Transparency Project

Yahoo's Challenge to the Protect America Act in the Foreign Intelligence Court of Review

In 2007, a then-unknown service provider challenged the constitutionality of a government request for user information under the Protect America Act. The provider lost its challenge in the Foreign Intelligence Surveillance Court and appealled the decision to the Foreign Intelligence Surveillance Court of Review, the appellate court charged with reviewing decisions of the lower surveillance court.

In 2008, the Court of Review ruled against the provider, upholding the constitutionality of the Protect America Act (the statutory predecessor to the current FISA Amendments Act) and ordered the provider to turn over the user data the government requested. The Court of Review released a redacted version of its opinion in 2008. However, the name of the provider and the details of the government's request, as well as the full version of the Court's opinion, remained secret.

In 2012, following disclosures in the Washington Post and the Guardian concerning the NSA's domestic surveillance operations, the provider filed a motion with the Court of Review, asking the Court to allow it to disclose its identity and to further disclose information concerning the provider's challenge. In light of the recent disclosures, the government did not oppose the request, and the Court, for the first time in nearly six years, allowed Yahoo to disclose that it was the provider that had challenged the orders.

Unlike other documents available through EFF's Transparency Project, these were not obtained through FOIA. Instead, because the Court of Review does not have a public docket, Yahoo's counsel provided the documents to EFF to post publicly.

The first set of documents released concern Yahoo's attempts to publicly identify itself and to further unseal portions of the Court of Review's 2008 opinion, as well as documents filed by the parties in conjunction with that opinion. 

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