U.S. pressed to disclose secret court's
order on Yahoo email search
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[October 08, 2016]
By Joseph Menn
SAN FRANCISCO (Reuters) - A U.S. senator
and civil groups critical of surveillance practices on Friday called on
the government to release a 2015 order by a secret court directing Yahoo
to scan all its users' incoming email, saying it appeared to involve new
interpretations of at least two important legal issues.
Their concerns center on the nature of the technical assistance the
court required Yahoo to provide and the scope of the search that legal
experts said appeared to cover the Silicon Valley internet company's
entire network.
Yahoo installed a custom software program to search messages to hundreds
of millions of accounts at the behest of U.S. intelligence officials
with an order from the Foreign Intelligence Surveillance Court, a secret
tribunal, Reuters reported on Tuesday.
They were looking for messages containing a single piece of digital
content, three former employees and a fourth person apprised of the
events told Reuters.
Intelligence officials told Reuters that all Yahoo had to do was modify
existing systems for stopping child pornography from being sent through
its email or filtering spam messages.
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But the pornography filters are aimed only at video and still images and
cannot search text, as the Yahoo program did. The spam filters,
meanwhile, are viewable by many employees who curate them, and there is
no confusion about where they sit in the software stack and how they
operate.
The court-ordered search Yahoo conducted, on the other hand, was done by
a module attached to the Linux kernel - in other words, it was deeply
buried near the core of the email server operating system, far below
where mail sorting was handled, according to three former Yahoo
employees.
They said that made it hard to detect and also made it hard to figure
out what the program was doing.
How much companies can be forced to do to comply with government orders
for searching data is being debated in the courts. Companies have
successfully argued that changes that would degrade users’ experience or
force them to write new code, essentially a form of speech, would
violate basic rights.
Most famously, Apple refused to write code that would unlock an iPhone
belonging to a gunman in last year's mass shooting in San Bernardino,
California. The FBI later dropped its demand.
In the case of Yahoo, company security staff discovered a software
program that was scanning email but ended an investigation when they
found it had been approved by Chief Executive Officer Marissa Mayer, the
sources said.
Lawmakers are concerned about the request and whether information about
it is being properly disclosed to the public.
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![](../images/100816pics/news_y39.jpg)
A man walks past a Yahoo logo during the Mobile World Congress in
Barcelona, Spain, February 24, 2016. REUTERS/Albert Gea/File Photo
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"Recent reports of a mass-email scanning program have alleged that
federal law is being interpreted in ways that many Americans would
find surprising and troubling," said Democratic Senator Ron Wyden of
Oregon, a member of the intelligence committee and frequent critic
of government surveillance programs.
"The USA Freedom Act requires the executive branch to declassify
Foreign Intelligence Surveillance Court opinions that involve novel
interpretations of laws or the Constitution," Wyden said.
Intelligence officials said the Yahoo order resembled other requests
for monitoring online communications of suspected terrorists. The
program is far different from the bulk collection of emails and
telephone records that was disclosed by fugitive National Security
Agency contractor Edward Snowden, they said, stressing the target
was a digital "signature" associated with a single entity's
suspected terrorist activity.
But legal experts question whether the order might have stretched
the concept of a "facility" used by a foreign power from its
traditional definition, involving a single phone number or an email
account, to include a large company’s entire communication network.
"If the facility means all of Yahoo's network, I don’t see how
that’s consistent with the Fourth Amendment," which bars
unreasonable searches, said Greg Nojeim, senior counsel at the
Center for Democracy & Technology.
(Reporting by Joseph Menn and John Walcott; Additional reporting by
Dustin Volz and Mark Hosenball; editing by Jonathan Weber and Grant
McCool)
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