More Yahoo vs. The NSA: Government Tried To Deny Standing, Filed Supporting Documents Yahoo Never Got To See

from the blindfolded-and-pickpocketed dept

Tue, Sep 16th 2014 9:03am — Tim Cushing

After having the court documents unsealed and the gag order lifted, Yahoo is finally free to talk about that one time when the government wanted to fine it $250,000 a day [!!] for refusing to comply with a FISA court order to turn over data on its customers. Two of the lawyers (Mark Zwillinger and Jacob Sommer) who represented Yahoo in that court battle, have written a post detailing the behind-the-scenes activity.

First off, they note that it's kind of amazing they're even able to discuss it at this point.

Having toiled in secret until recently, and having originally been told we would need to wait 25 years to tell anyone of our experience, it is refreshing to be able to write about the case in detail.

That's the normal declassification schedule, which at this point would still be nearly 18 years away. Fortunately, Ed Snowden's leaks have led to an accelerated schedule for many documents related to the NSA's surveillance programs, as well as fewer judges being sympathetic to FOIA stonewalling and exemption abuse.

We've talked several times about how the government makes it nearly impossible to sue it for abusing civil liberties with its classified surveillance programs. It routinely claims that complainants have no standing, ignoring the fact that leaked documents have given us many details on what the NSA does and doesn't collect. But in Yahoo's case, it went against its own favorite lawsuit-dismissal ploy.

First, the government's prior position on standing may be a bit of a surprise. In more recent cases, like Clapper, it has argued that only the provider has standing to challenge surveillance orders under the FISA Amendments Act, not individual users who may have been caught up in the surveillance. But, in this fight, the government argued that Yahoo had no standing to challenge a directive on the basis of the Fourth Amendment rights of its users.

The government definitely would prefer the swift removal of cases rather than actually having to defend its programs' Constitutionality -- so much so that it attempted to push the argument that no one has standing to challenge its collections. But that wasn't the government's only angle. The courts refused to entertain this sudden shift in the government's "standing" argument, so it moved on to levying fines.

A very short time frame to respond was granted to Yahoo, something made even shorter by the government's foot-dragging.

The FISC issued its decision on April 25, 2008, but we were not permitted to inspect the order until April 29, 2008 (and even then were not allowed to take notes), and did not receive a copy until May 5, 2008, when the government demanded that Yahoo give a same-day answer whether it would comply with the surveillance demand.

Shortly after Yahoo's response, the government moved for contempt charges and fines. $250,000 per day was the minimum. It asked for constantly-escalating fines that would double each week until Yahoo complied. Even for a tech giant, this fee scale could turn into real money incredibly quickly.

Simple math indicates that Yahoo was facing fines of over $25 million dollars for the 1st month of noncompliance, and fines of over $400 million in the second month if the court went along with the government’s proposal. And practically speaking, coercive civil fines means that the government would seek increased fines, with no ceiling, until Yahoo complied.

While the government was threatening Yahoo with massive fines, it was also filing secret briefs and motions in support of its admittedly "coercive" levies, stating that the company's resistance was causing "great harm," apparently on a daily basis.

Finally, the documents that were recently released by the ODNI (and Yahoo itself) contain many that Yahoo -- who was directly involved in this court battle -- had never seen before August 22.

The government filed ex parte documents in support of its surveillance program, many of which Yahoo had no access to during the legal struggle. Not only did the government force Yahoo to respond on its own schedule, but it kept the company in the dark about its justifications and other aspects of its programs. Yahoo couldn't ask for these documents in discovery, nor did it even know these existed.

[P]erhaps most importantly, a FISC decision from January 15, 2008 regarding the procedures for the DNI/AG Certification at issue, which Yahoo had never seen. It examines those procedures under a “clearly erroneous” standard of review – which is one of the most deferential standards used by the judiciary. Yahoo did not have these documents at the time, nor the opportunity to conduct any discovery. It could not fully challenge statements the government made, such as the representation to FISCR “assur[ing the Court] it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.” Nor could Yahoo use the January 15, 2008 decision to demonstrate how potential flaws in the targeting process translated into real world effects.

