nembarrassing confidences or secrets, only that they be asked to review\nthe relevant materials and separate the wheat from the chaff.5\nT he ultimate substantive question, o f course, is w hether these docu\xc2\xad\nments do in fact contain \xe2\x80\x9cconfidences\xe2\x80\x9d or \xe2\x80\x9csecrets\xe2\x80\x9d falling within the\nscope o f Canon 4. O ur reluctant conclusion is that this question cannot\nbe answered categorically. It must be answered on a case-by-case basis\nafter an examination o f each docum ent in light o f all the facts o f each\ncase. We realize that this conclusion is an aw kw ard one from an\nadministrative standpoint, but we see no way around it. W e will elabo\xc2\xad\nrate briefly.\nCanon 4 protects tw o categories o f information against nonconsensual disclosure: (1) inform ation within the scope o f the evidentiary\nprivilege for confidential com m unications between attorney and client\n(as defined by local law); and (2) a broader category o f \xe2\x80\x9csecret\xe2\x80\x9d\ninformation gained by an attorney from w hatever source \xe2\x80\x9c in the profes\xc2\xad\nsional relationship,\xe2\x80\x9d the disclosure o f w hich would be detrim ental to, or\ncontrary to the wishes of, the client. Inform ation relevant to the nature\nand scope o f professional services rendered by an attorney for a client\ndoes not invariably fall into either o f these categories; and in o u r .view\nthere are many circum stances in w hich it may be disclosed for any\nproper purpose w ithout raising ethical questions. This is frequently true\nwith respect to services o f the kind that are o f concern to the Civil\nDivision here, i.e., services rendered by attorneys o f record in actual\nlitigation. T he point is a simple one. D uring litigation a great deal o f\ninformation about the client\xe2\x80\x99s affairs, the scope o f the attorney\xe2\x80\x99s em\xc2\xad\nployment, and the services rendered by him in the course o f the case is\ndisclosed publicly as a m atter o f course; and m uch o f the undisclosed\ndetail can be revealed, at least by the end o f the case, w ithout betraying\nthe substance o f any privileged com m unication and w ithout disclosing\n*\nW h eth er at this late date their willingness to undertake such a review in good faith could be m ade\na precondition to final reim bursem ent o f th eir attorneys is a question that depends entirely on an\ninterpretation o f the co n tracts betw een the atto rn ey s and the C ivil Division. W e express no firm view\non that question. W ith respect to future contracts, it may w ell be that som e thought should be given to\nestablishing explicitly, by con tract, a review pro ced u re o f this kind.\n\n391\n\n\x0cany other \xe2\x80\x9csecret\xe2\x80\x9d that carries real potential for embarrassment to the\nclient.\nConsider the following example: An attorney is retained to defend a\ntort case. He spends one hour interview ing the client, one hour prepar\xc2\xad\ning and filing an answer to the com plaint, tw o hours researching the\napplicability o f the relevant statute o f limitations, 30 minutes preparing\na motion for summary judgm ent, six hours sitting in the courthouse,\nand 15 minutes arguing and winning the motion. It is possible that all of\nthat information can be disclosed publicly at the end o f the case\nw ithout betraying any privileged com m unication,6 and because so\nmuch o f the relevant information is publicly available anyway, it is\nextrem ely unlikely that any other \xe2\x80\x9csecrets\xe2\x80\x9d relevant to the nature and\nscope o f the services perform ed w ould be em barrassing or harmful to\nthe client if disclosed. W hen the w orld already knows that the attorney\nfiled a motion for summary judgm ent on the client\xe2\x80\x99s behalf, it does not\nhurt or embarrass the client for the w orld to learn that the attorney\nspent 30 minutes preparing that motion.\nOn the other hand, it is clear that inform ation protected by Canon 4\ncan find its w ay into billing records. T he classic example is the diary\nentry that records the substance o f a confidential communication: \xe2\x80\x9cTenm inute conference with client concerning possible divorce \xe2\x80\x9d M ore fre\xc2\xad\nquently, a billing record may contain a description o f actions taken by\nthe attorney on the client\xe2\x80\x99s behalf that should remain \xe2\x80\x9csecret\xe2\x80\x9d if the\nclient\xe2\x80\x99s interests are to be served. F o r example, if a defense attorney\nrecords in his diary that he has just spent tw o hours researching and\n6\nT h e attorney-client privilege pro tects the confidentiality o f inform ation obtained by the attorney\nfrom confidential com m unications w ith his client. G enerally speaking, it does not protect information\nobtained from o th er sources. Inform ation about the nature o f the services rendered by an attorney for\na client is generated by the atto rn ey himself. He does not obtain it from his client, and he can often\ndisclose it w ithout betraying the substance o f anything his client told him. T hat is the reason for the\ntraditional view that an atto rn ey can \xe2\x80\x9c usually\xe2\x80\x9d o r \xe2\x80\x9co rd in arily \xe2\x80\x9d disclose the nature o f the services he\nperform s for his client (e.g., 5 hours deposing piaintiff, 20 hours preparing for trial) w ithout disclosing\nanything p rotected by the privilege. See. e.g., Behrens v. Hironimus. 170 F.2d 627, 628 (4th Cir. 1948);\n2 Louisell & M ueller, Federal E vidence 540-41 (1978).\nM oreover, the fact that the atto rn ey may at som e later d ate com m unicate inform ation concerning\nthe nature o f his services to his client (in a bill, for exam ple) does not make the inform ation itself\nprivileged. T h e m odern view is that th e privilege extends to confidential com m unications from\na tto rn ey to client, ju st as it extends to confidential com m unications from client to attorney; but the\nprivilege pro tects the confidentiality o f communications, not facts themselves. If a.i attorney believes\nthat the sky is blue and advises his client to that effect, th e privilege prevents him from betraying his\nadvice, but it does not prevent him from giving the sam e ad v ice\xe2\x80\x94com m unicating the same fact\xe2\x80\x94to\nthe w orld at large. If the fact in the mind o f the atto rn ey is accessible to exam ination and disclosure\nbefore its com m unication to the client, it remains accessible afterw ards, though o f course there can be\nno dem and for disclosure o f the com m unication itself. See 2 Louisell Sl M ueller, Federal Evidence 540\n(1978).\nT h e traditional interpretation o f the ethical d u ty o f an a tto rney to preserve the confidences o f his\nclient w as tied to this concept o f privilege. T hus it w as th o ught that an attorney could ethically\ndisclose the nature o f services rendered for a client, since that inform ation is not acquired by the\na tto rn ey from a confidential com m unication w ith the client and may be otherw ise accessible to\nexam ination and disclosure w ithout betraying anything that passed betw een attorney and client. ABA\nCom m , on Professional E thics and G rievances, Form al Op. 154 (1936). T his view o f the ethical\nobligation does not, o f course, take into account the expanded scope o f the disciplinary rules, w hich\npro tect, not only confidential com m unications, but \xe2\x80\x9csecrets" obtained from any source in the profes\xc2\xad\nsional relationship.\n\n392\n\n\x0cpreparing a motion to dismiss the com plaint for insufficiency o f process,\nthat information should not be disclosed to the other side prior to the\nfiling of the motion, since prem ature disclosure would deprive the\nclient o f a legitimate tactical advantage in the litigation. We think it\nwould be not only unprofessional but also unethical for an attorney to\nmake a prem ature disclosure o f that sort, absent some adequate justifi\xc2\xad\ncation. The disclosure would trench on Canon 4 and on Canons 6 and 7\nas w ell.7\nWe can summarize our views on the question o f disclosure in the\nfollowing way. It is unlikely that very much o f this billing information\ndiscloses the substance o f privileged communications o r any other\n\xe2\x80\x9csecrets\xe2\x80\x9d that would be embarrassing or detrim ental to any o f these\nemployees if disclosed, but the ethical and policy questions that would\nbe presented by a disclosure o f any given docum ent cannot be an\xc2\xad\nswered w ithout examining that docum ent and determ ining w hether in\nfact it contains confidential or secret m atter protected by the Canon.\nThe administrative difficulty o f attem pting to make that sort o f determ i\xc2\xad\nnation in each case is obvious, and it is com pounded by the fact that\nthe determination probably cannot be made prudently w ithout consulta\xc2\xad\ntion with the attorney and the employee whose interests are at stake.\nT here is no litmus test. T he significance of a billing docum ent to a\nclient depends on w hat the client\xe2\x80\x99s interests are and on all the other\nfacts and circumstances o f the case. T he unfortunate truth is that he\nand his attorney are the ones w ho understand those interests and those\nfacts best.