november!2013nflpublicforum!debate:!...

November 2013 NFL Public Forum Debate: NSA Domestic Surveillance

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

November 2013 NFL Public Forum: NSA Domestic Surveillance

Table of Contents

META ..................................................................................................................................... 4 NSA: HOW DOES THE PROGRAM WORK? ..................................................................................................................... 4 TOO LITTLE IS KNOWN TO JUDGE THE PROGRAM ........................................................................................................ 5

PRO ......................................................................................................................................... 6 NSA PROGRAM GOOD: PANIC ABOUT THE PROGRAM IS OVERBLOWN ........................................................................ 6 NSA PROGRAM GOOD: GIVES ACCESS TO TOOLS WHILE MAINTAINING RIGHTS .......................................................... 8 NSA PROGRAM GOOD: WILL SERVE AS A DETERRENT .................................................................................................. 9 NSA PROGRAM GOOD: SIGNIFICANT CHECKS ON THE USE OF TECHNOLOGY IN SURVEILLANCE ................................ 10 NSA PROGRAM GOOD: LITTLE IMPACT ON CIVIL LIBERTIES ........................................................................................ 11 NSA PROGRAM GOOD: USES MOSTLY PUBLICLY AVAILABLE INFORMATION .............................................................. 12 NSA PROGRAM GOOD: PROGRAM IS VERY LIMITED ................................................................................................... 13 NSA PROGRAM GOOD: SIGNIFICANT RULES EXIST TO PROTECT CIVIL LIBERTIES/CURB ABUSE .................................. 14 NSA PROGRAM GOOD: CRITICAL COUNTERTERRORISM TOOL ................................................................................... 17 NDA PROGRAM GOOD: MASSIVE DATA COLLECTION JUSTIFIED ................................................................................ 20 NSA PROGRAM GOOD: HAS FOILED SEVERAL ATTACKS AGAINST THE UNITED STATES .............................................. 22 NSA PROGRAM GOOD: HELPED IN THE BOSTON MARATHON BOMBING ................................................................... 24 NSA PROGRAM GOOD: CURRENT TRACKING DOZENS OF IMPORTANT CASES OF POTENTIAL TERRORISM ................ 25 NSA PROGRAM GOOD: AMERICAN PUBLIC SUPPORTS ............................................................................................... 26 NSA PROGRAM GOOD: DOESN’T TARGET US CITIZENS ............................................................................................... 27 NSA PROGRAM GOOD: ONLY USED IN EXTREME CASES ............................................................................................. 28 NSA PROGRAM GOOD: CONGRESS APPROVED .......................................................................................................... 29 NSA PROGRAM GOOD: GENERALLY CONSIDERED TO BE CONSTITUTIONAL ............................................................... 30 SECRECY GOOD: NECESSARY FOR SOME GOVERNMENT PROGRAMS ........................................................................ 33 SECRECY GOOD: SECRECY CRITICAL TO THE EFFECTIVENESS OF THE NSA PROGRAM ................................................. 35 CURBING NSA BAD: WILL BRING ABOUT TERRORIST ATTACKS ................................................................................... 36 NSA GOOD: LESS LIKELY TO ABUSE RIGHTS THAN OTHER AGENCIES .......................................................................... 38 NSA PROGRAM NOT UNIQUE: GOVERNMENT ALWAYS TRACKED FINANCIAL INFORMATION ................................... 39 A/T: DUE TO THE SECRECY, WE DON’T EVEN KNOW THE EXTENT OF THE ABUSE ....................................................... 40 A/T: NSA PROGRAM = ABUSE ..................................................................................................................................... 41 A/T: THE NSA CAN READ OUR EMAILS OR LISTEN TO OUR CALLS! .............................................................................. 42 A/T: SURVEILLANCE HAS SCALED FREE EXPRESSION ................................................................................................... 43

CON ...................................................................................................................................... 44 NSA PROGRAM BAD: CONSTITUTES A MASSIVE SPY PROGRAM ................................................................................. 44 NSA PROGRAM BAD: PRONE TO ABUSE ...................................................................................................................... 45 NSA PROGRAM BAD: WE MIGHT NOT EVEN KNOW THE EXTENT OF THE ABUSE ........................................................ 46 NSA PROGRAM BAD: RATCHET EFFECT WILL LEAD TO MASSIVE CURBING OF CIVIL LIBERTIES ................................... 47 NSA PROGRAM BAD: METADATA COLLECTION VIOLATES CIVIL LIBERTIES ................................................................. 49 NSA PROGRAM BAD: VIOLATES THE CONSTITUTION .................................................................................................. 50 NSA PROGRAM BAD: CONGRESS NEVER APPROVED THIS SPECIFIC PROGRAM .......................................................... 51 NSA PROGRAM BAD: FAR-‐REACHING LAWS ARE HARD TO REPEAL ............................................................................ 52 NSA PROGRAM BAD: BAD COUNTERTERRORISM TOOL .............................................................................................. 53 NSA PROGRAM BAD: PUBLIC BECOMING CYNICAL ABOUT THE PROGRAM ................................................................ 54 NSA PROGRAM BAD: TOO EXPENSIVE ........................................................................................................................ 56 NSA PROGRAM BAD: TOO BROAD .............................................................................................................................. 58 NSA PROGRAM BAD: DOESN’T YIELD ENOUGH RESULTS TO CONTINUE THE PROGRAM ............................................ 59 NSA PROGRAM BAD: THE CITED CASES THAT JUSTIFY THE PROGRAM ARE COUNTERED BY THE PUBLIC RECORD ..... 61 NSA PROGRAM BAD: GOES BEYOND THE BOUNDARIES OF THE PATRIOT ACT ........................................................... 63


NSA PROGRAM BAD: CURBS FREE EXPRESSION .......................................................................................................... 64 NSA PROGRAM BAD: PUBLIC REACTION TO THIS PROGRAM WILL IMPACT FUTURE COUNTERTERRORISM PROGRAMS 65 NSA PROGRAM BAD: ADVOCATES EXAGGERATE THE BENEFITS OF THE PROGRAM ................................................... 66 NSA PROGRAM BAD: SHOULDN’T BASE POLICY BASED ON EMOTION OR FEAR OF TERRORISM ................................ 69 NSA PROGRAM BAD: EVEN DEFENDERS WANT TO CURB THE PROGRAM .................................................................. 70 NSA PROGRAM BAD: PROGRAM COSTS US BUSINESS BILLIONS IN POTENTIAL SALES ................................................ 71 SECRECY BAD: MAKES IT LESS LIKELY WE CAN CATCH ABUSE ..................................................................................... 72 SECRECY BAD: WOULDN’T HAVE RISKED POLICE ACTIONS AGAINST TERRORISTS ...................................................... 73 A/T: TERRORISM JUSTIFIES NSA PROGRAM ................................................................................................................ 74 A/T: EVERYONE APPROVED THE NSA PROGRAM! ....................................................................................................... 79 A/T: WE VOLUNTARILY GIVE UP TONS OF PERSONAL DATA ....................................................................................... 80


META NSA: HOW DOES THE PROGRAM WORK? HOW NSA EMAIL MONITORING WORKS-‐Electronic Frontier Foundation '13 [How the NSA's Domestic Spying Program Works; EFF; 2013; https://www.eff.org/nsa-‐spying/how-‐it-‐works; retrieved 6 October 2013] It works like this: when you send an email or otherwise use the internet, the data travels from your computer, through telecommunication companies' wires and fiber optics networks, to your intended recipient. To intercept these communications, the government installed devices known as “fiber-‐optic splitters” in many of the main telecommunication junction points in the United States (like the AT&T facility in San Francisco). These splitters make exact copies of the data passing through them: then, one stream is directed to the government, while the other stream is directed to the intended recipients. The Klein documents reveal the specific equipment installed at the AT&T facility and the processing power of the equipment within the secret rooms. One type of machine installed is a Narus Semantic Traffic Analyzer, a powerful tool for deep packet inspection. Narus has continually refined their capabilities and—as of the mid-‐2000s—each Narus machine was capable of analyzing 10 gigabits of IP packets, and 2.5 gigabits of web traffic or email, per second. It is likely even more powerful today. The Narus machine can then reconstruct the information transmitted through the network and forward the communications to a central location for storage and analysis. In a declaration in our lawsuit, thirty-‐year NSA veteran William Binney estimates that “NSA installed no few than ten and possibly in excess of twenty intercept centers within the United States.” Binney also estimates NSA has collected “between 15 and 20 trillion” transactions over the past 11 years.


TOO LITTLE IS KNOWN TO JUDGE THE PROGRAM AS OF RIGHT NOW, NOT ENOUGH INFORMATION HAS BEEN RELEASED TO GIVE INDICATION WHETHER OR NOT THE PROGRAM IS EFFECTIVE ENOUGH TO CONTINUE-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] After weeks of mounting controversy and doubts in Congress, the Obama administration made its most detailed effort yet to reassure the public about the National Security Agency's massive collection of Americans' telephone records, releasing previously classified documents in an effort to save a program that appears increasingly endangered. But the documents, which included a secret order from the Foreign Intelligence Surveillance Court that was once so highly classified that only those with a "need to know" could see it, appeared to do little to quiet the calls in Congress to rein in the NSA's authority. Officials testifying to a Senate panel ran into skeptical questions from members of both parties. "It's been far too difficult to get a straight answer about the effectiveness" of the program, said Senate Judiciary Committee Chairman Patrick J. Leahy (D-‐Vt.). "I think the patience of the American people is beginning to wear thin, but what has to be of more concern in a democracy is the trust of the American people is wearing thin." The newly declassified documents spelled out both the scope of the program and the safeguards that administration officials say protect the privacy of Americans. The NSA keeps five years' worth of records covering nearly all telephone calls in the United States, showing which phone numbers were connected to which other numbers and when.


PRO NSA PROGRAM GOOD: PANIC ABOUT THE PROGRAM IS OVERBLOWN ENTIRE NSA SITUATION IS OVERBLOWN; THE ABUSE ISN'T NEARLY AS BAD AS PURPORTED BY THE WORSE CASE SCENARIOS-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] But fearing the NSA, which has been a staple of Hollywood for decades, requires you to believe that hundreds, if not thousands, of American employees in the organization are in on a conspiracy. In the Edward Snowden-‐is-‐a-‐legitimate-‐NSA-‐whistleblower narrative, it also requires that very liberal senators and congressmen are complicit in propagating a civil-‐rights-‐chewing national surveillance system. According to Glenn Greenwald, the left-‐wing American columnist of the Guardian newspaper, Snowden first realized how unpleasant the U.S. government could be when he read the cable traffic of CIA case officers attempting to recruit a foreign banker in Geneva by getting the poor man drunk and arrested, to set up an opportunity to bond with him. Note to the reading public and Mr. Greenwald: This makes no sense. CIA operatives don’t want to get their recruits into legal and professional jeopardy; they want to nurture their prospective agents’ careers and self-‐confidence. It should be obvious by now that Snowden is a serious flake. But the American government and its contractors—even the CIA and the NSA—are chock full of flakes . . . along with responsible, Constitution-‐loving liberals and conservatives who would be loath to allow the U.S. government to spy on their fellow citizens, let alone their own relatives and friends. It is endlessly amusing how many liberals and libertarians seem to believe that the employees of the CIA, NSA, and other shadowy organizations are hatched in hawkish communities far from the world that liberals and libertarians inhabit. Certainly, good people can do bad things if put into a corrupt system. But journalists in Washington, who rub shoulders every day with national-‐security types, surely know that America isn’t that far gone. Civil liberties after 12 years of the global war on terrorism are actually as strongly protected in America as they were in 1999, when Bill Clinton was treating terrorism as crime and his minions were debating the morality of assassinating Osama bin Laden. The same is true in France and Great Britain, liberal democracies that have the finest, but also the most intrusive, counterterrorism forces in the West. Surveillance in these countries is intimate—the French internal-‐security service, the DST, and British domestic intelligence, MI5, bug and monitor their countrymen in ways that remain unthinkable in the United States. Yet the political elites and the societies of both countries have become much more sensitive to, and protective of, personal freedom as their internal security forces have grown more aggressive. THE MEDIA HAS SENSATIONALIZED THE PROGRAM; A COMPLETE PICTURE OF THE PROGRAM HAS YET TO BE MADE AVAILABLE-‐Fox News '13 [NSA chief defends surveillance, says helped prevent terror plots more than 50 times since 9/11; Fox News; 18 June 2013; http://www.foxnews.com/politics/2013/06/18/nsa-‐chief-‐defends-‐surveillance-‐says-‐helped-‐prevent-‐terror-‐more-‐than-‐50-‐times/; retrieved 12 October 2013] Some lawmakers, and many civil liberties groups, have complained that these programs have given the government too much power to monitor people around the world. Alexander, though, said the program "does not compromise" privacy and civil liberties. Committee Chairman Mike Rogers, R-‐Mich., echoed the comments, claiming incomplete information has been leaked that creates an "inaccurate picture" of the program.


THE BIGGEST DANGER FROM THE NSA PROGRAM IS POLITICAL OVERREACTION-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] The real danger from this leak is the potential political overreaction. The NSA is collecting less information than appears on a monthly phone bill (no names), but Americans would worry less about the government spying on them if, for example, the Justice Department wasn't secretly spying on the Associated Press and Fox News. Or if the IRS wasn't targeting White House critics. Or if the Administration in general showed a higher regard for the law when it conflicts with its policy preferences. The liberals who spent the Bush years warning about a knock on the door at least have the virtue of consistency, if not the Republicans who are now depicting the NSA program as some J. Edgar Hoover-‐Bill Moyers operation to target domestic enemies. Kentucky Senator Rand Paul has already introduced the Fourth Amendment Restoration Act of 2013. Yet surveillance is more critical than ever to stopping terror attacks now that Mr. Obama has all but abolished extended interrogation and military detention and invited Congress to limit drone strikes. Amid many real abuses of power, the political temptation will be to tie data-‐mining into a narrative about a government out of control. Such opportunism can only weaken our counterterror defenses and endanger the country. MEDIA HAS HYPED THE NSA PROGRAM-‐Makashima '13 [Ellen; NSA chief defends collecting Americans’ data; The Washington Post; 25 September 2013; http://www.washingtonpost.com/world/national-‐security/nsa-‐chief-‐defends-‐collecting-‐americans-‐data/2013/09/25/5db2583c-‐25f1-‐11e3-‐b75d-‐5b7f66349852_print.html; retrieved 12 October 2013] The program began shortly after the Sept. 11, 2001, attacks under authority claimed by the executive branch. It was secretly put under surveillance court oversight in 2006 after U.S. phone companies balked at continued cooperation in the wake of disclosures of the NSA’s warrantless collection of domestic e-‐mails and phone-‐call content in 2005. Alexander stressed that the Section 215 program does not collect the content of Americans’ communications. He accused the media of having “hyped” and sensationalized the facts to suggest that the agency listens to calls. THE MEDIA IS PLAYING UP SUPPOSEDLY VIOLATIONS BY THE NSA; THEY ARE ACTING WITHIN THE LAW-‐Cooper '13 [Elise; Writer; Endorsing the NSA; The American Thinker; 27 June 2013; http://www.americanthinker.com/2013/06/endorsing_the_nsa_3.html; retrieved 12 October 2013] The recent outcry about the NSA surveillance programs involving phone records and the Prism is getting out of hand. This scandal came to the forefront when Edward Snowden, a contractor to the NSA, leaked a series of documents about these surveillance programs. American Thinker interviewed the former director of the CIA, Michael Hayden to ask him to explain the programs. What is very interesting is that those who are strongly speaking out in favor: Vice-‐President Cheney, Mike Rogers, Michael Hayden, and even Michelle Bachmann are, or have been, intricately involved with these programs. They point out that there are reasons for secrecy regarding intelligence operations, that the War on Terror is far from over, and that these programs did in fact prevent terrorist attacks. Bachmann said on the Neil Cavuto show, "The NSA was fastidious about following the law. There's not one example that came out of any intentional violation of any kind from the law. I think what we saw today pretty clearly is that the government isn't doing what all of these stories are claiming it is."


NSA PROGRAM GOOD: GIVES ACCESS TO TOOLS WHILE MAINTAINING RIGHTS US GOVERNMENT HAS MANAGED TO STILL PRIORITIZE PRIVACY AND INDIVIDUAL RIGHTS DESPITE CHALLENGES OTHERWISE-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] It’s an odd and, for those attached to Friedrich Hayek’s Road to Serfdom, disconcerting development: The massive American government, born of the welfare state and war, hasn’t yet gone down the slippery fascist slope. Liberal welfare imperatives may be bankrupting the country, but they have not produced a decline of most (noneconomic) civil liberties. Just the opposite. American liberalism’s focus on individual privacy and choice has, so far, effectively checked the creed’s collectivism. America’s national-‐security state, which Greenwald believes has already become a leviathan, is, for the most part, rather pathetic. THE PROSPECT OF TERRORISM DIMINISHES THE OUTRAGE OF THE NSA PROGRAM, EVEN IF IT IS AN OVERREACH-‐Stossel '13 [John; Journalist and Commentator; Why worry about NSA when Google already knows everything about me?; Fox News; 12 June 2013; http://www.foxnews.com/opinion/2013/06/12/im-‐libertarian-‐but-‐im-‐not-‐furious-‐about-‐nsa-‐phone-‐surveillance/; retrieved 12 October 2013] So what’s wrong with me? I just can’t get that worked up about it. I know Big Data now in NSA computers probably includes my phone calls. (I hope it’s just time, duration, location and recipients, not my words, too, but I’m not sure.) I know the snooping may be unnecessary. Government’s claim that it prevents terror is weak: Officials say a terrorist was caught, but New York City police say he was caught via other methods. I’m skeptical about the very claim that any terribly important “secrets” are held by unhappy 29-‐year-‐olds and 4.8 million other people (that’s how many Americans hold security clearance for classified material). So it’s invasive, probably illegal and maybe useless. I ought to be very angry. But I’m not. Why? I need to keep thinking about this issue, but for now, two reasons: 1. Terrorists do want to murder us. If the NSA is halfway competent, Big Data should help detect plots.


NSA PROGRAM GOOD: WILL SERVE AS A DETERRENT THE PUBLIC KNOWLEDGE OF THE NSA SURVEILLANCE WILL SERVE AS A DETERRENT-‐Platzer '13 [Joerg; Crypto Currency Consulting Group; 'US govt benefits most from NSA leak as people now know it has surveillance weapon;' Russia Today; 25 June 2013; http://rt.com/op-‐edge/nsa-‐leak-‐surveillance-‐crypto-‐229/; retrieved 6 October 2013] RT: So, what Snowden revealed is of interest to crypto economists? JP: Of course it is. But actually of much more interest to the US government itself. Surveillance is a weapon deployed by the government against their biggest enemy – the people. Just like many other weapons, it unfolds most of its power by merely letting people know that one has that weapon by deterrence. I mean what use is the surveillance system for the government if people don’t know about it? I think the biggest benefit out of this leak is going to the US government.


