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“How can I keep my personal information private?” has been a hot topic of recent. We’ve used encrypted VOIP, secured emails, locked documents, and other high-tech protective measures, but there is an even stronger, legally protective measure that better protects your confidential communications than the high tech gizmos offer.
Keeping Private Bits Private
We now know that President Obama’s assurances that NSA wasn’t ‘actually abusing’ its surveillance programs are untrue. A leaked audit shows that NSA violated its own privacy rules - and in some cases the law - thousands of times over just a one-year period. Many assume this means the president knew about the scale of the NSA’s privacy problems all along and was trying to mislead the public.
But another possibility is even more troubling: He might not really know about the extent of the NSA’s spying and privacy violations, and that these secret agencies are out of control. Case in point - and hot off the press - NSA reveals how its naughty agents spied on their lovers.
And beyond NSA, a secretive U.S. DEA unit funnels information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help launch investigations of Americans, discloses Reuters. Although the cases rarely involve national security issues, documents show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also from prosecutors and judges.
Unfortunately, Congress and the President seem to lack interest in seriously addressing these out-of-control agencies. Is comes as no surprise that a recent national poll from Public Policy Polling showed that Congress has only a 9% favorability rating and that 85% of voters view Congress in the most negative light. This makes Congress less popular than cockroaches, lice, root canals, colonoscopies, and traffic jams, so says the poll. And Obama's ratings are no better.
With Washington being confronted on privacy issues, QE tapering, excessive debts and debt limits, gun control, and more, could the sounds we hear of war drums beating against Syria be a convenient diversion? When all else fails, they take you to war.
Meanwhile, intelligence intercepts are used to ‘recreate’ an investigative trail to effectively cover up where the information originates, a practice that many legal practitioners say violates your Constitutional right to a fair trial. If you don't know how an investigation began, you lose legal rights to review potential sources of damaging evidence.
What’s more, relying upon the 5th amendment, which states that no person shall be compelled to be a witness against themself, today has limited meaning. Prosecutors often use a loophole that can force you to incriminate yourself if information is in written form. A 1984 U.S. Supreme Court case held that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. This has been interpreted to mean that a prosecutor can subpoena records you’ve created from different sources and then use them against you in court.
Only after mass media pressure did NSA finally admit that it has ‘scooped up’ thousands of emails and other communications by average Americans with no connection to terrorism. While this comes as no surprise to many, it’s likely only the tip of the data mining iceberg.
When these actions are exposed, the offending bureaucrats attack those who expose them. They do nothing to temper their illegal actions. In the case of the NSA’s domestic spying, they justify their lawlessness by a vague threat of terrorism and an unending war that only they can define...or discount the offenders as one-off, jealous rogue employees.
Today, we see an array of official attacks on reporters and whistleblowers, and even their families, in a blatant effort to intimidate these courageous people who dare to expose illegal government actions.
What’s worse, in most cases, your personal records held by trusted third parties aren’t necessarily protected.
Plaintiff lawyers and prosecutors generally issue very broad summonses forcing third parties to hand over all personal and financial records. These summonses are commonly used in civil cases, tax cases, and in criminal prosecutions. As an ATLA named Top 100 Trial Lawyer and former judge, I can attest first hand that for many years this has been the general practice, not the exception.
Today, the norm is government agencies, plaintiff lawyers, and others snooping into every private part of your life. Emails and telephone calls, video cameras in the street, postal agents inspecting your postal mail, and other covert monitoring of personal and private communications are only a few examples.
To those of us that still cherish privacy, liberty, and individual rights, this is grossly outlandish and positively revolting.
The ultimate result is that the mere threat of surveillance exerts a strong influence over individual behavior, beliefs, and personal feelings, even if that threat is never realized. When individuals fear expression of personal thoughts in case they might be punished, they simply reduce their expression of thoughts to others. This brings about a widespread sense of mistrust. And once the individual is restrained from thinking and speaking freely, they will eventually be deprived of everything else. Once free speech goes, the rest goes too.
