Stefan Bauschard Debate

Supporting Debate Around the World

Stefan Bauschard Debate - Supporting Debate Around the World

Debating the Benefits of NSA Surveillance

Updated: October 21, 2013

November PF Release  Update file  NSA Surveillance News Tracker

NSA-Surveillance-Program

Introduction

Resolved: The benefits of domestic surveillance by the NSA outweigh the harms.

The November Public Forum resolution focuses on the question of whether or not the benefits of domestic (in the United States) surveillance by the National Security Agency (NSA) outweigh the harms.  This topic has become a hot one for debate since it was disclosed this past June by former defense contractor Edward Snowden that the NSA is engaging in extensive surveillance inside the United States in order 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.  Many civil rights advocates view the surveillance as an assault on liberty while law enforcement and national security officials see the programs as essential weapons in the war on terror.

In this essay, I will review the major known NSA surveillance programs and discuss the general pros and cons of said programs.

Resolution terms

“The benefits of.”  I think this phrase is interesting because it posits that there are benefits to the security measures that have been adopted even before the debate begins. The question of whether or not there are benefits is an important one because there is no reason to sacrifice personal freedom if there have been no benefits to the measures.  Certainly, I think the Con can challenge whether or not there have been benefits, at least significant benefits, to the measures.

“The harms .”  Just like, “the benefits of,” the resolution identifies/assumes that NSA surveillance definitely created harm. While the size of the harm is debatable, it is certainly the case that the post 9/11 measures create government-based intrusions on individual’s lives.

Surveillance by the NSA

According to Wikipedia, “the National Security Agency (NSA) is the main producer and manager of signals intelligence for the United States. Estimated to be one of the largest of U.S. intelligence organizations in terms of personnel and budget, the NSA operates under the jurisdiction of the Department of Defense and reports to the Director of National Intelligence. The NSA is primarily tasked with global monitoring, collection, decoding, translation and analysis of information and data for foreign intelligence and counterintelligence purposes, including surveillance of targeted individuals on U.S. soil. The agency is authorized to accomplish its mission through clandestine means, among which is bugging electronic systems[9] and allegedly engaging in sabotage through subversive software. The NSA is also responsible for the protection of U.S. government communications and information systems.” It has a 10.8 billion dollar budget.

Domestic surveillance  (though it is usually targeted at foreign sources (a larger discussion of this follows below)) is conducted by the NSA through a number of programs. There is no official, comprehensive list of NSA programs.  Most of the programs are “classified,” meaning that they are not public, and the only reason that we even know about many of them is because of the disclosures of Edward Snowden. Since we rely on disclosures to learn about the programs, and since all of the disclosing is relatively recent, it is the case that new programs are continually disclosed. In fact, it is likely that between now (October 7) and when you finish debating the topic (the end of November) that more programs will be disclosed.

Metadata collection. One of the most publicized and debated programs is NSA’s metadata program that collects information on phone calls from hundreds of millions of cell phone and Skype subscribers as well as from popular email services such as Gmail and Yahoo.  In June, 2013, the Guardian disclosed that the Foreign Intelligence Surveillance Court (FISC) issues a classified order that required Verizon should pass the government “an electronic copy of metadata ‘created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.’”

Social networking data is also included.  According to the New York Times explains:

Since 2010, the National Security Agency has been exploiting its huge collections of data to create sophisticated graphs of some Americans’ social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information, according to newly disclosed documents and interviews with officials…. The policy shift was intended to help the agency “discover and track” connections between intelligence targets overseas and people in the United States, according to an N.S.A. memorandum from January 2011. The agency was authorized to conduct “large-scale graph analysis on very large sets of communications metadata without having to check foreignness” of every e-mail address, phone number or other identifier, the document said…. The agency can augment the communications data with material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data, according to the documents. They do not indicate any restrictions on the use of such “enrichment” data, and several former senior Obama administration officials said the agency drew on it for both Americans and foreigners.

The Guardian reported on September 30 that this metadata collection includes “browsing history – such as map searches and websites visited – to account details, email activity, and even some account passwords” and that it is retained for an entire year in a storage system called Marina.  Phone meta data is stored in a different system.

Email address books and chats.  On October 14, the Washington Post revealed that the NSA was collecting hundreds of millions of email address books and chat logs.

NSA Chief General Keith Alexander denies monitoring social networks of Americans, but said that data could be swept up if those Americans are connected to those suspects through phone calls or other data.

The Guardian original broke the NSA metadata story when it released documents obtained by Snowden that showed that Verizon was required to turn over phone meta data for all of its customers .  Follow-up reporting by the Washington Post showed that this program has been going on for years, with the government collecting metadata Sprint Nextel, AT&T and Bell South since 2006.  Billions of phone records are stored in a database called MAINWAY.

This data collection is referred to as “metadata” because the NSA claims that it does not actually monitor the contents of the communications but only the number of communications, the frequency of the communications, and the numbers/email addresses being communicated with. This information is stored (it is believed to be stored for 5 years) and, if necessary (if illegal activity is suspected) then a warrant could be obtained for the contents.

There is some debate as to whether or not the contents of the communication is collected. Although some proponents of the metadata program claim that the content is not monitored, others claim that the content of the emails is collected through a program called xKeyscore but that the emails are not read unless there is “a nexus to al-Qaida or other terrorist groups.”

The data that the NSA provides to the FBI is just the phone number, the date, and the time and duration of the call. It does not include the names of either of the callers.   Even then, this data can only be accessed during an investigation. If the number of a terrorist is connected to an American, the FBI needs a court order to take any action against the American.

