More Yahoo vs. The NSA: Government Tried To Deny Standing, Filed Supporting Documents Yahoo Never Got To See
from the blindfolded-and-pickpocketed dept
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 definitely would prefer the swift removal of cases rather than actually having to defend its programs' Constitutionality -- so much so that it attempted to push the argument that no one has standing to challenge its collections. But that wasn't the government's only angle. The courts refused to entertain this sudden shift in the government's "standing" argument, so it moved on to levying fines.
A very short time frame to respond was granted to Yahoo, something made even shorter by the government's foot-dragging.
The FISC issued its decision on April 25, 2008, but we were not permitted to inspect the order until April 29, 2008 (and even then were not allowed to take notes), and did not receive a copy until May 5, 2008, when the government demanded that Yahoo give a same-day answer whether it would comply with the surveillance demand.Shortly after Yahoo's response, the government moved for contempt charges and fines. $250,000 per day was the minimum. It asked for constantly-escalating fines that would double each week until Yahoo complied. Even for a tech giant, this fee scale could turn into real money incredibly quickly.
Simple math indicates that Yahoo was facing fines of over $25 million dollars for the 1st month of noncompliance, and fines of over $400 million in the second month if the court went along with the government’s proposal. And practically speaking, coercive civil fines means that the government would seek increased fines, with no ceiling, until Yahoo complied.While the government was threatening Yahoo with massive fines, it was also filing secret briefs and motions in support of its admittedly "coercive" levies, stating that the company's resistance was causing "great harm," apparently on a daily basis.
Finally, the documents that were recently released by the ODNI (and Yahoo itself) contain many that Yahoo -- who was directly involved in this court battle -- had never seen before August 22.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.
[P]erhaps most importantly, a FISC decision from January 15, 2008 regarding the procedures for the DNI/AG Certification at issue, which Yahoo had never seen. It examines those procedures under a “clearly erroneous” standard of review – which is one of the most deferential standards used by the judiciary. Yahoo did not have these documents at the time, nor the opportunity to conduct any discovery. It could not fully challenge statements the government made, such as the representation to FISCR “assur[ing the Court] it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.” Nor could Yahoo use the January 15, 2008 decision to demonstrate how potential flaws in the targeting process translated into real world effects.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.