Fear is a powerful motivator.
While there is a growing list of high-tech software designed to encrypt and circumvent the snoopers, there is a far more legally potent measure that we are able to offer our clients. Even if the snoopers are listening in on this email, I don’t mind sharing what this means.
Most importantly, this legal tool represents one of the last vestiges firmly established in our precious system founded on the Rule of Law. If the Rule of Law falters, then the last delicate thread that holds the complex quilt of society is unraveled, and the data mining will be pale in comparison to far more important life-concerning issues.
Let's take a look at what we know as of now.
The list of companies that have co-operated with the U.S. government include Microsoft, Yahoo, Google, Facebook, Paltalk, YouTube, Skype, AOL, Apple and others. And thanks to Snowden, we have learned how the British Government Communications Headquarters (GCHQ), assisted by NSA, has had access to a large number of undersea cables and techniques to suck up vast amounts of your personal data from the cables that carry the Internet.
Are we to say that no lawyer should professionally use any of the above companies or cables or sources we know that traffic through the cables? That’s impossible.
And can you ever be certain that any technology, whatever the claim of privacy it portends, can ever be built to withstand the powerful interception devices which are doubtless in the possession of the NSA, DEA and GCHQ?
We simply don’t know who or what is ultimately behind the secured networks, or if the owners will buckle down under government threats. Just ask American businessman Ladar Levision, who under threat of U.S. government ruin and criminal action, abruptly shut down his U.S. based secured email Internet business, Lavabit. This is apparently the secured email server that Edward Snowden was using.
Secure encrypted email server owners can become so strongly intimated by government action that they can quickly shut down or co-operate (or both) when personal threats against them arise. After all, they are just human too. This means even with the most high-level technical software and devices, and revising and altering your operations on a recurring basis with the investment of considerable time and resources, the high tech deterrent is in fact not a secure reality.
How Do We Protect Your Privacy?
The most sacrosanct assurance I can provide is the long established legal doctrine of attorney-client confidentiality. This legal doctrine states that communications between a client and attorney is privileged, and is considered almost sacred, holy and inviolable.
This privilege afforded legal counsel and the client is basically the strongest measure of confidentiality which is designed to allow free and open communications between our office and our clients. Except for extremely limited extraordinary circumstances, our communications are not breachable by another party or by a government organization, unless you, the client, consent.
This means that even we cannot waive the confidentiality of your communication. Only you, as a client, have that power. An exception, for example, is if the communication is made to facilitate or indicate the intention to commit a crime. Otherwise, communications and information is secure.
This legal privilege protects all communications between a professional legal adviser – an attorney, solicitor, or barrister - and even his or her clients from being disclosed, without the permission of the client. The privilege belongs to the client and not to the lawyer. The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.
While there are some other very limited areas of privileged communications - for example with your accountant or physician - that privilege is significantly more limited and much weaker than the attorney-client privilege.
And for tax and other financial matters, the better practice is for your legal counsel to retain an accountant as a consultant on your behalf, which then allows accountant information and communications to be protected through the attorney-client privilege.
What the Attorney-Client Privilege Really Means
How can a client feel secure from the potential risk of having sensitive information fall into the wrong hands?
In an extremely complex and competitive business climate saturated by consultants, technical advisors and outside experts, you should consider one of the fundamental advantages of retaining them through legal counsel. By its very nature, the attorney-client relationship affords a distinct, invaluable right to have communications protected from compelled disclosure to any third party, including business associates and competitors, government agencies and even criminal justice authorities.
The attorney-client privilege can be traced all the way back to the Roman Republic, and its use was firmly established in British common law as an important part of the Rule of Law as early as the reign of Elizabeth I in the 16th century.
As the privilege has evolved, countless policy justifications have played a role in its development. At its most basic, the privilege ensures that if you seek legal advice for asset protection and offshore planning through our office, you can be free of fear that your secrets will be uncovered.
With the security of the privilege, you can speak frankly and openly to us, disclosing all relevant information and creating a 'zone of privacy'.