NSA PROGRAM GOOD: SIGNIFICANT CHECKS ON THE USE OF TECHNOLOGY IN SURVEILLANCE SIGNIFICANT CHECKS EXIST ON GOVERNMENT SURVEILLANCE POWER USING TECHNOLOGY-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] The huge high-‐tech intelligence bureaucracies, like smaller outfits such as the operations and technology directorates within the CIA, are extremely difficult for senior government officials to manipulate and abuse because of the many overlapping and checking authorities in these institutions. Unlike the IRS, intelligence agencies are not designed to interact with the citizenry, nor do they have or want prosecutorial power. The intelligence agencies grow uneasy, sometimes even too cautious, when foreign threats develop a domestic dimension.


NSA PROGRAM GOOD: LITTLE IMPACT ON CIVIL LIBERTIES THE IMPACT TO CIVIL LIBERTIES HASN'T BEEN SIGNIFICANT; SHOULDN'T OVERREACT-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] Rogue operators—like WikiLeaks’s Private Bradley Manning and Snowden—may cause harm to innocent civilians, or even case officers and their foreign agents or the discreet-‐reporting sources for American diplomats. But the damage done to American civil liberties by individuals gone bad isn’t the stuff of Nixonian, let alone Orwellian, nightmares. If in the future the advance of technology allows the denizens of the White House to push a button and monitor a political “enemies list,” then we will be in a frightening situation. But we’re nowhere close to that. AT NO TIME HAS INFORMATION GATHERED FOR IN THE SAME OF ANTI-‐TERRORISM BEEN USED TO TARGET POLITICAL ENEMIES OR OTHER ABUSES-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] The second objection is a lot more serious. We know that our government is capable of misusing information in this way, as occurred during the Nixon administration. Many people seem to believe that President Obama sent telepathic signals to I.R.S. workers instructing them to harass Tea Party organizations. But I am unaware — and correct me if I am wrong — of a single instance during the last 12 years of war-‐on-‐terror-‐related surveillance in which the government used information obtained for security purposes to target a political opponent, dissenter or critic. That means that, for now, this objection is strictly theoretical, and the mere potential for abuse can’t by itself be a good reason to shut down a program. If it were, we would have no government.


NSA PROGRAM GOOD: USES MOSTLY PUBLICLY AVAILABLE INFORMATION THE NSA THE INFORMATION IS TRACKING IS ALREADY PUBLICLY AVAILABLE, IN MOST CASES, TO THE MASSES-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] The first objection strikes me as weak. We already give the government an enormous amount of information about our lives, and seem to have gotten used to the idea that an Internal Revenue Service knows our finances, or that an employee of a government hospital knows our medical history, or that social workers (if we are on welfare) know our relationships with family members, or that public school teachers know about our children’s abilities and personalities. The information vacuumed up by the N.S.A. was already available to faceless bureaucrats in phone and Internet companies — not government employees, but strangers just the same. Many people write as though we make some great sacrifice by disclosing private information to others, but it is in fact simply the way that we obtain services we want — whether the market services of doctors, insurance companies, Internet service providers, employers, therapists and the rest, or the nonmarket services of the government like welfare and security.


NSA PROGRAM GOOD: PROGRAM IS VERY LIMITED ACCESS TO THE NSA DATABASE IS LIMITED TO 22 PEOPLE-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] Deputy Director Inglis highlighted the limitations of the phone tracking system, insisting that “only 20 analysts at N.S.A. and their two managers, for a total of 22 people, are authorized to approve numbers that may be used to query this database.” Alexander explained that PRISM had been inaccurately portrayed by the media, and that the NSA has no ability to directly take data from Internet providers without court orders and warrants necessitated by law. “U.S. companies are compelled to provide these records by U.S. law,” he insisted. “In practice, U.S. companies have put energy and focus into protecting their customers around the world while meeting these obligations.”


NSA PROGRAM GOOD: SIGNIFICANT RULES EXIST TO PROTECT CIVIL LIBERTIES/CURB ABUSE NSA SURVEILLANCE HAS SIGNIFICANT RULES TO CURB ABUSE-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] Set against that massive pile of data are restrictions designed to prevent abuses. The court order authorizes only a small number of analysts and supervisors at the NSA to access the database for the limited purpose of looking for numbers that were contacted by phone numbers linked to terrorism. Only 22 people are authorized to work with the data, according to Sen. Dianne Feinstein (D-‐Calif.), who chairs the Senate Intelligence Committee, although agency technicians can also access the database for more limited purposes. OBAMA HAS INCREASED SAFEGUARDS SINCE TAKING OFFICE-‐New York Post '13 [Obama defends NSA surveillance: ‘They help us prevent terrorist attacks;' The New York Post; 7 June 2013; http://nypost.com/2013/06/07/obama-‐defends-‐nsa-‐surveillance-‐they-‐help-‐us-‐prevent-‐terrorist-‐attacks/; retrieved 12 October 2013] Obama said he came into office with a “healthy skepticism” of the program and increased some of the “safeguards” on the programs. He said Congress and federal judges have oversight on the program, and a judge would have to approve monitoring of the content of a call and it’s not a “program run amok.” “Nobody is listening to your telephone calls,” he said. “That’s not what this program’s about.” DESPITE CLAIMS IN THE MEDIA, THE CAPABILITY OF THE NSA TECHNOLOGY IS LIMITED AND HAS A SIGNIFICANT AUDIT TRAIL TO HELP CURB ABUSE-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] The documents published by the Guardian showed how NSA analysts can use a program called XKeyscore to search through vast databases of intercepted Internet communications to find email, chats or browsing history of a specific person. The NSA claimed in the documents, which had been used as training material, that by 2008, 300 terrorists had been captured using intelligence from XKeyscore. The Guardian's story said the new documents "shed light" on Snowden's claim that "I, sitting at my desk," could "wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email." In fact, however, the system described in the story only allows analysts to look at already-‐collected data, mainly on foreigners, not to eavesdrop on a new subject in real time, former NSA officials said. If an analyst tried to use the system to query a U.S. email address or phone number, "they might get some sort of alert back saying, 'Hey, that doesn't jibe,' and then humans would review all of it," said a former veteran NSA operator. "So to say that you can sit there and look at the president is ridiculous." The forms that analysts have to fill out to query the database "leave a pretty thorough audit trail," the former operator said.


NSA PROJECT KEEPS A RECORD OF EVERY CALL EVER MADE AND WAS ENACTED WITHOUT ANY JUDICIAL OVERSIGHT-‐Electronic Frontier Foundation '13 [How the NSA's Domestic Spying Program Works; EFF; 2013; https://www.eff.org/nsa-‐spying/how-‐it-‐works; retrieved 6 October 2013] First, the government convinced the major telecommunications companies in the US, including AT&T, MCI, and Sprint, to hand over the “call-‐detail records” of their customers. According to an investigation by USA Today, this included “customers' names, street addresses, and other personal information.” In addition, the government received “detailed records of calls they made—across town or across the country—to family members, co-‐workers, business contacts and others.” A person familiar with the matter told USA Today that the agency's goal was "to create a database of every call ever made" within the nation's borders. All of this was done without a warrant or any judicial oversight. RESTRICTIONS AND OVERSIGHT EXISTS ON THE NSA PROGRAM-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] Over the weekend, James R. Clapper Jr., the director of national intelligence, said that officials may access the database only if they can meet a legal justification — “reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” Queries are audited under the oversight of the national security court. Timothy Edgar, a former civil liberties official on intelligence matters in the Bush and Obama administrations who worked on building safeguards into the phone log program, said the notion underlying the limits was that people’s privacy is not invaded by having their records collected, but only when a human examines them. “When you have important reasons why that collection needs to take place on a scale that is much larger than case-‐by-‐case or individual obtaining of records,” he said, “then one of the ways you try to deal with the privacy issue is you think carefully about having a set of safeguards that basically say, ‘O.K., yes, this has major privacy implications, but what can we do on the back end to address those?’ ” IT DOESN'T PRACTICALLY MATTER, BUT, THE OBAMA ADMINISTRATION HAS EXPANDED OVERSIGHT OF THE NSA PROGRAM WITH THE FISA COURT-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] Administration officials are defending the national security benefits of data-‐mining, even as they try to absolve themselves with the folks who thought Dick Cheney was bugging their bedrooms. The White House says President Obama is different from President Bush because the former operates under the auspices of FISA while the latter initially authorized certain warrantless wiretaps. This means that NSA must now get judicial permission from a court set up for certain wiretaps in the context of the Cold War for warrants that don't involve eavesdropping. Yet note that the very people who insisted on such FISA approval are now protesting that the FISA judge merely rubber-‐stamped Mr. Obama's request. Well, what did they expect?


ALTHOUGH COURTS GENERALLY DEFER TO THE GOVERNMENT'S SECRET REQUEST, IF OFTEN MODIFIES THE REQUESTS, WHICH MEANS THERE IS SOME OVERSIGHT-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] We have little guidance from the FISA Court or its reviewing court on this issue, as almost all of their proceedings and orders are maintained in secrecy. According to the public information that the government is required to file annually, virtually all government applications under [section] 1861 are granted, (54) but in the vast majority, the court modifies the draft order submitted by the government. We have no insight into the scope of a typical draft order, or the meaningful extent of a typical modification. Does the government typically ask for far more than it needs or expects? Does the government propose robust minimization procedures? Does the court significantly trim back overbroad government drafts? Does the court impose meaningful minimization? Or does the court limit its modifications to curing split infinitives in the government draft? These questions cannot be answered given the secret nature of FISA proceedings. THE NSA PROGRAM IS TARGETED COUNTERTERRORISM AND HAS SIGNIFICANT SAFEGUARDS-‐New York Post '13 [Obama defends NSA surveillance: ‘They help us prevent terrorist attacks;' The New York Post; 7 June 2013; http://nypost.com/2013/06/07/obama-‐defends-‐nsa-‐surveillance-‐they-‐help-‐us-‐prevent-‐terrorist-‐attacks/; retrieved 12 October 2013] “I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use,” he said. Among the previously classified information about the phone records collection that Clapper revealed: —The program is conducted under authority granted by Congress and is authorized by the Foreign intelligence Surveillance Court which determines the legality of the program. —The government is prohibited from “indiscriminately sifting” through the data acquired. It can only be reviewed “when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” He also said only counterterrorism personnel trained in the program may access the records. —The information acquired is overseen by the Justice Department and the FISA court. Only a very small fraction of the records are ever reviewed, he said. —The program is reviewed every 90 days.


NSA PROGRAM GOOD: CRITICAL COUNTERTERRORISM TOOL SHOULDN'T THROW AWAY A POTENTIALLY WONDERFUL COUNTERTERRORIST TOOL DUE TO OVERBLOWN FEARS OF SNOOPING-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] We may be on the cusp of a new wondrous counterterrorist tool; or we may be seeing American officials, once again, looking for a technical solution to a problem that actually requires intensive human labor, some of it morally challenging and bloody. Given the volatile state of Islamic militancy, the imminent nuclearization of the Islamic Republic, whose ruling elite has terrorism in its DNA, and the likely coming defeat of the United States in Afghanistan, which will probably supercharge jihadism, a big attack inside the United States in the coming years wouldn’t be surprising. We should want to assess PRISM’s capacities thoroughly and critically. It may be a great technology—or it may be an overpriced dream whose promise was just too appealing. What we shouldn’t do is throw it away over unwarranted fears of snooping. NSA EFFORTS IMPORTANT TO HELP COMBAT TERRORISTS-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] When the subject of Edward Snowden’s unauthorized disclosures came up, there was a general agreement that he had done irreparable harm. Committee Chairman Mike Rogers (R-‐MI) and Dutch Ruppersberger (D-‐MD), the committee’s ranking Democrat, were both angered by Snowden’s disclosures. “It is at times like these where our enemies within become almost as damaging as our enemies on the outside,” said Rogers. Ruppersberger said Snowden’s unauthorized disclosures “put our country and allies in danger.” ”We need to seal this crack in the system,” he added. General Counsel Litt was equally concerned. “These are extremely important collection programs that protect us not only from terrorists but other threats,” he said. “We run the risk of losing these collection capabilities. We’re not going to know for many months. If we do, there’s no doubt it will cause our national security to be affected.” FBI deputy director Joyce agreed. “These are egregious leaks,” he said. “Egregious.”


BIN LADEN WAS FOUND THROUGH INTERCEPTED PHONE MESSAGES; PHONE DATA IS KEY TO CATCHING TERRORISTS-‐Cooper '13 [Elise; Writer; Endorsing the NSA; The American Thinker; 27 June 2013; http://www.americanthinker.com/2013/06/endorsing_the_nsa_3.html; retrieved 12 October 2013] In listening to the arguments made by those knowledgeable about these programs Americans should think back to when they were disgusted with the Obama Administration for not capturing and interrogating terrorists and instead quickly Mirandizing them. There is the need to gain information from the terrorists and these NSA programs are tools for that purpose. Critics of these programs point to the fact that Osama Bin Laden did not use cell phones, but used a courier, that the Boston terrorists went undetected, and that David Headly, involved in the Mumbai attacks, went undiscovered from 2006 to 2009. Regarding the Boston terrorist attack, Hayden noted that the NSA did not target the Boston terrorists because they never had telephone contact with someone overseas who was a known terrorist. As for Headly, Hayden wishes that he had been found in 2006, but warns, "Nothing is foolproof or airtight. Should we have not found him in 2009?" The same is true with Osama Bin Laden, who was found when the CIA was able to detect the courier through the intercepted cell phone messages. What about the argument by critics, that this program is outdated because the terrorists do not use cell phones since they know that U.S. intelligence agencies are targeting them. Hayden told American Thinker he understands this argument; yet, even the terrorists are forced to communicate from time to time which makes them vulnerable when they do use them. Another thought is that cell phone use by the terrorists makes them vulnerable because they have to find another means of communication. Also, he wants Americans to think about the fact that if terrorists know that the intelligence agencies no longer target cell phones then they will start to use them again. THE GOVERNMENT NEEDS TOOLS LIKE THE NSA SURVEILLANCE PROGRAM TO PROTECT FROM TERRORISM-‐Cooper '13 [Elise; Writer; Endorsing the NSA; The American Thinker; 27 June 2013; http://www.americanthinker.com/2013/06/endorsing_the_nsa_3.html; retrieved 12 October 2013] His word of warning to Americans: the outcry is due in part to being confused and misled by media reporting on the programs. He wants Americans to make sure "you have your story straight before you complain. Also, if you want to be less well defended just let us know. I want to know if Americans feel lucky enough to derail these programs so a terrorist attack will not be detected. The government's duty is to protect us and they need to be given the tools to do it while keeping a careful watch on how they use those tools." IF THE NSA PROGRAM HAS EXISTED BEFORE 9/11, IT MIGHT HAVE PREVENTED THE ATTACKS-‐Miller '13 [S.A.; NSA chief testifies that ‘dozens’ of terror attacks have been stopped using phone-‐data surveillance; New York Post; 13 June 2013; http://nypost.com/2013/06/13/nsa-‐chief-‐testifies-‐that-‐dozens-‐of-‐terror-‐attacks-‐have-‐been-‐stopped-‐using-‐phone-‐data-‐surveillance/; retrieved 12 October 2013] Secret US surveillance prevented “dozens” of terror attacks in recent years — and might have foiled the 9/11 hijackers if sophisticated phone tracking had been in place in 2001, the head of the National Security Agency testified yesterday. Gen. Keith Alexander said US intelligence knew of phone calls Khalid al-‐Mihdhar made allegedly to an al Qaeda safe house before he hijacked the plane that crashed into the Pentagon. “We had intercepts on Mihdhar,” Alexander told the Senate Appropriations Committee. “But we didn’t know where he was.” Mihdhar and another hijacker, Nawaf al-‐Hazmi, had traveled to San Diego for pilot training. Had the metadata phone-‐tracking program secretly created after 2005 been in effect in 2001, Mihdhar and Hazmi and the other 9/11 hijack teams might have been located through Mihdhar’s phone, Alexander suggested. “We could take that number and go backwards in time,” he said, “and if we saw four other groups, we’d say this looks of interest and pass this to the FBI,” he said.


THE NSA PROGRAM IS THE ONLY WAY TO DO THIS-‐New York Post '13 [Obama defends NSA surveillance: ‘They help us prevent terrorist attacks;' The New York Post; 7 June 2013; http://nypost.com/2013/06/07/obama-‐defends-‐nsa-‐surveillance-‐they-‐help-‐us-‐prevent-‐terrorist-‐attacks/; retrieved 12 October 2013] The NSA is sensitive to perceptions that it might be spying on Americans. It distributes a brochure that pledges the agency “is unwavering in its respect for U.S. laws and Americans’ civil liberties — and its commitment to accountability.” Emerging from the briefing, Sen. Dianne Feinstein, D-‐Calif., chairwoman of the Intelligence committee, said the government must gather intelligence to prevent plots and keep Americans alive. “That’s the goal. If we can do it another way, we’re looking to do it another way. We’d like to.” She said Congress is always open to changes, “but that doesn’t mean there will be any.” NSA PROGRAM ALLOWS THE NSA TO BETTER CONNECT THE DOTS AND PREVENT TERRORIST ATTACKS-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] On Tuesday, the intelligence community made its latest effort to defend and explain two secret surveillance programs disclosed by former defense contractor Edward Snowden. In a rare open hearing, National Security Agency (NSA) Director Keith Alexander told the House Intelligence Committee that more than 50 potential terrorist plots had been foiled since 9/11. “In the 12 years since the attacks on Sept. 11, we have lived in relative safety and security as a nation,” General Alexander said. “That security is a direct result of the intelligence community’s quiet efforts to better connect the dots and learn from the mistakes that permitted those attacks to occur on 9/11.” NSA PROGRAM IMPORTANT TO GIVE LAW ENFORCEMENT THE ABILITY TO CONNECT THE DOTS TO PREVENT TERRORISM-‐Makashima '13 [Ellen; NSA chief defends collecting Americans’ data; The Washington Post; 25 September 2013; http://www.washingtonpost.com/world/national-‐security/nsa-‐chief-‐defends-‐collecting-‐americans-‐data/2013/09/25/5db2583c-‐25f1-‐11e3-‐b75d-‐5b7f66349852_print.html; retrieved 12 October 2013] In nearly hour-‐long remarks and the interview afterward, Alexander offered his most impassioned defense of a program that is under fire and that he fears could be curtailed or abolished. He said that the NSA’s database, which former officials say contains billions of phone number records, is the only way the government can quickly “connect the dots” between suspect foreign numbers and those in the United States. “Somebody who has a database that can look at the foreign and the domestic numbers can . . . get the information back quickly and can tell you where there’s a threat and where there’s not,” he said.


