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Whistle-blower warns law firms to protect client data; Auckland lawyer suspended

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NZ Lawyer | 23 Jul 2014, 08:59 a.m. Agree 0
Edward Snowden has urged law firms to protect their clients' data... lawyer suspended from practice for disregarding previous Law Society ruling… and is it time for your firm to open a ‘drones’ practice?
  • Patrick Wilson | 23 Jul 2014, 09:40 a.m. Agree 0
    Edward Snowden is commonly referred to in the media as a “whistleblower”. Legal protection for whistleblowers, including in the US, normally requires elements of an existing employee learning of some illicit activity of the employer, raising it with management to no avail and then informing authorities. Edward Snowden meets none of these requirements.

    Edward Snowden was not an employee of the NSA nor of a contractor to the NSA when he met with representatives of WikiLeaks in Hong Kong to conspire with them how to steal information from the NSA. Based on that plan, he gained employment with a contractor and set about the theft, largely by the improper use of legitimate employees’ passwords. He then used that stolen information for gain. His denials are contradictory. He lied on his resume.

    If anyone in New Zealand did the same he would be liable for criminal action, not lauded as a ‘hero’. It seems that for certain people any illicit behaviour is somehow acceptable if it is seen as anti-US. If media accuracy is important (particularly for a legal publication), the use of “whistleblower” should be reserved for those employees who deserve it, not to criminals like Edward Snowden.
  • Ivan McIntosh | 23 Jul 2014, 11:49 a.m. Agree 0
    Patrick Wilson can shoot the messenger as much as he wants, but in my personal opinion it is crucial to individual freedom to know just how much government institutions are circumventing the laws of other nations, and indeed their own, in the pursuit of invasive and indiscriminate spywork. For that alone, Edward Snowden deserves congratulation and safe harbour. I refer Mr Wilson to the prescient words of Benjamin Franklin: "They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
  • Hamish | 23 Jul 2014, 11:58 a.m. Agree 0
    Dear Mr Wilson

    "If anyone in New Zealand did the same he would be liable for criminal action, not lauded as a ‘hero’. "

    On what basis?

    The world may have changed a little since these thoughts occurred to you. I am sure you have heard of GCSB, litigation relating to Kim Dotcom, and US heavy-handedness and illegalities relating to dealings with NZ authorities.

    It seems that if criticism relates to the US, it must be held to a higher standard. That has not been a feature of NZ law or society. If Mr Snowden was in NZ, he would have the benefit of a legal system not tainted by Guantanamo or such, and would be charged properly, be likely on bail, and have the benefit of a lot of public support. Even our somewhat vain media did a reasonable job of reporting on various indiscretions from the US, to the PM, and this would only have augmented our desire to give Mr Snowden a fair trial.

    The more relevant point here is that lawyers need to be aware of infringements and encroachments increasingly occurring on a global level, and the sacrifices of those involved in uncovering those. Mr Snowden is only one such person, but he deserves credit for his selfless sacrifices. He gave up a $200,000 a year salary. How many would, to uncover the NSA's spying on the public? It is in fact the US people who would be most grateful to him. Here you may have conflated the interests of the unfettered authorities spying on the public, and in the actual public interest itself. Our sympathy must be with the people of the US, and the world, and the likes of Mr Snowden are the few in the front line. I trust this assists in gaining a wider perspective.

