Shedding Light on the Foreign Intelligence Surveillance Court (FISC): Court Findings from Our 2007-2008 Case
By Ron Bell, General Counsel
Today we are pleased to announce the release of more than 1,500 pages of once-secret papers from Yahoo’s 2007-2008 challenge to the expansion of U.S. surveillance laws.
In 2007, the U.S. Government amended a key law to demand user information from online services. We refused to comply with what we viewed as unconstitutional and overbroad surveillance and challenged the U.S. Government’s authority.
Our challenge, and a later appeal in the case, did not succeed. The Foreign Intelligence Surveillance Court (FISC) upheld the predecessor to Section 702 of the FISA Amendments Act. The Court ordered us to give the U.S. Government the user data it sought in the matter.
The FISC and the FISC-R are “secret” courts that oversee requests by the U.S. Government for surveillance orders and other types of legal process in national security investigations. The Court’s hearings and records are closed to the public and typically classified. For example, our role in the 2007-2008 lawsuit remained classified until 2013. In spite of this, we fought to declassify and to share the findings from the case. A decision to open FISC or FISC-R records to the public is extremely rare.
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.
Key takeaways from these documents include:
An expanded version of the FISC-R opinion in the case, originally released in 2008 in a more redacted form.
The release of the never-before-seen 2008 FISC opinion that we challenged on appeal.
The parties’ briefs, including some of the lower court briefings in the appendices.
An Ex-Parte Appendix of classified filings.
A partially redacted certification filed with the FISC, as well as a mostly unredacted directive that Yahoo received.
Despite the declassification and release, portions of the documents remain sealed and classified to this day, unknown even to our team. The released documents underscore how we had to fight every step of the way to challenge the U.S. Government’s surveillance efforts. At one point, the U.S. Government threatened the imposition of $250,000 in fines per day if we refused to comply.
Our fight continues. We are still pushing for the FISC to release materials from the 2007-2008 case in the lower court. The FISC indicated previously that it was waiting on the FISC-R ruling in relation to the 2008 appeal before moving forward. Now that the FISC-R matter is resolved, we will work hard to make the materials from the FISC case public, as well.
Users come first at Yahoo. We treat public safety with the utmost seriousness, but we are also committed to protecting users’ data. We will continue to contest requests and laws that we consider unlawful, unclear, or overbroad.
NOTE: As there is no FISC-R public docket, we’d like to thank the Center for Democracy and Technology (LINK) for hosting the documents released by the FISC.