According to Congressional testimony on October 2, this program began as part of a “pilot project” (a test program) to determine if the NSA could effectively keep track of user’s location by monitoring their connections to various cell phone towers., potentially even when their phones are turned off. An August 9,  2013Guardian report explains the details of the program.

This metadata that is collected from web service providers (Google, Microsoft, Facebook, etc) is collected through program called PRISM. There were initial media reports that portrayed PRISM as an automatic suction pipe that was connected to Google, Microsoft and Facebook servers (among others) that would automatically suck out data from those servers and deposit that data on NSA servers. Although PRISM does exist, these initial media reports are considered to be inaccurate. PRISM does collect data from these companies, but it only connects and collects data that is approved by FISC. It is not an automatic back door pipe.

The NSA is required to “minimize” the data of US persons, but is permitted to keep US communications where it is not technically possible to remove them, and also to keep and use any “inadvertently” obtained US communications if they contain intelligence material, evidence of a crime, or if they are encrypted.”

The NSA justifies this metadata collection program based on an interpretation of Section 215 of the PATRIOT Act whereby the entirety of US communications records may be considered “relevant” to a terrorism investigation if there is reasonable belief that even a tiny minority of the communications in this data-set may relate to terrorism.  Section 215 permits the government to collect “business records” that are relevant to a terrorism investigation and the government argues that the metadata that is collected by these companies is  a business record.  The PATRIOT Act was passed after the 2001 terrorist attacks and radically expanded government surveillance and policing authority.

Although NSA officials deny the metadata collection today continues under the PATRIOT Act, others suggest that perhaps it still continues under the Foreign Intelligence Surveillance Act (FISA), which was passed in 1978 to limit previous abuses by the government. Section 702 of FISA “allows for the collection of data without individual warrants of communications, where at least one end of the conversation, or data exchange, involves a non-American located outside the US at the time of collection. This section, which allows the collection of communications from Americans when they are “incidental” to foreign intelligence gathering was added as an amendment to FISA in 2008.  The NSA can store this data for up to 5 years if  the material is deemed relevant to “foreign intelligence” or if it is suspected of having “secret meaning”

There is a Foreign Intelligence Surveillance Court (FISC) that is charged with overseeing these programs in order to minimize/prevent rights violations, but the court is not an investigative one and cannot investigate non-compliance with the NSA’s own rules.  Since many members of Congress were not even aware of the existence of these programs, their own oversight is obviously limited.

Individuals who constructed the program, along Department of Defense and Department of Justice lawyers, believe it is legal based on a 1979 Supreme Court cases that said that individuals had no expectation of privacy in the numbers that they called, only in the content of the conversations. Given this, meta data collection itself is not subject to review by the Foreign Intelligence Surveillance Court.

Encryption cracking. The NSA has put pressure on private companies to weaken their own encryption of private data to make larger amounts of data more vulnerable to surveillance by the NSA. Recent stories indicate that the NSA is also aggressively expanding its encryption breaking programs.

For more on NSA surveillance and the history of the programs, see Timeline of NSA Domestic Spying, NSA Warrantless Surveillance (2001-2007),

Domestic Surveillance

One very important word in the resolution is “domestic” and that word modifies the type of surveillance the Pro needs to defend – namely surveillance that occurs in the United States.  This term is potentially very significant for a number of reasons.

First, it removes the debate about the international political fall-out.   There is a considerable amount of evidence that US spying on countries such as France, Mexico, Venezuela, Cuba, and Germany have undermined our relations with those countries.   Pro teams do not have to defend this practice, however, because it does not part of “domestic” surveillance.

Second, it reduces the size of the link to “terrorism bad.”.  The resolution only introduces the question of whether or not domestic  (inside the United States) surveillance is desirable.  Arguably, Con teams could argue that the costs do outweigh the benefits because they can still support international surveillance, and since most potential terrorists reside outside the United States, the Con can still argue for surveillance that would cover most potential terrorists. They would just force the Pro to argue that extensive domestic surveillance is needed to prevent terrorism, which I think is a hard argument to win.

Although it is obvious that the term “domestic” refers to surveillance in the United States, it is not obvious that all “foreign” surveillance is excluded from “domestic” surveillance, and that is why I said the term is “potentially” very significant.

There are two reasons that a focus on “domestic” surveillance doesn’t necessarily exclude foreign surveillance.

(a)   Almost all internet communication is routed through the U.S.. It is estimated that 90% of internet traffic flows through US servers.   The resolution simply says, “domestic” surveillance, and doesn’t specific that it is referring to surveillance against US citizens.  Domestic surveillance arguably includes all surveillance on networks that are in the United States, and this would include all of the International traffic that flows through those networks. If the NSA is in the United States, and if the NSA is conducting the surveillance on networks in the United States when the information flows through those networks, it seems to me that this constitutes “domestic” surveillance. If this is all true, it is a direct response to the points I just made because the Pro would still have to defend monitoring the communications of other countries when those communications flow through US-based servers and the Pro could also argue for monitoring domestic international terrorist communications.

