2015-07-22 Court vs Congress Mini-Debate

1AC — Inherency
Contention One – You’re being watched
The expiration of Section 215 and the passage of the Freedom Act created a
false sense of security, but federal domestic surveillance is still massive
Baumann, June 9, 2015
(Ted, editor of Sovereign Investor’s Offshore Confidential and Plan B Club, specializing in asset protection and
international migration issues, degrees from University of Cape Town with postgraduate degrees in Economics and
History, published in a variety of international journals, including the Journal of Microfinance, Small Enterprise
Development, and Environment and Urbanization, as well as the South African press, including the Cape Times, New
Internationalist, Cape Argus, and Mail and Guardian; “Freedom Act: Washington Killed Privacy”;
http://www.valuewalk.com/2015/06/freedom-act-privacy/ -- JRS)
Back in my activist days, an insightful colleague once pointed out that: “ The
most dangerous moment of
any movement for justice is when you seem to be succeeding.” His point was this: When
your adversary is more powerful than you are, they are in a position to define what “success” means — and will probably
do so at your cost. For example, we were trying to get African and Asian city authorities to grant land titles to households
living in “slums,” so they could invest in their homes without fear of eviction. Often, opportunistic politicians would
announce a minor policy tweak with great fanfare, as if they had “granted” our wishes. Meanwhile, nothing really
I found myself thinking of that last week during the hoopla surrounding the
passing of the USA Freedom Act, which is supposed to have ended the bulk collection of our private
telephone call data by the government's spy agencies.
Freedom Act: Plus Ça Change…Your
privacy is no safer from government abuse today than it
was last week, before Congress passed the USA Freedom Act. As one civil liberties lawyer told me: “No
one should mistake this bill for comprehensive reform. The bill leaves many of
the government's most intrusive surveillance powers untouched.”
You can't let your guard down now, I'm afraid.
Under the National Security Agency's “bulk metadata” program, which the USA Freedom Act has modified,
the NSA collected information on all Americans' calls — including phone numbers called as well as dates,
times and duration — without a warrant. The NSA argued that the data was “relevant” to a national
security investigation under Section 215 of the USA Patriot Act because terrorists sometimes used
telephones. Because the NSA didn't know which calls were from terrorists, all phone calls were considered
The USA Freedom Act requires government to obtain a warrant before accessing call data in the hands of
private companies. Custody of the metadata itself will transition from the NSA to the phone companies. The
government will still be able to access it via specific queries of “a person, entity, account, address or device.”
Most records will be stored for fewer than 18 months, not five years or more.
But section
215 of the Patriot Act was only one of a number of overlapping
surveillance authorities. The USA Freedom Act will leave the government with a
range of powerful surveillance tools. These include:
Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA): Unlike the NSA's metadata
surveillance program, collection under FISA's Section 702 captures the content of communications.
This could include emails, instant messages, Facebook Inc messages, Web
browsing history and more. Section 702 has been used by the NSA to justify mass
collection of data directly from the physical infrastructure of communications
Executive Order 12333: Issued by President Reagan in 1981, it allows the executive branch to
spy on foreigners with no regulation by Congress. Millions of innocent
foreigners' communications are collected, including any containing Americans'
Pen Registers: These allow the government to collect “dialing, routing, addressing or signaling information,”
including telephone numbers dialed and Internet metadata, such as IP addresses and email headers.
FISA's Business Records Provision: This allows the government to obtain business records from
transportation carriers and storage facilities. The government routinely considers private communications to be “business
An ECPA “D Order”: Under Section 2703(d) of the Electronic Communications Privacy Act (ECPA), the
government can get a court order for information from communications providers about their customers, including the
sorts of metadata the government gets with Section 215. The government must provide “specific and articulable facts
showing that there are reasonable grounds to believe that … the records or other information sought, are relevant and
material to an ongoing criminal investigation.”
National Security Letters (NSLs): Similar to subpoenas, NSLs allow intelligence agencies to collect
records from telecommunications providers, financial institutions, credit reporting bureaus, travel agencies and other
entities. Nearly all NSLs include gag orders, which prevent the target from telling anyone they have been served with an
NSL. The
government can use NSLs to collect much the same information as
Section 215. NSLs have been routinely misused.
Administrative Subpoenas: Many federal agencies have the authority to issue subpoenas for customer
records in their normal course of business. These authorities are extremely widespread,
comprising 335 different statutes by one count.
All of these authorities continue to exist as before. Perhaps worst of all, however, an Obama
administration official confirmed last Wednesday that the government would ask the secretive Foreign Intelligence
Surveillance Court to certify that the NSA's Section 215 bulk records collection was part of an “ongoing” investigation,
and could therefore continue indefinitely … until the “investigation” into terrorism is someday over.
Freedom Act: The Law Isn't on Your Side
Besides almost certainly being unconstitutional, the government's abuse of these
surveillance powers since 2001 is both illegal and useless. A federal appeals court
ruled the NSA's bulk metadata program illegal last month, saying most members
of Congress never intended for the Patriot Act to be interpreted that way. Moreover,
a presidential panel concluded that the information gleaned from the NSA's
spying on Americans “was not essential to preventing [terrorist] attacks and
could readily have been obtained in a timely manner using conventional [court]
The law wasn't on your side under the Patriot Act, and it isn't on your side now.
You need to continue to take steps to secure your own privacy and sovereignty from these outrages … and I will continue
to help you to do so.
Federal domestic surveillance is running rampant
Green, April, 2015
(Jason Young Green, JD Candidate 2016, UNC Chapel Hill, Certified Information Privacy Professional, “Abcrailing
Against Cyber Imperialism: Discussing The Issues Surrounding The Pending Appeal Of United States V. Microsoft
Corp.”; North Carolina Journal of Law & Technology, Online Edition; 16 N.C. J.L. & Tech. On. 172 – JRS)
Privacy rights of the individual are constantly at war with effective law enforcement
principles. Alexander, as head of the NSA, was entrusted with the duty to protect the United States from terrorist
threats both at home and abroad. The steps that he took to analyze and act on data that he collected that led to the
reduction of U.S. soldier deaths are noteworthy. n54 However, the government did not fail in its mission to "collect it all"
in its execution, but in its oversight. n55 Gen. Alexander frequently points out that the NSA collection programs are
subject to oversight by Congress as well as the U.S. Foreign Intelligence Surveillance Court. n56 However, the
proceedings of these two bodies are secret. n57 This lack
of transparent oversight has given the
NSA a wide berth in its operations, in violation of the FIPPS that both EU and U.S. privacy
frameworks are based on, specifically the fundamentals of Notice and Consent. n58 By having secret
FISA court orders and ECPA warrants that are rarely, if ever, unsealed, citizens targeted by
NSA are never notified of the invasion of their privacy, and thus have no control
over it. n59 It is this lack of oversight that has allowed the NSA collection mechanism
to run rampant and is precisely what must be addressed.
SQ laws allow federal domestic surveillance without any consideration for 4th
amendment protections
Blass 2015
(Megan; J.D. Candidate 2015, University of California, Hastings College of the Law; “The New Data Marketplace:
Protecting Personal Data, Electronic Communications, and Individual Privacy in the Age of Mass Surveillance Through a
Return to a Property-Based Approach to the Fourth Amendment”; Hastings Constitutional Law Quarterly; 42 Hastings
Const. L.Q. 577 – JRS)
Domestic and International Surveillance Regulations Do Not Protect the Public Because They Require Less Stringent
Standards than the Fourth Amendment The
National Security Agency’s surveillance programs
are typically subject to either ECPA or FISA.25 Generally speaking, ECPA applies to domestic
electronic surveillance or investigation, while FISA applies when the government is gathering intelligence on foreign
targets.26 These statutes purport to place limitations on government surveillance. However, these
actually operate to reduce the burden the government must satisfy in order to
engage in the type of investigation for the purposes of criminal prosecution
generally governed by the Fourth Amendment.27 Both statutes allow the
government to conduct, what I argue should constitute, searches under the Fourth Amendment, in the
absence of Fourth Amendment requirements including probable cause or the
lower standard of reasonable suspicion and in the absence of a warrant.28 Law
enforcement should not be allowed to avoid the Fourth Amendment through the
use of FISA.29 While, in theory, these statutes regulate government surveillance of electronic communications and
personal data, they provide little protection without compliance from agencies, such as the National Security Agency.
There’s no solution in sight: the district court in Klayman ruled that some NSA
domestic surveillance violates the 4th amendment, but it will be an uphill
battle on appeal
Setty, 2015
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law; Harlan Fiske Stone Scholar from Columbia Law School and A.B. in History, concentration in
comparative civil rights, with honors from Stanford University; Stanford Journal of International Law; Winter 2015; 51
Stan. J Int'l L. 69; “Surveillance, Secrecy, and the Search for Meaningful Accountability” – JRS)
Klayman offers some reason for optimism among civil libertarians: Not only did an Article III court decide a post9/11 abuse of power case on its merits, but that decision held that the NSA surveillance at issue was
likely in violation of the Fourth Amendment. Whether appellate courts will
follow the line of reasoning in Klayman as opposed to that of Clapper II and Smith, however, remains unclear.
n99 It is also difficult to predict how the U.S. Supreme Court will respond when
confronted with this matter. On the one hand, individual members of the Court have expressed
skepticism as to the appropriateness of judicial review in matters of national
security-related surveillance. n100 On the other, the Court as a whole has recently shown
significant interest in rethinking the parameters of government surveillance . In the 2012
case United States v. Jones, the Court found that warrantless GPS tracking of an individual's movements for an extended
period of time contravened the parameters set in Smith. n101 The two concurrences in Jones further suggested
reworkings of the Smith framework in light of changing technology and an increased need for robust privacy protection
given the government's ability to access telephonic data with ease. n102 The
opinion in Klayman focused
on Jones to illustrate the need to rethink the nature and scope of privacy given
the vastly different use of technology of today as compared to the 1970s, when
Smith was decided. n103 In mid-2014, the Supreme Court followed this rightsprotective line of reasoning when it decided Riley v. California, holding that
warrantless searches of the electronic contents of an arrestee's cell phone were in
[*88] violation of the Fourth Amendment protections against unreasonable search and seizure. n104
These rights-protective perspectives - offered by justices with different political
and theoretical perspectives - may offer a preview of a significant jurisprudential
shift not only in hearing security-related cases on their merits, but in finding for plaintiffs alleging privacy and civil
liberties infringements. However, the historically deferential attitude of courts toward
matters of national security, a stance that has only compounded in the post-9/11
context, suggests that this may continue to be an uphill battle for civil libertarians. n105
District courts are split
Setty, 2015
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law; Harlan Fiske Stone Scholar from Columbia Law School and A.B. in History, concentration in
comparative civil rights, with honors from Stanford University; Stanford Journal of International Law; Winter 2015; 51
Stan. J Int'l L. 69; “Surveillance, Secrecy, and the Search for Meaningful Accountability” – JRS)
Article III courts have consistently been wary of wading into the debate over
surveillance, almost always dismissing cases in the post-9/11 context on
procedural or secrecy grounds, n84 despite n85 the net effect of precluding even
those individuals with concrete evidence that their privacy and civil liberties had
been infringed from having their grievances heard. n86 Although the Snowden disclosures have
given more purchase to plaintiffs challenging data collection and surveillance, some Article III courts
continue to find that plaintiffs have no grounds to stop the NSA's data and metadata
collection, retention, and analysis.
The case of Clapper v. Amnesty International, n87 decided in early 2013, prior to the Snowden disclosures,
exemplifies the traditional lack of relief available to plaintiffs in Article III courts.
In Clapper, plaintiffs, including attorneys, non-profit humanitarian
organizations, and journalists, alleged that their ability to communicate with and
advise overseas clients and sources was severely compromised by the fact that
their phone calls were likely being surveilled by the NSA or other U.S. government agencies. The
United States Supreme Court dismissed plaintiffs' suit on standing grounds, holding that
plaintiffs "cannot manufacture standing merely by inflicting harm on themselves
based on their fears of hypothetical future harm that is not certainly impending."
