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Friday, June 28, 2013

Secret Court Declassifies Yahoo’s Role in Disclosure Fight

In the secret court that authorizes national security surveillance requests, everything is considered confidential â€" even the existence of communications between companies and the court. But this week, the court drew back the curtain slightly, declassifying the fact that Yahoo was the company that fought the court in a momentous case in 2008.

In an article on June 13, The New York Times identified Yahoo as the petitioner in the secret court case, which paved the way for the government to force Internet companies to hand over information about foreigners to the National Security Agency‘s Prism program, authorized by the Foreign Intelligence Surveillance Act.

The court used a heavily redacted version of the decision by the FISA court of review, published in 2008 without Yahoo’s name, to warn other companies that they need not even try to test the legality of FISA requests.

The day after The Times ran the story, Yahoo’s lawyers filed a motion for the secret court to publish records related to the case, including Yahoo’s name.

They argued that the release was “now in the public interest” as! a result of the current debate about surveillance and material that the government had recently declassified. This week, the government agreed.

The FISA court also agreed to make public a redacted version of the original decision that prompted Yahoo to appeal at the court of review.

Yahoo fought a part of FISA known as the Protect America Act, elements of which were folded into a 2008 amendment to FISA. Yahoo argued, unsuccessfully, that broad, warrantless Internet surveillance violated the Constitution. Yahoo appealed at the secret court of review, and that court also ruled against Yahoo, writing in its decision that “efforts to protect national security should not be frustrated by the courts.”