Surveillance State Repeal Act Affirmative
1AC — Plan Options (Basic)
1. The United States federal government should enact the Surveillance State
Repeal Act.
2. The United States federal government should enact H.R. 1466 (the
Surveillance State Repeal Act).
1AC — Plan Options (Authority-Based)
3. A warrant-based, probable-cause standard should be required for seizing
and searching the communications of any American.
4. Domestic surveillance authority under the USA PATRIOT Act, Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008, and Executive
Order 12333 should be repealed.
5. Domestic surveillance authority under the USA PATRIOT Act, Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008, and Executive
Order 12333 should be repealed through the enactment of the Surveillance
State Repeal Act.
1AC — Plan Options (Partial Enactment)
6. Sections one, two, three, five, six, and eleven of the Surveillance State
Repeal Act should be enacted.
7. The United States federal government should enact the topical provisions of
the Surveillance State Repeal Act.
8. Topical provisions of the Surveillance State Repeal Act should be enacted.
9. Provisions of the Surveillance State Repeal Act that substantially curtail
domestic surveillance by the United States federal government should be
enacted.
1AC — Plan Options (Creative/Other)
10. Comprehensive reform of United States federal intelligence agency
domestic surveillance should be enacted.
11. All legal authority for the collection and analysis of Americans’ electronic
communications without a warrant and probable cause should be completely
eliminated.
12. The United States federal government should prohibit federal agencies
from collecting Americans’ electronic communications without obtaining a
valid, particularized search warrant based on a transparent judicial
determination of probable cause from a federal court staffed with judges and
advisors with technological expertise in the subject matter of the proceedings.
This requirement should be enforced regardless of whether an individual has
provided communications to a third party acting as a conduit for information
intended for someone else and should be subject to oversight review
(including robust whistleblower protections and an annual audit report to
Congress) by the Government Accountability Office. “Collecting Americans’
electronic communications” should be defined to include attempts by federal
agencies to obtain Americans’ electronic communications by requiring or
encouraging manufacturers of electronic devices or software to build into such
devices or software a mechanism that allows the federal government to bypass
encryption or privacy technology.
1AC — Solvency
Contention __ is Solvency
First, the plan effectively dismantles the U.S. surveillance state. Only
comprehensive reform eliminates actual and latent abuse.
Holt 14 — Rush Holt, Member of the United States House of Representatives (D-NJ), former Head of the Nuclear and
Scientific Division of the Office of Strategic Forces at the U.S. Department of State, former Assistant Director of the
Princeton Plasma Physics Laboratory at Princeton University, holds a Ph.D. in Physics from New York University, 2014
(“Time to end the ‘surveillance state’,” MSNBC, January 17th, Available Online at http://www.msnbc.com/msnbc/timeend-the-surveillance-state, Accessed 06-19-2015)
On January 21, 2009, I stood on the steps of the United States Capitol and heard Barack Obama – who, minutes before,
had been sworn in as the president of the United States – deliver a striking call for the protection of civil liberties. “Our
Founding Fathers,” he said, “faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and
the rights of man.” As Americans, he added, we must “reject as false the choice between our safety and our ideals.”
How troubling, then, to hear that same president claim on Friday that America must strike “the balance between security
and liberty” – embracing the same false choice that he himself once denounced.
The president’s remark came in a nearly hour-long speech intended to calm public fury over the National Security
Agency’s abuses of its surveillance authority. His speech suggested that the intelligence
community is undergoing meaningful reforms, but the truth is that the president’s
reform proposals are not nearly as exhaustive, or as effective, as he implied.
We should start by remembering that the NSA’s abusive practices originated in the
organizational culture of the intelligence community as a whole: collect
everything, keep everything – forever. The NSA has dedicated, patriotic Americans who employ
astounding, sophisticated capabilities and who are developing more every day. Naturally, in their zeal to do
their job, they want to use their capabilities to the fullest, even if this tramples on
the rights of Americans or is ineffective.
But rather than meaningfully reining in these capabilities, the president’s
proposals continue to allow surveillance of Americans without requiring a
Fourth Amendment determination of probable cause. They continue to regard
Americans as suspects first and citizens second. They continue to allow the
government to build backdoors into computer software and hardware. They fail
to strengthen protections for whistleblowers who uncover abusive spying.
The most disturbing omission from President Obama’s reforms was any
commitment to enforcing the Fourth Amendment’s warrant-based, probablecause standard for seizing and searching the communications of any American.
Instead, the president required only “reasonable suspicion” to query the NSA’s
mass surveillance databases – a much lower standard that was already in place
during the abuses uncovered to date.
In embracing the “reasonable suspicion” doctrine, the president overruled his
own task force on surveillance reform and endorsed a practice that a U.S. District
Court judge has found unconstitutional. He also misinterpreted the intent of our
Founders when they wrote the Bill of Rights in the first place. In his history lesson he omitted
discussion of the despised general warrants that colonists found so daunting and
frightening and that have returned now in the wholesale collection of data on
Americans. The Fourth Amendment does not exist to impede police or intelligence agencies. To the
contrary, it exists to hold to hold government agents to a high standard – to ensure that
they act on the basis of evidence and pursue real culprits, rather than wasting
time and resources on wild goose chases.
The president also left unaddressed the subversion of encryption standards by
the NSA, as well as its efforts to pressure companies to build “back doors” into
their products to facilitate NSA access to hardware, firmware, or software.
American tech companies stand to lose billions of dollars in overseas business due to the
revelation that the NSA has pressured them to hamper their own products. That
economic toll seems likely to mount in the months ahead.
And of course, the president’s remarks left unaddressed a deeper problem: how can we
trust that the intelligence community is being honest about its own activities?
Even I, as a member of Congress, have been repeatedly misled by the NSA. In
December 2005, for instance, when I was a member of the House Permanent Select Committee on Intelligence, I asked
NSA Director Keith Alexander whether the NSA was spying on Americans. He assured me they were not. One week
later, The New York Times ran its initial story on what is now known as the “Stellar Wind” warrantless surveillance
program.
