Yahoo Releases Second Wave of Unsealed FISC Documents

Yahoo releases a second wave of unsealed documents tied to its battle with the secret Foreign Intelligence Surveillance Court.

Yahoo officially released part two of its once-secret government documents that were part of its 2007 court battle with the Foreign Intelligence Surveillance Court (FISC) that forced it to reveal sensitive customer data requested by the National Security Agency.

This second wave of documents brings fresh insight into Yahoo’s fight to protect its customers from what it calls “unlawful, unclear, or overbroad” requests by the feds. The case centered around how federal officials forced Yahoo to participate in the National Security Agency’s controversial PRISM program.

“While our challenge ultimately did not succeed, efforts to secure declassification of the proceedings did,” said Chris Madsen, head of global law enforcement, security, and safety at Yahoo, in a prepared statement released Monday.

In 2007, the U.S. government threatened to fine Yahoo $250,000 a day if it failed to cooperate with a court request to hand over records of extensive online communications by its users. Yahoo eventually complied, but not before it fought hard in court not to do so, calling the request unconstitutional. The public never knew about Yahoo’s challenge to FISC because the court proceedings were undisclosed.

Fast forward to 2014 when Yahoo went to a judge, this time in an effort to have the right to distribute a cache of 1,500 pages worth of legal documents relating to its battle with the government. Yahoo won a victory, and was granted permission to release a portion of the data later that year.

Now, Yahoo has released a second wave of unsealed documents available online (PDF). The new documents, released last week, include 309 pages of court proceedings that go deeper into the case adding nuance to the dense legal maturations of the court battle.

Marcy Wheeler, a cyber civil liberties expert and author of EmptyWheel, said the unsealed classified documents provide a lot more details on the “shell game the government played during the Yahoo litigation.”

She told Threatpost that documents revealed how difficult it was for Yahoo to litigate in a secret court. “Procedurally there were rule changes the government made without informing Yahoo, a lack of a special advocate for Yahoo.” Even the FISC judge overseeing the case, Reggie Walton was frustrated, she said.

“If you read these documents closely enough you see gaps in what Yahoo should have known (about PRISM) to argue its case effectively. But it goes further than that. There were also gaps in government transparency that left Judge Walton in the blind. There are lots of problem with this litigation,” Wheeler said.

Yahoo’s Madsen said the release of the documents holds significant value. “We are making these documents available to the public to promote informed discussion about the relationship between privacy, due process and intelligence gathering,” he said.

He added that while Yahoo ultimately lost the court battle, it was able to add significant momentum for reforms to surveillance laws, such as the addition of a “special advocate” in FISC cases and passage of the USA Freedom Act, which curbed the way U.S. agencies conduct surveillance and gather data.

“We treat public safety with the utmost seriousness, and we are committed to protecting users’ privacy. We believed then and believe now that these are not mutually exclusive choices. We will continue to contest requests and laws that we consider unlawful, unclear, or overbroad,” he said.

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