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 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.
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.
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.
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. 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. 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.
The American Civil Liberties Union applauded Thursday’s move
to release the documents but said it was long overdue.
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