The Obama administration is under increased pressure to explain the secret court order that resulted in millions of Yahoo customers having their emails scanned after more than two-dozen groups sent a letter Tuesday requesting answers from the nation’s top intelligence official.
Amnesty International, the Electronic Frontier Foundation and the American Civil Liberties are among 33 organizations who raised concerns in a letter to Director of National Intelligence James Clapper in the wake of reports regarding a secret surveillance program operated by Yahoo last year at the behest of federal investigators.
As first reported Oct. 4 by Reuters, Yahoo used specialized software to scan the incoming messages of several million of its email customers for a digital “signature” used by a state-sponsored, foreign terrorist group.
While the email scanning was likely authorized under a provision of the Foreign Intelligence Surveillance Act (FISA) that erases privacy protections for non-U.S. persons, the groups who wrote Mr. Clapper this week said they fear the operation may have violated that statute and others.
“According to reports, the order was issued under Title I of FISA, which requires the government to demonstrate probable cause that its target is a foreign power or an agent of a foreign power (such as a spy or a terrorist), and probable cause that the ’facility’ at which the surveillance is conducted will carry the target’s communications,” the groups wrote. “If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.
“We believe such a massive scan of the emails of millions of people, particularly if it involves the scanning of email content, could violate FISA, the Fourth Amendment and international human rights laws, and has grave implications for privacy,” read the letter.
In response, the groups say the Office of the Director of National Intelligence should declassify and release the FISA Court opinion that compelled Yahoo to scan its customers’ emails in bulk, along with the legal interpretation used to authorize that order and other details about the recently revealed surveillance program.
“We need to know whether the Foreign Intelligence Surveillance Court has interpreted FISA … to mean that the government can conscript Yahoo into mass surveillance of all of its users’ emails,” said Kate Tummarello of the Electronic Frontier Foundation, a California-based digital rights group and co-signer of the letter.
The groups’ request comes on the heels of a similar letter sent to Mr. Clapper and Attorney General Loretta Lunch earlier this month by a bipartisan group of 48 members of the U.S. House of Representatives.
“There is significant confusion regarding the existence and nature of the program described by these reports and the legal questions implicated by the accuracy of specific details,” they wrote. “As legislators, it is our responsibility to have accurate information about the intelligence activities conducted by the federal government. Accordingly, we request information and a briefing as soon as possible for all members of Congress to resolve the issues raised by these reports.”
Yahoo’s general counsel, Ron Bell, wrote Mr. Clapper five days later asking for him to clarify news reports concerning the email scanning.
“Yahoo was mentioned specifically in these reports and we find ourselves unable to respond in detail,” he wrote. “Your office, however, is well positioned to clarify this matter of public interest.”
When asked about the program shortly after it was first reported, White House press secretary Josh Earnest told reporters that FISA “does not involve bulk collection or the use of generic key words or phrases.”
• Andrew Blake can be reached at ablake@washingtontimes.com.
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