How, in an atmosphere of such secrecy, can the public ever gain full confidence
that the NSA is operating within legal bounds? Because the work of the NSA is
so extensive and so technical, courts overseeing its programs need enhanced
technical expertise. And because the NSA’s executives are so skilled at
presenting only the information they chose, full oversight is possible only with
inside information from whistleblowers who understand the programs. Without
whistleblower protections for intelligence employees that are similar to those
afforded to other government employees, Congress and the public will learn of
failures or abuses too late, if ever. But the president’s proposals omitted any
mention of whistleblower protections, as well.
Even the modest improvements that the president announced – for instance, requiring a
cost-benefit analysis before spying on the heads of state of foreign nations, rather than simply spying on everyone – are
subject to reversal at a stroke of the president’s pen. These new standards are
backed only by the president’s good intentions.
But as Daniel Webster observed in an earlier age, “Good intentions will always be pleaded for every assumption of
authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good
intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good
masters, but they mean to be masters.”
Our duty is to ensure that our nation remains under the rule of law, not the
whims of those in power. We must eliminate these NSA programs and their
actual and latent potential for abuse. To achieve that end, Congress should pass
the Surveillance State Repeal Act – legislation I’ve authored that would repeal the
laws that made the NSA’s abuses possible in the first place.
Second, only the plan solves — anything less gets circumvented.
Marthews 15 —Alex Marthews, National Chair at Restore The Fourth—a 501(c)(4) nonprofit that seeks to
strengthen the Fourth Amendment to the United States Constitution and end programs that violate it, holds a Masters in
Public Policy from the University of California-Berkeley and a B.A. in English from the University of Cambridge, 2015
(“Go Big or Go Home: Pass the New Surveillance State Repeal Act,” Restore The Fourth, March, Available Online at
http://restorethe4th.com/blog/go-big-or-go-home-pass-the-new-surveillance-state-repeal-act/, Accessed 06-19-2015)
Nearly two years after Snowden began revealing them, Congress
has done nothing to fix the US
government's massively abusive surveillance practices. They think Americans will be OK with an
unconstitutional, sprawling, mass-surveillance empire intruding into every part of our lives. We’re not. It’s time to take a
stand.
We’ve seen what happens when reformers try to nibble around the edges, when
we try to pre-compromise with the intelligence community. We saw a good reform bill
last session, the “USA FREEDOM Act”, get stripped of nearly everything worth
doing as it passed through the process, and then it failed anyway. So this time, we’re
setting out for what we’d really like to see happen–a bill that embodies our
vision for a new way of dealing with security and surveillance.
Restore The Fourth has been working quietly with a new coalition of surveillance
reform groups and with representatives interested in real reform, and today we’re
helping to launch HR 1466, the Surveillance State Repeal Act. Co-sponsored by Rep. Thomas
Massie (R-KY) and Rep. Mark Pocan (D-WI), this bill strikes at the heart of the surveillance
state.
The SSRA: repeals the PATRIOT Act; repeals the FISA Amendments Act;
requires the destruction of information gathered under that Act; reforms the
Foreign Intelligence Surveillance Court; bans law enforcement “back doors” into
our hardware and software; requires annual audits of intelligence community
practices; protects intelligence community whistleblowers; and requires a
probable cause warrant for information on US persons gathered under Executive
Order 12333.
It is the only comprehensive surveillance reform bill in this Congress, and it
deserves maximum publicity and support.
Details
The SSRA...
1. Repeals the PATRIOT Act and the FISA Amendments Act.
The PATRIOT Act was passed by a panicked Congress in the weeks following the 9/11 attacks. At the time, it
was a wet dream for law enforcement. Since then, it’s become clear that it doesn’t meaningfully help with
thwarting terrorist attacks. What it is very good at is legitimating activities more
appropriate for the East German secret police than for a free republic. Secret
national security letters that recipients can’t talk about or challenge. Phone
metadata dragnets sweeping up calls from Pawtucket to Peoria. So-called
“roving wiretaps” that deeply violate the Fourth Amendment requirement for
particularized probable cause. This was all meant to be “emergency” legislation.
The emergency is long past, and it’s time to bury the PATRIOT Act in the
unhallowed ground it deserves.
The FISA Amendments Act was passed after the Bush administration’s illegal
mass surveillance became public. Its purpose was to give a vague color of law to
their intentional violations, prevent their prosecution, and also give immunity to
the criminals running our telecommunications companies who went along with
administration requests rather than protecting their users. It also turned the
Fourth Amendment on its head, by approving warrants connected to a
“program” rather than a person. Not only would SSRA repeal the FISA
Amendments Act, but it would require the destruction of any information
gathered under it.
2. Reforms the Foreign Intelligence Surveillance Court set up after the surveillance scandals
of the 1970s.
It increases the independence of judges by extending their terms from seven to ten years
and allowing them to have multiple terms on the Court. It allows technical experts to
be appointed to assist the judges in forming a more critical and independent
view of administration demands.
3. Bans the farcical practice of mandating “back doors” for government access to
hardware and software.
Computer security can’t be designed to provide a “magic golden key” to the US
government (while also making systems vulnerable to foreign governments and
black-hat hackers). You’re either vulnerable or you’re not. The US government
should be promoting secure cyber-infrastructure, not holding conferences on
how to weaken it.
4. Improves transparency by requiring the GAO to audit domestic surveillance
annually.
Famously, there’s a GAO room at the NSA that is empty, because too many
members of Congress don’t want to appear unpatriotic by calling on GAO to
investigate a surveillance agency. Required annual audits would overcome that
problem.
5. Sets out whistleblower procedures for employees of or contractors to
intelligence agencies, requires the Comptroller General to investigate and report
on their complaints, and prohibits retaliation against them.
6. For the first time, meaningfully limits collection under Executive Order 12333,
requiring (for US persons) a valid warrant based on probable cause.
