| SAN FRANCISCO
SAN FRANCISCO Oct 7 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.
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.
"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
"The USA Freedom Act requires the executive branch to
declassify Foreign Intelligence Surveillance Court opinions that
involve novel interpretations of laws or the Constitution,"
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
"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)