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Email Spying and Attorney Client Privilege

US Government Reads All About It

by J. MICHAEL SPRINGMANN, Esq.

Once upon a time in a country very different from today’s, sending an E-mail was like making a telephone call or mailing a first-class letter: the sender had a reasonable expectation of privacy in his message. Today, with terrorists under every bed and a government vowing to search them out and destroy them, no matter the consequences, E-mail users have no expectation of privacy whatsoever. Under the so-called USA Patriot Act, passed but not read by a corrupt, incompetent, and illegitimate Congress, the federal government can and does read all about E-mail messages, including their authors, their contents, and their addressees.

I know this for a certainty. In April 2003, the U.S. Justice Department seized and read the contents of my personal and professional E-mail accounts at America On Line (AOL).

Using the pretext of searching for an alleged Al-Qa’ida gun moll (with three children under the age of 5 years), the Justice Department clandestinely seized and blocked the use of these AOL accounts. The Assistant U.S. Attorneys who did this had no real knowledge of the woman’s activities, whereabouts, or connection, if any, with Al-Qa’ida. The Justice Department had no knowledge of, or interest in the welfare and whereabouts of her three children. Indeed, the U.S. Attorneys involved had no reason to believe that I had any contact with her or her children. Yet, on "national security" grounds (which seemed to focus on harassing my client), the Justice Department officials secretly went to a tame magistrate and got a warrant under the inaptly-named Patriot Act to seize and read my E-mail messages. In keeping with the new way of doing things in Washington, the Justice Department never informed me of what it had done.

Suspecting that something was amiss when AOL blocked access to my accounts, I repeatedly called that company, headquartered in CIA-subservient Fairfax County, Virginia. After a month, one of the many voices on the telephone slipped up and told me that a "security override" had been placed on my accounts. Calls to the National Association of Criminal Defense Lawyers (NACDL) brought about a confrontation with one of the Muslim-hating Assistant U.S. Attorneys involved. Under questioning, he told a member of the NACDL’s Attorney Strike Force, in very general terms, of what had been done.

What does this mean to me, you ask? Beyond the violation of attorney-client privilege and the invasion of my privacy and that of my correspondents, I no longer have access to my E-mail addresses, since AOL kept them on its computer. And so I cannot inform my contacts that I have a new E-mail provider. I have no idea whether the Justice Department is still reading the E-mail messages sent and received by my correspondents, whose addressees turned up in the seizure of my accounts. Indeed, I continue to have problems sending and receiving messages to my friends and clients around the world with my new provider (which causes me to wonder if the process is not still continuing). And I must explain to clients and potential clients rightly concerned about confidentiality that the U.S. government has read and may still read E-mails to and from them.

Can this be reversed? No. A U.S. District Court judge told me that if I didn’t accept the situation, I could file a civil rights law suit. As a solo practitioner, this would not be practical. Can I get help? No. The American Civil Liberties Union has told me that it would be unrealistic to sue the federal government. It also stated that AOL, because of its terms-of-service contract, is judgment-proof.

In Nazi Germany and the old Soviet Union, both run by a better class of people than we now have in public service in the U.S. of A. today, people disappeared; they mysteriously failed to advance; and they suffered from guilt by association. They were informed on by their neighbors; their property was seized without compensation. But, and it is a big "But", this was regarded as wrong, both by the citizens spied upon and by the spies themselves.

Is my situation, that of my client, and that of the alleged gun moll really any different? Yes! In this condition, no one sees a violation of either the letter or the spirit of the federal Constitution. They, and the "they" are generally well-educated, well-traveled, and white, admire the new security processes and procedures. It makes them feel safer, they say.

However, I don’t feel safer. I particularly don’t feel safer after a well-connected journalist with expertise in national security matters, told me that he suspected the alleged Al-Qa’ida operative and her children are most likely in U.S. government hands but that the feds who have her aren’t telling the rest of the alphabet soup of agencies that she and her children are in their custody. After all, this is the government that ran a program, with Osama bin Laden’s extensive help, to recruit terrorists in Saudi Arabia, bring them to the United States for training, and then send them on to Afghanistan to murder Soviet soldiers.

You don’t have to be crazy to work for Uncle Sam, but it helps.

J. Michael Springmann is a DC-area attorney. He previously spent 20 years in the Foreign Service.