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The NSA should end its surveillance of U.S. citizens and lawful permanent residents (essay and evidence)

The NSA should end its surveillance of U.S. citizens and lawful permanent residents (essay and evidence)

“’The stuff I saw really began to disturb me,” Mr. Snowden recalled. ”I could watch drones in real time as they surveilled the people they might kill.” He added: ”I watched N.S.A. tracking people’s Internet activities as they typed. I became aware of just how invasive U.S. surveillance capabilities had become. I realized the true breadth of this system. And almost nobody knew it was happening” New York Times

Introduction

The controversy related to issues surrounding NSA surveillance first became a hot topic for debate when it was disclosed in June of 2013 by former defense contractor Edward Snowden and journalist (and former debater) Glenn Greenwald that the US National Security Agency (NSA) and other federal agencies are engaging in extensive surveillance to fight crime and reduce the threat of terrorism.

The magnitude of the disclosure shocked many people, including elected representatives who were unaware of the extent of the surveillance. Civil rights advocates view the surveillance as an assault on privacy and liberty, while law enforcement and national security officials see these mass surveillance programs, and other targeted surveillance programs that are based on individual suspicion, as essential weapons in the war on terror, the fight against nuclear weapons proliferation, the general protection of US national security, and even efforts to reduce conventional crime.

Since the release of the original story, the controversy has become front page news around the world, with more and more arguably problematic programs described in the leaked trove of Snowden documents coming to light. New stories appear on a daily, making this one of the easiest topics to research and update in some time.

The federal mass surveillance programs that had been revealed are catalogued in former debater Glenn Greenwald’s most recent book, No Place  to Hide: Edward Snowden, the NSA, and the US Surveillance State, which also offers a page-turning read into Greenwald’s initial meetings with Snowden and documentary film maker Laura Poitras in Hong Kong, as well as his access to the documents. The initial meetings are also documented in Poitras’ CitizenFour. Curtailing any of these and other mass surveillance programs will make for arguably strong Affirmative cases.

In this essay, I will examine some key terms in the resolution, discuss some important aspects of its wording for the strategic development of arguments on both the Pro and the Con. By the time you finish reading the essay, you should have a good idea as to how most of the main arguments on the topic will play out as well as some strategic considerations that you should consider when selecting arguments on both sides of the resolution.

The Wording of the Resolution

The NSA should end its surveillance of U.S. citizens and lawful permanent residents.

The topic area chose for debate is a good one. The wording of the resolution is not great, however, and this is something that will become obvious as I walk you through it.

NSA. The NSA is the National Security Agency, which is part of the Department of Defense, is one federal agency that engages in surveillance of US citizens. The Federal Bureau of Investigation (FBI) and state/local law enforcement also engage in surveilance.

End. The choice of the word, “end” in the resolution is probably the most problematic, as even the strongest opponents of the programs do not say we should end the programs. Most (maybe all) of the opponents argue that the government should have to obtain warrants to carry out the surveillance. For example, this article has a number of suggestions for reforms.

US citizens and lawful permanent residents. While I appreciate the desire to limit the discussion to US citizens and LPRs, the central current question related to the surveillance is whether the surveillance of non-US citizens living abroad that incidentally results in surveillance of US citizens is constitutional and acceptable. US citizens and LPEs are not ordinarily targeted by this surveillance. And the surveillance of US citizens abroad is considered constitutional, as the Constitution doesn’t apply to US citizens outside the US. So the wording of the resolution is really poorly targeted — US citizens are ordinarily not directly subject to NSA surveillance and the constitution doesn’t apply to US citizens living abroad. These are very important things to keep in mind when preparing your debates, as the literature is going to “miss” the wording of the resolution.

Authorities

In order to better understand the topic, the foundation for the wording issues discussed, and the basics of the Pro and Con arguments, it is important to understand where NSA authority to surveil US citizens primarily stems from.

According to the American Civil Liberties Union (ACLU):

The FISA Amendments Act of 2008 (FAA) gives the NSA almost unchecked power to monitor Americans’ international phone calls, text messages, and emails — under the guise of targeting foreigners abroad. The ACLU has long warned that one provision of the statute, Section 702, would be used to eavesdrop on Americans’ private communications. In June 2013, The Guardian published documents provided by whistleblower Edward Snowden confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans’ privacy are weak and riddled with exceptions, and that virtually every email that goes into or out of the United States is scanned for suspicious keywords…

Executive Order 12,333, signed by President Reagan in 1981 and modified many times since, is the authority primarily relied upon by the intelligence agencies to gather foreign intelligence outside of the United States. Recent disclosures indicate that the U.S. government operates a host of large-scale programs under EO 12333, many of which appear to involve the collection of vast quantities of Americans’ information. These programs have included, for example, the NSA’s collection of billions of cellphone location records each day; its recording of every single cellphone call into, out of, and within at least two countries; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad…

For many years, the government claimed sweeping authority under the Patriot Act to collect a record of every single phone call made by every single American “on an ongoing daily basis.” This program not only exceeded the authority given to the government by Congress, but it violated the right of privacy protected by the Fourth Amendment, and the rights of free speech and association protected by the First Amendment. For this reason, the ACLU challenged the government’s collection of our phone records under Section 215 of the Patriot Act just days after the program was revealed in June 2013 by The Guardian. In May 2015, a court of appeals found that the phone records program violated Section 215, and Congress allowed the provision to expire in June of that year. The program was reformed by the USA Freedom Act, which passed days later.