In short, this is a blockbuster bill. If passed, it would undo much of the enormous
damage done to the Bill of Rights after the September 11 attacks. It would return
us to a path we should never have left, where we investigate Americans only when we
have reason to. At the same time, we believe it will increase our actual security. We
have been trying too much to control our own citizens and the world by
surveilling them into sullen and resentful silence; we make a desolation, and call
it peace. If instead we practice justice, promote peace, and let people pursue their
ideas and aspirations freely, we will be far more secure in the long run.
Third, improved oversight is crucial. Without it, agency circumvention is
inevitable.
Holt 13 — Rush Holt, Member of the United States House of Representatives (D-NJ), former Head of the Nuclear and
Scientific Division of the Office of Strategic Forces at the U.S. Department of State, former Assistant Director of the
Princeton Plasma Physics Laboratory at Princeton University, holds a Ph.D. in Physics from New York University,
interviewed by Timothy B. Lee, 2013 (“Here’s what real reform of the NSA looks like,” Washington Post, August 2nd,
Available Online at http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/02/heres-what-real-reform-ofthe-nsa-looks-like/, Accessed 06-20-2015)
What can be done to make the intelligence community more transparent and accountable?
Part of the problem is that the NSA
has been using these [laws] as excuses for doing a lot of
things. And the FISA court has been insufficient in its review. That's why I think
they should be repealed. Can the NSA, can the CIA, can other intelligence agencies do things that are not in
the national interest? You bet they can. They have from time to time over decades.
Congress has to do a better job of oversight. There's no question that it's made
hard when the intelligence agencies obfuscate and cherry-pick what they tell
Congress. No one likes to be criticized, and therefore no agency likes Congressional
oversight. But many agencies understand that for this government with balance
of powers to work, they have to cooperate in the oversight.
You've heard no doubt members of Congress who have served on the Intelligence
Committees say they have to play a form of 20 questions with intelligence
witnesses. For many of the witnesses, their idea of being straightforward and
honest is giving the narrowest possible specific answer to a question, not really
providing the information Congress actually needs. They play a little game to
see if members of Congress will ask these specific questions, to which they'll give
an answer that's relevant. If a member doesn't ask that specific question, the
intelligence officials will leave the meeting room smiling to themselves about
protecting the secrecy of their agency. It's a game that doesn't serve the oversight
process, it's a game that doesn't serve America well.
Fourth, the NSA laughs at status quo reforms — they’re trivial.
Froomkin 15 — Dan Froomkin, Senior Writer for The Intercept, former Columnist for the Washington Post where he
wrote the “White House Watch” column, former Senior Washington Correspondent and Bureau Chief for The Huffington
Post, 2015 (“Hayden Mocks Extent of Post-Snowden Reform: ‘And This Is It After Two Years? Cool!’,” The Intercept, June
17th, Available Online at https://firstlook.org/theintercept/2015/06/17/hayden-mocks-extent-post-snowdensurveillance-reform-2-years-cool/, Accessed 06-20-2015)
Former National Security Agency director Michael Hayden on Monday marveled at the puny
nature of the surveillance reforms put in place two years after NSA whistleblower Edward
Snowden revealed a vast expansion of intrusive U.S. government surveillance at
home and abroad.
Hayden mocked the loss of the one program that was reined in — the NSA’s bulk
collection of metadata information about domestic phone calls — calling it “that little 215
program.”
And he said if someone had told him two years ago that the only effect of the
Snowden revelations would be losing it, his reaction would have been: “Cool!”
Here is the video and the full text of his remarks:
[The “video” being linked to is here: https://screen.yahoo.com/former-nsa-head-hayden-snowdens-020710743.html]
If somebody would come up to me and say “Look, Hayden, here’s the thing: This
Snowden thing is going to be a nightmare for you guys for about two years.
And when we get all done with it, what you’re going to be required to do
is that little 215 program about American telephony metadata — and by
the way, you can still have access to it, but you got to go to the court and
get access to it from the companies, rather than keep it to yourself” — I go:
“And this is it after two years? Cool!” (Yahoo.com)
Hayden was speaking at the annual meeting of the Wall Street Journal CFO Network, an event hosted “by the Journal’s
senior editors” for “an invitation-only group of more than 100 chief financial officers of the world’s largest companies.”
Asked if he thought Snowden was a foreign agent, Hayden said: “I’ve got my suspicions,” although he acknowledged,
“I’ve got no evidence.”
Some opponents of massive government surveillance hailed the passage, earlier this
month, of the USA Freedom Act. And it did, in fact, mark the first time that Congress has limited the
executive branch’s surveillance authority over four decades of explosive growth.
But some observers noted that it was a very small step at best. The program was
just one out of the multitude Snowden revealed — and was so blatantly out of
line that its end was virtually a foregone conclusion as soon as it was exposed.
Seemingly irreconcilable media coverage reflected the reality that the reform bill
was both important and, from the NSA’s perspective, trivial.
Hayden’s remarks were the most blunt yet emphasizing that latter point.
Fifth, the plan solves without jeopardizing counter-terrorism. Targeted
investigations of specific people are still authorized.
Buttar 15 — Shahid Buttar, Executive Director of the Bill of Rights Defense Committee, Director of Civil Rights
Enforcement in the Green Shadow Cabinet—a civic organization whose membership includes prominent scientists,
community and labor leaders, physicians, cultural workers, and veterans and which provides progressive analysis of
government policies and alternative policy recommendations, incoming Director of Grassroots Advocacy for the
Electronic Frontier Foundation, former Associate Director of the American Constitution Society for Law & Policy, serves
on the advisory bodies of the Rights Working Group, the National Coalition to Protect Civil Freedoms, the National
Campaign to Restore Civil Rights, and South Asian Americans Leading Together, 2015 (“Back to Square One on Spying,”
Green Shadow Cabinet, March 26th, Available Online at http://greenshadowcabinet.us/statements/back-square-onespying, Accessed 06-20-2015)
This spring, Congress will consider whether to extend three provisions of the notoriously controversial PATRIOT act set
to expire in June. When it debates whether to allow mass surveillance, it will do so in the dark, with Members unaware of
many crucial facts.
