1AC – FREEDOM ACT
Plan
In the absence of an individually-tailored warrant obtained via use of a specific
selector term, federal intelligence agencies should cease collection of domestic phone,
internet, email, and-or associated electronic records.
FRAMEWORK
Reducing utility of human life to numbers justifies atrocity
Holt ‘95 [Jim Holt is an American philosopher, author and essayist. He has contributed to The New York Times, The New
York Times Magazine, The New York Review of Books, The New Yorker, The American Scholar, and Slate. He hosted a weekly
radio spot on BBC for ten years and he writes frequently about politics and philosophy. New York Times, “Morality, Reduced To
Arithmetic,” August 5, p. Lexis]
Can the deliberate massacre of innocent people ever be condoned? The atomic bombs dropped on Hiroshima and Nagasaki on Aug. 6 and 9, 1945, resulted in the deaths of 120,000 to 250,000
Japanese by incineration and radiation poisoning. Although a small fraction of the victims were soldiers, the great majority were noncombatants -- women, children, the aged. Among the
justifications that have been put forward for President Harry Truman’s decision to use the bomb, only one is worth taking seriously -- that it saved lives. The alternative, the reasoning goes,
was to launch an invasion. Truman claimed in his memoirs that this would have cost another half a million American lives. Winston Churchill put the figure at a million. Revisionist historians
have cast doubt on such numbers. Wartime documents suggest that military planners expected around 50,000 American combat deaths in an invasion. Still, when Japanese casualties, military
and civilian, are taken into account, the overall invasion death toll on both sides would surely have ended up surpassing that from Hiroshima and Nagasaki. Scholars will continue to argue over
whether there were other, less catastrophic ways to force Tokyo to surrender. But given the fierce obstinacy of the Japanese militarists, Truman and his advisers had some grounds for
believing that nothing short of a full-scale invasion or the annihilation of a big city with an apocalyptic new weapon would have succeeded. Suppose they were right. Would this prospect have
In the debate over the question, participants on both sides have been playing the
numbers game. Estimate the hypothetical number of lives saved by the bombings, then add up the
actual lives lost. If the first number exceeds the second, then Truman did the right thing; if the reverse, it was wrong to have dropped the bombs. That is one approach to the
matter -- the utilitarian approach. According to utilitarianism, a form of moral reasoning that arose in the 19th century, the goodness or evil of an action is
determined solely by its consequences. If somehow you can save 10 lives by boiling a baby, go
ahead and boil that baby . There is, however, an older ethical tradition, one rooted in Judeo-Christian theology, that
takes a quite different view. The gist of it is expressed by St. Paul’s condemnation of those who say, “Let us do evil, that good may come.” Some actions, this tradition holds,
can never be justified by their consequences; they are absolutely forbidden. It is always wrong
to boil a baby even if lives are saved thereby. Applying this absolutist morality to war can be tricky. When enemy soldiers are trying to enslave or
justified the intentional mass killing of the people of Hiroshima and Nagasaki?
kill us, the principle of self-defense permits us to kill them (though not to slaughter them once they are taken prisoner). But what of those who back them? During World War II, propagandists
made much of the “indivisibility” of modern warfare: the idea was that since the enemy nation’s entire economic and social strength was deployed behind its military forces, the whole
population was a legitimate target for obliteration. “There are no civilians in Japan,” declared an intelligence officer of the Fifth Air Force shortly before the Hiroshima bombing, a time when
the Japanese were popularly depicted as vermin worthy of extermination. The boundary between combatant and noncombatant can be fuzzy, but the distinction is not meaningless, as the
case of small children makes clear. Yet is wartime killing of those who are not trying to harm us always tantamount to murder? When naval dockyards, munitions factories and supply lines are
bombed, civilian carnage is inevitable. The absolutist moral tradition acknowledges this by a principle known as double effect: although it is always wrong to kill innocents deliberately, it is
sometimes permissible to attack a military target knowing some noncombatants will die as a side effect. The doctrine of double effect might even justify bombing a hospital where Hitler is
lying ill. It does not, however, apply to Hiroshima and Nagasaki. Transformed into hostages by the technology of aerial bombardment, the people of those cities were intentionally executed en
masse to send a message of terror to the rulers of Japan. The practice of ordering the massacre of civilians to bring the enemy to heel scarcely began with Truman. Nor did the bomb result in
casualties of a new order of magnitude. The earlier bombing of Tokyo by incendiary weapons killed some 100,000 people. What Hiroshima and Nagasaki did mark, by the unprecedented need
for rationalization they presented, was the triumph of
utilitarian thinking in the conduct of war. The conventional code of noncombatant immunity -- a product of several
centuries of ethical progress among nations, which had been formalized by an international commission in the 1920’s in the Hague -- was swept away. A simpler axiom took its place: since war
is a moral calculus that, for all its logical consistency,
offends our deep-seated intuitions about the sanctity of life -- our conviction that a person is always to be treated as an
end, never as a means. Left up to the warmakers, moreover, utilitarian calculations are susceptible to
bad-faith reasoning: tinker with the numbers enough and virtually any atrocity can be
is hell, any means necessary may be used to end, in Churchill’s words, “the vast indefinite butchery.” It
excused in the national interest. In January, the world commemorated the 50th anniversary of the liberation of Auschwitz, where mass slaughter was
committed as an end in itself -- the ultimate evil. The moral nature of Hiroshima is ambiguous by contrast. Yet in the postwar era, when governments do not hesitate to treat the massacre of
the bomb’s sinister legacy is plain: it has inured us to the idea of reducing
innocents to instruments and morality to arithmetic.
civilians as just another strategic option,
Utilitarian risk assessment obscures how structural violence and large-scale
destruction interact.
O’Brien 2k—PhD, environmental scientist and activist (Mary, © 2000, MIT Press, “Making Better
Environmental Decisions: An Alternative to Risk Assessment”, Gigapedia, p. xvii-xviii,)
This book is based on the understanding that it is not acceptable for people to tell you that the harms to
which they will subject you and the world are safe or insignificant. You deserve to know good
alternatives to those harms, and you deserve to help decide which alternative will be chosen. Underlying
this book, however, is a less explicitly stated personal belief, namely that we humans will never dredge
up enough will to alter our habitual, destructive ways of behaving toward each other and the world
unless we simultaneously employ information and emotion and a sense of relationship to others—other
species, other cultures, and other generations. Using information while divorced from emotion and
using information while insulated from connection to a wide net of others are how destruction of the
Earth is being accomplished. Risk assessment of narrow options is a classic example of using certain bits
of information in such a way as to exclude feeling and to artificially sever connections of parts to the
whole. Risk assessment rips you (and others) out of connection to the rest of the world and reduces you
(if you are even considered at all in the risk assessment) to a number. You are then consigned to damage
or death or “risk,” depending on how your number is shuffled around in models, assumptions, and
formulas and during “risk management.” Assessment of the pros and cons of a range of reasonable alternatives allows the
connections to remain. The cultural emotions connected to a given alternative, for instance, can be a pro or a con, and may be both, depending
on which sector of the community you inhabit. An advantage or a disadvantage of a given alternative can be social, religious, economic,
scientific, or political. Risk
assessment is one of the major methods by which parts (corporations such as
Monsanto or Hyundai, “private landowners,” industrial nations) can act on their wants at the expense of
wholes (e.g., whole communities and countries, or the seventh generation from now) without appearing
to be doing so. Risk assessment lets them appear simply “scientific” or “rational” as they numerically
estimate whether or how many deaths or what birth defects will be caused, and ignore other regions of
human experience that also matter to people. Always, some groups of humans will be trying to exercise
their power at the expense of the whole. Decisions arrived at by risk assessment can be homicidal,
biocidal, and suicidal, but they are made every day. Risk assessment is a premier process by which
illegitimate exercise of power is justified. The stakes of installing alternatives to risk assessment,
therefore, are the whole Earth (just as are the stakes of fashioning democratic control over
corporations, or of requiring changes in behavior of those who have wreaked irreparable damage).
Installing alternatives assessment is one step in the struggle to use information, feeling, and a sense of
relationship to others to stop socioenvironmental madness.