When it comes to the nation's security, apparently no legal deck can be stacked high enough. The government forces those who challenge its secret programs to wage courtroom battles with only the barest minimum of information. And, should it decide the defendant isn't moving fast enough, it can pursue exorbitant (and admittedly coercive) fines until it gets the cooperation it's seeking.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, fines, fisa, fisa court, nsa, paa, prism, privacy, standing, surveillance, threats
Companies: yahoo

36 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 16 Sep 2014 @ 9:13am

Any one element of this case should be enough to argue that the government is behaving in an unconstitutional manner. But, with all of these egregious activities put together, we've moved from simply being unconstitutional into the realm of authoritarian and dictatorship.

This is the type of behavior one expects from oppressive and abusive governments such as China, North Korea and Iran. But, this is the United States we're talking about here.

They every one belong in prison cells for the rest of their natural lives.
[ link to this | view in chronology ]
Violynne (profile), 16 Sep 2014 @ 9:15am

What I don't understand is how businesses continue to let the government do this to them.

This is clearly a violation, so why not just ignore the court orders and tell people "Yo, the government is fining us to get access to your data. Do something, or forgo your 4th Amendment rights."

If companies did this 10 years ago, it's highly unlikely the NSA would have the power it wields today.
[ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 9:18am
  
  Re:
  They care more about money than theirs or YOUR freedom.
  [ link to this | view in chronology ]
- tomczerniawski, 16 Sep 2014 @ 9:45am
  
  Re:
  Violynne, chances are the businesses had no choice in the matter. They were most likely compelled to co-operate, and prevented from even disclosing the matter to their customers, via a National Security Letter.
  [ link to this | view in chronology ]
- Michael, 16 Sep 2014 @ 9:45am
  
  Re:
  Remember, they are threatening executives directly, this is not just a matter of "yahoo" getting fined and they can just not pay it until enough US citizens complain to their representatives and someone in congress actually does something (that takes what, 25 years?). These are national security gag orders against everyone personally involved. Non compliance, followed by non-payment, followed by violating a gag order probably ends up with some pretty serious jail time and it is clear they are willing to do it.
  [ link to this | view in chronology ]
  - Uriel-238 (profile), 16 Sep 2014 @ 11:53am
    
    When you are getting jail time for not following rights-violating orders
    ...it's a good time to leave the country.
    
    If Yahoo transferred all their assets abroad and blew the whistle publicly, we might have been able to salvage the irredeemable situation our nation is now in.
    
    (I mean as much as I have fantasies that we'll be able to reform the government and get back our freedoms within the system, it's a long swim up the proverbial river, and against rapids.)
    [ link to this | view in chronology ]
    - Anonymous Coward, 16 Sep 2014 @ 7:38pm
      
      Re: When you are getting jail time for not following rights-violating orders
      Big problem here: the people involved, including the CEO and lawyers, face personal penalties for that. Even if it sort of worked, there are lots of ways to have your life ruined for that.
      [ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 9:49am
  
  Re:
  The NSA shouldn't even have the power to do so. The patriot act only says that the FBI can conduct domestic surveillance with help from the NSA.
  [ link to this | view in chronology ]
  - Anonymous Coward, 16 Sep 2014 @ 10:20pm
    
    Re: Re:
    This would be just like old Eastern Block - all the countries there where receiving USSR help, weather they wanted it or not.
    
    How exactly US differs? USSR had a secret law. US has a secret law ("national security" - and you'll never know what hit you). Everyone was a lawbreaker there, only not everyone was prosecuted (on authorities discretion) - just like in US (http://www.infowars.com/you-break-the-law-every-day-without-even-knowing-it/). Everyone (almost) there was claiming country's superiority, many believed it (and it is the same now). Just like US. And they were pushing their ways on others. Just like US.
    What have you done to your country, that it is going to dogs?
    [ link to this | view in chronology ]
- jupiterkansas (profile), 16 Sep 2014 @ 9:55am
  
  Re:
  This could only work if EVERY business did it and did it at the same time. Otherwise the government would hit each individual business hard (and go after the individuals running that business). Only a collective and very public action against government intrusion would be effective.
  