According to WikiLeaks founder Julian Assange, Latin America’s reliance on U.S.-based telecommunications is detrimental to the freedom of its people.¶ The U.S. government is well-placed to blackmail “nearly every significant person in Latin America” because most of the region’s electronic communications are routed through the United States, Assange said Friday, Fox News Latino reports. In an interview with Russia’s RT television, Assange pointed out that the U.S. controls “ninety-eight percent of Latin American telecommunications to the rest of the world – that means SMS, phone, email etc. – passes through the U.S.” Assange alleges that “U.S. intelligence agencies ‘can easily intercept these communications … and therefore gain understanding of how Latin America is behaving, where it is moving, its economic transfers, the activities of its leaders and major players.’” Latin Post

(b)   It’s not clear hot to separate foreign and domestic surveillance.  The original rational for warrantless “domestic” surveillance was that it was difficult, if not impossible, to separate domestic surveillance from international surveillance.  For example, how would NSA know who a “foreign” terrorist was communicating with inside the United States unless they could also access domestic meta data?  Exclusively monitoring foreign communications is difficult, and since the goal of many terrorists is to launch attacks inside the United States, and since these attacks likely require communication with (or among) people inside the United States, monitoring domestic communications is arguably an inherent part of surveillance. Designed to prevent a domestic attack.

Even though the NSA targets foreigners, many Americans are caught up in this surveillance process. If the US had to stop “domestic” surveillance that inherently catches people in this process, it’s not clear how it could continue to function.

The collection depends on secret arrangements with foreign telecommunications companies or allied intelligence services in control of facilities that direct traffic along the Internet’s main data routes. Although the collection takes place overseas, two senior U.S. intelligence officials acknowledged that it sweeps in the contacts of many Americans. They declined to offer an estimate but did not dispute that the number is likely to be in the millions or tens of millions. A spokesman for the Office of the Director of National Intelligence, which oversees the NSA, said the agency “is focused on discovering and developing intelligence about valid foreign intelligence targets like terrorists, human traffickers and drug smugglers. We are not interested in personal information about ordinary Americans.” The spokesman, Shawn Turner, added that rules approved by the attorney general require the NSA to “minimize the acquisition, use and dissemination” of information that identifies a U.S. citizen or permanent resident.

This does, however, raise the question of whether or not a discussion of the email address book collection is “topical,” because the collection occurs outside the United States.

The NSA has not been authorized by Congress or the special intelligence court that oversees foreign surveillance to collect contact lists in bulk, and senior intelligence officials said it would be illegal to do so from facilities in the United States. The agency avoids the restrictions in the Foreign Intelligence Surveillance Act by intercepting contact lists from access points “all over the world,” one official said, speaking on the condition of anonymity to discuss the classified program. “None of those are on U.S. territory.”  Washington Post

(c) It’s questionable what the word “domestic” even means in this context, because US companies have servers all over the world. And, of course, Americans travel. And, well, data travels.

Because of the method employed, the agency is not legally required or technically able to restrict its intake to contact lists belonging to specified foreign intelligence targets, he said.

When information passes through “the overseas collection apparatus,” the official added, “the assumption is you’re not a U.S. person.”

In practice, data from Americans is collected in large volumes — in part because they live and work overseas, but also because data crosses international boundaries even when its American owners stay at home. Large technology companies, including Google and Facebook, maintain data centers around the world to balance loads on their servers and work around outages.  Washington Post.

Anyhow, I think it may be difficult to exclude some practices from discussion because they are “foreign.” At the very least, this will be a key issue in your debates.

The Pro

The primary (perhaps only) argument for NSA surveillance is that it is necessary to prevent terrorism (and the largest, “nuclear terrorist attack” impacts are often referenced).   Advocates such as James Carafano argue that “operational intelligence” is responsible for thwarting many potential terrorist attacks against the United States.

Given that, it is reasonable to ask, how many terrorists attacks have been prevented by NSA surveillance. Two specific examples are often cited.  One, surveillance advocates site use of phone meta data to identify an “operative” in San Diego who was providing financial assistance to terrorists in Somalia.   The second example is one involving a disrupted plot to bomb the New York City subway system. In the subway case, authorities used NSA’s Internet monitoring program to identify overseas communications involving Najibullah Zazi in Colorado. Zazi was later convicted in connection with the subway attack plan

One thing is for certain is that there hasn’t been a significant terrorist attack in the US since 9/11.  Advocates of surveillance attribute the success in preventing these attacks to surveillance.  The Arizona Republic editorializes that “The government has a good record of preventing attacks, and these programs may be one big reason.

Pro teams should really work to emphasize the risks and dangers of terrorism. For example, this quote highlights the risk:

The U.S. State Department has renewed its global terrorism alert, following the attack in Nairobi, Kenya, by a group claiming to be part of the Somalia-based al-Shabab.¶ Because of the “continuing threat of terrorist actions and violence” toward Americans, , U.S. citizens should “maintain a high level of vigilance.”¶ The department adds:¶ “Current information suggests that al-Qaida, its affiliated organizations, and other terrorist groups continue to plan terrorist attacks against U.S. interests in multiple regions, including Europe, Asia, Africa, and the Middle East. These attacks may employ a wide variety of tactics including suicide operations, assassinations, kidnappings, hijackings, and bombings.”¶ This caution replaces the one issued in February, but remember the State Department issued a rare worldwide-travel alert in August.¶ , the alert followed the Department State’s decision to close all its embassies and consulates across the Muslim world that weekend.¶ Today’s caution says terrorists could target “high-profile sporting events, residential areas, business offices, hotels, clubs, restaurants, places of worship, schools, public areas, shopping malls, and other tourist destinations both in the United States and abroad where U.S. citizens gather in large numbers, including during holidays.”NPR

Other sources highlight the danger:

The novelty of our present situation is that modern technology can provide small groups of people with much greater lethality than ever before. We now have to worry that private parties might gain access to weapons that
are as destructive as—or possibly even more destructive than—those held by any nation-state. A handful of people, perhaps even a single individual, now have the ability to kill millions or even billions. Indeed, it is perfectly feasible, from a technological standpoint, to kill every man, woman, and child on earth. The gravity of the situation is so extreme that getting the concept across without seeming silly or alarmist is challenging. Just thinking about the subject with any degree of seriousness numbs the mind.¶ Worries about the future of the human race are hardly novel. Indeed, the notion that terrorists or others might use weapons of mass destruction is so commonplace as to be almost passé. spy novels, movies, and television dramas explore this plot frequently. We have become desensitized to this entire genre, in part because James Bond always manages to save the world in the end.