Current framing of security concerns disregards the way that securitization creates
enmity which is the root cause of violence
Mack 91 (John, Doctor of Psychiatry and a professor at Harvard University, “The Enemy System”
http://www.johnemackinstitute.org/eJournal/article.asp?id=23 *Gender modified)
The threat of nuclear annihilation has stimulated us to try to understand what it is about (hu)mankind
that has led to such self-destroying behavior. Central to this inquiry is an exploration of the
adversarial relationships between ethnic or national groups. It is out of such enmities that war,
including nuclear war should it occur, has always arisen. Enmity between groups of people stems from the
interaction of psychological, economic, and cultural elements. These include fear and hostility (which are often
closely related), competition over perceived scarce resources,[3] the need for individuals to identify
with a large group or cause,[4] a tendency to disclaim and assign elsewhere responsibility for unwelcome
impulses and intentions, and a peculiar susceptibility to emotional manipulation by leaders who play upon our
more savage inclinations in the name of national security or the national interest. A full understanding of the "enemy
system"[3] requires insights from many specialities, including psychology, anthropology, history, political science, and the
humanities. In their statement on violence[5] twenty social
and behavioral scientists, who met in Seville, Spain, to examine the
roots of war, declared that there was no scientific basis for regarding (hu)man(s) as an innately
aggressive animal, inevitably committed to war. The Seville statement implies that we have real choices . It also
points to a hopeful paradox of the nuclear age: threat of nuclear war may have provoked our capacity for feardriven polarization but at the same time it has inspired unprecedented efforts towards cooperation
and settlement of differences without violence. The Real and the Created Enemy Attempts to explore the
psychological roots of enmity are frequently met with responses on the following lines: "I can
accept psychological explanations of things, but my enemy is real. The Russians [or Germans, Arabs,
Israelis, Americans] are armed, threaten us, and intend us harm. Furthermore, there are real differences
between us and our national interests, such as competition over oil, land, or other scarce
resources, and genuine conflicts of values between our two nations. It is essential that we be strong and
maintain a balance or superiority of military and political power, lest the other side take advantage
of our weakness". This argument does not address the distinction between the enemy threat and one's
own contribution to that threat -by distortions of perception, provocative words, and actions. In short, the enemy is
real, but we have not learned to understand how we have created that enemy, or how the
threatening image we hold of the enemy relates to its actual intentions. "We never see our
enemy's motives and we never labor to assess his will, with anything approaching objectivity ".[6] Individuals may
have little to do with the choice of national enemies. Most Americans, for example, know only what has been reported in the mass media
about the Soviet Union. We
are largely unaware of the forces that operate within our institutions,
affecting the thinking of our leaders and ourselves, and which determine how the Soviet Union will
be represented to us. Ill-will and a desire for revenge are transmitted from one generation to another, and we are not
taught to think critically about how our assigned enemies are selected for us. In the relations between
potential adversarial nations there will have been, inevitably, real grievances that are grounds for enmity. But the attitude of one people
towards another is usually determined by leaders who manipulate the minds of citizens for domestic political reasons which are generally
unknown to the public. As Israeli sociologist Alouph Haveran has said, in
times of conflict between nations historical
accuracy is the first victim.[8] The Image of the Enemy and How We Sustain It Vietnam veteran William Broyles wrote: " War
begins in the mind, with the idea of the enemy. "[9] But to sustain that idea in war and peacetime a nation's
leaders must maintain public support for the massive expenditures that are required. Studies of
enmity have revealed susceptibilities, though not necessarily recognized as such by the governing elites that provide raw
material upon which the leaders may draw to sustain the image of an enemy.[7,10] Freud[11] in his
examination of mass psychology identified the proclivity of individuals to surrender personal
responsibility to the leaders of large groups. This surrender takes place in both totalitarian and democratic societies, and
without coercion. Leaders can therefore designate outside enemies and take actions against them with little opposition. Much further
research is needed to understand the psychological
mechanisms that impel individuals to kill or allow killing in
their name, often with little questioning of the morality or consequences of such actions. Philosopher and
psychologist Sam Keen asks why it is that in virtually every war "The enemy is seen as less than human? He's faceless. He's an animal"."
Keen tries to answer his question: "The
image of the enemy is not only the soldier's most powerful weapon; it is society's
most powerful weapon. It enables people en masse to participate in acts of violence they would never
consider doing as individuals".[12] National leaders become skilled in presenting the adversary in dehumanized images. The mass media,
taking their cues from the leadership, contribute powerfully to the process.
Institutional structures of domination create everyday holocausts—you should reject
singular focused impacts in favor of working against the ongoing extinctions of people
of color – This is the only ethical question and controls the proximity and conditions
for all of their impacts.
Omolade 89 (1989, Barbara Omolade is a historian of black women for the past twenty years and an organizer in both the women’s and
civil rights/black power movements, “We Speak for the Planet” in “Rocking the ship of state : toward a feminist peace politics”, pp. 172-176)
Recent efforts by Soviet leader Mikhail Gorbachev and President Ronald Reagan to
limit nuclear testing, stockpiling, and
weaponry, while still protecting their own arsenals and selling arms to countries and factions around the world, vividly demonstrate
how "peace" can become an abstract concept within a culture of war. Many peace activists are
similarly blind to the constant wars and threats of war being waged against people of color
and the planet by those who march for "peace" and by those they march against . These pacifists ,
like Gorbachev and Reagan, frequently want people of color to fear what they fear and
define peace as they define it. They are unmindful that our lands and peoples have already
been and are being destroyed as part of the "final solution" of the "color line." It is difficult
to persuade the remnants of Native American tribes , the starving of African deserts , and the
victims of the Cambodian "killing fields" that nuclear war is the major danger to human life
on the planet and that only a nuclear "winter" embodies fear and futurelessness for
humanity . The peace movement suffers greatly from its lack of a historical and holistic
perspective, practice, and vision that include the voices and experiences of people of color; the
movement's goals and messages have therefore been easily coopted and expropriated by
world leaders who share the same culture of racial dominance and arrogance . The peace
movement's racist blinders have divorced peace from freedom, from feminism, from
education reform, from legal rights, from human rights, from international alliances and
friendships, from national liberation, from the particular (for example, black female, Native American male)
and the general (human being). Nevertheless, social movements such as the civil rights-black power movement in
the United States have always demanded peace with justice, with liberation, and with social and
economic reconstruction and cultural freedom at home and abroad. The integration of our past and our
present holocausts and our struggle to define our own lives and have our basic needs met are
at the core of the inseparable struggles for world peace and social betterment. The Achilles heel of
the organized peace movement in this country has always been its whiteness. In this multi-racial and racist society, no allwhite movement can
have the strength to bring about basic changes. It is axiomatic that basic changes do not occur in any society unless the people who are
oppressed move to make them occur. In our society it is people of color who are the most oppressed. Indeed our entire history teaches us that
when people of color have organized and struggled-most especially, because of their particular history, Black people-have moved in a more
humane direction as a society, toward a better life for all people.1 Western man's whiteness, imagination, enlightened science, and
movements toward peace have developed from a culture and history mobilized against
women of color . The political advancements of white men have grown directly from the
devastation and holocaust of people of color and our lands . This technological and material progress has been
in direct proportion to the undevelopment of women of color. Yet the
dayto- day survival, political struggles, and
rising up of women of color, especially black women in the United States, reveal both complex resistance to
holocaust and undevelopment and often conflicted responses to the military and war. The
Holocausts Women of color are survivors of and remain casualties of holocausts , and we are direct
victims of war -that is, of open armed conflict between countries or between factions within the same country. But women of
color were not soldiers, nor did we trade animal pelts or slaves to the white man for guns, nor
did we sell or lease our lands to the white man for wealth. Most men and women of color
resisted and fought back , were slaughtered , enslaved , and force marched into plantation
labor camps to serve the white masters of war and to build their empires and war machines .
People of color were and are victims of holocausts-that is, of great and widespread destruction,
usually by fire. The world as we knew and created it was destroyed in a continual scorched
earth policy of the white man. The experience of Jews and other Europeans under the Nazis can teach us the value of understanding the
totality of destructive intent, the extensiveness of torture, and the demonical apparatus of war aimed at the human spirit. A Jewish father
pushed his daughter from the lines of certain death at Auschwitz and said, "You will be a remembrance-You tell the story. You survive." She
lived. He died. Many have criticized the Jews for forcing non-Jews to remember the 6 million Jews who died under the Nazis and for etching the
names Auschwitz and Buchenwald, Terezin and Warsaw in our minds. Yet as women
of color, we, too, are "remembrances"
of all the holocausts against the people of the world. We must remember the names of
concentration camps such as Jesus, Justice, Brotherhood, and Integrity , ships that carried
millions of African men, women, and children chained and brutalized across the ocean to the
"New World." We must remember the Arawaks, the Taino, the Chickasaw, the Choctaw, the
Narragansett, the Montauk, the Delaware, and the other Native American names of thousands
of U.S. towns that stand for tribes of people who are no more. We must remember the
holocausts visited against the Hawaiians, the aboriginal peoples of Australia, the Pacific Island
peoples, and the women and children of Hiroshima and Nagasaki. We must remember the
slaughter of men and women at Sharpeville, the children of Soweto, and the men of Attica. We
must never, ever, forget the children disfigured, the men maimed, and the women broken in
our holocausts-we must remember the names, the numbers, the faces, and the stories and
teach them to our children and our children's children so the world can never forget our
suffering and our courage. Whereas the particularity of the Jewish holocaust under the Nazis is over, our holocausts continue .