  And don't forget that up until the 2000s, big business was routinely painted as evil. Nobody would trust them when they complained about what the government was doing. Now suddenly Yahoo has turned all Kim Dotcom and become heroes thanks to the government's malevolence.
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 9:20am

This is what happens when leaders give in to fear.

This is what happens when false counselors whisper the word 'terrorism' into the ears of those who should know better.

This is what happens when the checks and balances of the great experiment called 'America' get thrown out.

This is what happens when uncaring men turn the course of a nation towards Empire.
[ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 9:24am

How does this not fall precariously close to being a Bill of Attainder? The NDAA and FISA Amendments Act provide legislative authority to the judiciary through FISC to punish Yahoo! without privilege of a judicial trial (they were forbidden from reviewing evidence or being participant in secret orders, thus denying them privilege of judicial trial).

This is a friggin' Bill of Attainder, which is expressly forbidden under Article I, Section 9 of the U.S. Constitution.
[ link to this | view in chronology ]
- Rekrul, 16 Sep 2014 @ 10:23am
  
  Re:
  This is a friggin' Bill of Attainder, which is expressly forbidden under Article I, Section 9 of the U.S. Constitution.
  
  The Constitution? What does Washington's toilet paper have to do with this?
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 9:32am

Coercive fines
I propose that we fine each NSA employee and DOJ employee who knows, or reasonably should know, about ongoing unconstitutional behavior $50 if they do not come forward by the end of the month, with that fine to double each business day thereafter that they continue to remain silent. Proceeds go to a whistleblower legal defense fund, since whistleblowers on this administration clearly need one.
[ link to this | view in chronology ]
- That One Guy (profile), 16 Sep 2014 @ 3:36pm
  
  Re: Coercive fines
  I further propose that they only be told about the potential fine on day 29 of the month, because if a single day to respond is enough for yahoo, it's good enough for the government employees.
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 9:43am

I know refusing the government's demands would bankrupt the company in record time, but I wonder if doing so would have prompted an earlier discussion about this whole thing.
[ link to this | view in chronology ]
- rapnel, 16 Sep 2014 @ 11:13am
  
  Re:
  Well, there you go, you can now thank Mr. Snowden for potentially saving hundreds of jobs, maybe even thousands. You know, imagine Lavabit employing 4,000 people and shutting down his business in the same manner. That's difficult to imagine, isn't it?
  
  And there you go again - one large government hell bent on enforcement of its own laws at all cost. That's not corruption that's politically correct tyranny. These people believe the constitution to be more of a soft box playpen than the steadfast perimeters that once defined this nation state.
  
  To Serve and Protect those that would otherwise be Free - Welcome to America, Century 21.
  [ link to this | view in chronology ]
TheResidentSkeptic (profile), 16 Sep 2014 @ 9:46am

Antique Moral Compass for Sale
The former owner (us gov't) no longer uses this magnificent piece of craftsmanship - forged by Hancock, Jefferson, and Sir Patrick Henry.

You may obtain this great piece of American History by filling out your DHS form for free gov't surplus equipment.

The winner will be announced shortly after the closing date for this years campaign contributions.
[ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 10:05am
  
  Re: Antique Moral Compass for Sale
  Which would be subsequently lost in transit, refund denied, and the purchaser finally being brought up on charges of bribing a public official to defraud the government of a priceless piece of historic but worthless current day value artifact.
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 9:50am

Everyone involved in this case from the Administraion need to be fired (with cause) and jailed for Perjury as a minimum.

This is not North Korea or 1950s Spain - this is modern-day America, for fuck's sake.
[ link to this | view in chronology ]
- David, 16 Sep 2014 @ 10:23am
  
  Re:
  This is not North Korea or 1950s Spain - this is modern-day America, for fuck's sake.
  
  Much more efficient than those losers, isn't it?
  
  This is modern-day America.
  
  For fuck's sake, indeed. Get in line to bend over.
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 10:00am

The rule of law doesn't exist for the government. Just look at the missing IRS emails. There's an investigation and no one will lift a finger to go and get the missing emails from storage.
[ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 11:53am
  
  Re:
  well... it technically DOES... just no one is enforcing it.
  