\nThis brings us to the suggestion that we have already made. A t the\nend o f each o f these cases the Civil Division will be in a position to\nsubmit all the relevant billing records to the employee-client and to\nrequest that he determ ine w hether, in the light of: (1) the disposition o f\nthe case; and (2) any liabilities or embarrassments that may yet be his,\nthe records reveal anything that would be detrim ental to his interests if\ndisclosed. T he objectionable parts can be redacted. T he rest can be\ndisclosed w ithout provoking ethical concerns.8\n7 Loss o f advantage in the litigation in w hich services are rendered is not o f course the only sort o f\nharm that can result from untimely disclosure o f professional services. F o r exam ple, if a corporate\nclient is subject to regulation by an agency before w hich an atto rn ey practices, the very fact that the\nattorney has been retained by the client and has perform ed services for the client could, if know n to\nthe agency, direct the agency\xe2\x80\x99s attention to the client\'s affairs, causing expense and inconvenience; and\nthere may be circum stances in w hich the atto rn ey could not ethically disclose inform ation o f that sort\nw ithout adequate justification. See O pinion No. 58, Com m ittee on Legal Ethics, D istrict o f C olum bia\nBar.\n8 In registering their objection to disclosure o f these materials, the attorneys have made at least\nthree argum ents not <jiscussed in the preceding paragraphs. N one o f these argum ents alters o u r view\no f the ethical question o r affects o u r advice to you.\n(1)\nSome o f the attorneys have argued that these billing materials, being inter-attorney com m unica\xc2\xad\ntions relevant to litigation in w hich the U nited States has an interest, are w ithin the traditional rule\nthat extends the attom ey-client privilege to com m unications betw een tw o or m ore attorneys w ho\nconfer to prom ote the com m on interests o f their clients. T hat argum ent does not wash. E ven if one\nw ere willing to assume that these attorneys are som ehow representing th eir clients (not them selves)\nC onlinued\n\n393\n\n\x0cII. Paying Some Fees and Expenses but Not Others\nW e think that the practice o f paying some fees and expenses but not\nothers presents no substantial ethical question. W e are assuming o f\ncourse that in all o f these cases the clients as well as their attorneys,\nafter full disclosure o f the D epartm ent\xe2\x80\x99s potentially conflicting interest,\nw ere made to understand w hat is stated explicitly in the fee contract\nitself: (1) that the clients and their attorneys are entirely free to deter\xc2\xad\nmine what sort o f legal services ought to be perform ed on the client\xe2\x80\x99s\nbehalf; (2) that this D epartm ent will pay for some o f those services, but\nit may not pay for others; and (3) that if a client wants his attorney to\nrender legal services for w hich the D epartm ent will not pay, he and his\nattorney must reach their ow n understanding regarding the fee, if any,\nthat the attorney will charge. As long as all o f these points are under\xc2\xad\nstood by the parties in interest, the fee arrangem ent is not unethical, in\nour view.\nA close analogy to this sort o f arrangem ent can be found in the\nprivate sector. It is quite com m on for liability insurance carriers to\nagree to pay for legal services reasonably necessitated by the defense of\nclaims against their policyholders, even though the interest o f the\ncarrier and the interests o f the policyholder are rarely identical. M ore\xc2\xad\nover, it is usually made quite clear that the carrier will pay for some\nkinds o f services, but not others (e.g., the carrier usually will not pay\nfor services rendered in connection w ith a counterclaim ). F or both o f\nw hen they submit these billing materials to the Civil Division, one w ould be hard put to conclude that\nthese com m unications are for the purpose o f prom oting any \xe2\x80\x9ccom m on interest\xe2\x80\x9d as betw een their\nclients and the U nited States w ithin the meaning o f the rule. It may be true that the U nited States has\na general interest in providing legal representation for its em ployees, just as it has an interest in paying\ntheir salaries and in doing o th e r things that encourage people to enter governm ent service. But a\ndem and for paym ent o f a fee (w h eth er m ade directly o r th ro u g h an attorney) is a classic \xe2\x80\x9ca d v e rsa ria r\ndemand. It does no m ore to prom ote a \xe2\x80\x9ccom m on interest\xe2\x80\x9d as betw een the G overnm ent and a\ngovernm ent em ployee than w ould, say, a dem and for back salary. T hat it may be com m unicated to\nattorneys in the Civil Division w hile o th er attorneys in the Civil Division are representing the United\nStates in the litigation out o f w hich the dem and arises is simply a com m entary on the peculiar w a y \'th e\nG overnm ent is forced to do business in these cases. T hat fact does not, in o u r view, enhance (or\ndiminish) the privileged status o f w hat these materials contain.\n(2) Som e o f the attorneys have argued that these materials are \xe2\x80\x9cattorney w ork p roduct.\xe2\x80\x9d T here is\nauthority that information contained in law firm statem ents may indeed, in proper circum stances, be\nregarded as \xe2\x80\x9c attorney w ork p ro d u c t\xe2\x80\x9d and therefore privileged, at least for FO IA purposes. See Indian\nLaw Resource Center v. Department o f Interior, A l l F. Supp. 144 (D .D .C . 1979). But our view o f the\npresent case is that \xe2\x80\x9cw o rk -p ro d u ct\xe2\x80\x9d status o f these billing m aterials (if any) has no direct bearing on\nthe ethical question o f discretionary disclosure. W h eth er o r not this inform ation was generated \xe2\x80\x9c in\nanticipation o f litigation o r for trial,\xe2\x80\x9d w h eth er o r not it reflects the \xe2\x80\x9c mental im pressions,\xe2\x80\x9d etc. o f these\nattorneys, the ethical question is simply w h eth er it discloses the confidences o r secrets o f the clients\nw ithin the meaning o f the Canon. T hat question turns upon the considerations discussed above. It does\nnot turn upon Rule 26 o f the Federal Rules o f Civil Procedure.\n(3) Finally, some o f the attorneys have argued that discretionary disclosure o f these m aterials is\nprohibited by the Privacy A ct. W e have conferred w ith the Office o f Inform ation Law and Policy\n(O IL P ) on this question. T hey have expressed doubt that these records, w hich are filed and retrieved\nby the name o f the law firm that subm itted them, constitute a \xe2\x80\x9csystem o f records\xe2\x80\x9d w ithin the meaning\no f the A ct. See 5 U.S.C. \xc2\xa7 552a(a)(5). M oreover, believing that there may be only a very slender basis\nfor claim ing a FO IA exem ption for disclosure o f properly redacted billing m aterials at the end o f each\ncase, O IL P is inclined to the view that the Privacy A ct is probably irrelevant anyw ay. It does not, o f\ncourse, forbid any disclosure that is m andated by F O IA . See 5 U.S.C. \xc2\xa7 552a(b)(2).\n\n394\n\n\x0cthese reasons, the tripartite fee arrangem ent harbors some potential for\nabuse, and it does in fact give rise to unethical conduct from time to\ntime. But the traditional view has been that such an arrangem ent is not\nunethical in itself and that abuse can be avoided by firmly maintaining\nthe principles that: (1) the attorney has the responsibility for acting\nsolely in the interests o f his client, notw ithstanding the interests o f the\ncom pany that pays his fee, see EC 5-23; and (2) the client must be free,\nand must be made to understand that he is free, to make other arrange\xc2\xad\nments, either with that attorney or with other attorneys, if it appears\nthat services in addition to those paid by the com pany are necessary or\ndesirable from his standpoint. Cf. D R 5 - 105(C).\nW e do have one suggestion regarding a technical point. T he standard\ncontract that the Civil Division uses in the representation program is\nbilateral in form. It is a contract through which the D epartm ent o f\nJustice \xe2\x80\x9cretains\xe2\x80\x9d a private attorney to represent a governm ent em \xc2\xad\nployee. It seems to us it would be helpful, both from the standpoint of\nthe disclosure problem and from the standpoint o f preserving the inde\xc2\xad\npendence of private counsel, if this contract could be recast. Unless\nthere is some reason to exclude the em ployee,9 he ought to be made a\nparty; and the contract could then provide: (1) that he, the employee,\nhas asked a private attorney to represent him, inasmuch as the D epart\xc2\xad\nment, for professional reasons, cannot; (2) that he and his attorney will\ndeterm ine w hat sort o f legal services need to be perform ed on his\nbehalf; (3) that he and his attorney have entered into a collateral\nagreement with this D epartm ent regarding paym ent o f some, but per\xc2\xad\nhaps not all, o f the fees generated during the course o f this representa\xc2\xad\ntion; (4) that if the employee and his attorney feel that services are\ndesirable for w hich the D epartm ent will not pay, they must make their\nown arrangem ent regarding the fee; and (5) that he has entered into an\nagreem ent with this D epartm ent regarding the handling o f his confi\xc2\xad\ndences and secrets and the disclosure o f billing information submitted to\nthis D epartm ent by his attorney. M uch o f this is in the agreem ent\nalready, but it seems to us that if the employee w ere inserted formally,\nit would be relatively easy to spell out the precise nature o f the rights\nand obligations o f all three parties and to deal directly with the sorts o f\nquestions that have prom pted your ethical concerns.\nJohn M. H arm on\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\n9 W e have review ed past O ffice o f Legal Counsel opinions on the question o f the authority o f the\nD epartm ent to contract w ith private attorneys to provide legal representation for governm ent em ploy\xc2\xad\nees. W e are unaw are o f any legal consideration that requires the exclusion o f the employee.\n\n395\n\n\x0c'


