Skip to main content

Americans interested in their privacy rights and rights to unreasonable searches and seizures, afforded to them under the U.S. Constitution’s 4th Amendment, may want to invest heavily in effective data encryption software, because if the government has its way, those rights, especially as it pertains to data, will be infringed upon. And Yahoo is facilitating it.

To simplify the matter for understanding, Robert Litt, general counsel of the Office of the Director of National Intelligence (ODNI), told Reuters, “Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes.”

In other words, the feds want to search through everyone’s email and they admittedly don’t believe their request to do so is unreasonable, nor do they believe it is an infringement upon your 4th Amendment rights because a computer is doing it, not a live body.

They’re using a secret government court to get the necessary permission to do so, called the Foreign Intelligence Surveillance Court (FISC), but don’t let the name fool you. The court also has the power to order a deep scan of Americans’ emails as well, all in a supposed attempt to find and thwart terrorist attacks.

As The New York Times reported in October, “A system intended to scan emails for child pornography and spam helped Yahoo satisfy a secret court order (FISC) requiring it to search for messages containing a computer “signature” tied to the communications of a state-sponsored terrorist organization…Two government officials who spoke on the condition of anonymity said the Justice Department obtained an individualized order from a judge of the Foreign Intelligence Surveillance Court last year…To comply, Yahoo customized an existing scanning system for all incoming email traffic, which also looks for malware…With some modifications, the system stored and made available to the Federal Bureau of Investigation a copy of any messages it found that contained the digital signature.”

The secret court order angered civil rights organizations, such as the ACLU, who quickly filed motions with FISC. In an article titled, “The Constitution Leaves No Room for Secret Law,” the ACLU blasted the government and Yahoo’s forced cooperation. “It is now time for the FISC to make clear that the Constitution leaves no room for secret law — even in a court that often operates in the shadows,” wrote Patrick Toomey, Staff Attorney, ACLU National Security Project, and Andrew Udelsman, Yale Law School Media Freedom and Information Access Clinic.

In another statement on Yahoo's cooperation with FISC, Toomey wrote, "Based on this report, the order issued to Yahoo appears to be unprecedented and unconstitutional. The government appears to have compelled Yahoo to conduct precisely the type of general, suspicionless search that the Fourth Amendment was intended to prohibit.

"It is deeply disappointing that Yahoo declined to challenge this sweeping surveillance order, because customers are counting on technology companies to stand up to novel spying demands in court. If this surveillance was conducted under Section 702 of the Foreign Intelligence Surveillance Act, this story reinforces the urgent need for Congress to reform the law to prevent dragnet surveillance and require increased transparency.”

The ACLU raised many important questions it wants answered by FISC. And it wants Americans to be aware of the type of bulk surveillance data mining with which it is engaged.

Scroll to Continue

Recommended for You

Based on documents and media reports released in the past few years following the revelations by Edward Snowden, it appears that in addition to authorizing bulk searches of Yahoo emails, the FISC’s secret rulings address a range of "novel surveillance activities", including:

  • The government’s use of malware, which it calls “Network Investigative Techniques”
  • The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols
  • The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities
  • The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions
  • The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA)
  • The government’s warrantless surveillance of Americans under FISA Section 702 — a controversial authority scheduled to expire in December 2017
  • The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act

Snowden chimed in on the government's use of FISC to spy on Americans and called it a threat to the Constitution. Snowden tweeted, "The government asked a rubber-stamp court -- meant only to issue routine warrants -- to secretly reinterpret the Constitution instead."

Snowden called FISC, in essence, a phony court that operates much like a military tribunal and makes the audacious claim that the ODNI's actions are essentially meant to reinterpret the constitution and deny Americans their rights.

The ACLU has filed several motions over the last few years asking for transparency from the government's secret court, yet the data mining continues, without any accountability to the people of the U.S.

Returning back to Yahoo's complicity in spying on all Americans, according to Reuters, the ODNI will reveal in January the, “estimated number of Americans whose electronic communications have been caught up in online surveillance programs intended for foreigners,” but is not expected to address specifically the search of Yahoo emails.

For those who were affected, whose privacy rights were violated under the strict interpretation of the 4th amendment, the invasion of privacy has already taken place. The ODNI’s January report is expected to reveal how the government and its secret surveillance program known as PRISM, also known as Section 702. The program is no longer secret thanks in part to the self-reported patriotic actions of Edward Snowden. Reuters wrote, “Prism gathers the messaging data of targets from Alphabet Inc's Google (GOOGL.O), Facebook (FB.O), Microsoft (MSFT.O), Apple (AAPL.O) among others.”

According to Reuters, “Yahoo's search went far beyond what would be required to monitor a single email account. The company agreed to create and then conceal a special program on its email servers that would check all correspondence for a specific string of bits.” Such cooperation has angered privacy advocates and blurred the lines between government and private corporations, which could be considered a form of fascism in itself.

Free thinkers interested in keeping their web browsing protected from the prying eyes of an ever-lawless federal government can do a few things to remain private. The Free Thought Project spoke with one computer programmer, who wishes to remain anonymous, who recommended users switch to Hushmail. And the ACLU suggests the web browser Tor. Click on the links to download. For private cell phone calls and text messaging, Open Whisper Systems is recommended. As always, passwords should be protected. For that try LastPass and 1Password.