http://www.nytimes.com/2014/09/13/technology/government-push-for-yahoos-user-data-set-stage-for-broad-surveillance.html 2014-09-15 23:08:44 Government Push for Yahoo’s User Data Set Stage for Broad Surveillance Documents from the case paint a vivid portrait of the high-stakes battle that pitted Yahoo against some top officials in the Bush administration over what was legitimate gathering of foreign intelligence and what was illegal snooping. === SAN FRANCISCO — It’s hard to fathom after a year of revelations about widespread government surveillance of Internet users, but in 2007, the government’s authority to demand such data from technology companies without a search warrant was very much in doubt. That changed a year later, when crucial precedents establishing the government’s right to request emails, phone records and other user data were set in a secret court case in which Yahoo unsuccessfully challenged the constitutionality of the government’s demands for information about its foreign users. Documents from that case At one point, when Yahoo refused to turn over the requested data while it appealed its loss at the first stage of the case, the director of national intelligence, Michael McConnell, submitted an impassioned International terrorists “use Yahoo to communicate over the Internet,” Mr. McConnell wrote. “Any further delay in Yahoo’s compliance could cause great harm to the United States, as vital foreign intelligence information contained in communications to which only Yahoo has access, will go uncollected.” Underscoring that urgency, the government’s lawyers asked Judge Walton The legal decisions in the case, and the reasoning used by both sides, helped set the stage for an updated Foreign Intelligence Surveillance Act that set clearer rules about what types of information the government could seek from technology companies like Yahoo, Google and Facebook, which hold vast quantities of private user information. The lower court and appellate rulings supporting the government also gave encouragement to national security officials as they pushed forward with broad surveillance programs like Prism, XKeyscore and others described in documents leaked last year by Edward J. Snowden, a former National Security Agency contractor. “The specific kind of surveillance the government was seeking was untested,” said Stephen I. Vladeck, a professor who studies national security law at the American University Washington College of Law. “This litigation led to the judicial validation of practices that the government was already undertaking.” The Protect America Act, a temporary law passed in August 2007 by Congress after the 9/11 attacks, was the first to explicitly authorize bulk surveillance of foreigners suspected of being terrorists or posing other national security threats. Yahoo chose to mount an aggressive challenge to such surveillance, setting itself as a defender of its users’ rights. “The broad surveillance authorized by the P.A.A. and the directives is unreasonable because the P.A.A. allows the government to initiate surveillance on an unlimited number of targets, with no prior judicial review, no requirements of particularity and no findings of necessity,” the company wrote in Perhaps coincidentally, as the company waged its secret court fight, its co-founder and chief at the time, Jerry Yang, was being Judge Walton, who heard the initial round of the case, and the three-judge panel of the Foreign Intelligence Surveillance Court of Review that heard the appeal were both acutely aware of the precedents they were setting. In his Noting that the Protect America Act was “hardly a model of legislative clarity,” he nevertheless found that the government’s surveillance requests did not violate the Fourth Amendment right of Americans to be free of unreasonable searches: “Congress obviously sought to strike the proper balance between the sometime conflicting interests of individual privacy and national security.” The appeals panel, led by Judge Bruce M. Selya, a senior judge on the Federal Court of Appeals for the First Circuit, also ruled in the government’s favor, expressing confidence in officials’ good-faith efforts to protect the rights of Americans. “We caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power,”