Case: In re Directives to Yahoo Pursuant to Section 105B of the Foreign Intelligence Surveillance Act. [105B(g) 07-01]

In 2012, leaks by Edward Snowden revealed many details about NSA surveillance programs that had been going on for many years. In the aftermath of those leaks, the government declassified many previously secret details regarding these programs. Among the declassified documents were those in this case, in which the internet company Yahoo!, Inc. attempted to resist surveillance of some of its customers by the NSA, but lost in front of the FISA Court and the FISA Court of Review.

Beginning in 2007, the government issued directives to Yahoo ordering it to assist in warrantless surveillance of certain customers, pursuant to a now-expired set of amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Protect America Act of 2007 (PAA), which authorized the United States to direct communications service providers to assist in acquiring foreign intelligence when those acquisitions targeted third persons reasonably believed to be located outside the United States. Having received the directives, Yahoo challenged their legality before the Foreign Intelligence Surveillance Court (FISC). That court found the directives lawful and compelled obedience.

Yahoo appealed, petitioning for review before the Foreign Intelligence Surveillance Court of Review (FISCR), and moved the FISC for a stay pending appeal. The FISC refused to grant the stay; Yahoo thus began compliance under threat of civil contempt. On August 22, 2008, in its second-ever decision, the FISCR affirmed the motion to compel. In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008). The FISCR issued an order on January 12, 2009, placing under seal all classified information in the matter. Because of that order, none of the documents in the matter were public.

On June 14, 2013, after the 2012 Snowden disclosures, Yahoo filed a motion seeking publication of the FISC's decisions and records. On June 17, 2013, FISC Judge Reggie B. Walton issued a scheduling order for the government's response and Yahoo's reply. On June 25, 2013, the government responded indicating that the public had an interest in disclosure of the information in the motion and the identity of the provider. On June 26, 2013, Judge Walton ordered that Yahoo's motion, response, and the court order of June 17, 2013, no longer be under seal. The government then informed Yahoo that its name and its counsels' identities were no longer classified and could be released.

Afterward, on July 9, 2013, Yahoo moved to disclose additional portions of the court's April 25, 2008 opinion and the parties' legal briefs leading to that opinion. On July 15, 2013, because the government had offered no objection to these additional disclosures, Judge Walton ordered the government to conduct a declassification review of the April 25, 2008 opinion and the legal briefs submitted by parties. The government was required to report by July 29, 2013, with estimated dates when it would complete the review.

In response, on July 29, 2013, the government proposed to conduct a declassification review of (1) the April 25, 2008 opinion by September 12, 2013; (2) the briefs and materials cited in the April 25 opinion by September 27, 2013; and (3) other briefs and materials on a rolling basis. The government's response included an appendix containing a list of documents and associated dates for declassification review. The government provided to the court the first and second portions of the records pursuant to the timeline. The portions were redacted and subject to publication upon the court's review.

On September 30, 2013, Yahoo requested permission to review the government's redacted submissions. Yahoo claimed that, through its involvement in this case, it still had access to many of the documents being redacted. Yahoo thus wanted an opportunity to review the government’s redactions so that Yahoo could object to the redactions, if it deemed objection appropriate. The court, however, never ruled on this motion. Instead, on October 21, 2013, the parties filed a joint motion to allow Yahoo prepublication access to the court documents after declassification by government and submission to the court for review.

On October 22, 2013, Judge Walton granted the joint motion for prepublication access and established a procedure for Yahoo to review and file any motions regarding the release of those documents. But the court issued a stay in reviewing any additional redactions in the meantime government because the FISCR was also engaged in some sort of declassification process. The court wanted to be able to have FISCR’s declassification process "inform [the court’s] examination of declassified materials on the same subject matter." Although the FISCR does not have a public docket, the FISCR’s declassification process resulted in substantial disclosures. On September 11, 2014, Yahoo released over 1,500 pages of documents, while noting in a statement that Yahoo was "still pushing for the FISC to release materials from the 2007-2008 case in the lower court."

The FISC's stay remained in effect for a little over a year. On October 24, 2014, Yahoo moved to lift the stay after the FISCR had completed its own declassification process. On November 5, 2014, FISC Judge Thomas F. Hogan granted the motion, lifting the stay and requiring the government to resume its redaction and declassification process. On November 18, 2014, the government provided the court with a proposed schedule for continued declassification review. The government, however, contended that it did not need to further review any documents FISCR had already examined. Yahoo, however, disagreed, and filed a response on December 18, 2014, arguing that FISCR had only reviewed already-redacted documents during its declassification review, and so the government should be required to conduct another declassification review of the unredacted documents. The court agreed with Yahoo and, on December 23, 2014, ordered the government to conduct a declassification review of the unredacted versions.

On January 7, 2015, the government filed a response in which it claimed that it had actually already conducted a review of the unredacted versions. The government estimated that it would be able to provide the newly redacted documents on January 30. The government met this deadline; on January 30, 2015, the government provided the court with the proposed redactions. On March 4, 2015, the government notified the FISC that it had found two additional documents that could be disclosed.

On February 5, 2016, Judge Hogan issued an order notifying the government that it had questions about the proposed redactions; the questions themselves, however, remain classified. On March 4, 2016, the government filed a response (which also remains classified), but apparently reconsidered the scope of the redactions proposed on January 30, 2015. On March 14, 2016, the court issued an order requiring the government provided new proposed redactions by April 11, 2016, and set forth a proposed schedule for Yahoo to respond to those redactions. Accordingly, on April 11, 2016, the government submitted the new redactions; Yahoo did not file any response. On April 27, 2016, Judge Hogan ordered that the redacted documents be unsealed.

On May 9, 2016, Yahoo released the unsealed documents along with a statement:

We believe significant value exists in making these documents available to the public to promote informed discussion about the relationship between privacy, due process and intelligence gathering. They also demonstrate the importance of hard-fought reforms to surveillance law, like the addition of a "special advocate" in the FISC, achieved with passage of the USA Freedom Act.