b'Issuance of Passports to Aliens to Facilitate \xe2\x80\x9cSting\xe2\x80\x9d\nOperation by State Department Inspector General\nThe Department of State has authority to issue passports to aliens for the purpose of facil\xc2\xad\nitating a \xe2\x80\x9csting\xe2\x80\x9d operation conducted by the Department of State Inspector General.\n\nMarch 13, 1989\nM emorandum O pin ion for the L egal A dvisor\nD epartm ent of S tate\n\nThis responds to your request as to whether the Department of State\nhas the authority \xe2\x80\x9cto issue U.S. passports to aliens to facilitate U.S. law\nenforcement and intelligence operations.\xe2\x80\x9d1You have previously advised\nthe Deputy Secretary of State that in your opinion \xe2\x80\x9cthere were no legal\nconstraints to the issuance of U.S. passports to aliens to facilitate a\nDepartment of State Inspector General \xe2\x80\x98sting\xe2\x80\x99 operation.\xe2\x80\x9d Letter at 1.\nContrary to that view, the Bureau of Consular Affairs (\xe2\x80\x9cCA\xe2\x80\x9d) at the\nDepartment of State appears to take the position that it is prohibited by\n22 U.S.C. \xc2\xa7 212, among other statutes, from issuing passports to those\nwho do not owe their allegiance to the United States, even to facilitate\nlaw enforcement efforts.2 CA also relies in part on a statement in a 1977\nOLC opinion permitting \xe2\x80\x9cfalse statements by CLA employees to obtain\npassports in alias and the use of passports so obtained, where neces\xc2\xad\nsary to their otherwise lawful functions.\xe2\x80\x9d3 That opinion went on to\n1Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from Abraham D\nSofaer, The Legal Advisor, Department of State at 1 (Feb. 11, 1989) (\xe2\x80\x9cLetter"). Although the stated ques\xc2\xad\ntion concerns issuing U S passports to aliens for both law enforcement and intelligence operations, we\nhere address only the use of alias passports to aliens m law enforcement operations. As we understand\nit, the purpose of the Inspector General\xe2\x80\x99s investigation is to detect the \xe2\x80\x9csubornation of a U.S. consular\nofficer and a large network of fake passport brokers.\xe2\x80\x9d Action Memorandum for the Deputy Secretary of\nState, from Sherman M Funk and Abraham D. Sofaer, Re Passports f o r IG Investigation at 1 (Sept. 20,\n1988) (\xe2\x80\x9cAction Memorandum\xe2\x80\x9d) A technical violation of the law by the sovereign in order to enforce the\nlaw seems to us a different question than violation of the law to achieve unstated intelligence objectives.\nBecause the goal of the proposed \xe2\x80\x9csting\xe2\x80\x9d operation is quite plainly to enforce the law, we address that\nquestion only. Should you wish us also to address the question of the legality of the use of such passports\nin intelligence operations, we will undertake to answer this question, which appears to be one of first\nimpression for us.\n2 Memorandum for Judge Abraham D Sofaer, from Joan M Clark, Re. Request fo r a Legal Opinion\nFrom the Department o f Justice, attached to Letter at Tab 2\n3 Letter for Anthony A. Lapham, General Counsel, Central Intelligence Agency, from John M Harmon,\nActing Assistant Attorney General, Office of Legal Counsel at 13 (Mar 24, 1977) (\xe2\x80\x9cHarmon Opinion").\n68\n\n\x0cstate, however, that \xe2\x80\x9c[o]nly United States nationals ... may obtain pass\xc2\xad\nports.\xe2\x80\x9d Id,4\nWe believe that the reasoning of a previous opinion of this Office per\xc2\xad\nmits the issuance of passports to facilitate an IG sting operation. See Visa\nFraud Investigation, 8 Op. O.L.C. 284 (1984). That opinion concludes\nthat the United States officials may issue visas to aliens statutorily ineli\xc2\xad\ngible to receive them in order to facilitate undercover operations for\nenforcement of our criminal laws. The statements from other OLC opin\xc2\xad\nions on which CA relies are taken out of context and do not in fact\naddress the question of whether passports can be issued to aliens for law\nenforcement purposes. Accordingly, we do not believe that there is a con\xc2\xad\nflict between the 1984 Opinion and any prior opinion of this Office.\nIn 1984, this Office opined that \xe2\x80\x9cthe Department of State may issue a\nvisa to an ineligible alien in order to facilitate an undercover operation\nbeing conducted by the Immigration and Naturalization Service.\xe2\x80\x9d 8 Op.\nO.L.C. at 284. That judgment was based upon the rule, well-recognized by\ncourts, that \xe2\x80\x9cit is generally lawful for law enforcement agents to disregard\notherwise applicable law when taking action that is necessary to attain\nthe permissible law enforcement objective, when the action is carried out\nin a reasonable fashion, and when the action does not otherwise violate\nthe Constitution.\xe2\x80\x9d Id. at 287 (footnotes omitted).\nThe prohibition at issue here is similar to the one discussed in the 1984\nOpinion. There, where the purpose was to investigate an unlawful con\xc2\xad\nspiracy to circumvent U.S. visa restrictions, we said the Department of\nState could issue a visa to a woman who was not an American citizen\ndespite its knowledge that the marriage making her eligible for a visa was\na sham. We said that the law banning consular officers from issuing visas\nto aliens that the officer \xe2\x80\x9cknows or has reason to believe ... [are] ineligi\xc2\xad\nble,\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1201(g)(3), did not bar the issuance of the visa to facilitate\nan effort to enforce the visa laws of the United States. 8 Op. O.L.C. at 288.\nSimilarly, 22 U.S.C. \xc2\xa7 212 makes it unlawful to give a passport to one who\ndoes not owe his allegiance to the United States.5 On its face, this would\nprevent State Department officials from giving a passport to an alien. But\nhere, the alien is to be granted the passport \xe2\x80\x94 as was the case in the oper\xc2\xad\n4 CA relies as well on a prefatory statement in another 1977 OLC opinion. See infra note 7.\n5 If a passport is characterized as a message to another government as to its holder\'s status, all deci\xc2\xad\nsions regarding passports (as opposed to naturalization) may fall within the exclusive domain of the\nPresident. This is due to the President\xe2\x80\x99s role as \xe2\x80\x9cthe sole organ of the nation in its external relations, and\nits sole representative with foreign nations.\xe2\x80\x9d United. States v Curtiss-Wnght Export Coip., 299 U S 304,\n319 (1936) (quoting 10 Annals of Cong 613 (1800) (Rep Marshall)) See Letter from Thomas Jefferson,\nSecretary of State, to Citizen Genet, November 22, 1793, 9 Writings o f Thomas Jefferson, 1789-1726 at\n256 (Andrew A Lipscomb ed., Mem. ed. 1904) quoted in Edward S Corwin, The President\xe2\x80\xa2 Office and\nPowers 1787-1984 at 208 (5th ed 1984) (The President is \xe2\x80\x9cthe only channel of communication between\nthe United States and foreign nations \xe2\x80\x9d). Thus there is an argument (the validity of which we need not\ndetermine) that Congress may not restnct by statute the issuance of passports by the President or sub\xc2\xad\nordinates acting at his direction\n69\n\n\x0cation approved in the 1984 opinion \xe2\x80\x94 to ensure that the passport laws of\nthe United States are respected. This action, then, is consistent with the\nunderlying purpose of the statute insofar as the short-term, controlled\nissuance of passports to aliens6 is actually to ensure that passports are\nbeing issued as a matter of general practice only to those statutorily enti\xc2\xad\ntled to receive them. The issuance of the passports here may thus be said\nto be necessary to what is the functional equivalent of a legal audit of a\nconsular official.\nWe need not restate at great length the discussion of the caselaw and\nthe analysis set forth in the 1984 Opinion, for it stands on its own and\naccurately reflects the views of this Office. It also accurately reflects the\ncurrent law, best summarized by Judge Easterbrook in United States v.\nMurphy, 768 F.2d 1518 (7th Cir. 1985), cert, denied, 475 U.S. 1012 (1986).\nUpholding a conviction of Cook County judge who had accepted a bribe\noffered by an undercover government agent, Judge Easterbrook wrote\nthat \xe2\x80\x9c[i]n the pursuit of crime the Government is not confined to behav\xc2\xad\nior suitable for the drawing room. It may use decoys, and provide the\nessential tools of the offense,\xe2\x80\x9d id. at 1529 (citations omitted). Other\ncourts agree that the government may technically transgress the law in\norder to enforce it. See, e.g., United States v. Citro, 842 F.2d 1149 (9th\nCir.) (government may supply counterfeit credit cards to uncover coun\xc2\xad\nterfeit credit card scheme), cert, denied, 488 U.S. 866 (1988); United\nStates v. Valona, 834 F.2d 1334 (7th Cir. 1987) (government agent may\nsupply cocaine to uncover drug distribution racket); United States v.