Ashley Gorski et al elaborate on Section 702

Section 702 allows the government to monitor Americans’ international emails, web-browsing, and phone calls without a warrant, relying on the compelled assistance of companies like Facebook, Google, AT&T, and Verizon. Under the law, the government can “target” the communications of any non-U.S. person abroad to collect “foreign intelligence information” – even if an American is on the other end of the line. Although the government cannot directly target Americans, this surveillance predictably captures substantial quantities of Americans’ communications. That is in part because the targeting rules are so broad: the government’s targets need not have any connection to terrorism investigations or criminal activity, and can include academics, journalists, and human rights workers. Last year, the United States targeted more than 200,000 individuals and groups under the law, resulting in the mass collection of hundreds of millions of communications (if not more). The government obtains these communications without warrants, but nevertheless uses them in ordinary criminal investigations of Americans.

They add on Executive Order 12333

EO 12333 is the primary authority under which the government conducts foreign intelligence surveillance, and it encompasses a wide array of warrantless surveillance programs. Unlike Section 702 surveillance, most EO 12333 surveillance occurs outside the United States. Although this surveillance is directed at foreigners, Americans’ communications are routinely sent, routed, or stored abroad, where they may be caught up in the EO 12333 dragnet. Under EO 12333, the United States also contends that it can search through and collect communications in bulk – without any target whatsoever – to obtain foreign intelligence. According to news reports, the National Security Agency (NSA) has relied on EO 12333 to collect nearly 5 billion records per day on the locations of cell phones; amass hundreds of millions of contact lists and address books from personal email and messaging accounts; and record every cell phone call to, from, and within at least two countries.

Most recently, the government, in a lawsuit, has clearly articulated which programs continue:

Nicholas Iovino, November 2, 2020, Courthouse News Service, Telecoms Customers Take Fight Over NSA Spying Programs to Ninth Circuit, https://www.courthousenews.com/telecoms-customers-take-fight-over-nsa-spying-programs-to-ninth-circuit/

Lead plaintiff Carolyn Jewel sued the NSA in 2008, long before NSA contractor Edward Snowden leaked a trove of classified records unveiling details about the NSA’s multiple warrantless spying programs in 2013. The lawsuit claims the NSA used three programs to spy on American citizens in a way that violates the First and Fourth Amendments, the Wiretap Act, Stored Communications Act and Foreign Intelligence Surveillance Act. Those programs include the bulk collection of cellphone and landline records from phone companies, mass interception and searching of Americans’ emails and other internet communications, and collection of metadata from internet communications, such as timestamps and “to” and “from” data from emails. The government has acknowledged the existence of those programs. It says the bulk collection of internet communications and metadata was discontinued and replaced with more targeted collection of data based on specific selection terms. The bulk collection of phone records continues.

Pro Contentions

Privacy/totalitarianism There are many different ways to understand “privacy,” an idea originally articulated by Samuel D. Warren and Louis D. Brandeis in 1890[1]. These include the right to be left alone, the right to be secure in one’s person, the right to have certain information about one kept secret, the right to to associate with who one wishes without interference[2].

The threat to privacy from any type of surveillance is significant because it involves monitoring of individuals. In many instances, people expect what is being monitored to otherwise be private.

Mass surveillance is especially intrusive.

Citron & Macht, 2013, Danielle Keats Citron, Lois K. Macht Research Professor of Law, University of Maryland School of Law; Affiliate Scholar, Stanford Center on Internet and Society; Affiliate Fellow, Yale Information Society Project., David Gray, Associate Professor of Law, University of Maryland School of Law. We are grateful to Neil Richards for his thoughtful essay and feedback and to Julie Cohen, Leslie Henry, Amanda Pustilnik, Daniel Solove, and the participants in the Harvard Law Review Symposium on Privacy and Technology for their helpful suggestions, “ADDRESSING THE HARM OF TOTAL SURVEILLANCE: A REPLY TO PROFESSOR NEIL RICHARDS,” May, p. 270

