Yahoo's secret FISA fight to be made public

July 16, 2013: 4:15 PM ET
yahoo fisa letter
The government's surveillance court on Monday ordered the public release of documents from Yahoo's 2008 lawsuit challenging the government's requests for data on Yahoo's users.
NEW YORK (CNNMoney)

Five years after it challenged the legality of the U.S. government's digital surveillance efforts, Yahoo finally scored a victory in its quest for greater transparency about the controversial program.

The government will have to publish court papers from 2008 that outline Yahoo's objections to releasing data about its users without a warrant, the Foreign Intelligence Surveillance Court (FISC) ruled Monday.

After details leaked last month about the National Security Agency's Prism program, tech companies -- including Yahoo -- drew fire from some for their apparent compliance with the government's secret spying. Yahoo is trying to to make clear just how little choice it had.

The company filed briefs back in 2008 challenging the constitutionality of the government's requests. It categorically lost. The FISC court both rejected Yahoo's arguments and barred the company from talking about its objections. In a publicly released summary of the 2008 case, Yahoo's name was redacted.

Yahoo (YHOO) took another run at the issue last month after Prism hit the headlines. It asked FISC to declassify the briefs it filed in the 2008 case, as well as the briefs filed by the government.

Now that the horse has bolted from the barn, the government dropped its objections to the disclosure. It retains the right to redact "properly classified information," but took "no position" on whether the documents should be published, according to the court order granting Yahoo's request.

Related story: Yahoo: 13,000 government requests for data

The release of court documents from five years ago may not reveal too much, but it marks a softening in matters surrounding the Foreign Intelligence Surveillance Act (FISA), the law used to justify the government's information requests from tech companies. FISA requests are often gag-ordered so that companies cannot publicly acknowledge them.

"Once those documents are made public, we believe they will contribute constructively to the ongoing public discussion around online privacy," Yahoo said in a written statement. Microsoft (MSFT) and Google (GOOG) have also asked the FISC court to let them publish more details about the government's requests.

The documents could shed some on the court's basis for rejecting Yahoo's claim that the government's surveillance requests are illegally broad, said Greg Nojeim, senior counsel at the Center for Democracy and Technology, an industry advocacy group.

"The FISA court, wanting to show that it isn't merely a rubber stamp for the government, has a strong new incentive to encourage the government to declassify the court's opinion so that people can see the reasoning behind it," Nojeim said.

The government must report back to the court by July 29 with estimated dates for which it will be able to complete its declassification review of the 2008 documents.

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