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Legal privilege after Snowden
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The legal action initiated by David Miranda through UK solicitors Bindmans brings into sharp focus an issue that has been troubling me since the Snowden revelations began: how can a lawyer acting against government be sure that privileged communications with his or her client are not being read by that same government? The simple answer is that there is no guarantee. There is no barrier other than politeness stopping government officials from reading privileged lawyer-client electronic communications.
Glen Greenwald knows this. It is why his partner David Miranda was physically carrying data from one place to another: because there is almost no such thing as secure electronic communication. Human couriers cannot be used for every missive, though.
So how will Bindmans be communicating with Miranda, who lives in Brazil? Government thought nothing of physically detaining Miranda, depriving him of his real world freedom of the person for nine hours, using heavy handed intimidation tactics against him directly to his face and seizing his possessions, all in highly dubious legal circumstances. Why would government baulk at intercepting his emails to his lawyers?
Can anyone really believe that any unencrypted emails between Bindmans and Miranda will not be intercepted and read?
All my work as a lawyer is against government. My cases are generally small fry as far as national security is concerned. I have acted in a full on national security case, though, and I regularly advise on merits and damages in claims against government for unlawful detention. The plain fact is that if I entrust those opinions to email or store them on Dropbox or a device that backs up to any cloud service – as is good practice from the point of view of ensuring data is backed up – then I cannot be sure that my client’s opponent will not have read my supposedly confidential advice. All that prevents interception is the self restraint of government officials who we assert have already acted unlawfully.
My legal advice to clients is, as far as I can make it, candid and plain spoken. I will try to spell out weaknesses in the client’s case and their evidence. This information would potentially be highly damaging to the client’s case were it to be seen by the other party and would certainly give the other side a huge advantage in seeking a negotiated settlement.
No doubt government officials do not generally bother to snoop on my communications and rifle through my Dropbox files. The only reason for this is that there is no point, though. It there were a point, I have no faith that my data and communications will not be accessed. That is not acceptable. Yet what are my options?
Shortly after the Snowden revelations began there were some rather disparaging stories in the press about the Russian security services resorting to pen, paper and typewriters. Perhaps we lawyers should do likewise. Over at modernlawyerblog.com I now plan to explore some of the options for safe(r) storage and communication and will report what I find as I go.