Yahoo vs the NSA: advantage Yahoo

smoke clearing

smoke clearing

For the past seven years, Yahoo has been fighting the NSA in court. Why haven’t you heard about this till now? Because they were secret courts, secret proceedings, and secret terms. And Edward Snowden hadn’t been invented yet.

Yahoo lost.

They appealed.

They lost again.

They petitioned the court to release the records of those court proceedings.

They won.

From corporate counsel Ron Bell on the Yahoo corporate Tumblr:

Today we are pleased to announce the release of more than 1,500 pages of once-secret papers from Yahoo’s 2007-2008 challenge to the expansion of U.S. surveillance laws.

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.

The Court ordered us to give the U.S. Government the user data it sought in the matter.

The Foreign Intelligence Surveillance Court (FISC) and the FISC-R are “secret” courts that oversee requests by the U.S. Government for surveillance orders and other types of legal process in national security investigations. The Court’s hearings and records are closed to the public and typically classified.

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.

Since the courts were secret, there were no official transcripts, as there are in public trials. From 1500 pages of documentation, Yahoo will endeavor to find a logical order, and will release the documents on its corporate Tumblr, which I suggest you begin following immediately.

The documents relate the NSA’s attempt to muscle Yahoo into participating in PRISM, the Snowden-leaked program that collected user data from the titans of tech: Google, Yahoo, AOL (yes, still) and so on. Snowden has previously mentioned the Yahoo pushback against PRISM in his TED Talk, saying “PRISM is about content. It’s a program through which the government could compel corporate America, it could deputize corporate America to do its dirty work for the NSA. And even though some of these companies did resist, even though some of them — I believe Yahoo was one of them — challenged them in court, they all lost, because it was never tried by an open court. They were only tried by a secret court.”

The act itself was called the Protect America Act. The government actually threatened Yahoo with fines of $250,000 a day unless it complied and turned over the user data, in contravention to its own user agreements and what its lawyers interpreted as constitutionally protected privacy. What appears to be an unofficial leaked version of the 2008 verdict can be found in its PDF’d and redacted entirety at

Among other things, the Protect America Act of 2007 (PAA), Pub . L. No. 110 – 55, 121 Stat. 552, authorized the United States to direct communications service providers to
assist it in acquiring foreign intelligence when those acquisitions targeted third persons (such as the service provider’s customers) reasonably believed to be located outside the United States. Having received [redacted text] such directives, the petitioner challenged their legality before the Foreign Intelligence Surveillance Court (FISC). When that court found the directives lawful and compelled obedience to them, the petitioner brought this petition for review.

As framed, the petition presents matters of both first impression and constitutional significance. At its most elemental level, the petition requires us to weigh the nation’s security interests against the Fourth Amendment privacy interests of United States persons.

Well, exactly. So that was the case that failed: the argument that turning over information on persons outside America would infringe the privacy rights of Americans. According to Yahoo, the forthcoming documents have many more details than the public has previously seen, pre-existing leaks notwithstanding.

Bell elaborated on the legal fine points:

Key takeaways from these documents include:

  • An expanded version of the FISC-R opinion in the case, originally released in 2008 in a more redacted form.
  • The release of the never-before-seen 2008 FISC opinion that we challenged on appeal.
  • The parties’ briefs, including some of the lower court briefings in the appendices.
  • An Ex-Parte Appendix of classified filings.
  • A partially redacted certification filed with the FISC, as well as a mostly unredacted directive that Yahoo received.

In short, what we are about to see is…how your internet privacy sausage is made.

Or at least run through the grinder.


Featured Image Smoke by e-coli on Flickr

Categories: Breaking, Court Cases, Edward Snowden, Leaks, News, NSA, PRISM, Privacy, Yahoo

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