The continuous and indiscriminate surveillance they accomplish is damaging because it violates reasonable expectations of quantitative privacy, by which we mean privacy interests in large aggregations of information that are independent from particular interests in constituent parts of that whole. To be sure, the harms that Richards links to intellectual privacy are very much at stake in recognizing a right to quantitative privacy. But rather than being a function of the kind of information gathered, we think that the true threats to projects of self-development and democratic culture lie in the capacity of new and developing technologies to facilitate a surveillance state. In adopting this view, we ally ourselves in part with commitments to a quantitative account of Fourth Amendment privacy promoted by at least five Justices of the Supreme Court last Term in United States v. Jones.  In Jones, police officers investigating drug trafficking in and around the District of Columbia attached a GPS-enabled tracking device on defendant Jones’s car. By monitoring his movements over the course of a month, investigators were able to document both the patterns and the particulars of his travel, which played a critical role in his ultimate conviction. Although the Court resolved Jones on the narrow grounds of physical trespass, five justices wrote or joined concurring opinions showing sympathy for the proposition that citizens hold reasonable expectations of privacy in large quantities of data, even if they lack reasonable expectations of privacy in the constitutive parts of that whole. Thus, they would have held that Jones had a reasonable expectation in the aggregate of data documenting his public movements over the course of four weeks, even though he did not have any expectation of privacy in his public movements on any particular afternoon.  The account of quantitative privacy advanced by the Jones concurrences has much in common with the views promoted by Warren and Brandeis. Specifically, the concurring Justices in Jones expressed worry that by “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track,” programs of broad and indiscriminate surveillance will “chill[] associational and expressive freedoms,” and “alter the relationship between citizen and government in a way that is inimical to a democratic society.” Their concerns are well-grounded in original understandings of the Fourth Amendment. As Professor William Stuntz has shown, the Fourth Amendment was drafted partly in reaction to eighteenth-century cases involving the British government’s use of general warrants to seize personal diaries and letters in support of seditious-libel prosecutions that were designed to suppress political thought. Despite these roots, quantitative privacy is just beginning to receive recognition because it is only now under threat of extinction by technologies like Virtual Alabama and fusion centers.

Glenn Greenwald, argues that the objective of NSA surveillance is the elimination of global privacy.

“The general revelation that the objective of the NSA is literally the elimination of global privacy: ensuring that every form of human electronic communication – not just those of The Terrorists™ – is collected, stored, analyzed and monitored,” he said.

Of course, it is important to note here that Pro teams cannot argue for reducing the surveillance of non-US citizens.

Beyond individual privacy violations, this surveillance laws the foundations for totalitarianism.  Surveillance totalitarianism possible by discouraging intellectual exploration of controversial ideas and creating a power relationship between the government and the subject who is subject to surveillance.

Neil Richards, 2013, law professor,Washington University School of Law, Harvard Law Review, The Dangers of Surveillance, http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/ DOA: 3-20-15

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases,  and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis.  Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, finding that the respondents’ claim that their communications were likely being monitored was “too speculative.”  But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach. At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance. At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public/private divide. Public and private surveillance are simply related parts of the same problem, rather than wholly discrete. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process be-fore it is authorized. We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

Jonathan Schell, writing in the Nation, argues that this is more power than Stalin was able to exercise in totalitarian Russia.

And certainly, the four Poles, of all people, are as fully aware as any sensible person of the abyss of difference that separates the Obama administration from, say, the regime of Joseph Stalin, slayer of tens of millions of his own people. And yet it is chillingly true at the same time that the US government has gone further than any previous government—not excluding Stalin’s—in setting up machinery that satisfies certain tendencies that are in the genetic code of totalitarianism. One is the ambition to invade personal privacy without check or possibility of individual protection. This was impossible in the era of mere phone wiretapping, before the recent explosion of electronic communications—before the cellphones that disclose the whereabouts of their owners, the personal computers with their masses of personal data and easily penetrated defenses, the e-mails that flow through readily tapped cables and servers, the biometrics, the street-corner surveillance cameras. But now, to borrow the name of an intelligence program from the Bush years, “Total Information Awareness” is technologically within reach. The Bush and Obama administrations have taken giant strides in this direction. That China and Russia—and Britain, and many other countries—have done the same is hardly comforting to the humble individual under the eye of the universal spying apparatus. A second totalitarian tendency has been the ambition to control the entire globe—a goal built into fascist as well as communist ideologies of the early twentieth century. In Hannah Arendt’s words, “Evidence that totalitarian governments aspire to conquer the globe and bring all countries on earth under their domination can be found repeatedly in Nazi and Bolshevik literature.” Neither achieved it, or even came close. But now, in the limited arena of information, a sort of shadow or rudiment of this ambition is near realization by the “sole superpower,” the United States. Much attention has been paid to Americans’ loss of privacy rights, but relatively overlooked in the debate over the government’s surveillance activities (at least in the United States) has been that all foreign communications—including those occurring in the lands of close allies, such as Germany—are fair game and are being swept into the US data banks. The extent of the US global reach over information was mirrored in Snowden’s fate. Astonishingly, almost no fully democratic country would have him. (The conspicuous exception was Bolivia, whose president suffered the indignity of a forced diversion and landing of his plane when he was suspected of carrying Snowden to safety.) Almost all others, including Poland, bowed to US pressure, actual or potential, to refuse Snowden protection. The Polish letter writers were scandalized by this spectacle. “The fact that only dictatorial governments agreed to give him shelter shames the democratic states,” they wrote. “Our democracies discredit themselves with their indifference and cowardice in this matter.” What happened to Snowden in Moscow diagramed the new global reality. He wanted to leave Russia, but the State Department, in an act of highly dubious legality, stripped him of his passport, leaving him—for purposes of travel, at least—stateless. Suddenly, he was welcome nowhere in the great wide world, which shrank down to a single point: the transit lounge at Sheremetyevo. Then, having by its own action trapped him in Russia, the administration mocked and reviled him for remaining in an authoritarian country. Only in unfree countries was Edward Snowden welcome. What we are pleased to call the “free world” had become a giant prison for a hero of freedom.

