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.