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Yahoo Discloses 1,500 Pages of Documents on Gov't Surveillance

By Mark Wilson, Esq. | Last updated on

On Thursday, Yahoo announced it would disclose more than 1,500 pages of documents relating to 2007-08 litigation surrounding government attempts to access Yahoo user accounts without a warrant.

Yahoo said on its Global Public Policy Tumblr (yes, Yahoo uses a Tumblr to disseminate global public policy information) that it will take time to disseminate so much material, but other news outlets have apparently gotten access to some of the documents and reported on them. So, here's what happened:

Here's the Story

Back in 2007, Yahoo refused to comply with government surveillance directives that we've subsequently learned were related to the NSA's controversial PRISM program. The government sued to compel compliance with the order and threatened fines of $250,000 per day for noncompliance. Yahoo insisted that the government needed a warrant and that the Protect America Act provisions requiring less than a warrant were unconstitutional.

The Foreign Intelligence Surveillance Court of Review, a top secret appellate court, held that a foreign intelligence surveillance exception to the Fourth Amendment existed, and the government's attempt to get Yahoo's data was reasonable. Yahoo's loss meant that the government could compel other tech companies to turn over their data as well, The Washington Post reported.

Notably, the court didn't immediately acquiesce to the government's arguments, but neither did it go out of its way to see Yahoo's point of view. Yahoo, for example, posited that the government's sweep could vacuum up non-surveillance targets, like employees of a foreign corporation who had nothing to do with the actual surveillance at issue. "We need not cross this bridge today," the court said. "Courts do not deal in hypotheticals, and evidence of a practice defining the term 'employee' to include innocuous persons is wholly lacking in the record before us."

It's All About the Metadata

Though it's not clear from the FISC opinion exactly what data the government wanted, subsequent revelations by Edward Snowden suggested that the order was related to the NSA's attempt to get "metadata," according to the International Business Times. Metadata, of course, is not the substance of the data you want, like email conversations, but data about the data, like who emailed whom, and when.

The NSA has routinely dismissed the constitutional significance of metadata, even as it paradoxically insists that obtaining this unimportant data is vital to national security. In fact, metadata is so rich in relationship information about who's talking to whom that the NSA doesn't really need the substance of the conversation. "Metadata absolutely tells you everything about somebody's life," former NSA general counsel Stewart Baker said in 2013. "If you have enough metadata you don't really need content. ... [It's] sort of embarrassing how predictable we are as human beings."

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