U.S. Government Threatened to Fine Yahoo $250k per day for Not Complying with NSA

Carey Wedler
September 12, 2014

prism(TheAntiMedia) SUNNYVALE, CA- On Thursday, Yahoo’s general counsel, Rob Bell, revealed on the company’s blog that they challenged the United States’ expansion of surveillance laws as early as 2007 and 2008.

Following the recent release of previously sealed documents in the Foreign Intelligence Surveillance Court (FISC), the secret court that oversees government requests for private data, Bell announced that Yahoo challenged an amendment to a key law in 2007. This was an attempt to withhold its users data based on the argument that the government’s demands were “unconstitutional and overbroad.” Image credit: sfslim

Though Yahoo’s suit and a subsequent appeal were ultimately unsuccessful, over 1,500 pages of documentation were unsealed by federal judge,William Bryson, the presiding judge of the Foreign Intelligence Surveillance Court of review. The court of review examines rejections of the government’s requests for electronic surveillance warrants. The documents, not yet available due to the lack of a public docket in the clandestine FISC, outline the company’s strategy to challenge the government, but Bell revealed that portions are still sealed. Yahoo is still working in the lower courts to declassify other materials from the 2007-2008 case, as well.

Bell disclosed in the blog post that at one point during the secret court proceedings, the U.S. government threatened to fine Yahoo $250,000 per day that it withheld the requested data.

The FISC, whose records and hearings are restricted from public access, came under heavy scrutiny for an alleged “rubber stamp” policy on government warrant requests following the revelations of NSA whistleblower Edward Snowden last year. Yahoo’s loss in its challenge in the FISA court made it one of the first companies forced to contribute user data to the PRISM program, another harshly criticized component of the NSA’s mass surveillance.

┬áPRISM, instituted in 2007, operated under FISA’s surveillance until it was discontinued in 2011 and collected bulk data from tech giants including Google, AOL, Apple, Yahoo, Microsoft and others. This revelation to the public last year prompted international outrage against the NSA and the companies that cooperated with it.

As the ACLU’s deputy director, Jaleel Jaffer, described PRISM:

It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.”

In 2009 and 2010, two phone companies attempted to push back against the government’s broad demands for data. The Washington Post reported that one of these companies was Sprint, though the company ultimately did not follow through on their challenge in the FISA court. Verizon, also identified by the Post, did sue, but its challenge was rejected by Federal District Court Judge Rosemary M. Collyer, who also sits on the FISA court.

Following the aftermath of Snowden’s whistleblowing in 2013, a coalition of 19 human rights, gun owner, marijuana legalization, environmental and Muslim groups filed for a injunction against NSA surveillance while the ACLU challenged the constitutionality of the NSA’s policies. The Electronic Privacy Information Center petitioned the supreme court to “vacate an unlawful order” by the FISA court for mass collection of Americans’ data.

Similarly, in 2013, Microsoft and Google moved forward with lawsuits against the government for the right to release classified documents regarding their compulsory data sharing with the NSA under FISA legislation.

Yahoo’s challenge to the NSA in 2008 appears to be the first of any internet company’s attempt to substantively buck national security policy, though following their loss, they eventually complied. Due to the secretive nature of the FISC, this lawsuit was classified until 2013.

The release of documents by the FISC regarding the company’s challenge signals a rare move by the FISA court to publicize a challenge to its policy. Yahoo’s general counsel, Rob Bell, plans to publish the 1,500 pages on Yahoo’s blog as soon as they are available.

He wrote:

“We consider this an important win for transparency, and hope that these records help promote informed discussion about the relationship between privacy, due process, and intelligence gathering.”

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