Pro teams need to emphasize that times have changed.  Not only was September 11th was the first time the US suffered a significant attack on its soil. In this case, it was a group being given protection by a foreign government.

Not only was this an attack on US soil for the first time, but it was also from a non-traditional actor (a terrorist group as opposed to a country), and the US began to realize that new technologies (the internet, message boards, cell phones) made it easier for potential terrorists to communicate and carry out attacks.   Advancing technology also makes it easier for terrorists to kill large numbers of people in single attacks, even absent potential attacks with nuclear, biological, or chemical weapons.   The new attacks, changing communications technologies, and the possibility of more advanced weapons meant that the government had to step-up its game in order to reduce the risk of another terror attack. The post-9/11 surveillance measures are designed to take these changes into account.

In addition to winning that domestic surveillance will prevent an otherwise likely terrorist attack on the United States, Pro teams also need to address the privacy rights violations that can occur as a result of the surveillance.

First, Pro teams should minimizes the extent of the surveillance.  The NSA contends that it actually sees substantially less than 1% of all internet traffic on a daily basis.

The NSA has claimed in a publicly-released document that it only reviews .00004% of Internet traffic on a daily basis.  The seven-page document, titled ‘The National Security Agency: Missions, Authorities, Oversight and Partnerships,’ was released late Friday. It compares the amount of Internet data that the NSA collects to the size of a dime on a basketball court. ‘According to figures published by a major tech provider, the Internet carries 1,826 Petabytes of information per day. In its foreign intelligence mission, NSA touches about 1.6% of that,’ the agency states. ‘However, of the 1.6% of the data, only 0.025% is actually selected for review. The net effect is that NSA analysts look at 0.00004% of the world’s traffic in conducting their mission – that’s less than one part in a million.  Put another way, if a standard basketball court represented the global communications environment, NSA’s total collection would be represented by an area smaller than a dime on that basketball court.

Second, Pro teams should argue that the surveillance is subject to many safeguards and frequently reviewed. Although the US can collect the metadata, it cannot indiscriminately sift through it.  If the government wants to take a closer look, it must any data gleaned must be associated with people or phone numbers already identified and approved by the secret Foreign Intelligence Surveillance Court. In 2012, the letter revealed, the court approved fewer than 300 “query terms” that would allow intelligence analysts to pursue a phone call further.   The protocols are overseen by the Justice Department and by intelligence officials.

The Pro should also work to de-prioritize the significance of the rights claim.

First, constitutional rights are not trump cards and can always be limited if there is a compelling government interest in doing so, such as the prevention of terrorism.

Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.26-7

When Communitarians argue that the pendulum has swung too far toward the radical individualistic pole and it is time to hurry its return, we do not seek to push it to the opposite extreme, of encouraging a community that suppresses individuality. We aim for a judicious mix of self-interest, self-expression, and commitment to the commons–of rights and responsibilities, of I and we. Hence the sociological recommendation to move from ‘I’ to ‘we’ is but a form of shorthand for arguing that a strong commitment to the commons must now be added to strong commitments to individual needs and interests that are already well ensconced. Balancing the domestic forces with a fair measure of resumed wellness will bring our society closer to a balanced position, without a significant tilt toward either side, a society able to steer a stable course.

Historically, Presidents have had a lot of discretion in limiting rights to protect national security.

Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 79-80

 

Initially, it is impossible to say with any certainty whether or not Presidents like Abraham Lincoln and Franklin Roosevelt had to infringe constitutional liberties the way they did in order to win their wars. Perhaps they could have achieved the same results with fewer intrusions. But maybe greater solicitude for personal freedoms would have led to defeat, or to a victory that exacted a far greater cost in blood and money. Speculating about such matters is an academic exercise. All we know for sure is that these Presidents took the actions they deemed necessary prevail, and they did.  For better or worse, the Constitution commits to the President almost unbridled discretion to determine what must be done to meet a military emergency. These decisions must be made quickly and with imperfect information, and they are then judged by Congress, voters, and posterity

This is particularly true of privacy rights.

Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, pp. 61-2

Unfortunately, however, a rights-based approach does not mesh very well with the structure of the fourth amendment. The amendment, as commonly understood, does not provide an absolute shield against even the most extreme invasions of privacy and liberty. It does not establish a right to privacy that trumps competing policy concerns. Instead, the fourth amendment prohibits searches only when the likelihood that the invasion will be productive fails to justify the cost. In its most general form, this translates into an insistence that the search be reasonable. When the Court attempts to give the requirement a somewhat more determinate content, it insists that the search be supported by “probable cause” or “reasonable suspicion.” In either case, however, the amendment requires no more than that the invasion be cost-justified in some sense.

Second, Americans experience limitations on privacy rights every day, including being subject to surveillance on street corners and shopping malls. We also freely give information to all of providers of web services that we use.

