
Norwegian lawyer had visa withdrawn after private chat with client on Facebook - Deestan
http://translate.google.com/translate?sl=no&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.vg.no%2Fnyheter%2Finnenriks%2Fartikkel.php%3Fartid%3D10104089&act=url
======
belorn
Be you a lawyer talking privileged to a client, a priest talking privileged to
a follower, a hot-line worker talking privileged to someone thinking about
suicide, or a social service person talking to a child who been sexually
assaulted, every ones communication is equally collected.

This is after all the result of ubiquitous surveillance. When people learn
about it, the reaction is very simple. people stop talking. They do not call
the lawyer. They don't call the priest. The person thinking about suicide
won't call the hot-line, and the sexually assaulted child will stay quiet in
fear of people finding out. After Germany introduced their ubiquitous
surveillance law, this was exactly what the statistics ended up showing. I
wonder, while hoping not, if the same result will happen in the US too after
the current wave of news.

~~~
nikatwork
Bizarrely, this whole scenario is very similar to the privacy issues explored
in Brunner's 1975 book "The Shockwave Rider"[1].

Perhaps, as in the book, we need to setup an independent encrypted
communication service where people can vent their frustrations at pervasive
surveillance.

[1]
[http://en.wikipedia.org/wiki/The_Shockwave_Rider](http://en.wikipedia.org/wiki/The_Shockwave_Rider)

~~~
Zigurd
Never mind PRISM. The week before the PRISM leaks, the news was full of hack
attacks by state actors against US business and government targets. Why are we
emailing and talking in the clear? That's just dumb.

Moreover, the toothpaste can't be put back in the tube. Short of
transformative change in government, how do we know there isn't another PRISM
at another TLA?

The only way to restore confidence in communications is to secure them against
all attacks.

~~~
fnordfnordfnord
You're right, but I'd still like to see us make a giant collective bowel
movement on the spilled toothpaste, and generally make it so undesirable for a
government agency to use the toothpaste that they'll only do so when no other
alternative exists, or only when it's actually very important to do so.

------
Vivtek
Ah. This one is actually kind of credible.

But if the client was already accused of terrorism, then this monitoring was
on his end, and surely covered by a specific warrant. So this isn't
(presumably) the kind of massive data hoovering that is the primary concern;
every country does this kind of thing. (Back when I was running Despammed.com
I'd get requests from various LEOs - one came with a real live subpoena for
information related to an identity theft ring, and one was from Italian
authorities pursuing an insult to Mary.)

Where it gets to be a concern is revoking a guy's visa because he's defending
a terror suspect.

~~~
drrotmos
I know this isn't an opinion shared by the current US administration, but
having a fair trial for one's crimes is a human right. It's a right guaranteed
by articles 10 and 11 of the UN Universal Declaration of Human Rights.

Part of having a fair trial includes having legal representation, and the
ability to communicate with your legal council in confidence.

Eavesdropping on privileged lawyer-client conversations, regardless of
legality is outrageously indecent and _should_ be illegal. Revoking a lawyer's
visa because he is representing a particular client is equally outrageous,
especially due to the chilling effects it causes upon the legal community
making it much more difficult for suspects of serious crimes to find good
legal representation.

~~~
rayiner
It's not the view of any administration. The client was Norwegian-Chilean.
Foreigners not in the US don't have A right to counsel (which is the
constitutional basis of attorney client privilege in the US).

And I'd argue that's the way it should be. Every time courts declare something
unconstitutional, they use up limited political capital. I don't think
defending the "human rights" of non Americans is a valid use of that political
capital.

~~~
meepmorp
> Foreigners not in the US don't have A right to counsel (which is the
> constitutional basis of attorney client privilege in the US).

Do you have a cite for this? I know that there's no right to counsel in civil
trials, and this includes immigration courts (say in a deportation hearing),
but thought that criminal trials do guarantee right to counsel regardless of
citizenship.

