Fresh from releasing a trove of documents about the NSA’s massive phone records database, the Obama administration is gearing up to reveal more secret files.
In a court filing Thursday, the government disclosed that it is planning to publish documents related to a classified April 2008 order that forced Yahoo to turn over users’ data under the NSA’s PRISM Internet surveillance program. The government says in the filing that the executive branch “has decided that it would be appropriate to declassify certain information in these documents.”
The release will pull back the curtain on the top-secret legal justifications that underpin the collection of data under the PRISM initiative, which operates under a controversial section of the Foreign Intelligence Surveillance Act. It’s fair to say that the government is not disclosing the information out of pure goodwill—its hand has been forced. Like recent disclosures by the administration of previously secret legal documents related to NSA surveillance, the publication of the 2008 Yahoo spy order has been prompted by a combination of legal pressure and leaks by former NSA contractor Edward Snowden.
Between 2007 and 2008, Yahoo argued to the Foreign Intelligence Surveillance Court that the government’s plan violated the Fourth Amendment, which protects against unreasonable searches and seizures. Yahoo was eventually forced to comply under threat of civil contempt charges, but the court opinion and order remained classified. However, after the PRISM program was leaked by Snowden and revealed by the Washington Post and the Guardian in June, Yahoo mounted a new legal challenge to force disclosure of the 2008 court order. In July, the Foreign Intelligence Surveillance Court ordered the government to conduct a “declassification review” of the documents and said that it planned to publish a redacted version pending the review. (Yahoo’s name is not disclosed in any of the court documents, in which it is described only as “the provider.” But the company’s identity was revealed in a New York Times report in June.)
In its legal filing Thursday, the government says that it will publish “much of the court’s opinion and order,” though says that there will be some redactions, which is in line with how it has been handling its other recent disclosures of NSA-related legal opinions. On Tuesday, the administration published hundreds of pages of documents related to the NSA’s daily collection of virtually all Americans’ phone records, and in August published a previously classified 85-page court opinion that slammed the NSA for conducting illegal Internet surveillance under a program that was reformed in 2011. The Yahoo case represents another example of how the Obama administration is trying to embrace greater transparency in the wake of the Snowden leaks. But the transition is not going completely smoothly, with the DOJ still fighting to impose absurd levels of extreme surveillance secrecy in other ongoing court battles.
