Former NSA General Counsel Stewart Baker is known for his long time opposition to what he calls the "privacy lobby" - political groups who advocate for laws that protect consumer privacy from corporate and government intrusions. This month he has taken this opposition to a new level with the announcement of the "Privy Award" - a tongue in cheek award for "Dubious Achievements in Privacy Law." The Award is intended to be a sort of dunce cap that can be bestowed by Baker and his online followers on advocates of what he perceives to be bad privacy law. In his blog post announcing the creation of this award, Baker argues that the intent is to illustrate that privacy laws are always bad, and that privacy just isn't the sort of thing that laws should protect. In making this argument, he descends into a morass of logical fallacies and bad metaphors. First, Baker compares privacy laws to prohibition and to laws against rudeness: We teach our kids to respect the privacy of others, just as we teach them good manners and restraint in drinking alcohol. At the same time, no one wants courts and legislators to punish us for rudeness or prohibit us from buying a drink.
Let's start by addressing his comparison to prohibition. He writes: We've already tried mandating abstinence from alcohol once. It didn’t work out so well. And it’s unlikely that Prohibition would have worked better if we’d made it illegal to drink to excess.
Of course, there is a pretty important difference between alcohol prohibition and privacy laws. Alcohol abuse is something that you do to yourself. It is whats known as a "victimless crime," in that the primary victim of the behavior is the person who chooses to engage in it. Conversely, there is no such thing as a self inflicted privacy violation. Its impossible to violate your own privacy! The comparison to rudeness is perhaps more silly. Baker writes: We know rude behavior when we see it, but no one wants a Good Manners Protection Agency writing rudeness regulations -- or setting broad principles of good manners and then punishing a few really rude people every year. The detailed regulations would never capture the evolving nuances of manners, while selective prosecution of really rude people would soon become a tool for punishing the unpopular for their unpopularity.
The reason that we don't want a Good Manners Protection Agency isn't because rudeness is hard to define, its because you have a Constitutionally protected right to be rude! Its called the the Right to Freedom of Speech, and any law against rude behavior would almost certainly violate it. Conversely, you do not have a Constitutional right to violate other people's privacy! Baker goes on to commit a popular logical fallacy known as a straw-man argument. He claims that he can prove that all privacy laws are bad, by providing specific examples of bad privacy laws: It’s not privacy that’s stupid. It’s privacy law. And the stupidity is pretty much built in. Don't believe me? Fine, I bet I can come up with multiple examples, just this year, of extreme hypocrisy in the application of privacy law, aggressive use of privacy law to serve the interests of the powerful, and multiple foolish applications of privacy law. It's a "target-rich environment," as they say in the Defense Department.
Identifying and shaming hypocrisy and foolishness is a good thing. I'm almost excited to see the examples that Baker calls out. But, the problem is that he doesn't intend to identify specific examples of hypocrisy and foolishness - his assertion is that all privacy laws are hypocritical or foolish. You can't prove that assertion by hand picking a few bad examples and getting people to vote on them. You must demonstrate that there are no good examples of privacy laws anywhere. You have to take the privacy laws that people have the greatest respect for, and prove that they serve no benefit. For example, a lot of people respect the Fourth Amendment to the United States Constitution, which is the mother of all privacy laws in this country. Among other things, it protects people against unreasonable searches of their papers by government agents. Baker writes: Privacy is every bit as malleable and context-sensitive as good manners, and efforts to protect it in law are inevitably either so general that anyone can be prosecuted or so ham-handedly specific that they rapidly fall out of date.
The Fourth Amendment to the United States Constitution has certainly been the subject of a great deal of debate over the past 200 years. Is it so general that it prohibits anything that the government might want to do? Is it so ham-handedly specific that it has rapidly fallen out of date? Seriously, who cares about "persons, houses, papers, and effects" these days when all of our data is stored on "servers, laptops, tablets, and cellphones." Baker ought to give a Golden Privy Lifetime Achievement Award to James Madison for burdening our country with this ridiculous albatross! I wouldn't be so annoyed with Baker if serious people didn't take him seriously. Brookings Institute Fellow Benjamin Wittes, who in general has been a balanced and reasonable voice in interpreting the revelations about the NSA that have emerged this year, seems to be cheering Baker on. Wittes writes that he would vote for James Sensenbrenner, author of the PATRIOT Act, in the category of Privacy Hypocrite of the Year. Wittes and Baker have both attacked Sensenbrenner because he refused to attend classified briefings offered to Congress, and then argued that he was unaware of the bulk meta-data program that Edward Snowden disclosed, which was apparently discussed in the very briefings that Sensenbrenner skipped. Wittes writes: The former chairman of the House Judiciary Committee, asked about the information available to him about a key piece of legislation, has proudly proclaimed, as though it were a defense, that he refused to do his job.
Baker writes: Rep. Sensenbrenner declared that he refused to attend most secret briefings because he didn’t want to bear the burden of protecting classified information.
I won't pretend to know what is really motivating Sensenbrenner. The PATRIOT Act was his baby, and he has been told for years by civil liberties advocates, the "privacy lobby" that Baker so despises, that the text would be interpreted in expansive and dangerous ways. Yet he voted to renew it anyway. Nevertheless, he gave a pretty clear explanation of exactly why he did not want to attend classified briefings, and the explanation is a bit more complicated than Baker and Wittes admit. Usually in these classified briefing, we find out stuff that was in either the Washington Post or the New York Times in the previous days. And this was an attempt by the intelligence community basically to shut us up as members of Congress, because if we disclosed any of that information which was already in the public record and was in a publicly-available newspaper, we could be prosecuted for breaking our oath to secrecy and committing a felony. And I’m not going to get myself involved in that.
Sensenbrenner is making the allegation, publicly, that the intelligence community uses classified briefings to blackmail our elected representatives and manipulate our political process. This is an extremely serious allegation, and it is not appropriate for either Baker or Wittes to dismiss it as a general unwillingness to protect classified information. Although Baker's Privy Awards may be issued to some deserving fools who have used privacy laws in hypocritical ways, I am dismayed by the dearth of credible experts in this policy area who are capable of maintaining objectivity. Stewart Baker's 'Privy Award for Dubious Achievements in Privacy Law' is a marathon of bad metaphors. | 