NDA PROGRAM GOOD: MASSIVE DATA COLLECTION JUSTIFIED FOCUSING ONLY ON THE INDIVIDUALS AT HAND MEANS UNNECESSARY TIME PROBLEMS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The government disagrees, (43) claiming it needs a pre-‐existing database of contacts for essentially every telephone subscriber in the country. There are at least two tactical potential advantages to such a massive database. Absent such a database, once a target is identified: (1) creating a contact list could require time, whereas an attack may be imminent; the pre-‐existing database likely already will include the target's contacts; and (2) efforts to identify the target's contacts may be too late to capture critical contacts, which may by then have ceased; the pre-‐existing database is more likely to contain those critical contacts. (44) THE MASSIVE DATABASE IS REQUIRED TO BE ABLE TO RESPOND TO A CRISIS WITH APPROPRIATE SPEED-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] Representative Adam B. Schiff (D-‐CA) asked Alexander why the FBI couldn’t get logs of calls linked to a suspicious number without maintaining a database comprised of all domestic calls. Alexander said he remained open to such a possibility, but that the agency’s primary concern is “speed in crisis.” LARGE AMOUNTS OF DATA IS REQUIRED TO USE THE MINING TECHNIQUES THAT ARE EFFECTIVE IN TRACKING TERRORISTS-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] The outrage this time seems to stem from the fact that the government is widely collecting call records, not merely those associated with a particular suspect or group. But this fear misunderstands how the program works. From what we know, the NSA runs algorithms over the call log database, searching for suspicious patterns over time. The effectiveness of data-‐mining is proportional to the size of the sample, so the NSA must sweep broadly to learn what is normal and refine the deviations. A nongovernment analogue might be the credit card flags that freeze payment when, say, a New Yorker goes on a shopping spree in Phoenix. The Washington Post also revealed Thursday that NSA has a parallel metadata program for Internet address packets called Blarney. NSA SPYING THROUGH BIG DATA IS NARROWLY TAILORED AND REVIEW REGULARLY BY JUDGES-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] If the NSA's version of a computer science department operates like the rest of FISA, the government is cautious to ensure that its searches are narrowly tailored and specific protocols are reviewed by FISA judges. Mike Rogers, the Chairman of the House Intelligence Committee, said Thursday that the program had helped disrupt a major domestic terror attack in recent years.


THE NSA PROGRAM IS IMPORTANT FOR SPEED IN DEALING WITH TERRORISTS-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] But supporters privately say the database’s existence is about more than convenience and speed. They say it can also help in searching for networks of terrorists who are taking steps to shield their communications from detection by using different phones to call one another. If calls from a different number are being made from the same location as calls by the number that was already known to be suspicious, having the entire database may be helpful in a way that subpoenas for specific numbers cannot match.


NSA PROGRAM GOOD: HAS FOILED SEVERAL ATTACKS AGAINST THE UNITED STATES SEVERAL CASES EXIST WHERE THE NSA PROGRAM FOILED AN ATTACK ON THE UNITED STATES-‐Levy '13 [Pema; Senior Political Reporter; The Four Times NSA Surveillance Programs Stopped An Attack; International Business Times; 18 June 2013; http://www.ibtimes.com/four-‐times-‐nsa-‐surveillance-‐programs-‐stopped-‐attack-‐1312309; retrieved 6 October 2013] Speaking at a House Intelligence Committee hearing on Tuesday, top intelligence community officials including Gen. Alexander defended the NSA’s surveillance of phone records and Internet communications, which has come under fire as a breach of Americans’ civil liberties since the program was revealed by former NSA contractor Edward Snowden. The five witnesses repeatedly told the committee that robust protections were in place to protect citizens’ privacy. The leaks of classified documents revealed the existence of two surveillance programs, which the government operates under the authority of Section 215 of the USA Patriot Act and Section 702 of the FISA Amendments Act. The former green-‐lights the collection of Americans’ phone records and the latter authorizes foreign surveillance. To prove the necessity of these programs, Sean Joyce, deputy director of the Federal Bureau of Investigation, described four of the instances in which, under the authority of either Section 215 or Section 702, an attack was thwarted. Two of the cases were previously undisclosed, according to the Guardian newspaper. The examples show a process whereby the NSA's programs detected a suspicious individual within the U.S., and the FBI then moved to identify and investigate that person. NSA PROGRAM HAS HELPED PREVENT MORE THAN 50 TERROR PLOTS-‐Fox News '13 [NSA chief defends surveillance, says helped prevent terror plots more than 50 times since 9/11; Fox News; 18 June 2013; http://www.foxnews.com/politics/2013/06/18/nsa-‐chief-‐defends-‐surveillance-‐says-‐helped-‐prevent-‐terror-‐more-‐than-‐50-‐times/; retrieved 12 October 2013] The National Security Agency and Justice Department mounted a vigorous defense of the government's controversial surveillance efforts on Tuesday, with NSA chief Gen. Keith Alexander claiming they have helped prevent "potential terrorist events" over 50 times since 9/11. Officials insisted the programs protect Americans from unwarranted intrusion, as they began to shed light on the scope of the secretive effort in a rare public hearing. Disclosing new details, a top FBI official claimed the surveillance efforts helped disrupt a plot to bomb the New York Stock Exchange. FBI Deputy Director Sean Joyce said NSA officials discovered the scheme while monitoring a known extremist in Yemen, who was in contact with an individual in the U.S. After initiating surveillance, Joyce said, they were able to detect "nascent plotting" to bomb the stock exchange and ultimately disrupt the plot. Joyce also discussed another case in which the NSA used the program to tip off the FBI about an individual's "indirect contacts" with terrorists overseas. This "terrorist activity" was disrupted as well, he said, without going into detail. MEMBERS OF CONGRESS HAVE SAID THAT THE NSA PROGRAM HAS PREVENTED A SIGNIFICANT TERRORIST ATTACK-‐New York Post '13 [Obama defends NSA surveillance: ‘They help us prevent terrorist attacks;' The New York Post; 7 June 2013; http://nypost.com/2013/06/07/obama-‐defends-‐nsa-‐surveillance-‐they-‐help-‐us-‐prevent-‐terrorist-‐attacks/; retrieved 12 October 2013] Senior administration officials defended the programs as critical tools and said the intelligence they yield is among the most valuable data the U.S. collects. Clapper said the Internet program, known as PRISM, can’t be used to intentionally target any Americans or anyone in the U.S, and that data accidentally collected about Americans is kept to a minimum. Leaders of Congress’ intelligence panels dismissed the furor over what they said was standard three-‐month renewal to a program that’s operated for seven years. Committee leaders also said the program recently helped thwart what would have been a significant domestic terrorist attack.


FOUR SPECIFIC CASES THAT WERE FOILED BY THE NSA PROGRAM DETAILED-‐Levy '13 [Pema; Senior Political Reporter; The Four Times NSA Surveillance Programs Stopped An Attack; International Business Times; 18 June 2013; http://www.ibtimes.com/four-‐times-‐nsa-‐surveillance-‐programs-‐stopped-‐attack-‐1312309; retrieved 6 October 2013] The first example was the case of Najibullah Zazi, who confessed to plotting to bomb the New York City subway system in 2009. Joyce confirmed that the NSA’s Internet surveillance program led officials to a suspect in Colorado who turned out to be Zazi. The FBI took the necessary legal steps to identify him and ultimately capture him, in concert with authorities in New York. Under Section 215's authority, Joyce said, the NSA was also able to nail down a “previously unknown [phone] number of one of the co-‐conspirators.” “Without the 702 tool, we would not have identified Najibullah Zazi,” Joyce said later in the hearing. The second instance described was a thwarted plot to bomb the New York Stock Exchange. Under Section 702's authority, the NSA monitored a known extremist in Yemen who was communicating with a man in Kansas City, Mo. This information led the FBI to Khalid Ouazzani, his co-‐conspirators and ultimately the plot to bomb the NYSE. Ouazzani ultimately confessed to sending money to al-‐Qaeda and was never convicted for the stock exchange plot. The third instance cited by Joyce was the case of David Headley, an American in Chicago who aided the 2008 Mumbai terrorist attacks. The FBI had received a tip about his involvement in the attacks when the NSA’s 702 surveillance also identified Headley as involved in a plot to bomb a Danish newspaper office that had published cartoons of the Prophet Mohamed that were considered offensive by some Muslims. “Headley later confessed to personally conducting surveillance of the Danish newspaper office,” Joyce said. Regarding the final case, Joyce testified that data collection under Section 215 helped uncover terrorist activity that the FBI had been unable to detect previously. In 2007, the FBI closed an investigation it had launched shortly after Sept. 11, when it could not connect the subject of the investigation to terrorist activity. Years later, under its Section 215-‐sanctioned metadata collection program, the NSA identified a phone number in San Diego that was in contact with a known terrorist overseas. The NSA’s discovery allowed the FBI to reopen the investigation and disrupt the terrorist activity. Joyce later confirmed that the activity involved providing financial support to a designated terrorist group overseas. WHILE DETAILS ARE SECRET, THE NSA PROGAM HAS PROTECTED THE US AND OUR ALLIES FROM TERROR THREATS AROUND THE WORLD-‐Fox News '13 [NSA chief defends surveillance, says helped prevent terror plots more than 50 times since 9/11; Fox News; 18 June 2013; http://www.foxnews.com/politics/2013/06/18/nsa-‐chief-‐defends-‐surveillance-‐says-‐helped-‐prevent-‐terror-‐more-‐than-‐50-‐times/; retrieved 12 October 2013] It's unclear whether authorities might have been able to disrupt these plots without the help of the phone-‐ and Internet-‐record collection programs. But Alexander staunchly defended those programs against mounting criticism, pushing back after a string of reports based on leaks of classified information raised widespread privacy concerns. Alexander, speaking before the House intelligence committee, said the programs "have protected the U.S. and our allies from terrorist threats across the globe," pointing to the intelligence community's ability to better connect the dots as a reason why there hasn't been another 9/11-‐style attack. Specifically, he said they helped prevent terror "events" more than 50 times in more than 20 countries since 2001. Alexander said he plans to provide details on all the cases to lawmakers in a classified setting on Wednesday.


NSA PROGRAM GOOD: HELPED IN THE BOSTON MARATHON BOMBING THE NSA PROGRAM IS CRITICAL TO OFFER SPEED AND AGILITY, LIKE IN THE BOSTON MARATHON BOMBING-‐Sasso '13 [Brendan; Staff Writer; NSA chief pleads for public's help amid push for spying restrictions; The Hill; 25 September 2013; http://thehill.com/blogs/hillicon-‐valley/technology/324499-‐nsa-‐chief-‐pleads-‐for-‐publics-‐help-‐as-‐congress-‐eyes-‐restrictions#ixzz2fvTcaQFg; retrieved 12 October 2013] Alexander emphasized that, under the program, the NSA only collects data such as phone numbers, call times and call durations, and does not listen in on any phone calls. He said the program is crucial for "connecting the dots" and foiling terrorist attacks. "I can tell you, although I can't go into detail, it provides the speed and agility in crises like the Boston Marathon tragedy in April and the threats this summer," Alexander said. He also downplayed recently revealed "compliance incidents" in which NSA analysts violated legal rules. THE NSA PROGRAM WAS CRITICAL IN DETERMINING THE BEST COURSE OF ACTION AFTER THE BOSTON MARATHON BOMBING-‐Makashima '13 [Ellen; NSA chief defends collecting Americans’ data; The Washington Post; 25 September 2013; http://www.washingtonpost.com/world/national-‐security/nsa-‐chief-‐defends-‐collecting-‐americans-‐data/2013/09/25/5db2583c-‐25f1-‐11e3-‐b75d-‐5b7f66349852_print.html; retrieved 12 October 2013] The head of the National Security Agency delivered a vigorous defense Wednesday of his agency’s collection of Americans’ phone records for counterterrorism purposes, asserting that the program was helpful in investigations of the Boston Marathon bombing and the suspected plots against U.S. diplomatic outposts this summer. “It provides us the speed and agility in crises, like the Boston Marathon tragedy in April and the threats this summer,” Gen. Keith Alexander said at the Billington Cybersecurity Summit, a gathering of business and government officials. Alexander’s address follows calls by some leading lawmakers to end the program because of concerns that it invades Americans’ privacy without having proven its value as a counterterrorism tool. In a brief interview after his talk, Alexander said the program did not help identify the Boston suspects, brothers Dzhokhar and Tamerlan Tsarnaev. But he said that by using the database of domestic phone call records, the NSA was able to determine that fears about a follow-‐up attack in New York City were unfounded. “We did use [Section] 215,” he said, referring to the USA Patriot Act provision that the government has claimed a federal court has agreed gives it the authority to collect data on practically all calls made in the United States. “We used it to support the FBI in their investigation.” Similarly, he said the records database — which contains the numbers, times and duration of calls but not their content — was useful in determining that there were no threats against targets in the United States in connection with the suspected targeting of U.S. embassies over the summer.


NSA PROGRAM GOOD: CURRENT TRACKING DOZENS OF IMPORTANT CASES OF POTENTIAL TERRORISM NSA CURRENT TRACKING 50 CASES THAT RISK AMERICAN LIVES-‐Levy '13 [Pema; Senior Political Reporter; The Four Times NSA Surveillance Programs Stopped An Attack; International Business Times; 18 June 2013; http://www.ibtimes.com/four-‐times-‐nsa-‐surveillance-‐programs-‐stopped-‐attack-‐1312309; retrieved 6 October 2013] In addition to those four cases, Alexander said the intelligence community is collecting information on “over 50 cases that are classified and will remain classified,” in which the surveillance programs helped thwart an attack. Alexander said that information would be shared with the House and Senate intelligence committees. “The foreign intelligence programs that we are talking about are the best counterterrorism tools that we have to go after these guys,” Alexander said after Joyce recalled the four examples. “We can’t lose those capabilities.” WITHOUT THE NSA PROGRAM, WE RISK ADDITIONAL 9/11 STYLE ATTACKS-‐Levy '13 [Pema; Senior Political Reporter; The Four Times NSA Surveillance Programs Stopped An Attack; International Business Times; 18 June 2013; http://www.ibtimes.com/four-‐times-‐nsa-‐surveillance-‐programs-‐stopped-‐attack-‐1312309; retrieved 6 October 2013] Rep. Mike Rogers, chairman of the House Intelligence Committee and a vocal defender of these programs, echoed these sentiments in his opening remarks on Tuesday. Without these programs, he said in prepared remarks, “I fear we will return to the position we were in prior to the attacks of September 11, 2001. And that should be unacceptable to all of us.” THE NSA PROGRAM HELPS PREVENT TERRORIST ATTACKS WITH MODEST ENCROACHMENTS ON PRIVACY-‐New York Post '13 [Obama defends NSA surveillance: ‘They help us prevent terrorist attacks;' The New York Post; 7 June 2013; http://nypost.com/2013/06/07/obama-‐defends-‐nsa-‐surveillance-‐they-‐help-‐us-‐prevent-‐terrorist-‐attacks/; retrieved 12 October 2013] It was revealed late Wednesday that the National Security Agency has been collecting the phone records of hundreds of millions of U.S. phone customers. The leaked document first reported by the Guardian newspaper gave the NSA authority to collect from all of Verizon’s land and mobile customers, but intelligence experts said the program swept up the records of other phone companies too. Another secret program revealed Thursday scours the Internet usage of foreign nationals overseas who use any of nine U.S.-‐based internet providers such as Microsoft and Google. In his first comments since the programs were publicly revealed this week, Obama said safeguards are in place. “They help us prevent terrorist attacks,” Obama said. He said he has concluded that prevention is worth the “modest encroachments on privacy.”


NSA PROGRAM GOOD: AMERICAN PUBLIC SUPPORTS AMERICAN PUBLIC SUPPORTS NSA'S SURVEILLANCE EFFORTS-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] But others came out in support of the NSA’s efforts. Senator Lindsay Graham said “I am a Verizon customer…it doesn’t bother me one bit for the NSA to have my phone number.” Max Boot, a senior fellow with the think tank Council on Foreign Relations, credited the NSA surveillance with helping to reduce the number of terrorist incidents on US soil since the attacks of September 11, 2001. A Pew Research Center poll suggested that there was significant support among the American public for the NSA’s surveillance efforts. Despite the heated rhetoric on both sides of the surveillance debate, the NSA’s collection of telephone call metadata appears to be legal based upon the Foreign Intelligence Surveillance Court’s (FISC) interpretation of section 215 of the USA PATRIOT Act. PUBLIC SUPPORT SEEMS GENERALLY IN FAVOR OF THE NSA PROGRAM-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The immediate reaction in the United States seemed to favor NSA's conduct. A Washington Post-‐Pew Research poll taken June 6-‐9, 2013 (39) asked whether it is more important for the government to investigate terrorist threats or not to intrude on personal privacy. Investigating terrorist threats was considered more important by 62 percent versus 34 percent who felt personal privacy was more important. (40) But in a poll released by Quinnipiac University on August, 1, 2013, 55% viewed Snowden as a whistleblower, while 34% saw him as a traitor. (41) Political leaders such as the President, Senate Intelligence Committee Chair Dianne Feinstein, and Speaker of the House John Boehner have voiced support for the program. But opinion is far from unanimous. Senators Ron Wyden, Richard Durbin, and Mark Udall expressed reservations. (42)


NSA PROGRAM GOOD: DOESN’T TARGET US CITIZENS NSA PROGRAM US CITIZENS WITHOUT A COURT ORDER GIVING INDIVIDUAL PERMISSION-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] Alexander also reiterated that the NSA cannot target a U.S. citizen, including permanent residents, without prior legal clearance to do so, irrespective of where those citizens live. “The NSA can’t target email or phone calls of any U.S. person anywhere in the world without individualized court orders,” he explained. PRISM ONLY TARGETS THE EMAIL CONTENT OF FOREIGNERS-‐Cooper '13 [Elise; Writer; Endorsing the NSA; The American Thinker; 27 June 2013; http://www.americanthinker.com/2013/06/endorsing_the_nsa_3.html; retrieved 12 October 2013] The other program, Prism, only targets the email content of foreigners. Hayden explained, "The only thing American about the Prisms is that an American service provider is being used and that can give us a tremendous intelligence advantage. It has nothing to do with targeting Americans at all. For example, the Boston Marathon terrorists were not targeted because there was not authority to do so since they were American."