How vast are government surveillance programs? Have they actually helped protect national security, or just the job
security of the officials who have repeatedly lied to protect their powers and budgets? Is mass surveillance even
constitutionally permissible in the first place, given our Founders’ multiple attempts to restrain executive power run
amok?
Eager to reset the debate and anchor it in long overdue transparency, a
bipartisan block of
representatives have introduced a bill to restore civil liberties, privacy, and
freedom of thought. The Surveillance State Repeal Act, HR 1466, would do this by repealing
the twin pillars of the NSA dragnet: the PATRIOT Act (not only the three expiring provisions)
and the 2008 FISA amendments.
On multiple occasions, executive officials have lied under oath to congressional
oversight committees about the scope of domestic surveillance. Yet the very
same officials still appear in oversight hearings as if they maintained any
credibility. It took whistleblowers resigning their careers to prove that senior
government officials’ blithe assurances to Congress were in fact self-serving lies. Some
members of Congress paid attention: the authors of the PATRIOT Act moved to
curtail their own legislative opus, and have encouraged their colleagues not to
reauthorize the expiring provisions unless they are first curtailed.
HR 1466 (the SSRA) represents a profound challenge by members of Congress from across
the political spectrum fed up with the national security establishment and its
continuing assault on our Constitution.
By repealing the twin pillars of the surveillance dragnet, the SSRA would essentially
shift the burden of proof, forcing intelligence agencies like the NSA and FBI to justify
the expansion of their powers from a constitutional baseline, rather then the
illegitimate status quo.
Most policymakers forget the 9/11 commission’s most crucial finding: the
intelligence community's failures that enabled the 9/11 attacks were not failures
of limited data collection, but rather failures of data sharing & analysis. Over the
last 15 years, Congress has allowed the agencies to expand their collection
capacities, solving an imaginary problem while creating a host of real threats to
US national security far worse than any act of rogue violence: the specter of state
omniscience, immune from oversight and accountability, and thus vulnerable to
politicization. This was among the fears of which President Eisenhower warned us in his last speech as President.
Meanwhile, the SSRA would preserve what the PATRIOT Act’s authors have said
they meant to authorize: targeted investigations of particular people suspected
by authorities to present potential threats.
HR 1466 would also advance transparency, both by protecting conscientious
whistleblowers from the corrupt retaliation of agencies and careerists, and by giving
judges on the secret FISA court access to technical expertise they have been
denied.
Finally, the bill would directly address disturbing government duplicity,
prohibiting agencies from hacking encryption hardware and software, and from
using an executive order authorizing foreign surveillance as a basis to monitor
Americans.
Mass surveillance has never been popular in America. Hundreds of cities and multiple states have raised their voices
seeking a restoration of constitutional limits on an increasingly imperial federal executive.
Nor is mass surveillance constitutional. A 1979 case contorted by agency lawyers into providing a legal basis for
surveillance stands for nothing of the sort: Smith v Maryland was a case addressing targeted surveillance of a particular
person, based on reasonable suspicion, limited to a particular time. Intelligence agencies today monitor every American,
without any basis for suspicion, all the time.
Members of Congress who remember their oaths of office should support the SSRA to force a
long overdue transparent debate. And Americans who value privacy, checks &
balances, or freedom of thought should take a moment to educate Members of
Congress who might not.
Sixth, the plan effectively curtails domestic surveillance. Foreign surveillance
remains authorized, but it won’t be used to spy on Americans.
Kibbe 15 — Matt Kibbe, President of FreedomWorks— a conservative and libertarian advocacy group, former Chief of
Staff to U.S. Representative Dan Miller (R-FL), former Senior Economist at the Republican National Committee, former
Director of Federal Budget Policy at the U.S. Chamber of Commerce, and former Managing Editor of Market Process—an
academic economics journal published by the Center for the Study of Market Processes at George Mason University, 2015
(“Letter in Support of the Surveillance State Repeal Act,” FreedomWorks, March 24th, Available Online at
http://www.freedomworks.org/content/letter-support-surveillance-state-repeal-act, Accessed 06-19-2015)
As one of our more than 6.9 million FreedomWorks members nationwide, I urge you to contact your representative today
and ask him or her to support H.R. 1466, the
Surveillance State Repeal Act. Introduced by Rep. Mark
Pocan (D-Wis.) and Rep. Thomas Massie (R-Ky.), the bipartisan bill would restore our civil liberties and
stop unconstitutional domestic spying on U.S. citizens.
The Surveillance State Repeal Act would repeal the misguided USA PATRIOT Act and the
FISA Amendments Act of 2008. The PATRIOT Act, passed in the panicked aftermath of the
tragic September 11th attacks, gives the federal government an unprecedented amount of
power to monitor the private communications of U.S. citizens without a warrant.
The FISA Amendments Act of 2008 expanded the wiretapping program to grant the
government more power. Both laws clearly violate our 4th Amendment right
against unreasonable searches.
The Surveillance State Repeal Act would prohibit the government from collecting
information on U.S. citizens obtained through private communications without a
warrant. It would mandate that the Government Accountability Office (GAO) regularly
monitor domestic surveillance programs for compliance with the law and issue
an annual report. A section of the bill explicitly forbids the government from
mandating that electronic manufacturers install “back door” spy software into
their products. This is a legitimate concern due to a recently released security
report finding government spying software on hard drives in personal
computers in the United States.
It’s important to note that the Surveillance State Repeal Act saves anti-terrorism tools that
are useful to law enforcement. It retains the ability for government surveillance
capabilities against targeted individuals, regardless of the type of
communications methods or devices being used. It would also protect
intelligence collection practices involving foreign targets for the purpose of
investigating weapons of mass destruction.