Immediately after Snowden's June 2013 disclosures that the telephony data of all U.S. persons is being
systematically collected and stored by the NSA, the ability of plaintiffs to clear the procedural
hurdle of standing improved, since the "fears of hypothetical future harm" that allowed the Clapper
majority to dismiss that case were no longer hypothetical, but publicly known as fact. However, the question of
whether plaintiffs were granted any substantive relief is yet to be determined, since district courts have come
to differing conclusions on the question of the metadata collection program's
[*86] In American Civil Liberties Union v. Clapper ("Clapper II"), filed days after the initial Snowden disclosures, n89 the
ACLU and other organizations claimed that the NSA's metadata collection and retention program violated their First and
Fourth amendment rights by inhibiting their ability to speak freely with clients and by unreasonably searching and
seizing their communications. n90 Judge
Pauley of the Southern District of New York
rejected these claims, holding that although the metadata "if plumbed ... can reveal a rich profile of every
individual," n91 under the long-standing precedent of Smith v. Maryland, n92 plaintiffs had no reasonable
expectation of privacy over their telephony metadata. Further, Judge Pauley accepted the
government's position that the metadata was necessary in disrupting several terrorist threats, and that such
counterterrorism work could not have occurred without the vast trove of data available through the NSA Metadata
Program. n93
With similar facts and claims, n94 Judge
Leon of the District Court of the District of
Columbia in Klayman v. Obama differed from the Clapper II court and concluded that the
constitutionality, statutory authority and efficacy of the NSA's bulk metadata collection program
is, at best, questionable. n95 Judge Leon used these distinctions of both scope and depth of
surveillance to establish that the NSA metadata program constituted a search for
Fourth Amendment purposes. n96 In a particularly remarkable analysis, Judge Leon reasoned
that the continuously expanding use of technology in the everyday lives of most
Americans justified a greater expectation of privacy over information that is
shared electronically, not an ever-shrinking realm of protection over personal
privacy. n97
Having established that a search occurred, Judge Leon considered the plaintiffs' request for preliminary injunctive
relief, finding that there was a [*87] significant likelihood that the plaintiffs would succeed in demonstrating that the
surveillance and searches were unreasonable and, therefore, unconstitutional. To do so, he
touched upon the
intrusive nature of the search and, differing significantly from Judge Pauley in Clapper II, found that the
government had not made a showing that the NSA Metadata Program was necessary to the government's
counterterrorism efforts. n98
SCOTUS review is inevitable
Farivar 2015
(Cyrus, senior business editor at Ars Technica, has reported for The Economist, Wired, The New York Times, Deutsche
Welle English, the Canadian Broadcasting Corporation, Public Radio International, National Public Radio, the Australian
Broadcasting Corporation, B.A. in Political Economy from the University of California, Berkeley and M.S. from the
Columbia University Graduate School of Journalism; January 1, 2015; http://arstechnica.com/tech-policy/2015/01/ifthe-supreme-court-tackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/ -- JRS)
Roughly a year and a half since the first Snowden disclosures, there's already been a judicial order to shut down the
National Security Agency's bulk metadata collection program. The lawsuit filed by Larry Klayman, a veteran
conservative activist, would essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the
only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring.
However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s
Klayman v. Obama is only one of a number of notable national security and
surveillance-related civil and criminal cases stemming fully or partially from the Snowden
documents. In 2014, a handful of these advanced far enough through the legal system that 2015 is likely to
be a big year for privacy policy. One or more could even end up before the
Supreme Court.
"I think it's
impossible to tell which case will be the one that does it, but I believe that,
ultimately, the Supreme Court will have to step in and decide the
constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic
Frontier Foundation, told Ars.
Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like
Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union
(ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases
that will likely be influenced by these decisions, but
those five cases represent the strongest and
most direct legal challenges to the current NSA surveillance state.
1AC — Tyranny Advantage
Contention Two – The End Of Freedom
Blanket collection of information is like a general warrant – gather now, look
for criminality later
Barnett 2015
(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. Director, Georgetown
Center for the Constitution; “Security Vs. Freedom: Contemporary Controversies: The Thirty-Third Annual Federalist
Society National Student Symposium On Law And Public Policy -- 2014: Why The NSA Data Seizures Are
Unconstitutional”; Harvard Journal of Law & Public Policy; 38 Harv. J.L. & Pub. Pol'y 3; Winter 2015 – JRS)
It is also worth remembering that both the English Whigs and the
American Founding generation
thought that the seizure of papers for later search was an abuse distinct from, but
equivalent to, the use of general search warrants--which is why "papers" was
included in the Fourth Amendment in addition to "effects" or personal property. n15 As University of
San Diego School of Law Professor Donald Dripps has shown in a recent article, "at the heart of Whig opposition to
seizing papers was the belief that any search of papers, even for a specific criminal item, was a general search. It followed
that any
warrant to sift through documents is a general warrant, even if it is
specific to the location of the trove and the item to be seized." n16 The seizure of
one's papers for later perusal was thought to be closely akin to searching through
a person's mind to assess his thoughts. Seize first, then search for evidence of
criminality, was considered to be the epitome of an abuse of power. n17 Putting such
information permanently in the hands of government for future use is an invitation to restrict the liberties of the people
whenever such restrictions become politically popular.
[*7] For example, gun
rights advocates have long opposed firearms registration
because the brute fact that the government does not know where the guns are
makes it much more difficult to confiscate them in the future. n18 Not only does this
illustrate the practical danger to constitutional liberties posed by the government simply possessing vast information
about our activities and associations for later search. The trove of phone and email metadata to which the NSA now has
access would make gun registration unnecessary as the government would already possess enough information to
identify most gun owners. n19
This information grab reverses the fundamental premise of “government by
the people” and turns the people into subjects of our rulers
Barnett 2015
(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. Director, Georgetown
Center for the Constitution; “Security Vs. Freedom: Contemporary Controversies: The Thirty-Third Annual Federalist
Society National Student Symposium On Law And Public Policy -- 2014: Why The NSA Data Seizures Are
Unconstitutional”; Harvard Journal of Law & Public Policy; 38 Harv. J.L. & Pub. Pol'y 3; Winter 2015 – JRS)
[*3] Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency
(NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am
not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the
constitutional problem with any such program, regardless of the details: the fact that the NSA is
demanding that private companies, with which virtually all Americans contract
to provide their voice communications, turn over the records of every phone call
that is made on their systems. n1 This metadata is then stored on NSA super computers for later analysis.
In this article, I am not going to address the legality of this program under existing statutes. Jim Harper of the Cato
Institute and I have argued in an amicus brief that the NSA data collection program is illegal because it is not authorized
by Section 215 of the Foreign Intelligence and Surveillance Act as it was modified by the USA PATRIOT Act. n3
Section 215 of the PATRIOT Act allows the Foreign Intelligence Surveillance Court (FISC) to issue orders requiring the
production of tangible things upon satisfactory application by the FBI. The statutory language specifies that an
application for a Section 215 order must include "a statement of facts showing that there are reasonable grounds to believe
that the tangible things sought are relevant to an authorized investigation . . . ." n4 Because we maintain that Section 215
orders must be "relevant" to an already existing investigation, in our brief we contended that orders for the seizure of bulk
metadata on every American for future analysis to uncover evidence of wrong doing are not authorized by the statute
and are therefore illegal. n5
So far, however,
the two federal district court judges who have considered challenges
to the program in the Southern District of New York and in the District of Columbia have both held that,
because Congress has not waived its sovereign immunity to allow the legality of
Section 215 orders to be challenged in federal court, federal courts lack
jurisdiction to hear a statutory challenge. n6 For this reason, this matter may need to be addressed by
Congress. But these same two judges also held that citizens have standing to bring
constitutional challenges to the collection of the telephone companies' records of
their phone calls. n7 So my focus here will be limited to the constitutional issue raised by these blanket seizures
of the private data on all Americans.
Although the only surveillance program that has been challenged thus far
concerns phone records, n8 the principle offered to support this data seizure
applies as well to all other business records of our dealings, including our credit
card transactions. Indeed, in upholding the constitutionality of the program, Judge William Pauley of the
Southern District of New York cited cases that held that "an individual has no
constitutionally protected expectation of privacy" in bank records, records given
to an accountant, subscriber information provided to an internet service
provider, and information from a home computer [*5] that is transmitted over
the Internet or by email. n9 Imagine the chilling effect on liberty if everyone
knew that the government is in possession of all this data about their private
transactions on its super computers. The relationship between the citizens of the
United States and their supposed agents or servants in government would be
fundamentally reversed, turning We the People into mere subjects of our rulers.
So there is a lot more at stake here than just this particular bulk data seizure
program. With the challenge to the Affordable Care Act, we not only wanted to stop Obamacare from being
implemented--which sadly we failed to do--we also wanted to defeat the limitless constitutional arguments that were
being offered in its defense. In this effort, I am pleased to say we succeeded. n10 Now ,
we need to think very
hard about whether these blanket data seizure programs comport with the
Fourth Amendment before, not after, the government decides it needs to seize
data about every facet of our personal lives.
Unrestrained security apparatus threatens permanent loss of American
Glennon 2014
(Michael J.; Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University; Harvard National
Security Journal; 5 Harv. Nat'l Sec. J. 1; “National Security and Double Government”; Professor of International Law,
Fletcher School of Law and Diplomacy, Tufts – JRS)
There is validity to this intuition and no dearth of examples of the frustration confronted by Madisonians who are left to
shrug their shoulders when presented with complex policy options, the desirability of which cannot be assessed without
high levels of technical expertise. International trade issues, for example, turn frequently upon esoteric econometric
analysis beyond the grasp of all but a few Madisonians. Climate change and global warming present questions that
depend ultimately upon the validity of one intricate computer model versus another. The financial crisis of 2008 posed
similar complexity when experts insisted to hastily-gathered executive officials and legislators that—absent massive and
immediate intervention—the nation’s and perhaps the world’s entire financial infrastructure would face imminent
collapse.516 In these and a growing number of similar situations, the “choice” made by the Madisonians is increasingly
hollow; the real choices are made by technocrats who present options to Madisonians that the Madisonians are in no
position to assess. Why
is national security any different?
organizations in question “do not regulate truck widths or
set train schedules. They have the capability of radically and permanently altering the
political and legal contours of our society.”517 An unrestrained security apparatus
has throughout history been one of the principal reasons that free governments
have failed. The Trumanite network holds within its power something far greater than the ability to recommend
higher import duties or more windmills or even gargantuan corporate bailouts: it has the power to kill and
arrest and jail, the power to see and hear and read peoples’ every word and
action, the power to instill fear and suspicion, the power to quash investigations
and quell speech, the power to shape public debate or to curtail it, and the power
to hide its deeds and evade its weak-kneed overseers. It holds, in short, the
power of irreversibility. No democracy worthy of its name can permit that
power to escape the control of the people.
It is different for a reason that I described in 1981: the
NSA surveillance creates a dangerous potential for tyranny
Brand, 2015
(Jeffrey S., Dean and Professor Emeritus and Chairman of the Center for Law and Global Justice, University of San
Francisco School of Law. Dean, University of San Francisco School of Law, 1999-2013. A.B., University of California,
Berkeley, 1966; J.D., University of California, Berkeley, 1969; “Eavesdropping on Our Founding Fathers: How a Return to
the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis”; Harvard National Security Journal;
6 Harv. Nat'l Sec. J. 1 – JRS)
Indeed, the ability to participate in and affect the political debate and process lies at the heart of Lesson Five. Throughout
the FISA debates, this fact was stated dramatically over and over again, sometimes in dire tones by people with access to
America’s deepest held secrets such as Senator
Frank Church, whose committee reports in the
wake of Watergate remain seminal sources to this day. His analysis is stark, declaring
that surveillance powers could: at any time be turned around on the American
people, and no American would have any privacy left, such is the capability to
monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place
to hide . . . The NSA could “impose total tyranny [and] we must see to it this
agency and all agencies that possess this technology operate within the law and
under proper supervision, so that we never cross that abyss. That is the abyss
from which there is no return.211
Senator Muskie put it more diplomatically at the very first hearing after the Watergate break-in: In our
democracy, the decision to invade the privacy of an American citizen or of
anyone living in America must be made with a full regard for the constitutional
rights which could thus be jeopardized. Such a decision should not be made
lightly or arbitrarily by the Executive Branch . . . . It is government’s first responsibility to safeguard
the rights and liberties of its citizens.212 Representative Drinan perhaps put it most cogently: It should be remembered
too that the
liberty of the people is at least as important as the marginal
increment in intelligence information which we acquire through the inherently
indiscriminate method of electronic surveillance. As the District Judge in the Pentagon Papers
case cogently observed: “The security of the nation is not at the ramparts alone.