NSA PROGRAM GOOD: ONLY USED IN EXTREME CASES IN 2012, NSA PROGRAM WAS USED FOR ONLY A SMALL NUMBER OF NUMBERS IN CONNECTION TO TERRORISTS-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] Fewer than 300 terrorist-‐linked numbers were used as the starting points for searches of the database in 2012, officials said. Based on the results of those searches, NSA provided 12 reports to the FBI, tipping agents to 500 suspicious U.S. numbers, NSA Deputy Director John "Chris" Inglis said at a hearing of the Senate Judiciary Committee.


NSA PROGRAM GOOD: CONGRESS APPROVED CONGRESS APPROVED THE NSA EFFORTS, DESPITE BEING INFORMED OF THE EXTENT OF THE SITUATION-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] In addition to the order from the secret court, the administration also released two letters to Congress, from 2009 and 2011, which explained that the government was using the Patriot Act and other laws to justify bulk collection of U.S. phone records. Release of those documents was designed to make clear that members of Congress had every chance to be fully informed about the program before they twice voted overwhelmingly to extend it. THE NSA PROGRAM WAS APPROVED BY CONGRESS-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] The program was blessed by Congress in the Patriot Act and its later amendments, with broad powers for the NSA to obtain and monitor "any tangible things" including "records, papers, documents, and other items" in order to "protect against international terrorism." As for the Fourth Amendment's ban on unreasonable searches, the Supreme Court has long held (Smith v. Maryland, 1979) that there is no legitimate expectation of privacy for phone records that are held by a third party, which can be seized without a warrant. NSA PROGRAM WAS APPROVED BY ALL THREE BRANCHES OF GOVERNMENT-‐Ahlert '13 [Arnold; Staff Writer; The Terror Plots the NSA Program Stopped; FrontPage Magazine; 20 June 2013; http://frontpagemag.com/2013/arnold-‐ahlert/the-‐terror-‐plots-‐the-‐nsa-‐program-‐stopped/; retrieved 12 October 2013] Alexander did his best to give the Committee some much-‐needed perspective. “This debate has been fueled by incomplete and inaccurate information without context,” he said. “These programs were approved by the administration, Congress and the courts. From my perspective, it’s a sound legal process. Ironically, the documents released so far show the rigorous oversight our government uses.” He then got to the heart of the controversy. “I would much rather be here today debating this point than trying to explain how we failed to prevent another 9/11.”


NSA PROGRAM GOOD: GENERALLY CONSIDERED TO BE CONSTITUTIONAL ALTHOUGH THE SUPREME COURT HAS YET TO TACKLE THE LARGER QUESTIONS, IT APPEARS THAT PAST RULINGS WOULD GIVE ITS OKAY TO THE USE OF METADATA HELD BY A THIRD PARTY-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The US Supreme Court has not ruled on whether the Fourth Amendment (8) is violated by warrantless government acquisition of information about communications in a foreign intelligence investigation. In Katz v. United States, (9) the Court expressly reserved on the issue of whether a warrant was necessary for investigating national security matters. (10) In the Keith Case, (11) the Court held that the government must abide by the Fourth Amendment in domestic security matters, although the standards that apply there may be different from those that apply to "ordinary" crime. But Keith specifically cautioned that it was not speaking to matters involving foreign powers. The Supreme Court, however, has twice held that records voluntarily provided to a third party (such as telephony metadata) are not protected by the Fourth Amendment, because there is no longer any expectation of privacy in them. (12) Moreover, by its terms the Fourth Amendment protects only against "unreasonable" searches and seizures. The Supreme Court recognizes several types of special needs situations (e.g., high school drug screening; searches of persons and property entering the United States) where searches and seizures are reasonable even absent probable cause and a warrant. The need to protect national security seems to fit well within this doctrine, especially when there is reason for the government to act expeditiously. If the government does not collect the telephony metadata on an ongoing real-‐time basis for national security purposes, necessary data may not be available when needed. THE SUPREME COURT HAS RULED THAT COLLECTING METADATA DOESN'T VIOLATE THE CONSTITUTION-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] One aspect on which the government relied in attempting to calm the waters shortly after the disclosure, was that the collection related only to information about communications, and not its content. (46) Indeed, the Supreme Court has made such a distinction. In Smith v. Maryland (47) the Court found no Fourth Amendment violation where, without a warrant, the police attached a pen register (48) to a telephone line. One basis for the ruling was the distinction the majority drew between content of a phone message (entitled to Fourth Amendment protection), and its addressing information. But a vigorous dissent argued that addressing information is not without content because "it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life." (49)


BECAUSE THE DATA IS HELD BY A THIRD PARTY, THE NSA DATA COLLECTION DOESN'T VIOLATE THE 4th AMENDMENT-‐Sullum '13 [Jacob; Senior Editor; Why the NSA's Snooping Supposedly Complies With the Fourth Amendment; Reason; 7 June 2013; http://reason.com/blog/2013/06/07/why-‐the-‐nsas-‐snooping-‐supposedly-‐complie; retrieved 12 October 2013] The NSA's collection of telephone records from Verizon was based on Section 215 of the PATRIOT Act, which authorizes the director of the FBI or his designee to apply for a secret court order requiring production of "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." To obtain the order, the government need only "specify" that the records are part of such an investigation and that it is not targeting a U.S. citizen or legal resident "solely upon the basis of activities protected by the first amendment." Those requirements are considerably less demanding than the "probable cause" that the Fourth Amendment specifies as the standard for search warrants, and the resulting court orders can be much broader—in this case, seeking information on all phone calls, domestic and international, handled by Verizon (and it seems safe to assume that other carriers have received similar orders). But doesn't that sort of dragnet violate the constitutional rights of Verizon's customers? Not according to the Supreme Court, which has repeatedly said people have no Fourth Amendment rights in connection with records held by third parties, on the theory that they have voluntarily divulged that information and therefore no longer have a reasonable expectation that it will remain private. The level of protection accorded such records is therefore determined by statute. DATA ISN'T SAFE IN TECHNOLOGY TOOL NETWORKS BECAUSE IT IS HELD BY THIRD PARTIES-‐Sullum '13 [Jacob; Senior Editor; Why the NSA's Snooping Supposedly Complies With the Fourth Amendment; Reason; 7 June 2013; http://reason.com/blog/2013/06/07/why-‐the-‐nsas-‐snooping-‐supposedly-‐complie; retrieved 12 October 2013] The same appears to be true of the data collected by the NSA as part of its PRISM program, which reportedly involves direct access to the servers of Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple. The Washington Post reports that the NSA is "extracting audio and video chats, photographs, e-‐mails, documents, and connection logs that enable analysts to track foreign targets." The administration's defense of this program rests mainly on the claim that it targets foreigners, with collection of Americans' personal information merely "incidental." Director of National Intelligence James Clapper assures us that PRISM "cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States." I don't know about you, but I do not feel reassured upon hearing that Americans' privacy is compromised only by accident. In any case, whatever privacy protection Americans enjoy with respect to most of this online material, because it consists of information held by third parties, would be based on statute. And what Congress gives, Congress can take away. LOWER COURTS HAVE FOUND THE NSA PROGRAM AS CONSTITUTIONAL-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] A few lower courts have found provisions in the statute to be constitutional. (13) The FISA Court of Review determined that another part of the FISA is constitutional. In re Directives. (14) This redacted opinion dealt with the Protect America Act (PAA), a now-‐expired FISA amendment (15) that, absent a warrant, required communications service providers to assist the government in acquiring foreign intelligence targeted at third parties reasonably believed to be outside the United States, if the government determined that such an acquisition met certain criteria. (16) The issue posed was whether a warrantless government demand for information regarding international communications of US nationals whom the government believed might be agents of foreign powers violated the Fourth Amendment. The FISA Court ruled it did not.


LOWER COURTS HAVE HELD THAT THE NSA PROGRAM IS A REASONABLE PROGRAM-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The FISA Court of Review observed that the PAA provided that on submission of certification supported by appropriate affidavits and without a warrant, the Director of National Intelligence and the Attorney General (AG) could require such assistance, where there is probable cause to believe that this is directed against an agent of a foreign power. (17) The carrier argued that (1) there was no basis here for an exception to the Fourth Amendment's warrant requirement, and (2) even if there were a foreign intelligence exception, the surveillance was unreasonable and therefore violated the Fourth Amendment. On the first point, the court observed that the Supreme Court had recognized "comparable" exceptions in "special needs" cases when the government's purposes went beyond routine law enforcement and obtaining a warrant would "materially interfere with the accomplishment of that purpose." (18) The court espoused the view that the rationale of those cases applied to justify a "foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or agent of a foreign power reasonably believed to be located outside the United States." (19) On the reasonableness point, the court balanced interests using a sliding scale permitting greater intrusion for more important government interests. The court found the government interest here to be of the greatest magnitude. The carrier argued that the protections required in the PAA were inadequate because the PAA lacked (1) a particularity requirement, (2) a requirement of prior judicial review of whether the target is a foreign power, and (3) any plausible substitute for the omitted protections. But the court found that, combined with the PAA's protections, the matrix of safeguards imposed by the government (20) sufficed constitutionally. The court viewed the carrier's contention that this result would place too much power in the hands of the Executive branch as equivalent to contending that government officials will not act in good faith, and stated that so long as reasonableness procedures were in place there was no justification for assuming bad faith. The court recognized a requirement for (1) particularity; (2) a meaningful probable cause determination; (3) necessity; and (4) a duration not exceeding 90 days, and found that all these requirements had been met. Accordingly, the FISA Court of Review and a few lower courts have ruled that certain provisions in the FISA do not violate the Fourth Amendment, but the Supreme Court has yet to rule on the issue.


SECRECY GOOD: NECESSARY FOR SOME GOVERNMENT PROGRAMS SECRECY IS REQUIRED FOR THE GOVERNMENT TO COMPLETE MANY LEGITIMATE ACTIONS OF GOVERNMENT-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Jameel, let me focus on an important point you raise, which is that because surveillance is secret, we will often fail to learn when the government abuses its surveillance powers. The president claims to “welcome debate” about a program whose existence he kept secret while the government begins an investigation so that it can find and punish the leaker. How can democracy function when government keeps its programs secret? The question raises a real paradox. If government can keep secrets, then the public cannot hold it to account for its actions. But if government cannot keep secrets, then many programs — including highly desirable ones — are impossible. Many commentators seem to think that the answer is to keep secrecy to an absolute minimum, but this response is far too easy. One reason it is too easy is that it implies that secrecy can be exceptional. Government secrecy in fact is ubiquitous in a range of uncontroversial settings. To do its job and protect the public, the government must promise secrecy to a vast range of people — taxpayers, inventors, whistle-‐blowers, informers, hospital patients, foreign diplomats, entrepreneurs, contractors, data suppliers and many others. But that means that the basis of government action, which relies on information from these people, must be kept secret from the public. Economic policy is thought to be open, but we saw during the financial crisis that government officials needed to deceive the public about the health of the financial system to prevent self-‐fulfilling runs on banks. Then there are countless programs that are not secret but that are too complicated and numerous for the public to pay attention to — from E.P.A. regulation to quantitative easing. N.S.A. surveillance blends into this incessant, largely invisible background buzz of government activity; there is nothing exceptional about it.


OBJECTIONS TO THE SECRECY OF THE NSA PROGRAM ARE ACTUALLY OBJECTIONS TO OUR GOVERNMENT ITSELF OF WHICH NO ALTERNATIVES EXIST-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] And this puts even more pressure on the first prong of the paradox. If much (most?) of government activity remains invisible to the public, how can democratic accountability work? The answer, I think, is that political accountability in modern, large-‐scale democracies rarely takes place through informed public monitoring of specific government programs and policies. A few discrete issues (abortion, same-‐sex marriage) aside, and not counting political scandals, the public largely votes on the basis of its pocketbook and its feeling of security. The political consequences of war, terrorist attacks and economic distress — all of which are publicly observable — keep officeholders in line, but they retain vast discretion to choose among means. Because some government officials are ill-‐motivated and others are incompetent, government abuse is inevitable, but it is the price we pay for a government large and powerful enough to regulate 300 million people. Think of the N.S.A. program as the security equivalent of the Affordable Care Act (which will unavoidably involve government monitoring of people’s medical care on the basis of bureaucratic procedures that no one understands): in both cases, we must prepare ourselves for the inevitable abuses that accompany a large, unwieldy, hard-‐to-‐monitor program, in order to obtain the (promised) benefits. Objections to the secrecy of the N.S.A. program are thus really objections to our political system itself, and, for all its flaws, there are no obviously superior alternatives.


SECRECY GOOD: SECRECY CRITICAL TO THE EFFECTIVENESS OF THE NSA PROGRAM FULL PUBLIC DISCLOSURE ON THE META DATA ACTIVITIES WOULDN'T HAVE BEEN POSSIBLE WITHOUT DIMINISHING THE EFFECTIVENESS OF THE PROGRAM-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] In the case of the N.S.A. program, I am again unsure whether it should be categorized as a policy or a technical means of protecting the U.S. from its enemies. Whichever the case, I am sympathetic to those who believe that the general existence of a program of analyzing global metadata should have been made public. But I doubt meaningful democratic debate about the program would have been possible unless details were given, so that people actually understood what they were debating about. Details like who is targeted, and why, and on the basis of what evidence; details like what abuses might take place, and how they are corrected. Details about the involvement of private sector companies. Retrospective assessments of whether particular acts of surveillance were justified. But once the N.S.A. reveals the details of the policy, its effectiveness diminishes as targets learn how to evade it. I wish there were a solution to this problem but I don’t see it.


CURBING NSA BAD: WILL BRING ABOUT TERRORIST ATTACKS TO SCALE BACK THE NSA EFFORTS ULTIMATELY MEANS DIMINISHING THE MEANS OF STOPPING FUTURE ATTACKS-‐Foust '13 [Joshua; Former Analyst at the Defense Intelligence Agency; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] At a political level, too, the effectiveness argument is vitally important. Director of National Intelligence James Clapper has called the leaks “literally gut-‐wrenching,” not because he is an evil man who loves violating privacy laws but because he seems to genuinely believe those exposed programs work. The Senate Intelligence Committee chairwoman, Diane Feinstein, too, has claimed that the N.S.A. effectively disrupts terror attacks. Last week’s exposure of the N.S.A.’s surveillance programs does not address whether they were effective or not. But they exist because the people who created and oversee it believe they are effective. If we’re to end those programs, we should grapple with the possibility that we’re also losing the means to prevent future attacks. CUBING NSA PROGRAMS WOULD LEAVE US WITH SIGNIFICANTLY LESS TOOLS TO FIGHT TERRORISM-‐Rogers '13 [Mike; Representative; Comments by lawmakers during debate on cutting off NSA surveillance funds; Associated Press via Fox News; 24 July 2013; http://www.foxnews.com/us/2013/07/24/comments-‐by-‐lawmakers-‐during-‐debate-‐on-‐cutting-‐off-‐nsa-‐surveillance-‐funds/; retrieved 12 October 2013] "Have 12 years gone by and our memories faded so badly we forgot what happened on Sept. 11? This (amendment) turns off a very specific program. ... Passing this amendment takes us back to Sept. 10 (2001). And afterward we said, 'Wow, there is a seam, a gap. Somebody leading up to the Sept. 11 attacks, a terrorist overseas, called a terrorist living among us in the United States, and we missed it because we didn't have this capability. What if we had caught it? But the good news is we don't have to what if. It's not theoretical. Fifty-‐four times this and the other program stopped and thwarted terrorist attacks both here and in Europe, saving real lives." SCALING THE NSA PROGRAM TURNS OFF THE PROTECTIONS THAT HELP FIGHT TERROR ATTACKS-‐Ruppersberger '13 [C.A. Dutch; Representative; Comments by lawmakers during debate on cutting off NSA surveillance funds; Associated Press via Fox News; 24 July 2013; http://www.foxnews.com/us/2013/07/24/comments-‐by-‐lawmakers-‐during-‐debate-‐on-‐cutting-‐off-‐nsa-‐surveillance-‐funds/; retrieved 12 October 2013] "The Amash amendment is an on/off switch for Section 215 of the Patriot Act. It will have an immediate operational impact and our country will be more vulnerable to terrorist attacks. This authority has helped prevent terrorist attacks on U.S. soil. A planned attack on the New York subway system was stopped because of Section 215. But if the Amash amendment passes, this authority will end. This amendment goes too far, too fast."


TAKING AWAY THE POWERS OF THE NSA COULD RISK TERROR ATTACKS OR OTHER CHAOS-‐Sasso '13 [Brendan; Staff Writer; NSA chief pleads for public's help amid push for spying restrictions; The Hill; 25 September 2013; http://thehill.com/blogs/hillicon-‐valley/technology/324499-‐nsa-‐chief-‐pleads-‐for-‐publics-‐help-‐as-‐congress-‐eyes-‐restrictions#ixzz2fvTcaQFg; retrieved 12 October 2013] Gen. Keith Alexander, the director of the National Security Agency, called on the public Wednesday to help defend his agency's powers as Congress mulls restrictions aimed at protecting privacy. "We need your help. We need to get these facts out," Alexander said during a cybersecurity summit at the National Press Club. "We need our nation to understand why we need these tools." He warned that if Congress hampers the NSA's ability to gather information, it could allow for terrorist attacks in the United States similar to last week's massacre in a mall in Nairobi, Kenya. "If you take those [surveillance powers] away, think about the last week and what will happen in the future," he said. "If you think it's bad now, wait until you get some of those things that happened in Nairobi." He said the United States is fortunate to be able to have "esoteric" discussions because the NSA and other agencies are effective in stopping terrorists.