    Hamish W
  • Patrick Wilson | 23 Jul 2014, 12:30 p.m. Agree 0
    I was interested in the responses, particularly from lawyers, which seem to take an “end justifies the means” approach. I have pointed out what is legally required for somebody to be a whistleblower (there is legislative protection for true whistleblowers in the US) and how Edward Snowden did not meet that criteria. I hoped for, not a personal attack, but rather a discussion about what a New Zealand legal response would be to someone conspiring to steal and actually stealing proprietary information, regardless from whom. Does our law find this to be acceptable if there is perceived (by whom?) to be some ‘greater good’? As to whether Edward Snowden has done more harm than good is a separate discussion (for example, see the article by Nathan Smith in the NBR of 28 March).
  • Ivan McIntosh | 23 Jul 2014, 12:54 p.m. Agree 0
    The law might not presently be on Edward Snowden's side, but sometimes the law is an ass and needs changing. I have every sympathy for Snowden feeling too intimidated to confront the authorities given the contempt for the rule of law in the US, and considering that such an action would see himself immediately fired and thereby never having an opporunity to expose the conduct of the US agencies. To demonise Snowden comes off, far too often, as merely a smokescreen to obscure the far more serious unlawful behaviour of the US government. Legal defences, such as necessity or duress, excuse otherwise illegal behaviour...tis not black and white. The world is grey, and sometimes the end does justify the means. As to whether this applies in NZ I would have to give far greater thought.
  • Patrick Wilson | 24 Jul 2014, 08:20 a.m. Agree 0
    To put Edward Snowden’s actions into context – say you are a lawyer who acts for a public group with a concern of illegal activity by a ‘greedy corporate’. A person has sought and obtained work with a law firm acting for the ‘greedy corporate’. That person has stolen that company’s information which may verify illegal activity and offers it to your client via you.

    A response that the ‘common good’ justifies the information being given to your client for public release assumes that the stolen material does not also contain information that will be damaging to innocent people if disclosed. That is a factual outcome from Edward Snowden’s activity. His disclosures have gone far beyond his professed highlighting of illegal activity (these negative consequences, with some exceptions, have largely not been reported outside the US so non-US readers may find it difficult to see the ‘grey’ for the black-and-white of Snowden’s “selfless sacrifices”). Just as one person’s ‘freedom fighter’ can be another person’s ‘terrorist’, so can a ‘whistle-blower’ actually be a ‘thief’ or perhaps worse, a ‘manipulated fool’.

    After a decade of working in cyber-security both here and in the US, I have some awareness of the NSA’s (and the GCSB’s) public benefit role (and also its higher standard compared to other similar agencies world-wide) that does not square with their uninformed and knee-jerk popular portrayal. One of the reasons we lawyers try to uphold the Rule of Law and deal with theft for what it is and not what it is romanticised to be, is to prevent unintended (although in Snowden’s case this is not so clear) ‘collateral damage’ from ‘the end justifies the means’ activities.

  • Ivan McIntosh | 24 Jul 2014, 09:57 a.m. Agree 0
    Protecting the rule of law is a good thing. But it doesn't mean slavish adherence to bad law, nor does it mean knuckling under to law created at the behest of interests concerned only with protecting themselves from oversight, control or the requirement to operate under the law themselves. You've come to the opinion, it seems, that Snowden is a thief, a manipulated fool. He certainly is the first, and may be the latter. However he also, in my opinion, performed a valuable service to the world in general, and one does not preclude the other. Your argument from authority on behalf of the NSA and GCSB is not convincing. Both agencies may do plenty of good in most respects, while in other respects be totally out of line and needing to be reined in. I am not really in a position to judge, other than I consider I am entitled to object to having my online habits, emails, posts and other information scrutinised and spied upon, and to approve of an individual who reacts against that. This does not necessarily mean I or anyone else should be blind to "negative consequences", but again it is a balancing act in a grey world. With reference to the example in your first paragraph, if the law firm had information on murders commissioned by that corporate, then would there not be a duty to disclose it? I would certainly be looking for one. If however there was merely disclosure of potential non-compliance with a regulation, then accepting the information could not be justified. All a question of circumstance and degree.
  • Nathan Smith | 24 Jul 2014, 11:14 a.m. Agree 0
    Ivan,

    You're absolutely correct about the greyscale world. Things aren't black and white and they never have been.

    But surely this applies to modern intelligence gathering requirements as well? Given today's technology, by necessity they will come closer to the everyday life of the average citizen. In the good old days, it was easy to send eyes and ears out to foreign lands where you knew all the bad guys were. There wasn't a liberal progressive on the planet who would have opposed the collection of Soviet missile telemetry in 1982. But now the bad guys are among us and using the same underground wires to talk that you use to call your friends. And yet the situation is the same: The NSA's job is to protect us from our enemies.

    The NSA and GCSB must see your communications whiz by as they look for the bad communications, because there is no other way sort them out. If there were, the NSA would have figured out how by now.