The Surveillance Society. By: Von Drehle, David, Calabresin, Massimo, Time International (South Pacific Edition), 8/12/2013, http://nation.time.com/2013/08/01/the-surveillance-society/

But the revelation of the NSA’s vast data-collection programs by a crusading contract worker, Edward Snowden, has made it clear that the rise of technology is shattering even the illusion of privacy. Almost overnight, and with too little reflection, the U.S. and other developed nations have stacked the deck in favor of the watchers. A surveillance society is taking root. Video cameras peer constantly from lamp poles and storefronts. Satellites and drones float hawkeyed through the skies. Smartphones relay a dizzying barrage of information about their owners to sentinel towers dotting cities and punctuating pastureland. License-plate cameras and fast-pass lanes track the movements of cars, which are themselves keeping a detailed record of their speed and location. Meanwhile, on the information superhighway, every stop by every traveler is noted and stored by Internet service providers like Google, Verizon and Comcast. Retailers scan, remember and analyze each purchase by every consumer.

People divulge more “personal” information on websites like Facebook than the government would ever care to know about them.

Third, rights should not be viewed as absolute because if we did there would be no way of resolving conflicts between rights. In this specific context, there is arguably a right to security and without security there cannot be liberty. Fourth, debaters can engage in a strong defense of utilitarianism to argue that the greatest good for the greatest number is what should be protected. For a spirited discussion of the importance of not sacrificing society’s interests in the name of rights, you should consult Amitai Etzioni’s The Spirit of Community. Rights are not trump cards that should be used to sacrifice the collective to an individuals’ personal preferences and needs.   Rights must be balanced against the need for security, and in the era of a heightened risk of terrorism, and the large consequences that could result from another terror attack, it is important to balance the individual’s need for freedom against society’s need for security

Fourth, you should also argue that the resolution refers to the current surveillance measures and that if there is another significant terror attack that the security measures that will be adopted will be much more invasive than the ones that exist now.  If the terrorists attack again, there will be a much greater loss of personal freedom.

Americans are generally very concerned about the risk of another terror attack (rightly or wrongly), so arguments about the risks of terrorism will appeal to your judges.

The Con

Con teams need to win that surveillance is a significant threat to individual rights, that the surveillance is not effective at reducing terrorism and/or that terrorism is not a significant threat (with or without the program)

The right most threatened by the surveillance programs is privacy.  Former debater Glenn Greenwald, who was instrumental in breaking the Snowden story and also in past efforts to criticize US surveillance efforts under the PATRIOT Act, argues that the objective of of NSA surveillance is the elimination of global privacy.

Extensive surveillance is a problematic assault on privacy not only because it collects individual data regarding what a user is doing at a particular point but also , and more importantly, because extensive data collection makes it possible to develop an entire profile of a person. This could both discourage a person from speaking freely and also discourage him or her from associating with particular people.

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.

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, PRIVACY AND TECHNOLOGY: THE DANGERS OF SURVEILLANCE, p. 1934

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 September 4th issue of 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 historical 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. Any Army surveillance program placed more than 100 people under surveillance.

Con teams do need to address the argument that in times of crises that security should be prioritized over freedom and liberty.

The claim that in times of crisis that security should be prioritized over freedom is a common one and it is an argument that you are almost certain to hear in your debates.   There are a good number of answers to this argument.

One, we are talking about the present. Even if the measures taken in the first year after 9/11were justified by the state of panic that was induced, this is a decade later and there has not been a terror attack on US soil since.  We certainly do not live in a “time of crises.”

Two, the Pro’s definition of a “time of crisis” is essentially forever. The threat of terrorism will always exist. If the mere existence of the threat of terrorism is enough to justify greater restrictions on our personal freedoms, our personal freedom will be forever restricted and  this is really not about what we should do in a “time of crises.”

Three, past restrictions of personal freedom in “times of crises” have proven to be bad ideas in retrospect. For example, during World War II the US interned more than 100,000 US citizens of Japanese descent.  Almost all scholars and public policy analysts believe that that was a terrible decision that was not based on a reasonable assessment of security risks.  Security measures taken in times of crisis are usually understood to be bad ideas in hindsight.

Four, this ignores the role of the Constitution. The Constitution is an eternal document that stands regardless of the period of time.  We don’t just have a Constitution in “good times,” but in “bad times” as well.

The Con can make a very strong argument against the claim that the surveillance is important to reduce the risk of a terrorist attack., because it is very difficult to prove that these programs are valuable in reducing terrorism. Even the Arizona Republic article referenced above only claims that these programs “may” have been “one big reason” that a significant terrorist attack has not occurred in the US, but we don’t know that.  The US military invaded the Taiban safe haven in Afghanistan and many pundits and scholars claim that US drone strikes that decimated Al Qaeda’s leadership and made it difficult for terrorists to operate.  According to Peter Bergen, the US has extensive no-fly lists, there are 103 Joint Task Force “Fusion” centers, there are multiple federal agencies, including the Department of Homeland Security, focused on preventing terrorism, and special operations forces have been deployed all over the world to fight terrorism.

Although the NSA originally claimed the program foiled 54 plots, they now admit that it was likely one or two..  And even these two examples can be questioned.

