On Fri, Aug 2, 2013 at 3:37 PM, James Salsman <jsalsman@gmail.com<javascript:_e({}, 'cvml', &#39;jsalsman(a)gmail.com&#39;);&gt; 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 -- 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.*

On Sun, Aug 4, 2013 at 6:55 PM, James Salsman &lt;jsalsman(a)gmail.com&gt; wrote: 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. 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 -- 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. _______________________________________________ Advocacy_Advisors mailing list Advocacy_Advisors(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors

On Fri, Aug 2, 2013 at 3:37 PM, James Salsman &lt;jsalsman(a)gmail.com&gt; wrote: 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 -- 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.* _______________________________________________ Advocacy_Advisors mailing list Advocacy_Advisors(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors

What would make resigning more legal than requesting a transfer to a different department? On Sun, Aug 4, 2013 at 9:36 PM, John Vandenberg &lt;jayvdb(a)gmail.com&gt; wrote: wrote: department have no chain letter Or, if that necessary legal clear them, and if does they that.) community _______________________________________________ Advocacy_Advisors mailing list Advocacy_Advisors(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors

Random thoughts on this. In most countries the law can obligate many things, but it simply cannot obligate a person to forcibly continue at an employment (or to offer services as an employee or consultant) when they do not wish to. An employee who says to their employer "I have a conflict of interest and cannot continue my role" or the like, or "I need to resign for unspecified reasons" or "on the advice of my lawyer", is unlikely to be legally out of line - especially if their contract includes emphasis on trust and reputation damage. (Crossref recent news that HSBC is closing down many diplomatic bank accounts - however prestigious, key to networking, and profitable - due to reputation risk. We have reputation risk here no less, and a lot more.) Legally there could be ways it might be possible to implement it in contract despite concerns in this thread. For example, an employment/engagement contract clause might be added to state that an employee should be prepared to (and is expected to always) resign in the event that they are unable to act in the interests of the movement due to conflict of interest or other personal or external obligation, and that at the discretion of the board they may be recompensed for this if the board's finding is of genuine conflict and good cause, and this would be done in order to encourage the highest standard of ethical compliance within the foundation and in all matters, and exercise of discretion would be based on a decision by the board or such persons as the board delegates, to fact-find the matter. This is wide enough to act as a general ethical mandate, and is not targeted at any one cause or concern. It has freedom for discretion of bona fide situations, and in the event that a person feels unable to discuss a matter with any arbitrary director, it allows a person to be chosen whom they can discuss with and will form a view, which seems legally safe in any case where COI impacts employment conduct (not just this one issue). Informally there are other options. For example a "consensus discovering exercise" or common employee understanding that was endorsed "round robin" style (look up the origins of the expression) by individuals that had no formal policy or employment obligation might be on fairly solid ground. Specifically it would be hard to demonstrate that an employee/contractor common culture/understanding was a policy or the deed of the organization. It's much closer in nature to a set of personal views expressed personally and generally by various employees, related to a speculative non-imminent future area of personal conflict, which individuals are free to seek polled feedback on, and which has the positive effect of leaving individuals free to act as they see fit but allows them to gain an appreciation of the prevailing view of their fellows towards any of the different actions they might take. If such an event occurred, the law may not allow them to ask this kind of feedback from colleagues, so knowing that 80% of your peers would agree that in a conflict they would personally see it as okay to do X or Y, is useful information whose mere public polling in advance by individuals motivated to do so, would be hard to categorize as a wrongful act in law. FT2 On Mon, Aug 5, 2013 at 4:43 AM, John Vandenberg &lt;jayvdb(a)gmail.com&gt; wrote: