Hand over data for surveillance or face fine $250,000 a day: US threatened Yahoo
By Countercurrents.org
13 September, 2014
Countercurrents.org
Citing court documents news media including AFP, The Washington Post and BBC said in reports:
US authorities threatened to fine Yahoo $250,000 a day if it failed to comply with a secret surveillance program requiring it to hand over user data in the name of national security.
The exposure illuminates the way US federal officials forced American tech companies to participate in the National Security Agency’s (NSA) controversial PRISM, a snooping program that gave the NSA extensive access to records of online communications by users of Yahoo and other US-based technology firms.
The American Civil Liberties Union applauded the September 11, 2014-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.
According to court documents, the NSA had demanded that Yahoo comply with new surveillance rules, something the company said was unconstitutional.
Yahoo failed in a court challenge on the constitutionality of the order.
But the details emerged on September 11, 2014 when a federal judge ordered the unsealing of some material about case.
Yahoo's general counsel Ron Bell said publication of the material was "an important win for transparency".
The documents, made public in a rare unsealing by a secretive court panel, "underscore how we had to fight every step of the way to challenge the US government's surveillance efforts," Ron Bell said in a blog post that will again raise privacy concerns.
The documents shed new light on the PRISM revealed in leaked files from former NSA contractor Edward Snowden.
The program allowed US intelligence services to sweep up massive amounts of data from major Internet firms including Yahoo and Google. Officials have said the deeply contentious program ended in 2011.
The 1,500 pages of documents were ordered released by the Foreign Intelligence Surveillance Court in the case dating from 2007, according to Bell, who said that in 2007, the US 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 US government's authority," he said.
"At one point, the US government threatened the imposition of $250,000 in fines per day if we refused to comply," Bell revealed.
Since the Snowden leaks, Yahoo and others have been seeking to make public these court documents to show they were forced to comply with government requests and made numerous attempts to fight these efforts, rather than simply acquiescing to them, as some critics say.
The opening of these court dockers to the public "is extremely rare," Bell said, adding that the company was in the process of making the 1,500 pages publicly available online.
"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," Bell added.
But he said that "despite the declassification and release, portions of the documents remain sealed and classified to this day, unknown even to our team."
'Not reasonable'
The redacted court records showed Yahoo challenged the government on constitutional grounds, saying the surveillance program violated protections against unreasonable search and seizure.
Yahoo said in one brief that the government's requests were "unconstitutional because they permitted warrantless surveillance of US persons' private communications without prior judicial review, and were not reasonable."
The company argued that the program was not merely monitoring overseas targets but some in the US "with no knowledge that their Internet communications are being retrieved."
Yahoo said the process was "similar to what is done in criminal cases" and would require monitoring from the company's headquarters in Sunnyvale, California.
"The US Supreme Court has never sanctioned warrantless surveillance of US citizens," Yahoo said in another brief.
A document dated May 14, 2008 said Yahoo began complying with the government order two days earlier, on May 12, on "priority user accounts for which the government wanted surveillance."
The court documents reveal that the battle over surveillance between technology firms and the US government stretched back years before the Snowden revelations.
The documents 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.
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 US 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 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 US-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 FISC and the FIS 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.
The US Justice Department and the US Office of the Director of National Intelligence published their own Tumblr post September 11, 2014 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, which allowed the government to collect data for significant foreign intelligence purposes on targets “reasonably believed” to be outside of the US. 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 US, 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.”
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