Bergen, et al, September 2013, Jihadist Terrorism: A Threat Assessment,  http://bipartisanpolicy.org/sites/default/files/Jihadist%20Terrorism-A%20Threat%20Assesment_0.pdf Peter Bergen is the author of four books about al-Qaeda, three of which were New York Times best sellers. The books have been translated into 20 languages. He is the director of the National Security Program at the New America Foundation in Washington, D.C.; a fellow at Fordham University’s Center on National Security; and CNN’s national security analyst. He has held teaching positions at the Kennedy School of Government at Harvard University and at the School of Advanced International Studies at Johns Hopkins University.¶ Bruce Hoffman is a professor at Georgetown University’s Edmund A. Walsh School of Foreign Service, where he is also the director of both the Center for Security Studies and the Security Studies Program. He previously held the corporate chair in counterterrorism and counterinsurgency at the RAND Corporation and was the scholar-in-residence for counterterrorism at the CIA between 2004 and 2006.¶ Michael Hurley is the president of Team 3i LLC, an international strategy company, and advises the Bipartisan Policy Center’s Homeland Security Project. He led the 9/11 Commission’s counterterrorism policy investigation, as well as CIA personnel in Afghanistan immediately after the 9/11 attacks. He retired from the CIA following a 25-year career and has served as director on the National Security Council staff.¶ Erroll Southers is the associate director of research transition at the Department of Homeland Security’s National Center for Risk and Economic Analysis of Terrorism Events (CREATE) at the University of Southern California, where he is an adjunct professor in the Sol Price School
of Public Policy. He is a former FBI special agent and was President Barack Obama’s nominee for the Transportation Security Administration, as well as Governor Arnold Schwarzenegger’s deputy director for the California Office of Homeland Security and the chief of homeland security and intelligence for the LAX Police Department. He is the author of Homegrown Violent Extremism.)

Earlier this year, it was revealed that the National Security Agency (NSA) has been collecting phone-records metadata from Americans for many years and that it had secured
the right to access overseas Internet traffic and content from every U.S. Internet service.317 This sparked a debate between those who saw an overly expansive government fishing expedition that infringed Americans’ privacy and those who pointed out that the NSA programs were carefully managed to protect the rights of American citizens. Beyond the privacy issues that the NSA programs raise: How successful have these programs been in interrupting terrorist plots? So far the evidence on the public record suggests that the programs have been of far less utility than recent U.S. government claims about their ability to disrupt terrorist plots.¶ Sometime in late 2007, Basaaly Saeed Moalin, a cabdriver living in San Diego, began a series of phone conversations with Aden Hashi Ayrow, one of the leaders of al-Shabaab.He had no idea the NSA was listening in. In one of those 3 phone calls, Ayrow urged Moalin to send money to al-Shabaab, telling him that he urgently needed several thousand dollars. At one point, Ayrow told Moalin that it was “time to finance the jihad” and at another: “You are running late with the stuff. Send some and something will happen.” Over several months in 2008, Moalin transferred thousands of dollars to al-Shabaab. He even told Ayrow that he
could use his house in Mogadishu, and “after you bury your stuff deep in the ground, you would, then, plant the trees on top.”320 U.S. prosecutors later asserted that Moalin was offering his house to al-Shabaab as a place to hide weapons, and earlier this year, he was convicted of conspiracy to provide material support to al-Shabaab and of money laundering for the terrorist organization.321 However, there is nothing on the public record to suggest he was planning an attack in the United States. Another terrorist financier detected by NSA surveillance
was Khalid Ouazzani, a Moroccan native and naturalized American living in Kansas City, Missouri. Sometime in 2008, Ouazzani swore an oath of allegiance to al-Qaeda and sent around $23,000 to the group before he was arrested two years later.322 In June 2013, at a hearing for the House Select Committee on Intelligence on the NSA surveillance programs, FBI Deputy Director Sean Joyce testified that Ouazzani also had some kind of a “nascent” plan to attack the New York Stock Exchange. Ouazzani’s attorney denied that claim and court documents in his case do not mention any such plan. At the same hearing, Joyce and other top government officials pointed to these two cases as examples of the kinds of terrorist conspiracies NSA surveillance has disrupted
in recent years, but they gave no new public information
to substantiate a claim made by General Keith Alexander, NSA’s director, a week earlier that “dozens of terrorist events” had been averted both in the United States and abroad.324 Alexander said he would provide members of the House Intelligence Committee with additional information about the some 50 other terrorist plots that had been averted as a result of NSA surveillance, but this would be behind closed doors as the details of these plots remain classified. Speaking at Black Hat, an information-security conference, a month later, General Alexander provided more specific numbers, saying that NSA surveillance had prevented 54 terrorist-related activities worldwide, including 13 terrorist activities within the United States. The public record suggests that few of these plots involved attacks within the United States, because traditional law enforcement methods have overwhelmingly played the most significant role in foiling terrorist attacks. According to a survey by the New America Foundation, jihadist extremists based in the United States have mounted 47 plots to conduct attacks within the United States since 2001.326 Of those plots, nine involved an actual terrorist act that was not prevented by any type of government action, such as the 2009 shooting spree at Fort Hood, Texas. Of the remaining 38 plots, the public record shows that at least 33 were uncovered by using standard policing practices such as informants, undercover officers, and tips to law enforcement. At the House Intelligence Committee hearing, the FBI’s Sean Joyce also pointed to the 2009 plots by Najibullah Zazi as well as David Coleman Headley’s plan to attack a Danish newspaper as attacks that were also disrupted by NSA monitoring. As Joyce explained, the plot by Zazi to attack the New York subway system around the eighth anniversary of the 9/11 attacks was “the first core al-Qaeda plot since 9/11” that was directed from Pakistan inside the United States.327 There is no doubt that it was a serious plot, but if it was the only such plot on U.S. soil that the government averted as
a result of the NSA’s surveillance monitoring, the public
will have to decide whether it justifies the large-scale government surveillance programs—no matter how carefully they are run.

If it is the case that the data has played almost no role in stopping terrorism, all of the “societal interests trump rights” arguments that were discussed above really do not apply. It is very hard to justify these (potential) rights intrusions if the programs are not actually catching any terrorists who are likely to attack the U.S.

