[Advocacy Advisors] National Security Letters served on individuals

Wed Aug 7 02:11:41 UTC 2013

Adding to this, a number of sources comment that commercial employment
contracts should start like this:

*"Your primary role as an employee of XYZ Corp is to aid the growth,
profitability and sustainability of XYZ Corp. In your role as ___, you will
primarily do this by <specific job duties etc>"*

In other words "marketing" or "coding" or "server management" are not the
primary role responsibilities. Building the future is. The specific job is
merely how it is anticipated that you will be able to do that task.

In the context of Wikimedia, peoples' primary role is to ensure the growth,
sustainability, and secure reputation, of the foundation and matters
reflecting on it. They will do this by undertaking specific roles, but
also, by placing these as primary priorities in any conflict. It then
becomes appropriate and valid to say something like this to underpin it:

"Your primary role is to ensure the growth, sustainability, and secure
reputation, of the Foundation, Movement,  and matters reflecting on them.
You will generally do this by undertaking specific roles described below."

"However, as the Foundation and Movement is inordinately predicated on
trust and public goodwill, it is expected that you will be exceptionally
alert to situations in which reputation or sustainability are at actual
risk of damage (present or future). In such circumstances your overriding
responsibility is to inform the CEO or Counsel of the matter and comply
with advice. If you feel for any reason unable to do so, there is an
expectation you will take proactive steps to minimize any damage to the
Foundation or Movement resulting from possible actions you may otherwise be
required to take, including (but not limited to) resignation."

It's far from watertight, but gives an idea of a direction that's
applicable, generic, and far from specific to any given situation.  It's
probably good guidance regardless, in a way.

FT2

On Wed, Aug 7, 2013 at 2:59 AM, FT2 <ft2.wiki at gmail.com> wrote:

> 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 <jayvdb at gmail.com> wrote:
>
>> Only resigning makes it illegal for the person served to comply with the
>> govt order, thereby rendering the order invalid I presume. Or the possibly
>> in contempt of court.
>>
>> The person who has resigned could go on working for another Wikimedia
>> organisation; e.g. WMDE.
>>
>> John Vandenberg.
>> sent from Galaxy Note
>> On Aug 5, 2013 1:38 PM, "James Salsman" <jsalsman at gmail.com> wrote:
>>
>>> 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 <jayvdb at gmail.com>
>>> wrote:
>>> > Resigning before complying is the only way to keep the WMF from being
>>> > 'crippled' in the trust department. Or maybe WMF has a different set of
>>> > values.
>>> >
>>> > Any WMF employee who complies with a NSA request to facilitate
>>> capturing
>>> > programs has already broken the privacy policy in the extreme, and
>>> should
>>> > probably be fired. So resigning before being forced to comply seems the
>>> > ethical choice in my opinion.  Of course the government may serve
>>> someone
>>> > else, but they may stop after a few people have resigned. Even the ED
>>> is
>>> > replacable. But trust lost is much harder to replace.
>>> >
>>> > John Vandenberg.
>>> > sent from Galaxy Note
>>> >
>>> > On Aug 5, 2013 11:49 AM, "Luis Villa" <lvilla at wikimedia.org> 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
>>> >>
>>> >>
>>> >>>
>>> >>> _______________________________________________
>>> >>> Advocacy_Advisors mailing list
>>> >>> Advocacy_Advisors at lists.wikimedia.org
>>> >>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>> >>>
>>> >>
>>> >>
>>> >>
>>> >> --
>>> >> 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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>>> >> Advocacy_Advisors at lists.wikimedia.org
>>> >> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>> >>
>>> >
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>>> >
>>>
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>>
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>
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