Yahoo! Wins Twice At the US Foreign Intelligence Surveillance Court

On July 15th, 2013, Judge Walton of the US Foreign Intelligence Surveillance Court (“FISC”) granted a motion put forward by Yahoo on June 14th, which called for the release of more details about the government’s push in a 2008 case to obtain user data under the Protect America Act.


Yahoo argued that the “[r]elease of this court’s decision and the parties’ briefing is necessary to inform the growing public debate about how this court considers and examines the government’s use of directives.”  It added, “[d]isclosure of the directives and the briefs in this case would also allow Yahoo to demonstrate that it objected strenuously to the directives that are now the subject of the debate, and objected at every stage of the proceedings, but that these objections were overruled and its request for stay was denied.”

The Protect America Act allowed the government to obtain data on foreign intelligence targets without a warrant. After its expiration in February 2008, it was replaced by the Foreign Intelligence Survaillance Amendments Act (“FISA”). FISA gives the FISC authority to order Internet companies to reveal user data but forbids publication with respect to whether the FISC has issued such an order. FISA was cited by the US government as the legal authority for seizing data from service providers under the PRISM program.

The recent FISC order directs the government to report to the court by July 29th, 2013 and provides for redaction of information that the government considers sensitive to national security. More specifically, Judge Walton states, inter alia, that “[t]he Government shall conduct a declassification review of this Court’s Memorandum Opinion of [Yahoo’s case] and the legal briefs submitted by the parties to this Court in this matter. After such review, the Court anticipates publishing that Memorandum Opinion in a form that redacts any properly classified information.”  Judge  Walton also added that “priority should be given” to the review of the opinion.

Yahoo began its push to unseal the court proceedings soon after Edward Snowden leaked classified documents in June that provided details regarding the alleged involvement of nine major Internet companies, including Yahoo, in the NSA’s PRISM Internet surveillance program. Yahoo filed its motion seeking to clear its name.

The US government’s secret surveillance programs have caused intense debates around the world. In the US, in particular, recently, civil liberties groups filed an amicus curiae brief before the FISC expressing their support to technology companies like Google and Microsoft that attempt to publish information as to the frequency of requests for user information for national security reasons made by the US government by invoking federal law. Those developments have also bolstered constitutional discussions as to the US government’s constitutional reasoning for using surveillance plans. Some legal scholars and practitioners have argued that such policies violate users’ Fourth Amendment rights against unreasonable searches and seizures. Most recently, the Electronic Privacy Information Center (“EPIC”) filed an emergency petition with the US Supreme Court challenging the NSA’s phone record surveillance program.

The reality in Canada, however, is somewhat different. Indeed, in Canada, we do have a secret court, the judges of which are  designated under the Canadian Security Intelligence Service Act. The court deals with sensitive national security issues and other activities of the like. We also have Communications Security Establishment Canada (the Canadian equivalent of the NSA in the US) and the Canada Patriot Act is incorporated into the Anti-Terrorism Act.

What we also have, however, is a certain level of transparency in how these procedures are followed – this is a very state of affairs when compared to the operation of the FISC in the US. Canadian privacy lawyer David Fraser has recently posted on his own blog three examples of published decisions where amici curiae have assisted the secret court  by arguing positions in opposition to the Canadian government’s requests.

Yahoo’s victory is seen as a major one paving the way for increased transparency when decisions have a significant impact on peoples’ civil rights even if sensitive national security issues are involved. The road, however, is still long and it will take more than an incidental judicial decision like this one to achieve sufficient transparency. One thing is certain, Yahoo not only won a legal battle but also many more clients.

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal.

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