The Council of Bars and Law Societies of Europe (CCBE - an umbrella organisation for European bar associations) recently published an interesting report on the threats posed to legal professional privilege by state surveillance and Cloud storage looking across Europe at the different levels of formal protection. The thrust of the report is probably captured in this short excerpt.
It is particularly concerning that the report has identified this general trend. Where data is stored in cyberspace and/or transmitted by a telecommunications network, in many jurisdictions that is subject to surveillance by the security services without any specific or effective provisions to protect legal professional privilege or professional secrecy. In many countries there are important regulatory gaps both generally and in regard to legal secrecy or privilege. Furthermore, even where there is a statutory basis for access to information by national security services (including secret searches of premises, computers, storage facilities etc.), these powers are very broad and sweeping and there tend to be no express legal safeguards for such privileged or secret material.
If there is a requirement for a warrant, it is seldom judicial and is usually administrative, and such judicial protections as exist are often of possibly limited effect, such as the use in the United Kingdom of a Tribunal which receives only a limited number of complaints as, due to lack of any notification, a surveillance subject (for example, for the purposes of his report, a lawyer) will be unaware that he has been the subject of surveillance and legally privileged/secret information may have been compromised. He will not know he might have a complaint, so cannot complain. If a complaint is made, the Tribunal's deliberations are held in secret and its specific decisions are not made public. By contrast, in Ireland, although there is no single mechanism equivalent to the UK Regulation of Investigatory Powers Act to govern virtual surveillance by the security services, there is a variety of individual measures, some requiring a warrant from a judge, but others, more concerningly, where the warrant is issued by a senior police officer. As in the United Kingdom, there is no specific protection for privileged information.
A further area of regulatory uncertainty arises due to the circumstance that, in some countries the way the relevant lawyers' information protection is worded, it is not clear whether the relevant provisions apply to information stored at outside service providers, like hosting or cloud computing service providers. Such uncertainty is a problem in Slovakia and in Hungary, and the Italian criminal code also defines the protection of a defence counsel with the law office in mind. Such uncertainties could encourage law enforcement agencies to turn directly to the cloud service provider for information stored in his server or servers (without a court warrant in some countries), instead of going to the lawyer’s premises with a proper warrant issued by judicial authority.
The debate on Legal Professional Privilegemore generally is likely to warm up somewhat here in the UK. The accountants have sought legal professional privilege for tax work (the Supreme Court deined them it) and but may now gain it via Alternative Business Structures. The News of the World hacking scandal led some in-house lawyers to wonder privately whether the wrong doing exposed there might lead to pressure to deny in-housers LPP (theres already a denial in relation to EU competition investigations). There may be more to come on the role of lawyers in that scandal: in-housers and prviate practtitioners have been embroiled in a range of difficulties (for some - but not all -of them see these blogposts). And there are some signs that regulators are increasingly interested in the role of lawyers in regulatory problems (a leading member of the European Parliament recently tried to introduce law designed to imnhibit professionals engaging in what she called regulatory arbitrage and what Doreen McBarnet would call creative compliance, for example.) The legal professional privilege wind is not blowing all one way, though the professions will resist any change with vigour (and will be aided by the courts who elevated privlege to a fundamental right with a bit of historical revisionism some time ago and show no signs of letting go of that).