New Theory: Your Privacy Doesn't Matter

As reported in this TechDirt article, law professor Eric Posner wrote the following:

Mass surveillance—where emails and other communications are vacuumed up, stored in databases, and then searched for keywords—doesn’t harm anyone in itself. The problem only arises when the information is used to detain, interrogate, or harass people.

What a remarkable concept (translated): It doesn't matter if the government violates your privacy, so long as you don't know it. Just think how this can be applied!

Some examples of things that don't matter:

• It doesn't matter that your 401-K was stolen, so long as the monthly reports show the money is still there.
• It doesn't matter if your mechanic tacks a few unneeded parts onto your bill, since you won't ever know if any were broken anyway.
• It doesn't matter if you're sold a smoke detector that doesn't work and you don't know it. (Maybe you'll be lucky and never find out; and if you're unlucky, it probably won't matter anyway since you won't be around to complain.)
• It doesn't matter if you're sold food contaminated with e. coli, since there's no way you'll ever be sure which food it was that made you sick. (Even the government has trouble figuring that out.)
• It doesn't matter if the doctor accidentally removes your kidney along with your appendix. (I have only one kidney: I know about this. The loss of one kidney "doesn't matter".)
• It doesn't matter if your daughter disappears because she was raped and murdered, so long as no one finds her body. (You can always hope she just ran away.)
• It doesn't matter if your vote isn't counted, since you'll never know your ballot was thrown out "accidentally".
• It doesn't matter if you don't know your civil rights were violated.

The last is particularly relevant because the DEA has already used "parallel construction" (I prefer to call it "evidence laundering") to conceal the source of the evidence used in criminal trials; evidence obtained by the NSA by illegal searches. But since there's no way the accused will ever know about the parallel construction; according to NSA and DEA, and our professor, it doesn't matter.

That might strike the reader as a reach, because after all the professor ended with, "The problem only arises when the information is used to detain, interrogate, or harass people." But his argument also excuses these by extension, as will be shown.

The government likes to pretend otherwise, but the Constitution is law. When the government violates the civil rights enumerated by that document, it is wrong; even if there is no consequence to the government. This is because a violation of law does not occur when the violation is discovered and prosecuted; it occurs when the act is committed. So the NSA violates your rights when it performs illegal surveillance, even if that is done in secret and you never know: The violation exists because of their act, not because you discover their act.

But the professor argues that there really is no violation if you are unaware of the surveillance; "It's legal so long as the NSA doesn't get caught." Therefore, parallel construction, by extension of his argument, is also legal so long as the NSA and DEA don't get caught. Detention, interrogation, harrassment: All fine, so long as you don't know that it was due to the NSA's illegal surveillance.

Our government tells us every day, in every way, that we must always obey the law. But it operates under the principles that, "It's not illegal if you don't get caught. It doesn't matter, so long as you don't know."

And apologists like Eric Posner come along and tell us not to worry because we're not harmed so long as we don't know about it.

Which is a very sad state of affairs.