The NSA responded to Silkenat on March 10 in a letter (PDF) from Alexander that expressed the agency’s own commitment to “the bedrock legal principle of attorney-client privilege” while appearing to acknowledge that there have been cases in which privileged communications between attorneys and clients have become available to the agency.
“Given the inevitability of incidental collection of U.S. person information during the course of NSA’s lawful foreign intelligence mission—to include potentially privileged information—the issue is how to provide appropriate protections for any such information when it may be acquired,” Alexander wrote.
Some experts say the NSA has not shed nearly enough light on how lawyers are being affected by surveillance activities.
Some experts say the legal profession should be very concerned. “The idea that the NSA has been infringing on this important right is chilling. The entire client-attorney relationship is premised on the idea that communications are strictly confidential, and that clients should freely discuss legal issues with their lawyers,” says Peter A. Joy, a law professor at Washington University in St. Louis.