The NSA doesn’t have a great track record when it comes to limiting abuse of its authority.  During the Vietnam war, the NSA spied on Mohammed Ali, Martin Luther King, and Senator Howard Baker.  Arab American lawyer Abdeen Jabara was also spied on. In March 2013, the NSA program, Boundless Informant, collected 97 billion pieces of metadata.  From 1940 to 1973, the CIA and FBI engaged in a covert mail opening program.  The Army intercepted domestic radio communications. An Army surveillance program placed more than 100 people under surveillance.

Although the internal link to totalitarianism from the collection of individual information by private companies is inherently smaller, there are massive privacy violations, and since governments can get ahold of the information, there is a link into totalitarianism

Daily Mail, July 7, 2014:

Noel Sharkey, a professor of artificial intelligence and robotics at Sheffield University, said that older people were more cautious with their personal data. Addressing the Cheltenham Science Festival, he said: ‘I’m 65, I don’t want to be targeted. I am very uncomfortable with it. It seems to me our privacy is gradually being violated and eroded without us noticing. ‘I am part of the generation which all read 1984 – I think we are less happy about giving up our privacy. ‘But the younger generation aren’t really thinking about it. The services that Google and Facebook give us are so good that people are willing to trade off their privacy for them.’ He said Google’s recording of all our online activities meant it knew far too much about us. He added: ‘At the moment it doesn’t seem harmful. But because governments can get hold of this information, they can monitor you, things might change quite dramatically.’ Google has invested billions of pounds buying up cutting-edge technologies which will increase their access to people’s information. The internet giant recently paid ÂŁ1.9billion for Nest Labs, a firm which makes internet-connected heating systems, allowing people to control their thermostats from afar. Supporters argue that having greater control over home applications – which may soon include fridges that automatically reorder when you run out of food and lighting systems that turn on when they sense your approach – can only benefit consumers. But connecting more things to the internet enables large firms to collect more and more data.

Racism. Many argue that NSA surveillance is illegitimately targeted at minorities, particularly Arab and Muslim minorities.   In July of this year (2014), the Intercept, Glenn Greenwald’s new website, published the email addresses of more than 7,000 Muslim Americans who are under warrantless surveillance:

The National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans—including a political candidate and several civil rights activists, academics, and lawyers—under secretive procedures intended to target terrorists and foreign spies. According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

  • Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
  • Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
  • Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
  • Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
  • Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”—short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.

The spreadsheet shows 7,485 email addresses listed as monitored between 2002 and 2008. Many of the email addresses on the list appear to belong to foreigners whom the government believes are linked to Al Qaeda, Hamas, and Hezbollah. Among the Americans on the list are individuals long accused of terrorist activity, including Anwar al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in Yemen.

Many individuals are monitored based on their race and/or ethnicity.

Cindy C. Unegbu, law student, Fall 2013, Howard Law Journal, v. 57, NOTE AND COMMENT: National Security Surveillance on the Basis of Race, Ethnicity, and Religion: A Constitutional Misstep, http://heinonline.org/HOL/Page?handle=hein.journals/howlj57&div=15&g_sent=1Restricted but available to NSDA members, p. 433-6

Picture this: you live in a society in which the government is allowed to partake in intrusive surveillance measures without the institutionalized checks and balances upon which the government was founded. In this society, the government pursues citizens who belong to a particular race or ethnicity, practice a certain religion, or have affiliations with specific interest groups. Individuals who have these characteristics are subject to surreptitious monitoring, which includes undercover government officials disguising themselves as community members in order to attend various community events and programs. The government may also place these individuals on watch lists, even where there is no evidence of wrongdoing. These watch lists classify domestic individuals as potential or suspected terrorists and facilitate the monitoring of their personal activity through various law enforcement agencies for an extended period of time. This “hypothetical” society is not hypothetical at all; in fact, it is the current state of American surveillance. The government’s domestic spying activities have progressed to intrusive levels, primarily due to an increased fear of terrorism. This fear has resulted in governmental intelligence efforts that are focused on political activists, racial and religious minorities, and immigrants. The government’s domestic surveillance efforts are not only geared toward suspected terrorists and those partaking in criminal activity, but reach any innocent, non-criminal, non-terrorist national, all in the name of national security. The government’s power to engage in suspicionless surveillance and track innocent citizens’ sensitive information has been granted through the creation and revision of the National Counterterrorism Center and the FBI’s (Federal Bureau of Investigation) Domestic Investigations and Operations Guide. The grant of surveillance power has resulted in many opponents, including those within the current presidential administration, who challenge the order for numerous reasons. These reasons include the inefficiency of storing citizens’ random personal information for extended periods of time, the broad unprecedented authority granted to this body of government without proper approval from Congress, and the constitutional violations due to the deprivation of citizens’ rights. This Comment argues that the wide-sweeping surveillance authority granted to the government results in a violation of the Fourteenth Amendment’s Equal Protection Clause due to far-reaching domestic monitoring practices. Surveillance practices, such as posing as members of the community and placing individuals on watch lists without suspicion of terrorist activity, result in the impermissible monitoring of individuals on the basis of their race or ethnicity. These practices, although done in the name of national security, an established compelling government interest, violate the Equal Protection Clause of the Fourteenth Amendment because they are not narrowly tailored to the stated interest. The procedures are not narrowly tailored to the interest of national security because of the over-inclusiveness of the measures.