NSA GOOD: LESS LIKELY TO ABUSE RIGHTS THAN OTHER AGENCIES NSA IS MUCH LESS LIKELY TO VIOLATE INDIVIDUAL RIGHTS THAN OTHER DOMESTIC SECURITY AND POLICING AGENCIES-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] As much as the conspiratorial left and right would like to believe that big super-‐secret bureaucracies like the NSA are easily capable of violating our constitutional rights, the truth is surely the other way round: Civil liberties are much more likely to be in danger when smaller organizations—the Federal Bureau of Investigation, the CIA, or the Secret Service—with specific, highly selective targeting requirements, abuse their surveillance authority or, in the case of Langley with its drones, their war-‐related authority. And it’s doubtful that the national-‐security institutions since 9/11 have engaged in practices that fundamentally challenge anyone’s constitutional rights—the possible big exceptions would be the FBI’s counterterrorist practices against militant Muslim Americans that have occasionally tiptoed close to entrapment and the bureau’s extensive use of national-‐security letters that can allow curious minds to wander freely through the personal lives of targeted individuals. If the government sensibly gives the Secret Service the capacity to intercept cellular telephone calls as a means to protect preemptively American VIPs, its officers may well monitor the salacious conversations of Washington celebrities or sexually adventurous co-‐eds at the Naval Academy in Annapolis, Maryland. Adults are always required to ensure that such practices don’t become anything more than bad-‐boy behavior. All organizations run amok unless adults are present. THE USE OF DATA SWEEPS BY THE NSA ARE FAR BETTER THAN OTHER POTENTIAL LAWS THAT THREATEN CIVIL LIBERTIES TO FIGHT TERRORISM-‐Wall Street Journal '13 [Thank You for Data-‐Mining; Wall Street Journal; 7 June 2013; http://online.wsj.com/article/SB10001424127887324299104578529373994191586.html?mod=WSJ_Opinion_LEADTop; retrieved 12 October 2013] The critics nonetheless say the NSA program is a violation of privacy, or illegal, or unconstitutional, or all of the above. But nobody's civil liberties are violated by tech companies or banks that constantly run the same kinds of data analysis. We bow to no one in our desire to limit government power, but data-‐mining is less intrusive on individuals than routine airport security. The data sweep is worth it if it prevents terror attacks that would lead politicians to endorse far greater harm to civil liberties.


NSA PROGRAM NOT UNIQUE: GOVERNMENT ALWAYS TRACKED FINANCIAL INFORMATION EVEN BEFORE THE NSA EXPANDED TO SOCIAL NETWORKING, IT ALREADY KEPT CLOSE TABS ON FINANCIAL TRANSACTIONS-‐Platzer '13 [Joerg; Crypto Currency Consulting Group; 'US govt benefits most from NSA leak as people now know it has surveillance weapon;' Russia Today; 25 June 2013; http://rt.com/op-‐edge/nsa-‐leak-‐surveillance-‐crypto-‐229/; retrieved 6 October 2013] RT: When we talked about the Bitcoin that the US was very concerned it was done on an anonymous basis – people could do transactions, for e.g. in the criminal underworld, where it’s drugs or weapons, etc. So, the Bitcoin and other crypto economic methods are being targeted? JP: They will be targeted of course. In the financial world everyone knows that there is total surveillance already. What we just found out about Google, Facebook, mail, postings is something that in the financial world has been completely clear for many years now. Everyone knows that every transaction will be monitored, documented and if at all suspicious – be reported to the government.


A/T: DUE TO THE SECRECY, WE DON’T EVEN KNOW THE EXTENT OF THE ABUSE HIGHLY UNLIKELY THAT COVERT AGENCIES ARE KEEPING BIG SECRETS ABOUT SPYING-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] What’s more, big secrets are hard to keep. The CIA has always loved to chant that its great successes go unheralded—a bigger fib has rarely been accepted by so many. Little intelligence victories can stay buried for years; big intelligence successes bring too much pride and create too much paper to remain unknown. Internal CIA documents on covert actions since the late 1940s and external press and scholarly writing on them pair up pretty closely. As a rule, journalists and academics, who seldom have a feel for classified government service, are less accurate than the working-‐level internal writing, which can often be skeptical, if not scathing, about what the CIA has actually achieved. Black-‐art, let alone illegal, conspiracies are rare in the CIA’s history. Exploding cigars and Predator drones have never defined the agency’s ethos. For those with even a minimal knowledge of the NSA, snooping on Americans isn’t what the NSA has been built to do. The agency would probably break down bureaucratically if it attempted to shift gears from foreign observation to domestic surveillance in any threatening way, and Congress and the press would detect the fallout.


A/T: NSA PROGRAM = ABUSE POTENTIAL OF ABUSE IS NOT A REASON TO ABANDON THE NSA PROGRAM-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Jameel, I don’t see the need for systemic reform, nor do I see an offense to the Constitution. Indeed, I don’t even understand the nature of the objection to the National Security Agency programs. Exactly what harm did they cause? Two possibilities emerge from the current public discussion. Objections to this surveillance are theoretical, and the mere potential for abuse isn't a good reason to shut down a program. If it were, we would have no government. NSA “ABUSE” HAS MOSTLY BEEN IN MISTAKES AND HAS BEEN CORRECTED AND THE RESPONSIBLE PARTIES PUNISHED-‐Sasso '13 [Brendan; Staff Writer; NSA chief pleads for public's help amid push for spying restrictions; The Hill; 25 September 2013; http://thehill.com/blogs/hillicon-‐valley/technology/324499-‐nsa-‐chief-‐pleads-‐for-‐publics-‐help-‐as-‐congress-‐eyes-‐restrictions#ixzz2fvTcaQFg; retrieved 12 October 2013] He said that under the NSA's overseas executive order authority, the agency has identified only 12 incidents in which analysts purposefully violated rules. He said all 12 analysts were punished, and most opted to retire. Alexander said most of the violations under other authorities were unintentional and often did not harm anyone's privacy. He said many of the violations involved an analyst accidentally typing a wrong number. He said all violations are reported to the Foreign Intelligence Surveillance Court, Congress, the Justice Department and other agencies, and that all illegally collected data is deleted. "Some of these, as you've read and you've seen from the court's opinions, would make you say, 'Wow, I'd really like not to have this one get out.' But we will do the right thing in every case," Alexander said.


A/T: THE NSA CAN READ OUR EMAILS OR LISTEN TO OUR CALLS! THE CHANCE OF OUR EMAILS BEING READ IN THE NSA PROGRAM IS UNBELIEVABLE SMALL-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Even so, I am exaggerating the nature of the intrusion. The chance that human beings in government will actually read our e-‐mails or check our phone records is infinitesimal (though I can understand that organizations like the A.C.L.U. that have a legitimate interest in communicating with potential government targets may be more vulnerable than the rest of us). Mostly all we are doing is making our information available to a computer algorithm, which is unlikely to laugh at our infirmities or gossip about our relationships. NSA CAN'T TAP INTO PHONES OR EMAIL, DESPITE REPORTS-‐Miller '13 [S.A.; NSA chief testifies that ‘dozens’ of terror attacks have been stopped using phone-‐data surveillance; New York Post; 13 June 2013; http://nypost.com/2013/06/13/nsa-‐chief-‐testifies-‐that-‐dozens-‐of-‐terror-‐attacks-‐have-‐been-‐stopped-‐using-‐phone-‐data-‐surveillance/; retrieved 12 October 2013] Asked by Sen. Patrick Leahy (D-‐Vt.) how many attacks have been thwarted by phone tracking and Internet surveillance, Alexander said: “It’s dozens of terrorist events that these have helped. Both here and abroad, in disrupting, or contributing to the disruption of terrorist attacks.” He also said leaker Edward Snowden lied when he claimed that by using his NSA access he could “tap into virtually any American’s phone or e-‐mail.” “False,” Alexander said. “I know of no way to do that.”


A/T: SURVEILLANCE HAS SCALED FREE EXPRESSION NO EVIDENCE EXISTS THAT THE NSA PROGRAM HAS SCALED BACK THE PUBLIC EXERCISING THEIR RIGHTS TO FREE SPEECH-‐Posner '13 [Eric; Professor of Law at the University of Chicago Law School; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] This brings me to another valuable point you made, which is that when people believe that the government exercises surveillance, they become reluctant to exercise democratic freedoms. This is a textbook objection to surveillance, I agree, but it also is another objection that I would place under “theoretical” rather than real. Is there any evidence that over the last 12 years, during the flowering of the so-‐called surveillance state, Americans have become less politically active? More worried about government suppression of dissent? Less willing to listen to opposing voices? All the evidence points in the opposite direction. Views from the extreme ends of the political spectrum are far more accessible today than they were in the past. It is infinitely easier to get the Al Qaeda perspective today — one just does a Google search — than it was to learn the Soviet perspective 40 years ago, which would have required one to travel to one of the very small number of communist bookstores around the country. It is hard to think of another period so full of robust political debate since the late 1960s — another era of government surveillance.


CON NSA PROGRAM BAD: CONSTITUTES A MASSIVE SPY PROGRAM NSA HAS ACCES TO 1.7 BILLION EMAILS EVERY DAY-‐Electronic Frontier Foundation '13 [How the NSA's Domestic Spying Program Works; EFF; 2013; https://www.eff.org/nsa-‐spying/how-‐it-‐works; retrieved 6 October 2013] Second, the same telecommunications companies also allowed the NSA to install sophisticated communications surveillance equipment in secret rooms at key telecommunications facilities around the country. This equipment gave the NSA unfettered access to large streams of domestic and international communications in real time—what amounted to at least 1.7 billion emails a day, according to the Washington Post. The NSA could then data mine and analyze this traffic for suspicious key words, patterns and connections. Again, all of this was done without a warrant in violation of federal law and the Constitution. THE NSA PROGRAM IS ONE OF THE MOST AMBITIOUS SURVEILLANCE EFFORTS EVER UNDERTAKEN BY A GOVERNMENT AGAINST ITS OWN CITIZENS AND IS TOO PERMISSIVE-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] The revelations about the National Security Agency’s domestic surveillance activities supply further evidence, if any were needed, that our surveillance laws are too permissive, our privacy safeguards too weak, and our oversight mechanisms utterly dysfunctional. The Guardian revealed on Wednesday that the government has directed Verizon Business Network Services to hand over an array of sensitive information about every domestic and international phone call made by its customers in the United States over a three-‐month period. The directive, sanctioned by the secretive court that oversees government surveillance in some national security cases, requires Verizon to tell the government who made each call, whom they called, when they made the call, how long the call lasted, and (maybe) where the parties to the call were located. Reportedly, the N.S.A. has been serving all of the major telecommunications companies with similar “metadata” directives for at least seven years. Whatever else might be said about it, the program surely constitutes one of the most ambitious surveillance efforts ever undertaken by a democratic government against its own citizens.


NSA PROGRAM BAD: PRONE TO ABUSE THE EXPANDED SURVEILLANCE POWER IS PRONE TO ABUSE AND MANIPULATION-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] Should Americans fear the possible abuse of the intercept power of the National Security Agency at Fort Meade, Maryland? Absolutely. In the midst of the unfolding scandal at the IRS, we understand that bureaucracies are callous creatures, capable of manipulation. In addition to deliberate misuse, closed intelligence agencies can make mistakes in surveilling legitimate targets, causing mountains of trouble. Consider Muslim names. Because of their commonness and the lack of standardized transliteration, they can befuddle scholars, let alone intelligence analysts, who seldom have fluency in Islamic languages. Although one is hard pressed to think of a case since 9/11 in which mistaken identity, or a willful or unintentional leak of intercept intelligence, immiserated an American citizen, these things can happen. NSA civilian employees, soldiers, FBI agents, CIA case officers, prosecutors, and our elected officials are not always angels. Even though encryption is mathematically easier to accomplish than decryption, the potential for abuse of digital communication is always there—all the more since few Americans resort to encryption of their everyday emails. ALTHOUGH PRIVACY SHOULDN'T TRUMP EVERYTHING; THE NSA PROGRAM IS TOO BROAD-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Needless to say, the right of privacy shouldn’t trump everything. National security (and other government interests) may justify some narrow intrusions on privacy in some circumstances. The problem with the programs disclosed over last week is that they are so astonishingly broad.


NSA PROGRAM BAD: WE MIGHT NOT EVEN KNOW THE EXTENT OF THE ABUSE NSA MAY BE DOING EVEN MORE THAN GENERALLY REPORTED-‐Boehm '13 [Eric; NSA director admits to exaggerating benefits of mass surveillance; Watchdog; 4 October 2013; http://watchdog.org/109138/nsa-‐director-‐admits-‐to-‐exaggerating-‐the-‐benefits-‐of-‐mass-‐surveillance/; retrieved retrieved 6 October 2013] In response to a question about using NSA technology to track cell phones — another clear violation of privacy — Alexander said the agency had tested their ability to do so on a few occasions. However, he said, it did not actively employ the technology allowing them to do so. While the NSA does not use such information directly, Alexander indicated they at times share data with the Federal Bureau of Investigation, if probable cause has been established. Wyden said that answer was not sufficient. “After years of stonewalling on whether the government has ever tracked or planned to track the location of law abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” he said, according to a report on the hearing from The Japan Times.


NSA PROGRAM BAD: RATCHET EFFECT WILL LEAD TO MASSIVE CURBING OF CIVIL LIBERTIES THE NSA LAWS ARE PART OF A RATCHET EFFECT OF ANTI-‐TERRORISM LAWS THAT ULTIMATELY CURB CIVIL LIBERTIES AND RIGHTS-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] The ratchet effect is a unidirectional change in some legal variable that can become entrenched over time, setting in motion a process that can then repeat itself indefinitely.[1] For example, some scholars argued that anti-‐terrorism laws tend to erode civil liberties and establish a new baseline of legal “normalcy” from which further extraordinary measures spring in future crises.[2] This process is consistent with the ratchet effect, for it suggests a “stickiness” in anti-‐terrorism laws that makes it harder to scale back or reverse their provisions. Each new baseline of legal normalcy represents a new launching pad for additional future anti-‐terrorism measures. There is not universal consensus on whether or not the ratchet effect is real, nor on how powerful it may be. Posner and Vermeule call ratchet effect explanations “methodologically suspect.”[3] They note that accounts of the ratchet effect often ring hollow, for they “fail to supply an explanation of such a process…and if there is such a mechanism [to cause the ratchet effect], it is not clear that the resulting ratchet process is bad.”[4] I argue that the recent controversy surrounding the NSA’s intelligence collection efforts underscores the relevance of the ratchet effect to scholarly discussions of anti-‐terrorism laws. I do not seek to prove or disprove that the recent NSA surveillance controversy illustrates the ratchet effect at work, nor do I debate the potential strength or weakness of the ratchet effect as an explanation for the staying power or growth of anti-‐terrorism laws. As Sensenbrenner’s recent comments make clear, part of the original intent of the USA PATRIOT Act appears to have been lost in interpretation. It is reasonable to suggest that future anti-‐terrorism laws may suffer a similar fate. Scholars can therefore benefit from exploring how the USA PATRIOT Act took shape and evolved, and why anti-‐terrorism laws can be difficult to unwind. GOVERNMENT HAS A HISTORY OF USING TOOLS FOR PURPOSES OTHER THAN THEIR STATED OBJECTIVE, MAKING THE NSA PROGRAM MORE DANGEROUS-‐Sullum '13 [Jacob; Senior Editor; How Mission Creep Makes NSA Surveillance Creepier; Reason; 12 June 2013; http://reason.com/blog/2013/06/12/how-‐mission-‐creep-‐makes-‐nsa-‐surveillance; retrieved 12 October 2013] In its story about the ACLU lawsuit challenging the NSA's mass collection of phone records, the Times notes there is precedent for using powers justified by the threat of terrorism to investigate more mundane forms of crime: "An expanded search warrant authority justified by the Sept. 11 attacks, for example, was used far more often in routine investigations like suspected drug, fraud and tax offenses." Have a look.


NSA LAWS ARE EVIDENCE THAT THE ANTI-‐TERRORIST LAWS EXPAND AND RATCHET UP OVER TIME-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] The recent NSA surveillance controversy highlights the relevance of the ratchet effect to broader discussions of anti-‐terrorism laws. The ratchet effect can affect anti-‐terrorism laws generally, entrenching and expanding them over time and potentially leading to those laws being interpreted in unexpected and undesirable ways. The USA PATRIOT Act, developed in the aftermath of the 9/11 terrorist attacks, has been difficult to scale back since then, and has now been interpreted in a way that at least one of the Act’s authors did not intend. This unintended interpretation of the Act led, in part, to today’s NSA surveillance controversy. Scholars can benefit from future explorations of the ratchet effect, which may help illuminate further why anti-‐terrorism laws remain in place and how their influence can expand in unanticipated ways. BOTTOM LINE: IS THERE A BETTER WAY TO DO THIS THAT DOESN'T SACRIFICE RIGHTS?-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] An editorial in the New York Times argued (correctly, in this author's opinion): "The issue is not whether the government should vigorously pursue terrorists. The question is whether the security goals can be achieved by less-‐intrusive or sweeping means, without trampling on freedoms and basic rights." (53) GOVERNMENT HAS A HISTORY OF USING POWERFUL TOOLS BEYOND THEIR ORIGINAL PURPOSE, MAKING THE NSA PROGRAM RISKY-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] Moreover, while use of the database is now limited to terrorism, history has shown that new government powers granted for one purpose often end up applied to others. An expanded search warrant authority justified by the Sept. 11 attacks, for example, was used far more often in routine investigations like suspected drug, fraud and tax offenses. MISSION CREEP IS LIKELY IN THE CASES OF DATA HELD BY THIRD PARTIES, LIKE THE NSA METADATA SCANDAL-‐Sullum '13 [Jacob; Senior Editor; How Mission Creep Makes NSA Surveillance Creepier; Reason; 12 June 2013; http://reason.com/blog/2013/06/12/how-‐mission-‐creep-‐makes-‐nsa-‐surveillance; retrieved 12 October 2013] Mission creep seems especially likely in the case of phone records and other data held by third parties, which according to the Supreme Court can be perused by the government without raising any Fourth Amendment issues. That means such information, which includes cellphone geolocation data as well as sensitive material stored on remote servers, gets only as much privacy protection as Congress decides to give it. Notably, a majority of the Pew respondents (52 percent) said the government should not "monitor everyone's email and other online activities if officials say this might prevent future terrorist attacks." Presumably there would be even more opposition to such surveillance if the goal were fighting crime in general and if people understood how vulnerable their online privacy is under current law.


NSA PROGRAM BAD: METADATA COLLECTION VIOLATES CIVIL LIBERTIES METADATA CAN REVEAL INTIMATE, PERSONAL THINGS AND THUS ITS COLLECTION COULD VIOLATE PERSONAL RIGHTS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] In an analogous situation, five justices in United States v. Jones (50) found that the warrantless attachment of a GPS device to a motor vehicle, left in place for 28 days, violated the Fourth Amendment because, for most crimes, society's expectation is that government and others would not secretly monitor every single movement of a car for a very long period. Justice Sotomayor noted that even for short-‐term monitoring, the unique attributes of GPS surveillance generated a precise, comprehensive record of a person's public movements that reflected great detail about various associations. She opined that awareness that the government may be watching chills associational and expressive freedoms, and was concerned about entrusting to the Executive, in the absence of oversight, a tool so amenable to misuse. She quoted from a list of revelations set forth in People v. Weaver, (51) in which New York's highest court ruled that the warrantless attachment to defendant's motor vehicle of a GPS device, left in place for 65 days, violated a New York constitutional provision similar to the Fourth Amendment: trips to a psychiatrist, a plastic surgeon, an abortion clinic, an AIDS treatment center, a strip club, a criminal defense attorney, a by-‐the-‐hour motel, a union meeting, a house of worship, and a gay bar. These revelations through GPS devices in Jones and Weaver would just as easily (indeed, perhaps more easily) come to light through telephony metadata. Thus, there is a case to be made for the proposition that collecting this mass of telephony metadata is highly intrusive-‐-‐and that abuse of the database would be highly injurious-‐-‐to a multitude of people.