Security also lies in the value of our free institutions.”213
This is an existential risk — mass surveillance is the lynchpin of tyranny.
Dvorsky 8 — George Dvorsky, Chair of the Board for the Institute for Ethics and Emerging Technologies, cofounder and president of the Toronto Transhumanist Association, 2008 (“Future risks and the challenge to democracy,”
Institute for Ethics & Emerging Technologies, December 24th, Available Online at
http://ieet.org/index.php/IEET/more/2773, Accessed 04-11-2012)
Despite the claims of Fukuyama and Bush, and despite our own collective sensibilities, we
cannot take our
democracies and civil liberties for granted. When appraising the condition of democracies we must
realize that past successes and apparent trajectories are no guarantees of future gain.
Indeed, democracy is still the exception around the world and not the rule.
Historically speaking, democracies are an abnormality. As early as 1972 only 38% of the
world’s population lived in countries that could be classified as free. Today, despite the end of the Cold War, this figure
has only crept up to 46%. We
may be the victims of an ideological bias in which we’ve
assumed far too much about democracy’s potential, including its correlation with progress and
its ability to thrive in drastically different social environments.
Catastrophic and existential risks will put democratic institutions in danger
given an unprecedented need for social control, surveillance and compliance.
Liberal democracies will likely regress to de facto authoritarianism under the
intense strain; tools that will allow democratic governments to do so include
invoking emergency measures, eliminating dissent and protest, censorship,
suspending elections and constitutions, and trampling on civil liberties (illegal
arrests, surveillance, limiting mobility, etc).
Looking further ahead, extreme threats may even rekindle the totalitarian urge; this
option will appeal to those leaders looking to exert absolute control over their
citizens. What’s particularly frightening is that future technologies will allow for
a more intensive and invasive totalitarianism than was ever thought possible in
the 20th Century – including ubiquitous surveillance (and the monitoring of socalled ‘thought crimes’), absolute control over information, and the redesign of
humanity itself, namely using genetics and cybernetics to create a more traceable and controllable citizenry.
Consequently, as a political mode that utterly undermines humanistic values and the
preservation of the autonomous individual, totalitarianism represents an
existential risk unto itself.
Democracy an historical convenience?
It is possible, of course, that democracies will rise to the challenge and work to create
a more resilient civilization while keeping it free. Potential solutions have already been
proposed, such as strengthening transnational governance, invoking an accountable participatory panopticon, and the
relinquishment of nuclear weapons. It
is through this type of foresight that we can begin to
plan and restructure our systems in such a way that our civil liberties and
freedoms will remain intact. Democracies (and human civilization) have, after all, survived the first test of
our apocalyptic potential.
That said, existential and catastrophic risks may reveal a dark path that will be
all too easy for reactionary and fearful leaders to venture upon. Politicians may distrust
seemingly radical and risky solutions to such serious risks. Instead, tried-and-true measures, where the
state exerts an iron fist and wages war against its own citizens, may appear more
reasonable to panicked politicians.
We may be entering into a period of sociopolitical disequilibrium that will instigate the diminishment of democratic
institutions and values. Sadly, we may look back some day and reflect on how democracy was an historical convenience.
This existential risk is worse than mere extinction — it eliminates enjoyment
of life.
Caplan 6 — Bryan Caplan, Professor of Economics at George Mason University, Research Fellow at the Mercatus
Center, Adjunct Scholar at the Cato Institute, holds a Ph.D. in Economics from Princeton University, 2006 (“The
Totalitarian Threat,” Global Catastrophic Risks, Edited by Nick Bostrom and Milan M. Cirkovic, Published by Oxford
University Press, ISBN 0198570503, p. ebook)
Finally, it
is tempting to minimize the harm of a social disaster like totalitarianism,
because it would probably not lead to human extinction. Even in Cambodia, the totalitarian
regime with the highest death rate per-capita, 75% of the population remained alive after three years of rule by the Khmer
Rouge. (Margolin 1999b)
But perhaps an eternity of totalitarianism would be worse than
It is hard to read Orwell and not to wonder:
Do you begin to see, then, what
kind of world we are creating? It is the exact opposite of the stupid
A world of fear and treachery and torment, a
world of trampling and being trampled upon, a world which will grow not less
but more merciless as it refines itself. Progress in our world will be progress towards
more pain. The old civilizations claimed that they were founded on love or justice. Ours is founded upon hatred.
In our world there will be no emotions except fear, rage, triumph and selfabasement. Everything else we shall destroy – everything... There will be no loyalty,
except loyalty towards the Party. There will be no love, except the love of Big Brother. There will be
no laughter, except for the laugh of triumph over a defeated enemy. There will be no art, no
literature, no science. When we are omnipotent we shall have no more need of science. There will be
no distinction between beauty and ugliness. There will be no curiosity, no
enjoyment of the process of life. All competing pleasures will be destroyed.
hedonistic Utopias that the old reformers imagined.
(1983: 220)
Surveillance-driven tyranny is as irreversible and as catastrophic as extinction.
“Try or die” and “any risk” arguments go aff.
Bostrom 12 — Nick Bostrom, Professor in the Faculty of Philosophy & Oxford Martin School, Director of the Future
of Humanity Institute, and Director of the Programme on the Impacts of Future Technology at the University of Oxford,
recipient of the 2009 Eugene R. Gannon Award for the Continued Pursuit of Human Advancement, holds a Ph.D. in
Philosophy from the London School of Economics, interviewed by Ross Andersen, 2011 (“We're Underestimating the Risk
of Human Extinction,” The Atlantic, March 6th, Available Online at
http://www.theatlantic.com/technology/archive/2012/03/were-underestimating-the-risk-of-humanextinction/253821/, Accessed 06-16-2015)
Of course there are also existential risks that are not extinction risks. The concept of an
existential risk certainly includes extinction, but it also includes the risks that could
permanently destroy our potential of desirable human development. One could
imagine scenarios where there might be a permanent global totalitarian
dystopia. Once again that’s related to the possibility of the development of
technologies that could make it a lot easier for oppressive regimes to weed out
dissidents or to perform surveillance on their populations, so that you could
have a permanently stable tyranny, rather than the ones we have seen
throughout history which have eventually been overthrown.
The risk is high because of impending social disruptions caused by economic
inequality and climate change. Empowered with tools of mass surveillance,
the U.S. government will respond with “turnkey tyranny.” This does pose an
existential risk; terrorism doesn’t.
Paglen 13 — Trevor Paglen, artist, writer, and experimental geographer working out of the Department of
Geography at the University of California-Berkeley, author of Torture Taxi: On the Trail of the CIA's Rendition Flights—the
first book to systematically describe the CIA's extraordinary rendition program, has received grants and awards from the
Smithsonian, Art Matters, Artadia, the San Francisco Museum of Modern Art, the LUMA foundation, the Eyebeam Center
for Art and Technology and the Aperture Foundation, holds a Ph.D. in Geography from the University of CaliforniaBerkeley, 2013 (“Turnkey Tyranny: Surveillance and the Terror State,” Creative Time Reports, June 25th, Available Online at
http://creativetimereports.org/2013/06/25/surveillance-and-the-construction-of-a-terror-state/, Accessed 06-16-2015)
Politicians claim that the Terror State is necessary to defend democratic institutions from the
threat of terrorism. But there is a deep irony to this rhetoric. Terrorism does not pose, has never
posed and never will pose an existential threat to the United States. Terrorists will
never have the capacity to “take away our freedom.” Terrorist outfits have no
armies with which to invade, and no means to impose martial law. They do not have
their hands on supra-national power levers like the World Bank and the International Monetary Fund. They cannot force
nations into brutal austerity programs and other forms of economic subjugation. But
while terrorism cannot
pose an existential threat to the United States, the institutions of a Terror State
absolutely can. Indeed, their continued expansion poses a serious threat to
principles of democracy and equality.
At its most spectacular, terrorism works by instilling so much fear in a society that the
society begins to collapse on itself. The effects of persistent mass surveillance
provide one example of such disintegration. Most obviously, surveillance represents a
searing breach of personal privacy, as became clear when NSA analysts passed around phone-sex
recordings of overseas troops and their stateside spouses. And while surveillance inhibits the
exercise of civil liberties for all, it inevitably targets racial, religious and political
minorities. Witness the Department of Homeland Security’s surveillance of Occupy activists, the NYPD’s monitoring
of Muslim Americans, the FBI’s ruthless entrapment of young Muslim men and the use of anti-terror statutes against
environmental activists. Moreover, mass
surveillance also has a deep effect on culture,
encouraging conformity to a narrow range of “acceptable” ideas by frightening
people away from non-mainstream thought. If the government keeps a record of every library book
you read, you might be disinclined to check out The Anarchist Cookbook today; tomorrow you might think twice before
borrowing Lenin’s Imperialism.
Looking past whatever threats may or may not exist from overseas terrorists, the next few
decades will be decades of crisis. Left unchecked, systemic instability caused by
growing economic inequality and impending environmental disaster will
produce widespread insecurity. On the economic side, we are facing an increasingly
acute crisis of capitalism and a growing disparity between the “haves” and
“have-nots,” both nationally and globally. For several decades, the vast majority of economic gains
have gone to the wealthiest segments of society, while the middle and working classes have seen incomes stagnate and
decline. Paul Krugman has dubbed this phenomenon the “Great Divergence.”
A few statistics are telling: between 1992 and 2007, the income of the 400 wealthiest people in the United States rose by
392 percent. Their tax rate fell by 37 percent. Since 1979, productivity has risen by more than 80 percent, but the median
worker’s wage has only gone up by 10 percent. This is not an accident. The evisceration of the American middle and
working class has everything to do with an all-out assault on unions; the rewriting of the laws governing bankruptcy,
student loans, credit card debt, predatory lending and financial trading; and the transfer of public wealth to private hands
through deregulation, privatization and reduced taxes on the wealthy. The Great Divergence is, to put it bluntly, the
effect of a class war waged by the rich against the rest of society, and there are no signs of it letting up.
All the while, we are on a collision course with nature. Mega-storms, tornadoes,
wildfires, floods and erratic weather patterns are gradually becoming the rule
rather than the exception. There are no signs of any serious efforts to reduce
greenhouse emissions at levels anywhere near those required to avert the worst climatechange scenarios. According to the most robust climate models, global carbon emissions between now and midcentury must be kept below 565 gigatons to meet the Copenhagen Accord’s target of limiting global warming to a twodegree Celsius increase. Meanwhile, as Bill McKibben has noted, the world’s energy companies currently hold in reserve
2,795 gigatons of carbon, which they plan to release in the coming decades. Clearly, they have bet that world governments
will fail to significantly regulate greenhouse emissions. The plan is to keep burning fossil fuels, no matter the
environmental consequences.
While right-wing politicians write off climate change as a global conspiracy among scientists, the Pentagon has identified
it as a significant threat to national security. After a decade of studies and war games involving climate-change scenarios,
the Department of Defense’s 2010 Quadrennial Review (the main public document outlining American military doctrine)
explains that “climate-related changes are already being observed in every region of the world,” and that they “could
have significant geopolitical impacts around the world, contributing to poverty, environmental degradation, and the
further weakening of fragile governments. Climate change will contribute to food and water scarcity, will increase the
spread of disease, and may spur or exacerbate mass migration.” Nationally and internationally, the effects of climate
change will be felt unevenly. Whether it’s rising water levels or skyrocketing prices for foods due to irregular weather, the
effects of a tumultuous climate will disproportionately impact society’s most precarious populations.
