[Advocacy Advisors] National Security Letters served on individuals

Mon Aug 5 01:49:08 UTC 2013

On Fri, Aug 2, 2013 at 3:37 PM, James Salsman <jsalsman at gmail.com> wrote:

> Luis,
>
> Would it be legal to adopt a policy that any individual served with a
> National Security Letter must immediately request a transfer to a
> department headed by a different C-level officer?
>
> If so, is the Foundation willing to adopt such a policy?
>
Hi, James-

It's not clear to me what the purpose of such a policy would be. I can
think of two possible goals, neither of which really work.

If the goal is "frustrate the purpose of the NSL by depriving the recipient
of the authority to respond to the NSL", then the FBI simply continues to
send NSLs to whoever we hire as a replacement, until we have no one left in
ops. At that point, they start working their way up the chain and we're
left with (1) a crippled organization and (2) eventually a letter to the
ED, who is legally compelled to make the thing happen anyway. Or, if the
policy is public, they just start with the ED.

If the goal is "alert the community that NSLs are being sent" (or if that
alerting happens accidentally, as a result of public knowledge of the
policy, + goal #1) then that's probably a violation of the relevant law,
which allows disclosure only to "those to whom such disclosure is necessary
to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request" (18 USC 2709(c)(1),
http://www.law.cornell.edu/uscode/text/18/2709).

Note that the statute was updated a few years back to make it quite clear
that you're allowed to talk to your lawyer about these when you get them,
recent disclosed letters appear to refer clearly to that permission, and if
our legal department got one, we'd be eager to fight. (That said, it does
probably make sense to remind our employers that if they get an NSL, they
are clearly entitled to speak to LCA; we'll look into how best to do that.)

Luis

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-- 
Luis Villa
Deputy General Counsel
Wikimedia Foundation
415.839.6885 ext. 6810

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