We are the madres locos (crazy mothers) in the Argentinian square silently demanding news of our
missing kin from the fascists who rule. We are the children of El Salvador who see our
mothers and fathers shot in front of our eyes . We are the Palestinian and Lebanese women
and children overrun by Israeli, Lebanese, and U.S. soldiers . We are the women and children
of the bantustans and refugee camps and the prisoners of Robbin Island. We are the starving
in the Sahel , the poor in Brazil , the sterilized in Puerto Rico. We are the brothers and sisters of Grenada who
carry the seeds of the New Jewel Movement in our hearts, not daring to speak of it with our lipsyet. Our holocaust is South Africa ruled by men
who loved Adolf Hitler, who have developed the Nazi techniques of terror to more sophisticated levels. Passes replace the Nazi badges and
stars. Skin color is the ultimate badge of persecution. Forced removals of women, children, and the elderly-the "useless appendages of South
Africa"-into barren, arid bantustans without resources for survival have replaced the need for concentration camps. Black sex-segregated
barracks and cells attached to work sites achieve two objectives: The work camps destroy black family and community life, a presumed source
of resistance, and attempt to create human automatons whose purpose is to serve the South African state's drive toward wealth and
hegemony. Like other fascist regimes, South Africa disallows any democratic rights to black people; they are denied the right to vote, to dissent,
to peaceful assembly, to free speech, and to political representation. The regime has all the typical Nazi-like political apparatus: house arrests of
dissenters such as Winnie Mandela; prison murder of protestors such as Stephen Biko; penal colonies such as Robbin Island. Black people,
especially children, are routinely arrested without cause, detained without limits, and confronted with the economic and social disparities of a
nation built around racial separation. Legally and economically, South African apartheid is structural and institutionalized racial war. The
Organization of African Unity's regional intergovernmental meeting in 1984 in Tanzania was called to review and appraise the achievements of
the United Nations Decade for Women. The meeting considered South Africa's racist apartheid regime a peace issue. The "regime is an affront
to the dignity of all Africans on the continent and a stark reminder of the absence of equality and peace, representing the worst form of
institutionalized oppression and strife." Pacifists such as Martin Luther King, Jr. and Mahatma Gandhi who have used nonviolent resistance
charged that those who used violence to obtain justice were just as evil as their oppressors. Yet all successful revolutionary movements have
used organized violence. This is especially true of national liberation movements that have obtained state power and reorganized the
institutions of their nations for the benefit of the people. If men and women in South Africa do not use organized violence, they could remain in
the permanent violent state of the slave. Could it be that pacifism and nonviolence cannot become a way of life for the oppressed? Are they
only tactics with specific and limited use for protecting people from further violence? For most people in the developing communities and the
developing world consistent nonviolence is a luxury; it presumes that those who have and use nonviolent weapons will refrain from using them
long enough for nonviolent resisters to win political battles. To survive, peoples in developing countries must use a varied repertoire of issues,
tactics, and approaches. Sometimes arms are needed to defeat apartheid and defend freedom in South Africa; sometimes nonviolent
demonstrations for justice are the appropriate strategy for protesting the shooting of black teenagers by a white man, such as happened in
New York City.
Peace is not merely an absence of 'conflict that enables white middleclass comfort ,
nor is it simply resistance to nuclear war and war machinery . The litany of "you will be blown
up, too" directed by a white man to a black woman obscures the permanency and
institutionalization of war, the violence and holocaust that people of color face daily .
Unfortunately, the holocaust does not only refer to the mass murder of Jews, Christians, and atheists
during the Nazi regime; it also refers to the permanent institutionalization of war that is part of
every fascist and racist regime. The holocaust lives. It is a threat to world peace as pervasive
and thorough as nuclear war.
ADV 1 BIGOTRY
Placing race at the forefront of the struggle against surveillance is the only ethical
starting point
Kumar & Kundnani ‘15
Deepa Kumar is an associate professor of Media Studies and Middle East Studies at Rutgers University. She is the author of
Islamophobia and the Politics of Empire (Haymarket Books, 2012). Arun Kundnani is research fellow at the International Centre
for Counter-Terrorism. He is a writer and activist, and a professor at NYU. “Race, surveillance, and empire” – International
Socialist Review - Issue #96 – Spring - http://isreview.org/issue/96/race-surveillance-and-empire
Beginning in June 2013, a series of news articles
based on whistle-blower Edward Snowden’s collection of documents from the
National Security Agency (NSA) took the world by storm. Over the course of a year, the Snowden material provided a
detailed account of the massive extent of NSA’s warrantless data collection. What became clear was that the NSA was
involved in the mass collection of online material. Less apparent was how this data was actually used by the NSA and other
national security agencies. Part of the answer came in July 2014 when Glenn Greenwald and Murtaza Hussain published an
article that identified specific targets of NSA surveillance and showed how individuals were being placed
under surveillance despite there being no reasonable suspicion of their involvement in criminal activity.1
All of those named as targets were prominent Muslim Americans. The following month, Jeremy Scahill and Ryan Devereaux
published another story for The Intercept, which revealed that under the Obama administration the number of people on the
National Counterterrorism Center’s no-fly list had increased tenfold to 47,000. Leaked classified documents showed that the NCC maintains a
database of terrorism suspects worldwide—the Terrorist Identities Datamart Environment—which contained a million names by 2013, double the number four
years earlier, and increasingly includes biometric data. This
database includes 20,800 persons within the United States who
are disproportionately concentrated in Dearborn, Michigan, with its significant Arab American
population.2 By any objective standard, these were major news stories that ought to have attracted as much attention as the earlier revelations. Yet the
stories barely registered in the corporate media landscape. The “tech community,” which had earlier expressed outrage at the NSA’s mass digital surveillance,
seemed to be indifferent when details emerged of the targeted surveillance of Muslims. The explanation for this reaction is not hard to find. While
many
object to the US government collecting private data on “ordinary” people, Muslims tend to be seen as
reasonable targets of suspicion. A July 2014 poll for the Arab American Institute found that 42 percent of Americans think it is justifiable for law
enforcement agencies to profile Arab Americans or American Muslims.3 In what follows, we argue that the debate on national security
surveillance that has emerged in the United States since the summer of 2013 is woefully inadequate, due to its
failure to place questions of race and empire at the center of its analysis. It is racist ideas that form the basis
for the ways national security surveillance is organized and deployed, racist fears that are whipped up to
legitimize this surveillance to the American public, and the disproportionately targeted racialized groups that have been most effective in making
sense of it and organizing opposition. This is as true today as it has been historically: race and state surveillance are intertwined in the history of US capitalism.
Likewise, we argue that the history of national security surveillance in the United States is inseparable from the history of US colonialism and empire.
Warrantless surveillance boosts a distinct form of racial, religious, and ethnic
discrimination. The Neg’s security interests only drive this racialized violence.
Unegbu ‘13
Cindy C. Unegbu - J.D. Candidate, Howard University School of Law - NOTE AND COMMENT: National Security Surveillance on
the Basis of Race, Ethnicity, and Religion: A Constitutional Misstep - Howard Law Journal - 57 How. L.J. 433 - Fall, 2013 – lexis;
lawrev
Picture this: you live in a society in which the government is allowed to partake in intrusive surveillance
measures without the institutionalized checks and balances upon which the government was founded. In this society, the
government pursues citizens who belong to a particular race or ethnicity, practice a certain religion, or have affiliations with
specific interest groups. Individuals who have these characteristics are subject to surreptitious monitoring, which
includes undercover government officials disguising themselves as community members in order to attend various community events and programs. The government may
also place these individuals on watch lists, even where there is no evidence of wrongdoing. These watch lists classify
domestic individuals as potential or suspected terrorists and facilitate the monitoring of their personal activity through various law enforcement agencies for an extended period of time.
This "hypothetical" society is not hypothetical at all; in fact, it is the current state of American surveillance.
