Yahoo is calling on the intelligence community to make public a secret court order that required the internet giant to scan all incoming emails to their users’ inboxes.
The surveillance program was first reported in August by Reuters. Yahoo claimed the report was misleading, but didn’t offer any details to refute it.
Now, in a letter this week to Director of National Intelligence James Clapper, Yahoo General Counsel Ron Bell is calling on the secret surveillance order to be released to the public to allow the company to explain its actions.
“US laws significantly constrain—and severely punish—companies’ ability to speak for themselves about national security related orders even in ways that do not compromise US government investigations,” Bell wrote.
The missive goes on to urge Clapper to “consider the following actions to provide clarity on the matter.”
Yahoo additionally called on Clapper to confirm if the specific order mentioned in Reuters reports actually exists, and, if so, to review it for declassification. The company also asked the Director of National Intelligence to provide the public with a “sufficiently detailed” comment to explain the justification for the order.
“Citizens in a democracy require such information to understand and debate the appropriateness of such authorities and how the government employs them,” the letter continues.
The order that Yahoo complied with was reportedly issued by the Foreign Intelligence Surveillance Court (FISC)—a legal body that hears government surveillance requests and approves of them in secret.
The USA Freedom Act, signed into law last summer, included a provision that required the government to declassify any FISC orders that included a “significant construction or interpretation of any provision of law.”
According to digital privacy advocates, the Yahoo order, given its scope, should meet the criteria for declassification. As the Electronic Frontier Foundation (EFF) has reported, however, DOJ attorneys have argued that the Freedom Act’s provision is not retroactive, and doesn’t apply to FISC decisions prior to passage of the law.
“Although we don’t know the exact date of the Yahoo order, the stories indicate that the scanning began sometime in spring 2015, which would be a few months prior to passage of USA Freedom,” EFF said in a post earlier this month on its website.
The American Civil Liberties Union (ACLU) is also jumping into this transparency fight. It filed a motion before the FISC this week calling on the Yahoo order to be released. The group also called on the court to declassify at least twenty other secret rulings.
NBC News reported that a study from the Brennan Center for Justice uncovered more than 25 “major unreleased rulings” by the FISC, including court-approved government hacking, efforts to weaken encryption, and bulk collection activities.
Release of the judicial opinions, ACLU stated in it motion, “is manifestly fundamental in a democracy committed to the rule of law.”
