In declassified transcript, surveillance judge tells Yahoo: What you don’t know can’t hurt you

On June 19, 2008, Yahoo lawyers appeared before the U.S. Foreign Intelligence Surveillance Court of Review, a three-judge panel that convened in Providence, R.I. Yahoo wanted to contest the growing volume of requests it was getting to let federal officials monitor its users’ email and other digital communications.

Not surprisingly, the court ruled against Yahoo.

But now, more than six years later, the Office of the Director of National Intelligence has just declassified the transcript from that hearing. The release is part of a broader fight Yahoo is waging to let the public see more of the documents from secretive surveillance court hearings. In September, Yahoo won the release of 1,500 pages of documents from secret court hearings.

Even in the post-Snowden era, when there is now a widespread assumption that the federal government is monitoring digital communications, the latest transcript makes for pretty chilling reading.

Representing Yahoo that day was attorney Marc Zwillinger. He was trying to make the point that the company and its users were being harmed by the growing number of warrantless requests to let the government read user emails.

“We are being asked and compelled to participate in surveillance we believe violates the constitution of the United States,” he said.

The judges, however, were skeptical to say the least. In particular, they seemed to doubt that Yahoo or its users were suffering any real harm if the users were unaware the surveillance was happening. Just what damage could there be to Yahoo’s reputation if users didn’t know about the monitoring?

“Well, if this order is enforced and it’s secret, how can you be hurt?” wondered Justice Morris Arnold. “The people don’t know they’re being monitored in some way. How can you be harmed by it? What’s the damage to the consumer?”

Yahoo’s lawyer argued that, in fact, people are well aware the government is snooping on them. To which the judges responded, well, if people assume the surveillance is happening, then actually approving the orders to snoop can’t make things any worse. Right? Because Yahoo’s reputation would have already taken a hit.

In addition, the judges suggested that if all of Yahoo’s competitors were seeing similar harm to their reputation, then in fact, they were all on an equal competitive footing.

“I’m having trouble seeing who exactly is hurt here,” said Justice Ralph Winter later.

Of course, Yahoo eventually went on to lose in a classified version of the ruling issued on August 22, 2008.

This week, Yahoo said it would continue to fight for more disclosure.

“We are pleased that the transcript of our oral argument challenging the expansion of U.S. surveillance laws is now part of the public record,” the company wrote on its blog. “While our challenge did not succeed, our efforts to make our arguments and those of the U.S. government’s public did, and we consider this an important win for transparency. We hope that this transcript will help promote informed discussion about the relationship between privacy, due process, and intelligence gathering.”