The government's domestic spying activities have progressed to intrusive levels, primarily due to an increased
fear of terrorism. n1 This fear has resulted in governmental intelligence efforts that are focused on political
racial and religious minorities, and immigrants. n2 [*435] The government's domestic surveillance efforts are
not only geared toward suspected terrorists and those partaking in criminal activity, but reach any innocent, non-criminal, non-terrorist national, all in the
activists,
name of national security. The government's power to engage in suspicionless surveillance and track innocent
citizens' sensitive information has been granted through the creation and revision of the National Counterterrorism Center n3 and the FBI's (Federal Bureau of Investigation) Domestic
Investigations and Operations Guide. n4 The grant of surveillance power has resulted in many opponents, including those within the current presidential administration, who challenge the
order for numerous reasons. n5 These reasons include the inefficiency of storing citizens' random personal information for extended periods of time, n6 the broad unprecedented authority
granted to this body of government without proper approval from Congress, n7 and the constitutional violations due to the deprivation of citizens' rights. n8 [*436] This Comment argues that
the wide-sweeping surveillance authority granted to the government
results in a violation of the Fourteenth Amendment's Equal Protection Clause due to far-reaching domestic
monitoring practices. Surveillance practices, such as posing as members of the community and placing individuals on watch lists without suspicion of terrorist activity, result in the
impermissible monitoring of individuals on the basis of their race or ethnicity . These practices, although done in the name of
national security, an established compelling government interest, violate the Equal Protection Clause of the Fourteenth Amendment because they are not narrowly tailored to the stated
interest.
The procedures are not narrowly tailored to the interest of national security because of the over-
inclusiveness of the measures.
Most everyone violates some law from time-to-time. Mass surveillance results in
selective enforcement that disproportionately impacts those lacking privilege.
Stanfill ‘13
Mel - The author now holds a Ph.D. from the University of Illinois, Urbana-Champaign in Communications and Media. The
Author was working on that PhD at this time of this writing. When this piece was written, the author held an M.A. from
California State University, East Bay in Media and Cultural Studies and had Graduate minors in Gender and Women’s Studies
and Queer Studies. The author also held a B.A. from University of California, Berkeley - English with Distinction in General
Scholarship. At the time of this writing, the author had published several Peer-Reviewed Publications. The author is internally
quoting Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law
School. “NSA Prism Part III: Due Process and Presumed Guilty” - July 1, 2013 – http://www.melstanfill.com/nsa-prism-part-iiidue-process-and-presumed-guilty/
Posing this as a due process question could be the way to get some traction in light of the nonchalance about privacy discussed last week: The
problem with NSA PRISM is that we are all being treated as guilty until proven innocent. This has been going on since 9/11, of course, with
airport security being one highly visible iteration, but there’s a chance that this new level of awareness of just how much everyone is being
treated as criminal without due process of law could be the straw. Solove describes the stakes well: “Even
if a person is doing
nothing wrong, in a free society, that person shouldn’t have to justify every action that government
officials might view as suspicious. A key component of freedom is not having to worry about how to
explain oneself all the time.” Crossing this line into blanket assumption of guilt is what animates the Stop Watching US petition, which
says “the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with
a terrorist organization,” though they tie their concern to the 1st and 4th amendment and “citizens’ right to speak and associate anonymously,
guard against unreasonable searches and seizures, and protect their right to privacy” without mentioning due process. (That people feel due
process has gone out the window is clear from the fact that RootsAction sent me a petition to President Obama “not to engage in any
abduction or other foul play against Snowden,” ironic when the administration’s line on why they’re disappointed that Hong Kong let him leave
is that they want there to be rule of law.) Wired perhaps elaborates the worst-case-scenario best: “Police
already abuse the
immense power they have, but if everyone’s every action were being monitored, and everyone
technically violates some obscure law at some time, then punishment becomes purely selective. Those
in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if
there were no rules at all.” Of course, black and Latino citizens have been living under presumed-guilty,
surveilled-within-an inch-of-their-lives, selectively-punished conditions for decades: they’re more likely
to get caught at things white folks also do and be punished more harshly for them, even as early as
middle school (see Ann Ferguson’s Bad Boys). Muslim and Arab citizens have been living under it since
9/11.
An ethical ballot rejects the logic of the security state: that’s key to break down
stereotypes that configure racism
Kumar & Kundnani ‘15
Deepa Kumar is an associate professor of Media Studies and Middle East Studies at Rutgers University. She is the author of
Islamophobia and the Politics of Empire (Haymarket Books, 2012). Arun Kundnani is research fellow at the International Centre
for Counter-Terrorism. He is a writer and activist, and a professor at NYU. “Race, surveillance, and empire” – International
Socialist Review - Issue #96 – Spring - http://isreview.org/issue/96/race-surveillance-and-empire
In the second part, we
turn our attention to the current conjuncture in which the politics of the War on Terror shape
national security surveillance practices. The intensive surveillance of Muslim Americans has been carried
out by a vast security apparatus that has also been used against dissident movements such as Occupy
Wall Street and environmental rights activists, who represent a threat to the neoliberal order. This is not new;
the process of targeting dissenters has been a constant feature of American history. For instance, the Alien and Sedition Acts of the late 1790s were passed by the
Federalist government against the Jeffersonian sympathizers of the French Revolution. The British hanged Nathan Hale because he spied for Washington’s army in
the American Revolution. State
surveillance regimes have always sought to monitor and penalize a wide range of dissenters,
radicals, and revolutionaries. Race was a factor in some but by no means all of these cases. Our focus here is on the production of racialized “others” as
security threats and the ways this helps to stabilize capitalist social relations. Further, the current system of mass surveillance of
Muslims is analogous to and overlaps with other systems of racialized security surveillance that feed the mass
deportation of immigrants under the Obama administration and that disproportionately target African Americans,
contributing to their mass incarceration and what Michelle Alexander refers to as the New Jim Crow.4 We argue that racialized
groupings are produced in the very act of collecting information about certain groups deemed as
“threats” by the national security state— the Brown terrorist , the Black and Brown drug dealer and user,
and the immigrant who threatens to steal jobs. We conclude that “ security” has become one of the primary means
through which racism is ideologically reproduced in the “post-racial,” neoliberal era. Drawing on W. E. B. Dubois’s notion of the
“psychological wage,” we argue that neoliberalism has been legitimized in part through racialized notions of security that offer a new “psychological wage” as
compensation for the decline of the social wage and its reallocation to “homeland security.”
Rejecting racism in every instance key
Memmi 2K
Albert - Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated by Steve Martinot, p. 163-165
The struggle against racism will be long, difficult, without intermission, without remission, probably
never achieved. Yet, for this very reason, it is a struggle to be undertaken without surcease and without
concessions. One cannot be indulgent toward racism; one must not even let the monster in the house,
especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in
other people, which is to diminish what is human. To accept the racist universe to the slightest degree is
to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still
largely live. it is to agree that the outsider will always be a possible victim (and which man is not
himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the
condition of the dominated that is, it illuminates in a certain sense the entire human condition. The antiracist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the
ultimate passage from animosity to humanity . In that sense, we cannot fail to rise to the racist challenge.
However, it remains true that one’s moral conduit only emerges from a choice: one has to want it. It is a
choice among other choices, and always debatable in its foundations and its consequences. Let us say,
broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a
human order, for which racism is the very negation. This is almost a redundancy. One cannot found a
moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other,
and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious
language, racism is ‘the truly capital sin. It is not an accident that almost all of humanity’s spiritual
traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical
morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such
sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death .
Of course, this is debatable. There are those who think that if one is strong enough, the assault on and
oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will
be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat
others with respect so that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both
that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and
a practical appeal—indeed, it is a contract, however implicit it might be. In
short, the refusal of racism is the condition for all
theoretical and practical morality because, in the end, the ethical choice commands the political choice,
a just society must be a society accepted by all. If this contractual principle is not accepted, then only
conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace.
True, it is a wager, but the stakes are irresistible.
