On June 30, 2013, the FISA Court of Review, in a rare order, unsealed the now-declassified fact that Yahoo! was the provider who challenged the constitutionality of the Directives issued under the Protect America Act, the precursor to the FISA Amendment Act. The unsealing order also allowed our own Marc Zwillinger to acknowledge on his FISA/FAA webinar last Friday that he was the attorney who argued the challenge on Yahoo!’s behalf. According to Marc, “I was proud to represent Yahoo! in this matter. They did the right thing by forcing the court to take a hard look at the Directives. Without Yahoo!, there would have been no opportunity for meaningful judicial review.” When asked how he felt personally about the Court’s decision, Marc said “The Court found that the protections that the Executive Branch had established were reasonable under the Constitution, especially with regard to the rights of non-U.S. persons. That may be so, but while there may be many ‘reasonable’ ways to accomplish something, I think there are better ways to protect the rights of U.S. persons who may be affected by this surveillance. If more of the Court’s analysis, and the parties’ briefs, are made available, the public and Congress can make a more informed decision as to whether this is the program they want to have in place. I would also be happy to work with Congress or the Executive Branch to help identify better ways to do this.”
The unsealing order also directs the government to conduct a declassification review of the 2008 decision to see if more of the opinion, and the legal briefs themselves, can be released. The government was ordered to report back by July 12, 2013 on the timetable for that review.