We urge you to voice your support for the Surveillance State Repeal Act to stop
unconstitutional spying on U.S. citizens. It is our hope that you will ask your representatives to cosponsor and otherwise support the bill if they have not already done so.
Finally, the plan won’t be circumvented. It is a “hard reset” of surveillance
authority.
Meinrath 15 — Sascha Meinrath, Founder of X-Lab—a future-focused technology policy and innovation project,
Fellow and Doctoral Candidate at the Institute of Communications Research at the University of Illinois at UrbanaChampaign, Founder and former Director of the Open Technology Institute, former Vice President and Research Director
of the Wireless Futures Program at the New America Foundation, holds an M.A. in Social-Ecological Psychology from the
University of Illinois at Urbana-Champaign, 2015 (“Opinion: Meaningful surveillance reform must prioritize civil
liberties,” Passcode—the Christian Science Monitor security and privacy publication, March 24th, Available Online at
http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/0324/Opinion-Meaningful-surveillance-reformmust-prioritize-civil-liberties, Accessed 06-20-2015)
Now is the time for meaningful surveillance reform. Across the political spectrum, from the
progressive left to libertarian right, there is widespread agreement that mass surveillance has exceeded the bounds of
legality, morality, and efficacy. Today, the
key ingredients for a successful surveillance reform
agenda can be found in the boldly titled Surveillance State Repeal Act.
Among its bold provisions, it repeals the Patriot Act and the excesses of the 2008
amendment to the Foreign Intelligence Surveillance Act. It would also restore our civil liberties by clearing out
legislation that even the Patriot Act’s main author, Rep. Jim Sensenbrenner (R) of Wisconsin, has stated is extremely
troubling.
The Surveillance State Repeal Act begins with the right questions: What parts of these laws, which have proven to be the
catalysts for widespread civil liberties violations, should we even keep? What kinds of surveillance actually work?
While many have made light of Benjamin Franklin’s quote, “Those who would give up essential liberty, to purchase a
little temporary safety, deserve neither liberty nor safety,” few have trivialized the conditions undergirding his missive –
namely, that interpretations of law were often “‘of an extraordinary nature,’ without informing us wherein that
extraordinary nature consisted,” and rejected participatory democracy for “disagreeing with new discovered meanings,
and forced constructions of a clause in the proprietary [secret] commission.”
The parallels to the current surveillance state that the proposed repeal act aims to address couldn’t be clearer.
Previous reform efforts have floundered because they compromised –
attempting to lessen the diminution of our freedoms, rather than prioritizing our
inherent and inalienable right to “the preservation of life, liberty and the pursuit
of happiness.”
Surveillance reform needs grassroots support – same as the millions of people who killed the Stop Online Piracy Act in
2012 by overloading congressional phone lines – in order to pass, and Americans of all stripes are only mobilized by
unambiguous and forceful legislation to protect their rights.
The Surveillance repeal act is clear, concise, and accessible (the latest version is less than 10
pages long), and rolls back some of the worst constitutional abuses with a hard reset
of the US government’s surveillance powers.
What SSRA Does
The full text is available here: https://www.congress.gov/bill/114th-congress/house-bill/1466/text.
The bill is sponsored by Mark Pocan (“Poe-Can”), a Democrat from Madison, Wisconsin. If you’re progressive, he should
be one of your favorite members of Congress: https://en.wikipedia.org/wiki/Mark_Pocan. It is co-sponsored by twelve
other Democrats and two Republicans.
Section 1 — Name of Bill
SECTION 1. SHORT TITLE.
This Act may be cited as the “Surveillance State Repeal Act”.
Section 2 — PATRIOT Act
SEC. 2. REPEAL OF USA PATRIOT ACT.
(a) Repeal.—The USA PATRIOT Act (Public Law 107–56) is repealed, and the provisions of law amended or repealed by
such Act are restored or revived as if such Act had not been enacted.
(b) Destruction Of Certain Information.—The Director of National Intelligence and the Attorney General shall destroy any
information collected under the USA PATRIOT Act (Public Law 107–56) and the amendments made by such Act, as in
effect the day before the date of the enactment of this Act, concerning a United States person that is not related to an
investigation that is actively ongoing on such date.
Section 3 — FISA Amendments Act of 2008
SEC. 3. REPEAL OF THE FISA AMENDMENTS ACT OF 2008.
(a) Repeal.—The FISA Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2477) is repealed, and the provisions of
law amended or repealed by such Act are restored or revived as if such Act had not been enacted.
(b) Exception.—Subsection (a) of this Act shall not apply to sections 103 and 110 of the FISA Amendments Act of 2008
(Public Law 110–261; 122 Stat. 2477).
(c) Destruction Of Certain Information.—The Director of National Intelligence and the Attorney General shall destroy any
information collected under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a), as in effect
the day before the date of the enactment of this Act, concerning a United States person that is not related to an
investigation that is actively ongoing on such date.
Section 4 — FISA Court Reform
SEC. 4. TERMS OF JUDGES ON FOREIGN INTELLIGENCE SURVEILLANCE COURT; REAPPOINTMENT; SPECIAL
MASTERS.
(a) Terms; Reappointment.—Section 103(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(d)) is
amended—
(1) by striking “maximum of seven” and inserting “maximum of ten”; and
(2) by striking “and shall not be eligible for redesignation”.
(b) Special Masters.—Section 103(f) of such Act, as amended by section 3 of this Act, is further amended by adding at the
end the following new paragraph:
“(4) Special Masters.—
“(A) The courts established pursuant to subsections (a) and (b) may appoint one or more Special Masters to advise the
courts on technical issues raised during proceedings before the courts.
“(B) In this paragraph, the term ‘Special Master’ means an individual who has technological expertise in the subject
matter of a proceeding before a court established pursuant to subsection (a) or (b).”.