Bias goes our way- be skeptic of their scholarship
Wong & Belair-Gagnon ‘13
Albert Wong and Valerie Belair-Gagnon are resident fellows at the Information Society Project at Yale Law School – “On the
NSA, the media may tilt right” – Columbia Journalism Review – October 23rd http://www.cjr.org/the_kicker/news_media_pro_surveillance_bi.php
Since June 6, the world has been roiled by an ongoing series of disclosures based on Edward Snowden’s document leaks, with coverage led by the Guardian and the
Washington Post, about clandestine mass surveillance conducted, with little oversight, by the NSA and its international partners. Public
perceptions of
these surveillance revelations are affected not only by the NSA’s actual actions, but also by the news coverage of the
government’s spying programs. Previous studies have shown that the latter factor can have a profound effect on
opinion. Given the importance of this issue, we decided to analyze major US newspapers’ “post-Snowden” coverage of the Foreign
Intelligence Surveillance Act (FISA) and the Foreign Intelligence Surveillance Court (FISC) to determine if there was an overall bias in either
a pro- (traditionally conservative) or anti-surveillance (traditionally liberal) direction. The results were unexpected, and quite remarkable. Our
public
analysis of total press coverage of FISA and FISC between July 1 and July 31 (July was the first full calendar month after the initial disclosures in June) revealed that
the widely held assumption that major media outlets uniformly tilt to the left does not match reality. In fact, if anything, the
media appears to tilt to
the right, at least on this issue. We did a LexisNexis search of four of the largest US newspapers by circulation: The New York Times, USA Today,
the Los Angeles Times, and the Washington Post. Of the 30 traditionally pro- or anti-surveillance terms we examined (15 each, listed below) in all four newspapers,
key words generally used to justify increased surveillance, such as security or terrorism , were used much more
frequently than terms that tend to invoke opposition to mass surveillance, such as privacy or liberty. USA Today led the pack,
using pro-surveillance terms 36 percent more frequently than anti-surveillance terms. The LA Times followed at 24 percent, while The New York Times was at 14.1
percent. Even the Washington Post, where Barton Gellman was the first US journalist to break the news of the NSA’s surveillance, exhibited a net pro-surveillance
bias in its coverage of 11.1 percent. Although keyword frequency analysis on its own is not always conclusive, large, consistent discrepancies of the kind observed
here strongly suggest a net media bias in favor of the US and UK governments’ pro-surveillance position. The pro-surveillance media bias we found was not, in
general, overt. In our opinion, most of the New York Times’ FISA/FISC coverage was neutral in tone. But
covert bias is still bias—in fact, it may even
be more effective than blatant bias , since readers may not notice its existence. A seemingly neutral article could leave a net
pro-surveillance impression on readers if it contains an excess of references to, say, foreign terrorists or national security—terms that tend to frame the issue as a
question of patriotic willingness to do what it takes to keep the country safe. Our findings indicate that the intense public concern about the NSA’s activities is not
merely an artifact of biased coverage, since the media actually appears to be biased in the opposite direction. In a recent Associated Press-NORC Center for Public
Affairs Research poll, 54 percent of respondents disagreed with dragnet collection of internet metadata and 71 percent disagreed with warrantless monitoring of US
phone calls. Public opposition
to the government surveillance might be even more pronounced if overall media
coverage was neutral and unbiased. Consciously or not, Western journalists and media outlets may still (even more than a
decade after 9/11) be wary of appearing to be “soft on terror,” much as they once were about appearing to be soft on Communism. President
George W. Bush’s September 2001 admonition that “either you are with us, or you are with the terrorists” appears to have an enduring legacy in media bias.
ADV 2 IS PRIVACY
Privacy coming 2nd to security justifies destruction of all rights and destruction of
identity
Solove ‘7 [Daniel Solove is an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School. He
is one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on
how privacy relates with information technology. He has written 9 books and more than 50 law review articles – From the Article ““I’ve Got
Nothing to Hide” and Other Misunderstandings of Privacy” - San Diego Law Review, Vol. 44, p. 745 - GWU Law School Public Law Research
Paper No. 289 – available from download at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565]
It is time to return to the
nothing to hide argument . The reasoning of this argument is that when it comes to government
surveillance or use of personal data, there is no privacy violation if a person has nothing sensitive, embarrassing, or illegal
to conceal. Criminals involved in illicit activities have something to fear, but for the vast majority of people, their activities are not
illegal or embarrassing. Understanding privacy as I have set forth reveals the flaw of the nothing to hide argument at its roots. Many commentators who respond to
the argument attempt a direct refutation by trying to point to things that people would want to hide. But the problem with the nothing to hide argument is the
underlying assumption that privacy is about hiding bad things. Agreeing
with this assumption concedes far too much ground
and leads to an unproductive discussion of information people would likely want or not want to hide. As Bruce Schneier aptly notes, the
nothing to hide argument stems from a faulty “premise that privacy is about hiding a wrong.”75 The deeper
problem with the nothing to hide argument is that it myopically views privacy as a form of concealment or secrecy. But understanding privacy as a plurality of
related problems demonstrates that concealment of bad things is just one among many problems caused by government programs such as the NSA surveillance and
data mining. In the categories in my taxonomy, several problems are implicated. The
NSA programs involve problems of information
collection, specifically the category of surveillance in the taxonomy. Wiretapping involves audio surveillance of people’s conversations. Data mining
often begins with the collection of personal information, usually from various third parties that possess people’s data. Under current Supreme Court Fourth
Amendment jurisprudence, when the government gathers data from third parties, there is no Fourth Amendment protection because people lack a “reasonable
expectation of privacy” in information exposed to others.76 In United States v. Miller, the Supreme Court concluded that there is no reasonable expectation of
privacy in bank records because “[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to
the banks and exposed to their employees in the ordinary course of business.”77 In Smith v. Maryland, the Supreme Court held that people lack a reasonable
expectation of privacy in the phone numbers they dial because they “know that they must convey numerical information to the phone company,” and therefore
they cannot “harbor any general expectation that the numbers they dial will remain secret.”78 As I have argued extensively elsewhere, the lack of Fourth
Amendment protection of third party records results in the government’s ability to access an extensive amount of personal information with minimal limitation or
oversight.79 Many scholars have referred to information collection as a form of surveillance. Dataveillance, a term coined by Roger Clarke, refers to the “systemic
use of personal data systems in the investigation or monitoring of the actions or communications of one or more persons.”80 Christopher Slobogin has referred to
the gathering of personal information in business records as “transaction surveillance.”81 Surveillance
can create chilling effects on free
speech, free association, and other First Amendment rights essential for democracy.82 Even surveillance
of legal activities can inhibit people from engaging in them. The value of protecting against chilling
effects is not measured simply by focusing on the particular individuals who are deterred from
exercising their rights. Chilling effects harm society because, among other things, they reduce the range of
viewpoints expressed and the degree of freedom with which to engage in political activity. The nothing to hide
argument focuses primarily on the information collection problems associated with the NSA programs. It contends that limited surveillance of lawful activity will not
chill behavior sufficiently to outweigh the security benefits. One can certainly quarrel with this argument, but one of the difficulties with chilling effects is that it is
often very hard to demonstrate concrete evidence of deterred behavior.83 Whether the NSA’s surveillance and collection of telephone records has deterred people
from communicating particular ideas would be a difficult question to answer. Far too often, discussions of the NSA surveillance and data mining define the problem
solely in terms of surveillance. To return to my discussion of metaphor, the problems are not just Orwellian, but Kafkaesque. The
NSA programs are
problematic even if no information people want to hide is uncovered. In The Trial, the problem is not inhibited
behavior, but rather a suffocating powerlessness and vulnerability created by the court system’s use of personal data
and its exclusion of the protagonist from having any knowledge or participation in the process. The harms consist of those created by bureaucracies—indifference,
errors, abuses, frustration, and lack of transparency and accountability. One such harm, for example, which I call aggregation, emerges from the combination of
small bits of seemingly innocuous data.84 When combined, the information becomes much more telling about a person. For the person who truly has nothing to
hide, aggregation is not much of a problem. But in the stronger, less absolutist form of the nothing to hide argument, people argue that certain pieces of
information are not something they would hide. Aggregation, however, means that by combining pieces of information we might not care to conceal, the
government can glean information about us that we might really want to conceal. Part of the
its ability
allure of data mining for the government is
to reveal a lot about our personalities and activities by sophisticated means of analyzing data. Therefore, without greater
transparency in data mining,
it is hard to claim that programs like the NSA data mining program will not reveal
information people might want to hide, as we do not know precisely what is revealed. Moreover, data mining aims to be predictive of
behavior, striving to prognosticate about our future actions. People who match certain profiles are deemed likely to engage in a similar pattern of behavior. It is
quite difficult to refute actions that one has not yet done. Having nothing to hide will not always dispel predictions of future activity. Another
problem in
the taxonomy, which is implicated by the NSA program, is the problem I refer to as exclusion.85 Exclusion is the problem caused when
people are prevented from having knowledge about how their information is being used, as well as
barred from being able to access and correct errors in that data. The NSA program involves a massive database of information
that individuals cannot access. Indeed, the very existence of the program was kept secret for years.86 This kind of information processing, which forbids people’s
knowledge or involvement, resembles in some ways a kind of due process problem. It is a structural problem involving the way people are treated by government
institutions. Moreover, it creates a power imbalance between individuals and the government. To what extent should the Executive Branch and an agency such as
the NSA, which is relatively insulated from the political process and public accountability, have a significant power over citizens? This
issue is not about
whether the information gathered is something people want to hide, but rather about the power and
the structure of government. A related problem involves “secondary use.” Secondary use is the use of data obtained for one purpose for a different
unrelated purpose without the person’s consent. The Administration has said little about how long the data will be stored, how it will be used, and what it could be
