I want to look at a much less extreme example, because I think it is more typical. The person I'll focus on is not a villain. But I do think he is unwittingly failing a civic obligation, despite his admirable willingness to participate in public life.

Baker attended law school at UCLA, clerked for Supreme Court Justice John Paul Stevens, and served as the NSA's general counsel from 1992 to 1994. Before and after his time in government, he built a private practice at the law firm Steptoe and Johnson, focusing on national security, electronic surveillance, export control encryption, and more. He also served as an assistant secretary at the DHS under President George W. Bush. And while he's since returned to private practice, he's an active participant in public discourse surrounding NSA surveillance. I've seen him speak at The Aspen Ideas Festival and UCLA law school. He hosts a podcast for his law firm and blogs at Lawfare and the Washington Post.

Almost always, I disagree with him, but that is irrelevant here. He believes that intrusive government spying is both legal and necessary for maintaining national security. I dispute his logic, but cannot fault him for voicing his conclusions. What I do fault is his failure to forcefully object to the U.S. government's behavior on certain rare occasions when even he thinks it has gone too far.

So we return to recent revelations that the Drug Enforcement Administration has spent many years engaged in the bulk collection of both phone records and license plate data.

These news stories have been discussed on successive episodes of Baker's podcast, where he makes clear his position that these tactics shouldn't be considered a violation of the Fourth Amendment. Unlike Supreme Court Justice Sonya Sotomayor, who has expressed discomfort with prevailing executive branch logic, Baker believes that civil liberties ought to be safeguarded by limiting how metadata in the government's hands can be used, not what can be collected, and that even a nationwide system of cameras that snap photos of license plates to track the movement of cars isn't a violation of Constitutional privacy rights since everyone puts their license plate on their bumper for anyone to see.

Baker also recognizes that even if these practices are constitutional, that doesn't resolve the separate questions of 1) whether they are prudent policy, and 2) whether it was appropriate for the DEA to implement them in secret. That's where I want to focus. On Baker's podcast, Rebecca Richards, the Director of Privacy and Civil Liberties at the NSA, discussed that surveillance agency's need to maintain some secrecy even as it offers the American public an undefined degree of transparency.

In that context, Baker said, "My faith in transparency is shaken by these DEA stories. They hid this not even classified—this was law enforcement sensitive—program, they kept it hidden for 25 years, it was a mass collection of data in support of a legal regime that is deeply controversial. Colorado has opted out of the regime. And the reaction, unlike the reaction to NSA, has been, 'Oh yeah, cops do that.'"