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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.

Groklaw has closed for this reason. Jonathan Goldsmith is thinking along the same lines as me.

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.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


6 Responses

  1. Well Colin, well said! This is why the whole IRC telephone system is bad as to regards lawyer – client communication. They also monitor cell phones calls to and from detainees, and many people do not know this as the center retrieves various information from detainee phones the moment they arrive there, then later they are returned to them.

    1. What is the legal status of information retrieved this way? I wonder how detention for immigration reasons justifies monitoring phone calls to legal reps or anyone else.

  2. I think that the issue here is unencrypted e-mails. I would recommend Bindmans and Miranda use strong encryption for any communications. In that case, government agents would need to use legal methods to obtain the encryption keys from either Bindmans or Miranda to read their e-mails. Hopefully courts would block this on the grounds of legal privilege. Governments could use their backdoors into apple, google, etc. to see that e-mails had been sent, but they would not be able to view any of the content.

    In fact, I’d recommend everyone to routinely use encryption and it’s not hard to do these days as S/MIME tools are built into almost every e-mail client.

  3. Colin, good points well made. In the UK we face the same risks as the US although we are all a little more stiff upper lipped and the UK legal profession is not so up in arms at the moment. With products like ours on the market (www.mkryptor.com) I see no real reason why emails should be in clear any more. But the UK legal profession is somewhat slow to adopt technology solutions. Especially solutions to problems they do not fully understand (in terms of risk).

    Yes you are right, it is hard to stop Gov snooping on emails in clear. Perhaps even emails encrypted. But our concern is less about government (although this is a legitimate concern) but about non government risk. We can have a democratic discussion about the pros and cons of snooping levels and even vote out governments we do not agree with (we are lucky in that respect). My main concern is the darker side of information gathering and the fact that organised crime have already recognised the benefits of information. Who gets to have the discussion with them? How do you vote out organised crime?

    Cyber crime is on the increase. I feel sure that information will be the new drug of choice for criminals. Need to know which houses to burgle? No problem, just snoop on every outbound email from a travel company and I guarantee you that you will know when thousands of houses will be empty as you will have their travel dates and times in emails in clear. Useful information to sell on? You bet. So how many travel companies value their itinerary data? Few if any I suspect.