Orin Kerr writes: The front page of the Sunday New York Times features a new Snowden-based story that looks, at first blush, like a really big deal. Authored by James Risen and Laura Poitras, the story opens with considerable drama by suggesting that the NSA is spying on U.S. lawyers:
The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.
A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.
Sounds like the NSA helped spy on U.S. lawyers, right? Well, not so fast. If you unpack the story and ignore the opening spin, the story ends up delivering considerably less than it promises.
As I understand it, the Times story is based on a short entry in an NSA internal bulletin celebrating the liaison office’s accomplishment. It reports that the liaison helped clear up a legal issue, and that it all ended well, as the Australians ended up giving useful intel to the U.S. But because it’s just an internal bulletin, it doesn’t tell us what we want to know: What advice was provided, and whether the intel was related to the legal issue. Without that information, it’s hard to know if there’s a significant story here. [Continue reading…]