Yahoo's New Look into Secret Courts

September 15, 2014

Ever since Edward Snowden’s shook the earth with his NSA document release in May 2013, the public has turned a much sharper eye to the data privacy debate. The release no doubt turned the volume up on the issue for many Americans, but it also had our officials changing their tune too. Last Friday Yahoo made a big release of their own, making available over 1,500 pages of previously undisclosed documents from a 2007 battle they fought with the U.S. government in a secret Foreign Intelligence Surveillance Court (FISC). Note: The released documents are from their appeal from a decision from the lower FISC court to the Foreign Intelligence Surveillance Court of Review (FISC-R), the documents of the case from the lower court have not yet been released.
Yahoo initiated the case against the U.S. in 2007 when it challenged the constitutionality of FISA, a law which prohibits any company from speaking about or acknowledging the government’s request for documents in regards to foreign intelligence matters.
Their claim was heard in of the deeply controversial, secret FISC courts. These secret courts have been a source of worry for years, particularly because the court acts ex parte, with no one present except the government and the judge. Worries over heavy partiality towards the government only grew after

numbers were circulated that only 0.03% of all requests to the secret court are denied .

(11 out of 35,000 in 35 years). It appears that Yahoo fought hard to remove the black shroud surrounding these proceedings, calling the release “an important win for transparency”.
The FISC-R’s decision regarding Yahoo in 2008 was a crucial point in the development of the PRISM program, which was unveiled by Snowden in June 2013. The aftermath of this decision forced compliance with the PRISM program’s data requests from major tech and software companies, like Google, Facebook, & Apple. A previous release of this decision was released in 2009, but was so redacted that even experts couldn’t discern what company was involved. These document requests required companies to turn over the communications of foreigners without a warrant, often times sweeping American’s information in the mix as well. Because FISA prohibits companies from discussing the requests, or their opposition to them in Yahoo’s case, these companies often became the targets of public blame, appearing as if they had blindly bowed to the government’s requests.
One of the most surprising revelations was that

the U.S. government threatened to fine Yahoo $250,000 per day for not releasing requested documents.

The government’s threat came after Yahoo lost in the lower court, and they were waiting on their appeal to the higher FISC-R appellate court. Fearing the threat, Yahoo began to comply while waiting the outcome of their FISC-R appeal, which they eventually lost.
It’s important to note that the documents were released after the case became declassified in 2013, and after the FISC-R granted Yahoo’s request to have the documents unsealed. What’s more, the Justice Department has begun posting some of the released documents to their site. Could it be that the judge’s of these secret courts are responding to growing unrest from the public about privacy issues? Or is it that in a post-Snowden America, the American public expects this kind of behavior from their government, so the judge’s have less to fear? Only time will tell if this era will mark the beginning of greater transparency or of lowered expectations…