Yahoo filed a lawsuit agains the U.S. Department of Justice on Monday, demanding the right to disclose the number of surveillance request it receives under national security statutes.
According to a company press release, Yahoo filed a complaint with the FISA court, a secret body of judges created to oversee the Foreign Intelligence Surveillance Act. While similar requests filed by Google and Microsoft have finally landed on a bare-bones public website, there is yet no record of the new Yahoo lawsuit. [Update: Yahoo's complaint is now public (h/t to EFF's Kevin Bankston), but the page displaying it still barely resembles an ordinary court docket].
This lack of transparency is consistent with the FISA judges’ practice of keeping their docket almost entirely secret, which is a source of frustration for lawyers and for legal reporters. While the government may have a strong case for keeping specific terrorism cases a secret, it’s less clear why the very existence of court proceedings must be a secret as well.
This is especially true in cases like this new one that concern the government’s own powers under the Constitution. Recall that Yahoo here is not asking to reveal information about specific investigations — it is simply asking to report on the number of surveillance requests it receives. Google and Microsoft are asking the same thing and, even though they simply want to disclose the number as a broad range, the government continues to stymie them; so far, the Justice Department has filed for six extensions — but has yet to respond.
Perhaps Yahoo will have better luck. This, after all, is the company that tried in 2008 to challenge requests under the controversial data-sniffing program, PRISM. Unfortunately, the government then asked to gag Yahoo and the secret court agreed; this summer, it agreed to publish that decision. But first, it has to be declassified by the Justice Department – so who knows when or if we’ll ever see it.
While the government’s overall surveillance programs are troubling, the black cloak thrown over the legal system is even more so. As the New York Times explained in a recent expose, the secret court has been publishing a secret series of Fourth Amendment decisions and has “quietly become almost a parallel Supreme Court.”
This is unacceptable for rule of law in a free society. President Obama, a constitutional lawyer, must know this. If he wants to preserve any trust in his government, he must put an end to the use of a secret court to justify secret surveillance practices. In the meantime, bravo to the tech companies for blowing the whistle on this.