Civil liberties advocates are demanding answers for Yahoo's spying operation revealed earlier this month, as news emerges that the government order behind the email scan will likely remain classified.
Obama administration officials told Reuters on Tuesday that the government is hesitant about releasing the order to a wider audience on the grounds that it is a national security matter. The statement came as dozens of advocacy groups sent a letter (pdf) to Director of National Intelligence James Clapper asking for the order to be declassified to determine if it violated both constitutional and international human rights, among other laws.
"We believe such a massive scan of the emails of millions of people, particularly if it involves the scanning of email content, could violate [the Foreign Intelligence Surveillance Act], the Fourth Amendment, and international human rights law," the coalition of more than 30 groups wrote.
The order asked Yahoo to scan its customers' emails for a certain digital "signature" allegedly associated with a foreign power. With the order still classified, the signature currently remains unknown.
The letter continues:
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. If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.
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As Reuters notes, an entire email service such as Yahoo has never publicly been considered a surveillance "facility."
The 33 groups, including the American Civil Liberties Union (ACLU), Amnesty International, Human Rights Watch, the Center for Democracy & Technology (CDT), and the Electronic Frontier Foundation (EFF), also called on Clapper to release information about how the government justified the order.
As EFF writer Kate Tummarello put it: "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."
Greg Nojeim, CDT senior counsel, told Reuters that it is important for all members of Congress to be briefed on the order—not just those on the intelligence committees—as a vote on FISA approaches.
"The briefing should involve all members, because all members will within about a year have to vote on a significant part of FISA," Nojeim said. "They should know what occurred so that they can decide whether to outlaw it."
The Yahoo scandal has fueled a tense climate around privacy rights, as the government has repeatedly promised more transparency in its surveillance operations only to be confronted with increasing evidence that agencies are using unwarranted spying and relying on private companies in all manner of investigations. Also Tuesday, new reporting by The Daily Beast revealed that AT&T had collected extensive data on its customers for use by law enforcement, and other recent exposés have found federal, state, and local agencies all over the country using unwarranted, unregulated surveillance as a first-resort method to investigate crimes and track activists.