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Secret surveillance court's ruling paves the way for public disclosure of Yahoo's 2008 fight against PRISM

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  1. Court Access
An order Monday from the United States’ secret surveillance court has brought several documents a step closer to being made…

An order Monday from the United States’ secret surveillance court has brought several documents a step closer to being made public, after a disclosure request from Internet service provider Yahoo.

Yahoo sought the public release of a 2008 case, in which it challenged a surveillance order in the Foreign Intelligence Surveillance Court (FISC) but lost, therefore requiring its compliance in the National Security Agency's PRISM program.

The court ruled that the executive branch must “conduct a declassification review” as a precursor to disclosure of documents in the case. By July 29, the government must estimate when the declassification review would be complete, according to the court’s order.

After the declassification review, the Foreign Intelligence Surveillance Court's order in the 2008, as well as Yahoo and the government’s briefs, may become available, albeit in a redacted format.

Yahoo appealed the 2008 order to the Foreign Intelligence Surveillance Court of Review requiring its compliance, and a redacted version of the appeal is publicly available. Despite the appeal’s publication, the FISC’s order itself was never made public.

Yahoo’s attorneys argued that “release of [the] court’s decision and the parties’ briefing is necessary to inform the growing public debate about how this court considers and examines the government’s use of directives,” court documents show.

The ruling comes amid a flurry of activity asking the court to make public disclosures of cases it has heard. Google and Microsoft have asked the court for permission to disclose aggregate statistics regarding orders they have received from the court, without violating the Foreign Intelligence Surveillance Act.

The American Civil Liberties Union and the Media Freedom of Information Access Clinic at Yale have also asked the court to release its opinions that have interpreted the constitutionality of the Patriot Act. These cases have precedential value for the court but have remained unavailable to the public.

The Reporters Committee filed a friend-of-the-court brief advocating for the disclosures in all three cases.

The briefing schedule set by the court and the parties’ briefs in Yahoo’s matter have been public, and the court has set up a limited online docket listing public filings since June.

Yahoo was only referred to as “Provider” in its initial filing but was publicly identified with the court’s permission in its follow-up brief.