While there are many choice tidbits to relate from Tuesday’s hearings on PATRIOT Act reform at the House Judiciary Committee’s Subcommittee on the Constitution—not least the fellow who had to be wrestled from the room, literally kicking and screaming, after he tried to stand and interrupt with a complaint about alleged FBI violations of his civil rights—I’ll just relate a novel theory of the Fourth Amendment advanced by Rep. Steve King (R‐​Iowa).


The ACLU’s Mike German, a former FBI agent turned surveillance policy expert, was explaining that it’s hard to know whether expansive surveillance powers are being abused, they’re mostly used in secret and deployed via third‐​parties like financial institutions and telecoms, who have little incentive to raise much fuss or draw attention to their cooperation. King interrupted to suggest that if we weren’t hearing about constitutional challenges, then it was probably safe to assume there was no Fourth Amendment harm. German tried to reiterate that the people whose privacy interests were directly harmed typically would not know they had ever been targeted.


That, King declared, was precisely the point. Surveillance of which the subject never became aware, he said, could be compared to a “tree falling in the forest” when nobody’s around. In other words, if you aren’t ultimately prosecuted, and don’t even feel subjective distress as a result of the knowledge that your private records or communications have been pored over, then it’s presumably no harm, no foul. If we take this line of thinking literally, sufficiently secret surveillance can never be unconstitutional, which would seem to make King a spiritual cousin of Richard “if the president does it, that means it’s not illegal” Nixon.