\nMilam, 817 F.2d 1113 (4th Cir. 1987) (government agents may sell coun\xc2\xad\nterfeit currency to uncover scheme to distribute such currency); Shaw v.\nWinters, 796 F.2d 1124,1125 (9th Cir. 1986) (police officer may sell stolen\nfood stamps to uncover fencing operation, stating \xe2\x80\x9cGovernment agents\n... may supply the contraband which is at the heart of the offense\xe2\x80\x9d), cert,\ndenied, 481 U.S. 1015 (1987).\nIn addition, we do not believe that the 1984 Opinion contradicts the\ntwo previous OLC opinions on which CA relies. The question whether\npassports may lawfully be issued to aliens was not presented to the\nOffice for decision in the Harmon Opinion. The \xe2\x80\x9cproblem areas\xe2\x80\x9d identi\xc2\xad\nfied by the FBI involved the \xe2\x80\x9cuse [by the CIA] of forged birth certificates\nand false statements to obtain U.S. passports,\xe2\x80\x9d Harmon Opinion at 1,\nnot whether passports could be issued to aliens. The sentence CA rests\non \xe2\x80\x94 that \xe2\x80\x9c[o]nly United States nationals ... may obtain passports,\xe2\x80\x9d id.\nat 13 \xe2\x80\x94 accurately stated the relevant statutes, but neither considered\nnor discussed whether legitimate law enforcement objectives under\ncontrolled circumstances necessitate a technical departure from those\nstatutes.7\n0 We assume, therefore, that upon the successful completion of the sting operation the passports will\nbe returned, or if not possible, that consular officials be notified not to accept them\n70\n\n\x0cIn conclusion, we agree with you that CA may issue the passport\nrequested by the Inspector General of the State Department for their lim\xc2\xad\nited and controlled use in the sting operation under the stated conditions\n\xe2\x80\x94 namely, that the Inspector General \xe2\x80\x9cwork closely with CA to safeguard\nthe passports, and to ensure strict compliance with CA\xe2\x80\x99s procedural\nrequirements.\xe2\x80\x9d8\nD ouglas W. K miec\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n7The second OLC opinion CA rests upon, issued in 1977 to the FBI on the use of government documents for undercover purposes, began by stating \xe2\x80\x9c(w]e assume for purposes of this opinion that only\nUnited States nationals acquire passports in alias in this manner.\xe2\x80\x9d Memorandum for Clarence M. Kelley,\nDirector, Federal Bureau of Investigation, from John M Harmon, Acting Assistant Attorney General,\nOffice of Legal Counsel at 1 (Feb 17, 1977) It is evident that this bnef statement, made in the nature of\nan introduction, was intended only to state the Office\xe2\x80\x99s understanding of the scope of the request. The\nopinion was simply following the standard practice (followed in this memorandum as well) of setting\nforth at the beginning the question to be answered. The statement cannot be viewed as dispositive \xe2\x80\x94 or\neven persuasive \xe2\x80\x94 to the question now before us because the issue of whether passports could be given\nto aliens was not there presented or discussed\n8Action Memorandum at 1. We have considered the issue presented with this limitation in mind. We do\nnot here address the question of whether these passports may issue other than in compliance with CA\xe2\x80\x99s\nprocedural requirements and without adequate safeguards.\n71\n\n\x0c'


b'Additional Questions Concerning Use of the\nEINSTEIN 2.0 Intrusion-Detection System\nThe deployment of an intrusion-detection system known as the EINSTEIN 2.0 program\non the unclassified computer networks of the Executive Branch is consistent with the\nfederal and state laws discussed in this opinion.\nUnder the best reading of the statute, the EINSTEIN 2.0 program would not violate\nsection 705 of the Communications Act, because it would fall within section 705\xe2\x80\x99s\nexception permitting a person to \xe2\x80\x9cdivulge\xe2\x80\x9d a communication through \xe2\x80\x9cauthorized\nchannels of transmission or reception,\xe2\x80\x9d which allows either the sender or the recipient\nof an Internet communication to convey the required authorization by consenting to a\ncommunication\xe2\x80\x99s disclosure, including by clicking through an approved log-on banner\nor signing the computer-user agreement in order to gain access to a government-owned\ninformation system.\nIf section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0\nprogram, the exception in section 2702(c)(1)(C) permitting disclosure based on \xe2\x80\x9cthe\nlawful consent of the customer or subscriber\xe2\x80\x9d would also apply, because in this context\nthe government, and no other party, should be understood as the \xe2\x80\x9ccustomer or subscriber\xe2\x80\x9d of the Internet service provider.\nIf a state law imposed requirements on the EINSTEIN 2.0 program exceeding those\nimposed by these federal statutes, it would stand as an obstacle to the accomplishment\nand execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution.\nAugust 14, 2009\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE DEPUTY ATTORNEY GENERAL\nYou have asked us to address whether the deployment of an intrusion-detection system known as the \xe2\x80\x9cEINSTEIN 2.0\xe2\x80\x9d program on the\nunclassified computer networks of the Executive Branch is consistent\nwith (1) section 705(a) of the Communications Act of 1934, as amended,\n47 U.S.C. \xc2\xa7 605(a) (2006); (2) the provision of the Stored Communications Act codified at 18 U.S.C. \xc2\xa7 2702(a)(3) (2006); and (3) state laws\nconcerning interception or electronic surveillance. For the reasons given\nbelow, we conclude that it is. 1\n\n1 We solicited the views of the Criminal Division and National Security Division on\neach of these questions. Both components concur in our conclusions.\n\n269\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nI.\nYou have asked whether by engaging in any of the activities that are\npart of the EINSTEIN 2.0 program, 2 the Department of Agriculture\n(\xe2\x80\x9cUSDA\xe2\x80\x9d), the Department of Homeland Security (\xe2\x80\x9cDHS\xe2\x80\x9d), or the\nrelevant Internet service provider (\xe2\x80\x9cISP\xe2\x80\x9d) would violate section 705(a)\nof the Communications Act of 1934, as amended, 47 U.S.C. \xc2\xa7 605(a)\n(2006). Although this is a novel question, and the statute is hardly a model\nof clarity, we conclude that under the best reading of the statute, the\nEINSTEIN 2.0 activities would not violate section 705.\nIn pertinent part, section 705 provides:\nExcept as authorized by chapter 119, title 18 [i.e., the Wiretap\nAct], no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by\nwire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception,\n(1) to any person other than the addressee, his agent, or attorney,\n(2) to a person employed or authorized to forward such communication to its destination,\n(3) to proper accounting or distributing officers of the various\ncommunicating centers over which the communication may be\npassed,\n(4) to the master of a ship under whom he is serving,\n(5) in response to a subpena issued by a court of competent jurisdiction, or\n(6) on demand of other lawful authority.\n47 U.S.C. \xc2\xa7 605(a). 3 The Communications Act defines \xe2\x80\x9cperson\xe2\x80\x9d in 47\nU.S.C. \xc2\xa7 153(32) (2006) to \xe2\x80\x9cinclude[] an individual, partnership, associaThese activities are described in detail in a memorandum of this Office. See Use of\nthe EINSTEIN 2.0 Intrusion-Detection System to Protect Unclassified Computer Networks\nin the Executive Branch, 33 Op. O.L.C. 63 (2009) (\xe2\x80\x9cEINSTEIN 2.0 Opinion\xe2\x80\x9d).\n3 Section 705 contains additional prohibitions, such as on the \xe2\x80\x9cintercept[ion] [of] any\nradio communication and divulg[ing] or publish[ing]\xe2\x80\x9d of its contents, and on the use for\npersonal benefit of radio communications intercepted or received without authorization.\n2\n\n270\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\ntion, joint-stock company, trust, or corporation.\xe2\x80\x9d \xe2\x80\x9c[C]ommunication by\nwire\xe2\x80\x9d is defined as \xe2\x80\x9cthe transmission of writing, signs, signals, pictures,\nand sounds of all kinds by aid of wire, cable, or other like connection\nbetween the points of origin and reception of such transmission, including\nall instrumentalities, facilities, apparatus, and services (among other\nthings, the receipt, forwarding, and delivery of communications) incidental to such transmission.\xe2\x80\x9d Id. \xc2\xa7 153(52). 4\nAlthough the scope of section 705\xe2\x80\x99s prohibition is not entirely clear on\nits face, case law supports reading the provision as a general bar on a\n\xe2\x80\x9cperson receiving, assisting in receiving, transmitting, or assisting in\ntransmitting\xe2\x80\x9d wire or radio communications from \xe2\x80\x9cdivulg[ing]\xe2\x80\x9d or \xe2\x80\x9cpublish[ing]\xe2\x80\x9d such communications to persons other than the addressee, his\nagent or attorney, except \xe2\x80\x9cthrough authorized channels of transmission or\nreception,\xe2\x80\x9d as \xe2\x80\x9cauthorized by\xe2\x80\x9d the Wiretap Act, or in the circumstances\nenumerated in clauses (2) through (6). In United States v. Finn, 502 F.2d\n938, 942 (7th Cir. 1974), for instance, the court identified the \xe2\x80\x9cabsurdities\xe2\x80\x9d that would result from a literal reading of the text, including that\n\xe2\x80\x9c[c]lauses (2) through (6) would be rendered meaningless, for all of those\ncategories are completely covered by the more general clause (1).