Sep 012018

This post originally appeared on Techdirt on 4/17/18.

Over the weekend Trump tweeted:


If you can’t read that it says:


Attorney Client privilege is now a thing of the past. I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned!


Attorney-client privilege is indeed a serious thing. It is inherently woven into the Sixth Amendment’s right to counsel. That right to counsel is a right to effective counsel. Effective counsel depends on candor by the client. That candor in turn depends on clients being confident that their communications seeking counsel will be confidential. If, however, a client has to fear the government obtaining those communications then their ability to speak openly with their lawyer will be chilled. But without that openness, their lawyers will not be able to effectively advocate for them. Thus the Sixth Amendment requires that attorney-client communications – those communications made in the furtherance of seeking legal counsel – be privileged from government (or other third party) view.

The problem is, it doesn’t take a raid of a home or office to undermine the privilege. Bulk surveillance invades the sphere of privacy these lawyer-client communications depend on, and, worse, it does so indiscriminately. Whether it involves shunting a copy of all of AT&T’s internet traffic to the NSA, or warrantlessly obtaining everyone’s Verizon Wireless phone call records, while, sure, it catches records of plenty of communications made to non-lawyers (which itself is plenty troubling), it also inherently catches revealing information about communications made to and from lawyers and their clients. Meanwhile the seizures and searches of communications devices such as cell phones and laptops raises similar Constitutional problems. Doing so gives the government access to all records of all communications stored on these devices, including those privileged ones that should have been expressly kept from it.

So Trump is right: attorney-client privilege in America is under attack, and ever since we started learning about these programs lawyers have definitely been worried about how they impose an intolerable burden on the Sixth Amendment right to counsel. But unlike in Trump’s situation where there is serious reason to doubt whether there’s any privilege to be maintained at all (after all, privilege only applies to communications made in the course of seeking legal counsel, not communications made for other purposes, including the furtherance of crime or fraud), and care being taken to preserve what privilege there may be, bulk surveillance sweeps up all communications, including all those for which there is no doubt as to their privileged status, and without any sort of care taken to protect these sensitive communications from the prying eyes of the state. Indeed, the whole point of bulk surveillance is so that the prying eyes of the state can get to see who was saying what to whom without any prior reason to target any of these communications in particular, because with bulk surveillance there is no targeting: it swoops up everything, privileged or not.

If Trump truly finds it troubling for the government to be able obtain privileged communications he could put an end to these programs. It would certainly help make any argument he raises about how his own privilege claims should be sacrosanct rings ring less hollow if his administration weren’t currently being so destructive to everyone else’s.

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