Peter Bergen, 9-10, 13, She is the director of the Homeland Security Project at the Bipartisan Policy Center, Jihadists Terrorism: A Threat Assessment, Political Transcript Wire, Peter Bergen is the author of four books about al-Qaeda, three of which were New York Times best sellers. The books have been translated into 20 languages. He is the director of the National Security Program at the New America Foundation in Washington, D.C.; a fellow at Fordham University’s Center on National Security; and CNN’s national security analyst.

BERGEN: Well, one way of answering that is — I’ve — talking about the NSA, obviously there’s a debate, I mean, the vote was very close in House — in — in Congress, on this issue. And one of the — one of the points we make in the report is, as far as we can tell from the public record, only one case — what is controversial in the United States is, the telephone metadata; Americans care less about overseas e-mail traffic. As far as we can tell, only one case of the 212 cases since 9/11 came out of the telephone program, and it’s a rather trivial case. It was a guy in San Diego who was sending money to Al-Shabaab, a few thousand dollars — the Somalia al-Qaeda affiliate. Now, you know, sending money to Al-Shabaab is not something one — one would want to encourage, but if the price of finding this one case is the government having access to all your phone records for the past five years, no matter how carefully they manage that program, who’s to say that some future administration, five years down the road, doesn’t have quite the same view of the way the — the data should be handled. So, I mean, that — that would be question one, is are we in a situation — I mean, I was astonished by this New York Times story where, you know, essentially every — any program you use in the United States on a computer has a mandated back door into it that the NSA can basically can get into. Is not — it seems a sort of fundamentally kind of un-American concept, that basically everything that you — and obviously, the people involved in this are well- intentioned. So I think we’re doing a lot of the right things. We’ve had a long time over the last 12 years to get our counterterrorism policy right. We make some recommendations in the report, but I don’t think there’s some huge sort of magic wand that needs to be waved over the situation, but personally, and like a lot of other Americans, I am concerned about what seems to be this huge kind of grab of executive power on the issue of our private communications. Which, by the way, it would be one thing if you could say, “Hey, all these NSA — every terrorism case that we’ve found in this country was because of NSA surveillance.” As we say in the report, in fact, almost every case that is made is based on the typical things that make any criminal case: a suspicious activity report in 9 percent of these cases, a tip from a family or community member in 33 percent of these cases, an undercover cop or — or an informer in about half of these cases. That’s how these cases are made.

Pro teams could argue that there may be other “classified” instances that the government has not disclosed where terrorism has been prevented. There are a couple problems with this claim. First, it is highly unlikely that the government would hold back any instances when the program has been subject to so much criticism.  Second, Con teams can argue that there may also be hidden, classified abuses of the program where the government is engaging in massive rights violations.  If we are going to speculate about what may be going on in secret, that secrecy cuts both ways.   Third, the NSA often violates legal limits on its data collection.  The Washington Post reported on August 1st.

Still, Bates noted, it was not until May 2011 – several years after Section 702 was approved – that the NSA told the court that its upstream collection of Internet communications may contain entire Internet “transactions” not related to targets. In other words, that the agency may be collecting emails between two Americans or of people inside the United States in violation of FISA. In June 2011, the NSA informed Bates that an Internet transaction may be a single communication or it may include “multiple discrete communications,” including those that are not to, from or about a target. That means instead of one email, a string of Americans’ emails could be inadvertently picked up. “That revelation fundamentally alters the Court’s understanding of the scope of the collection conducted pursuant to Section 702,” Bates said. “By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of (the law),” Bates wrote. “NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.”

There may be more instances of this as well.

Con teams should really press Pro teams to prove that surveillance has prevented terrorism. While there is no presumption in Public Forum debate, the wording of the resolution assumes that the Pro needs to prove that the benefits outweigh and the loss of freedom and one or two (or even three or four) examples of the how surveillance may have prevented a terror attack does not prove the resolution to be true. You can highlight this argument by pointing out that there was only ONE terror attack in the US BEFORE all of the 9/11 security measures were adopted – the 1993 bombing in NY.   It’s not as if on 9/11 that terrorists declared war on the US and decided to attack us starting at that point.  They had been attempting to attack us before that and failing due to the security measures that were already in place.  It is just as likely that terror plots have been foiled due to pre 9/11 policing measures than post 9/11 surveillance

In addition to emphasizing rights abuses and minimizing the likelihood that the programs prevent terrorist attacks,  Con teams should also argue that the risk of a terrorist attack is low.

In 2011, the US Department of State reported that 17 US citizens were killed, worldwide, as a result of terrorism. That same year, an outbreak of listeria from contaminated cantaloupe killed 33 people in the US. Contaminated food illnesses affect 1 in 6, or 48 million Americans yearly, resulting in over 3,000 deaths and more than 100,000 hospitalizations each year, according to BloombergAs Truthout reports, “We have more to fear from contaminated cantaloupe than from al-Qaeda, yet the United States spends $75 billion per year spread across 15 intelligence agencies in a scattershot attempt to prevent terrorism, illegally spying on its own citizens in the process.”¶ According to the Centers for Disease Control and Prevention, 2012 data showed a “lack of recent progress in reducing foodborne infections and highlight[ed] the need for improved prevention.” CDC data identified 19,531 cases of foodborne infection last year. And, if over 3,000 deaths occur each year as a result of foodborne illness, contaminated food products have been responsible for over 36,000 deaths in the US since 2001.¶ In 2008, nine people died from eating salmonella-tainted peanut butter. That same year, an undercover investigation by the Humane Society led to the largest beef recall in US history after it was discovered that meat may have been tainted with mad cow disease.¶ Americans are 110 times more likely to die from contaminated food than from terrorism, according to Truthout. And illnesses from food contamination cost the economy billions of dollars a year. Ring of Fire Radio Blog

And the risk of nuclear terrorism in particular is low.

