Defiant Yahoo clashes with FISA court, demands government unseals secret records

A request made by Internet giant Yahoo to a secretive federal court could allow the Silicon Valley company to finally detail a past attempt to fend off a surveillance program it insisted was unconstitutional.

The Foreign Intelligence Surveillance Court told Yahoo in 2007 that it had to provide the government with data on the Internet activity of users without waiting for a signed warrant, a request that the company ignored and then unsuccessfully tried to refute. Despite claims that providing the court with that data would violate the constitutionally-protected privacy of its users, though, a panel of judges assigned under the Foreign Intelligence Surveillance Act, or FISA, told Yahoo they would be required to comply or else they would be in violation of the law.

Only this year, however, was Yahoo allowed to acknowledge the government’s request, and even still they are barred from discussing details of their argument, which under FISA rules are treated as highly confidential. That could all change, however, if a FISA court panel agrees with Yahoo’s request to go public with their legal filings five years after the fact.

News of Yahoo’s renewed request comes courtesy of the San Jose Mercury News, who broke the story early Thursday. Mercury reporter Brandon Bailey called Yahoo’s request “a rare legal move” and said, if revealed, the public will once and for all see what efforts the Internet giant took to unsuccessfully fight back the court’s attempt to persuade tech companies into cooperating with a government data-gathering effort that is all the more controversial five years later.

Although its long been known that at least one major Internet company fought against the FISA ruling, Yahoo was only allowed to acknowledge their role last month, an action that came just days after former National Security Agency contractor Edward Snowden allowed The Guardian newspaper to publish documents exposing the government’s vast surveillance efforts. One of those files, a NSA-authorized slideshow, showed how Yahoo, Google, AOL and other Internet giants were compelled under federal law to let the government go through user records without a warrant being signed using a program called PRISM.

That disclosure attributed to Snowden and others have sparked international outrage directed at Uncle Sam and the NSA, and has also rekindled discussions about not just government surveillance but also the privacy of millions of Americans. Yahoo thinks that by being able to publish its own arguments in the little-discussed FISA battle that they’d be able to show they "objected strenuously" to the government’s demands, Bailey wrote.

“If Yahoo succeeds in unsealing some of the court files, legal experts say, it would be a historic development and an important step toward illuminating the arguments behind the controversial Internet surveillance program known as PRISM,” wrote Bailey.

Indeed, attorneys with both the American Civil Liberties Union and the Electronic Frontier Foundation are already lauding Yahoo’s request.

"This is the first time we've seen one of these companies making this broad an argument in favor of transparency in the FISA court," ACLU attorney Alex Abdo told Mercury News.

Mark Rumold, an attorney who has worked on surveillance court issues for the EFF, added that Yahoo’s arguments, while currently under seal, couldn’t have found a more powerful opponent in the FISA court.

"When you get presented with an order you don't think is constitutional and the government says, 'We have this secret court opinion that it is constitutional,' then you are pretty much stuck," Rumold said.

Also last month Yahoo announced that the federal government made upwards of 13,000 requests for user data during the last six months, although FISA rules prohibit them from detailing those demands any further, much to the chagrin of Yahoo.

“Like all companies, Yahoo! cannot lawfully break out FISA request numbers at this time because those numbers are classified; however, we strongly urge the federal government to reconsider its stance on this issue,” the company said in a statement at the time.

Since Snowden began disclosing documents to the media, Yahoo, Google and Microsoft have all asked the FISA court to reexamine their opinion. According to the Washington Post, Google argued in their latest FISA paperwork that “the company has a constitutional right to speak about information it’s forced to give the government.”

Snowden is currently believed to be in stuck in a Moscow airport hoping to eventually get asylum from one of the 20-plus countries he’s requested assistance from. He is facing charges in the United States under the Espionage Act.