Responding to the National Security Letters A Practical Guide for Legal Counsel

by Fidler, David P.; Hughes, Sarah Jane

• ISBN13: 9781604423501
• ISBN10: 1604423501
• Format: Paperback
• Copyright: 2009-09-16
• Publisher: American Bar Association

Summary

The federal government has issued tens of thousands of national security letters to recipients in the United States, and responding to them poses many challenges. This practical guide addresses these issues and helps lawyers prepare and respond appropriately. Book jacket.

Table of Contents

Acknowledgments	p. ix
Table of Acronyms and Abbreviations	p. xi
List of Tables and Figures	p. xiii
Foreword	p. xv
The Need for a Practical Guide for Legal Counsel on Responding to National Security Letters	p. 1
Why is guidance needed for legal counsel on national security letters?	p. 1
How did the law on national security letters change to produce these challenges for legal counsel?	p. 4
What tasks now confront companies and their legal counsel with respect to national security letters?	p. 6
How is the Guide organized?	p. 8
Understanding National Security Letters	p. 11
What is a national security letter?	p. 11
How does a national security letter differ from other requests for information issued by the federal government (e.g., administrative subpoenas or grand jury subpoenas)?	p. 14
Why are national security letters controversial?	p. 15
What issues of constitutional law do national security letters raise?	p. 16
Are there different kinds of national security letters or only one type?	p. 18
What federal agencies are authorized to issue national security letters?	p. 20
What kind of information does the federal government seek in national security letters?	p. 22
What does a national security letter look like?	p. 23
Receiving and Reviewing National Security Letters	p. 33
What is the likelihood that a company will receive a national security letter?	p. 34
How does the federal government make a national security letter request known to a company?	p. 37
What should authorized company representatives do when they first talk or meet with federal agents concerning a national security letter?	p. 38
What are the company's rights when it receives a national security letter?	p. 40
What does the company do with the national security letter upon receipt?	p. 42
What are the company's obligations when it receives a national security letter?	p. 44
How do obligations under national security letters differ from duties triggered by receipt of other forms of federal law enforcement requests for information (e.g., administrative or grand jury subpoenas)?	p. 46
What if a company receives a letter from a federal agency that contains a request for information, but the letter does not cite national security letter statutes for its legal basis?	p. 48
Responding to National Security Letters	p. 51
Does federal law mandate compliance with requests for information received through national security letters?	p. 51
What happens if a recipient of a national security letter fails to comply with the request for information?	p. 52
Why might a company decide not to comply with a request for information in a national security letter?	p. 53
Legal grounds for a decision not to comply	p. 53
Reliance on inapplicable authorizing statute	p. 53
Reliance on wrong statute	p. 53
Other legal defects, including defects related to constitutional law	p. 53
Importance of legal analysis of the national security letter	p. 54
Constitutional challenge to national security letter	p. 54
Unreasonable, oppressive, or otherwise unlawful requests for information	p. 56
No legal access to or control over requested information	p. 57
Technical reasons for a decision not to comply	p. 57
Good faith efforts to resolve issues with the federal agency	p. 58
Petitioning a federal district court about a national security letter	p. 59
The importance of establishing the compliance decision process in advance	p. 60
What are a recipient's legal obligations to the federal government when responding to a national security letter?	p. 60
Complying with the nondisclosure requirements	p. 60
Data identification, collection, and organizational issues	p. 65
Minimizing the prospects of over-disclosure of information responding to national security letters	p. 68
Understanding the implications of the company's published privacy policies	p. 69
What are a recipient's legal rights after it has responded to a national security letter?	p. 71
What other actions should a company take with respect to responding to national security letters?	p. 71
Public relations	p. 71
Auditing issues	p. 73
National Security Letters and International Issues	p. 75
What are the basic principles that guide federal government efforts to access information held or located in a foreign country?	p. 76
How do these general principles apply to the use of national security letters?	p. 79
Jurisdiction and authority to seek information located outside the United States	p. 79
Determining the reasonableness of a request for foreign-based information	p. 80
Alternative mechanisms for obtaining foreign-based information	p. 82
Disclosure prohibited by the law of the foreign government	p. 85
What do the general principles on obtaining foreign-based information mean for recipients of national security letters in the United States?	p. 85
Monitoring the Law on National Security Letters	p. 89
Why should monitoring the law on national security letters be a priority for companies and their legal counsel?	p. 89
Pending outcome of constitutional litigation against the law on national security letters	p. 89
Potential legislative reform of the national security letter statutes	p. 91
What legislative proposals have been made in Congress to reform the law on national security letters?	p. 92
Increased restrictions and obligations on federal agencies issuing national security letters	p. 93
Implications of the proposed legislation for potential recipients of national security letters	p. 95
Changes to other laws and policies on national security investigations	p. 96
What would be good strategies for monitoring potential changes to the law on national security letters?	p. 97
Conclusion	p. 97
Excerpts from National Security Letter Statutes	p. 101
Summaries of Key Federal Cases Involving National Security Letters	p. 117
Sample Policy for Receiving, Reviewing, and Responding to National Security Letters	p. 123
Bibliography	p. 143
About the Authors	p. 149
Table of Contents provided by Ingram. All Rights Reserved.