Freedom of association/expression.  Surveillance discourages individuals from freely associating and expressing their opinions.

Elizabeth Joh, law professor, 2013, University of California, Davis, School of Law, Arizona Law Review, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, p. fn34 Available at; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2285095 DOA: 1-12-15

Osborn v. United States, 385 U.S. 323, 341 (1966) (Douglas, J., dissenting); see also United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”); Ciraolo, 476 U.S. at 225 n.10 (1986) (Powell, J., dissenting) (“It would appear that, after today, families can expect to be free of official surveillance only when they retreat behind the walls of their homes.”); United States v. U.S. Dist. Court, 407 U.S. 297, 320 (1972) (“Official surveillance . . . risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.“); Johnson, 333 U.S. at 14 (“The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.”); cf. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (“The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.”).

Internet surveillance chills news reporting and free speech.

Kenneth Roth, November 18, 2013, “The NSA’s Global Threat to Free Speech,” http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/ DOA: 3-20-15

But the NSA’s overreaching endangers free speech in more direct ways as well. Consider the not-uncommon situation in which a repressive government such as China’s asks an Internet company for information on a user. The most notorious request of this kind involved the Chinese journalist Shi Tao, who just completed eight years in prison for “leaking state secrets”—sending a human rights group information about media restrictions for the fifteenth anniversary of the 1989 Tiananmen Square uprising and the ensuing massacre. At China’s request, Yahoo turned over Shi’s email information, contributing to his conviction. One of the best defenses against such requests is for Internet companies to store user information in servers located outside the country in question. That approach is not foolproof—governments have many ways to pressure Internet companies to cooperate—but it can help to fend off such requests. US Internet companies currently opt to repatriate to servers in the United States most information on users in foreign countries. However, after the revelations about NSA surveillance, many countries have said they may require Internet companies to keep data about their citizens on servers within their own borders. If that becomes standard practice, it will be easier for repressive governments to monitor Internet communications. Weak as US privacy safeguards are, those in many other countries are no better. For example, while outraged at the NSA’s snooping, many privacy activists in Brazil oppose their own government’s proposed requirement to store data locally because they fear their data protection laws are inadequate. Moreover, as the case of Shi Tao shows, granting national governments easy access to user information may enable them not only to invade privacy but also to suppress criticism and unearth dissent. Anonymity is sometimes the best protection against censorship, but official access to user information makes anonymity difficult. Current proposals to change the way the Internet is regulated could, if implemented, also facilitate efforts by foreign governments to gather information on their own citizens’ electronic activities. The Internet is governed mainly through informal cooperative arrangements among numerous public and private entities, but a US-based organization, the Internet Corporation for Assigned Names and Numbers, or ICANN, is responsible for, among other things, coordinating the assignment of unique identifiers that allow computers around the world to find and recognize each other. A private board of directors runs ICANN, but the US Commerce Department has a large part in its management.

Terrorism. Terrorism is the core Con argument on the topic but there are also Pro arguments that are twists (link turns) on the topic.

First, there is evidence that collecting so much data makes it impossible for authorities to find meaningful data that they could use to find and prosecute potential criminals. This avalanche of data can work to district authorities from important information and also resource in an overstretch of financial resources.

Second, European opposition to NSA surveillance has resulted in them breaking-off many data-sharing agreements with the United States. Data sharing is an important way to prevent terrorism.

Since the most common Con argument is terrorism, it makes sense for the Pro to get a “leg up” on this argument and make terrorism a Pro contention. Regardless, these Pro “links” to terrorism are link turns to the Con argument.

Internet innovation.  Related to the questions of Internet freedom and the economical implications of surveillance is the question of how surveillance of the Internet may chill its development because developers will be reluctant to develop new concepts under surveillance.