Thus, the
effects of climate change will exacerbate already existing trends toward
greater economic inequality, leading to widespread humanitarian crises and
social unrest. The coming decades will bring Occupy-like protests on ever-larger
scales as high unemployment and economic strife, particularly among youth,
becomes a “new normal.” Moreover, the effects of climate change will produce new populations of displaced
people and refugees. Economic and environmental insecurity represent the future for vast swaths of the world’s
population. One
way or another, governments will be forced to respond.
As future governments face these intensifying crises, the decline of the state’s
civic capacities virtually guarantees that they will meet any unrest with the
authoritarian levers of the Terror State. It won’t matter whether a “liberal” or
“conservative” government is in place; faced with an immediate crisis, the state
will use whatever means are available to end said crisis. When the most robust
levers available are tools of mass surveillance and coercion, then those tools will
be used. What’s more, laws like the National Defense Authorization Act, which provides for the indefinite detention
of American citizens, indicate that military and intelligence programs originally crafted for
combating overseas terrorists will be applied domestically.
The larger, longer-term scandal of Snowden’s revelations is that, together with other
political trends, the NSA’s programs do not merely provide the capacity for “turnkey
tyranny”—they render any other future all but impossible.
Urgent court action key to stop democracy’s extinction
Brand, 2015
(Jeffrey S., Dean and Professor Emeritus and Chairman of the Center for Law and Global Justice, University of San
Francisco School of Law. Dean, University of San Francisco School of Law, 1999-2013. A.B., University of California,
Berkeley, 1966; J.D., University of California, Berkeley, 1969; “Eavesdropping on Our Founding Fathers: How a Return to
the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis”; Harvard National Security Journal;
6 Harv. Nat'l Sec. J. 1 – JRS)
Finally, in 2013, the FISA court received an additional layer of insulation from review when the Supreme Court decided
Clapper v. Amnesty International. n82 In Clapper, the Court rejected an opportunity to rule on the constitutional merits
of many of the post-9/11 changes to FISA by holding that the plaintiffs lacked standing to bring the action. In a 5-4
opinion authored by Justice Alito, the Court held that plaintiffs' fear that they would be subject to surveillance in the
future was "too speculative" to establish standing. n83
Ultimately, new laws, amendments to FISA, secret rulings of the FISA court, and Clapper are partially responsible for
landing us where we
are today--in a surveillance environment in which it is possible
for the government to collect data on essentially every phone call made in the
United States. In fact, in light of all of these changes, it would be unfair to place all of the blame on the drafters of the
original FISA statute for the Act's inability to weather the 9/11 storm and the concurrent technology revolution.
Nonetheless, the reality is that even without the Patriot Act, the FAA, and Clapper, FISA was destined to implode because
of fundamental flaws in its structure. FISA may have been ambushed by subsequent events but it is not blameless for its
own demise. FISA may no longer be recognizable relative to its initial incarnation, but the seeds of its destruction in its
original structure surely are and they shed light on the lessons that FISA teaches for the future. It is to those flaws and
those lessons that we now turn.
Time is of the essence. After the Supreme Court's decision in Clapper, one
commentator wrote: "Absent a radical sea change from the courts, or more likely
intervention from the Congress, the coffin is slamming shut on the ability of private citizens
and civil liberties groups to challenge government counterterrorism policies." n84
That ominous prognosis punctuates the urgency of learning from the past if we are to halt
the march toward democracy's extinction, a march led by the very institutions
that the Framers created to sustain it.
1AC — Executive Domination Advantage
Contention Three – Executive Domination
Security justifications edge out the judiciary and disrupt checks and balances
– and the executive grabs more unilateral control
Husain 2014
(Waris Husain, Esq., adjunct professor at Howard University School of Law, faculty adviser for Goler Teal Butcher
International Moot Court Team, currently pursuing his S.J.D. at American University Washington College of Law, writing
a comparative dissertation focusing on the Supreme Courts of the United States, Pakistan and India, LL.M. in
international human rights and international business from Washington College of Law, JD Howard University, BA in
government from the College of William and Mary; “Surveillance And Law Enforcement: Tools In The Fight Against
Terror In A Comparative Study Of The United States And Pakistan”; 21 ILSA J Int'l & Comp L 25; ILSA Journal of
International & Comparative Law, Fall 2014 – JRS)
A. Conclusion The
continued proliferation of terrorism and the growing trend of
governments overriding their citizens' protections for a fair trial and privacy
require new methods that both ensure a nation's safety and uphold its
humanitarian, constitutional, and international values. The General Assembly of United
Nations affirmed that,
[R]espect for human rights and the rule of law [is] the fundamental basis for the fight against terrorism . . . . [Member
States] reaffirm[ed] that the promotion and protection of human rights for all and respect for the rule of law are essential
to all components of the Strategy, and recognized that effective counterterrorism measures and the protection of human
rights are not conflicting goals, but complementary and mutually reinforcing. n212
Therefore, it is incumbent upon nations to deal with terrorism in a similar
manner as other long running domestic criminal problems. Nations like the United
States and Pakistan must try to strike the fine balance between security and freedom. In
the alternative, if one is to concede the invocations of the emergency rule that
legitimize wholesale abrogation of fundamental civil rights under certain
circumstances, three phenomena will occur concurrently, as they have been in
the United States and Pakistan recently. The executive branch will expand
categorizations of "national security" to be able to exclusively, secretively, and
unilaterally control more parts of the government, thereby disturbing the system
of checks and balances. The judicial branch will continue to both compromise its
own power by deferring to the executive branch, and lose institutional power
through the passage of anti-judiciary and anti-terrorism legislation like the
PATRIOT Act. Lastly, if current trend concerning the suspension of constitutional protections for terrorism
continues, it will challenge the jurisprudence developed for over 200 years
concerning the right of citizens to privacy, dignity, information, and a fair trial.
These phenomena have led to a breakdown of limitations for government officials wishing to monitor their citizens. In the
United States, the warrant requirement was required for electronic surveillance but this prerequisite approval from a
judge vanished for certain citizens with the passage of laws like the PATRIOT Act and the PAA. Additionally, antiterrorism legislation has led to an increased scope of monitoring by intelligence gathering institutions such as the CIA,
even though the Church Committee found that these institutions could not be entrusted with the power to intrude on
citizens' right to privacy. In Pakistan, while there have been warrant requirements for physical searches, there was an
absence of legislation concerning modem electronic surveillance. The Fair Trial Act attempts to pull surveillance from the
shadows into the rule of law by requiring intelligence officials and police to seek judicial approval before wiretapping of
any suspect. However, critics argue that the Act goes too far in granting intelligence agencies, known for their political
manipulation and brutal activities, the right to impede the right to privacy for invalid reasons.
Critics of the criminal enforcement model argue that civilian courts are ineffective at battling terrorism because they have
standards of proof that cannot be met due to the nature of terrorism. However, the
illegal practices of
intelligence agencies in Pakistan and the United States are a primary cause for the
inability of courts to prosecute individuals. These suspects might in fact be
terrorists, but have been subject to illegal treatment by the government, requiring
most of the evidence collected against them to be set aside by the Court in
accordance with constitutional protections. Therefore, when considering modem
methods of electronic surveillance, one must [*58] keep in the mind the end goal
of prosecuting suspects with admissible and legally obtained evidence.
Giving in to secrecy means unchecked executive power
Brand, 2015
(Jeffrey S., Dean and Professor Emeritus and Chairman of the Center for Law and Global Justice, University of San
Francisco School of Law. Dean, University of San Francisco School of Law, 1999-2013. A.B., University of California,
Berkeley, 1966; J.D., University of California, Berkeley, 1969; “Eavesdropping on Our Founding Fathers: How a Return to
the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis”; Harvard National Security Journal;
6 Harv. Nat'l Sec. J. 1 – JRS)
Lesson Five is certainly related to Lesson One (Pay Attention to the Core Values of the Republic).
A government
of the people, by the people, and for the people is a core value distilled by Lincoln and
known to every schoolchild in America. As basic and obvious as it may seem, its relevance to questions
about next steps in the surveillance debate cannot be overstated. The simple fact
is that secrecy has bred distance between the government and the governed in
profound ways. Indeed, we have arrived at a point in our history where
government actions related to intelligence gathering are only discernable if an
individual commits a criminal act—Edward Snowden being the prime current example. While people
disagree about his motives and how he should be viewed and treated, few would argue with the fact that but for
Snowden’s actions, the microscope under which we currently have placed our
surveillance policies would not exist. That fact should tell us something: The
government is acting in ways that do not respect Lincoln’s words, which we drill into
our children as a first lesson in civics.
The response to these assertions is that the threat is so extraordinary and the pace
of technology so breathtaking that there is nothing that can or should be done to
curb the government’s expanding surveillance practices. Yes, the argument goes,
transparency in a democracy is important, and yes, the people should participate in the decision-making that affects their
lives and rights, particularly the rights to expression and privacy, but those
aspirations must give way if
we are to protect our democratic values. Absolute secrecy and the pervasive
gathering of information, aided by revolutionary technologies that keep us safe, the argument concludes,
are necessary imperatives. In reality, to accept that argument is to end the
argument. Such reductionist logic can only result in the unbridled, unchecked
authority of the Executive Branch. It has the ring of the argument made during
the Vietnam War that “we had to burn the village in order to save it.”198 It also
assumes that the middle ground that FISA sought to achieve in 1978, and which
hopefully we continue to search for today, does not exist.
SQ surveillance chills congressional oversight of the executive – and an
unchecked executive is the most dangerous of all human conditions
Slobogin, March 2015
(Christopher, Milton Underwood Professor of Law, Vanderbilt University Law School, has been cited in almost 3,000 law
review articles and treatises and more than 100 judicial opinions, including three U.S. Supreme Court decisions, Fulbright
Scholar, J.D., LL.M. University of Virginia, A.B. Princeton University; “Symposium Issue: The Future of National Security
Law: Standing and Covert Surveillance; Pepperdine Law Review; 42 Pepp. L. Rev. 517 – JRS)
Perhaps most significantly, surveillance
can compromise the political process even at the
upper reaches of government. In March 2014, for instance, Senator Dianne Feinstein, chair
of the Senate Select Intelligence Committee, complained about suspected (but
unproven) CIA hacking into her office computers.125 Under Clapper, she would
not have standing to bring a claim against the CIA. But in drafting emails and documents
the Senator and her staff undoubtedly now think twice about what they are
saying, especially about executive branch powers. This chilling effect is the kind
of concrete impact that should lead to standing under political process theory. As Senator
Feinstein stated in reaction to the incident, “[T]he CIA’s search may well have violated the
separation of powers principles embodied in the U.S. Constitution, including the
speech and debate clause. It may have undermined the constitutional framework
essential to effective congressional oversight of intelligence activities or any other
government function.”126
Along the same lines, commentators have speculated that members of Congress have
curbed their efforts to regulate surveillance because of their fear of it.127 Some
have even suggested that President Obama has been similarly constrained.128 Glenn
Greenwald summarized the impact of secret panvasive surveillance as “the ultimate
imbalance, permitting the most dangerous of all human conditions: the exercise
of limitless power with no transparency or accountability.”129
In contrast, the types of suits that are typically stymied by standing requirements do not seek to protect the pillars of
democracy. Claims alleging environmental damage or misuse of taxpayer funds raise important issues. But they are not
aimed at protecting the integrity of the political process. Challenges to covert surveillance ultimately address the structure
of government, not its products.130
Unchecked executive power undermines the U.S.-led international system.
This risks global instability.