    In fact it's really unclear what Edward Snowden actually 'exposed' with his leaks. He tried to show the American public how the NSA was spying on its own citizens, but all he ended up exposing was an attempt to create a haystack of all the communications in order to find the needle of a terrorist or drug smuggler. Again, that's the only way to do this.

    All he ever did was show the US public how the NSA was doing the job they were designed and paid to do in a new and very complex world. That people were concerned their privacy was being eroded was a natural feeling, but ultimately misguided. Nothing in Mr Snowden's leaks has proven that the NSA spies on US citizens out of habit. Stepping back for a moment, it's pretty much impossible for the NSA (even with its enormous budget) to spy on all US citizens at once. That's what the media and Mr Snowden want you to think, but that's simply not happening. They don't care what you're doing. The NSA is only trying to look for the threats. That can actually be proven in Mr Snowden's documents because those are the tools the NSA created.

    So is Mr Snowden a whistle-blower, traitor or simply a very troubled young man? I'd say it's neither of the first two options, and probably the latter. The US public gained nothing by learning the secrets of the NSA, except to be morally outraged (if misguided in that outrage) and to learn a few things they maybe didn't need to know. But America's enemies lifted up the curtain of US espionage and set back the NSA and GCSB's intelligence gathering advantage significantly. Every free person on the planet is now in a more dangerous world because of Snowden's poorly thought-out political bias and youth.

    I think the nomenclature of what Mr Snowden actually is should rely on the content of his claims. And so far, his leaks have not shown he was justified in taking those steps publicly. If he ever needs to be defended legally, I think he'll find it very difficult.
  • Hamish | 24 Jul 2014, 11:49 a.m. Agree 0
    I take it you have no basis for your assertion as to how Mr Snowden would be treated in NZ, hence your avoidance of providing any. To make a claim amongst legal professionals maybe a little more burdensome than making it a random forum of which many exist today.

    Given that our level of discussion does not appear to be commensurate with our apparent qualifications, I simply make one final observation:

    Tis very interesting indeed that you have now used used the "ends justify the means" allegation against Mr Snowden, an random "young" and according to Mr Smith "troubled" individual. Yet, you have failed to hold to any such standard, the most significant world power, a power that has been abused domestically and internationally -- be in the Middle East or via the UN or WTO -- like no other.

    That you have failed to do so, as a lawyer, even in 2014 -- by now when many of the abuses of that power, be it in Middle East, or at the World Trade Organisation, continues to parade itself in the form of widespread destruction of our world, perhaps is a reminder of the huge variance in legal awareness of such realities within the profession.

    You may wish to explore whether amongst the vast abuses of powers today, which ones are justified by the so-called ends.

    I also dont see your reference to personal attack. If, as lawyers, you fail to see the gravity of such widespread abuse of power as to miss the point so badly to be focused on one exiled individual, you may have to quickly grow the thick skin to be called out for it, as no doubt a client is soon about to, anyway.
  • Ivan McIntosh | 24 Jul 2014, 12:17 p.m. Agree 0
    I do not allege that everyone is specifically spied upon, and I think most people know that. I realise it is mostly indiscriminate data collection. Nevetheless we are spied upon, even if indiscriminately, and most everything we have done online can be specifically spied upon if and when desired with, in the case of us "foreigners" no checks or balances whatsoever, and barely any in the case of US citizens.

    That, to me is dangerous. It surrenders freedom and privacy too easily....and recall how hard won those rights were in the first place, dragged from resistant kings, queens and governments of all stripes over centuries.

    Should the government have the power to search any home or any person "just in case" there might be something of interest? We require warrants for that, or reasonable cause to suspect something might be found. I submit that should still be the standard for the online world, notwithstanding the efforts of governments to chip away at what I consider some of the basic principles of free society.
  • Patrick Wilson | 24 Jul 2014, 04:55 p.m. Agree 0
    Hamish, this is not the forum for the non-legal matters you raise. I would be happy to answer your issues offline but you have not given your surname. I am in the Law Register if you would like to contact me. Similarly for Ivan.
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