PINDROP BLOG

Wyden, EFF Say Yahoo Mail Scanning Order Should be Released

The secret order the Department of Justice served on Yahoo last year to get the company to scan incoming emails for specific terms should be declassified and made public under the terms of the USA Freedom Act, experts say.

Sometime in the early part of 2015, the Justice Department reportedly went to Yahoo officials with an order to search its users’ incoming email messages for certain words. Yahoo complied by building a custom piece of software that sat in the mail system and looked for the terms, which haven’t been made public. The revelations about the mail scanning program last week caused an uproar among security experts and civil liberties groups.

Now, experts at the EFF say that the order served on Yahoo should be made public according to the text of a law passed last year. The USA Freedom Act is meant to declassify certain kinds of government orders, and the EFF says the Yahoo order fits neatly into the terms of the law.

“If the reports about the Yahoo order are accurate – including requiring the company to custom build new software to accomplish the scanning  – it’s hard to imagine a better candidate for declassification and disclosure under Section 402. Given the divergent media reports about what the FISC required Yahoo to do, it is crucial for the public to see the order,” Aaron Mackey, a legal fellow at the EFF, said in an analysis of the situation.

The Justice Department has interpreted the law to mean that only secret orders made before the USA Freedom Act was passed are subject to the declassification provision. But Mackey said there is no language in the law that would make that so, and so the fact that the Yahoo order was delivered before the law was passed doesn’t matter, he said.

“But it is irrelevant that the Yahoo order may have been issued earlier in 2015 before the passage of USA FREEDOM. DOJ’s cramped interpretation of the law conflicts with Congress’ explicit command in Section 402 that the government must review ‘each’ significant FISC opinion, declassify and release it. There is no start date in the text to support the DOJ’s reading,” Mackey said.

The EFF is not alone in thinking that the Yahoo order should be declassified and released. Sen. Ron Wyden (D-Ore.), who is a frequent advocate for encryption and privacy, said the USA Freedom Act requires the order to be made public.

“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,” Wyden said. “The USA Freedom Act requires the executive branch to declassify Foreign Intelligence Surveillance Court opinions that involve novel interpretations of laws or the Constitution and I certainly expect the Executive Branch to follow this law.”

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