John Shinal, March 17, 2015, USA Today, At SXSW, unlikely allies in privacy-law fight, http://www.pressreader.com/usa/usa-today-international-edition/20150318/281762742738887/TextView DOA: 3-21-15

“While the statutes are murky, the Fourth Amendment is crystal clear,” he said during the panel. As Issa made his comments in a meeting room of the JW Marriott Hotel here, ACLU attorney Ben Wizner and privacy advocate and author Bruce Schneier — during another SXSW privacy panel just down the hall — were making a similar argument: Mass surveillance is throttling both society and business. “Pervasive surveillance leads to conformity,” Schneier said. “If everything we do is watched, we’ll do fewer new things.” Schneier’s comments echo the position of a growing number of Silicon Valley companies worried that surveillance will cost them customer trust and future business. “Right now, U.S. companies dominate Internet services,” says Alex Stamos, Yahoo’s chief information security officer, who was in the audience for the lawmaker’s panel. “The worry is that someone else will surpass us” if customers lose trust in American technology over privacy concerns, Stamos said.

Internet innovation has the potential to gain access to all types of interesting developments, from advances in genomics, to Internet gaming, the transhumanism. I suspect this, perhaps combined with Economy and Freedom, will be a strong advantage areas.

Glenn Greenwald, attorney & journalist who broke the NSA spying story, May 2014,  No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State, Kindle edition

From the time that it first began to be widely used, the Internet has been seen by many as possessing an extraordinary potential: the ability to liberate hundreds of millions of people by democratizing political discourse and leveling the playing field between the powerful and the powerless. I without institutional constraints, social or state control, and pervasive fear— is central to the fulfillment of that promise. Converting the Internet into a system of surveillance thus guts it of its core potential. Worse, it turns the Internet into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.

Internet fracturing. And related to the questions of internet freedom, the economics of the internet, and the development of the Internet is the question of Internet fracturing — different countries and regional organizations developing their own Internets. Surveillance makes this more likely.

William Marsden, Montreal Gazette, March 15, 2015, Cyber-spying thrives as technology makes it easier; Canada was likely among the countries who shared citizens’ personal data, p. A7

Early this year Google, Apple, Microsoft, Facebook, Twitter and Yahoo united to form the Reform Government Surveillance Coalition to lobby government to restrict NSA surveillance. “The reality is these are publicly traded companies that owe a fiduciary obligation to their shareholders,” Goitein said. “They are mindful of their bottom line which is suffering quite badly, especially overseas, on the perception that the companies don’t protect their customers privacy.” All of them are feeling the heat, particularly from EU countries already concerned about their monopolistic reach. When you add on the NSA surveillance program and the fact that the majority of Internet traffic finds its way through the U.S. and its Five Eyes partners, countries like Germany are considering their own closed national Internet network – or how to spell typewriter.

“Soft power” refers to how likable the US is, and there is good evidence that reducing surveillance will improve the US image in the world – its “soft power.”

Adam Quinn. October 28, 2013. The Conversationalist. Obama’s Soft Power a Hard Sell After NSA Revelations. http://theconversation.com/obamas-soft-power-a-hard-sell-after-nsa-revelations-19572 DOA: 3-11-15

Soft power. Many of those who are optimistic about the ability of the US to pull off this project of declining power without declining influence place emphasis on two things: the extent to which the US has soft power due to widespread admiration for its political and cultural values, and the extent to which it has locked in influence through the extent of its existing networks of friends and allies. Even if these advantages cannot arrest America’s decline on harder metrics, if played properly they can mitigate its consequences and secure an acceptable future. Shoring up support from like-minded countries such as those of Europe ought to be the low-hanging fruit of such an effort. So the current problems do harm on both fronts. It will be difficult to maintain the allure of soft power if global opinion settles on the view that American political discord has rendered its democracy dysfunctional at home, or that its surveillance practices have given rein to the mores of a police state.

US soft power can be valuable in facilitating global diplomacy that is necessary to arrest environmental problems, slow nuclear proliferation, mediate global disputes. By strengthening allied relationships it can also support US hard power.

Internet freedom. US surveillance practices undermine US credibility on promoting freedom of the Internet. This will result in even greater restrictions in countries like Russia and China.

Tarun Wadhwa, June 23, 2014, http://www.forbes.com/sites/tarunwadhwa/2013/06/13/with-nsa-surveillance-us-government-may-have-dealt-major-blow-to-global-internet-freedom-efforts/ Forbes, “NSA Surveillance May Have Dealt Major Blow to Global Internet Freedoms” DOA: 3-6-16

We should all be extremely concerned about the colossal surveillance infrastructure that is being built in the name of our safety. In trying to reassure the public, our leaders have told us that these programs are not meant to target us, but instead, foreigners who may pose a threat to our security.  But this is merely a decision on how the data is being used today – we are getting into very dangerous territory by hoping for the best intentions of whoever is in power in the future.  American history holds many lessons for us here: circumstances can change, the perception of who is a threat can vary with whoever is in office, and we cannot predict what our political situation will look like decades, or even years, from now. In the court of global public opinion, America may have tarnished its moral authority to question the surveillance practices of other nations – whether it be Russia on monitoring journalists, or China on conducting cyber espionage.  Declarations by the State Department that were once statements of principle now ring hollow and hypocritical to some.  No nation can rival the American surveillance state, but they no longer need support to build their own massive systems of espionage and oppression. The costs of surveillance and data storage technologies are plummeting — these will no longer be prohibitive factors.  Diplomatic pressures and legal barriers that had also once served as major deterrents will soon fade away.  The goal has been to promote internet freedom around the world, but we may have also potentially created a blueprint for how authoritarian governments can store, track, and mine their citizens’ digital lives.

