Yahoo says release of secret FISA court order will prove it resisted directives

Yahoo wants the Foreign Intelligence Surveillance Court to order the public release of a secret order in a 2008 surveillance dispute, as it will demonstrate that the Internet company “objected strenuously” to government directives.

The company said in a filing that disclosure of the information would show that it objected at every stage of the proceedings, but these objections were overruled and a stay denied. Yahoo like other electronic communications providers is under public pressure to provide more information about its response to U.S. government demands for user data, it said.

A number of Internet companies were charged in newspaper reports of providing real-time access to content on their servers to the U.S. National Security Agency under a surveillance program called Prism. The documents that formed the basis of these charges came from a former NSA contractor, Edward Snowden. The companies have denied their participation, and asked for greater transparency in the disclosure of data on government requests for customer information.

Making the FISC’s analysis available to the public in the 2008 case will provide the public with information about “how the parties and the Court vetted the Government’s arguments supporting the use of directives,” Yahoo’s attorneys said in the filing Tuesday.

The government has not objected to Yahoo’s request for release of the court’s orders and parties’ briefings. In a filing by the U.S. Department of Justice, it said that it was at the discretion of the court to publish the opinion, and it takes no “position on this request.” The government would conduct a classification review at the court’s request.

Yahoo first filed for publication of the court’s order in June, but referred to itself as a “provider” and redacted its name so that the motion could be made public.

In separate motions, Microsoft and Google have asked that they be allowed by the court to disclose aggregate statistics on orders and directives that were received under the Foreign Intelligence Surveillance Act and related regulations.

The rejection of Yahoo’s argument against data-gathering in the 2008 ruling gave the government leverage to persuade other technology companies to comply with similar demands for information, unnamed legal experts told the San Jose Mercury News.

Yahoo could not be immediately reached for comment.

The company has received between 12,000 to 13,000 requests for user data from law enforcement agencies in the U.S. between Dec. 1 and May 31 this year, Yahoo said in June.

The company did not disclose how many of the requests for customer data were under FISA, which has been at the center of a controversy after reports surfaced that the government was collecting data from a large number of users under the Act, including call metadata from telephone customers of Verizon.

“Like all companies, Yahoo! cannot lawfully break out FISA request numbers at this time because those numbers are classified; however, we strongly urge the federal government to reconsider its stance on this issue,” Yahoo CEO Marissa Mayer and General Counsel Ron Bell wrote in a blog post in June.

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