Yahoo ‘threatened’ by NSA With $250,000-a-day fine For Refusing Surveillance

Written by: Tiobe

Yahoo! Inc. will release to the public more than 1,500 pages of previously classified documents from a 2007-2008 court case in which Yahoo attempted to refuse the National Security Agency (NSA) request for Yahoo user data, announced Yahoo General Counsel Ron Bell Thursday, Sept. 11 via the Yahoo Tumblr page.

“In 2007, the U.S. Government amended a key law to demand user information from online services. We refused to comply with what we viewed as unconstitutional and overbroad surveillance and challenged the U.S. Government’s authority,” said Bell. “Our challenge, and a later appeal in the case, did not succeed. The Foreign Intelligence Surveillance Court (FISC) … ordered us to give the U.S. Government the user data it sought in the matter.”

According to the Federal Judicial Center, Congress established FISC in 1978, authorizing the Chief Justice of the United States to select seven federal district court judges who would review warrant applications pertaining to “national security investigations,” with three of these same judges serving as FISC-R, a panel for appeals. The U.S. Patriot Act of 2001 expanded FISC from seven to 11 judges, and FISC-R first convened the following year. Current FISC-R members include U.S. Circuit Judge William Bryson, Second Circuit Judge Jose Cabranes and Ninth Circuit Judge Richard Tallman.

That government-appointed panel’s proceedings have no directive toward public disclosure, and Yahoo’s efforts to make its court documents available to the public tackled an uphill battle. The Internet giant persisted however, in its staunch belief that its users – and the general public – had a right to be apprised of Yahoo’s efforts to challenge government surveillance and data demands. 

“The FISC and the FISC-R (Foreign Intelligence Surveillance Court of Review) are ‘secret’ courts that oversee requests by the U.S. Government for surveillance orders and other types of legal process in national security investigations,” continued Bell. “The Court’s hearings and records are closed to the public and typically classified. For example, our role in the 2007-2008 lawsuit remained classified until 2013. In spite of this, we fought to declassify and to share the findings from the case.

“A decision to open FISC or FISC-R records to the public is extremely rare. Now that the FISC-R has agreed to unseal the proceedings at our request, we are working to make these documents available,” Bell said. “We consider this an important win for transparency, and hope that these records help promote informed discussion about the relationship between privacy, due process, and intelligence gathering.”

The Office of the Director of National Intelligence (ODNI) responded to Bell’s comments Thursday, claiming the NSA and intelligence community acted in the interest of national security, and that both FISC and FISC-R rulings found the NSA’s request in compliance with legal exceptions to the Fourth Amendment.

“Today, following a renewed declassification review, the Executive Branch is publicly releasing various documents from this litigation, including legal briefs and additional sections of the 2008 FISC-R opinion, with appropriate redactions to protect national security information,” states the ODNI press release. “The directives issued to Yahoo under the PAA (Protect America Act of 2007) required it to assist the U.S. Government in acquiring foreign intelligence information through the surveillance of targets reasonably believed to be located outside the United States. Yahoo refused to comply with the directives, and the U.S. Government initiated proceedings in the FISC to compel compliance. Yahoo opposed the U.S. Government’s motion to compel compliance with the directives primarily on the ground that the directives violated the Fourth Amendment rights of its customers. On April 25, 2008, following extensive briefing by the parties, the FISC held that the directives were lawful and ordered Yahoo to comply.”

The debate surrounding NSA data collection is ongoing. In 2013, former NSA contractor Edward Snowden brought public attention to government mass data collection when he leaked NSA documents exposing top-secret NSA surveillance programs. Snowden insisted his exposure of potential highly volatile material was to bring attention to liberties he felt the government was unwarranted in conducting, and that the public had a right to be informed on how the government might be destroying their privacy.

Subsequent studies of these mass surveillance strategies differ wildly in their conclusions as to these programs’ efficacy in combatting terrorism, their stated aim for intrusive measures. According to a January, 2014 study by the New America Foundation, the NSA’s sense of usefulness of these programs may be overinflated. 

“Our review of the government’s claims about the role that NSA ‘bulk’ surveillance of phone and email communications records has had in keeping the United States safe from terrorism shows that these claims are overblown and even misleading. An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal,” states the report. “Indeed, the controversial bulk collection of American telephone metadata, which includes the telephone numbers that originate and receive calls, as well as the time and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, appears to have played an identifiable role in, at most, 1.8 percent of these cases… The overall problem for U.S. counterterrorism officials is not that they need vaster amounts of information from the bulk surveillance programs, but that they don’t sufficiently understand or widely share the information they already possess that was derived from conventional law enforcement and intelligence techniques.”

For his part, Bell says Yahoo will continue to fight for transparency and the rights of its users.

“Despite the declassification and release, portions of the documents remain sealed and classified to this day, unknown even to our team. The released documents underscore how we had to fight every step of the way to challenge the U.S. Government’s surveillance efforts. At one point, the U.S. Government threatened the imposition of $250,000 in fines per day if we refused to comply,” stated Bell. “Our fight continues. We are still pushing for the FISC to release materials from the 2007-2008 case in the lower court… Users come first at Yahoo. We treat public safety with the utmost seriousness, but we are also committed to protecting users’ data. We will continue to contest requests and laws that we consider unlawful, unclear, or overbroad.”

Visit http://www.dni.gov to view the newly released documents.

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Sources:

http://yahoopolicy.tumblr.com/post/97238899258/shedding-light-on-the-foreign-intelligence-surveillance

http://www.dni.gov/index.php/newsroom/press-releases/198-press-releases-2014/1109-statement-by-the-office-of-the-director-of-national-intelligence-and-the-u-s-department-of-justice-on-the-declassification-of-documents-related-to-the-protect-america-act-litigation

http://www.fjc.gov/

http://www.newamerica.net/publications/policy/do_nsas_bulk_surveillance_programs_stop_terrorists