Kenneth Roth, November 18, 2013, “The NSA’s Global Threat to Free Speech,” http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/

The NSA’s electronic spying has also done much to discredit the US government’s reputation as an outspoken champion of Internet freedom. Most notably under the leadership of former Secretary of State Hillary Clinton, the US has regularly criticized countries for detaining dissident bloggers or users of social media. But today, although the United States continues to respect freedom of expression on and off line, that virtue is easily overshadowed by Washington’s indifference to Internet privacy. And even America’s reputation for respecting free speech is undermined when the Obama administration tries to extradite and prosecute Edward Snowden for an alleged security breach that many see as legitimate whistleblowing. Beyond Internet users, those who probably feel most at risk by Washington’s disregard for privacy are US Internet companies. Companies such as Google and Facebook are undoubtedly terrified that users in other countries will begin looking for non-American alternatives to avoid NSA snooping. The German Federation of Journalists, for example, recently warned its members to avoid using US Internet companies for email or searches because of NSA surveillance, and Deutsche Telekom said it is working to keep electronic messages from entering the United States unnecessarily. Internet companies thus may become one powerful constituency to press the US government to reform its surveillance laws.

Executive power abuse. Current federal surveillance practices arguably exceed the authority of the Commander-in-Chief and Affirmative teams can argue that this assertion of executive power is tyrannical.

Robert Levy, 2006, “Wartime Executive Power and the NSA’s Surveillance Authority II,” http://www.cato.org/publications/congressional-testimony/wartime-executive-power-nsas-surveillance-authority-ii DOA: 3-5-15

Attorney General Gonzales has a second, more plausible, defense of warrantless surveillance — namely, Article II of the Constitution states that “The executive Power shall be vested in a President” who “shall be Commander in Chief” of the armed forces. That power, says the attorney general, trumps any contrary statute during time of war. I respectfully disagree — which is not to say I believe the president is powerless to order warrantless wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power. But warrantless surveillance of Americans inside the United States, who may have nothing to do with al-Qaeda, does not qualify as incidental wartime authority. The president’s war powers are broad, but not boundless. Indeed, the war powers of Congress, not the president, are those that are constitutionalized with greater specificity. The question is not whether the president has unilateral executive authority, but rather the extent of that authority. And the key Supreme Court opinion that provides a framework for resolving that question is Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer — the 1952 case denying President Truman’s authority to seize the steel mills. Truman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act, Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was recently adopted by the Second Circuit in holding that the administration could no longer imprison Jose Padilla: First, when the president acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum. Second, when the president acts in the absence of either a congressional grant or denial of authority, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” But third, where the president takes measures incompatible with the express or implied will of Congress — such as the NSA program, which violates an express provision of the FISA statute — “his power is at its lowest.” Even under Youngstown’s second category (congressional silence), the president might have inherent wartime authority to interpret the “reasonableness” standard of the Fourth Amendment in a manner that would sanction certain warrantless surveillance. But the NSA program does not fit in Youngstown’s second category. It belongs in the third category, in which the president has acted in the face of an express statutory prohibition. Naturally, if the statutory prohibition is itself unconstitutional, the administration is not only permitted but obligated to ignore it. That’s the argument administration supporters have proffered to excuse the NSA’s defiance of FISA. To bolster their case, they cite the only opinion that the FISA Court of Review has ever issued, In re: Sealed Case. There, the appellate panel mentioned several earlier cases that concluded the president has “inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The Court of Review then added: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” Three responses: First, I do not contend that the president lacks “inherent authority to conduct warrantless searches to obtain foreign intelligence information.” He has such authority, but Congress, exercising its own concurrent wartime powers, has limited the scope of that authority by excluding warrantless surveillance intentionally targeted at a U.S. person in the United States. Second, the surveillance in the earlier cases cited by Sealed Case took place pre-FISA, so Congress had not yet laid out the rules. Third, the quote from Sealed Case conveniently stops one sentence short. Here is the very next sentence: “The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.”

Secrecy. One criticism of these programs is that they operate in secret — the government won’t disclose the details of the programs. This is obviously done for security reasons, but some argue it is bad for the government to carry-out these programs because it is impossible for courts to review the details of the constitutionality of the programs and for individuals affected by them to challenge the programs.

Cyber security. The link to a potential cyber security contention stems from the idea that the government maintains a “back door” for them to conduct surveillance of communications, especially encrypted communication.. These “back doors” that the government can enter through intentionally leave design flaws that threaten internet security.