Knowles 9 — Robert Knowles, Acting Assistant Professor at New York University School of Law, holds a J.D. from
the Northwestern University School of Law, 2009 (“American Hegemony and the Foreign Affairs Constitution,” Arizona
State Law Journal (41 Ariz. St. L.J. 87), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
The hegemonic model also reduces the need for executive branch flexibility, and the
institutional competence terrain shifts toward the courts. The stability of the
current U.S.-led international system depends on the ability of the U.S. to govern
effectively. Effective governance depends on, among other things, predictability. n422 G.
John Ikenberry analogizes America's hegemonic position to that of a "giant
corporation" seeking foreign investors: "The rule of law and the institutions of policy making in a
democracy are the political equivalent of corporate transparency and [*155] accountability." n423 Stable
interpretation of the law bolsters the stability of the system because other
nations will know that they can rely on those interpretations and that there will
be at least some degree of enforcement by the United States. At the same time, the
separation of powers serves the global-governance function by reducing the
ability of the executive branch to make "abrupt or aggressive moves toward other
states." n424
The Bush Administration's detainee policy, for all of its virtues and faults, was an exceedingly aggressive departure from
existing norms, and was therefore bound to generate intense controversy. It was formulated quickly, by a small group of
policy-makers and legal advisors without consulting Congress and over the objections of even some within the executive
branch. n425 Although the Administration invoked the law of armed conflict to justify its detention of enemy combatants,
it did not seem to recognize limits imposed by that law. n426 Most significantly, it designed the detention scheme around
interrogation rather than incapacitation and excluded the detainees from all legal protections of the Geneva Conventions.
n427 It declared all detainees at Guantanamo to be "enemy combatants" without establishing a regularized process for
making an individual determination for each detainee. n428 And when it established the military commissions, also
without consulting Congress, the Administration denied defendants important procedural protections. n429
In an anarchic world characterized by great power conflict, one could make the
argument that the executive branch requires maximum flexibility to defeat the
enemy, who may not adhere to international law. Indeed, the precedents relied on most heavily by the
Administration in the enemy combatant cases date from the 1930s and 1940s - a period when the
international system was radically unstable, and the United States was one of several great powers
vying for advantage. n430 But during that time, the executive branch faced much more exogenous
pressure from other great powers to comply with international law in the treatment of
captured enemies. If the United States strayed too far from established norms, it would risk
retaliation upon its own soldiers or other consequences from [*156] powerful rivals. Today, there are no
such constraints: enemies such as al Qaeda are not great powers and are not likely to
obey international law anyway. Instead, the danger is that American rule-breaking
will set a pattern of rule-breaking for the world, leading to instability. n431
America's military predominance enables it to set the rules of the game. When
the U.S. breaks its own rules, it loses legitimacy.
This crushes the economy and causes proliferation and war.
Goure 13 — Daniel Goure, President of The Lexington Institute—a nonprofit public-policy research organization,
Adjunct Professor in Graduate Programs at the Center for Peace and Security Studies at Georgetown University, Adjunct
Professor at the National Defense University, former Deputy Director of the International Security Program at the Center
for Strategic and International Studies, has consulted for the Departments of State, Defense and Energy, has taught or
lectured at the Johns Hopkins University, the Foreign Service Institute, the National War College, the Naval War College,
the Air War College, and the Inter-American Defense College, holds Masters and Ph.D. degrees in International Relations
and Russian Studies from Johns Hopkins University, 2013 (“How U.S. Military Power Holds the World Together,” inFocus
Quarterly—the Jewish Policy Center's journal, Volume VII, Number 2, Summer, Available Online at
http://www.jewishpolicycenter.org/4397/us-military-power, Accessed 08-17-2013)
The Centrality of U.S. Power
There are three fundamental problems with the argument in favor of abandoning America's security role in the world.
The first problem is that the
United States cannot withdraw without sucking the air out of
the system. U.S. power and presence have been the central structural feature
that holds the present international order together. It flavors the very air that fills
the sphere that is the international system. Whether it is the size of the U.S. economy, its capacity for
innovation, the role of the dollar as the world's reserve currency or the contribution of U.S. military power to the stability
and peace of the global commons, the
present world order has "Made in the USA" written
all over it.
The international system is not a game of Jenga where the worst thing that can
happen is that one's tower collapses. Start taking away the fundamental
building blocks of the international order, particularly American military
power, and the results are all but certain to be major instability, increased
conflict rates, rapid proliferation of nuclear weapons, economic dislocation
and, ultimately, serious and growing threats to security at home.
1AC — Plan
The Supreme Court of the United States should decide that warrantless
collection of metadata and/or content from the electronic communications of
persons inside the United States violates the Fourth Amendment.
1AC — Solvency
Contention Four – the plan solves
Fourth Amendment should extend to metadata – it is no different than
preventing the government from sifting through the papers and personal
effects protected inside your home
Rasley, June 2, 2015
(George, CHQ Editor; “Can You "Compromise" On The Constitution?”; http://www.conservativehq.com/article/20390can-you-compromise-constitution -- JRS)
Former Virginia Attorney General Ken Cuccinelli and our colleague Mark Fitzgibbons have published a new op-ed on the
Fourth Amendment in the Washington Examiner and it makes a point that has been all too overlooked in the debate over
the future of the Patriot Act and other Obama Fourth Amendment abuses.
"Americans do not and cannot trust government to be benevolent - nor should
they. This is part of the reason our Constitution was written as it was in the first
place. And this truth has been proven again and again in modern times, by so many
recent official misdeeds and falsehoods coming from the mouthpieces of government - including prosecutorial
misconduct that has had grave consequences and serious criminal penalties for its victims."
What makes the Patriot Act debate stand out say Cuccinelli and Fitzgibbons is that some people in positions of
responsibility deny that there is even a Fourth Amendment problem with arbitrarily collecting the metadata of all
customer records from telephone companies.
This mass
collection is not merely an expansion of power beyond previous Fourth
Amendment interpretation they say, it also sets dangerous precedent that all
metadata is subject to government's taking without a warrant signed by a judge after a
showing of probable cause that the law may have been violated.
"Metadata" is everywhere observe Fitzgibbons and Cuccinelli. It runs our websites and social media pages and underlies
the accounting and financial records of businesses. Government is already banging on both of these doors, with the
Federal Communications Commission trying to seize control of the Internet and the Consumer Financial Protection
Agency claiming blank-check authority over business records. A
metadata "exception" to the Fourth
Amendment could give government unchecked power over business, free
speech, freedom of association, religious liberty and more.
Making matters worse, they say more than 300 federal statutes authorize government
agencies to issue "administrative subpoenas" unilaterally. Bypassing neutral
judges and probable cause, government agencies may obtain private records of
individuals and businesses, Fourth Amendment be damned.
The Constitution's Bill of Rights was written in broad strokes in the context of the era. The First Amendment freedom of
the press, naturally extended to radio, then television, neither of which existed when the Bill of Rights was adopted. The
Fourth Amendment's protections of "papers and effects," which are private
records and property, should naturally extend to metadata. The government's
authority to reach metadata of persons and merchants should be read in this
originalist context.
To preserve the Fourth Amendment, certain reforms would be useful in clarifying it for the 21st
Century, and correcting mistakes of judicial, executive and legislative interpretation. First, there should be no
presumption that private records in the possession of private third parties may
be taken by the government without probable cause. Also, all warrants - and that
includes administrative subpoenas - should be issued only by neutral judges or
magistrates to preserve the separation of powers inherent in the Fourth
Amendment. Because warrants are issued in chambers, there is no danger in matters of national security conclude
Cuccinelli and Fitzgibbons.
This would seem to be the time for constitutionalists in Congress to strike and to rein-in the abuses
of the
Fourth Amendment that have gradually built-up like barnacles on our right to be secure in
our persons, houses, papers, and effects, against unreasonable searches and seizures, but
Congress it seems is headed in the wrong direction.
Now that Senator Rand Paul has almost singlehandedly stopped the reauthorization of Section 215 of the Patriot Act and
its metadata collection program the
USA Freedom Act is being touted as the appropriate
"compromise" between security and liberty.
The problem with the USA Freedom Act is that rather than perfect the Fourth
Amendment by clarifying its application to data, it would appear to legalize
some of the abuses to which constitutionalists object -- particularly judge-less warrants.
Historical and textual analysis supports the plan
Milligan 2014
(Luke M.; law professor at Univ. of Louisville; “The Forgotten Right to Be Secure”; Hastings Law Journal, Vol. 65:713, Apr
2014; http://ssrn.com/abstract=2302850 – JRS)
This Article locates a solution to the problem of regulatory delay in the text of the Constitution. 13 The Fourth
Amendment has traditionally been interpreted by courts to safeguard a mere right to not be subjected to unreasonable
searches or seizures.14 In other words, the Amendment is read to guarantee nothing beyond the right to be “spared” an
unreasonable search or seizure.15 In 2013, the Supreme Court reaffirmed the conventional “spared” reading of the Fourth
Amendment in Clapper v. Amnesty International.16 In Clapper, all nine Justices agreed that communications surveillance
programs do not violate an individual’s Fourth Amendment rights before the government succeeds in “intercepting” or
“acquiring” that individual’s communications.17 The Court made clear, once again, that the Fourth Amendment is not
violated by attempts or threats to conduct an unreasonable search or seizure.18 Nor are an individual’s Fourth
Amendment rights violated by the existence of a vast surveillance program that happens to spare the individual claimant.
The Fourth Amendment can be read, however, to safeguard more than a right to be
“spared” an unreasonable search or seizure.20 The Amendment provides for
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”21 Unlike its textual counterparts (such as “search,” “seizure,”
and “unreasonable”), the “to be secure” phraseology remains largely forgotten: it is treated
on mere occasion by commentators;22 and it has been left undefined in the case law.23 Historical and textual
analyses of “to be secure,” however, suggest the existence of a Fourth
Amendment right to “protection” against unreasonable searches and seizures,
and perhaps a right to be “free from fear” against such government action.
Support for these interpretations of “to be secure” rest in the dictionary
definitions of “secure,”24 the structure of the Fourth Amendment,25 and
founding-era discourse concerning searches and seizures, which regularly
emphasized the harms attributable to the potentiality of unreasonable searches
and seizures.26
Plan key to accountable democracy
Barnett 2015
(Randy, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. Director, Georgetown
Center for the Constitution; “Security Vs. Freedom: Contemporary Controversies: The Thirty-Third Annual Federalist
Society National Student Symposium On Law And Public Policy -- 2014: Why The NSA Data Seizures Are
Unconstitutional”; Harvard Journal of Law & Public Policy; 38 Harv. J.L. & Pub. Pol'y 3; Winter 2015 – JRS)
III. CONCLUSION Let me conclude by noting that, without the recent leaks, the American public would have no idea of
the existence of these programs, and it still cannot be certain of their scope. n72 Every
day seems to bring
new revelations about domestic surveillance by federal agencies. The secrecy of
these surveillance programs is inconsistent with a republican form of government in
which the citizens are the principals or masters, and those in government their agents
or servants. For the people to control their servants, they must know what their
servants are doing.
Moreover, until these two district courts found--over the government's objections-that citizens had standing to challenge the constitutionality of the bulk-data seizure programs, n73 their
constitutionality had been assessed solely in secret by the FISC that Congress established to
scrutinize the issuance of particular business record subpoenas and warrants. n74
The secrecy of these programs, and the proceedings by which their constitutionality is being assessed,
make it impossible to hold elected officials and appointed bureaucrats
accountable. Internal governmental checks, and even secret congressional
oversight, are no substitute for the sovereign people being the ultimate judge of
their servants' conduct in office. But such judgment and control is impossible without the information that secret
programs conceal.
If these blanket seizures of privately-held data are upheld as constitutional, it would
constitute an unprecedented legal and constitutional sea change. It is not a policy that
should emerge from an advisory panel of judges to which the people are not privy. The American people are
no longer the subjects of King George and his general warrants. Nor should we
be subjected to these modern-day general warrants by those who are supposed
to be our servants, not our masters.
