U.S. threatened massive fine to force Yahoo to release data
U.S. threatened massive fine to force Yahoo to release
data
The U.S. government threatened to fine Yahoo $250,000 a
day in 2008 if it failed to comply with a broad demand for user data that the
company believed was unconstitutional, according to court documents unsealed
Thursday. (Justin Sullivan/Getty Images)
By Craig Timberg September 11 at 9:16 PM
The U.S. government threatened to fine Yahoo $250,000 a
day in 2008 if it failed to comply with a broad demand to hand over user
communications — a request the company believed was unconstitutional —
according to court documents unsealed Thursday that illuminate how federal
officials forced American tech companies to participate in the National
Security Agency’s controversial PRISM program.
The documents, roughly 1,500 pages worth, outline a
secret and ultimately unsuccessful legal battle by Yahoo to resist the
government’s demands. The company’s loss required Yahoo to become one of the
first to begin providing information to PRISM, a program that gave the NSA
extensive access to records of online communications by users of Yahoo and
other U.S.-based technology firms.
The ruling by the Foreign Intelligence Surveillance Court
of Review became a key moment in the development of PRISM, helping government
officials to convince other Silicon Valley companies that unprecedented data
demands had been tested in the courts and found constitutionally sound.
Eventually, most major U.S. tech companies, including Google, Facebook, Apple
and AOL, complied. Microsoft had joined earlier, before the ruling, NSA
documents have shown.
A version of the court ruling had been released in 2009
but was so heavily redacted that observers were unable to discern which company
was involved, what the stakes were and how the court had wrestled with many of
the issues involved.
“We already knew that this was a very, very important
decision by the FISA Court of Review, but we could only guess at why,” said
Stephen Vladeck, a law professor at American University.
PRISM was first revealed by former NSA contractor Edward
Snowden last year, prompting intense backlash and a wrenching national debate
over allegations of overreach in government surveillance.
Documents made it clear that the program allowed the NSA
to order U.S.-based tech companies to turn over e-mails and other
communications to or from foreign targets without search warrants for each of
those targets. Other NSA programs gave even more wide-ranging access to
personal information of people worldwide, by collecting data directly from
fiber-optic connections.
In the aftermath of the revelations, the companies have
struggled to defend themselves against accusations that they were willing
participants in government surveillance programs — an allegation that has been
particularly damaging to the reputations of these companies overseas, including
in lucrative markets in Europe.
Yahoo, which endured heavy criticism after The Washington
Post and Britain’s Guardian newspaper used Snowden’s documents to reveal the
existence of PRISM last year, was legally bound from revealing its efforts in
attempting to resist government pressure. The New York Times first reported
Yahoo’s role in the case in June 2013, a week after the initial PRISM
revelations.
Both the Foreign Intelligence Surveillance Court and the
Foreign Intelligence Surveillance Court of Review, an appellate court, ordered
declassification of the case last year, amid a broad effort to make public the
legal reasoning behind NSA programs that had stirred national and international
anger. Judge William C. Bryson, presiding judge of the Foreign Intelligence
Surveillance Court of Review, ordered the documents from the legal battle
unsealed Thursday. Documents from the case in the lower court have not been
released.
Yahoo hailed the decision in a Tumblr post Thursday
afternoon. “The released documents underscore how we had to fight every step of
the way to challenge the U.S. Government’s surveillance efforts,” Ron Bell, the
company’s general counsel, wrote in the post.
The Justice Department and the Office of the Director of
National Intelligence published their own Tumblr post Thursday evening offering
a detailed description of the court proceedings and posting several related
documents. It noted that both the Foreign Intelligence Surveillance Court and
the appeals court sided with the government on the main questions at issue, and
added that a subsequent law added more protections, making it “even more
protective of the Fourth Amendment rights of U.S. persons than the statute
upheld by the [appeals court] as constitutional.”
At issue in the original court case was a recently passed
law, the Protect America Act of 2007, that allowed the government to collect
data for significant foreign intelligence purposes on targets “reasonably
believed” to be outside of the United States. Individual search warrants were
not required for each target. That law has lapsed but became the foundation for
the FISA Amendments Act of 2008, which created the legal authority for some of
the NSA programs later revealed by Snowden.
The order requiring data from Yahoo came in 2007, soon
after the Protect America Act passed. It set off alarms at the company because
it sidestepped the traditional requirement that each target be subject to court
review before surveillance could begin. The order also went beyond “metadata” —
records of communications but not their actual content — to include the full
e-mails.
A government filing from February 2008 described the
order to Yahoo as including “certain types of communications while those communications
are in transmission.” It also made clear that while this was intended to target
people outside the United States, there inevitably would be “incidental
collection” of the communications of Americans. The government promised
“stringent minimization procedures to protect the privacy interests of United
States persons.”
Rather than immediately comply with the sweeping order,
Yahoo sued.
Central to the case was whether the Protect America Act
overstepped constitutional bounds, particularly the Fourth Amendment
prohibition on unreasonable searches and seizures without a warrant. An early
Yahoo filing said the case was “of tremendous national importance. The issues
at stake in this litigation are the most serious issues that this Nation faces
today — to what extent must the privacy rights guaranteed by the United States
Constitution yield to protect our national security.”
The appeals court, however, ruled that the government had
put in place adequate safeguards to avoid constitutional violations.
“We caution that our decision does not constitute an
endorsement of broad-based, indiscriminate executive power,” the court wrote on
Aug. 22, 2008. “Rather, our decision recognizes that where the government has
instituted several layers of serviceable safeguards to protect individuals
against unwarranted harms and to minimize incidental intrusions, its efforts to
protect national security should not be frustrated by the courts. This is such
a case.”
The government threatened Yahoo with the $250,000-a-day
fine after the company had lost an initial round before the Foreign
Intelligence Surveillance Court but was still pursuing an appeal. Faced with
the fine, Yahoo began complying with the legal order as it continued with the
appeal, which it lost several months later.
Stewart Baker, a former NSA general counsel and Bush
administration Department of Homeland Security official, said it’s not unusual
for courts to order compliance with rulings while appeals continue before
higher courts.
“I’m always astonished how people are willing to abstract
these decisions from the actual stakes,” Baker said. “We’re talking about
trying to gather information about people who are trying to kill us and who
will succeed if we don’t have robust information about their activities.”
The American Civil Liberties Union applauded Thursday’s
move to release the documents but said it was long overdue.
“The public can’t understand what a law means if it
doesn’t know how the courts are interpreting that law,” said Patrick Toomey, a
staff attorney with the ACLU’s National Security Project.
Carol D. Leonnig and Julie Tate contributed to this
report.
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and policy connect.
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