National Security Letters: Help!


National Security Letters: Help!
by Susan Basko

Someone delivers a document of many pages to your home or office.  It does not look like anything you've ever seen before.  It says you or someone else is under investigation by some Department of the U.S. government and that you must cooperate.  It also says that you are ordered not to tell anyone about the letter or its contents.  You are alarmed and afraid, likely terrified.  Congratulations, the government has just treated you to a National Security Letter.  Here's a few things to know:

1) You can always show the letter to a lawyer.  The letter says you cannot disclose it to anyone, but that does not include that you cannot show it to a lawyer.   In fact, you should show it to a lawyer so they can help you understand what it is and what it means. The lawyer is also under the gag or nondisclosure order and cannot reveal the letter to the press or public.  It is good to have someone else know about the letter, and legally, you cannot tell anyone, not even  your spouse, that you received the letter, or anything about its contents.  So, show it to a lawyer.   

2) National Security Letters include a gag order, also known as a nondisclosure order.  The recipient is  supposed to tell no one about the letter or about what is being investigated.  They are not even supposed to tell that they got a Letter.  The National Security Letter may go into rather extreme detail, for many pages, listing off what it means by "don't tell anyone."   

3) A National Security Letter may be issued to a person or to a company.  The most likely sort of companies are those that deal in internet communications or finances.  Larger companies are more likely to have a lawyer on staff and to be familiar with the Letters.  Individuals or small companies that receive a National Security Letter are more likely to be baffled and frightened by the letters.  

4) A Judge in the Federal 9th Circuit (California, Washington, Idaho, Montana, Alaska, Nevada, Arizona) has ruled the gag orders unconstitutional, but has given the government time to gets its act in order.  We'll see what happens.  As of now, recipients of a National Security Letter must comply with the gag order.

5) National Security Letters can be used by many federal government agencies.  In some instances, the main purpose in using a letter seems to be the gag order, rather than the investigatory portion. In other words, the letters appear to be used to shut people up.   Sometimes this may be a valid purpose.  It helps, in assessing a letter, to judge whether the purpose appears to be more investigatory or more to keep the person from going to the media or to the public about a particular topic.

6)  A National Security Letter is supposedly issued for purposes of investigating terrorism or topics of concern to national security.  "National security" has become a broadly-used term that can mean almost anything involving the public or the government.  The governmental agencies are now issuing a huge number of National Security Letters.  That's a lot of intrusion into peoples' lives with no judicial oversight. 

7) If a National Security Letter requires its recipient to hand over information, that information is supposed to be non-content.  For example, if the letter is demanding email information, it is only supposed to be asking for who was contacted and when, not the contents of the emails.  Content-based materials are supposed to require a subpoena or warrant.

8) To send a National Security Letter, the government agency does not need probable cause or to go before a Judge, as is the case with a subpoena or warrant. This makes National Security Letters much more of a fishing expedition and opens them wide for abusive use.  The letters are seen as stepping stones to creating probable cause.   

9) National Security Letters contain a gag order that may be the main purpose of the letter.  If you worked for a government agency and were investigating something sensitive, and if you had an easy tool where you could order everyone involved to keep quiet, would you use it?   Likely so.

10) Tens of thousands of National Security Letters have been issued each year since they were instituted. The Letters are considered by many to be abuses of Constitutional rights.

11) A National Security Letter has 4 main parts.  First, it will tell which agency is investigating.  Many U.S. agencies have been given authority to send National Security Letters. Second, the Letter will tell who or what is being investigated. It may be the recipient, in which case the main purpose is likely to gag the person from speaking privately, publicly, or to the media about the topic or about the letter.  Or the letter may state that someone else is under investigation and may demand that the recipient hand over the requested information about that person, company, or organization.   Third, the letter will state what materials, if any, must be handed over.  Fourth, there will be a detailed gag or nondisclosure order.  If this is highly detailed, then the recipient may assume the main purpose of the letter is to force the recipient to keep quiet because an investigation is ongoing.  

12) A National Security Letter has the force of law.  For example, if the recipient talks to people or to the media about the letter, the recipient can be charged with a crime.  Likewise, if the recipient fails to comply with the demand for information, the recipient might be jailed.  This is very important to know.   

13 ) If you plan to violate the demands of the Letter, discuss first with a lawyer.  Several business owners have closed down their services rather than compromise the future privacy of their clients.   One such business owner is Ladar Levinson of Lavabit, an encrypted email service.  It is believed that Lavabit received either a National Security Letter or a secret subpoena.  Rather than comply, he closed the service.  He was immediately threatened with jail, but it is dubious the government could force him to keep running his business so they could use it to spy on people.   You can read Mr. Levinson's letter about this HERE, or below:

My Fellow Users,
I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.
Sincerely,
Ladar Levison
Owner and Operator, Lavabit LLC
Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here.


Can a Songwriter Prevent a Cover Song?


