JURIST Guest Columnist Sandy Davidson, of the University of Missouri School of Journalism and School of Law, discusses the recent revelations of Yahoo and the potential fallout…

At least the Yahoo case has now shed a little sunshine on secret government surveillance.

The US government, as part of its foreign surveillance program, ordered Yahoo to turn over the content of communications of targeted foreign users in 2007. Yahoo balked, and its legal battle to resist began secretly because surveillance law prohibits companies such as Yahoo from revealing government requests. The government threatened daily fines of $250,000 for noncompliance.

On September 11, 2014, the Foreign Intelligence Surveillance Court released 1,500 pages of formerly secret documents about Yahoo’s losing attempt to resist government use of the PRISM surveillance program of the Protect America Act of 2007. This act had a 180-day sunset provision, so Congress then passed the Foreign Intelligence Surveillance Act (FISA) of 2008 [PDF].

PRISM stands for “Planning Tool for Resource Integration, Synchronization and Management.” PRISM permits surveillance of actual communications. The 2007 and 2008 laws say, “the Attorney General and the Director of National Intelligence may authorize jointly … the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” But the implementation of PRISM only became publicly known through Edward Snowden’s 2013 leaks to The Guardian‘s Glenn Greenwald, The Washington Post‘s Barton Gellman and documentary film maker Laura Poitras.

So Yahoo received government subpoenas to turn over information under PRISM. But these warrantless searches struck Yahoo as a violation of the Fourth Amendment. Yahoo had a point. The founding fathers wanted searches to be authorized by search warrants.

On the other hand, the release by the FISA court on the thirteenth anniversary of the 9/11 attacks perhaps drove home some implicit points. We are vulnerable. Some people hate us. We have apparently been doing something right because we have not, so far, experienced further attacks. And, as Supreme Court Justice Robert Jackson noted in 1949, the US Constitution is not a “suicide pact.”

We want security, of course. The recent, ghastly beheadings of journalists James Foley and Steve Sotloff by ISIS certainly emphasized the hatred directed toward this country. But we want our liberty, as well. If our liberties are stripped from us in the name of security, then the freedom haters of the world have already won.

The battle to balance security against liberty is an old one, and President Harry Truman brought the National Security Agency (NSA) into the mix when he ordered its creation in 1952. During WWII, the US broke military codes of Germany and Japan, and the NSA was formed to continue, in Truman’s words, “communications intelligence activity.” But an investigation in 1976 by Senator Frank Church’s intelligence committee into reports of illegal spying on domestic activities led to the 1978 passage of the original FISA, with its secret court to reign in surveillance activities.

On September 11, 2001, disaster struck. Then surveillance power swelled. On October 24, 2001, Congress passed the USA Patriot Act [PDF], which includes a Section 215 amendment to FISA: “The Director of the Federal Bureau of Investigation … may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism….” Section 215 covers metadata collection (who is calling whom, when, where and for how long).

On December 16, 2005, The New York Times published a story, “Bush Lets U.S. Spy on Callers Without Courts,” by James Risen and Eric Lichtblau. The story began, “Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.” The series of NSA stories won the 2006 Pulitzer Prize for national reporting.

In 2007 and 2008, Congress empowered the president to do emergency surveillance without getting a FISA warrant for a limited time (the president would go to the court to get retroactive approval) and granted companies immunity from suits for turning over information. In 2012, the US Supreme Court let the retroactive immunity stand and Congress approved the foreign surveillance law for another five years.

Two other surveillance provisions under attack are Section 215, covering metadata collection and Section 702, governing PRISM.

While PRISM allows greater depth of information-gathering because it permits surveillance of actual content of communications, PRISM is only supposed to target “foreign intelligence information.” Section 215 collection of metadata, however, affects anyone who relies on phone conversations.

On July 24, 2013, the House of Representatives voted 217 to 205 to defeat a Patriot Act amendment from Representative Justin Amash (R-MI) that would have prevented the NSA from collecting phone data of individuals not under investigation. The White House lobbied against this bill. Democrats voted in favor 111 to 83. Republicans voted against 94 to 134.

Suits also flew over metadata collection, with conflicting results. For example, on December 16, 2013, in Washington, DC, a 68-page decision came down in the first class-action lawsuit against the NSA’s bulk phone-record collection, filed by Freedom Watch founder and former Justice Department prosecutor Larry Klayman. In Klayman v. Obama, Judge Richard Leon, an appointee of President George W. Bush, awarded Klayman a preliminary injunction against the phone program but stayed implementation pending appeal. Calling the program “almost Orwellian,” the judge said it “almost certainly” violates the Fourth Amendment. The Justice Department has appealed.

On December 27, 2013, in Manhattan, Judge William Pauley, a Clinton appointee, declared that NSA bulk data-collection operations are legal. In ACLU v. Clapper, he wrote a 54-page decision that begins, “The September 11 terrorist attacks revealed … just how dangerous and interconnected the world is.”

The US Supreme Court has yet to rule on the constitutionality of these information-surveillance laws passed by Congress to protect us from terrorist attacks.

On February 26, 2013, in Clapper v. Amnesty International USA, the US Supreme Court rejected a challenge to Section 702 of the FISA Amendment Act. The court ruled 5-4 that the plaintiffs lacked standing because they failed to prove likelihood of interception of their communications with foreign contacts. Plaintiffs also included Global Fund for Women, Human Rights Watch, International Criminal Defense Attorneys Association and The Nation magazine, among others.

Barring court relief, Yahoo and other companies must comply with government orders to turn over information or face serious penalties: $250,000 a day adds up quickly.

What is the solution for those who value privacy and cringe at government’s easy access to information about whom they call, when and for how long—and maybe even the content? Perhaps former President Jimmy Carter, who told NBC he thinks the NSA is spying on him, has the answer: Put pen to paper. And maybe use hand delivery.

Professor Sandy Davidson teaches communications law at the Missouri School of Journalism and is an adjunct professor at the University of Missouri School of Law. Davidson has received many honors for her teaching and research, including being named a Curators’ Teaching Professor in 2014.

Suggested citation: Sandy Davidson, Yahoo: A Little Sunshine on Government Surveillance, JURIST-Forum, Sep. 16, 2014, http://jurist.org/forum/2014/09/sandy-davidson-yahoo-surveillance.php