  When this happens you can know for certain that ALL the people in power are corrupt!
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 10:37am

I'm ashamed by thuggish, coercive mentality on display by my own government. First the US Gov says only communication companies have "standing" to challenge unconstitutional spying. Then the government changes it's story and says communications companies never had any legal standing to challenge their unconstitutional spying programs to begin with.

To top it all off, the US Gov then threatens to bankrupt one of the first and oldest internet search engines on the internet. Simply because Yahoo was attempting to defend the 4th Amendment rights of US citizens from being trampled on by the US Government.

I have to agree with a comment I read a few days ago. The entire US Government as gone rogue.
[ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 11:16am

Struggles in Fascism - Corporations and Government fighting over who controls the citizens.
[ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 11:32am
  
  Re:
  And both are badly deluded when the spies know everything about everyone, When their system in Bluffdale is complete they will take over.
  [ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 11:54am
  
  Re:
  This is what I consider the classic disagreement between the left and the right.
  
  Left = Control through Government.
  Right = Control through Big Business.
  
  I am predominantly conservative but fuck both of those notions.
  [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 11:29am

Solution
That secret courts have any authority is outright obscene. I propose adding the Lynch rule to the justice system. Namely that anyone who attempts to use secret laws, secret courts, or similar will be hung from the flagpole outside the courthouse by the neck until dead.
[ link to this | view in chronology ]
Jeff Wallace, 16 Sep 2014 @ 12:21pm

Yahoo vs NSA
I do not understand how government attorneys can ethically have ex-parte communications with a Judge and how a Judge can ethically receive an ex-parte communication when counsel is present on a case, and how is all this not a denial of Due Process (notice and an opportunity to be heard)? Someone please file an ethics complaint with the individuals (government attorneys and judges) state licensing boards. Neither the government attorneys or the judges should be licensed to practice law if they do not understand the prohibition against ex-parte communications and the constitutional obligation to provide due process.
[ link to this | view in chronology ]
KRA, 16 Sep 2014 @ 1:58pm

Trying to understand or condemn this travesty by invoking the Constitution or right to due process assumes that the scum who perpetrate this care about the Constitution, and assumes that the system has safeguards to protect civil liberties. I don't think either condition is met in America anymore.
[ link to this | view in chronology ]
orbitalinsertion (profile), 16 Sep 2014 @ 2:02pm

You forgot to put "security" in that last paragraph in quotes. ^.^
[ link to this | view in chronology ]
JustMe, 16 Sep 2014 @ 5:40pm

The government has done anything they could to prevent any legal challenge to what there doing. So why were they so shocked when snowden challenged it unlawfully?

As disappointed as i am in the governments actions at point. I am really disheartened that so many Americans that work for these agency have remained mute.

If the government doesn't respect the "Bill of Rights" then America no longer exists.
[ link to this | view in chronology ]
- That One Guy (profile), 16 Sep 2014 @ 6:11pm
  
  Re:
  Snowden infuriated them in part because they went through all that trouble to provide a completely and utterly useless 'official' avenue to report government abuses, and avenue that won't do squat for actually fixing the abuses, but is great for pointing out people who are capable of questioning what they are told, and he didn't use it.
  
  I mean, they go through all the trouble to set up a trap and bait it, and he had the gall not to stick his head in it, of course they're going to be furious with him! /s
  [ link to this | view in chronology ]
- Anonymous Coward, 16 Sep 2014 @ 7:58pm
  
  Re:
  your about several decades too late for that revelation unfortunately.
  
  Until millions of Americans lose their bread and circuses nothing will ever get better, but it will get a lot worse. As those in charge consolidate their power. Were just seeing them openly commit crimes now because Americans have proven for the most part they don't care if their government is a tyranny.
  [ link to this | view in chronology ]
  - Anonymous Coward, 16 Sep 2014 @ 10:23pm
    
    Re: Re:
    The idea was born before I was and I'm nowhere near the most capable observer. I still have to keep pointing it out when I see it.
    [ link to this | view in chronology ]
Anonymous Coward, 16 Sep 2014 @ 7:55pm

nothing quite like secret courts and secret evidence in the good land of the free, home of the brave.

Or would that be land of the enslaved, home of the cowed
[ link to this | view in chronology ]