\xe2\x80\x9d Similarly, reading clause (6) as a prohibition \xe2\x80\x9cwould forbid divulgence of a\ncommunication \xe2\x80\x98on demand of other lawful authority,\xe2\x80\x99\xe2\x80\x9d thereby \xe2\x80\x9crender[ing] all such demands unlawful and by its own terms [] eliminat[ing]\nthe very category to which it refers.\xe2\x80\x9d Instead, the court concluded, clauses\n(2) through (6) should be read \xe2\x80\x9cas exceptions to the general prohibition of\nclause (1),\xe2\x80\x9d a construction the court viewed as \xe2\x80\x9cthe only way to give\neffect to the Congressional intent.\xe2\x80\x9d Id. Finn is consistent with a line of\nprecedents interpreting the pre-Wiretap Act version of this provision,\nExcept for the first sentence of section 705 quoted above, these additional provisions\nextend only to \xe2\x80\x9cradio\xe2\x80\x9d communications, which are not at issue here. See 47 U.S.C.\n\xc2\xa7 605(a); id. \xc2\xa7 153(33) (defining \xe2\x80\x9cradio communication\xe2\x80\x9d to \xe2\x80\x9cmean[] the transmission by\nradio of writing, signs, signals, pictures, and sounds of all kinds\xe2\x80\x9d).\n4 This definition of \xe2\x80\x9cwire communication\xe2\x80\x9d is substantially similar to the definition\nof \xe2\x80\x9celectronic communication\xe2\x80\x9d under the Wiretap Act, 18 U.S.C. \xc2\xa7 2510(12) (2006),\nwhich includes \xe2\x80\x9cany transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,\nphotoelectronic or photooptical system that affects interstate or foreign commerce.\xe2\x80\x9d Cf.\nid. \xc2\xa7 2510(1) (defining \xe2\x80\x9cwire communication\xe2\x80\x9d under the Wiretap Act to mean an \xe2\x80\x9caural\ntransfer\xe2\x80\x9d).\n\n271\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nwhich contained substantially similar language. For instance, in Nardone\nv. United States, 302 U.S. 379, 380\xe2\x80\x9381 (1937), the Supreme Court characterized the version of section 705 then in effect as providing that \xe2\x80\x9cno\nperson who, as an employee, has to do with the sending or receiving of\nany interstate communication by wire shall divulge or publish it or its\nsubstance to anyone other than the addressee or his authorized representative or to authorized fellow employees, save in response to a subpoena\nissued by a court of competent jurisdiction or on demand of other lawful\nauthority.\xe2\x80\x9d 5 See also Hanna v. United States, 404 F.2d 405, 408\xe2\x80\x9309 (5th\nCir. 1968) (\xe2\x80\x9c[I]nformation thus lawfully obtained may be divulged \xe2\x80\x98in\nresponse to a subpoena issued by a court of competent jurisdiction, or on\ndemand of other lawful authority.\xe2\x80\x99\xe2\x80\x9d (quoting section 705)); Bubis v.\nUnited States, 384 F.2d 643, 646\xe2\x80\x9347 (9th Cir. 1967) (\xe2\x80\x9c[N]o . . . person\nshall divulge or publish the existence, contents, substance, purport, or\neffect of any such communication to anyone other than the addressee or\nhis authorized representative, or to authorized fellow employees, or in\nresponse to a subpoena issued by a court of competent jurisdiction, or on\nThe version of the statute at issue in Nardone provided that:\nNo person receiving or assisting in receiving, or transmitting, or assisting in\ntransmitting, any interstate or foreign communication by wire or radio shall divulge\nor publish the existence, contents, substance, purport, effect, or meaning thereof,\nexcept through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized\nto forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of\nother lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance,\npurport, effect, or meaning of such intercepted communication to any person; and\nno person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or\nhaving become acquainted with the contents, substance, purport, effect, or meaning\nof the same or any part therof, knowing that such information was so obtained,\nshall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto . . . .\nCommunications Act of 1934, Pub. L. No. 73-416, \xc2\xa7 605, 48 Stat. 1064, 1103\xe2\x80\x9304.\n5\n\n272\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\ndemand of other lawful authority.\xe2\x80\x9d); Brandon v. United States, 382 F.2d\n607, 611 (10th Cir. 1967) (similar).\nAlthough our research has not uncovered any case law applying section 705 in the context of cybersecurity activities, we conclude that the\nEINSTEIN 2.0 program falls within section 705\xe2\x80\x99s authorization to \xe2\x80\x9cdivulge\xe2\x80\x9d a communication through an \xe2\x80\x9cauthorized channel[] of transmission\nor reception.\xe2\x80\x9d We assume for purposes of this analysis\xe2\x80\x94but do not decide\xe2\x80\x94that federal-systems Internet traffic would constitute \xe2\x80\x9ccommunication[s] by wire\xe2\x80\x9d under section 705, that the EINSTEIN 2.0 program would\ninvolve \xe2\x80\x9cdivulg[ence] or publi[cation]\xe2\x80\x9d of the contents of such communications, that DHS or USDA would be a \xe2\x80\x9cperson receiving, assisting in\nreceiving, transmitting, or assisting in transmitting\xe2\x80\x9d such communications, and that the program would not be \xe2\x80\x9cauthorized by\xe2\x80\x9d the Wiretap\nAct. 6\nA number of those assumptions may not be necessary, and thus there may be additional bases for concluding that the EINSTEIN 2.0 program would not violate section\n705. An argument might be made, for instance, that program activities are \xe2\x80\x9cauthorized by\xe2\x80\x9d\nthe Wiretap Act for purposes of section 705 because they are not affirmatively prohibited\nby that Act. Compare United States v. Freeman, 524 F.2d 337, 340 & n.5 (7th Cir. 1976)\n(phrase \xe2\x80\x9c[e]xcept as authorized by [the Wiretap Act]\xe2\x80\x9d in section 705 \xe2\x80\x9cpermits\xe2\x80\x9d telephone\ncompanies to protect their rights or property pursuant to the relevant exception in 18\nU.S.C. \xc2\xa7 2511(2)(a)(i)), with EINSTEIN 2.0 Opinion, 33 Op. O.L.C. at 103 (concluding\nthat \xe2\x80\x9cthe better reading\xe2\x80\x9d of a related exception in FISA for conduct \xe2\x80\x9cauthorized by\xe2\x80\x9d the\nWiretap Act was to refer to affirmative \xe2\x80\x9corders\xe2\x80\x9d obtained under that Act, rather than\nactivities that \xe2\x80\x9cmerely are not prohibited by those statutes\xe2\x80\x9d). Although we need not, and\ndo not, resolve this question here, we note that such a reading of section 705 would not\nonly incorporate the Wiretap Act\xe2\x80\x99s consent exception, see 18 U.S.C. \xc2\xa7 2511(2)(a)(ii)\n(2006), but would also appear to import wholesale all of the statutory exceptions found in\nthat Act, cf., e.g., id. \xc2\xa7 2511(2)(a)(i) (\xe2\x80\x9crights or property\xe2\x80\x9d), essentially collapsing section\n705 and the Wiretap Act into a single standard, notwithstanding that section 705(a)\nretained, by its plain terms, an independent limitation regarding wire communications.\nIt might separately be contended that any disclosure of communications by the service\nprovider to DHS would occur on \xe2\x80\x9cdemand of other lawful authority,\xe2\x80\x9d although here DHS\nhas entered into an agreement with USDA and thus arguably is not \xe2\x80\x9cdemand[ing]\xe2\x80\x9d\ndisclosure of communications. Cf. Brown v. Continental Tel. Co., 670 F.2d 1364, 1365\xe2\x80\x93\n66 (4th Cir. 1982) (request for records and telephone bills served on telephone company\nby Attorney for the Commonwealth was a \xe2\x80\x9cdemand of . . . lawful authority\xe2\x80\x9d under section\n705 because the statute\xe2\x80\x99s plain text contemplated the release of protected information \xe2\x80\x9cto\nappropriate authorities in response to a demand less compelling than a subpoena\xe2\x80\x9d). And\nwith respect to any conduct of USDA or DHS that is potentially within the scope of\nsection 705, there is some question whether the first sentence of section 705 applies to\n6\n\n273\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nWe begin with the text of section 705, which expressly permits a \xe2\x80\x9cdivulge[nce] or publi[cation]\xe2\x80\x9d of a wire communication made \xe2\x80\x9cthrough\nauthorized channels of transmission or reception.\xe2\x80\x9d We believe the plain\nlanguage of section 705 is fairly interpreted to include the EINSTEIN\nscanning sensors as a \xe2\x80\x9cchannel[] of transmission or reception\xe2\x80\x9d of Internet\ncommunications, particularly where a party to the communication has, as\nhere, expressly authorized such scanning. In reaching this conclusion, we\nhave considered the potential ambiguities concerning both what constitutes a \xe2\x80\x9cchannel of transmission or reception\xe2\x80\x9d and what constitutes a\nchannel that has been \xe2\x80\x9cauthorized\xe2\x80\x9d for purposes of section 705.