used for in the future. The potential future uses of any piece of personal information are vast, and without limits or accountability on how that information is used,
it is hard for people to assess the dangers of the data being in the government’s control. Therefore, the problem with the nothing to hide argument is that it focuses
on just one or two particular kinds of privacy problems—the disclosure of personal information or surveillance—and not others. It assumes a particular view about
the terms for debate in a manner that is often unproductive. It is important to distinguish here between two ways of
justifying a program such as the NSA surveillance and data mining program. The first way is to not recognize a problem. This is how the nothing to
hide argument works—it denies even the existence of a problem. The second manner of justifying such a program is to acknowledge the problems
but contend that the benefits of the NSA program outweigh the privacy harms. The first justification influences the
second, because the low value given to privacy is based upon a narrow view of the problem. The key misunderstanding is that the nothing to
hide argument views privacy in a particular way—as a form of secrecy, as the right to hide things. But there are many
other types of harm involved beyond exposing one’s secrets to the government. Privacy problems are often difficult to
what privacy entails, and it sets
recognize and redress because they create a panoply of types of harm. Courts, legislators, and others look for particular types of harm to the exclusion of others,
and their narrow focus blinds them to seeing other kinds of harms. One of
the difficulties with the nothing to hide argument is that it looks for a
visceral kind of injury as opposed to a structural one. Ironically, this underlying conception of injury is shared by both those
advocating for greater privacy protections and those arguing in favor of the conflicting interests to privacy. For example, law professor
Ann Bartow argues that I have failed to describe privacy harms in a compelling manner in my article, A Taxonomy of Privacy, where I provide a
framework for understanding the manifold different privacy problems.87 Bartow’s primary complaint is that my taxonomy “frames privacy harms in dry, analytical
terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings
does not have “enough dead bodies” and that
privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from
other categories of tort law. Most privacy problems lack dead bodies. Of course, there are exceptional cases such as the murders of
beyond simply provoking feelings of unease.”88 Bartow claims that the taxonomy
Rebecca Shaeffer and Amy Boyer. Rebecca Shaeffer was an actress killed when a stalker obtained her address from a Department of Motor Vehicles record.90 This
incident prompted Congress to pass the Driver’s Privacy Protection Act of 1994.91 Amy Boyer was murdered by a stalker who obtained her personal information,
including her work address and Social Security number, from a database company.92 These examples aside, there is not a lot of death and gore in privacy law. If this
is the standard to recognize a problem, then few privacy problems will be recognized. Horrific cases are not typical, and the purpose of my taxonomy is to explain
why most privacy problems are still harmful despite this fact. Bartow’s objection is actually very similar to the nothing to hide argument. Those
advancing
the nothing to hide argument have in mind a particular kind of visceral privacy harm, one where privacy is violated only when something deeply
embarrassing or discrediting is revealed. Bartow’s quest for horror stories represents a similar desire to find visceral privacy harms. The problem is
that not all privacy harms are like this. At the end of the day, privacy is not a horror movie, and demanding more palpable harms will be difficult in
many cases. Yet there is still a harm worth addressing, even if it is not sensationalistic. In many instances, privacy is
threatened not by singular egregious acts, but by a slow series of relatively minor acts which gradually begin to add up. In this way, privacy problems resemble
certain environmental harms which occur over time through a series of small acts by different actors. Bartow wants to point to a major spill, but gradual pollution by
a multitude of different actors often creates worse problems. The law frequently struggles with recognizing harms that do not result in embarrassment, humiliation,
or physical or psychological injury.93 For example, after the September 11 attacks, several airlines gave their passenger records to federal agencies in direct
violation of their privacy policies. The federal agencies used the data to study airline security.94 A group of passengers sued Northwest Airlines for disclosing their
personal information. One of their claims was that Northwest Airlines breached its contract with the passengers. In Dyer v. Northwest Airlines Corp., the court
rejected the contract claim because “broad statements of company policy do not generally give rise to contract claims,” the passengers never claimed they relied
upon the policy or even read it, and they “failed to allege any contractual damages arising out of the alleged breach.”95 Another court reached a similar
conclusion.96 Regardless of the merits of the decisions on contract law, the cases represent a difficulty with the legal system in addressing privacy problems. The
disclosure of the passenger records represented a “breach of confidentiality.”97 The problems caused by breaches of confidentiality do not merely consist of
individual emotional distress; they involve a violation of trust within a relationship. There is a strong social value in ensuring that promises are kept and that trust is
maintained in relationships between businesses and their customers. The problem of secondary use is also implicated in this case.98 Secondary use involves data
collected for one purpose being used for an unrelated purpose without people’s consent. The airlines gave passenger information to the government for an entirely
different purpose beyond that for which it was originally gathered. Secondary use problems often do not cause financial, or even psychological, injuries. Instead, the
harm is one of power imbalance. In Dyer, data was disseminated in a way that ignored airline passengers’ interests in the data despite promises made in the privacy
policy. Even if the passengers were unaware of the policy, there is a social value in ensuring that companies adhere to established limits on the way they use
personal information. Otherwise, any stated limits become meaningless, and companies have discretion to boundlessly use data. Such a state of affairs can leave
nearly all consumers in a powerless position. The harm, then, is less one to particular individuals than it is a structural harm. A similar problem surfaces in another
case, Smith v. Chase Manhattan Bank.99 A group of plaintiffs sued Chase Manhattan Bank for selling customer information to third parties in violation of its privacy
policy, which stated that the information would remain confidential. The court held that even presuming these allegations were true, the plaintiffs could not prove
any actual injury: [T]he “harm” at the heart of this purported class action, is that class members were merely offered products and services which they were free to
decline. This does not qualify as actual harm. The complaint does not allege any single instance where a named plaintiff or any class member suffered any actual
harm due to the receipt of an unwanted telephone solicitation or a piece of junk mail.100 The court’s view of harm, however, did not account for the breach of
confidentiality. When
balancing privacy against security, the privacy harms are often characterized in terms of
injuries to the individual, and the interest in security is often characterized in a more broad societal way. The
security interest in the NSA programs has often been defined improperly. In a Congressional hearing, Attorney General
Alberto Gonzales stated: Our enemy is listening, and I cannot help but wonder if they are not shaking their heads in amazement at the thought that anyone would
imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even
unilaterally disarm ourselves of a key tool in the war on terror.101 The balance between privacy and security is often cast in terms of whether a particular
government information collection activity should or should not be barred. The
issue, however, often is not whether the NSA or other government
agencies should be allowed to engage in particular forms of information gathering; rather, it is what kinds of
oversight and accountability we want in place when the government engages in searches and seizures. The government can
employ nearly any kind of investigatory activity with a warrant supported by probable cause. This is a mechanism of oversight—it
forces government officials to justify their suspicions to a neutral judge or magistrate before engaging in the tactic. For
example, electronic surveillance law allows for wiretapping, but limits the practice with judicial supervision, procedures to minimize the breadth of the wiretapping,
and requirements that the law enforcement officials report back to the court to prevent abuses.102 It is these procedures that the Bush Administration has ignored
by engaging in the warrantless NSA surveillance. The question is not whether we want the government to monitor such conversations, but whether the Executive
Branch should adhere to the appropriate oversight procedures that Congress has enacted into law, or should covertly ignore any oversight. Therefore, the security
interest should not get weighed in its totality against the privacy interest. Rather, what should get weighed is the extent of marginal limitation on the effectiveness
of a government information gathering or data mining program by imposing judicial oversight and minimization procedures. Only in cases where such procedures
will completely impair the government program should the security interest be weighed in total, rather than in the marginal difference between an unencumbered
program versus a limited one. Far too
often, the balancing of privacy interests against security interests takes place in a
manner that severely shortchanges the privacy interest while inflating the security interests . Such is the logic of the
nothing to hide argument. When
the argument is unpacked, and its underlying assumptions examined
and challenged,
we can see how it shifts the debate to its terms , in which it draws power from its unfair advantage. It is time
to pull the curtain on the nothing to hide argument. Whether explicit or not, conceptions of privacy underpin nearly every argument made about privacy,
even the common quip “I’ve got nothing to hide.” As I have sought to demonstrate in this essay, understanding privacy as a pluralistic conception reveals that we
are often talking past each other when discussing privacy issues. By focusing more specifically on the related problems under the rubric of “privacy,” we can better
address each problem rather than ignore or conflate them. The nothing to hide argument speaks to some problems, but not to others. It represents
a
singular and narrow way of conceiving of privacy, and it wins by excluding consideration of the other problems
raised in government surveillance and data mining programs. When engaged with directly, the nothing to hide argument can ensnare,
for it forces the debate to focus on its narrow understanding of privacy. But when confronted with the plurality of privacy problems
implicated by government data collection and use beyond surveillance and disclosure, the nothing to hide argument, in the end,
has nothing to say.
often
When identities are destroyed, there is no value to security
Schneier ‘6 [Bruce Schneier is a fellow at the Berkman Center for Internet & Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute and the CTO of Resilient Systems. He is the author of
Beyond Fear: Thinking Sensibly About Security in an Uncertain World. Commentary, “The Eternal Value of Privacy”, WIRED, May
18, 2006, http://www.wired.com/news/columns/1,70886-0.html]
The most common retort against privacy advocates -- by those in favor of ID checks, cameras, databases, data mining and
other wholesale surveillance measures -- is this line: "If you aren't doing anything wrong, what do you have to
hide?" Some clever answers: "If I'm not doing anything wrong, then you have no cause to watch me."