Even today with draconian data mining everywhere, this legal doctrine still firmly applies to protect communications with our office, and to keep the communications confidential. The United States Supreme Court has confirmed the principle. So too in England and Wales, and Australia, and Canada, and throughout much of the other Western legal systems founded upon the same British common law.
The above doesn’t mean that the high tech snoopers still won’t intercept encrypted communications, but it does mean that those communications are legally protected as a matter of law and can’t be used in a proceeding against you.
For this reason, in my humble opinion, the attorney-client privilege to confidential communications is better than the best high tech encrypted measures that come and go with marketing hyperbole and uncertainty. Our law firm still utilizes the secured services, but we believe long established legal doctrines are more firmly established and reliable to protect your privacy.
This also means that if you insist upon maintaining privacy for your personal information, you should only discuss and implement asset protection strategies and offshore planning through legal counsel that is competent in the most important aspects of your planning. Follow this link to learn how to achieve quality asset protection, and what to look for in a top-notch legal planner.
This remaining vestige of the precious Rule of Law is more than just a fine thread holding together the remnants of your legal rights. It is well grounded and firmly entrenched in our legal system. If that thread breaks holding the complex quilt of society together, there will be far bigger concerns to worry about than data collection.
A back up plan to a crumbling social and political system is still necessary: Plan B when the master plan fails.
Going Offshore is (still) Perfectly Legal
And as much as your government desperately wants to keep you and your hard-earned money closely monitored under its grip, there are still plenty of solid reasons and opportunities for going offshore to protect assets, invest, live, diversify, enhance privacy, estate planning, and much more. It’s more than just Plan B. It’s common sense.
Follow this link to a former newsletter that compares offshore vs. domestic asset protection and compare for yourself.
You still need to protect the one thing that you control: your assets and an escape route to freedom.
Among your international planning tools should be carefully planned offshore banking, investment and financial arrangements, and enhanced privacy. You might consider a foreign residence, or even a second citizenship. Edward Snowden realized only too late how advanced planning might have benefited him. And you don’t need to be an NSA whistleblower on the run to benefit from offshore planning.
Simple and effective offshore strategies protect your assets not only from frivolous claims, but from oppressive governments and outrageous taxation. Visit our many complimentary Past Articles to read more.
How to Legally Protect Your Assets, 2nd edition, is an excellent primer on the above topics, and more, if you are just getting started. Offshore Living & Investing, 2nd edition, is another good option. Both are available directly from our site.
If you want to review your own international planning options, get started now with an initial review of your personal situation right here.
David A Tanzer, Esq.
JD, BSc, Ph.D (Hon)
Vail, CO USA:
Tel. (970) 476-6100
Fax (720) 293-2272
Auckland, New Zealand:
Tel. (64) 9 353-1328
Fax (64) 9 353-1328
Brisbane, Australia:
Tel. (61) 7 3319 6999
Fax (61) 7 3319 6999
(Licensed to Practice Law in U.S. States & Federal Courts; Assoc. Member Auckland, N.Z. District Law Society - Foreign Lawyer; & Assoc. Member Queensland Law Society, AU - Foreign Lawyer)
The comments herein are not intended to constitute a legal or tax opinion regarding any specific legal or tax issue as additional issues may exist; does not reach a conclusion with respect to any specific legal or tax issue addressed herein or any additional issues not included; and cannot be used for the purpose of avoiding legal or tax obligations or penalties with respect to issues in or outside the scope of matters discussed herein.
(c) Copyright by David A. Tanzer & Associates, P.C. All rights reserved. Except as permitted under the United States Copyright Act of 1976, as amended, and pursuant to the laws of all countries, no part hereof may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, electronic or otherwise, without the prior written permission of David A. Tanzer & Associates, P.C. Reprint in whole or part strictly prohibited unless prior written permission is granted. International Copyright protected under the Berne Convention, Universal Copyright Convention and laws of all other Copyright protected countries, and consistent with the World Trade Organization TRIPS.
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