NSA PROGRAM BAD: VIOLATES THE CONSTITUTION COLLECTION OF METADATA VIOLATES THE 1st AND 4th AMENDMENTS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The theme that addressing information is indeed content (and therefore entitled to Fourth Amendment protection) was echoed in an ACLU suit brought against the government on June 11, 2013. The Complaint alleged that this massive data collection "gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations." (52) The ACLU claims that this collection exceeds the scope of [section] 1861 and violates the First and Fourth Amendments.


NSA PROGRAM BAD: CONGRESS NEVER APPROVED THIS SPECIFIC PROGRAM CONGRESS HAS NEVER DIRECTLY AUTHORIZED THE COLLECTION OF CALL METADATA-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] The effort began as part of the Bush administration’s post-‐Sept. 11 programs of surveillance without court approval, which has continued since 2006 with the blessing of a national security court. The court has secretly ruled that bulk surveillance is authorized by a section of the Patriot Act that allows the F.B.I. to obtain “business records” relevant to a counterterrorism investigation. Congress never openly voted to authorize the collection of logs of hundreds of millions of domestic calls, but some lawmakers were secretly briefed. Some members of Congress have backed the program as a useful counterterrorism tool; others have denounced it.


NSA PROGRAM BAD: FAR-‐REACHING LAWS ARE HARD TO REPEAL MUST CURB LAWS, LIKE THOSE PASSED IN THE WAKE OF 9/11, TO MAKE SURE THAT WE DON'T CREATE LAWS THAT ARE DIFFICULT TO REPEAL LATER-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] After a terrorist attack, creating laws quickly to contend with terrorism is reasonable and appropriate. It is equally reasonable and appropriate, however, to build hedges into those laws to guard against unsound initial judgments or assumptions. The set of policy recommendations below provides a starting point to mitigate the potential impact of the ratchet effect upon anti-‐terrorism laws. Taking these steps does not guarantee that anti-‐terrorism laws will be easy to scale-‐back or reverse, nor can it completely prevent unintentional interpretations of anti-‐terrorism laws. But these recommendations can increase policymakers’ awareness of the ratchet effect, which can lead to more thoughtfully crafted and effective anti-‐terrorism laws. First, initial changes may be difficult to undo. The early legislative moves after a terrorist attack are pivotal. They set the tone for future, related legislation. Moreover, as argued earlier in this article, changing laws can be difficult under normal circumstances, let alone when the laws concern an issue as serious as terrorism. It is vital for leaders to get the beginning stages of a nation’s anti-‐terrorism legislation right; a bad start can lead to a pattern of subsequent bad laws. This is not a call for perfection, but a plea for greater awareness of this reality and for leaders to use this awareness when drafting laws.


NSA PROGRAM BAD: BAD COUNTERTERRORISM TOOL MASSIVE COLLECTION OF DATA ISN’T AN EFFECTIVE STRATEGY FOR COMBATTING TERRORISTS-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] It’s also worth remembering that the intelligence community’s biggest challenge has never been collecting information; the biggest challenge has always been making sense of it. Launching new programs to collect more information can be a good way to pad the pockets of defense contractors and data-‐miners, but, as many have noted, it isn’t usually a good way to identify terrorist threats. The analogy is now a bit threadbare, but it’s still useful: You don’t find needles by building bigger haystacks. After the NSA launched the warrantless wiretapping program, FBI agents repeatedly complained that they were drowning in useless information. (Eric Lichtblau wrote: “The torrent of tips led [the FBI] to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.”). One of the 9/11 Commission’s most important observations was that the intelligence community had information in the summer of 2001 that could have allowed it to prevent the 9/11 attacks. The problem wasn’t that it lacked information, but that it didn’t understand the information it had.


NSA PROGRAM BAD: PUBLIC BECOMING CYNICAL ABOUT THE PROGRAM AMERICANS ARE SLOWLY MOVING TOWARD CYNICISM CONCERNING THE NSA PROGRAM-‐Sullum '13 [Jacob; Senior Editor; Thanks to NSA Surveillance, Americans Are More Worried About Civil Liberties Than Terrorism; Reason; 1 August 2013; http://reason.com/blog/2013/08/01/thanks-‐to-‐nsa-‐surveillance-‐americans-‐are; retrieved 12 October 2013] Last week's narrow House vote against the Amash Amendment, which was aimed at stopping the National Security Agency's mass collection of Americans' phone records, reflects a narrow split among the general public. The vote was 217 to 205, meaning that 49 percent of the legislators who participated wanted to end the program, while 51 percent wanted it to continue. Similarly, the latest Pew Research Center survey, conducted over the weekend, found that 44 percent of Americans oppose "the government’s collection of telephone and internet data as part of anti-‐terrorism efforts," while 50 percent support it; the rest were undecided or declined to answer. A month ago in the same survey, 48 percent were in favor and 47 percent were opposed. While that shift suggests a slight increase in support for NSA surveillance, the new survey also found that 47 percent of Americans worry that counterterrorism policies "have gone too far in restricting civil liberties," compared to 35 percent who worry that they "have not gone far enough to protect the country." According to Pew, "This is the first time in Pew Research polling that more have expressed concern over civil liberties than protection from terrorism since the question was first asked in 2004." THE PUBLIC HAS SIGNIFICANT CONCERN ABOUT GOVERNMENT POWER RELATED TO TERRORISM-‐Sullum '13 [Jacob; Senior Editor; Thanks to NSA Surveillance, Americans Are More Worried About Civil Liberties Than Terrorism; Reason; 1 August 2013; http://reason.com/blog/2013/08/01/thanks-‐to-‐nsa-‐surveillance-‐americans-‐are; retrieved 12 October 2013] It is no wonder that concern about civil liberties is rising when you consider some of the other opinions endorsed by respondents. For instance, 56 percent said the federal courts "do not provide adequate limits on what government can collect"; 70 percent said "the government uses [these] data for purposes other than terrorism investigations"; 63 percent thought the government is reading email and listening to calls, rather than just looking at metadata; and 56 percent said "the government keeps too much information about its anti-‐terrorism programs secret from the public." Given the level of distrust reflected in these numbers, it is surprising that half the respondents still expressed overall support for "collection of telephone and internet data" in the name of fighting terrorism.


SINCE THE DATA IS NOT USEFUL FOR FIGHTING TERRORISM, THE PUBLIC WILL GROW INCREASINGLY CRITICAL OF COLLECTION OF METADATA-‐Sullum '13 [Jacob; Senior Editor; Thanks to NSA Surveillance, Americans Are More Worried About Civil Liberties Than Terrorism; Reason; 1 August 2013; http://reason.com/blog/2013/08/01/thanks-‐to-‐nsa-‐surveillance-‐americans-‐are; retrieved 12 October 2013] Although the most recent Pew survey did not ask specifically about the indiscriminate collection of telephone metadata, a month ago 56 percent of respondents said they were OK with "secret court orders to track telephone call records of millions of Americans in an effort to investigate terrorism," while 41 percent disapproved. I suspect the latter group will grow as it becomes clear that the government has greatly exaggerated the usefulness of the phone-‐record database in preventing terrorist attacks. "I have not seen any indication that the bulk phone records program yielded any unique intelligence that was not also available to the government through less intrusive means," Sen. Ron Wyden (D-‐Ore), said in a speech last week. “If this program is not effective," Senate Judiciary Committee Chairman Patrick Leahy (D-‐Vt.) said at a hearing yesterday, " it has to end. So far, I’m not convinced by what I've seen." He said Obama administration officials has shown him a classified list of "terrorist events" supposedly prevented by NSA surveillance, and it did not support claims that "dozens or even several terrorist plots" had been thwarted thanks to the phone record dragnet. The New York Times notes that the 54 successes intelligence officials originally attributed partly to the database have become 13 investigations to which the database "contributed." That phrasing leaves open the possibility that the database was not actually necessary, especially since the same information could have been obtained through court orders aimed at particular targets. SUPPORT FOR NSA PROGRAM WOULD DROP IF PUT INTO CONTEXT OF MISSION CREEP-‐Sullum '13 [Jacob; Senior Editor; How Mission Creep Makes NSA Surveillance Creepier; Reason; 12 June 2013; http://reason.com/blog/2013/06/12/how-‐mission-‐creep-‐makes-‐nsa-‐surveillance; retrieved 12 October 2013] Writing in The New York Times, U.C.-‐Berkeley sociologist James B. Rule notes that most Americans seem untroubled by recent revelations about the NSA's domestic snooping. In a Pew Research Center poll, for example, 56 percent of respondents deemed it "acceptable" that "the National Security Agency has been getting secret court orders to track telephone call records of millions of Americans in an effort to investigate terrorism." Rule thinks they might reconsider if they contemplated the likelihood of mission creep: Government planners have apparently invested billions of dollars to develop these new surveillance capabilities. Given the open-‐ended nature of this country’s relentless campaign against terrorism and other declared evils, it would be naïve to imagine that the state’s grip on "big data," achieved at such cost, would be allowed to atrophy in the foreseeable future. It is far more likely that new uses—and, inevitably, abuses—will be found for these surveillance techniques.... The promise that one especially egregious sort of crime (terrorism) can be predicted and stopped can tempt us to apply these capabilities to more familiar sorts of troublesome behavior. Imagine that analysis of telecommunications data reliably identified failure to report taxable income. Who could object to exploiting this unobtrusive investigative tool, if the payoff were a vast fiscal windfall and the elimination of tax evasion? Or suppose we find telecommunications patterns that indicate the likelihood of child abuse or neglect. What lawmaker could resist demands to "do everything possible" to act on such intelligence—either to apprehend the guilty or forestall the crime.


NSA PROGRAM BAD: TOO EXPENSIVE A BETTER QUESTION ABOUT THE PRISM PROJECT IS ITS FINANCIAL COST, NOT ITS IMPACT ON CIVIL LIBERTIES-‐Gerecht '13 [Reuel Marc; Senior Fellow at the Foundation for Defense of Democracies; The Costs and Benefits of the NSA; The Weekly Standard; 24 June 2013; http://www.weeklystandard.com/print/articles/costs-‐and-‐benefits-‐nsa_735246.html; retrieved 6 October 2013] This is the better question provoked by Snowden’s paranoia: How much money has Congress spent on these data-‐collection projects? We are told, both by administration officials and by congressmen, that the NSA’s PRISM project, marrying Ft. Meade with Silicon Valley, has stopped numerous terrorist attacks. Perhaps. But it would behoove us all to question that assertion. Americans love their high-‐tech toys. Sometimes the cost is worth it: America’s intelligence-‐collecting satellites, though very expensive, have provided the country with much more valuable information than anything collected by the CIA’s spies. The administration would not be compromising the methods of PRISM if it told the citizenry which attacks were thwarted. Outside observers can probably reverse engineer the cases to see whether PRISM’s role was essential. NSA SURVEILLANCE PROGRAMS ARE OBSCENELY OUTRAGEOUS-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] A public outcry ensued, with some loudly opposing the NSA’s surveillance programs and others forcefully defending them. The New York Times condemned the NSA surveillance in an editorial and the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the constitutionality of the NSA telephone call metadata collection program. Former Vice President Al Gore called the surveillance “obscenely outrageous” on Twitter.


THE NSA PROGRAMS ARE REALLY EXPENSIVE, DESPITE EVIDENCE EXISTING THAT THEY ARE LITTLE MORE THAN GHOST CHASING-‐Mueller and Stewart '13 [John, Professor of Political Science at Ohio State University, and Mark, Professor at the University of Newcastle; 3 Questions About NSA Surveillance; The Chronicle; 13 June 2013; http://chronicle.com/blogs/conversation/2013/06/13/3-‐questions-‐about-‐nsa-‐surveillance/; retrieved 6 October 2013] After 9/11, U.S. intelligence concluded that there were thousands of Al Qaeda operatives in the country. That perspective impelled a vast and hasty increase in spending on intelligence and policing, and at least 263 military and intelligence agencies have been created or reorganized. For its part, the Department of Homeland Security has set up a vast array of “fusion centers” to police terrorism, but is unable to determine how much they cost. It estimates that somewhere between $289-‐million and $1.4-‐billion were awarded to them from 2003 to 2010—a gap of over a billion dollars that is impressive even by Washington standards. As it turned out, the number of Al Qaeda operatives actually in the United States registered at zero or nearly so, and the threat of terrorism in the country proved to be far more limited than initially feared. Accordingly, there might logically have been some judicious cutbacks in the funds devoted to the expensive quest to find terrorists who mostly didn’t exist—a process some in the FBI call “ghost chasing.” However, the reaction has continually been to expand the enterprise, searching for the needle by adding more and more hay. Far overdue are extensive openly published studies that rationally evaluate homeland-‐security expenditures. The NSA’s formerly secret surveillance programs have been part of the expansionary process. If they have done little to prevent terrorist attacks in the United States, and if we are now having what President Obama has characterized as a “healthy” debate about the programs, it seems reasonable to suggest that the debaters should at least be supplied with information about how much the programs cost. Knowing the cost would scarcely help the terrorists. It might, however, amaze American taxpayers. Perhaps that’s another reason the programs have been kept secret.


NSA PROGRAM BAD: TOO BROAD THE GOVERNMENT SHOULDN'T COLLECT METADATA ON EVERYONE WHEN IT CAN TARGET JUST TERRORISM SUSPECTS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] One obvious question is why, if the government knows the telephone number of some suspects, it does not demand telephony metadata pertaining only to their (relatively very few) phone numbers, instead of obtaining a sweeping Order covering Verizon's millions of customers (and probably numerous other all-‐encompassing orders). The Order requires vacuuming an enormous amount of information, the vast majority of which pertains to people suspected of nothing, when the government may have a list of suspects already. What terrorism-‐related information will this broad discovery acquire that a much more focused demand would not? Thus, critics argue there is no need for universal collection, because collection of contacts of known targets should suffice.


NSA PROGRAM BAD: DOESN’T YIELD ENOUGH RESULTS TO CONTINUE THE PROGRAM THE MASSIVE PROJECT ONLY YIELDED INFORMATION ON A SMALL NUMBER OF CASES AND IS NOT JUSTIFIED-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] Asked during the hearing how many terrorism cases were cracked using U.S. phone records, Inglis said that a dozen domestic terrorism investigations had made use of the telephone records. But he could cite only one case that would not have been discovered but for the database: a group of men from San Diego who sent $8,500 to Al Qaeda-‐linked militants in Somalia. One of the defendants in that case was discovered because his number had been called by a phone number in Somalia known to have been used by a terrorist group, Inglis said. Leahy questioned whether the small number of cases justified the intrusion on Americans' privacy that the database represents. "We could have more security if we strip-‐searched everybody that came into every building in America," Leahy said. "We'd have more security if we close our borders completely to everybody … if we put a wiretap on everybody's cellphone in America, if we search everybody's home. "But there are certain areas of our own privacy that we Americans expect, and at some point, you have to know where the balance is," he said. NO EVIDENCE EXISTS THAT THE NSA SURVEILLANCE PROGRAMS ARE EFFECTIVE-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Joshua, I agree with you that effectiveness matters. I can’t help but be skeptical, though. If these dragnet programs are effective, where’s the evidence? As you note, at least one of the success stories identified by anonymous intelligence officials—the story relating to Zazi—seems not to withstand scrutiny. Let’s also note that there’s no evidence the government has relied on evidence derived from these dragnet programs in criminal prosecutions. If these dragnet programs had been effective, wouldn’t we have seen at least a handful of criminal prosecutions? Of course intelligence surveillance has many purposes; gathering evidence of criminal activity is just one of them. Still, shouldn’t the apparent absence of any criminal prosecution make us question how necessary the programs really are? Lacking any more solid evidence of success, you fall back on the point that “the people who created and oversee” these programs “believe they are effective.” But unfortunately there are many reasons to question the trust you imply we should put in our national security agencies when they tell us, in essence, “we need more power to make you safe.”


THE GOVERNMENT HASN'T PROVEN THAT THIS IS AN EFFECTIVE ENOUGH TOOL TO KEEP-‐Sasso '13 [Brendan; Staff Writer; NSA chief pleads for public's help amid push for spying restrictions; The Hill; 25 September 2013; http://thehill.com/blogs/hillicon-‐valley/technology/324499-‐nsa-‐chief-‐pleads-‐for-‐publics-‐help-‐as-‐congress-‐eyes-‐restrictions#ixzz2fvTcaQFg; retrieved 12 October 2013] Following leaks by Edward Snowden this summer about the scope of the NSA's surveillance, numerous lawmakers, including Senate Judiciary Committee Chairman Patrick Leahy (D-‐Vt.), have moved to rein in the agency's power. The lawmakers have expressed particular outrage about the NSA's bulk collection of domestic phone data. In a speech Tuesday laying out his plans for restricting the NSA, Leahy said Congress should end the phone data program. "The government has not made its case that this is an effective counterterrorism tool, especially in light of the intrusion on Americans’ privacy rights," Leahy said. The House came within seven votes of defunding the program in July.


NSA PROGRAM BAD: THE CITED CASES THAT JUSTIFY THE PROGRAM ARE COUNTERED BY THE PUBLIC RECORD ONLY EVIDENCE THAT THESE STRATEGIES WORK IS COUNTERED BY THE PUBLIC RECORD-‐Foust '13 [Joshua; Former Analyst at the Defense Intelligence Agency; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] While debating the morality and ultimate legality of last week’s N.S.A. revelations is important, it is also important to realize why programs like collecting telephone metadata and Prism exist to begin with. In short: people think it works. News stories from 2002 show that the public was demanding the intelligence community “do more” to analyze information and thwart any future terrorist attacks. As a result, many of the barriers between domestic law enforcement and intelligence agencies, built after the 1975 Church Committee hearings, have been removed to make investigations easier. Has removing the “wall” actually helped to prevent terrorist attacks? Anonymous government sources have advanced the claim that Prism – a workflow management tool misreported as a means for collecting information – was instrumental in stopping Najibullah Zazi, who had planned on bombing the New York subway system. Those claims are disputed, at least in part, by public records of the Zazi case. PUBLICLY CITED CASES AREN'T PERSUASIVE IN PROVING THE NSA PROGRAM AS EFFECTIVE-‐Kenny '13 [Jack; Staff Writer; Doubt Surrounds Claims of NSA Success in Foiling Terrorist Attacks; New American; 19 June 2013; http://www.thenewamerican.com/usnews/politics/item/15756-‐doubt-‐surrounds-‐claims-‐of-‐nsa-‐success-‐in-‐foiling-‐terrorist-‐attacks; retrieved 12 October 2013] General Alexander said the NSA will discuss more cases as the agency determines it is safe to declassify them, though the majority must remain secret for security reasons. Perhaps future disclosures concerning the NSA's success in finding terrorists and preventing terrorist attacks will be more persuasive than what has been revealed thus far.