Can  a Songwriter Prevent  a Cover Song?
by Susan Basko

This question was sent to me today by email: 

Hey Sue,

I am a student and in my Entertainment Law Class I asked the question was it possible for a songwriter who has recorded a song to block it from be recorded again.

Example - Taylor Swift writes and records a song, then a year later a heavy metal band wants to record it but she doesn't want her song to be associated with that type of music, can she block it?

I read your article, http://suebasko.blogspot.com/2013/09/recording-cover-song-most-basic-things.html, and it states like we have learned in class that anyone can record a song after it has been recorded.

Is there a case in history where someone has gotten around the compulsory license and was able to block someone from recording the song...if not...is it possible?

Thank you so much for any information you can give me.

THIS IS MY REPLY:

First, the compulsory license laws apply only to songs that are part of the U.S. Copyright system (either registered or subject to it) and only applies to recordings produced and sold in the US.  So if you will note, songs that are kept out of the US system are not subject to it.  For example, if someone in Australia writes a song and does not register it with the US Copyright office, and neither does their publisher, then they are not in on this system.

Second, the compulsory license does not include songs that are part of a musical or opera.  That is why there are so few covers of songs that might otherwise be hugely successful, such as songs from Les Miserable, Oliver, the Romeo and Juliet movies, songs from Wicked or Hair , and on and on.  To record these, the artists wishing to cover them would be required to deal directly with the publisher.  The publisher can say no and if they say yes, they can set any terms and any price.

Third, the compulsory license allows a cover, or copy of the song to be made. It does not allow a derivative work.  So, if the heavy metal band is creating a cover that substantially changes the tone of the song, Taylor Swift might sue.  There HAVE been lawsuits like this, as I recall.  To actually be a cover or copy, the lyrics cannot be changed, the arrangement cannot be changed, etc.  For the most part, disrespect or changing the meaning will come from changing the lyrics, and that is not allowed.

For the most part, most songwriters and their publishers would look foolish if  they are suing for copyright infringement because someone is making a metal or reggae or blues version, or changing the tempo.  And keep in mind, the publisher and songwriter will be making money for each copy that is made.  It is hard to argue with money.

Fourth, synch licenses are not compulsory.  So, say a heavy metal band makes a cover of the Taylor Swift song and it does not change the lyrics or arrangement -- so it is a legal cover.  But say they want to make a music video or appear on a television show where they perform or use their recording of the song, but they want to be vulgar or violent in some way in their visual interpretation of the song.  They NEED a synchronization license to use the song in any way.  The publisher can deny the synch license.  Smart publishers carefully check out the artists that want a synch license and look at what they plan to do with the song. look at how they present themselves, look at their past work.  The contract will also specify what can and cannot be in the synch, such as violence, porn, drugs, guns, etc.  A visual representation is where abusive connotations to a song are most likely to be made, and this can be avoided by not giving a synch license.

Cyberstalking: Illinois


Cyberstalking and Other Internet Crimes: Illinois
by Susan Basko

Cyberstalking and harassment are prohibited by Federal Crime statutes, but most states also have laws.  This is about the Illinois laws.  Illinois criminal laws will apply if the victim is in Illinois, or if the perpetrator is in Illinois, and may apply in other circumstances.   This is not a complete listing, at all. It simply lists some common transgressions made by cyberstalkers and internet harassers.

Good Illinois Protection:  If you are in Illinois and anyone posts your name or photo on a creepy website, you are in luck -- there is a criminal law against this.   If you are in Illinois, and anyone secretly records a phone call with you, they are committing a crime.  If you are in Illinois, and anyone is repeatedly contacting you on the internet to cause you distress, there is a criminal law to protect you.

If you are victim, go to the links here and make a copy of the law.  When you go to make your police report, politely hand the officer a copy of the laws.  Internet crime is new territory to many police and prosecutors.  Persist.  Internet stalkers and bad websites tend to harm many people, so you will be helping many others, as well as yourself.

RECORDING A PHONE CALL: It is illegal to record phone call without the consent of all parties.  Example:  I am in Illinois.  If you call me and record the call without my permission, you are violating the Illinois Eavesdropping Act.  The first offense is a Class 4 Felony.  The second or further offense is a Class 3 felony.  If you were to place such a recording online, or transcribe it, or otherwise make it available, each time you do, it is an additional felony count.

RECORDING AN IN-PERSON CONVERSATION:  It is illegal in Illinois to record any conversation without permission of all parties. This includes using a video camera or cellphone camera to record a conversation.  This also violates the Illinois Eavesdropping Act and is a felony.

MAKING OR POSTING OBSCENE PICTURES:  If you use someone's photo to create an obscene picture or video, this is a violation of the Illinois Obscenity Act and is  a Class A Misdemeanor or a Felony.  If you put such a picture or video online, you are distributing obscenity and distributing obscenity to minors.  These are very serious crimes under the Illinois Obscenity Act that can land you on the Sex Offender registry.  Illinois has a very broad and conservative definition of "obscenity."

