If They Violate Your Privacy in the Woods, Do You Make a Sound?

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Not if you don't know about it, according to Rep. Mike Rogers, who, incredibly, is the chair of the House Intelligence Committee.

Mike Masnick writes at techdirt about an amazing exchange between Rogers and Prof. Stephen Vladeck, a law professor at American University. This took place at the end of a hearing yesterday on NSA surveillance. These are rarely going to be enlightening, especially when they are public and broadcast on C-SPAN. Everybody just wants to make their points for the camera. We did learn something from this one, though, namely that Rogers really does not give a crap about your privacy and cares less, if possible, about logic.

In what was intended as his wrap-up question, Rogers asked each of the three panelists for a "quick yes or no answer" as to whether they thought "the government should have the ability to try to find a nexus between a foreign connection and a business record in the United States that would indicate the identity of someone who may be working with a terrorist organization." Well, I think you don't have to be a lawyer to understand that this is not a "yes-or-no" question.

If you say "yes," you have just said that you have no objections to giving the government the power to access business records whenever it likes, as long as it claims to be looking for terrorists. If you say "no," you have just said that the government should have no access to business records for that purpose, no matter what the situation. Lawyers get criticized for saying "it depends" a lot, but you know what? That is the only intelligent and honest answer to some questions. Like this one.

Two of the three panelists didn't give it.

The first one actually went with "absolutely," which the congressman found an acceptable form of "yes." The second said "I believe so," which is a way of saying "yes" that gives you a way to backtrack later and claim you didn't understand the question, but still a yes. Those are both bullshit answers to a bullshit question. Then it was the turn of Vladeck, who Masnick described as "the only panelist the entire day who expressed concerns about what the NSA was doing." And he did it again. He did agree, but with qualifications: "Unless there's an easier way to do it, as long as there's enough protections, sure." You know, that whole Fourth Amendment concept.

Rogers is apparently so tired of hearing about this "Fourth Amendment" that he was not even willing to accept an allusion to it. Instead he semi-attacked Vladeck with a remark about somebody who wished we had one-armed economists because then they couldn't keep saying "on the other hand."

"Maybe what we need is a one-armed [law] professor," Rogers smirked, oh ho ha ha, ha ha ho, yes. Ha.

Well, it's like the death penalty, Vladeck responded, preemptively noting that he didn't mean this as a substantive analogy between death and privacy violations. Many people support it in theory but aren't willing to support it if the process used to impose it is seriously flawed. Some would recognize this as another allusion, this time to what was once called "due process," but Rogers is not one of those people. Instead he just criticized Vladeck for making the substantive analogy that Vladeck HAD JUST SAID HE WASN'T MAKING. Wow that's irritating. Vladeck stood his ground:

VLADECK: It's impossible to separate the validity of the program from the process concerns that have been raised by members of Congress and members of the public. Until we have a better sense on [sic] those process concerns, I think it's a bit unfair to enter the question in the abstract.

REP. ROGERS: You think we should have the ability to do it or not?

VLADECK: I think the way we do it matters.

REP. ROGERS: Well, clearly it matters.

"Clearly it matters"? You just asked a question to which it is totally irrelevant. And I think you are about to confirm that you either don't think it matters or don't understand what it is:

REP. ROGERS: I would argue the fact that we haven't had any complaints come forward with any specificity arguing that their privacy has been violated [note: this is untrue], clearly indicates, in ten years, clearly indicates that something must be doing right. Somebody must be doing something exactly right.

VLADECK: But who would be complaining? [Given that one might not know one's privacy is being violated, especially if there is no process to speak of.]

REP. ROGERS: Somebody whose privacy was violated. You can't have your privacy violated if you don't know your privacy is violated. 

VLADECK: I disagree with that. If a tree falls in the forest, it makes a noise whether you're there to [hear] it or not. 

REP. JOWLFLAP: Well that's a new interesting standard in the law. 

Emphasis added. So the fact that no one has complained about their privacy being violated means that no one's privacy is being violated, and if they aren't complaining because they don't know it's being violated then they have nothing to complain about, do they?

Again, this guy is in charge of an "intelligence committee."

For the more satirical take that I might have gone with if he hadn't already done it, see Ken White's post"Rep. Mike Rogers Angrily Defends Bathroom Spycam," at Popehat.

And this is to prove it actually happened: