US surveillance powers threaten UK legal privilege

26 February 2016

US authorities could access legally privileged information held by barristers in England and Wales, the Bar Council has warned its members.

Guidance issued to all barristers in England and Wales, explains that the Patriot Act and other surveillance laws could allow US authorities to access confidential, legally privileged data held in the cloud and on external back up services which use computers owned by US corporations.

The warning, issued by the Bar Council IT panel, also advised barristers that such data may be accessed without their knowledge.

Jacqueline Reid, Chair of the Bar Council IT Panel said: "The USA Patriot Act and the USA Freedom Act confer considerable surveillance powers on US authorities. Barristers routinely retain legally privileged information relating to their clients, and they should be aware that these surveillance powers can place the confidentiality and security of this highly confidential information at risk."

Barristers have been warned to:

  • Check where legally privileged and confidential information is stored

  • Check whether any company which stores professional information has US parentage, and if they could be subject to the provisions of the US Patriot Act, and

  • Consider encrypting access to data placed on external servers. 

 The following note was sent to all practising barristers in England and Wales yesterday evening in BarTalk, the fortnightly publication for the profession.

Practice & Ethics Update

The Bar Council's IT Panel looks at how US legislation impacts on the Bar in England & Wales

We frequently read of the long arm of US legislative influence stretching well beyond the borders of the United States. But does US legislation really affect the everyday working life of the Bar?

 
The Bar Council has always emphasised two important responsibilities for each barrister - you should keep "personal information" (as defined by the UK Data Protection Act) secure and client data confidential, even after you have ceased to act for that client. Detailed guidance on the former can be found here.
 
Personal information can, however, be inadvertently disclosed to the US authorities without your knowledge and agreement. This occurs when it is stored on computers which are owned directly or indirectly by US corporations. There are a number of ways this can happen: Cloud services (for storage of case files, emails and accounts); external hosting of chambers' files (back up or disaster recovery) and chambers' administration software (diary/fees); miscellaneous IT services.
 
The US Patriot Act and other US laws confer powers on US authorities to access personal information stored on facilities provided by US persons or companies, without the knowledge or consent of their customers - yourselves. The result is that you may inadvertently infringe the provisions of the Data Protection Act.
 
The Bar Council has therefore published guidance on what you should do where there is a risk that personal information may be stored by US owned companies here. This amounts largely to a "due diligence" exercise to ascertain what the real risks are, and how to avoid these. To assist you, we have also provided a detailed series of questions which you may wish to ask your software providers.

Practice & Ethics 

The Bar Council has recently published the following new documents in its Practice & Ethics hub:

US Access: Data Protection Act Guidance - February 2016
Outsourcing and the use of litigation assistants - February 2016
Retainers, fee arrangements and non-standard work arrangements - February 2016
Money Laundering and Terrorist Financing - January 2016

Additionally, the below documents have recently been updated:
Statue law databases available online 
Information Security
Advocates called as witnesses

ENDS

Notes to Editors 

  1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

  2. The Bar Council represents barristers in England and Wales. It promotes: 

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board