Last week, previously confidential documents from the US Department of Justice’s Foreign Intelligence Surveillance Court (FCIS) about government demands in 2007-8 for Yahoo user data were released by the federal government. Now, the documents—1,500 pages of behemoth pdf files, some of them heavily or completely redacted—are available online.
They offer insight into the legal maneuvers the US government has used to argue against any challenges to its right to surveil. In an ex parte brief filed to the FCIS, the government wrote that Yahoo wasn’t allowed to argue for the Fourth Amendment rights of its users (on page 53 of this pdf document):
II. Yahoo may not challenge the directives on the basis that they violate the Fourth Amendment Rights of Third Parties
This Court may also affirm the FISC Order on the ground that Yahoo may not vicariously invoke the constitutional rights of third parties not before the Court, i.e., US persons whose communications are acquired pursuant to the directives
Yahoo’s constitutional challenge rests entirely on the alleged violation of the rights of third parties, but the Supreme Court has repeatedly held that “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.”
But here’s what’s interesting: Although the FISC ruled against Yahoo, forcing the company to comply with government data requests, it also rejected the Justice Department’s argument that Yahoo lacked legal basis to act on behalf of its users’ Fourth Amendment rights. Marc Zwillinger, counsel for Yahoo, wrote in a blog post Monday that if this argument had been upheld, the government would have had even more leeway to surveil people without the risk of judicial review. Wrote Zwillinger: “Surveillance orders under [the law] would have been unchallengeable by any party until the fruits of the surveillance were sought to be used against a defendant in a criminal case.”
A company’s right to challenge excessive requests for user data has since been codified in the 2008 FISA Amendments Act, which legalized warrantless wiretapping of suspected foreign agents outside the US. But the federal government has used other arguments to oppose surveillance restrictions. For instance, in Clapper v. Amnesty International, a 2013 case that challenged the basis of the FISA Amendments Act, a group of lawyers and journalists banded together to sue the government, arguing that the law hindered them from communicating effectively with clients, due to fear of being surveilled. The federal government, in turn, argued that the litigators had no basis for the suit, since they hadn’t yet been harmed by the law. The Supreme Court sided with the federal government in a 5-4 decision.
The two rulings suggest that the companies enlisted to surveil on the government’s behalf have more power to make constitutional challenges than do individuals, says Zwilliner. The Yahoo case gives internet service providers and telecom companies the right to contest government demands for data on surveillance targets before they hand over the data; the Amnesty case suggests surveillance targets can’t challenge surveillance until after the fact.