Yahoo files lawsuit against NSA over user data requests

Ewen MacAskill in New York 

Yahoo on Monday joined other US technology giants in launching legal action against the federal government over the NSA surveillance revealed by whistleblower Edward Snowden.

Yahoo filed a suit in the foreign intelligence surveillance (Fisa) court, which provides the legal framework for NSA surveillance, to allow the company to make public the number of data requests it receives per year from the spy agency.

Withholding the information creates mistrust, Yahoo said. Companies are forbidden by law to say how much data they provide.

Yahoo, in its motion, said it and other electronic communication providers have been intensely and publicly scrutinised for their alleged "participation" in government surveillance: "Yahoo has been unable to engage fully in the debate about whether the government has properly used its powers, because the government has placed a prior restraint on Yahoo's speech."

Criticising news coverage, specifically by the Guardian and the Washington Post, Yahoo said media outlets were mistaken in claiming that the Prism program allowed the US government to tap directly into the servers to collect information. It said that claim was "false".

"Yahoo's inability to respond to news reports has harmed its reputation and has undermined its business not only in the United States but worldwide. Yahoo cannot respond to such reports with mere generalities."

Microsoft and Google also filed their latest legal briefs on Monday to force the Fisa court to disclose more information.

Google, in an amended motion, said its reputation was being substantially harmed by the controversy, and that recent NSA moves towards transparency fell far short of what was needed.

As part of its motion, it accused the Guardian of "mischaracterizing the scope and nature of Google's receipt of and compliance with foreign intelligence surveillance requests". It also criticised the Washington Post.

The tech companies risk losing billions of dollars in a consumer backlash over disclosures in documents leaked by former NSA contractor Snowden of their relationship with the NSA. The companies claim they are only handing over data because they are forced to by law – and are not doing so voluntarily.

Ron Bell, general counsel for Yahoo, said: "We believe that the US government's important responsibility to protect public safety can be carried out without precluding internet companies from sharing the number of national security requests they may receive."

He added: "Ultimately, withholding such information breeds mistrust and suspicion – both of the United States and of companies that must comply with government legal directives."

The Yahoo move came before a meeting later Monday of the review group on intelligence and communications technology, set up in the wake of the Snowden disclosures to try to ease tensions between the federal government and the tech companies.

The Guardian and Washington Post revealed in June a "top-secret" NSA presentation about the Prism program detailing how the companies co-operate with the government in supplying personal information.

Other stories, including one last week, also revealed how the NSA is actively engaged in cracking encryption codes that protect private data on the internet, such as banking and medical details. The companies said they were unaware of this.

The revelations could hit sales of the US tech companies, especially its data storage cloud services. A Washington think tank, the Information Technology and Innovation Foundation, in a report in early August, estimated the cost could amount to $35bn in lost sales by 2016.

The federal government, in response to initial calls by the industry, released general figures about data requests, but not in the detail the companies are looking for.

Bell said: "We filed the suit today because we are not authorized at present to break out the number of requests, if any, that we receive for user data under specific national security statutes. The US government prohibits companies from disclosing this information."

He added: "The United States should lead the world when it comes to transparency, accountability, and respect of civil liberties and human rights. The US government's recent decision to release aggregate annual data about its requests for phone call logs and internet chats was an important first step in this direction.

"Granting our petition for greater transparency around national security requests for user data is a critical second step."

Google, in its motion, said transparency is a core value for the company. Like Yahoo, it welcomed the recent NSA disclosure of data, but said: "The effort falls short of achieving transparency meaningful to the public and to Google's users. It fails to inform them of the true extent of demands placed on Google by the government.

"Google's reputation and business has been and continues to be harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations. Google must respond to such claims with more than generalities."

As well as data about NSA requests, some of the companies are refusing to say how much money they receive in reimbursement for legal costs in complying with the law. Yahoo said it requests reimbursement while Facebook said it never received any compensation.