There are no known cases of terrorists successfully stealing a nuclear weapon, and few known attempts. The multi-layer detection and security systems in place at permanent nuclear weapons storage facilities presumably make theft of a complete nuclear weapon one of the least probable pathways for committing nuclear terrorism. Even if terrorists could steal a nuclear weapon, they would confront safety features that inhibit unauthorized use or detonation, which could be difficult for terrorists to bypass.  Kirkman

A separate essay on answering terrorism is available here. A comprehensive evidence file that can be used to answer terrorism is here.

Con teams may also want to take advantage of growing body of literature that is based around the concern that  we are becoming obsessed with securing ourselves against vague and low probability and that this is a bad form of decision-making. [See “Security Ks at Planet Debate]

International law. This article argues that the surveillance is a breach of international law.

Encryption-cracking undermines network security. According to new documents leaked by Edward Snowden in early September, the NSA has been engaged in substantial efforts to crack commercial encryption technology. Yahoo News reports:

The National Security Agency, working with the British government, has secretly been unraveling encryption technology that billions of Internet users rely upon to keep their electronic messages and confidential data safe from prying eyes, according to published reports based on internal U.S. government documents.The NSA has bypassed or altogether cracked much of the digital encryption used by businesses and everyday Web users, according to reports Thursday in The New York Times, Britain’s Guardian newspaper and the nonprofit news website ProPublica. The reports describe how the NSA invested billions of dollars since 2000 to make nearly everyone’s secrets available for government consumption.

According to the Electronic Frontier Foundation, NSA encryption-weakening efforts have undermined internet security on the web, making everyone more vulnerable to criminal activity.  If Con teams are able to win this argument, they can “turn” the claim that surveillance is critical to security!

Economy/business development. Surveillance of communications in the US ether pipeline, and particularly the efforts of the US government to crack encryption, will likely chill commercial opportunities for US businesses because companies will not trust that their data is secure. This will not only have an economic impact, but if foreign companies will not work with US companies then internet surveillance will be less effective. PC World explains:

The U.S. National Security Agency’s efforts to defeat encryption will backfire by eroding trust in U.S.-based Internet services and in the agency’s own efforts to aid U.S. companies with cybersecurity, a group of privacy advocates said Tuesday. Many companies will see the NSA’s dual roles of code breaking and helping U.S. companies with cybersecurity as clashing, following news reports of the agency’s efforts to defeat online encryption, said Kevin Bankston, director of the Free Expression Project at the Center for Democracy and Technology. The NSA has defeated encryption through a variety of means, including through reported backdoors in online services and covert compromises in encryption standards, according to news reports last month. Those reports followed revelations in June by former NSA contractor Edward Snowden about massive data-collection programs at the agency. The NSA says the data collection efforts, which include monitoring U.S. phones and overseas Internet communications, are necessary to counter the threat of terrorism. For U.S. technology companies, it is “terribly debilitating and undermining to have the rest of world thinking there have been backdoors built into their systems to help the U.S. government,” said Alan Davidson, a visiting scholar at the Massachusetts Institute of Technology and former public policy director at Google. The NSA’s encryption-defeating efforts will also hurt the agency, Davidson said at an Information Technology and Innovation Foundation discussion.>

Framing Questions/Issues

I think that there are important framing issues and questions in every debate that drive how the judge votes.  In this next section, I’ll identify important framing issues that both sides can take advantage of.

Framing Issues for the Pro

The risk and impact of terrorism.  The Pro has to win that there is a large risk of terrorism in order to win that the benefits of the security measures outweigh the loss of individual freedom.  It is critical that the Pro emphasize this in every speech in order to frame the weighing of security vs. liberty.

Minimize rights violations.  Again, minimize every rights violation that the Con identifies. Argue that a terrorist attack would produce a concrete harm (death), whereas the loss of freedom, both in terms of size and impact, is difficult to identify.

Framing Issues for the Con

First, the con should explain that the chance of a loss of freedom is 100% whereas the chance of a terrorist attack AND the chance that a particular security measure can prevent a particular terror attack is close to zero.   We know that the government is taking post 9/11 security measures and that those measures intrude on individual freedom, but we do not know that there will be another terrorist attack or that the security measures can stop it.  We should default to what we know to be true.

Second, presumption.  Although there is no presumption in Public Forum debate, the way the resolution is worded, the Pro has to win that the measures outweigh the benefits.  The Con doesn’t have to win that personal freedom outweighs, only that the Pro hasn’t proven that the benefits outweigh. If the Pro doesn’t prove the benefits outweigh, should lose, the same way that if the government doesn’t prove someone is guilty the person goes free. The defense doesn’t have to prove the person innocent.

Third, discuss the role of government.  You should argue that the role of government is not only to protect us against threats but also to protect our individual rights and freedoms – at least in a democracy.

Fourth, examples.  Our evidence packets are full of evidence that explains how different surveillance measures contribute to a loss of freedom.  The literature just doesn’t have that many examples of how surveillance measures have thwarted terrorists attacks. The Con should be able to give more examples than the Pro.

Fifth, encryption, encryption, encryption! If the Con can win that encryption cracking jeopardizes security on the net, they can win that NSA surveillance actually weakens security.

 

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Category: Issues