Laws on legal professional privilege “need to catch up with digital age”

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2 June 2014

Digital world: legal communications vulnerable to surveillance

National laws on protecting privileged legal communications are outdated and need to be brought into the digital age, according to the body representing Europe’s lawyers.

In a major report, Surveillance of lawyers’ data in the cloud, the Council of Bars and Law Societies of Europe (CCBE) argued that whatever protection was granted in the paper world should be granted in the electronic world.

The wide-ranging study included a comparative survey of how lawyers’ privileged professional data held in electronic form was “susceptible to government access” and the rules surrounding such access in each European state.

This necessarily involved looking at rules relating to access to paper-based documents, since “very few” rules were specific to electronic data.

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Generally, the CCBE found “intolerable” the divergence between rules of search and seizure of evidence and the “often much weaker” rules on interception of data transmissions. It said: “The CCBE cannot see any good reason in principle why lawyers’ data should be less well protected in the case of surveillance by the security services than in the case of criminal, private, or administrative law, yet the research suggests that professional secrecy and legal professional privilege are less protected in the security services environment than they are in the wider law.”

Further, in some of the European jurisdictions surveyed, where data was held off-site ‘in the cloud’ on behalf of a lawyer, it enjoyed less protection than if it were stored in a lawyer’s own office. “The CCBE sees no justification for such a distinction.”

Where rules on searches of a lawyer’s physical office allowed, for example, representatives of the lawyer’s bar to be present, “an analogous provision should be made for virtual searches”, the CCBE insisted.

The study admitted that “we have to be realistic about what is achievable” and that “to bring wiretapping control up to the standard of the control over physical searches would be a huge legislative task”. But because the protection of legal professional privilege and professional secrecy was “such a fundamental value and guarantee of maintenance of the rule of law”, it argued that a principle be adopted guaranteeing the “inviolability” of data falling within the definition.

The CCBE said it was seeking funding for a wider-ranging study to underpin its campaign, concluding: “If we are to ensure the continued health of a vigorous and independent legal profession as one of the guarantors of the continued existence of the rule of law into an age where so many crave an illusory security over the eternal value of liberty, we owe it to the profession to endorse this call to action.”

Commenting on the importance of protecting lawyers’ electronic communications, Jonathan Goldsmith, the CCBE’s secretary-general, observed that busy lawyers had no alternative but to work remotely and keep sensitive client data on the cloud.

He had heard of some law firms returning “to the typewriter for one-off highly confidential matters”, but pointed out that the case of US whistleblower Edward Snowden – who went to considerable lengths to protect his own communications knowing the surveillance techniques that would be deployed against him – suggested that “nothing electronic, even in the office, is safe from a determined intelligence agency”.

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