Section 5 — FISA Act of 1978
SEC. 5. ELECTRONIC SURVEILLANCE OF SPECIFIED PERSONS WITHOUT REGARD TO SPECIFIC DEVICE.
Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended to read as
follows:
“(B) that, upon the request of the applicant, any person or entity shall furnish the applicant forthwith all information,
facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its
secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is
providing that target of electronic surveillance;”.
----FOR REFERENCE, here’s the current wording of this subsection of the FISA Act:
(2) Directions
An order approving an electronic surveillance under this section shall direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or
other specified person, or in circumstances where the Court finds, based upon specific facts provided in the
application, that the actions of the target of the application may have the effect of thwarting the identification of a
specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance
necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a
minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that
target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney
General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such
person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing
such aid.
Section 6 — Warrant Requirement
SEC. 6. ADDITIONAL PROVISIONS FOR COLLECTIONS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT OF 1978.
(a) In General.—Title VII of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by
section 3 of this Act, is further amended to read as follows:
“TITLE VII—ADDITIONAL PROVISIONS
“SEC. 701. WARRANT REQUIREMENT.
“Notwithstanding any other provision of this Act, no information relating to a United States person may be acquired
pursuant to this Act without a valid warrant based on probable cause.”.
(b) Table Of Contents Amendments.—The table of contents in the first section of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.), as amended by section 3 of this Act, is further amended by striking the items relating to
title VII and section 701 and inserting the following new items:
“TITLE VII—ADDITIONAL PROVISIONS”.
“701. Warrant requirement.”.
Section 7 — Encryption
SEC. 7. ENCRYPTION AND PRIVACY TECHNOLOGY OF ELECTRONIC DEVICES AND SOFTWARE.
Notwithstanding any other provision of law, the Federal Government shall not mandate that the manufacturer of an
electronic device or software for an electronic device build into such device or software a mechanism that allows the
Federal Government to bypass the encryption or privacy technology of such device or software.
Section 8 — GAO Oversight
SEC. 8. GAO COMPLIANCE EVALUATIONS.
(a) In General.—The Comptroller General of the United States shall annually evaluate compliance by the Federal
Government with the provisions of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(b) Report.—The Comptroller General shall annually submit to Congress a report containing the results of the evaluation
conducted under subsection (a).
Section 9 — Whistleblower Protection, part 1
SEC. 9. WHISTLEBLOWER COMPLAINTS.
(a) Authorization To Report Complaints Or Information.—An employee of or contractor to an element of the intelligence
community that has knowledge of the programs and activities authorized by the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) may submit a covered complaint—
(1) to the Comptroller General of the United States;
(2) to the Permanent Select Committee on Intelligence of the House of Representatives;
(3) to the Select Committee on Intelligence of the Senate; or
(4) in accordance with the process established under section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C.
3033(k)(5)).
(b) Investigations And Reports To Congress.—The Comptroller General shall investigate a covered complaint submitted
pursuant to subsection (b)(1) and shall submit to Congress a report containing the results of the investigation.
(c) Covered Complaint Defined.—In this section, the term “covered complaint” means a complaint or information
concerning programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
that an employee or contractor reasonably believes is evidence of—
(1) a violation of any law, rule, or regulation; or
(2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.
Section 10 — Whistleblower Protection, part 2
SEC. 10. PROHIBITION ON INTERFERENCE WITH REPORTING OF WASTE, FRAUD, ABUSE, OR CRIMINAL
BEHAVIOR.
(a) In General.—Notwithstanding any other provision of law, no officer or employee of an element of the intelligence
community shall take any retaliatory action against an employee of or contractor to an element of the intelligence
community who seeks to disclose or discloses covered information to—
(1) the Comptroller General;
(2) the Permanent Select Committee on Intelligence of the House of Representatives;
(3) the Select Committee on Intelligence of the Senate; or
(4) the Office of the Inspector General of the Intelligence Community.
(b) Administrative Sanctions.—An officer or employee of an element of the intelligence community who violates
subsection (a) shall be subject to administrative sanctions, up to and including termination.
(c) Definitions.—In this section:
(1) COVERED INFORMATION.—The term “covered information” means any information (including classified or
sensitive information) that an employee or contractor reasonably believes is evidence of—
(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.
(2) INTELLIGENCE COMMUNITY.—The term “intelligence community” has the meaning given the term in section 3 of
the National Security Act of 1947 (50 U.S.C. 3003).
Section 11 — Executive Order 12333
SEC. 11. PROHIBITION OF TARGETING UNITED STATES PERSONS UNDER EXECUTIVE ORDER 12333 WITHOUT A
WARRANT.
(a) Prohibition On Targeting Of United States Persons Without A Warrant.—Notwithstanding any other provision of law,
no United States person may be the target of an acquisition under Executive Order 12333 without a valid warrant based
on probable cause.
(b) Audit Of Compliance With Prohibition.—
(1) AUDIT.—The Comptroller General of the United States shall annually conduct an audit of intelligence collection
under Executive Order 12333 to ensure compliance with the requirement under subsection (a).
(2) REPORT.—The Comptroller General shall annually submit to Congress a report containing the results of each audit
conducted under paragraph (1).
(c) Destruction Of Certain Information.—The Director of National Intelligence and the Attorney General shall destroy any
information collected under Executive Order 12333 without a valid warrant based on probable cause concerning a United
States person that is not related to an investigation that is actively ongoing on the date of the enactment of this Act.
CRS Summary of the Bill
Repeals the USA PATRIOT Act and the FISA Amendments Act of 2008 (thereby restoring or reviving provisions
amended or repealed by such Acts as if such Acts had not been enacted), except with respect to reports to Congress
regarding court orders under the Foreign Intelligence Surveillance Act of 1978 (FISA) and the acquisition of intelligence
information concerning an entity not substantially composed of U.S. persons that is engaged in the international
proliferation of weapons of mass destruction.
Extends from 7 to 10 years the maximum term of FISA judges. Makes such judges eligible for redesignation.