THE TWO INSTANCES CITED AS JUSTIFICATION FOR THE NSA SPYING DON'T SHOW AN ABSOLUTE CASE FOR THE TECHNOLOGY-‐Mueller and Stewart '13 [John, Professor of Political Science at Ohio State University, and Mark, Professor at the University of Newcastle; 3 Questions About NSA Surveillance; The Chronicle; 13 June 2013; http://chronicle.com/blogs/conversation/2013/06/13/3-‐questions-‐about-‐nsa-‐surveillance/; retrieved 6 October 2013] There has been a lot of ominous stammering from Congress and the Obama administration about terrorist plots that have been disrupted by the programs. But thus far, only two concrete examples have been mentioned—not a great many for seven years of effort. First, there have been suggestions that the NSA programs helped apprehend an American who had done surveillance work for the terrorist gunmen in Mumbai, India, in 2008. His efforts, however, were of limited importance to the event, and his eventual arrest didn’t prevent the attack. The second was the 2009 Zazi case, in which three Afghan-‐Americans trained in Pakistan before returning to the United States and plotted to set off bombs in the New York subway system. Given the perpetrators’ limited capacities, it is questionable whether the plot would ever have succeeded. Furthermore, the plot was disrupted not by NSA data-‐dredgers but by standard surveillance: British intelligence provided a hot tip about Zazi based on e-‐mail traffic to a known terrorist address—one that had long been watched. At that point, U.S. authorities had good reason to put the plotters on their radar. Having NSA’s megadata collection may have been helpful, but it seems scarcely to have been required. Actually, it is not clear that even the tip was necessary because the plotters foolishly called attention to themselves by using stolen credit cards to purchase large quantities of potential bomb material. NSA SPYING HAS LITTLE IMPACT ON TERRORISM; INSTANCES OF DISRUPTION COME FROM TRADITIONAL POLICING-‐Mueller and Stewart '13 [John, Professor of Political Science at Ohio State University, and Mark, Professor at the University of Newcastle; 3 Questions About NSA Surveillance; The Chronicle; 13 June 2013; http://chronicle.com/blogs/conversation/2013/06/13/3-‐questions-‐about-‐nsa-‐surveillance/; retrieved 6 October 2013] A set of case studies of the 53 post-‐9/11 plots by Islamist terrorists to damage targets in the United States suggests this is typical. Where the plots have been disrupted, as in the Zazi case, the task was accomplished by ordinary policing. The NSA programs scarcely come up at all. When asked on Wednesday if the NSA’s data-‐gathering programs had been “critical” or “crucial” to disrupting terrorist threats, the agency’s head testified that in “dozens” of instances the database “helped” or was “contributing”—though he did seem to agree with the word “critical” at one point. He has promised to provide a list of those instances. The key issue for evaluating the programs, given their privacy implications, will be to determine not whether the huge database was helpful but whether it was necessary.


NSA PROGRAM BAD: GOES BEYOND THE BOUNDARIES OF THE PATRIOT ACT NSA'S SURVEILLANCE PROGRAM GOES BEYOND THE BOUNDARIES OF THE PATRIOT ACT, ACCORDING TO ONE OF THE PROGRAM'S AUTHORS-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] Perhaps the most interesting remarks about the NSA controversy thus far came from Representative Jim Sensenbrenner, one of the original authors of the USA PATRIOT Act. He wrote that when the Act was first drafted, one of the most controversial provisions concerned the process by which government agencies obtain business records for intelligence or law enforcement purposes. Sensenbrenner stated that particular provision of the Act requires government lawyers to prove to the FISC that a request for specific business records is linked to an “authorized investigation” and further stated that “targeting US citizens is prohibited” as part of the request. Sensenbrenner argued that the NSA telephone metadata collection is a bridge too far and falls well outside the original intended scope of the Act: “[t]he administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this [NSA surveillance] is an abuse of that law.” Acknowledging that Sensenbrenner’s statements may have been motivated in part by political interests, the perceived creeping expansion of the USA PATRIOT Act—the “abuse” that Sensenbrenner describes in the context of the NSA surveillance controversy—is consistent with what is known as the “ratchet effect” in legal scholarship. THE NSA CALL DATA COLLECTION IN AN ABUSE OF THE PATRIOT ACT-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, wrote in a letter to Attorney General Eric H. Holder Jr. “I disagree. I authored the Patriot Act, and this is an abuse of that law.”


NSA PROGRAM BAD: CURBS FREE EXPRESSION WHEN GOVERNMENT IS TOO AGGRESSIVE ABOUT SURVEILLANCE, PEOPLE ARE RELUCTANT TO EXERCISE DEMOCRATIC FREEDOMS-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] These abuses are real, but if we focus on them exclusively we risk overlooking the deeper implications of pervasive government surveillance. When people think the government is watching them, or that it might be, they become reluctant to exercise democratic freedoms. They may be discouraged from visiting officially disfavored Web sites, joining controversial political groups, attending political rallies or criticizing government policy. This is a cost to the people who don’t exercise their rights, but it’s a cost to our society, too. The chilling effect of surveillance makes our public debates narrower and more inhibited and our democracy less vital. This is the greater threat presented by the kinds of programs that were exposed this past week. THE OVER-‐AGGRESSIVE SURVEILLANCE OF MUSLIMS IN NEW YORK CITY PROVES THAT SURVEILLANCE CURBS USE OF LIBERTIES GRANTED BY THE CONSTITUTION-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Eric, on your last point about the existence or nonexistence of a chilling effect, let me just point you to this recent report about the effect that surveillance by the New York Police Department has had on the Muslim community in and around New York City. The report concludes that “surveillance of Muslims’ quotidian activities has created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life.” I wasn’t surprised by this conclusion. In the 1970s, the Church Committee came to similar conclusions about the effect that government surveillance had had on the political engagement of African-‐Americans.


NSA PROGRAM BAD: PUBLIC REACTION TO THIS PROGRAM WILL IMPACT FUTURE COUNTERTERRORISM PROGRAMS PUBLIC UNEASE ABOUT THE NSA PROGRAM WILL MAKE INFORMATION SHARING LAWS MORE DIFFICULT TO PASS IN THE FUTURE-‐Mueller and Stewart '13 [John, Professor of Political Science at Ohio State University, and Mark, Professor at the University of Newcastle; 3 Questions About NSA Surveillance; The Chronicle; 13 June 2013; http://chronicle.com/blogs/conversation/2013/06/13/3-‐questions-‐about-‐nsa-‐surveillance/; retrieved 6 October 2013] A former Air Force secretary told Reuters that a “growing unease about domestic surveillance could have a chilling effect on proposed cyber legislation that calls for greater information-‐sharing between government and industry.” Since the revelation, more lawmakers have signed on to legislation that would strengthen the privacy protections in the 1986 Electronic Communications Privacy Act. The notion here, then, is that the programs were secret not to protect people from terrorism, but to protect the government from inconvenient public and Congressional opposition.


NSA PROGRAM BAD: ADVOCATES EXAGGERATE THE BENEFITS OF THE PROGRAM THE EXTENT IN WHICH THE NSA PROGRAM HAS STOPPED TERRORISTS HAS BEEN EXAGGERATED-‐Boehm '13 [Eric; NSA director admits to exaggerating benefits of mass surveillance; Watchdog; 4 October 2013; http://watchdog.org/109138/nsa-‐director-‐admits-‐to-‐exaggerating-‐the-‐benefits-‐of-‐mass-‐surveillance/; retrieved retrieved 6 October 2013] The Senate is still holding hearings to probe the depth of the National Security Agency’s privacy violations. And the government officials charged with running those programs are still being less-‐than-‐honest about what they do. During a Wednesday hearing of the Senate Judiciary Committee, NSA Director Gen. Keith Alexander admitted that the Obama administration has exaggerated the extent to which the NSA’s domestic spying programs have helped thwart terror attacks. The administration previously had claimed NSA surveillance helped stop as many as 54 separate plots. But U.S. Sen. Patrick Leahy, D-‐Vt., pressured Alexander to admit most of those cases — all except 13 of them — were not stopped because of electronic surveillance by the NSA. “These weren’t all plots, and they weren’t all foiled,” Leahy said, asking Alexander, “Would you agree with that, yes or no?” “Yes,” replied Alexander, according to Salon’s Natasha Lennard. NO EVIDENCE HAS BEEN PRESENTED THAT COLLECTION OF METADATA HAS BEEN CRITICAL IN STOPPING ANY TERRORISTS OR TERROR ATTACKS-‐Masnick '13 [Mike; Editor and Tech Company CEO; Cost-‐Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It; TechDirt; 9 August 2013; http://www.techdirt.com/articles/20130807/01194124092/cost-‐benefit-‐analysis-‐nsa-‐surveillance-‐says-‐its-‐simply-‐not-‐worth-‐it.shtml; retrieved 6 October 2013] And... for what benefit? We've already seen multiple Senators point out that the NSA and its supporters have yet to provide a single shred of evidence that the bulk collection of metadata (the Patriot Act Section 215 program) was necessary in stopping any terrorist activity. So the "benefit" on the other side of the equation appears to be absolutely nothing. How could it possibly make sense to have a program which costs billions to our economy -‐-‐ and directly to one of the few rapidly growing and expanding sectors of the economy, which also has tremendous productivity benefits for nearly all other parts of the economy -‐-‐ for no benefit at all? THE NSA TELEPHONE METADATA PROGRAM HASN'T BEEN RESPONSIBLE FOR ANY SPECIFIC TERRORIST CAPTURE OR PLOT TAKEDOWNS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] However, the government was having a difficult time convincing Congress that this telephony database was necessary. In hearings held July 31, 2013, the government offered numerous instances where it said such data helped prevent terrorist attacks. But Sen. Patrick Leahy (D-‐VT), Chair of the Senate Judiciary Committee, said this did not show that "dozens or even several terrorist plots" had been 'prevented by the telephony program. This contrasted with his reaction to NSA's massive collection of international Internet messages, as to which he agreed that important information may have been provided in numerous instances. (45)


TERRORISTS ATTACKS SUPPOSEDLY “STOPPED” BY NSA SURVEILLANCE ARE OVERBLOWN-‐Kenny '13 [Jack; Staff Writer; Doubt Surrounds Claims of NSA Success in Foiling Terrorist Attacks; New American; 19 June 2013; http://www.thenewamerican.com/usnews/politics/item/15756-‐doubt-‐surrounds-‐claims-‐of-‐nsa-‐success-‐in-‐foiling-‐terrorist-‐attacks; retrieved 12 October 2013] NSA Director General Keith Alexander (shown), testifying along with officials from the Justice Department in a rare public oversight hearing by the House Intelligence Committee, claimed that more than 50 terror plots had been discovered and prevented thanks to the highly classified data collections. But a jury conviction cited in a deputy attorney general's claim about a terrorist plot never occurred, and at least two other cases he cited appear not to support the claim that they were solved through the National Security Agency's massive collection of telephone records and Internet communications. LITTLE EVIDENCE EXISTS THAT THE NSA PROGRAM GATHERS UNIQUELY AVAILABLE INTELLIGENCE-‐Savage '13 [Charlie; A.C.L.U. Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs; New York Times; 11 June 2013; http://www.nytimes.com/2013/06/12/us/aclu-‐files-‐suit-‐over-‐phone-‐surveillance-‐program.html?_r=0&pagewanted=print; retrieved 12 October 2013] Executive branch officials and lawmakers who support the program have hinted that some terrorist plots have been foiled by using the database. In private conversations, they have also explained that investigators start with a phone number linked to terrorism, and scrutinize the ring of people who have called that number — and other people who in turn called those — in an effort to identify co-‐conspirators. Still, that analysis may generally be performed without a wholesale sweep of call records, since investigators can instead use subpoenas to obtain relevant logs from telephone companies. Senators Ron Wyden of Oregon and Mark Udall of Colorado, two Democrats who have examined it in classified Senate Intelligence Committee hearings, have claimed that the evidence is thin that the program provided uniquely available intelligence.


ALL EVIDENCE SUGGESTS THAT NSA CASES CITED AS EXAMPLES OF THE SUCCESS OF THE PROGRAM WERE ACTUALLY CRACKED BY TRADITIONAL POLICE WORK-‐Kenny '13 [Jack; Staff Writer; Doubt Surrounds Claims of NSA Success in Foiling Terrorist Attacks; New American; 19 June 2013; http://www.thenewamerican.com/usnews/politics/item/15756-‐doubt-‐surrounds-‐claims-‐of-‐nsa-‐success-‐in-‐foiling-‐terrorist-‐attacks; retrieved 12 October 2013] Joyce discussed in brief two other cases officials have previously claimed were solved through NSA surveillance. They involved an alleged 2009 conspiracy to detonate a bomb in the New York City subway system and the apprehension of David Headley, a Chicago resident convicted for his role in the 2008 terrorist attack in Mumbai, India. Those cases have also been cited by Sen. Dianne Feinstein (D-‐Calif.) and Rep.Mike Rogers (R-‐Mich.), chairmen, respectively, of the Senate and House Intelligence Committees, in defense of the NSA surveillance programs. Rogers was especially emphatic in the case of Najibullah Zazi, the would-‐be subway bomber. "I can tell you, in the Zazi case in New York, it's exactly the program that was used," Rogers said in a recent interview on ABC's This Week. "I think the Zazi case is so important, because that's one you can specifically show that this was the key piece that allowed us to stop a bombing in the New York subway system." But investigators did not discover Zazi and his interest in bomb-‐making through a daily collection of billions of personal e-‐mail messages. A 2009 National Public Radio report, citing as sources "law enforcement officials close to the Zazi case," said the Afghanistan native came to the FBI's attention through a tip from officials of the Pakistani government whom Zazi had met with al-‐Qaeda operatives there. When Zazi, a Denver-‐area shuttle bus driver, returned to the United States, he was put under surveillance that included court-‐approved wiretaps and intercepts of his text messages. But it was only after a physical search of the Zazi's car and the laptop computer found in it that investigators concluded they had enough evidence to arrest successfully prosecute him. Sam Rascoff, who used to work on terrorism cases for the intelligence unit of the New York Police Department, credited the effective use of the "old tools" for Zazi's apprehension. "I think what's striking about the Zazi case is not so much that new tools were being used, but that old tools were being used in a comprehensive fashion," he told NPR. "And that they were being stitched together in a thoughtful, strategic way, so that one tool naturally gave way to another."


NSA PROGRAM BAD: SHOULDN’T BASE POLICY BASED ON EMOTION OR FEAR OF TERRORISM SHOULDN'T PASS LAWS BASED ON REFLEXIVE EMOTION OR FEAR-‐Givens '13 [Austen; PhD Student at King's College, London; The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-‐Terrorism Laws; National Security Journal; 2 July 2013; http://harvardnsj.org/2013/07/the-‐nsa-‐surveillance-‐controversy-‐how-‐the-‐ratchet-‐effect-‐can-‐impact-‐anti-‐terrorism-‐laws/; retrieved 6 October 2013] Second, policymakers should beware of reflexive legislation. Terror attacks create conditions in which emotions can run high; feelings of terror, anger, sadness, confusion, and frustration are natural consequences of these circumstances. Behavioral psychology teaches us that human beings’ higher-‐order thinking skills (e.g. logic, reasoning, analysis, reflection) are poorly integrated with baser, emotionally-‐rooted thinking (e.g. irrational prejudices, unreasonable fears, self-‐destructive desires).[11] One researcher has gone so far as to say that the amygdala—the portion of the brain that controls reactive emotion—can hijack the higher-‐order parts of the brain, impeding effective decision-‐making in crises.[12] Considering this, it is reasonable to suggest that laws passed in the immediate aftermath of terrorist attacks may be rooted more in baser, emotionally-‐driven thinking than in careful, analytical, higher-‐order thinking. In other words, they may be mostly reflexive, not reflective. This is not to say that all laws passed after terrorist attacks are emotionally-‐driven. Nor is it the case that all laws created in these circumstances are somehow “bad” laws. But during and after terrorist attacks, leaders’ judgment of what may or may not be good law can become clouded by emotion. Similarly, terrorist attacks can drive public support for reflexive anti-‐terrorism legislation. And this is not an instinct that can be somehow “shut off” or “tuned out.” Legislators and citizens should be aware of this potential, and must walk a fine line between meeting immediate post-‐crisis needs and championing laws that will remain effective for the long haul.


NSA PROGRAM BAD: EVEN DEFENDERS WANT TO CURB THE PROGRAM EVEN DEFENDERS OF THE NSA ACTIVITIES WANT TO CURB DOMESTIC SPYING BY THE NSA-‐Dilanian '13 [Ken; Concerns about NSA surveillance persist despite release of files; Los Angeles TIMES; 31 July 2013; http://articles.latimes.com/print/2013/jul/31/nation/la-‐na-‐nsa-‐surveillance-‐20130801; retrieved 6 October 2013] Even steadfast defenders of the NSA's activities conceded that some changes would be necessary. "I believe, based on what I have seen — and I read intelligence regularly — that we would place this nation in jeopardy if we eliminated" the NSA's ability to collect telephone records and to gather information about Internet usage by foreign intelligence targets, Feinstein said. But, she added, the intelligence committee is considering proposals to change the programs, including providing the public with more data about how often phone numbers in the database are searched and reducing the length of time the government can keep the data to three years from the current five.


NSA PROGRAM BAD: PROGRAM COSTS US BUSINESS BILLIONS IN POTENTIAL SALES REVELATIONS ABOUT THE NSA SPYING PROGRAM COSTS TENS OF BILLIONS IN BUSINESS FOR UNITED STATES TECHNOLOGY FIRMS-‐Masnick '13 [Mike; Editor and Tech Company CEO; Cost-‐Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It; TechDirt; 9 August 2013; http://www.techdirt.com/articles/20130807/01194124092/cost-‐benefit-‐analysis-‐nsa-‐surveillance-‐says-‐its-‐simply-‐not-‐worth-‐it.shtml; retrieved 6 October 2013] A new study suggests that the direct losses to US tech companies from people and companies fleeing to other services (often overseas) is likely to be between $22 billion and $35 billion over just the next three years. Germany is already looking at pushing for rules in the EU that would effectively ban Europeans from using services from US companies that participate in NSA surveillance programs (which is a bit hypocritical since it appears many EU governments are involved in similar, or even worse, surveillance efforts).


