FISA court asks government to declassify secret order in Yahoo case

The U.S. Foreign Intelligence Surveillance Court has ordered the government to declassify its secret order and parties’ briefs in a case which Yahoo expects will demonstrate that it resisted government directives.

The court ruled on Monday that the government should do a “declassification review” of the court’s memorandum of opinion in 2008 and legal briefs submitted by the parties, as it anticipates publishing its opinion in a redacted form. The government will have to report to the court by July 29 on the likely dates for the completion of the declassification of the documents, with priority given to the court opinion, Judge Reggie B. Walton wrote in the order.

Yahoo said in a filing to the court last week that disclosure of the information would show that it objected at every stage of the proceedings, but the 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.

The disclosure of the court’s opinion and other documents would also give the public a view into “how the parties and the Court vetted the Government’s arguments supporting the use of directives,” Yahoo said in the filing.

The court has been set up under the Foreign Intelligence Surveillance Act (FISA) which requires the government to obtain a judicial warrant for certain kinds of intelligence gathering operations.

Internet companies are at the center of a controversy that they reportedly provided real-time access to content on their servers, after former National Security Agency contractor, Edward Snowden, revealed through newspaper reports certain documents about a government surveillance program called Prism.

The companies have denied their participation in the program, and asked for greater transparency in the disclosure of data on government requests for customer information. In separate motions in the court, Microsoft and Google have asked that they be allowed to disclose aggregate statistics on orders and directives that were received under FISA and related regulations.

Secret orders, also known as “gag orders,” on companies place limitations on how much they can disclose to the public about possible encroachments on privacy.

In response to a report in the Guardian newspaper that the company was helping the government with access to data on some of its products like Outlook.com and Skype, Microsoft said last week that it does not provide any government with blanket or direct access to any of its products.

But when it updates or upgrades products legal obligations “may in some circumstances require that we maintain the ability to provide information in response to a law enforcement or national security request,” Microsoft said. “There are aspects of this debate that we wish we were able to discuss more freely. That’s why we’ve argued for additional transparency that would help everyone understand and debate these important issues,” it said in a statement.

Internet companies like Facebook, Yahoo, Apple and Microsoft have so far released aggregate figures for data requests from the government, but didn’t say how many were related to national security. Yahoo said it could not break out requests under FISA, because those figures were classified.

The government had previously said it did not object to Yahoo’s request for release of the court documents, and offered to conduct a classification review at the court’s request.

“We encourage every company that has opposed a FISA order or directive to move to unseal their oppositions so the public will have a better understanding of how they’ve fought for their users,” rights group Electronic Frontier Foundation said in a post.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John’s e-mail address is john_ribeiro@idg.com