\nAs to the first issue, we are aware of a narrower construction of the\nphrase \xe2\x80\x9cchannel[] of transmission or reception\xe2\x80\x9d that would be limited to\nthe channel through which the communication actually passes from recipient to sender. Under such a reading, section 705 would prohibit, inter\nalia, forwarding of a mirror copy of federal systems Internet traffic to\nEINSTEIN 2.0 sensors for processing, see EINSTEIN 2.0 Opinion, 33\nOp. O.L.C. at 67\xe2\x80\x9368, or DHS\xe2\x80\x99s disclosure to another federal agency if that\ndisclosure did not involve transmitting the communication to its recipient,\nunless one of the other express exceptions in the statute applied. But the\ntext of the section does not by terms compel that narrower reading, given\nthe placement of the relevant phrase. That phrase is located where it could\nbe read to qualify the prohibition against divulgence to third parties, and\nthus to indicate that the channels being referenced are those that might be\nused to reach third parties. Indeed, the phrase itself, in its second appearance in the section, is not limited to channels of transmission by \xe2\x80\x9cwire,\xe2\x80\x9d\ngovernment employees. Compare United States v. Hall, 488 F.2d 193, 195 (9th Cir. 1973)\n(superseded on other grounds) (\xe2\x80\x9cThe legislative history [] explicitly shows that Congress\nintended to exclude law enforcement officers from the purview of the new [section\n705]\xe2\x80\x9d); S. Rep. No. 90-1097, at 108 (1968) (\xe2\x80\x9c[The first sentence of section 705] is\ndesigned to regulate the conduct of communications personnel.\xe2\x80\x9d); and Int\xe2\x80\x99l Cablevision,\nInc. v. Sykes, 75 F.3d 123, 131 n.4 (2d Cir. 1996) (similar), with Nardone, 302 U.S. at 381\n(\xe2\x80\x9cTaken at face value the phrase \xe2\x80\x98no person\xe2\x80\x99 [in the pre-Wiretap Act version of section\n705] comprehends federal agents[.]\xe2\x80\x9d); and United States v. Sugden, 226 F.2d 281 (9th Cir.\n1955) (interpreting pre-Wiretap Act version of section 705 to permit FCC agents to \xe2\x80\x9clisten\n[to radio communications] for the purpose of enforcing the [Communications] [A]ct\xe2\x80\x9d but\nto require exclusion of evidence, in a criminal prosecution unrelated to violations of that\nAct, obtained by FCC agents who intercepted defendant\xe2\x80\x99s short range radio transmissions). We need not, and do not, resolve these issues in light of our conclusion that the\nexercise falls within section 705\xe2\x80\x99s \xe2\x80\x9cauthorized channels of transmission\xe2\x80\x9d provision.\n\n274\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\nsuggesting a potentially broad conception of the means by which communications may be passed along. Furthermore, the text is not clear that the\nchannel in question must be the one through which the original communication travels, as the text specifically refers to the divulgence, not of the\ncommunication itself, but of its substance or meaning. Insofar as the\nphrase \xe2\x80\x9cchannels of transmission or reception\xe2\x80\x9d qualifies the divulgence,\nas its placement indicates, it is clearly intended to refer to channels other\nthan those through which the communication flows.\nAs to whether the channel would be \xe2\x80\x9cauthorized\xe2\x80\x9d for purposes of section 705, the dictionary defines \xe2\x80\x9cauthorized\xe2\x80\x9d as \xe2\x80\x9chaving authority[;] . . .\nrecognized as having authority[;] . . . approved,\xe2\x80\x9d and defines \xe2\x80\x9cauthority\xe2\x80\x9d as, inter alia, \xe2\x80\x9cjustifying grounds: basis, warrant.\xe2\x80\x9d Webster\xe2\x80\x99s Third\nNew International Dictionary 146 (3d ed. 1993). The statute does not\nspecify the source or nature of the \xe2\x80\x9cauthoriz[ation]\xe2\x80\x9d required. As a\nmatter of ordinary meaning, the term \xe2\x80\x9cauthorized\xe2\x80\x9d is certainly broad\nenough to encompass either the sender or receiver of a communication\nexpressly authorizing\xe2\x80\x94by means of indicating consent to\xe2\x80\x94divulgence\nor publication. This reading is also supported by the terms of section\n705\xe2\x80\x99s second sentence, which states that \xe2\x80\x9c[n]o person not being authorized by the sender shall intercept any radio communication and divulge\nor publish\xe2\x80\x9d that communication. 47 U.S.C. \xc2\xa7 605(a) (emphasis added).\nThat Congress chose the unqualified term \xe2\x80\x9cauthorized\xe2\x80\x9d in the first\nsentence, while expressly limiting which party could authorize disclosure in the second, suggests an intent that the term be given a broader\nreading in the former instance. 7 We therefore would interpret the phrase\n\xe2\x80\x9cauthorized channels of transmission or reception\xe2\x80\x9d to permit either the\nsender or the recipient of an Internet communication to convey the\nrequired authorization by consenting to a communication\xe2\x80\x99s disclosure\nin the context of the EINSTEIN 2.0 system.\nAlthough we are not aware of any judicial precedent directly on point,\nwe draw support for this reading of the statute from case law analyzing\n7 Our reading of \xe2\x80\x9cauthorized\xe2\x80\x9d arguably also draws support from, and is entirely consistent with, the use of the word \xe2\x80\x9cauthorizing\xe2\x80\x9d in the text of section 705(b), which contemplates a \xe2\x80\x9cmarketing system\xe2\x80\x9d for satellite communications in which \xe2\x80\x9cagents have been\nlawfully designated for the purpose of authorizing private viewing by individuals\xe2\x80\x9d and\n\xe2\x80\x9cindividuals receiving [satellite] programming ha[ve] obtained authorization for private\nviewing under that [marketing] system.\xe2\x80\x9d 47 U.S.C. \xc2\xa7 605(b).\n\n275\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nconsent by either the sender or receiver of a communication in determining whether interception or divulgence of a telephone call violated certain\nrelated provisions in section 705. In Rathbun v. United States, 355 U.S.\n107 (1957), for instance, the Supreme Court held that the second clause of\nthe version of section 705 then in effect (which provided that \xe2\x80\x9cno person\nnot being authorized by the sender shall intercept any communication and\ndivulge or publish the existence, contents, substance, purport, effect, or\nmeaning of such intercepted communication to any person,\xe2\x80\x9d see supra\nnote 5) was not violated where the recipient of a phone call asked the\npolice to listen to the call on an extension telephone in his home. The\nCourt concluded, notwithstanding the statute\xe2\x80\x99s specific reference to the\n\xe2\x80\x9cauthoriz[ation] [of] the sender,\xe2\x80\x9d that \xe2\x80\x9cthere ha[d] been no \xe2\x80\x98interception\xe2\x80\x99\nas Congress intended that the word be used.\xe2\x80\x9d 355 U.S. at 109. The Court\nlooked to another related provision of section 705, which then prohibited\nany person from \xe2\x80\x9creceiv[ing] or assist[ing] in receiving any interstate or\nforeign communication by wire or radio and us[ing] the same or any\ninformation therein contained for his own benefit.\xe2\x80\x9d That provision, the\nCourt explained, gave \xe2\x80\x9c[t]he clear inference . . . that one entitled to receive the communication may use it for his own benefit or have another\nuse it for him.\xe2\x80\x9d Id. at 110. In dictum the Court further observed that even\nthe defendant in that case conceded that under section 705 \xe2\x80\x9ceither party\nmay record the [telephone] conversation and publish it.\xe2\x80\x9d Id.\nSimilarly, in Weiss v. United States, 308 U.S. 321 (1939), the Court\nheld evidence to be inadmissible in a criminal trial where federal agents\nhad violated the same provision of section 705 as in Rathbun (the prohibition against any person \xe2\x80\x9cnot being authorized by the sender\xe2\x80\x9d intercepting\nand divulging communications) by tapping the defendant\xe2\x80\x99s intrastate\nphone calls. In rejecting the government\xe2\x80\x99s argument that the defendant\xe2\x80\x99s\ntrial testimony about the intercepted conversations constituted consent,\nthe Court relied on the fact that \xe2\x80\x9cdivulgence was not consented to by\neither of the parties to any of the telephone conversations.\xe2\x80\x9d Id. at 330\n(emphasis added). More recently, in United States v. Hodge, 539 F.2d 898\n(6th Cir. 1976), the court rejected a defendant\xe2\x80\x99s claim that agents of the\nDrug Enforcement Agency had violated section 705 by recording telephone conversations between the defendant and a government informant.\n(The informant in the case had consented to the DEA monitoring.) The\ncourt quoted section 705 in full before tersely dismissing the defendant\xe2\x80\x99s\nclaim, explaining that \xe2\x80\x9c[i]t is well settled that there is no violation of the\n276\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\n[Communications] Act if the interception was, as here, authorized by a\nparty to the conversation.\xe2\x80\x9d Id. at 905. 8\nAlthough these cases do not interpret the phrase in section 705 upon\nwhich we rely here, they provide at least indirect support for reading the\nword \xe2\x80\x9cauthorized,\xe2\x80\x9d which appears without qualification as to the scope of\nthe persons encompassed by it, to permit the recipient of a communication\n(either a federal agency, in the case of communications directly to that\nagency, or individual federal employees, in the case of communications to\nthose employees) to consent to and thereby authorize the communication\xe2\x80\x99s disclosure in the context of the EINSTEIN 2.0 program. 9 At a\nminimum, our reading of the unqualified word \xe2\x80\x9cauthorized\xe2\x80\x9d is consistent\nwith what appears to have been the prior understanding that the statute\nwas not, absent an express limitation regarding the scope of any consent\nexception, intended to require two-party consent for any such exception to\napply.