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Legal outsourcing suit spotlights surveillance fears

By Tom Ramstack THE WASHINGTON TIMES | Saturday, May 31, 2008

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Some lawyers are worried that the growing practice of outsourcing legal work to overseas companies is undermining the constitutional guarantees that protect the privacy of lawyer-client communications, leaving them vulnerable to electronic spying by the federal government.

Paralegal firms in India are doing a booming business handling the routine legal work of American law firms, such as drafting contracts, writing patents, indexing documents or researching laws.

These so-called legal process outsourcing firms charge an average of about $40 an hour for their work, about one-quarter to one-third of what the work would cost in the United States.

But a lawsuit filed this month by the Bethesda firm of Newman, McIntosh & Hennessey argues that the constitutional guarantees that protect confidential communications between lawyers and clients may not apply when legal work is transmitted abroad - typically by e-mail, fax or telephone.

The lawsuit seeks to prevent such outsourcing until clients can be assured that their privacy will be protected against electronic monitoring by the National Security Agency and other government agencies.

Government officials would not say whether they are monitoring such legal communications, which could include documents about clients' criminal, marital or financial problems.

"We have no comment for you on the hypothetical scenario you describe involving India," said Dean Boyd, spokesman for the Justice Department's national security division.

Law-enforcement agencies that intercept electronic communications in the United States are limited by Title III of the Omnibus Crime Control and Safe Street Act of 1968 and by the Foreign Intelligence Surveillance Act (FISA). Title III is used to gather evidence for criminal investigations. FISA is used to collect foreign intelligence information.

Both of them require court orders based on a likelihood the evidence law-enforcement agencies seek will be found through the intercepts.

"The FBI does not tap electronic communications without court orders," said FBI spokesman Rich Kolko.