Mailyn Fidler, 11-16, 20, Reporter’s Committee, Seven years on, congressional oversight of National Security Agency policies is still a slog, https://www.rcfp.org/tech-press-freedom-nov-15-2020/

When Edward Snowden leaked classified information about U.S. government mass surveillance seven years ago, the former National Security Agency contractor sparked intense debate about — and reform of — many surveillance policies. Those conversations around reforming government surveillance practices have been especially important for journalists. As the Reporters Committee has previously argued, national security surveillance can chill or compromise newsgathering. Current discussions about proposed legislation that would prevent companies from using the strongest forms of encryption, such as the EARN IT Act, have resurfaced many concerns about government surveillance. But learning how NSA policies have changed is almost as hard as it was before Snowden’s revelations, lawmakers are finding. The NSA is resisting congressional efforts, led by Sen. Ron Wyden (D-Ore.), to improve transparency around its policies regarding the introduction of back doors into commercial products. In response to these inquiries, NSA official Anne Neuberger told Reuters, “We don’t share specific processes and procedures.” But the broad strokes of post-Snowden policies on other issues have been released, including the White House-initiated Vulnerability Equities Process, which governs the process by which government agencies decide whether to reveal or keep for national security surveillance purposes vulnerabilities in information systems and technologies. Reuters reports that three former senior intelligence agency officials have said that the new NSA backdoor process requires them to “weigh the potential fallout” and to arrange for some kind of warning to the company if the back door is discovered by adversarial actors. Backdoor access to devices matters to journalists who rely on commercial products to communicate with sources domestically and overseas — especially when these back doors are in commercial encryption products that journalists use to offer sources greater protection. Documents released by Snowden revealed that the NSA worked with the Commerce Department to get a certain encryption standard accepted as the global default — in part because the agency knew how to break it and access encrypted data.

Pro teams should strongly consider adding “Back door” contentions for two reasons.

First, cyber security impacts to back door contentions allow Pro teams to have contentions with consequential, non-rights based impacts. Non-consequential impacts are difficult to win in front of lay judges in PF debate, so having something consequential will help a lot.

Second, these cyber security arguments can be used to turn terrorism arguments (terrorists could get back door access), and terrorism is the strongest Con contention.

Con Contentions

Terrorism

The primary rationale for the surveillance programs described above is to prevent terrorism.

Jason Dunn, US Attorney, February 10, 2020, U.S. V. MUHTOROV – GOVERNMENT’S PUBLIC RESPONSE BRIEF, https://www.aclu.org/legal-document/us-v-muhtorov-governments-public-response-brief

The government’s national security interest in conducting surveillance under Section 702 to combat terrorism and other national security threats “is an urgent objective of the highest order.” Mohamud, 843 F.3d at 441.  See alsoI n re Directives, 551 F.3d at 1012.  In addition, the Privacy and Civil Liberties Oversight Board (“PCLOB”) found that Section 702 is a uniquely valuable tool in the government’s efforts to combat terrorism.  PCLOB Report at 104-08.And the urgency of the government’s interest is “greater, not less” when the foreign intelligence target communicates with associates in the United States.  Hasbajrami, 945 F.3d at 667; see id.(“If it is reasonable—and indeed necessary to the national security—for intelligence agencies to monitor the communications of suspected foreign terrorists abroad, the need to keep track of the potential threat from abroad does not lessen because some of the suspect’s contacts turn out to be American nationals, or foreign nationals located within the United States”).

This argument is especially strong given the wording of the topic because the Pro has to argue the programs should end.

There is recent evidence that the threat of nuclear terrorism is signoficant.

Brill, 11-28, 20, Kenneth C. Brill is a retired career Foreign Service Officer who served as U.S. Ambassador to the IAEA in the George W. Bush administration and as a senior intelligence official in the Obama Administration. He was founding director of the U.S. National Counterproliferation Center in the Office of the Director of National Intelligence (2005-2009). He was involved in international environmental issues and negotiations in both the Clinton and George W. Bush administrations,  Biden must act promptly to strengthen global efforts to prevent nuclear terrorism, https://thehill.com/opinion/national-security/527796-biden-must-act-promptly-to-strengthen-global-efforts-to-prevent

But states are no longer the only source of nuclear threats to the U.S. Terrorist groups also pose a credible threat of attacking the U.S. using nuclear or radiological materials. A nuclear or radiological terrorist attack in a U.S. or other major global city would have severe and possibly devastating political, security, and economic consequences for the country attacked, as well as globally. The Biden administration will have an opportunity in 2021 to re-energize global efforts to prevent nuclear and radiological terrorism, but it will need to act promptly to do so. Lack of knowledge about weaponizing nuclear or radiological materials is no longer an impediment to nuclear terrorism, but lack of nuclear or radiological material is — but these materials are in widespread use globally for a variety of mostly peaceful purposes: 22 countries have at least one kilogram of fissile nuclear material needed for an improvised nuclear bomb, and virtually every country has radiological sources that could be used for a “dirty bomb.” According to the International Atomic Energy Agency, since 1993 there have been some 3,500 incidents of lost, stolen, or misplaced nuclear and radiological material. Reliably securing these potentially destructive materials is essential to preventing nuclear or radiological terrorism.