Surveillance court to declassify documents in 2008 Yahoo case

Reggie Walton, Chief Judge of the US Foreign Intelligence Surveillance Court (FISC), ordered the release of a court decision and accompanying legal briefs from a 2008 case that forced Yahoo to turn over user data to the government as part of the PRISM surveillance program.

Under the Monday court order, the Department of Justice has to conduct a declassification review of documents and report to the court with the redacted documents by July 29.

The National Security Agency’s data collection and monitoring program, PRISM, was exposed in documents leaked by Edward Snowden in early June and detailed in the Guardian and the Washington Post.

In 2008, a sealed court case challenged an expansive data collection program, authorized under the Foreign Intelligence Surveillance Act (FISA). A redacted version of the case, which omitted the details of the data collection program and the name of the petitioner, was one of the few public FISC documents.

Nearly six years after the court case took place, and several weeks after the Prism program was exposed, the New York Times published an exclusive that named Yahoo as the petitioner in the 2008 sealed case.

This placed Yahoo as the first and only Internet provider that is known to have challenged the court’s order to turn over its customers’ data. The 2008 decision set a precedent that forced other Internet service providers to turn over their consumers’ data.

On Sunday, a day after the Times’ article was published, Yahoo filed a petition with FISC to declassify the 2008 decision. The Department of Justice filed a response to the motion, granting Yahoo permission to acknowledge itself as the petitioner in the 2008 case.

Monday’s order will require FISC to reveal details about the 2008 case, though Patrick Toomey, a lawyer with the American Civil Liberties Union, is skeptical as to how much new information will be released since the higher court’s decision that ordered Yahoo to comply with the FISC’s request is already public. 

The larger significance of the case is that the public will have more information about how FISC operates, Mr. Toomey says.

“It could be an extremely positive sign about the court beginning to think harder about openness and to understand its legal rulings,” he says, adding that Watlon’s order “shows that the FISA court is beginning to think on its own about the public’s need to see [its] opinions.”

“Yahoo is asking for the public to know under what laws we live,” says Jennifer Granick, the Director of the Civil Liberties program at the Stanford Center for Internet and Society. She understands that the government would have specific information about a particular person that is kept secret, but “the idea that the secret court has secret laws that govern our lives is really reprehensible.” 

Though it is unlikely that the declassification of this 2008 case will create a sea change in the way the FISC is run, making this case public could create a public expectation of greater transparency in the future, says Ms. Granick.

It is rare for any documents from FISC to be made public – and surveillance discussions are usually kept between the government attorneys, trying to get permission to gather information on someone, and the court. The PRISM surveillance program is unique in that it involves a third-party information provider: the Internet companies. This means that the companies' lawyers are also privy to what is going on inside FISC. 

These unique circumstances led Google to publish a motion it filed with FISC requesting permission to release the number of user data requests is received under FISA. 

After details of the PRISM program were revealed, Yahoo, Facebook, and Microsoft released aggregate statistics about the number of data information requests they received pertaining to national security, though they were unable to say how many of these requests were made under FISA. 

In 2012, the US Department of Justice submitted 1,789 electronic search applications to the Foreign Intelligence Surveillance Court. Only one application was withdrawn and no requests were denied, according to the most recent FISA report. In addition, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different US citizens, according to a report by the Electronic Privacy Information Center.