| Title | More Yahoo vs NSA: Gov't Tried to Deny Standing, Ex Parte Filing of Supporting Docs | |
| Date | Wednesday September 17 2014, @02:37PM | |
| Author | janrinok | |
| Topic | ||
| from the stacked-deck dept. | ||
Techdirt reports
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 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.
[...]
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.
Related: US Government Threatened Yahoo with $250K Daily Fine
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