Privacy SOS

Yahoo, ACLU seek declassification of information about reported email scanning program

In early October 2016, Reuters reported that in 2015, the US government asked Yahoo to scan all incoming email looking for particular signatures or characters, and that Yahoo complied without a fight. Since the matter became public, Yahoo has changed its tune. Now, the company—which after its publication claimed the Reuters report was “misleading” and denied such an email scanning program exists on its system—has asked in a public letter for the Office of the Director of National Intelligence to declassify information that will “clarify the matter” for its users and the general public. 

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The ACLU, meanwhile, has filed a motion asking the Foreign Intelligence Surveillance Court (FISC) to declassify any novel legal opinion that gave the government the authority to demand Yahoo scan its customers’ incoming emails, as well as other unpublished opinions on significant legal matters. The USA Freedom Act, which changed the way the NSA and FBI conduct metadata surveillance of Americans’ phone records, included a provision requiring the government to publish FISC orders that include novel or significant new interpretations of the law. But as my colleague at the ACLU writes, “the government maintains that its obligation to release such opinions does not apply to secret court rulings that predate the USA Freedom Act. More broadly, it has refused to recognize the public’s First Amendment right to examine significant FISC opinions interpreting our surveillance laws.”

Among the other unpublished opinions the ACLU seeks are those pertaining to:

  • The government’s use of malware, which it calls “Network Investigative Techniques”

  • The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols

  • The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities

  • The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions

  • The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA)

  • The government’s warrantless surveillance of Americans under FISA Section 702 — a controversial authority scheduled to expire in December 2017

  • The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act

Secret law has no place in a free society. Let’s hope the FISC agrees.

© 2017 ACLU of Massachusetts.