Permits FISA courts to appoint special masters to advise on technical issues raised during proceedings.
Requires orders approving certain electronic surveillance to direct that, upon request of the applicant, any person or
entity must furnish all information, facilities, or technical assistance necessary to accomplish such surveillance in a
manner to protect its secrecy and produce a minimum of interference with the services that such carrier, landlord,
custodian, or other person is providing the target of such surveillance (thereby retaining the ability to conduct
surveillance on such targets regardless of the type of communications methods or devices being used by the subject of the
surveillance).
Prohibits acquisitions under FISA relating to a U.S. person, or acquisitions under Executive Order 12333 targeting a U.S.
person, without a warrant based on probable cause.
Requires the Director of National Intelligence and the Department of Justice to destroy any information collected under
the repealed Acts, or acquired under Executive Order 12333 without a warrant, if the information concerns a U.S. person
that is not related to an investigation that is actively ongoing on the date of enactment of this Act.
Prohibits the federal government from requiring manufacturers of electronic devices and related software to build in
mechanisms allowing the federal government to bypass encryption or privacy technology.
Directs the Government Accountability Office (GAO) to report annually on the federal government's compliance with
FISA.
Permits an employee of or contractor to an element of the intelligence community with knowledge of FISA-authorized
programs and activities to submit a covered complaint to the GAO, to the House or Senate intelligence committees, or in
accordance with a process under the National Security Act of 1947 with respect to reports made to the Inspector General
of the Intelligence Community. Defines a "covered complaint" as a complaint or information concerning FISA-authorized
programs and activities that an employee or contractor reasonably believes is evidence of:
(1) a violation of any law, rule, or regulation; or
(2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.
Prohibits an officer or employee of an element of the intelligence community from taking retaliatory action against an
employee or contractor who seeks to disclose, or who discloses, such information.
Strategy Discussions
Topicality — Additional Aff Cards
The plan curtails domestic surveillance — it’s the biggest aff on the topic.
Here’s contextual evidence.
RT 15 — RT USA—a Russian English-language news publication, 2015 (“Bipartisan bill would repeal Patriot Act, cut
down American surveillance,” March 25th, Available Online at http://rt.com/usa/243745-bill-repeal-patriot-actsurveillance/, Accessed 06-20-2015)
The bipartisan Surveillance State Repeal Act, if passed, would repeal dragnet surveillance of
Americans’ personal communications, overhaul the federal domestic
surveillance program, and provide protections for whistleblowers.
House lawmakers Mark Pocan (D-Wis.) and Thomas Massie (R-Ky.) are co-sponsoring bill H.R.1466, which was
introduced on Tuesday and would repeal the 2001 Patriot Act, limit powers of the FISA Amendments Act, and prohibit
retaliation against federal national security whistleblowers, according to The Hill.
“The
Patriot Act contains many provisions that violate the Fourth Amendment
and have led to a dramatic expansion of our domestic surveillance state,” said Rep.
Massie in a statement. "Our Founding Fathers fought and died to stop the kind of warrantless spying and searches
that the Patriot Act and the FISA Amendments Act authorize. It is long past time to repeal the Patriot Act and reassert the
constitutional rights of all Americans.”
Specifically, the
bill would revoke all the powers of the Patriot Act, and instruct the
Director of National Intelligence and the Attorney General to destroy any
information collected under the FISA Amendments Act concerning any US
person not under investigation.
It would repeal provisions of the FISA Amendments Act to ensure surveillance of email data only occurs with a valid
warrant based on probable cause. The bill would also prohibit the government from mandating that manufacturers build
mechanisms allowing the government to bypass encryption in order to conduct surveillance.
Additionally, the bill would protect a federal whistleblower’s efforts to expose mismanagement, waste, fraud, abuse, or
criminal behavior. It would also make retaliation against anyone interfering with those efforts – such as threatening them
with punishment or termination – illegal.
“Really, what we need are new whistleblower protections so that the next Edward Snowden doesn’t have to go to Russia
or Hong Kong or whatever the case may be just for disclosing this,” Massie said.
There have been previous attempts to limit dragnet surveillance under the Patriot Act since former National Security
Agency analyst Edward Snowden leaked information regarding the programs in 2013, but the Senate bill introduced in
2013 never reached the floor for a vote.
“The
warrantless collection of millions of personal communications from
innocent Americans is a direct violation of our constitutional right to privacy,”
said Rep. Pocan in a statement.
“Revelations about the NSA’s programs reveal the extraordinary extent to which
the program has invaded Americans’ privacy. I reject the notion that we must sacrifice liberty for
security – we can live in a secure nation which also upholds a strong commitment to civil liberties. This legislation
ends the NSA’s dragnet surveillance practices, while putting provisions in place
to protect the privacy of American citizens through real and lasting change.”
The plan dramatically curtails domestic surveillance under all relevant legal
authorities.
(“House Members Move To Repeal The Patriot Act With Strongest Anti-Surveillance Bill To Date,”
Overshadowed by congressional budget talks, Reps. Mark Pocan (D-WI) and Thomas Massie (R-KY) quietly
introduced the strongest anti-surveillance bill to date that would strip the
government of much of its spying power.
“This
isn’t just tinkering around the edges, it’s a meaningful overhaul that makes
sure the meaningless surveillance of emails and cell phones are done away with,”
Pocan said in a briefing for congressional staffers Tuesday.
The Surveillance State Repeal Act, or HR 1466, aims to repeal the Patriot Act, including the
controversial telephony metadata collection program, and strip many of the surveillance
permissions granted under the Foreign Intelligence Surveillance Act
amendments passed under President George W. Bush in 2008.
Reps. Alan Grayson (D-FL), James McGovern (D-MA), and Lloyd Doggett (D-TX) are original co-sponsors on the bill,
which was ushered in March 19.
Surveillance has been a prominent in public debate since former National Security Agency contractor Edward Snowden’s
massive document leak exposed several government intelligence programs, namely the NSA’s dragnet telephone
metadata collection.
