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Compelling Private Company Employee Information

By Charles B. Sklarsky and Monica R. Pinciak

There has been much recent press about the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), and in particular the seemingly unlimited power of the Federal Bureau of Investigation to issue National Security Letters (NSLs) as part of its efforts to combat terrorism (under 18 U.S.C. '2709). NSLs are a form of administrative subpoena issued by the FBI upon self-certification and are shrouded in a cloak of secrecy. Specifically, Section 2709 permits the FBI to demand the production of certain records where the FBI certifies that the materials are sought to “protect against international terrorism or clandestine intelligence activities.” On a more controversial note, Section 2709 also contains a gag provision, which prohibits the recipient of an NSL from ever disclosing that the FBI has sought or obtained information pursuant to an NSL. To date, Section 2709 has received little judicial scrutiny, with reported controversies focusing on NSLs issued to Internet Service Providers and libraries. Now, NSLs are being issued to private corporations, with the FBI demanding the production of records regarding employees.

This article provides guidance to in-house and outside counsel who learn that a corporate client has received an NSL pursuant to Section 2709. Section 2709 contains a number of traps for the unwary, which is in large part due to its broad language and the absence of judicial scrutiny. Although Congress is currently in the process of considering various amendments to Section 2709, the statute, as presently enacted, raises a host of issues that counsel should be aware of after receiving and when responding to an NSL. To that end, the article first begins with a general overview of Section 2709, and then discusses recent constitutional challenges. The article next addresses whether a private corporation, which is not in the communications business, is the proper target of an NSL. Lastly, the article discusses Section 2709's gag provision, as well as other issues relevant to the receipt of an NSL.

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