[Advocacy Advisors] National Security Letters served on individuals

Mon Aug 5 03:03:54 UTC 2013

Is there a legal policy which would immunize the Foundation against
such goverment violations of the Fourth Amendment?

On Sun, Aug 4, 2013 at 8:24 PM, Luis Villa <lvilla at wikimedia.org> wrote:
> On Sun, Aug 4, 2013 at 6:55 PM, James Salsman <jsalsman at gmail.com> wrote:
>>
>> Luis,
>>
>> Thank you for your very thoughtful reply. I am far more interested in
>> preventing our readers from investigation because of their whims of
>> curiosity than in frustrating the NSA or alerting the community to
>> surveillance.
>
>
> I suppose that's what I eventually meant by "frustrate" the NSA; i.e.,
> frustrate their purpose - sorry for the lack of clarity. Most likely, trying
> to game the system with something like this won't work - you really need to
> either press for new legislation or fight the request in the court system.
>
>>
>> Are Foundation employees served as individuals allowed to talk to you
>> about them? If so, are you allowed to talk with your colleagues in the legal
>> department about the letters?
>
>
> They're allowed to talk to their legal representatives; as employees, that's
> us. Realistically, in this sort of situation they'd probably go directly to
> Geoff; exactly how far he'd share with the rest of the team would probably
> depend on the circumstances. It's entirely possible he'd share only with
> outside counsel, but he might inform one or two other team members to manage
> the case as well.
>
> Luis
>
> Luis
>
>>
>> Best regards,
>> James Salsman
>>
>>
>> On Sunday, August 4, 2013, Luis Villa wrote:
>>>
>>>
>>> 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
>>>
>>> NOTICE: This message may be confidential or legally privileged. If you
>>> have received it by accident, please delete it and let us know about the
>>> mistake. As an attorney for the Wikimedia Foundation, for legal/ethical
>>> reasons I cannot give legal advice to, or serve as a lawyer for, community
>>> members, volunteers, or staff members in their personal capacity.
>>
>>
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>>
>
>
>
> --
> Luis Villa
> Deputy General Counsel
> Wikimedia Foundation
> 415.839.6885 ext. 6810
>
> NOTICE: This message may be confidential or legally privileged. If you have
> received it by accident, please delete it and let us know about the mistake.
> As an attorney for the Wikimedia Foundation, for legal/ethical reasons I
> cannot give legal advice to, or serve as a lawyer for, community members,
> volunteers, or staff members in their personal capacity.
>
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> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>