Edit: sorry, I misread what you wrote. It's totally reasonable and doesn't
deserve downvotes.

FWIW, web searching does seem to indicate that there's no explicit
constitutional basis for attorney client privilege, and that it's just
provided for by US (and often, state) law.

~~~
DannyBee
Wong Wing v. United States, 163 U.S. 228 (holding that noncitizens charged
with crimes are protected by the Fifth, Sixth, and Fourteenth Amendments)

Fong Yue Ting v. United States, 149 U.S. 698 ((concurrence arguing that
noncitizens are protected by the First, Fifth, and Fourteenth Amendments)

Almeida-Sanchez v. United States, 413 U.S. 266

Bridges v. Wixon, 326 U.S. 135, 161

etc. The only holding otherwise is the 4th amendment one of a number of
appeals courts.

~~~
meepmorp
Thanks. I kind of assumed that those protections extended to non-citizens, but
it's nice to have actual case law.

------
anologwintermut
I'm shocked, shocked to find that the NSA is spying on a foreign terror
suspect in a foreign country communicating with another foreign person.*

Actually, I am shocked. Why'd the lawyer use Facebook for privileged
communication? Why does the NSA care about someone who posted a threatening
video in Norway? Hint: they don't. If they looked, it's probably because
Norwegian Intelligence asked them to.( Which might well be a huge legal
problem, for Norway)

In fact, it seems there is little evidence that any of this happened. Marking
messages as spam does not seem like something the NSA would do and as to
denying him entry into the US: if US gov is in the habit of denying visa's to
those who represent a foreign terror suspect, they didn't need Facebook to
establish that.

*Note, attorney client privilege doesn't apply to cases completely out of US jurisdiction with lawyers who are not lawyers in the US

~~~
polemic
It's hard to say without knowing what was said, but the fact that his visa was
withdrawn on the basis of a conversation between a laywer and his client is
alarming.

In other words: did the US government consider him a threat, or was it a
tactic to infringe the alleged terrorist's right to a fair trial? If the
latter, then it's an abuse of surveillance privileges.

~~~
spinlock
It would be alarming if a lawyer and his client were using facebook for
privileged communications. That's your first hint you need a new lawyer. If
they can't understand Facebook's TOS they can't possibly defend you.

But, seriously, these are foreign nationals. We've had a longstanding
distinction between foreign and domestic surveillance. Think of it this way,
would you really want to need permission from Pakistan to surveil Osama bin
Laden? He was an enemy of the USA and he was being harbored by Pakistan.
Different rules apply in that case than in a domestic case.

~~~
cmircea
Horrible example. In the case of Osama the US could have broken each and every
law in Pakistan and nobody would give a shit.

This is about a suspect, at best. Not the world's most wanted terrorist.

------
vidarh
Here's a rough/quick manual translation:

\---

Private Facebook-correspondance between John Christian Elden and a client
charged with terror offenses was monitored by American security services
(NSA), the lawyer claims.

Elden was discussing scheduling of the case with the Norwegian-Chilean client
(20), who was charged with publishing a video where he threatened Norwegian
officials and the royal family. Elden says that he has documentation that it
was American authorities that were snooping on his Facebook-profile, TV2
writes.

\- That we as Norwegians are under surveillance by American authorities, I am
not particularly happy about. It is uncomfortable to know that someone
continuously reads what you write at communicate with other persons via what
one believes is a closed channel, says the lawyer.

The messages of the person in question got deleted on an ongoing basis, and in
the chat-log they are now marked as "identified as offensive or marked as
spam". Four days after the conversation, the well known lawyers visa was
withdrawn.

Elden says his client wished to show up in court, but that he no longer is
able to contact him after the Facebook-profile was deleted.

Facebook is one of the websites mentioned in The Guardian and Washington Posts
revelations of NSAs surveillance of foreign citizens in the PRISM project.
Ministor of Justice Grete Faremo has sent a request to the US, where the
justice department requests a clarification about whether or not Norwegian
citizens have been under surveillance.

\---

The main thing to note is that the bit about the deleted Facebook profile was
unclear in the machine translation. It appears quite clear in the original
article that the reason his communication with his client ceased was that the
client used Facebook as his only communications-channel with his lawyer, and
so the deleted Facebook profile means Elden is _unable_ to communicate with
his client.

It is not made clear whether he suspects or claims that American authorities
caused the profile to get deleted too, or if the client got spooked by the
deleted messages.

------
Deestan
Summary: Lawyer conversing with client accused of terrorism, via private
Facebook messages. Client's messages suddenly deleted as "spam", and 4 days
later the lawyer was notified that his US Visa had been revoked.

