It looks like Yahoo fought the good fight, but ultimately failed to prevent its own forced participation in the recently-revealed PRISM – the NSA’s previously top secret surveillance program.
The New York Times reports that they have determined the identity of the tech company involved in a specific 2008 review case submitted to a Federal Intelligence Surveillance Court. in which said company objects to the government’s requests to have them participate in the so-called PRISM program. According to sources, that company in the heavily redacted FISA document is Yahoo.
It appears that much of Yahoo’s objection has to do with “incidental collections” of non-targeted users and how they could violate the Fourth Amendment. The court disagreed:
“The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful,” ruled the FISC.
The court went on to say this about incidental collections and the Fourth Amendment:
“The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.”
In the end, the court pretty much said that unless there was some specific harm that could be pointed out, national security efforts shouldn’t be “frustrated by the courts.”
“[W]e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case,” said the FISC decision.
“Yahoo has not joined any program in which we volunteer to share user data with the U.S. government,” said the company’s general counsel Ron Bell. “We do not voluntarily disclose user information. The only disclosures that occur are in response to specific demands.”
Volunteer. That’s a very well-constructed statement. At least we now know that Yahoo at least tried to fight the good fight. It’ll be interesting to see if the future narrative shifts from tech companies denying any involvement to tech companies touting how they tried to fight it, but ultimately failed.