There is an age-old, unanswerable question that asks: “if a tree falls in the woods, and no one is there to hear it, does it make a noise?” Now, there is a new question: “can your privacy be violated if you don’t know it happens?” That is a paraphrase of a statement turned question uttered by Rep. Mike Rogers during a House Intelligence Committee hearing concerning NSA surveillance in late October.
Let’s rewind for a minute to March 12, 2013. On that date the US Supreme Court issued a 5-4 ruling in the case of Clapper v. Amnesty International USA that the plaintiffs lacked legal standing. Justice Samuel Alito wrote in his opinion, the plaintiffs’ argument that they have the standing to challenge the program was based on a “highly speculative fear.” He also wrote they “have no actual knowledge of the Government’s … targeting practices,” and “can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.”
In late May, Edward Snowden blew the whistle on the NSA, exposing widespread spying on behalf of the federal government. On July 24, the House of Representatives voted 217-205 against an amendment that would have cut funds for domestic data gathering by the NSA except where based on individualized suspicion. On August 15, Barton Gellman of the Washington Post released information provided to the Post by Edward Snowden that “counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.” In light of this information, one Congressman stated, “If [my colleagues] had realized how many [violations of privacy protection or legal rules] there were, I think” it would have passed.
Now, Congress is finally having hearing about the NSA spying, and Mike Rogers, Chair of the House Intelligence Committee, said, “I would argue the fact that we haven’t had any complaints come forward with any specificity arguing that their privacy has been violated, clearly indicates, in ten years, clearly indicates that… [s]omebody must be doing something exactly right.”
Law professor Stephen Vladeck retorted, “But who would be complaining?”
Rogers replied, “Somebody who’s privacy was violated. You can’t have your privacy violated if you don’t know your privacy is violated.”
This comment by Rogers raises some interesting questions: would the Supreme Court have decided the Clapper case differently in light of the information that has been exposed over the last 6 months? Will the Supreme Court hear a case similar to Clapper anytime soon? And, will Congress do anything to control the agency that is spying on millions of people, whether or not those people know they’re being spied on?