~~~
smartician
In other words: A Norwegian lawyer notices something weird going on with his
private Facebook messages, and four days after this, his visa gets revoked.
Later, after reading about PRISM in the morning newspaper, he's convinced that
the NSA has been spying on him.

It's obvious! After all, spy rule #1 is "make sure your subject knows he's
being spied on by marking his messages as 'infringing or spam'". And it's
totally impossible that the visa thing coincided with this.

~~~
einhverfr
Twice in my life I have noticed things that made me wonder. The first time I
currently think was in my imagination. This time I am not so sure. I am
noticing for example a cell phone whose battery level drops when connected to
the charger and not in airplane mode. Google chat messages apparently long
delayed. That this started after the Snowden leak makes it even more
suspicious to me. I am an American citizen residing abroad.

I could just be seeing things that aren't there. However as a vocal opponent
of this sort of surveillance, it would make sense that I would be caught up in
some sort of filter especially as the hunt for Snowden continues.

(So note: If you are listening I think you might be. I am a patriot, as I
believe Snowden is. I have not provided any active assistance for him, but I
applaud those who do. My wife thinks I am too political but at some point my
loyalty to my country, the United States, compels me to stand up to this sort
of thing.)

~~~
Filligree
Battery levels will drop when connected to the charger - because of code in
the battery controller. It's bad for the battery to stay at 100% for any
amount of time, so the controller will cycle it in the 95-100% area. Smarter
controllers will hide what they're doing.

Google chat messages can be delayed for any number of reasons, ranging from
internal glitches to "Your network connectivity was bad at the precise moment
the message was attempted to be delivered, thrice, and it retries at
exponentially longer intervals."

~~~
einhverfr
But go from 5% to 0%? I am used to glitches but there are oddities here that
are either hardware issues (battery discharging while low and connected to the
charger), network issues. This is beyond what I am used to. Again, I could be
connecting the dots incorrectly but I would not be surprised if I am right :-P

------
woof
* The lawyer John Christian Elden defends several terror suspects, including Arfan Bhatti (now arrested in Pakistan) who was charged for terror planning agains the US embassy in Norway several years ago.

* He disucussed a court meeting with another client on Facebook, it was not a attorney–client privileged discussion. Elden was briefed by the FBI on their e-surveilence in 2005 (with a group from Norwegian Justice dept.) so he probably has a good grasp on how private Facebook really is.

* His US Visa was revoked four days after the conversation, the US embassy in Norway cites "Homeland Security"

* Eldens comments gives the impression that he believes he's automaticly flagged, while still beeing a friend of the US.

More facts:
[http://translate.google.com/translate?hl=en&sl=no&tl=en&u=ht...](http://translate.google.com/translate?hl=en&sl=no&tl=en&u=http%3A%2F%2Fwww.dagbladet.no%2F2013%2F06%2F11%2Fnyheter%2Finnenriks%2Fovervakning%2Fusa%2F27658066%2F)

------
werid
This lawyer is a known figure in Norway and not some guy looking for his
fifteen minutes of fame. He has defended people on terrorism charges in Norway
before, and gotten them acquitted on those charges (while other lesser charges
still stuck).

On his twitter, he claims that the US embassy doesn't know why his visa was
revoked, only that "Homeland security's computers" are telling them it's
revoked.

This is then connected to NSA leak by journalists. He is still waiting for a
proper explanation from the US embassy.

------
Zimahl
Isn't the NSA supposed to be for foreign intelligence only? I don't find it
shocking that the US would track the messages of an accused terrorist. What I
find funny is that a lawyer used Facebook for privileged communication.

------
einhverfr
Just remember, if you ever want to visit the US and you are not an American,
you must be much more supportive of American foreign policies than most
Americans are!

------
tropicalmug
Isn't this a bigger deal than just monitoring supposedly private Facebook
communications? This would also violate attorney-client privilege too, right?

EDIT: This is just naïveté on my part.

~~~
saraid216
Why would the not-an-American-citizen lawyer speaking to a not-an-American-
citizen have attorney-client privilege from the perspective of an American
governmental organization?

Edited to add: It's remarkably difficult to quickly find information about
attorney-client privilege in settings other than US, UK, Canada, and
Australia. I found a brief mention that the privilege does not apply to in-
house counsel in the EU, and that Brazil breaches it with a court order, but
that's all. I'd hope I could find more given some more time, but I need to get
back to work.

~~~
anaptdemise
Ha. Also, what kind of attorney would have the kind of conversation covered
under attorney client privileges on Facebook, PM or otherwise?

~~~
nullc
The same kind that run third party provided spyware on their personal
computers in order to take exams in law school.

(In other words: Practically all newly minted attorneys in the US)

There is no education in law school in the US at least on responsible data
handling, and— in fact— schools often direct students to behave irresponsibly
with respect to data security.

~~~
andreyf
_The same kind that run third party provided spyware on their personal
computers in order to take exams in law school._

Do you have a specific case in mind?

 _schools often direct students to behave irresponsibly with respect to data
security_

Why would they do that? Reference?

~~~
nullc
Sure, the practice is ubiquitous

Example software and policies are things like:

[http://www.exam4.com/](http://www.exam4.com/) (used by Harvard, George
Washington, etc)

[http://www.law.wisc.edu/help/for_students/securexam/](http://www.law.wisc.edu/help/for_students/securexam/)

[http://www.law.columbia.edu/academics/registrar/Laptop_Exams](http://www.law.columbia.edu/academics/registrar/Laptop_Exams)

[https://www.law.umich.edu/currentstudents/registration/exams...](https://www.law.umich.edu/currentstudents/registration/exams/Pages/default.aspx)

Most (all?) schools offer students the ability to take their exams on paper,
but doing so is a substantial competitive disadvantage because examinations
are usually timed and writing on paper is much slower, students are marked
down for legibility and copy-editing noise, etc.

I don't have a citation studying it— but by all appearances it's only a small
minority of students that opt out of using their laptops. ("Most Stanford Law
School students take their examinations on laptops")

IIRC the California bar exam now also uses one of these spyware exam packages.

I'm mostly amused that we have a whole information-security critical
profession who is nearly required to behave negligently wrt information
security from day one. :P

~~~
andreyf
Wow, no kidding. Why the heck could it need "Administrator level account
permissions" (both on OSX and Windows [1])? I guess you could run it in a VM
and wipe it afterwards.

1\.
[https://www.examsoft.com/dotnet/Default.aspx?f=mtlaw](https://www.examsoft.com/dotnet/Default.aspx?f=mtlaw)

~~~
nullc
You're prohibited from running it in a VM, and at least some law schools have
the students sign some form under penalty of the school ethical code yadda
yadda that you won't do that.

