Yahoo Disclosures Show Beginning of Broad Data Gathering

The Times' Vindu Goel reports:

It’s hard to fathom after a year of revelations about widespread government surveillance of Internet users, but in 2007, the government’s authority to demand such data from technology companies without a search warrant was very much in doubt.

That changed a year later, when crucial precedents establishing the government’s right to request emails, phone records and other user data were set in a secret court case in which Yahoo unsuccessfully challenged the constitutionality of the government’s demands for information about its foreign users.

Documents from that case, which were released by the Foreign Intelligence Surveillance Court this week after much of the file was declassified, paint a vivid portrait of a battle that pitted a leading Internet company against some of the top officials in the Bush administration over what was legitimate gathering of foreign intelligence and what was illegal snooping.

At one point, when Yahoo refused to turn over the requested data while it appealed its loss at the first stage of the case, the director of national intelligence, Michael McConnell, submitted an impassioned 16-page affidavit to Reggie B. Walton of Federal District Court, the surveillance court judge who had decided the case, outlining the various threats posed by Al Qaeda and other terrorist groups and the need for Yahoo’s cooperation.

International terrorists “use Yahoo to communicate over the Internet,” Mr. McConnell wrote. “Any further delay in Yahoo’s compliance could cause great harm to the United States, as vital foreign intelligence information contained in communications to which only Yahoo has access, will go uncollected.”

Underscoring that urgency, the government’s lawyers asked Judge Walton to declare Yahoo in contempt and impose a fine of $250,000 a day, with the daily fine to double each week that the company continued to drag its feet. The judge took just a few hours to order Yahoo to comply “forthwith” or face “coercive” fines, prompting it to cooperate as it pursued its appeal.

The legal decisions in the case, and the reasoning used by both sides, helped set the stage for an updated Foreign Intelligence Surveillance Act that set clearer rules about what types of information the government could seek from technology companies like Yahoo, Google and Facebook, which hold vast quantities of private user information.

The lower court and appellate rulings supporting the government also gave encouragement to national security officials as they pushed forward with broad surveillance programs like Prism, XKeyscore and others described in documents leaked last year by Edward J. Snowden, a former National Security Agency contractor.

“The specific kind of surveillance the government was seeking was untested,” said Stephen I. Vladeck, a professor who studies national security law at the American University Washington College of Law. “This litigation led to the judicial validation of practices that the government was already undertaking.”

The Protect America Act, a temporary law passed in August 2007 by Congress after the 9/11 attacks, was the first to explicitly authorize bulk surveillance of foreigners suspected of being terrorists or posing other national security threats.

Yahoo chose to mount an aggressive challenge to such surveillance, setting itself as a defender of its users’ rights.

“The broad surveillance authorized by the P.A.A. and the directives is unreasonable because the P.A.A. allows the government to initiate surveillance on an unlimited number of targets, with no prior judicial review, no requirements of particularity and no findings of necessity,” the company wrote in its brief urging the appellate panel to allow oral arguments in the case. “The issues at stake in this litigation are the most serious issues this nation faces today — to what extent must the privacy rights guaranteed by the United States Constitution yield to protect our national security.”

Perhaps coincidentally, as the company waged its secret court fight, its co-founder and chief at the time, Jerry Yang, was being raked over the coals by Congress and human rights advocates for the company’s 2007 decision to turn over information on Chinese users that had been demanded by the Chinese government, resulting in the arrest of at least two dissidents.

Judge Walton, who heard the initial round of the case, and the three- judge panel of the Foreign Intelligence Surveillance Court of Review that heard the appeal were both acutely aware of the precedents they were setting.

In his 98-page ruling, Judge Walton bemoaned the lack of clear guidance to decide the matter, even as he carefully addressed each party’s principal arguments. Ultimately, he concluded, deference must be given to the government’s claims that it would protect American users’ legal rights as it pursued foreign intelligence needed for national security.

Noting that the Protect America Act was “hardly a model of legislative clarity,” he nevertheless found that the government’s surveillance requests did not violate the Fourth Amendment right of Americans to be free of unreasonable searches: “Congress obviously sought to strike the proper balance between the sometime conflicting interests of individual privacy and national security.”

The appeals panel, led by Judge Bruce M. Selya, a senior judge on the Federal Court of Appeals for the First Circuit, also ruled in the government’s favor, expressing confidence in officials’ good-faith efforts to protect the rights of Americans.

“We caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power,” the panel wrote. “Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.”