SECRECY BAD: MAKES IT LESS LIKELY WE CAN CATCH ABUSE THE SECRECY AROUND THE NSA PROGRAM MEANS WE DON'T KNOW IF THEY ARE ABUSING THE PROGRAM TO GO AFTER OTHERWISE INNOCENT POLITICAL ENEMIES-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] You say you are unaware of a single instance, since 9/11, in which the government used surveillance to target a political opponent, dissenter or critic. But if the government were using surveillance this way, would officials tell us? So much secrecy surrounds the government’s surveillance activities that we simply don’t know how often, or in what ways, the government’s surveillance powers have been abused. This said, we know enough that we ought to be worried. Here is an article about the Department of Homeland Security conducting inappropriate surveillance of protesters associated with Occupy Wall Street. Here is a report of the Justice Department’s inspector general finding that the F.B.I. monitored a political group because of its anti-‐war views. Here is a story in which a former C.I.A. official says that the agency gathered information about a prominent war critic “in order to discredit him.” WHILE THE GOVERNMENT DOES CONDUCT SOME BUSINESS IN SECRET, NOT ALL SECRECY IS EQUAL; AN OVERREACHING GOVERNMENT SHOULD BE CALLED INTO QUESTION OPENLY-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Your claim about the pervasiveness and banality of government secrecy elides the fact that there are many kinds of secrecy. Not all of them present the same threat to democracy. I don’t think our democracy is made weaker by the government’s withholding of information about the technical means it uses to effect surveillance. I don’t think our democracy is made weaker by the government’s withholding of information about the specific targets of its surveillance — so long as the surveillance is in fact limited to specific targets and so long as there is some mechanism that permits the public to evaluate the government’s conduct after the investigation is complete. Secrecy about government policy, though, seems to me a very different thing. The whole point of democracy is to make government accountable to the public. How can the public hold government accountable if it doesn’t know what the government’s policies are? How can the public lobby Congress to amend the Patriot Act if it has no idea how the government has interpreted it? This is why I think that you have it backward when you say that “objections to the secrecy of the N.S.A. program are thus really objections to our political system itself.” It’s objections to transparency about the N.S.A. program that have this character. The argument that the government shouldn’t be required to tell the public what its policies are is an argument that we shouldn’t have a democracy.


SECRECY BAD: WOULDN’T HAVE RISKED POLICE ACTIONS AGAINST TERRORISTS EXPOSING THE NSA PROGRAMS EARLIER WOULD NOT HAVE AIDED TERRORISTS-‐Mueller and Stewart '13 [John, Professor of Political Science at Ohio State University, and Mark, Professor at the University of Newcastle; 3 Questions About NSA Surveillance; The Chronicle; 13 June 2013; http://chronicle.com/blogs/conversation/2013/06/13/3-‐questions-‐about-‐nsa-‐surveillance/; retrieved 6 October 2013] It is difficult to see how earlier exposure of the programs’ existence would have aided terrorists, who have known at least since the 1990s that U.S. intelligence was searching communications worldwide to track them down. It is possible, however, that the secrecy of the programs stems from the Obama administration’s fear that public awareness of “modest encroachments” on privacy would make further efforts to encroach more difficult.


A/T: TERRORISM JUSTIFIES NSA PROGRAM SOME COSTS ARE TOO HIGH TO PROTECT FROM TERRORIST ATTACKS-‐Masnick '13 [Mike; Editor and Tech Company CEO; Cost-‐Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It; TechDirt; 9 August 2013; http://www.techdirt.com/articles/20130807/01194124092/cost-‐benefit-‐analysis-‐nsa-‐surveillance-‐says-‐its-‐simply-‐not-‐worth-‐it.shtml; retrieved 6 October 2013] The incredible thing in the defense of all of these NSA surveillance programs is that defenders always go back to examples like September 11th -‐-‐ suggesting that if one of these programs stops another attack, they'll be worth it. And while such attacks are devastating in so many ways, we all implicitly recognize that there is a cost to preventing another attack, and certain costs are simply too high. We'd be much less likely to have another attack, for example, if we grounded all airplanes permanently and never let anyone enter or leave the US. But, obviously, that's a "cost" that is way too high. Yet, for some reason the defenders of these programs seem to pretend that there are no costs at all. Yet, there are huge costs. We've already discussed how the NSA's surveillance activities are hurting American businesses and why the tech industry should be furious about these efforts -‐-‐ and that cost is becoming clearer day by day. SECURITY ISN'T THE TRUMP CARD; IT MUST BE BALANCED WITH CIVIL LIBERTIES AND RIGHTS-‐Bender '13 [David; Attorney; What you need to know about NSA mass acquisition of telephony metadata; The Computer & Internet Lawyer; September 2013; page 1] The government has a very strong argument regarding the need for anti-‐terrorist information. September 11, 2001 was not all that long ago and there have been subsequent terrorist incidents in the United States, the most notorious being the Boston Marathon bombing. It is clear that the United States has enemies who will not hesitate to attack civilian targets, causing grievous and massive harm. One major concern of US intelligence agencies is doubtless that terrorists will acquire a weapon of mass destruction and use it in a densely populated area of the United States. The result would be devastating, and the government has every right, and indeed a duty, to guard against it. Accordingly, the government interest in maintaining security is exceedingly high. Balanced against this need for security is the right to privacy of the tens of millions of individuals whose information finds its way into the universal database, with the attendant possibility of government abuse. As noted above, a collection of information detailing all of a person's phone contacts may provide a full picture of that person's life. We need look back no further than the reign of J. Edgar Hoover to see that the FBI-‐-‐an agency charged with responsibility under the FISA-‐-‐has been guilty of unlawfully collecting information and abusively using it. THE PROSPECT OF CURBING TERRORISM ISN'T GOOD ENOUGH TO JUSTIFY THE HARM TO PRIVACY BY THE NSA PROGRAM-‐Tuccille '13 [J.D.; Managing Editor; Who Cares if NSA Snooping Is Legal? It's Still Disgusting; Reason; 6 June 2013; http://reason.com/blog/2013/06/06/who-‐cares-‐if-‐nsa-‐snooping-‐is-‐legal-‐its-‐s; retrieved 12 October 2013] At the end of the day, when it comes to government snooping on the phone records and Internet activity of millions of Americans, it doesn't matter in the least if it's legal or if procedures were followed. What matters is that the privacy of millions of people has been violated without probable cause or suspicion of wrongdoing, simply so the government could scoop up data on the off chance of finding something interesting. Rogers and Feinstein assure us that broad snooping, without cause, "thwarted" a domestic terror plot. OK. And kicking in the doors of every American citizen would, no doubt, uncover criminal activity. That's not good enough. Free people don't tolerate government officials who think "legal" trumps "right." We can do a hell of a lot better than the likes of Feinstein, Rogers and Holder assuring us that they did good because they gave themselves permission to do evil.


THE PROBABILITY OF BEING KILLED BY A TERRORIST IS SO LOW THAT IS DOESN'T JUSTIFY DRACONIAN RESPONSES-‐Masnick '13 [Mike; Editor and Tech Company CEO; Cost-‐Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It; TechDirt; 9 August 2013; http://www.techdirt.com/articles/20130807/01194124092/cost-‐benefit-‐analysis-‐nsa-‐surveillance-‐says-‐its-‐simply-‐not-‐worth-‐it.shtml; retrieved 6 October 2013] The fact is that big terrorist attacks are flashy and attention grabbing. They pack an emotional punch. I still remember quite clearly watching the towers fall in NYC over a decade ago. But we have to face facts: those things are extremely low probability events. A recent look at the probability of getting killed in a terrorist attack compared to almost any other cause of death shows that you're much more likely to be killed by a toddler than a terrorist. And the list goes on. Click the link above and it shows what incredibly small probability event terrorist attacks are. This doesn't mean that we shouldn't make efforts to stop terrorist attacks. We should. But they need to be within reason, and with a real recognition of both the costs and the benefits. We don't spend nearly as much trying to stop death from fireworks, yet they're 14 times more likely to kill you. You're nine times more likely to be killed by a police officer than a terrorist. Yet, we don't violate everyone's privacy to stop cops from killing people. You're 4,706 times more likely to be killed by alcohol than a terrorist. And yet... drink up. People take risks. We certainly try to minimize those risks but within reason. If the costs are astoundingly high while the benefits are slim to none, then such programs shouldn't even have been seriously considered in the first place, let alone implemented and defended vigorously (and misleadingly) by those in power.


THE THREAT OF TERRORISM IS SO MUCH LESS THAN SO MANY OTHER THREATS TO AMERICAN SAFETY AND HEALTH-‐Friedersdorfjun '13 [Conor; Political and National Affairs Staff Writer; The Irrationality of Giving Up This Much Liberty to Fight Terror; The Atlantic; 10 June 2013; http://www.theatlantic.com/politics/archive/2013/06/the-‐irrationality-‐of-‐giving-‐up-‐this-‐much-‐liberty-‐to-‐fight-‐terror/276695/; retrieved 12 October 2013] As individuals, Americans are generally good at denying al-‐Qaeda the pleasure of terrorizing us into submission. Our cities are bustling; our subways are packed every rush hour; there doesn't seem to be an empty seat on any flight I'm ever on. But as a collective, irrational cowardice is getting the better of our polity. Terrorism isn't something we're ceding liberty to fight because the threat is especially dire compared to other dangers of the modern world. All sorts of things kill us in far greater numbers. Rather, like airplane crashes and shark attacks, acts of terror are scarier than most causes of death. The seeming contradictions in how we treat different threats suggest that we aren't trading civil liberties for security, but a sense of security. We aren't empowering the national-‐security state so that we're safer, but so we feel safer. Of course we should dedicate significant resources and effort to stopping terrorism. But consider some hard facts. In 2001, the year when America suffered an unprecedented terrorist attack -‐-‐ by far the biggest in its history -‐-‐ roughly 3,000 people died from terrorism in the U.S. Let's put that in context. That same year in the United States: 71,372 died of diabetes. 29,573 were killed by guns. 13,290 were killed in drunk driving accidents. That's what things looked like at the all-‐time peak for deaths by terrorism. Now let's take a longer view. We'll choose an interval that still includes the biggest terrorist attack in American history: 1999 to 2010. Again, terrorists killed roughly 3,000 people in the United States. And in that interval, roughly 360,000 were killed by guns (actually, the figure the CDC gives is 364,483 -‐-‐ in other words, by rounding, I just elided more gun deaths than there were total terrorism deaths). roughly 150,000 were killed in drunk-‐driving accidents. Measured in lives lost, during an interval that includes the biggest terrorist attack in American history, guns posed a threat to American lives that was more than 100 times greater than the threat of terrorism. Over the same interval, drunk driving threatened our safety 50 times more than terrorism. Those aren't the only threats many times more deadly than terrorism, either. The CDC estimates that food poisoning kills roughly 3,000 Americans every year. Every year, food-‐borne illness takes as many lives in the U.S. as were lost during the high outlier of terrorism deaths. It's a killer more deadly than terrorism. Should we cede a significant amount of liberty to fight it?


THE GOVERNMENT SHOULD NOT GIVE UP MASSIVE AMOUNTS OF PRIVACY OR LIBERTY TO STAY MARGINALLY SAFER FROM THE THREAT OF TERRORISM-‐Friedersdorfjun '13 [Conor; Political and National Affairs Staff Writer; The Irrationality of Giving Up This Much Liberty to Fight Terror; The Atlantic; 10 June 2013; http://www.theatlantic.com/politics/archive/2013/06/the-‐irrationality-‐of-‐giving-‐up-‐this-‐much-‐liberty-‐to-‐fight-‐terror/276695/; retrieved 12 October 2013] Government officials, much of the media, and most American citizens talk about terrorism as if they're totally oblivious to this context -‐-‐ as if it is different than all other threats we face, in both kind and degree. Since The Guardian and other news outlets started revealing the scope of the surveillance state last week, numerous commentators and government officials, including President Obama himself, have talked about the need to properly "balance" liberty and security. The U.S. should certainly try to prevent terrorist attacks, and there is a lot that government can and has done since 9/11 to improve security in ways that are totally unobjectionable. But it is not rational to give up massive amounts of privacy and liberty to stay marginally safer from a threat that, however scary, endangers the average American far less than his or her daily commute. In 2011*, 32,367 Americans died in traffic fatalities. Terrorism killed 17 U.S. civilians that year. How many Americans feared dying in their vehicles more than dying in a terrorist attack? Certainly not me! I irrationally find terrorism far scarier than the sober incompetents and irresponsible drunks who surround my vehicle every time I take a carefree trip down a Los Angeles freeway. The idea that the government could keep me safe from terrorism is very emotionally appealing. GIVING UP LIBERTY AND PRIVACY IS NO GUARANTEE OF SAFETY: MUST BALANCE BOTH TOGETHER-‐Friedersdorfjun '13 [Conor; Political and National Affairs Staff Writer; The Irrationality of Giving Up This Much Liberty to Fight Terror; The Atlantic; 10 June 2013; http://www.theatlantic.com/politics/archive/2013/06/the-‐irrationality-‐of-‐giving-‐up-‐this-‐much-‐liberty-‐to-‐fight-‐terror/276695/; retrieved 12 October 2013] America has preserved liberty and privacy in the face of threats far greater than terrorism has so far posed (based on the number of people actually killed in terrorist attacks), and we've been better off for it. Ceding liberty and privacy to keep myself safe from terrorism doesn't even guarantee that I'll be safer! It's possible that the surveillance state will prove invasive and ineffective. Or that giving the state so much latitude to exercise extreme power in secret will itself threaten my safety.


AMERICANS WOULDN'T AGREE TO GOVERNMENT SURVEILLANCE FOR MORE COMMON THREATS, SO, WE SHOULDN'T FOR TERRORISM EITHER-‐Friedersdorfjun '13 [Conor; Political and National Affairs Staff Writer; The Irrationality of Giving Up This Much Liberty to Fight Terror; The Atlantic; 10 June 2013; http://www.theatlantic.com/politics/archive/2013/06/the-‐irrationality-‐of-‐giving-‐up-‐this-‐much-‐liberty-‐to-‐fight-‐terror/276695/; retrieved 12 October 2013] I understand, as well as anyone, that terrorism is scary. But it's time to stop reacting to it with our guts, and to start reacting with our brains, not just when we're deciding to vacation in Washington or New York, but also when we're making policy together as free citizens. Civil libertarians are not demanding foolish or unreasonable courage when they suggest that the threat of terrorism isn't so great as to warrant massive spying on innocent Americans and the creation of a permanent database that practically guarantees eventual abuse. Americans would never welcome a secret surveillance state to reduce diabetes deaths, or gun deaths, or drunk-‐driving deaths by 3,000 per year. Indeed, Congress regularly votes down far less invasive policies meant to address those problems because they offend our notions of liberty. So what sense does it make to suggest, as Obama does, that "balancing" liberty with safety from terrorism -‐-‐ which kills far fewer than 3,000 Americans annually -‐-‐ compels those same invasive methods to be granted, in secret, as long as terrorists are plotting? That only makes sense if the policy is aimed at lessening not just at wrongful deaths, but also exaggerated fears and emotions**. Hence my refusal to go along. Do you know what scares me more than terrorism? A polity that reacts to fear by ceding more autonomy and power to its secret police.


A/T: EVERYONE APPROVED THE NSA PROGRAM! EVEN IF VARIOUS BRANCHES OF GOVERNMENT APPROVED THE NSA PROGRAM, ITS EXISTENCE IS A FAILURE OF OVERSIGHT-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] On Friday, in an effort to quell a swelling tide of criticism, President Obama observed that these surveillance activities had been blessed by all three branches of government. That observation is alarming, not reassuring. Congress should have more narrowly limited the N.S.A.’s authority to monitor the communications of innocent people. The agency should never have sought the authority to cast an indiscriminate dragnet. The court should never have granted it. The surveillance activities disclosed last week are the result of systemic failure — a failure of all three branches of government — and if we are going to restore some measure of the privacy that the Constitution guarantees, we will need systemic reform. EVEN IF THE NSA PROGRAM WAS APPROVED BY CONGRESS AND IS “LEGAL,” IT IS STILL AN ABOMINATION-‐Tuccille '13 [J.D.; Managing Editor; Who Cares if NSA Snooping Is Legal? It's Still Disgusting; Reason; 6 June 2013; http://reason.com/blog/2013/06/06/who-‐cares-‐if-‐nsa-‐snooping-‐is-‐legal-‐its-‐s; retrieved 12 October 2013] Rep. Mike Rogers, the chairman of the House Intelligence Committee, assures us that National Security Agency snooping on phone records (and, presumably, on Internet traffic) is "legal." Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee (pictured at right), also promises that the program is legal and insists it's "simply a court reauthorization of a program." Asked about the snooping, Attorney General Eric Holder says "[m]embers of Congress have been fully briefed as these issues — these matters have been underway," implying that all is well since lawmakers have been in the know, even if some of those legislators have clearly been horrified and tried to alert the public within the limits of the muzzling rules to which they were subject. Maybe the NSA spying is legal. So what? It's still creepy, disturbing and completely unacceptable in a society that calls itself "free." Perhaps the most oversused word in the English language, at least when it comes to government officials justifying their actions, is "legal." The word merely means that government officials jumped through the nominally appropriate rituals required to authorize themselves to do something. It doesn't mean the something they authorized themselves to do is respectful of the rights of others, morally upstanding, or wise. Pass a constitutional amendment (or just repeal a few laws in many countries) and you could even make rape and murder "legal." But they'd still be offenses against human rights and simple decency.


A/T: WE VOLUNTARILY GIVE UP TONS OF PERSONAL DATA WE SHOULD BE ABLE TO INDIVIDUALLY CHOOSE WHAT OF OUR PRIVATE INFORMATION IS DISCLOSED TO GOVERNMENT, AS IN THE CASE WITH SCHOOLS AND TAXES-‐Jaffer '13 [Jameel; Fellow at the Open Society Foundations and Deputy Legal Director of the American Civil Liberties Union; Secrecy and Freedom; Room for Debate; the New York Times; 9 June 2013; http://www.nytimes.com/roomfordebate/2013/06/09/is-‐the-‐nsa-‐surveillance-‐threat-‐real-‐or-‐imagined; retrieved 6 October 2013] Of course we share personal information with government agents all the time. We share financial information with the I.R.S., we share information about our children with public school teachers, and so on. But the fact that we sometimes share discrete categories of information with specific categories of people for narrowly delineated purposes doesn’t seem to me to be very relevant. “Privacy” means being able to decide for ourselves whom our information is shared with, and when, and under what conditions.

november!2013nflpublicforum!debate:!...

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