\nAs we explain below, we believe that under our reading of section 705,\nthe manifestations of consent by USDA in conjunction with those of\nA modern line of cases brought by plaintiff corporations to prevent the unauthorized\nreception or transmission of satellite television signals has focused on the consent of the\nsending party in determining whether a \xe2\x80\x9cdivulg[ence]\xe2\x80\x9d was \xe2\x80\x9cauthorized.\xe2\x80\x9d See, e.g.,\nNational Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 916 \xe2\x80\x9317 (6th Cir. 2001)\n(holding that private cable company had violated section 705 by selling the broadcast\ntransmission of a boxing match to a commercial customer, when the company was only\nauthorized by the program\xe2\x80\x99s originator to distribute it to residential customers). We do not\nread these cases as negating the relevance of the precedents discussed above, which\ncontemplate consent by either party to communications such as telephone calls. For one\nthing, the modern case law does not purport to overrule or limit the precedents discussed\nabove. More significantly, in this line of cases there is no contention that the recipient of a\nlicensed commercial broadcast\xe2\x80\x94who often acts pursuant to a contractual agreement with\nthe originator\xe2\x80\x94is \xe2\x80\x9cauthorized\xe2\x80\x9d to distribute the material beyond the terms of that agreement.\n8\n\nIn light of this case law, we do not believe the existence of an express consent exception in the Wiretap Act requires a contrary interpretation of \xe2\x80\x9cauthorized channel[] of\ntransmission or reception\xe2\x80\x9d in section 705. When Congress reenacted the language of\nsection 705 in the 1968 Wiretap Act, it did so against the settled background of case law\ninterpreting the pre-Wiretap Act statute to allow consensual interception. By reenacting\nstatutory text that was in large part identical to the preexisting language, and by indicating\nno disapproval of settled case law, Congress can be understood to have left in place the\nestablished meaning of the text it employed rather than to have impliedly precluded\nrecognition of a consent exception.\n9\n\n277\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nindividual federal employees using government information systems are\nsufficient to avoid a violation of that provision by the ISP, DHS, or\nUSDA, in conjunction with the authorized operation of the EINSTEIN 2.0\nsystem. First, with respect to potential violations by the service provider,\nwe believe any \xe2\x80\x9cdivulge[nce]\xe2\x80\x9d of communications would occur through\nan \xe2\x80\x9cauthorized channel[] of transmission or reception.\xe2\x80\x9d As to any disclosure by the provider of communications between third parties and USDA,\nthe agency has \xe2\x80\x9cauthorized\xe2\x80\x9d the service provider to disclose such communications to DHS by virtue of the Memorandum of Agreement between\nUSDA and DHS, which memorializes USDA\xe2\x80\x99s consent to the scanning of\nits Internet traffic for cybersecurity purposes. As to disclosure by the\nservice provider of communications addressed to or sent by individual\nemployees, we have previously concluded that a federal employee\xe2\x80\x99s valid,\nvoluntary consent to the scanning of Internet traffic is apparent from his\nclicking through an approved log-on banner or signing the computer-user\nagreement in order to gain access to a government-owned information\nsystem, see EINSTEIN 2.0 Opinion, 33 Op. O.L.C. at 98, and we believe\nthis consent would foreclose any claim that the service provider would\nviolate section 705 by transmitting communications through the intrusiondetection sensors operated by DHS because it would authorize any resulting divulgence.\nWe similarly conclude that the same consents\xe2\x80\x94by USDA and USDA\nemployees\xe2\x80\x94\xe2\x80\x9cauthorize\xe2\x80\x9d DHS to \xe2\x80\x9cdivulge\xe2\x80\x9d the communications to any\nother authorized agency without running afoul of the prohibition in section 705. As to communications involving the agency itself, USDA has\nexpressly consented to any such disclosures by DHS through the Memorandum of Agreement and other documents detailing the operation of the\nEINSTEIN 2.0 program. As to communications involving individual\nemployees, the model log-on banner and computer-user agreement discussed in our EINSTEIN 2.0 Opinion state expressly that \xe2\x80\x9c[a]ny communications or data transiting or stored on this information system may be\ndisclosed or used for any lawful government purpose.\xe2\x80\x9d 33 Op. O.L.C. at\n70. The scope of the employee\xe2\x80\x99s consent to disclosure for any \xe2\x80\x9clawful\ngovernment purpose\xe2\x80\x9d is informed by our separate conclusion in the context of 18 U.S.C. \xc2\xa7 2511 that DHS is \xe2\x80\x9cauthorized by law\xe2\x80\x9d to conduct an\nexercise involving EINSTEIN technology, as described in the implementation plan governing that exercise, by virtue of several affirmative statutory authorities, particularly a recent appropriations statute providing\n278\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\nfunding for the precise exercise in question, as well as DHS\xe2\x80\x99s organic\nstatute and the Federal Information Security Management Act.\nFinally, we believe the log-on banner and computer-user agreements\ndiscussed above would also be sufficient to foreclose any claim that\nUSDA would violate section 705 by divulging to DHS, through its participation in EINSTEIN 2.0, the contents of communications addressed to its\nemployees.\nThis reading of section 705 is consistent with the conclusion in our\nEINSTEIN 2.0 Opinion that the EINSTEIN 2.0 program would not violate\nparallel non-disclosure provisions contained in the Wiretap Act. Section\n2511(3) of title 18, U.S. Code, provides that \xe2\x80\x9ca person or entity providing\nan electronic communication service to the public shall not intentionally\ndivulge the contents of any communication . . . while in transmission on\nthat service to any person or entity other than an addressee or intended\nrecipient of such communication or an agent of such addressee or intended recipient,\xe2\x80\x9d except \xe2\x80\x9cwith the lawful consent of the originator or any\naddressee or intended recipient of such communication,\xe2\x80\x9d or \xe2\x80\x9cto a person\nemployed or authorized, or whose facilities are used, to forward such\ncommunication to its destination.\xe2\x80\x9d Our EINSTEIN 2.0 Opinion concluded that EINSTEIN 2.0 would not unlawfully \xe2\x80\x9cdivulge\xe2\x80\x9d the contents of\nInternet communications within the meaning of section 2511(3), both\nbecause the participating agency and its employees would have manifested consent to the scanning, and \xe2\x80\x9cbecause the federal government is \xe2\x80\x98authorized,\xe2\x80\x99 and its \xe2\x80\x98facilities are used, to forward such communications to\n[their] destination.\xe2\x80\x99\xe2\x80\x9d 33 Op. O.L.C. at 96. With respect to individual\nfederal employees, we further noted that Internet communications cannot\nreach employees at work without routing through the government\xe2\x80\x99s computer systems. Id. Thus, even if section 705 is not read by terms to incorporate this exception, we find it significant that the exception we conclude\nsection 705 adopts is hardly a novel one in this area. We are also not\naware of any legislative history that indicates a congressional intention to\npreclude recognition of such an exception here.\nII.\nWe believe the EINSTEIN 2.0 system would also comply with the provision of the Stored Communications Act (\xe2\x80\x9cSCA\xe2\x80\x9d), codified at 18 U.S.C.\n\xc2\xa7 2702(a)(3), that provides that \xe2\x80\x9ca provider of remote computing service\n279\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nor electronic communication service to the public shall not knowingly\ndivulge a record or other information pertaining to a subscriber to or\ncustomer of such service (not including the contents of communications\ncovered by [section 2702(a)(1) or (a)(2)]) to any governmental entity.\xe2\x80\x9d\nInsofar as the EINSTEIN 2.0 system examines, in real time, Internet\ntraffic-flow data that is not retained by the ISP, there may be grounds to\nassert that this provision is simply inapplicable, because the data in question is not a \xe2\x80\x9crecord or other information\xe2\x80\x9d within the possession of the\nISP. Even assuming, however, that section 2702(a)(3) by its terms may\napply to EINSTEIN 2.0, we believe that the statutory exception permitting\ndisclosure based on \xe2\x80\x9cthe lawful consent of the customer or subscriber\xe2\x80\x9d\nwould apply. 18 U.S.C. \xc2\xa7 2702(c)(1)(C) (2006). That is because we believe that in this context the government, and no other party, should be\nunderstood as the \xe2\x80\x9ccustomer or subscriber\xe2\x80\x9d of the ISP for purposes of\nthis exception. On this view, even assuming that non-content information obtained from or with the assistance of the ISP regarding Internet\ntraffic that passed onto or off of the government\xe2\x80\x99s system would qualify\nas \xe2\x80\x9crecord[s] or other information\xe2\x80\x9d under the SCA, these \xe2\x80\x9crecord[s] or\nother information\xe2\x80\x9d would \xe2\x80\x9cpertain[] to\xe2\x80\x9d the government as a \xe2\x80\x9csubscriber\nto or customer of [the ISP\xe2\x80\x99s] service,\xe2\x80\x9d and the government could therefore provide \xe2\x80\x9clawful consent\xe2\x80\x9d to divulge this information. 