Fourth amendment protection is the last chance
Blass 2015
(Megan; J.D. Candidate 2015, University of California, Hastings College of the Law; “The New Data Marketplace:
Protecting Personal Data, Electronic Communications, and Individual Privacy in the Age of Mass Surveillance Through a
Return to a Property-Based Approach to the Fourth Amendment”; Hastings Constitutional Law Quarterly; 42 Hastings
Const. L.Q. 577 – JRS)
The Relevant Statues Fail to Protect the Public When Agencies Exceed Their Authority Under the Statutes In Jewel v.
National Security Agency, a lawsuit filed by the Electronic Frontier Foundation (“EFF”), a putative class of plaintiffs
made up of AT&T customers sought legal and equitable relief for violations of federal constitutional rights, FISA, and
ECPA.30 They alleged that the NSA, in cooperation with AT&T, engaged in the collection of communications passing
through AT&T’s network at its Folsom Street Facility without satisfying the FISA and ECPA requirements of reasonable
suspicion that the target is a foreign power or agent and reasonable suspicion that the information is relevant to a criminal
investigation or to an investigation to protect against international terrorism and spying.31 Many of the EFF’s allegations
are supported by credible evidence and have been admitted, to some extent, by the government.32 This lawsuit and other
lawsuits filed over the last five years demonstrate that, regardless of the constitutionality of FISA or ECPA, FISA and
ECPA provide little protection for the public when the government refuses to adhere to them.33
National Security Agency’s mass surveillance programs, conducted pursuant to ECPA
and FISA, however, have swept up massive amounts of data and content that would
be ancillary to any individual application for a wiretap. While this is a
tremendous invasion of privacy, the crux of the constitutional issue is that limits
on the use of that data and information have proven to be ineffective. So, not only is the
ECPA and FISA are supposed to limit the collection and use of personal data and electronic communications.34
NSA abrogating its front end responsibilities and obligations under ECPA and FISA in operation of its mass surveillance
programs, the data and content are in turn being improperly utilized in ordinary criminal prosecutions without any
fallback protection from the Fourth Amendment. Failure
to comply with FISA and the ECPA is
what makes the Court’s Fourth Amendment jurisprudence so critical. The Fourth
Amendment is the legal protection of last resort where Congress’s statutory
protections have failed. It is the ultimate backstop.35
Judicial hard power solves
Setty, 2015
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law; Harlan Fiske Stone Scholar from Columbia Law School and A.B. in History, concentration in
comparative civil rights, with honors from Stanford University; Stanford Journal of International Law; Winter 2015; 51
Stan. J Int'l L. 69; “Surveillance, Secrecy, and the Search for Meaningful Accountability” – JRS)
“If the PCLOB is able to exert some degree of soft power in influencing national security decision-making, then the
judiciary represents hard power that could be used to force the protection of civil
liberties where it might not otherwise occur. The FISC should be reformed to include a public
advocate lobbying on behalf of privacy concerns, making the process genuinely adversarial and strengthening the FISC
against charges that it merely rubber stamps applications from the intelligence community. n190 Article
III courts
need to follow the lead of Judge Leon in Klayman in conceptualizing privacy as broad
and defensible, even in a world where electronics-based communication is
dominant and relatively easy for the government to collect. If the judicial defense
of privacy were combined with the possibility of liability for violations of that
privacy, it is likely that this would incentivize increased self-policing among the
members of the intelligence community.”
The executive and legislative branches can’t solve – they don’t have the
capability and it would be a political reversal
Setty, 2015
(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England
University School of Law; Harlan Fiske Stone Scholar from Columbia Law School and A.B. in History, concentration in
comparative civil rights, with honors from Stanford University; Stanford Journal of International Law; Winter 2015; 51
Stan. J Int'l L. 69; “Surveillance, Secrecy, and the Search for Meaningful Accountability” – JRS)
In late March 2014, the Obama administration announced that it would propose legislation to dismantle the bulk
collection program, leaving metadata in the exclusive possession of telecommunications companies and requiring FISC
authorization prior to the NSA accessing the metadata. n48 The type and scope of legislative restrictions were debated
extensively in 2014, but no bill was passed, leaving open the question of whether any additional legislative control will be
exerted by Congress - if not, the status quo of executive control over the scope and intrusiveness of the program will
continue. n49 Section 215 of the Patriot Act, arguably providing statutory authorization of the NSA Metadata Program, is
set to expire in July 2015, a deadline that is sure to prompt legislative debate on whether to renew the program, curtail the
authority granted to the administration, or eliminate the program altogether. The effect of any legislation in curtailing
intrusive surveillance practices is yet to be seen, but the
fact that the administration has already
shifted its public willingness to improving protections of privacy and civil
liberties and increase transparency when compatible with intelligence gathering
interests, is noteworthy as well. n50 Assessment of whether those changes will be meaningful must wait for
further developments, particularly as it may be institutionally and politically difficult for the
president and Congress to shift course dramatically in the face of still-existing
terrorist threats and the political pressure created by the public perception of those threats. n51
The primary message from the Obama administration since the Snowden disclosures has been
that the administration itself is best suited to address whether and to what extent any
recommended changes to NSA surveillance were appropriate, n52 and that the Snowden disclosures
themselves have been unnecessary, [*80] illegal, and counterproductive to both the intelligence gathering programs
themselves and the public discourse. n53 However, there is no indication that any of the accountability measures now
being promoted by the administration would have existed or gained significant purchase but for the Snowden public
disclosures. n54 The various institutional accountability
mechanisms that currently exist within the
executive branch do not appear to be equipped to consider concerns stemming from
intelligence community insiders who have a fuller understanding than the public of the scope and nature of
surveillance programs and who question the basic premise or constitutionality of programs
such as the NSA metadata collection. To the contrary, there are indications that some within
the NSA have actively attempted to avoid oversight by the Department of Justice. n55 The
Office of the Inspector General for the NSA, appointed by and reporting to the director of the NSA, n56
is suited to deal with allegations of statutory and policy compliance violations,
but not with a large scale systemic complaint about privacy and accountability
such as that of Snowden. n57 Other potential avenues for accountability, such as the Office
of the Inspector General for the Defense Department, are rendered irrelevant by
the lack of information access. n58 In fact, the extreme secrecy that surrounded these
surveillance programs, even within the administration, suggests that many existing executive
branch mechanisms were, in the time before the Snowden disclosures, not engaged in effective
1NC — Court Capital DA
A) The Supreme Court will rule for Spokeo in Spokeo v. Robins now:
Rich Samp , 4/15/2015 (staff writer, “Supreme Court Has Opportunity To Halt Lawsuits By Uninjured Plaintiffs,”
http://www.forbes.com/sites/wlf/2015/04/15/supreme-court-has-opportunity-to-halt-lawsuits-by-uninjuredplaintiffs/, Accessed 6/26/2015, rwg)
Federal courts have been inundated in recent years by suits filed by plaintiffs
who have suffered no injury but who allege that a federal statute provides them
with “standing” to sue for alleged violations of federal law. Such lawsuits can be extremely
lucrative for the plaintiffs’ bar when the statute provides for an award of statutory damages (typically, $100 to $1,000) for
each violation; by filing their suits as nationwide class actions, attorneys can often plausibly seek to recover billions of
dollars. The
Supreme Court may soon make it much more difficult for such suits
to survive a motion to dismiss. The Court on Friday will consider whether to grant review in Spokeo v.
Robins, a case that squarely addresses whether plaintiffs can assert Article III standing where their only “injury” is the
affront to their sensibilities caused by the belief that someone is not complying federal law. The
Court has
indicated a strong interest in addressing the issue; Spokeo is an appropriate
vehicle for doing so and ought to be granted.
B) A ruling in favor of Spokeo is a controversial ruling:
Christi A. Lawson, 4/29/2015 (staff writer, “United States: U.S. Supreme Court Accepts Review Of Robins v.
Spokeo, Inc., http://www.mondaq.com/unitedstates/x/393448/trials+appeals+compensation
/US+Supreme+Court+Accepts+Review+Of+Robins+v+Spokeo+Inc, Accessed 6/26/2015, rwg)
The Supreme Court's acceptance of Spokeo's petition is interesting in light of the
fact that the Court previously declined review of two cases with very similar
issues: First National Bank of Wahoo v. Charvat, which the court declined to review, and First American Financial
Corp. v. Edwards, which the Court heard in 2010, but later dismissed certiorari as "improvidently granted." The
Supreme Court's acceptance of Spokeo's petition is also interesting because it
means that the high court has disregarded the recommendations of the federal
government. In October, the high court requested that the Solicitor General file a
brief regarding the government's position. In response, the Solicitor General
recommended that the Court deny Spokeo's petition, which would leave the Ninth Circuit's
decision in place. The Solicitor General supported his position by stating that the public dissemination of inaccurate
personal information about Robins amounted to "concrete harm" that courts have traditionally acted to redress, regardless
of whether the plaintiff could demonstrate some further consequential injury.
C) Court involvement in surveillance undermines the courts institutional
Foundation for Defense of Democracies, 5/22/2012 (“The Supreme Court Enters the Surveillance
Debate,” http://www.defenddemocracy.org/media-hit/the-supreme-court-enters-the-surveillance-debate/, Accessed
7/8/2015, rwg)
To protect the nation from hostile foreign forces is the principal responsibility of the federal government. Primarily, it is
the responsibility of the Executive Branch. The federal courts have held both before and after FISA’s enactment that the
president is endowed by the Constitution with the power to conduct
surveillance — including electronic eavesdropping — against “foreign powers” (a term of art that includes
operatives not only of foreign governments but of such sub-sovereign entities as foreign terrorist organizations). If the
president has that power, it cannot be reduced by a statute — it is black-letter law that the Constitution cannot be
trumped by a mere congressional enactment. The
federal courts were intended to have no
national security role, particularly when it comes to foreign threats, both because they lack
institutional competence in intelligence matters and, more importantly, because
they are not politically accountable to the American people — national defense
decisions being the most significant that a body politic makes.
D) Political capital of the court is necessary to make controversial
Grosskopf and Mondak, 1998 Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak,
Professor of Political Science @ U of Illinois, 1998, “Do attitudes toward specific supreme court
decisions matter? The impact of Webster and Texas v Johnson on Public Confidence in the Supreme
Court” Political Research Quarterly, vol. 51 no 3 633-54 September1998)
The existence of a strong link between basic values and diffuse support does not necessarily preclude a role for
specific decisions, particularly when we seek to understand how support comes to change over time (e.g., Caldeira
and Gibson 1992: 658-61). We believe that any
claim that the Supreme Court is fully immune
to backlash against controversial decisions can be rejected on a prima facie
level. First, consider the extreme case. Were the Supreme Court to make its occasional
blockbusters-Brown v. Board of Education, Roe v. Wade, Texas v. Johnson, etc.-the
norm by routinely ruling on the thorniest social questions, we see it as
implausible that such actions would bring no cumulative impact on how people
view the Court. Second, the Supreme Court's typical mode of operation suggests that justices
themselves view institutional support as an expendable political capital
(Choper 1980). That is, the Court recognizes its own political limitations, and thus justices pick their
spots carefully when approaching potentially controversial cases. From this perspective,
the apparent dominance of democratic values as a determinant of institutional support (e.g., Caldeira and Gibson
strategic justices tread
cautiously so as to keep backlash to a minimum. Consequently, how and where we examine
1992) means not that the Court is insulated from backlash, but that
whether public response to Supreme Court decisions affects institutional support may shape what answer we find.