"Because the government gets to define what's wrong, and they keep changing the definition." "Because you might do something wrong
with my information." My problem with quips like these -- as right as they are -- is that they accept the premise
that privacy is about hiding a wrong. It's not. Privacy is an inherent human right, and a requirement for
maintaining
the human condition with
dignity and respect. Two proverbs say it best: Quis custodiet custodes ipsos? ("Who watches the
watchers?") and "Absolute power corrupts absolutely." Cardinal Richelieu understood the value of surveillance when he famously said, "If one would give me six
lines written by the hand of the most honest man, I would find something in them to have him hanged." Watch someone long enough, and you'll find something to
arrest -- or just blackmail -- with. Privacy
is important because without it, surveillance information will be abused : to
peep, to sell to marketers and to spy on political enemies -- whoever they happen to be at the time. Privacy protects us from abuses by those
in power, even if we're doing nothing wrong at the time of surveillance. We do nothing wrong when we make love or go to
the bathroom. We are not deliberately hiding anything when we seek out private places for reflection or conversation. We keep private journals, sing in the privacy
of the shower, and write letters to secret lovers and then burn them.
Privacy is a basic human need.
A future in which privacy would face
constant assault was so alien to the framers of the Constitution that it never occurred to them to call out privacy as an explicit right. Privacy was inherent to the
nobility of their being and their cause. Of course being watched in your own home was unreasonable. Watching at all was an act so unseemly as to be inconceivable
among gentlemen in their day. You watched convicted criminals, not free citizens. You ruled your own home. It's intrinsic to the concept of liberty. For
if we
are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our
own uniqueness. We become children, fettered under watchful eyes, constantly fearful that -- either now or in the
uncertain future -- patterns we leave behind will be brought back to implicate us, by whatever authority
has now become focused upon our once-private and innocent acts. We lose our individuality , because
everything we do is observable and recordable. How many of us have paused during conversation in the past fourand-a-half years, suddenly aware that we might be eavesdropped on? Probably it was a phone conversation, although
maybe it was an e-mail or instant-message exchange or a conversation in a public place. Maybe the topic was terrorism, or
politics, or Islam. We stop suddenly, momentarily afraid that our words might be taken out of context, then
we laugh at our paranoia and go on. But our demeanor has changed, and our words are subtly altered. This is
the loss of freedom we face when our privacy is taken from us. This is life in former East Germany, or life in Saddam Hussein's Iraq. And it's our future as we allow an
ever-intrusive eye into our personal, private lives. Too
many wrongly characterize the debate as "security versus privacy."
The real choice is liberty versus control. Tyranny, whether it arises under threat of foreign physical attack or
under constant domestic authoritative scrutiny, is still tyranny. Liberty requires security without intrusion, security plus
privacy. Widespread police surveillance is the very definition of a police state. And that's why we should
champion privacy even when we have nothing to hide.
Mass surveillance is inherently repressive
Greenwald 14 — Glenn Greenwald, journalist who received the 2014 Pulitzer Prize for Public Service
for his work with Edward Snowden to report on NSA surveillance, Founding Editor of The Intercept,
former Columnist for the Guardian and Salon, recipient of the Park Center I.F. Stone Award for
Independent Journalism, the Online Journalism Award for investigative work on the abusive detention
conditions of Chelsea Manning, the George Polk Award for National Security Reporting, the Gannett
Foundation Award for investigative journalism, the Gannett Foundation Watchdog Journalism Award,
the Esso Premio for Excellence in Investigative Reporting in Brazil, and the Electronic Frontier
Foundation’s Pioneer Award, holds a J.D. from New York University School of Law, 2014 (“The Harm of
Surveillance,” No Place To Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, Published by
Metropolitan Books, ISBN 9781627790734, p. 173-174)
Privacy is essential to human freedom and happiness for reasons that are rarely discussed but
instinctively understood by most people, as evidenced by the lengths to which they go to protect their
own. To begin with, people radically change their behavior when they know they are being watched.
They will strive to do that which is expected of them. They want to avoid shame and condemnation.
They do so by adhering tightly to accepted social practices, by staying within imposed boundaries,
avoiding action that might be seen as deviant or abnormal.
The range of choices people consider when they believe that others are watching is therefore far more
limited than what they might do when acting in a private realm. A denial of privacy operates to severely
restrict one’s freedom of choice.
Several years ago, I attended the bat mitzvah of my best friend’s daughter. During the ceremony, the
rabbi emphasized that “the central lesson” for the girl to learn was that she was “always being watched
and judged.” He told her that God always knew what she was doing, every choice, every action, and
even every thought, no matter how private. “You are never alone,” he said, which meant that she
should always adhere to God’s will.
The rabbi’s point was clear: if you can never evade the watchful eyes of a supreme authority, there is no
choice but to follow the dictates that authority imposes. You cannot even consider forging your own
path beyond those rules: if you believe you are always being watched and judged, you are not really a
free individual.
All oppressive authorities — political, religious, societal, parental — rely on this vital truth, using it as a
principal tool to enforce orthodoxies, compel adherence, and quash dissent. It is in their interest to
convey that nothing their subjects do will escape the knowledge of the authorities. Far more effectively
than a police force, the deprivation of privacy will crush any temptation to deviate from rules and
norms.
What is lost when the private realm is abolished are many of the [end page 173] attributes typically
associated with quality of life. Most people have experienced how privacy enables liberation from
constraint. And we’ve all, conversely, had the experience of engaging in private behavior when we
thought we were alone — dancing, confessing, exploring sexual expression, sharing untested ideas —
only to feel shame at having been seen by others.
Only when we believe that nobody else is watching us do we feel free — safe — to truly experiment, to
test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves.
What made the Internet so appealing was precisely that it afforded the ability to speak and act
anonymously, which is so vital to individual exploration.
For that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy
germinate. A society in which everyone knows they can be watched by the state — where the private
realm is effectively eliminated — is one in which those attributes are lost, at both the societal and the
individual level.
Mass surveillance by the state is therefore inherently repressive, even in the unlikely case that it is not
abused by vindictive officials to do things like gain private information about political opponents.
Regardless of how surveillance is used or abused, the limits it imposes on freedom are intrinsic to its
existence.
Rights like privacy can’t be “outweighed” on the basis of cost-benefit analysis. This is
especially important in the context of terrorism.
Cole 7 — David Cole, Professor at Georgetown University Law Center, has litigated many significant
constitutional cases in the Supreme Court, holds a J.D. from Yale Law School, 2007 (“Book Review: The
Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11 (Review of Richard A. Posner’s Not A
Suicide Pact: The Constitution In A Time Of National Emergency),” Stanford Law Review (59 Stan. L. Rev.
1735), April, Available Online to Subscribing Institutions via Lexis-Nexis)
II. The Disappearing Constitution
The general problem with Posner's approach is that it does away with the animating idea of the
Constitution - namely, that it is a form of collective precommitment. The genius behind the
Constitution is precisely the recognition that "pragmatic" cost-benefit decisions of the type Posner
favors will often appear in the short term to favor actions that in the long term are contrary to our own
best principles. Just as we may be tempted to smoke a cigarette tonight [*1746] even though in the
long term we are likely to suffer as a result, so we know collectively that in the short term we are likely
to empower government to suppress unpopular speech, invade the privacy of "dangerous" minorities,
and abuse suspected criminals, even though in the long term such actions undermine the values of free
speech, equality, and privacy that are necessary to democracy and human flourishing. If we were
always capable of rationally assessing the costs and benefits in such a way as to maximize our collective
well-being, short-term and long-term, we might not need a Constitution. But knowing that societies, like
individuals, will be tempted to act in ways that undermine their own best interests, we have
precommitted to a set of constitutional constraints on pragmatic balancing. Posner's view that the
Constitution must bend to the point of authorizing virtually any initiative that seems pragmatic to him
reduces the Constitution to a precommitment to balance costs and benefits, and that is no
precommitment at all.