But despite public outrage over civil liberties violations and calls for immediate reform, little has been done since
Snowden’s 2013 revelations.
The controversial phone metadata surveillance program was reauthorized for the fifth time under Section 215 of the
Patriot Act extended until June. Other sections of the Patriot Act are also expected to sunset this summer.
In 2014, President Barack Obama announced a scaled-back surveillance program that would permit intelligence agencies
to collect phone records without storing them, and agencies could only query the data stored by a third party after getting
a warrant except in true emergencies. Those queries were limited to people who have called or been called by suspected
terrorists.
Revised versions of the USA Freedom Act, a counter bill to the Patriot Act introduced after the Snowden leaks, have
stalled, and only offered smaller changes.
But with continued bipartisan support, HR
1466 could rekindle hope for sweeping changes in
surveillance laws.
“All mass surveillance does is violate the rights and put a chilling effect on the American people,” causing people to
change their behavior because they’re afraid of government spying, said Patrick Eddington, national security and civil
liberties policy analyst for the libertarian think tank CATO Institute, at Tuesday’s meeting.
The Patriot Act, as written, is heavily contingent on Executive Order 12333, signed by
President Ronald Reagan more than 30 years ago. The order has been since used as the legal
justification for some of the NSA’s surveillance programs including backdoor
access to internet companies’ data centers.
If passed, the Surveillance State Repeal Act would ban the use of order 12333 and close those
data access loopholes built in to software and devices’ encryption. It would also
extend greater protections to whistleblowers, such as making it illegal to fire or
retaliate against them.
“This is not about Edward Snowden. If you want to talk about Edward Snowden, we need better whistleblower
protections so it doesn’t happen again,” Massie said, indicating the contractor turned whistleblower couldn’t legally have
disclosed problems with the agency to him or other Congress members.”
Pocan and Massie’s bill would upend that justification by repealing the programs under
FISA and the Patriot Act that allow indiscriminate collection and access to
Americans’ communications. For example, HR 1466 would repeal the amendment
that permits email harvesting, with few exceptions, and make it illegal to survey
individuals without a warrant and probable cause. The bill also mandates
domestic surveillance programs be monitored for compliance by the Government
Accountability Office.
Is It Topical...?
Is Section 2 (PATRIOT Act) topical? Why or why not? If not, what is the best
neg topicality argument that excludes it?
Is Section 3 (FISA Amendments Act) topical? Why or why not? If not, what is
the best neg topicality argument that excludes it?
Is Section 4 (FISA Court Reform) topical? Why or why not? If not, what is the
best neg topicality argument that excludes it?
Is Section 5 (FISA Act of 1978) topical? Why or why not? If not, what is the best
neg topicality argument that excludes it?
Is Section 6 (Warrant Requirement) topical? Why or why not? If not, what is
the best neg topicality argument that excludes it?
Is Section 7 (Encryption) topical? Why or why not? If not, what is the best neg
topicality argument that excludes it?
Is Section 8 (GAO Oversight) topical? Why or why not? If not, what is the best
neg topicality argument that excludes it?
Is Section 9 (Whistleblower Protection, part one) topical? Why or why not? If
not, what is the best neg topicality argument that excludes it?
Is Section 10 (Whistleblower Protection, part two) topical? Why or why not? If
not, what is the best neg topicality argument that excludes it?
Is Section 11 (Executive Order 12333) topical? Why or why not? If not, what is
the best neg topicality argument that excludes it?
Circumvention Arguments
For each of the following plan texts, how can the negative best make a
circumvention argument?
Plan Text #1. The United States federal government should enact the
Surveillance State Repeal Act.
Plan Text #3: A warrant-based, probable-cause standard should be required for
seizing and searching the communications of any American.
Plan Text #6: Sections one, two, three, five, six, and eleven of the Surveillance
State Repeal Act should be enacted.
Plan Text #7: The United States federal government should enact the topical
provisions of the Surveillance State Repeal Act.
Plan-Inclusive CPs
Assume the affirmative has read Plan Option #1: The United States federal
government should enact the Surveillance State Repeal Act.
List three possible plan-inclusive counterplans that the negative could read in
response to this plan; write the exact counterplan text and briefly explain the
net-benefit.
In response to these counterplans, what is the affirmative’s best response?
Choosing A Plan
Which plan is the most topical? Why?
Which plan is the least topical? Why?
Which plan is the most strategic vs. circumvention/lawyering arguments?
Why?
Which plan is the least strategic vs. circumvention/lawyering arguments?
Why?
Which plan is the most strategic vs. PICs? Why?
Which plan is the least strategic vs. PICs? Why?
Plan Text #12
What is the significance of each highlighted word or phrase in this plan text?
12. The United States federal government should prohibit federal agencies from collecting Americans’ electronic
communications without obtaining a valid, particularized search warrant based on a transparent judicial determination of
probable cause from a federal court staffed with judges and advisors with technological expertise in the subject matter of
the proceedings. This requirement should be enforced regardless of whether an individual has provided communications
to a third party acting as a conduit for information intended for someone else and should be subject to oversight review
(including robust whistleblower protections and an annual audit report to Congress) by the Government Accountability
Office. “Collecting Americans’ electronic communications” should be defined to include attempts by federal agencies to
obtain Americans’ electronic communications by requiring or encouraging manufacturers of electronic devices or
software to build into such devices or software a mechanism that allows the federal government to bypass encryption or
privacy technology.
Are there any provisions of the Surveillance State Repeal Act that this plan
does not enact? If so, what provision(s)? Why?
Against this plan, what topicality arguments are available to the negative?
What is the best one? Why?
Against this plan, what circumvention arguments are available to the
negative? What is the best one? Why?
Against this plan, what plan-inclusive counterplans are available to the
negative? Without knowing too much about the content of the net-benefit,
how effective do you think the affirmative’s responses to these counterplans
will be? Why?