On Monday the Supreme Court heard a challenge to parts of the Foreign Intelligence Surveillance Act regarding whether lawyers are allowed to even bring suit based on the fact that their privileged communications may be subject to the wiretapping. As NPR reporter Nina Totenberg noted in a report on the case:

Those challenging the law call that a “Catch-22” because the only way to know with certainty that you’ve been monitored is if the government tells you, which it refuses to do when dealing with classified information.

And Lyle Denniston summed up the argument nicely on the SCOTUS Blog, writing:

The Supreme Court showed Monday that it is genuinely troubled that the govenment, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping. It was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too.

Given the importance of maintaining attorney-client confidentiality to encourage clients to be candid with their lawyers, it seems that the ruling on this matter has the potential to be rather important in setting the tone for future challenges to privileged communications. I will keep track of the case and let you know when the opinion is issued.

(photo: Shutterstock: 112716436)

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