Constitutional theory demands more than ad hoc balancing. n27 While the nature of competing
interests means that at some level of generality, a balance must be struck, constitutional analysis is not
an invitation to the freewheeling, all-things-considered balance of the economist. Instead, it requires
an effort, guided by text, precedent, and history, to identify the higher principles that guide us as a
society, principles so important that they trump democracy itself (not to mention efficiency). The judge's
constitutional duty was perhaps best captured by Justice John Marshall Harlan, writing about the due
process clause:
Due process has not been reduced to any formula; its content cannot be determined by
reference to any code. The best that can be said is that through the course of this Court's
decisions it has represented the balance which our Nation, built upon postulates of respect for
the liberty of the individual, has struck between that liberty and the demands of organized
society. If the supplying of content to this Constitutional concept has of necessity been a rational
process, it certainly has not been one where judges have felt free to roam where unguided
speculation might take them. The balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which it developed as well as the
traditions from which it broke. That tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision which builds on what has
survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment
and restraint. n28
Instead of looking to the Constitution and its jurisprudence as a reflection of our collective effort to
determine the higher principles that should guide us, as Harlan suggests, Posner would start from
scratch, assessing what is best from a pragmatic, open-ended balancing approach that he admits
ultimately involves weighing imponderables.
[*1747] Posner insists that to declare a practice constitutional is not the same as saying that it is
desirable as a policy matter: "Much that the government is permitted by the Constitution to do it should
not do and can be forbidden to do by legislation or treaties" (p. 7). That is certainly true as a theoretical
matter, at least where one's constitutional theory is not reducible to one's policy preferences. But
Posner appears to view questions of constitutionality as simply a matter of weighing all the costs and
benefits, which is surely the same utilitarian calculus the policymaker would use to determine whether a
practice is desirable. Under Posner's approach, then, it is difficult to see why there would be any room
between what is desirable and what is constitutional.
If constitutionalism is to have any bite, it must be distinct from mere policy preferences. In fact, our
Constitution gives judges the authority to declare acts of democratically elected officials
unconstitutional on the understanding that they will not simply engage in the same cost-benefit
analyses that politicians and economists undertake. The very sources Judge Posner dismisses - text,
precedent, tradition, and reason - as unhelpful in the face of the threat of catastrophic terrorism are
absolutely essential to principled constitutional decision-making. It is true that text, precedent, tradition,
and reason do not determine results in some mechanistic way. That is why we ask judges, not machines,
to decide constitutional cases. But these sources are nonetheless critically important constraints on and
guides to constitutional decision-making. They are what identify those principles that have been
deemed fundamental - and therefore constitutional - over our collective history.
The Framers of the Constitution did not simply say "the government may engage in any practice whose
benefits outweigh its costs," as Judge Posner would have it. Instead, they struggled to articulate a
limited number of fundamental principles and enshrine them above the everyday pragmatic judgments
of politicians. They foresaw what modern history has shown to be all too true - that while democracy is
an important antidote to tyranny, it can also facilitate a particular kind of tyranny - the tyranny of the
majority. Constitutional principles protect those who are likely to be the targets of such tyranny, such as
terror suspects, religious and racial minorities, criminal defendants, enemy combatants, foreign
nationals, and, especially in this day and age, Arabs and Muslims. Relegating such individuals to the
mercy of the legislature denies the existence of that threat. The Constitution is about more than
efficiency and more than democracy; it is a collective commitment to the equal worth and dignity of
all human beings. To fail to see that is to miss the very point of constitutional law.
Posner's trump card is that because terrorism in the twenty-first century poses the risk of truly
catastrophic harm, it renders constitutional precedent and history largely irrelevant. Everything has
changed. We are in a new paradigm, in which, as Alberto Gonzales said of the Geneva Conventions, the
old rules (apparently including even those enshrined in the Constitution) are now [*1748] "quaint" or
"obsolete." n29 But each new generation faces unforeseen challenges. The advent of modern weaponry
changed war as we knew it. Communism backed by the Soviet Union posed a "new" threat of
totalitarian takeover. The development of the nuclear bomb ushered in yet another new era. This is not
to deny that there is a real threat that terrorists may get their hands on weapons of mass destruction,
and that this threat must be taken very seriously. But it is to insist on what is a truly conservative point that principles developed and applied over two centuries still have something important to say in
guiding us as we address the threat of modern terrorism.
The corollary to Posner's pragmatic and utilitarian balancing approach to the Constitution is that judges
should defer to the political branches on national security questions. Judges have no special expertise in
national security, he argues, while the political branches do (p. 9). Decisions invalidating security
measures as unconstitutional reduce our flexibility, for they are extremely difficult to change through
the political process, and may cut off avenues of experimentation (p. 27). But the Constitution was
meant to cut off certain avenues. Trying suspected terrorists without a jury, locking them up without
access to a judge, convicting them without proving guilt beyond a reasonable doubt, searching them
without probable cause or a warrant, and subjecting them to torture all might make terrorists' tasks
more difficult (although, as I have argued elsewhere, many of these shortcuts actually help the terrorists
and make us more vulnerable, because of the backlash they provoke). n30 But while the Constitution
may not be a "suicide pact," neither is it a license to do anything our leaders think might improve our
safety.
SOLVENCY
An Omnibus bill that ends multiple surveillance authorities solves.
Cohn ‘13
(et al; Cindy Cohn is the Executive Director of the Electronic Frontier Foundation. From 2000-2015 she served as EFF’s Legal
Director as well as its General Counsel. The National Law Journal named Ms. Cohn one of 100 most influential lawyers in
America. “NSA Spying in Congress: Stop the Intelligence Committee and What to Watch For in Upcoming Bills” - Electronic
Frontier Foundation - October 23, 2013 - https://www.eff.org/deeplinks/2013/10/nsa-spying-congress-stop-intelligencecommittee-and-what-watch-upcoming-bills)
The good bills being proposed are omnibus bills —so-called because they change a variety of different laws.
They try to stop the mass collection of innocent Americans' calling records (using Section 215 of the Patriot
Act), phone calls and emails (using Section 702 of the Foreign Intelligence Surveillance Act (FISA)), and try to
introduce much needed transparency reforms to the court overseeing the spying, the Foreign Intelligence Surveillance Court (FISA Court). So far, only S. 1551, the
Intelligence Oversight and Surveillance Reform Act—sponsored by Senators Ron Wyden, Richard Blumenthal, Mark Udall, and Rand Paul—has been released. The
bill is a fantastic start. The other, by Senator Patrick Leahy and Rep. Jim Sensenbrenner, is still being readied, but we’re hopeful based on what we’ve heard so far. In
general, EFF believes that
whatever bill goes through Congress must stop the mass spying ; either through nullifying the NSA’s
interpretation of Section 215, or otherwise. And it should do so in a publicly verifiable way. It goes without saying that this is, among other things, in addition to
Direct path: Forbid Mass Collection There
is a direct way to do this. Congress could unequivocally forbid the government from the mass collection of
phone records. Congress usually does this with the phrase “notwithstanding any other law.” This is the path
EFF strongly recommends. It looks something like below and includes FISA’s exceptions for wartime and
other emergencies. Notwithstanding any other law, no governmental entity shall engage in the mass
collection of records1, unless the collection is authorized pursuant to sections 1802, 1811, 1843 or 1844 of this
chapter.
reforming the FISA Court process, increasing transparency, and fixing National Security Letters.
Complete Elimination of unwarranted surveillance is key.
Matthews ‘14
(Kevin Matthews – OpEd writer and contributor at Care2.com and Truthout - “4 Reasons Obama’s NSA “Reforms” Won’t
Change Much” - Care2 - March 25, 2014 - http://www.care2.com/causes/4-reasons-obamas-nsa-reforms-wont-changemuch.html#ixzz3by65iMRe)
It Legitimatizes a Divisive Issue Although the reform is not nearly as meaningful as many Americans had
hoped for, some support it because it seems like better than nothing. However, the administration may
be offering minor concessions on its spying program in an attempt to get unwarranted surveillance on the books.
With many believing that the NSA has been conducting unlawful surveillance, passing this new legislation
would give some legitimacy to the practice. By cementing surveillance into law, it could further help to
squash debate on the subject. Perhaps that’s why Obama is calling on Congress to pass these NSA reforms “quickly.” (And by “quickly”, he really
means nearly a year after Edward Snowden brought these misdeeds to our attention.)