E) Victory for Spokeo is necessary to prevent billions of dollars of damage
to the tech sector:
Wall Street Journal, 4/16/2015 (“Surf, Cry, Sue,” http://www.wsj.com/articles/surf-cry-sue-1429226196,
Accessed 6/26/2015, rwg)
Trial lawyers have built an empire chasing the potentially injured and convincing them to sue. But what if a multimilliondollar lawsuit required no injury at all? On Friday the Supreme Court will consider taking a case about whether
companies can be held liable in civil court for violating a federal statute, even if no one was harmed. Under Article III of
the Constitution, a plaintiff in federal court has to claim injury to have standing to sue. But over the years, especially in
the area of financial regulation and privacy matters, Congress has passed statutes that allow plaintiffs to sue without
having to show they were injured. Now trial lawyers are translating those developments into class actions. In
v. Robins, Thomas Robins claims that Spokeo, a website that culls data about people, posted information about him
that isn’t true, creating the impression that he is richer and more educated than he is, and married, which he isn’t. Because
of those misrepresentations, Mr. Robins has sued Spokeo in a class action, saying the mistakes upset him and made it
harder for him to get a job. He says he represents a class that “consists of millions of individuals.” ENLARGE Photo:
Corbis The Supreme Court has said that to meet the Article III requirement, a plaintiff has to show an “injury in fact” that
is “concrete and particularized.” Hypotheticals don’t count. There is “an outer limit to the power of Congress to confer
rights of action,” Justice Anthony Kennedy wrote in his concurrence in 1992’s Lujan v. Defenders of Wildlife. “[I]t would
exceed those limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to
entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” A
federal district court dismissed Mr. Robins’s claim that he suffered an economic
injury from the incorrect information, but the liberal Ninth Circuit Court of
Appeals reversed. Even if he hadn’t suffered a personal economic injury, the Ninth Circuit said, alleging a
statutory violation is enough to satisfy Article III’s injury requirements. If that decision is left standing, it
will open the floodgates for the tort bar to sue for statute violations. Mr. Robins claims
Spokeo violated the Fair Credit Reporting Act, but similar class actions are pending in federal courts alleging violations of
privacy laws. The risk is acute for tech companies such as eBay, Facebook, Google and Yahoo, which have said that with a
no-injury requirement they will likely face lawsuits running into the billions of dollars. The trial-lawyer agenda is not to
litigate but to confront companies with such mammoth classes and astronomical legal fees that they will settle, regardless
of the merit of the claim. Jay Edelson,
founder of the law firm representing Mr. Robins,
told the New York Times he has wrested more than $1 billion in settlements
suing technology companies. If left to stand, the Ninth Circuit’s standard could
make that number look like pocket change. The Supreme Court was poised to consider this issue in
a case called First American Financial Corp. v. Edwards, but dismissed it at the last minute without deciding the merits.
We hope the Justices take this one.
F) Strong tech sector key to US military dominance and solving war
around the globe:
Dr. Mary L. Good, 1996(Chair, Undersecretary for Technology, Dept. of Commerce, Technology in the national
interest, accessed via google books)
Technology and the National Defense On the battlefield, technology can be the decisive edge.
America’s technological superiority has provided our men and women in uniform the wherewithal to protect the
freedom, democracy, and security of the United States. Beyond our own borders, U.S.
military strength—
built on a foundation of high-technology—has enabled the United States to stand in
defense of our allies, preserve the peace, deter hostilities, repel aggression, and
foster fledging democracies around the globe. During the Cold War, an arsenal of advanced
weapons allowed the United States to field a technologically superior force to counter the numerically superior Soviet
threat. Today, these high-technology weapons and the transportation and logistics systems that support their
deployment provide the United States with the ability to undertake global military operations and conduct surgical
strikes on strategic military targets—as in recent operations in Iraq and Bosnia—while minimizing the risk to U.S. soldiers
Continued technological leadership is essential to U.S. national
security, military readiness, and global influence.
and civilians.
1NC — Congress CP
The United States Congress should decide that warrantless collection of
metadata and/or content from the electronic communications of persons inside
the United States violates the Fourth Amendment.
Congress solves better than the courts—have a significant institutional
advantage in regulating new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law Review, 102
Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
In this part, I will argue that such enthusiasm for judicial solutions overlooks significant institutional limitations of
judicial rulemaking. Courts
tend to be poorly suited to generate effective rules
regulating criminal investigations involving new technologies. In contrast,
legislatures possess a significant institutional advantage in this area over courts.
While courts have successfully created rules that establish important privacy rights in many areas, it is difficult
for judges to fashion lasting guidance when technologies are new and rapidly
changing. The context of judicial decisionmaking often leaves the law surprisingly
unclear. Courts lack the institutional capacity to easily grasp the privacy
implications of new technologies they encounter. Judges cannot readily understand how the
technologies may develop, cannot easily appreciate context, and often cannot even recognize [*859] whether the facts of
the case before them raise privacy implications that happen to be typical or atypical. Judicially
created rules
also lack necessary flexibility; they cannot change quickly and cannot test
various regulatory approaches. As a result, judicially created rules regulating
government investigations tend to become quickly outdated or uncertain as technology
changes. The context of legislative rule-creation offers significantly better
prospects for the generation of balanced, nuanced, and effective investigative
rules involving new technologies. In light of these institutional realities, courts should proceed
cautiously and with humility, allowing some room for political judgment and maneuvering in a setting that is in such
flux. n345
2AC — Court Capital DA
1. Non-unique: Obamacare decision has angered conservatives:
Carol E. Lee, 6/25/2015 (staff writer, “Obama Has a Good Week,” http://www.wsj.com/articles/obama-has-agood-week-1435253458, Accessed 6/25/2015, rwg)
Tensions will continue between the two parties over health care. Whit Ayres, a
GOP pollster, said Thursday’s ruling wouldn't alter the Republicans’ dim view of
the Affordable Care Act, but rather may strengthen their resolve to repeal the
law. “This will simply increase the interest among Republicans in finding a
preferable alternative to Obamacare,” he said. “It doesn’t change the fundamental Republican
2. No spillover to specific cases—even if capital theory is true it doesn’t apply
to individual decisions.
3. Turn: Activism:
A) Third-party doctrine is an example of judicial activism
Mark Fitzgibbons, 5/28/2015 (“FED’s Mass Data Collecting ‘Third-Party
Doctrine’: A Judicial Fiction Unsupported by the Constitution,”
Accessed 7/9/2015, rwg)
The third-party doctrine, which is a judicial fiction unsupported by the Fourth
Amendment’s text, and has been rejected in I believe seven states, was initially more limited to the bank records
of one targeted crook at a time. It was not created to let government grab the records of all people held by all businesses
all of the time. Lowry writes, “If the National Security Agency’s bulk-data program expires, the coroner should conclude
that it was ‘death by bumper sticker.’” Well, better that than death to the Fourth Amendment by bumper-sticker
application of the third-party doctrine. Proponents of mass, random harvesting of business-owned records have adopted
the un-conservative position that this judicial doctrine construing the Fourth Amendment should forever trump public
opinion and even the separation of powers. The people’s elected officials can overturn the court when the court is wrong.
We are still, after all, a republic. That does not mean, of course, that the Constitution isn’t paramount law over even our
elected representatives, who may not violate the Constitution with legislation. But it is also true that when judicial
opinions favor government acts in violation of the constitutionally protected rights of the people, the black-robed ones are
not the last word. The
judicially created Fourth Amendment third-party doctrine is the
product of judicial activism in favor of government power. Because it is not
supported by the text, purpose or history of the Fourth Amendment, it may be
overturned through our republican process, which involves the will of the people, bumper stickers and all.
B) Activism threatens the courts legitimacy:
ABDULLAH BOZKURT, 4/13/2008 (“Judicial activism’s quarrel with legitimacy and democracy,”
Accessed 7/9/2015, rwg)
“This is judicial activism if not a judicial coup,” says Professor Ergun Özbudun, a teacher of constitutional law at
Ankara’s Bilkent University. “There is no smoking gun in the indictment filed by the chief prosecutor with the
Constitutional Court,” he adds. Judicial
activism is a term adopted in the US to describe
zealous judges who overstep their authority and conflict with the legislature’s
power by making new law rather than interpreting existing legislation. The issue was
constantly debated at the republic’s foundation, spearheaded by Alexander Hamilton in his famous “Federalist Papers”
and Republican Thomas Jefferson. Hamilton argued that the judiciary would be least dangerous to political rights because
it had no influence over the “sword or purse.” Jefferson, however, challenged the proposition, saying that exalting
the judiciary over the executive and legislature would disgrace the judiciary and
lead to its eventual degradation. The Jeffersonian prediction did not happen,
thanks to the US Supreme Court mostly steering clear of politics and respecting
the power of the legislative and executive branches.
4. Non-unique: gay marriage ruling has angered conservatives:
Fox News, 6/26/2015 (“Supreme Court: Same-sex couples can marry in all 50 states,”
http://www.foxnews.com/politics/2015/06/26/supreme-court-same-sex-couples-can-marry-in-all-50-states/, Accessed
6/26/2015, rwg)
Roberts wrote: "If you are among the many Americans -- of whatever sexual
orientation -- who favor expanding same-sex marriage, by all means celebrate
today's decision. ... But do not celebrate the Constitution. It had nothing to do with it." Each of the four
dissenting justices also wrote a separate dissent. Prominent social conservatives, meanwhile,
blasted the decision. Tony Perkins, head of the Family Research Council, said it
puts the government on a "collision course with America's cherished religious
5. Katz precedent has already been undermined:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law Review, 102
Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-First Century, 65 Ind. L.J. 549, 554 (1990) ("The Katz
standard has been twisted to allow the government access to many intimate details about our lives."); Jonathan Todd
Laba, Comment, If You Can't Stand the Heat, Get Out of the Drug Business: Thermal Imaging, Emerging Technologies,
and the Fourth Amendment, 84 Cal. L. Rev. 1437, 1454 (1996) (arguing that although
post-Katz cases
claimed to be applying the Katz test, "this show of loyalty to Katz has proven
specious, for subsequent cases have undermined the promise of Katz"); Brian J. Serr,
Great Expectations of Privacy: A New Model for Fourth Amendment Protection, 73 Minn. L. Rev. 583, 587 (1989) (arguing
that "the entire course of recent Supreme Court fourth amendment precedent, which has narrowed significantly the scope
of individual activities that are protected constitutionally, is misguided and inconsistent with the spirit of the fourth
amendment."); Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in
Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society", 42 Duke L.J.
727, 732 (1993) (arguing that some Supreme Court cases "do not reflect societal understandings" of when an expectation of
privacy is "reasonable," and that "some of the Court's conclusions [about what expectations of privacy are reasonable]
may be well off the mark"); Tomkovicz, supra note 99, at 647 (explaining that post-Katz cases "neither fulfilled the
promises of Katz nor been consonant with an appropriately conceived fourth amendment core.").
6. Turn: Winners win for the Courts—controversial decisions enhance the
court’s legitimacy:
David Law, 2009 (Professor of Law and Professor of Political Science, Washington University in St. Louis,
Georgetown Law Journal, March 2009, 97 Geo. L.J. 723; “A Theory of Judicial Power and Judicial Review,”
Lexis, rwg)
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power.
Conventional wisdom suggests that courts secure compliance with their decisions
by drawing upon their store of legitimacy, which is undermined by decisions that
are unpopular, controversial, or lack intellectual integrity. n25 Part IV argues that precisely
the opposite is true: an unpopular or unpersuasive decision can, in fact, enhance a
court's power in future cases, as long as it is obeyed. Widespread compliance with
a decision that is controversial, unpopular, or unpersuasive serves only to strengthen the
widely held expectation that others comply with judicial decisions. This expectation,
in turn, is self-fulfilling: those who expect others to comply with a court's decisions will find it strategically prudent
to comply themselves, and the aggregate result will, in fact, be widespread compliance. Part IV illustrates these strategic
insights--and the Supreme Court's apparent grasp of them--by contrasting [*734] Bush v. Gore n26 with Brown v. Board of
Education n27 and Cooper v. Aaron. n28
7. No internal link: Capital doesn’t tradeoff between issues-Redish and Cisar, 1991 prof law @ Northwestern and Law clerk to US Court of Appeals,
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR,
Law Clerk to Chief Judge William Bauer, United States Court of Appeals,
Choper's assumption that the judiciary's institutional capital is transferable
from structural cases to individual rights cases is no more credible. Common sense
should tell us that the public's reaction to con- troversial individual rights cases -for
example, cases concerning abor- tion,240 school prayer,241 busing,242 or criminal
defendants' rights243- will be based largely, if not exclusively, on the basis of
its feelings con- cerning those particular issues. It is unreasonable to assume
that the public's acceptance or rejection of these individual rights rulings
would somehow be affected by anything the Court says about wholly
unrelated structural issues.
