Yahoo forced to join Prism or pay $250k a day (Wired UK)


Government slide showing when Yahoo and other internet companies began supplying data to the PRISM program

Courtesy of The Washington Post


A secret and scrappy court battle that Yahoo launched to resist
the NSA’s Prism spy program came to an end in 2008 because the Feds
threatened the internet giant with a massive $250,000 (£150,000) a
day fine if it didn’t comply.

The detail of the threat became public today after 1,500 pages worth of documents were unsealed in the case,
revealing new information about the aggressive battle the Feds
fought to force the company to bow to its demands. The information
was first reported by the Washington Post following a blog post
published by Yahoo’s general counsel disclosing that the documents
had been unsealed and revealing for the first time the government’s
threat of a fine.

Yahoo fought to unseal the case documents to provide better
transparency about the government’s data collection programs and
the FISA Court’s controversial history in approving nearly every
data request the government makes.

The company disputed the initial order in 2007 because it deemed
the bulk demand for email metadata to be unconstitutionally broad,
but it lost that fight both in the Foreign Intelligence
Surveillance Court and during appeal to the Foreign Intelligence
Court of Review. It was among the first of nine internet companies
to fall to the government’s demands for customer data and was a
crucial win for the Feds since they were allowed to wield the
ruling as part of their demand to other companies to comply.

Each of the internet companies fell in line with the program at
separate times in the wake of that ruling.

“The released documents underscore how we had to fight every
step of the way to challenge the US Government’s surveillance
efforts,” Yahoo General Counsel Ron Bell wrote in a post published after the unsealing. “At one point,
the US Government threatened the imposition of $250,000 (£150,000)
in fines per day if we refused to comply.”

The unsealing of FISA Court documents is extremely rare but, as
Bell noted, it was

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

The documents were posted online today by the Office of the Director of National
Intelligence. Bell noted that “[d]espite the declassification and
release, portions of the documents remain sealed and classified to
this day, unknown even to our team.”

The American Civil Liberties Union praised Yahoo for pushing
back on the government’s unreasonable surveillance.

“Yahoo should be lauded for standing up to sweeping government
demands for its customers’ private data,” Patrick Toomey, staff
attorney with the ACLU said in a statement.”But today’s [document]
release only underscores the need for basic structural reforms to
bring transparency to the NSA’s surveillance activities.”

Yahoo’s secret battle, and the Prism program, came to light only
last year after documents released by NSA whistleblower Edward
Snowden exposed the data-collection program. Yahoo, Google, Apple
and other companies were harshly criticised for complying with the
program and seemingly putting up no resistance to it. But shortly
after the program was exposed, Yahoo’s dogged
battle with the Feds to resist its inclusion in the program came to
light
only after another document leaked by Snowden exposed the
company’s legal fight against the FISA Court order.

Yahoo fought back on Fourth Amendment grounds, insisting that
such a request required a probable-cause warrant and that the
surveillance request was too broad and unreasonable and, therefore,
violated the Constitution.

Yahoo also felt that warrantless requests placed discretion for
data collection “entirely in the hands of the Executive Branch
without prior judicial involvement” thereby ceding to the
government “overly broad power that invites abuse” and possible
errors that would result in scooping up data of US citizens as
well.

The request for data initially came under the Protect America
Act, legislation passed in the wake of the 9/11 terrorist attacks
that allowed the Director of National Intelligence and the Attorney
General to authorise “the acquisition of foreign intelligence
information concerning persons reasonably believed to be outside
the United States” for periods of up to one year, if the
acquisition met five criteria. The Protect America Act sunset in
February 2008, but was incorporated into the FISA Amendments Act in
July that year.

Under the law, the government has to ensure that reasonable
procedures are in place to ensure that the targeted person is
reasonably believed to be located outside the US and that a
significant purpose of the collection is to obtain foreign
intelligence. In its request to Yahoo, the government apparently
proposed additional measures it planned to use to ensure that its
data collection was reasonable.

But Yahoo felt the procedures and measures the government
proposed to undertake were insufficient and refused to comply with
the data request. The government then asked the FISA Court to
compel Yahoo to comply, which it did.

Yahoo applied to appeal the decision and requested a stay in the
data collection pending the appeal. But the FISA Court refused the
stay, and beginning in March 2008, Yahoo was forced to comply with
the request for data in the meantime “under threat of civil
contempt.”

Five months later, in August 2008, the FISA Court of Review
found that the data request, undertaken for national security
reasons, qualified for an exception to the warrant requirement
under the Fourth Amendment and upheld the original court’s order to
comply.

As for Yahoo’s concern that the request was too broad and opened
the possibility for potential abuse, the judges wrote that the
company had “presented no evidence of any actual harm, any
egregious risk of error, or any broad potential for abuse in the
circumstances of the instant case” and called Yahoo’s concerns
“little more than a lament about the risk that government officials
will not operate in good faith.”

To support their ruling, the judges wrote that the government
“assures us that it does not maintain a database of incidentally
collected information from non-targeted United States persons, and
there is no evidence to the contrary.”

A year’s worth of Snowden revelations, however, have now shown
this to have been a misguided statement on the part of the
judges.

This article originally appeared on Wired.com

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12 September 2014 | 9:55 am – Source: wired.co.uk

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