The Washington Post

FISA court seeks release of declassified filings in secret Yahoo case

The secret surveillance court that approved the U.S. government’s broad collection of millions of Americans’ e-mail and telephone records called Monday for the Obama administration to declassify and release as much as it can of one of the court’s early legal decisions sanctioning that collection.

The chief of the Foreign Intelligence Surveillance Court ordered the Justice Department to begin a review to see how much it can reasonably declassify from a 2008 opinion — a ruling in which the court allegedly ordered Yahoo to turn over the records of its customers’ online communications.

In his order Monday, Judge Reggie B. Walton also instructed the department to undergo the same declassification process for the arguments that Yahoo and the U.S. government made in the case. He said he would then release the declassified portions of the court’s justification — and the legal arguments — to the public.

Walton’s decision comes when the court is bristling at suggestions that it effectively rubber-stamped a government surveillance effort that swept up the records of tens of millions of Americans and infringed on privacy rights. That information, known as metadata, is stored and records who was called and for how long, and who was e-mailed and how often.

The Obama administration ended the collection of bulk data on the e-mails and Internet usage of Americans in 2011 because the program was deemed unnecessary after an interagency review, according to administration officials. It is not known if e-mail collection continues in some other form. The collection of phone data continues.

The Foreign Intelligence Surveillance Court

Yahoo has pushed to unseal arguments and other documents in the case, saying the material will prove that the Silicon Valley giant fought against sharing its customers’ information and insisted that doing so was unconstitutional.

“We’re very pleased with the decision by the Foreign Intelligence Surveillance Court (FISC) ordering the government to conduct a declassification review of the Court’s Memorandum of Opinion of April 25, 2008, as well as the legal briefs submitted,” Yahoo said Monday in a statement. “Once those documents are made public, we believe they will contribute constructively to the ongoing public discussion around online privacy.”

Walton gave the administration two weeks to report back on when it can release the Yahoo case documents, with redactions as necessary for material that should remain classified. He noted that the government had taken “no position” on whether the 2008 order should be shared with the public.

A spokesman said the Justice Department was declining to comment.

The Foreign Intelligence Surveillance Act (FISA) ruling ordering disclosure of the records was the first of its kind for the spy court, which hears arguments in sealed, windowless courtrooms and has treated all its opinions as classified secrets. The order was released on a public docket the court recently created after revelations about National Security Agency programs.

On July 10, Yahoo filed a request that the FISA court release its 2008 opinion and Yahoo’s pleadings, which detailed its objections to the government’s request.

“Release of this court’s decision and the parties’ briefing is necessary to inform the growing public debate about how this court considers and examines the government’s use of directives,” Yahoo said in the filing. “Disclosure of the directives and the briefs in this case would also allow Yahoo to demonstrate that it objected strenuously to the directives that are now the subject of debate, and objected at every stage of the proceedings, but that theses objections were overruled and its request for stay was denied.”

Carol Leonnig covers federal agencies with a focus on government accountability.

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