(And then— some students do it anyways, because thats the only way to use it
on their otherwise non-supported system or because of some other
incompatibility. And nothing comes of it... I guess until something does.
Better not make too many enemies)

~~~
andreyf
A friend in law school to explained that this software is used for in-
classroom exams and prevents any other programs from being used while a
student is taking the exam, as well as saving all the work incrementally (in
case the computer crashes).

It's certainly not the most secure thing to do, but they need to focus on
studying law, not securing systems. I imagine that when lawyers are working on
cases, they might end up using more secure devices than their old college
laptops.

------
etchalon
This story reeks. None of it makes any sense (the messages were marked as
SPAM?).

I'm filing this under the same rubric mentally as all those tea party lunies
who suddenly swore their legitimate, random audit was caused by their
membership in the Tea Party.

~~~
Filligree
Elden is a top-flight defence lawyer. He's not any good with computers
(clearly..), but I'm sure he told the truth as he understands it.

------
platz
Two Facebook articles on foreign privacy events in one day? Where were these
reports before Snowden hit the news cycle?

~~~
stackedmidgets
Before that, you'd be voted down and hollered at because there would be little
credibility for it among common idiots. This has been the case for years,
because a lot of the information about the NSA published by journalists was
built on anonymous sourcing. Now, there's more documentary evidence available
to support it, so the US government no longer enjoys the benefit of ignorant
doubt.

Now, these stories can gain traction.

~~~
untog
Conversely, these stories were previously ignored because of a lack of
supporting evidence. Now that US surveillance is a talked about topic, these
stories are gaining traction without people going through the critical thought
processes they otherwise would have.

Neither of these options are provably false.

------
XorNot
Ok can anyone who reads Norwegian actually translate this properly? Because
the Google translation certainly doesn't capture the nuance, and their are
some notable inconsistencies in it - namely, why is someone's lawyer "no
longer in contact now that their Facebook profile has been deleted".

------
deshmane
what I am curious about in this and similar stories is whether the officials
actually carry out due diligence in making sure the profile actually belongs
to the person in question. after all, anybody can get an email and spoof a
profile.

------
gcb0
This is the same a lawyer sending private information via a post-card. Plain
irresponsible.

But then again, which layer knows how to send PGP'ed emails?

------
brown9-2
Worth noting that the lawyer says he has evidence but has not presented it,
and until then it's just his word.

------
mariuolo
Just tell me what kind idiot would use Facebook for a private conversation.

~~~
vidarh
Who are you talking about? Elden or his client? The article implies Facebook
was Elden's only way of reaching his client, so the "idiot" appears to have
been the client. If the client is not very technical it is not unreasonable to
assume the client felt Facebook was easier for him to use to communicate
covertly with Elden and didn't want to give out a phone number or other
details.

~~~
mariuolo
Either. Facebook retains forever anything done or written on their platform
and that's a well known fact.

Why anyone would use it for anything remotely confidential, is beyond me.

------
ttrreeww
This is the generation in which freedom was lost.

~~~
hughes
Or perhaps the generation in which freedom is to be reclaimed? It's too early
to tell.

~~~
TillE
It's extraordinarily difficult not to be pessimistic when you see the abuses
initiated by one party continued and expanded by the other, after bleating on
about their supposed opposition to such programs.

I'm convinced that the Democratic Party is the biggest roadblock to
accomplishing meaningful change in the US. It exemplifies the mushy,
frightened middle in the worst possible way, and should be reviled by anyone
with principles.

For example: [http://www.people-
press.org/files/2013/06/6-10-13-4.png](http://www.people-
press.org/files/2013/06/6-10-13-4.png)

~~~
nikster
It's hard to see any difference between Democrats and Republicans at this
point. The entire system needs to be thrown out.

I remember Ralph Nader was once asked why he is running for president when his
candidacy might take away crucial votes from the Democrats and let the
Republicans win; Wouldn't it be better if the lesser of two evils won? His
answer: The difference between the Republics and Democrats is "the difference
between Humpty and Dumpty".

At the time, I didn't agree with him. But when I see what's going on now; how
the Obama administration is basically run by the CIA and US big business; then
I have to think of this quote and how right he was.

