The Latest Snowden Leak: NSA Isn’t Spying on Lawyers (Lawfare)
By Benjamin Wittes and Jane Chong
Sunday, February 16, 2014 at 9:11 AM
... In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm ...
The Times actually gives no information on what is really the only interesting question the episode raises: What guidance did NSA give the Australians? For it would, indeed, be scandalous if NSA were using a foreign partner as a proxy for spying on Americans or for violating attorney-client privilege in ways that are off-limits to its own people. But there’s no hint of any of that in the story. In fact, there are at least some hints that NSA might have asked the Australians to follow U.S. rules and practice in anything they might want to share ...
So what would those rules have been? The key is minimization. When the U.S. conducts this sort of surveillance under FISA Section 702 (the minimization rules under Executive Order 12333 probably differ somewhat), NSA cannot target anyone for Section 702 collection—not even foreign persons overseas—without a valid foreign intelligence purpose. Section 702 categorically forbids intentionally targeting any U.S. person—or any other person believed to be inside the U.S. And it requires NSA to follow procedures to minimize any information acquired in the course of targeting non-U.S. persons reasonably believed to be located outside the United States. So it would be legal to target Indonesian officials engaged in trade talks with the United States, but NSA would have to discard any communications they might have with US persons—lawyers or not—to the extent there was no foreign intelligence value in those communications. And NSA would have to discard and mask the US persons’ identities except to the extent that those identities themselves had foreign intelligence value.
According to section 4 of the declassified 2011 guidelines governing minimization, moreover, additional protections kick in when it becomes apparent that acquired communications are taking place between any person known to be under criminal indictment in the United States and an attorney representing that individual in the matter. Monitoring of that communication must halt, the communication must be segregated from other acquired information and special precautions must be taken through the DOJ’s National Security Division to ensure the communications play no part in any criminal prosecution. As an added precaution, the NSA Office of General Counsel is also required to review all proposed disseminations of U.S. person attorney-client privileged communications prior to dissemination ...
http://www.lawfareblog.com/2014/02/the-latest-snowden-leak-nsa-isnt-spying-on-lawyers/