8. Theory of institutional capital is wrong—votes are based on ideology and
not institutional capital:
Cross and Nelson, 2001 Biz Law @ UT and PoliSci @ Penn State,
(Frank B. Cross, Biz Law @ UT, Blake J. Nelson, Assis prof PoliSci @ Penn State, 2001,
Nw. U.L. Rev. 1437)
judges make
decisions so as to advance their political or ideological [*1444] policy ends,
without regard to either the demands of the normative legal model or the concerns of other
institutions. n39 It is normative in that it assumes that judges are unconstrained and have singlepeaked utility functions. In this model, judges decide so as to advance their ideological
policy ends, without regard for the formal requirements of law (e.g., constraining precedents and text) and
without concern for the reaction of external entities. The political model may find support in
legal sources beyond the legal realists and the contemporary critical legal
theorists. n40 Supreme Court Justices are commonly characterized as "liberal"
or "conservative" - political terms describing the ideological import of their
decisions. Significantly, this model of decisionmaking does not necessitate an
extremely cynical view of judges, as the political model may reflect
subconscious psychology and cognitive dissonance. n41 With the growth of clerk
The normative political model, sometimes called the attitudinal model, contends that
populations, it is easy for "the appellate judge to determine a result based on personal notions of fairness and right,
The political
model can be descriptively accurate, even absent conscious judicial
policymaking. In contrast to the normative legal model, considerable empirical data supports the claims of
the political model of judicial decisionmaking. Many studies have already been described in
the legal literature. n43 Some prominent judges have taken issue with these studies and raised some
and then to leave to the staff attorney the task of constructing reasons to support that result."
methodological challenges, n44 though the challenges are readily answered. n45
Perhaps [*1445] the most persuasive evidence can be found in a meta-analysis of studies on judicial
decisionmaking conducted by Dan Pinello. n46 He identified 140 research papers that empirically analyzed judicial
decisionmaking by party affiliation. A majority of these papers reported data in a manner that could be
every study showed a positive
association between judicial voting and judicial ideology. n47 The studies
together contained over 222,000 judicial votes, and the judges' political party explained
incorporated in his meta-analysis, and he found that virtually
thirty-eight percent of the variance in their voting.
9. No link: no one pays attention to the court:
Noah Feldman, 6/17/2012 ( professor of constitutional and international law at Harvard, “Supreme
Court’s Super Mondays Don’t Serve Justice,” http://www.bloomberg.com/news/2012-06-17/supreme-courts-super-mondays-don-t-serve-justice.html, Accessed 7/28/2012, rwg)
The club of Supreme Court devotees (OK, junkies) likes to think of the first Monday in October as opening day, and the
last Monday in June as game seven of the World Series. But many years, the series is a dud. Most of the cases are technical
and unexciting, they enter the casebooks with
will be the exception that proves the rule.
little fanfare, and the public barely notices. This year
10. Individual decisions don’t affect capital.
Gibson et al., 2003 PoliSci @ Wash U in St. Louis and Ohio State, 2003
James L. Gibson, PoliSci @ Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio
State, Lester Kenyatta Spence, Poli Sci @ Wash U in St. Louis, Apr. 2003, “Measuring
Attitudes toward the United States Supreme Court” American Journal of Political Science,
Vol. 47, No. 2 (Apr., 2003), pp. 354-367
Perhaps more
important is the rather limited rela- tionship between performance
evaluations and loyalty to the Supreme Court. These two types of attitudes are of course not
entirely unrelated, but commitments to the Supreme Court are not largely a function
of whether one is pleased with how it is doing its job. Even less influential
are perceptions of decisions in individual cases. When people have developed a "running
tally" about an institution-a sort of historical summary of the good and bad things an institution has done-it is
difficult for any given decision to have much incremental influence on that
tally. Insti- tutional loyalty is valuable to the Court precisely because it is so
weakly related to actions the Court takes at the moment.
11. Judicial capital is resilient – one controversial decision won’t destroy it.
Grosskopf and Mondak, 1998 (Anke Grosskopf, Assistant Prof of Political Science @
Long Island University, & Jeffrey Mondak, Professor of Political Science @ U of Illinois, 1998,
“Do attitudes toward specific supreme court decisions matter? The impact of Webster and Texas v
Johnson on Public Confidence in the Supreme Court” Political Research Quarterly, vol. 51 no 3
633-54 September1998)
Opinion about the Supreme Court may influence opinion about the Court's decisions, but is the opposite true?
Viewed from the perspective of the Court's justices, it
would be preferable if public reaction to
rulings did not shape subsequent levels of support for the Court. If opinion about
the Court were fully determined by early political socialization and deeply rooted attachments to democratic
values, then justices would be free to intervene in controversial policy questions without risk that doing so would
a long tradition of scholarship argues that
the Supreme Court is esteemed partly because it commands a bedrock of public
support, or a reservoir of goodwill, which helps it to remain legitimate despite occasional
critical reaction to unpopular rulings (Murphy and Tanenhaus 1968; Easton 1965, 1975; Caldeira 1986;
Caldeira and Gibson 1992). The sources of this diffuse support are usually seen as rather stable and
expend political capital. Consistent with this perspective,
immune from short-term influences, implying that evaluations of specific decisions
are of little or no broad importance. For instance, Caldeira and Gibson (1992) find that basic democratic
values, not reactions to decisions, act as the strongest determinants of institutional support.
2AC — Congress CP
1) Agent counterplans are bad:
A) They steal the entire AFF—they get back 8 minutes of arguments with a
10 second plan text.
B) Creates a strategy skew can’t argue against ourselves.
C) Voting issue for fairness & education.
2) Doesn’t solve the Fourth Amendment: Fourth Amendment
jurisprudence is on the brink of collapse—only the courts can solve:
Timothy Casey, 2008 (Associate Professor of Law, Case Western Reserve University School of Law, “RIGHTS AND
REMEDIES: Electronic Surveillance and the Right To Be Secure,” UC Davis Law Review, Lexis/Nexis, Accessed
6/25/2015, rwg)
Recent cases demonstrate that our Fourth Amendment jurisprudence is on the
verge of collapse and will only survive if courts reclaim the original meaning
and language of the Constitution. The next paradigm shift must include a
departure from Katz's use of privacy language, and focus instead on the right of the People to be secure.
Fundamental to the modern conception of personal security, and indeed one of the basic precepts of the Founding
Fathers, is the idea that the government does not ensure the security of the People, but rather that the government
embodies the interest against which the People must be protected. Reclaiming the original language of the Constitution
by substituting a right to personal security for a reasonable expectation of privacy will simultaneously dispel the false
notion that the Fourth Amendment protects individual interests in opposition to collective interests, and reaffirm the idea
that only by protecting individual security will we increase our collective personal and national security.
3) Doesn’t solve the presidential powers advantage—extend our Casey
evidence that the courts are key—Congressional legislation will fail.
4) Doesn’t solve tyranny advantage. Court action is needed — extend
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law Review, February 2005, 79 Tul. L.
Rev. 519; Lexis)
Still, it is worth considering Brown's at best partial success and wondering whether integration would have been more
successful if Congress had more aggressively assisted the Court. n110 Indeed, the steps Congress did take - most notably
the conditioning of federal education funds on desegregation - helped quicken the pace of change. n111
This is not to say that integration would have occurred immediately, peacefully, and comprehensively had the effort
been led by Congress. The anti-Brown rhetoric of segregationists, criticizing Brown as a judicial usurpation,
n112 was largely opportunistic - that is, much, if not most, of that opposition was based on the rejection of integration
itself, not the fact that integration was being "illegitimately" imposed by courts.
6) Legislatures need for re-election makes the courts better for the rights of the
Donald A. Dripps, 1993 (Professor of Law, University of Illinois at Urbana-Champaign, Syracuse Law Review,
For many years, commentators have decried the failure of American legislatures
to promulgate statutory rules of criminal procedure. n1 With few exceptions, however,
legislatures have done little by way of limiting the discretion of police and
prosecutors, or requiring the criminal courts to observe procedural safeguards against unjust conviction. By default,
the judiciary has become the principal guardian of the rights of the accused. This
long-standing situation invites two questions, one positive and the other normative. The positive question is why are
legislatures indifferent or hostile to the rights of the accused? Why
should a democratically-elected
legislature be in favor of unreasonable searches, coerced confessions, unreliable identification
evidence, or biased juries? As we shall see, legislatures in fact favor all of these things, and
for compelling reasons of electoral survival.
7) Court will check the Congress—blocks solvency:
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law Review, February 2005, 79 Tul. L.
Rev. 519; Lexis)
Yet congressional action is impeded by the very text that it could potentially rejuvenate. The fact that
Congress's power is limited to "enforcing" the Equal Protection Clause means that that power is necessarily tied to the
meaning of that provision. By itself this requirement is unremarkable: all it means is that when Congress seeks [*524] to
enforce the Equal Protection Clause, its action must have some link to the meaning of equal protection. But because the
Fourteenth Amendment also includes a judicially enforceable component, questions about the
acceptable range of congressional action inevitably require consideration of how the courts have understood that
guarantee. In turn, if the meaning of the Amendment is thought to depend solely and completely on what the Court says
the Clause means - in other words, if we adopt a juricentric model - then lack of clarity in the Court's equal protection
jurisprudence necessarily infects, and thus impedes, congressional attempts to breathe new life into it.
8) Courts clarification of Katz necessary as technology continues to advance:
Ric Simmons, 2002 (Acting Assistant Professor of Law, New York University School of Law, Hastings Law
Journal, “From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies,”
Accessed 7/8/2015, rwg)
In deciding Katz, the Supreme Court took a dramatic step towards adopting a results-based test for applying the Fourth
Amendment to new technologies. However, the
language in Katz was sufficiently vague to
muddle the distance that was traveled in that step. This ambiguity has created a
troubling dissonance in Fourth Amendment jurisprudence. It is now time for
courts to clarify the mandate in Katz and confirm that the landmark case
rendered irrelevant any consideration of the methods used in government
surveillance. This clarification is becoming only more critical as technology
continues to advance, allowing law enforcement officials access to more and more intimate information
without any physical intrusion - and indeed without the target's knowledge. We must learn from the absurdity in the case
law before Katz, and at the same time consider the implications of the surveillance technologies which will become more
ubiquitous as time progresses. In this way both the [*1358] past and the future lead us to a better understanding of Katz one which looks beyond the method of the search.
9) Courts are better than the legislative branch at protecting personal
William J. Fenrich, 1996 (Fordham Law Review, “NOTE: COMMON LAW PROTECTION OF INDIVIDUALS'
RIGHTS IN PERSONAL INFORMATION,” Accessed 7/9/2015, rwg)
In addition to these judicial attempts, many commentators have advocated legislation that would grant individuals legal
rights in their personal information. n44 These commentators argue that the legislature is better equipped than a court to
establish such a right, which would require that any person or institution must obtain the affirmative consent of a datasubject before disseminating to third-parties that data-subject's name, address, and/or telephone number. n45 Actual
legislative proposals have been introduced in a number of state legis- [*958] latures over the past year. n46 Again, not one,
however, has been successful. This Note argues that despite
the theoretical appeal of a legislative
solution to the issue of unauthorized dissemination of personal information,
individuals should not wait for legislative action but rather should continue to litigate the issue in
state courts. Courts are well suited to address the issue for two distinct but related
reasons. First, when appropriate, state courts can extend and modify the common law to
keep pace with technological and societal changes. Second, legislatures often are
too beholden to special interests to thoughtfully and rationally consider certain
questions. Courts, which possess greater independence than legislatures, must
consider whether individuals should have legally enforceable rights in their
names and personality profiles.