REVENGE PORN, POSTING NAME OR CONTACT INFO OR PHOTO ONTO A WEBSITE THAT CONTAINS ANY OBSCENITY:  If a person posts an image of a person, or posts any identifying information, such as name, address, telephone number, or email address,  about any person on a pornographic site, without the person's permission, that perpetrator is guilty of a felony under 720 ILCS 5/11-23.  If the victim is under 17, he or she cannot give permission and the act is a felony.  A site is considered pornographic if it contains any obscene material as defined under Illinois law, which is very broad and conservative.  These crimes can land a person in prison and on the Illinois Sex Offender Registry.  Also, see the Cyberstalking Law below - creating a website that harasses another person is against the Illinois Cyberstalking law.

So what does this mean? It means that if anyone posts your name or other information or any photo of you on a site that contains any obscene photos, the person is committing a Class 3 or Class 4 felony.  Even if the site is held offshore, and even if the person is in a different location, if you are in or from Illinois, you can and should report this crime.

Example 1: Suppose a site is used by a group to make fun of people they don't like.  Suppose the site has photos on it that show such things that are obscene, such as photos of an anus or of sexual parts.  Anyone that posts any other person's name, contact information or photo on that site without permission has committed a felony. If the victim is under 17, there is no permission possible.  Depending on the situation, this crime may also fall under Cyberstalking, Child pornography, creating obscene materials, distributing obscene material to minors, etc.  MOST LIKELY, the person running or owning the site is also committing a violating of the Illinois Cyberstalking law (below) provision against maintaining a website that harasses any person.

Example 2:  Someone posts your name and writes about you on a website that contains graphic photos and you are under 17 or you are older than 17 and did not give your permission. This is a felony.  If the person is convicted, they can be sentenced to prison and be forced to register on the Sex Offender registry.

Example 3: Someone posts a photo of you on a website that contains graphic photos. This is a felony if you are under 17 or if you are over 17 and did not give permission.  If the person is convicted, they can be sentenced to prison and forced to register on the Sex Offender registry.

CYBERSTALKING: Cyberstalking is when on 2 or more occasions, a person makes unwanted communication to or about another person online, on their own or through a third party, in a way that they know or should know places the victim in fear for their safety or the safety of someone else, or that causes the victim distress.  If the victim is in Illinois, or if the perpetrator is in Illinois, the crime falls under the Illinois law.

Examples 1 - 6: Posting 2 or more taunts at a person via Twitter or Facebook, sending taunting or threatening emails, sending 2 or more @ tweets at a person who has you blocked, posting 2 or more nasty comments at or about a person, posting 2 or more nasty photos or videos of or about a person, having any third party doing any of this for you.

Example 7: Posting 2 or more threatening tweets, messages, or comments saying such things as that you will post a person's name or photo on an undesirable website.

Example 8: Creating a website that harasses another person.

ILLINOIS CYBERSTALKING LAW OF 2010: 
You can download a handout on the Illinois Stalking and Cyberstalking laws, prepared by the research staff of Illinois Attorney General Lisa Madigan HERE.

 (720 ILCS 5/12-7.5) 
    Sec. 12-7.5. Cyberstalking. 

    (a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
        (1) fear for his or her safety or the safety of a
    
third person; or
        (2) suffer other emotional distress.
    (a-3) A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and: 
        (1) at any time transmits a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or
        (2) places that person or a family member of that
    
person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
        (3) at any time knowingly solicits the commission of
    
an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (a-5) A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
        (1) which communicates a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person, or
        (2) which places that person or a family member of
    
that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or
        (3) which knowingly solicits the commission of an act
    
by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (b) Sentence. Cyberstalking is a Class 4 felony; a second or subsequent conviction is a Class 3 felony. 
    (c) For purposes of this Section:
        (1) "Course of conduct" means 2 or more acts,
    
including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.
        (2) "Electronic communication" means any transfer of
    
signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions through an electronic device including, but not limited to, a telephone, cellular phone, computer, or pager, which communication includes, but is not limited to, e-mail, instant message, text message, or voice mail.
        (3) "Emotional distress" means significant mental
    
suffering, anxiety or alarm.
        (4) "Harass" means to engage in a knowing and willful
    
course of conduct directed at a specific person that alarms, torments, or terrorizes that person.
        (5) "Non-consensual contact" means any contact with
    
the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
        (6) "Reasonable person" means a person in the
    
victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.
        (7) "Third party" means any person other than the
    
person violating these provisions and the person or persons towards whom the violator's actions are directed.
    (d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section. 
    (e) A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant. 
(Source: P.A. 96-328, eff. 8-11-09; 96-686, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-303, eff. 8-11-11; 97-311, eff. 8-11-11; 97-1109, eff. 1-1-13.)

I Answer Legal Questions from the Public



I Answer Legal Questions from the Public
by Sue Basko

Click on any link below to see the question sent in anonymously by a person in the public, and the replies written by me and other lawyers.  None of this is "legal advice," it is simply for education and fun.  If you have a specific legal need, you should speak with your own lawyer.