Yahoo fought an order to help the government spy on foreign users arguing it would violate the Fourth Amendment protections from unwarranted search and seizure by incidentally collecting the communications of American citizens, but a 2008 Foreign Intelligence Surveillance Act Court (FISC) ruling rejected their argument calling their concerns “overblown,” the New York Times reported Friday. Under the ruling, Yahoo was legally required to participate in the PRISM program. The opinion previously came to light in 2009, but the name of the company was not revealed at the time due to a gag order. Sources have now confirmed the company’s identity to the New York Times. In the ruling, the court chided Yahoo for offering “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 said that the government’s “reasonable” efforts to minimize incidental data collection made the company’s points moot.
Then-Sen. Russ Feingold (D-WI), who served on the Senate Select Committee on Intelligence, noted at the time because Yahoo “did not have access to all relevant information” about the implementation of the Protect America Act (PAA) and its successor the FISA Amendments Act (FAA), the ruling relied on a good faith acceptance of the government’s claims and provided the company with no avenue for discovering other evidence. Feingold suggested the court would have taken a “fundamentally altered” view had the company been able to obtain the evidence the court demanded.
At least one FISC opinion within the last few years ruled some aspect of government surveillance unconstitutional under the Fourth Amendment, but the government has been fighting against releasing that opinion. The Electronic Frontier Foundation (EFF) is suing the Department of Justice (DOJ) for the release of that opinion. On Wednesday, the secret court said that it has no objection to that opinion being declassified and its rulings are not secret-by-default. This first known victory for a non-governmental party before the FISC will not declassify the opinion itself.
Overall, the new revelations about the Yahoo opinion are not all that surprising. The FISC approved the Verizon court order, which allowed for the broad collection of metadata on the phone calls of U.S. citizens. And, according to the Electronic Privacy Information Center (EPIC), the court approved 33,942 FISA applications between 1979 and 2012, while rejecting just 11.