Revelations on Saturday that an American law firm’s communications with a foreign government client were monitored by a National Security Agency ally may provide new impetus for the U.S. Supreme Court to revisit a 2013 decision that involved electronic surveillance law.
The justices, if they wish, have a vehicle for reconsidering their 5-4 decision in Clapper v. Amnesty International USA. The Center for Constitutional Rights last month filed a petition for review asking the high court to hear their challenge to surveillance by the NSA in light of Edward Snowden’s revelations about the extent of the surveillance program.
The petition, Center for Constitutional Rights v. Obama, was filed on behalf of the organization itself and its legal staff.
“We have always been confident that our communications—including privileged attorney-client phone calls—were being unlawfully monitored by the NSA, but Edward Snowden’s revelations of a massive, indiscriminate NSA spying program changes the picture,” said CCR Senior Attorney Shayana Kadidal in a statement last month. “Federal courts have dismissed surveillance cases, including ours, based on criteria established before Snowden’s documents proved that such concerns are obviously well-founded.”
The New York Times on Saturday reported that a top-secret document obtained by Snowden reveals that an American law firm’s communications with its client, the government of Indonesia, were monitored while the firm was assisting the foreign country in trade disputes with the United States.
The Australian counterpart to the NSA, according to the Times, notified the NSA that it was conducting surveillance of those communications and offered to share the information. The article suggested the law firm was Mayer Brown, which was then advising the Indonesian government on trade issues concerning cigarettes and shrimp.
Alex Abdo, a staff attorney with the American Civil Liberties Union’s National Security Project, said the spying revelation “confirms our fear that the NSA’s surveillance rules gives short shrift to the privacy of communications between lawyers and their clients.” Attorney-client communication, Abdo said in a written statement, “is sacred in our legal tradition and should not be wiretapped except in extraordinary circumstances.”
Duane Layton, a Mayer Brown partner in Washington who leads the firm’s government and global trade practice, told The Times he did not have any evidence that he or his firm had been under scrutiny by Australian or American intelligence agencies.
“I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age,” Layton told the Times. “But I’ve never really thought I was being spied on.”
Mayer Brown said in a written statement that “there is no indication, either in the media reports or from our internal systems and controls, that the alleged surveillance occurred at the firm.” The law firm said it “takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.”
Layton said that if his emails and calls with Indonesian officials had been monitored, the spies would have been bored, according to the Times. “None of this stuff is very sexy,” he said. “It’s just run of the mill.”
Layton led a team from the firm in the clove cigarette dispute, while another lawyer in the firm’s Washington office, Matthew McConkey, an international trade partner, had taken the lead on the shrimp issue until the United States dropped its claims in August, the Times reported.
Litigation over Indonesian clove cigarettes presented novel legal issues in the international trade arena—including when is one product “like” another product? Mayer Brown, representing Indonesia, won a significant ruling in 2012, in the appellate division of the World Trade Organization, over restrictions on the sale of flavored tobacco in the U.S.
Mayer Brown chairman Paul Theiss last week told NLJ affiliate Am Law Daily that revenue was up in the Americas, Europe and Asia, the firm’s three regions. In 2013, gross revenue reached $1.146 billion—up from $1.09 billion in the previous year. Mayer Brown’s profits per partner rose to $1.285 million—the highest ever for the firm.
“Over the last dozen years or so we’ve built a very nice global footprint to be able to serve the world largest financial institutions and other global companies,” Theiss said last week. “The growth that we’ve had in doing that has led to efficiencies in ways to operate as a single global firm.”
The Clapper case was brought by several groups, including lawyers, journalists and human rights organizations. They challenged a provision of the Foreign Intelligence Surveillance Act that permitted warrantless electronic eavesdropping of non-U.S. citizens outside of the United States.
The groups argued that the procedures violated the Fourth and First amendments as well as the separation of powers. They said the procedures would force them to take costly measures to ensure the confidentiality of their international communications.
In an opinion by Justice Samuel Alito Jr., the majority held in February 2013 that the groups did not have standing to seek relief. Their theory of standing, he wrote, “which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending.”
Alito added that the groups had “no actual knowledge” of the Government’s targeting practices. “Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired” under the provisions, he wrote in the opinion.
Justice Stephen Breyer dissented. “In my view, this harm is not ‘speculative.’ Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer.
The Center for Constitutional Rights had originally challenged the warrantless surveillance program in 2006. U.S. District Judge Vaughn Walker in the Northern District of California dismissed the suit in 2011.
The organization appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the district court after the Supreme Court ruled in Clapper. The appellate panel said the attorneys’ concerns about the surveillance of attorney-client communications were “too speculative.”
“Without reversal or clarification of Clapper from the Supreme Court, lower courts will continue to dismiss claims by lawyers without proof to a certainty that they are being surveilled,” the center’s Kadidal said in January.
The U.S. Department of Justice on Feb. 6 waived its right to respond to the petition. The petition is scheduled for the justices’ Feb. 28 conference.
Updated 8:55 p.m.