18 U.S.C.\n\xc2\xa7 2702(c)(2).\nThis construction of the statute fits naturally with the plain text: insofar\nas a government agency has contracted with an ISP for Internet service,\nthe government is indisputably a \xe2\x80\x9ccustomer\xe2\x80\x9d (if not also a subscriber) of\nthe ISP. In accordance with this view, the Ninth Circuit has characterized\na municipality as a \xe2\x80\x9csubscriber\xe2\x80\x9d of a text-messaging service where the\nmunicipality contracted with the service to provide two-way text pagers\nto police officers and other municipal employees. See Quon v. Arch\nWireless Operating Co., 529 F.3d 892, 895, 903 (9th Cir. 2008).\nInsofar as end users such as individual employees hold a protected privacy interest in non-content information, the employer\xe2\x80\x99s consent to disclosure might violate some legal obligation of the employer, but it would\nnot create liability for the ISP under the SCA, since the ISP had obtained\nthe necessary consent of its \xe2\x80\x9ccustomer or subscriber.\xe2\x80\x9d In any event, in our\ncase, the individual employees have also consented to the disclosure, so\ndisclosure should not violate any SCA-protected interest of theirs (even\nif they are also somehow \xe2\x80\x9ccustomers or subscribers\xe2\x80\x9d of the ISP). Nor\n280\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\ndoes there appear to be any Fourth Amendment issue with the disclosure.\nNot only have the employees here consented to the disclosure, but courts\nhave generally concluded that there is no reasonable expectation of\nprivacy in non-content information provided to an ISP. See, e.g., United\nStates v. Perrine, 518 F.3d 1196, 1204\xe2\x80\x9305 (10th Cir. 2008) (collecting\ncases); Freedman v. America Online, Inc., 412 F. Supp. 2d 174, 181\xe2\x80\x9382\n(D. Conn. 2005).\nWe recognize the concern that non-content information pertaining to\none customer or subscriber (such as the government in our case) could\ninclude information pertaining to other customers or subscribers of the\nISP insofar as those other parties have sent or received traffic from the\nfirst customers/subscriber\xe2\x80\x99s computers. But we do not believe the SCA\nshould be read to require separate consent from both customers/subscribers in that circumstance. Such records or information \xe2\x80\x9cpertain\xe2\x80\x9d to the\ncustomer/subscriber providing consent, even if they reveal information\nabout other customers/subscribers too, so under the plain text of the\nstatute one-party consent seems sufficient for disclosure. Indeed, any\nother interpretation would yield the odd result that a customer\xe2\x80\x99s ability to\nconsent to disclosure of its information would depend on whether other\nparties it telephoned or emailed happened to be customers of the same\nprovider. Also, unlike content information, which relates to discrete\nmessages each with a particular sender and particular recipients, the\n\xe2\x80\x9crecord or other information\xe2\x80\x9d covered by section 2702(a)(3) often involves an aggregation of data\xe2\x80\x94the total record of a customer/subscriber\xe2\x80\x99s\nInternet traffic or phone calls, for example\xe2\x80\x94that is unique to the individual customer/subscriber and for which (as a result) no other party could\nprovide meaningful consent. Information regarding other customers/subscribers who have not provided consent could of course be disclosed under this analysis only to the extent that such information is\ncontained in a \xe2\x80\x9crecord or other information\xe2\x80\x9d pertaining to the customer or\nsubscriber who has provided lawful consent (here, the government).\nFurthermore, the SCA\xe2\x80\x99s consent exception for content information expressly allows one-party consent\xe2\x80\x94either the \xe2\x80\x9coriginator\xe2\x80\x9d or the \xe2\x80\x9caddressee\xe2\x80\x9d or \xe2\x80\x9cintended recipient\xe2\x80\x9d of the communication may authorize disclosure of its contents, 18 U.S.C. \xc2\xa7 2702(b)(3)\xe2\x80\x94and it would be anomalous\nif the provisions on non-content information, which are generally less\nrestrictive, imposed a more stringent consent requirement than those for\ncontent information. Cf. In re American Airlines, Inc. Privacy Litig., 370\n281\n\n\x0c33 Op. O.L.C. 269 (2009)\n\nF. Supp. 2d 552, 561 (N.D. Tex. 2005) (construing statute to allow any\nintended recipient of a communication to authorize disclosure of content\ninformation). Congress appears to have adopted the current SCA provisions on non-content information in part to bring those provisions more in\nline with provisions on content information. Before 2001, the SCA provided only that a provider could disclose \xe2\x80\x9ca record or other information\npertaining to a subscriber to or customer of [the provider\xe2\x80\x99s] service (not\nincluding [content information]) to any person other than a governmental\nentity\xe2\x80\x9d and that the provider generally could disclose such records or\ninformation to a governmental entity \xe2\x80\x9conly when the governmental entity\n. . . ha[d] the consent of the subscriber or customer to such disclosure\xe2\x80\x9d or\nsatisfied one of several other enumerated exceptions. See 18 U.S.C.\n\xc2\xa7 2703(c) (2000); Pub. L. No. 99-508, \xc2\xa7 201, 100 Stat. 1848, 1860 (1986).\nCongress amended the statute to provide that, even without an affirmative\ngovernment request, the provider may disclose records and information\ncovered by section 2702(a)(3) \xe2\x80\x9cwith the lawful consent of the customer\nor subscriber\xe2\x80\x9d or in certain other specified circumstances. See 18 U.S.C.\n\xc2\xa7 2702(c)(2) (Supp. I 2001); Pub. L. No. 107-56, \xc2\xa7 212(a)(1)(E), 115\nStat. 272, 284 (2001). As explained in the legislative history, Congress\nintended this change \xe2\x80\x9cto allow communications providers to disclose noncontent information (such as the subscriber\xe2\x80\x99s login records).\xe2\x80\x9d H.R. Rep.\nNo. 107-236, pt. 1, at 58 (2001). Under pre-2001 law, the House Judiciary\nCommittee explained, \xe2\x80\x9cthe communications provider [was] expressly\npermitted to disclose content information but not expressly permitted to\nprovide non-content information. This change would cure this problem\nand would permit the disclosure of the less-protected information, parallel\nto the disclosure of the more protected information.\xe2\x80\x9d Id.; see also 147\nCong. Rec. 19,001, 19,009 (statement of Sen. Leahy) (discussing 2001\namendments and observing that \xe2\x80\x9cthe right to disclose the content of communications necessarily implies the less intrusive ability to disclose noncontent records\xe2\x80\x9d). In addition, although we are aware of little relevant\nlegislative history bearing directly on the meaning of \xe2\x80\x9cconsent\xe2\x80\x9d in section\n2702(a)(3), the legislative history of the SCA as originally enacted suggests that Congress understood background legal principles to allow oneparty consent, which arguably supports construing consent provisions of\nthe statute in accordance with that understanding. See S. Rep. No. 99-541,\nat 3 (1986) (observing that \xe2\x80\x9cbecause [information on remote computer\nsystems] is subject to control by a third party computer operator, the\n282\n\n\x0cAdditional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System\n\ninformation may be subject to no constitutional privacy protection\xe2\x80\x9d (citing\nUnited States v. Miller, 425 U.S. 435 (1976))).\nIII.\nFinally, we do not believe the EINSTEIN 2.0 program impermissibly\ninfringes state wiretapping and communication privacy laws. See, e.g.,\nFla. Stat. Ann. \xc2\xa7 934.03(3)(d) (West 2009); 18 Pa. Cons. Stat. Ann.\n\xc2\xa7 5704(4) (West Supp. 2009); Md. Code Ann., Cts. & Jud. Proc. \xc2\xa7 10402(c)(3) (Lexis Nexis 2009); Cal. Penal Code \xc2\xa7 631(a) (West 1999). To\nthe extent that such laws purported to apply to the conduct of federal\nagencies and agents conducting authorized EINSTEIN 2.0 operations and\nimposed requirements that exceeded those imposed by the federal statutes\ndiscussed above and in our EINSTEIN 2.0 Opinion, they would \xe2\x80\x9cstand[]\nas an obstacle to the accomplishment and execution of the full purposes\nand objectives of Congress,\xe2\x80\x9d and be unenforceable under the Supremacy\nClause. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Geier v.\nAm. Honda Motor Co., 529 U.S. 861, 873 (2000); Old Dominion Branch\nv. Austin, 418 U.S. 264 (1974); Bansal v. Russ, 513 F. Supp. 2d 264, 283\n(E.D. Pa. 2007) (concluding that \xe2\x80\x9cfederal officers participating in a federal investigation are not required to follow\xe2\x80\x9d state wiretapping law containing additional requirements not present in the federal Wiretap Act, because in such circumstances, \xe2\x80\x9cthe state law would stand as an obstacle to\nfederal law enforcement\xe2\x80\x9d); Johnson v. Maryland, 254 U.S. 51 (1920); cf.\nUnited States v. Adams, 694 F.2d 200, 201 (9th Cir. 1982) (\xe2\x80\x9cevidence\nobtained from a consensual wiretap conforming to 18 U.S.C. \xc2\xa7 2511(2)(c)\nis admissible in federal court proceedings without regard to state law\xe2\x80\x9d).\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n283\n\n\x0c'