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The Washington Post
September 11, 2014
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 data that the company believed was unconstitutional, according to court documents unsealed Thursday that illuminate how federal officials forced American tech companies to participate in the NSA’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 National Security Agency 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 — but almost entirely secret — 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 American tech companies complied, including Google, Facebook, Apple and AOL. Microsoft had joined earlier, before the ruling, NSA documents have shown.
A version of the court ruling had come out previously, in 2008, but was so heavily redacted that observers were unable to discern what 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.
U.S. tech 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 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 on Thursday. Documents from the case in the lower court have not yet 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,” said company General Counsel Ron Bell in the post.
The Department of Justice did not immediately respond to a request seeking comment.
At issue in the original court case was a recently passed law, the Protect America Act of 2007, which allowed the government to collect data on people it “reasonably believed” to be outside of the United States at the time without getting an individual search warrant for each target. That law has since lapsed but became the foundation for the FISA Amendments Act of 2008, which created the legal authority for many 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 side-stepped the traditional requirement that each target be subject to court review before surveillance could begin. The order also went beyond so-called “metadata” — meaning records of communications but not their actual content — to include the actual content of e-mails.
A government filing from February 2008 describe 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 records 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 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 ultimately lost several months later.
Efforts to reach the Justice Department for comment Thursday afternoon were not successful.
Stewart Baker, a former NSA general counsel and Bush administration Homeland Security official, said it’s not unusual for courts to order compliance with rulings while appeals continue before higher courts.
“I’m always amazed 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 ACLU 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 Leonnig and Julie Tate contributed to this report.