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Wiretapping and Surveillance Pro/Con
Wiretapping and Surveillance Pro/Con ........................................................................................................................................................... 1
***Definitions ................................................................................................................................................................................................. 2
Domestic ...................................................................................................................................................................................................... 3
In The US..................................................................................................................................................................................................... 4
Justified ........................................................................................................................................................................................................ 5
Security ........................................................................................................................................................................................................ 6
Surveillance ................................................................................................................................................................................................. 7
Suspect ......................................................................................................................................................................................................... 8
Use ............................................................................................................................................................................................................... 9
Wiretapping ............................................................................................................................................................................................... 10
*** Pro ........................................................................................................................................................................................................... 11
Wiretapping Good – Economy .................................................................................................................................................................. 12
Wiretapping Good – Economy .................................................................................................................................................................. 13
Wiretapping Good – Economy .................................................................................................................................................................. 15
Wiretapping Good – Economy .................................................................................................................................................................. 17
Wiretapping Good – Economy .................................................................................................................................................................. 18
Wiretapping Good – Terrorism .................................................................................................................................................................. 19
Wiretapping Good – Terrorism .................................................................................................................................................................. 20
Wiretapping Good – Terrorism .................................................................................................................................................................. 22
Wiretapping Good – Terrorism .................................................................................................................................................................. 24
Wiretapping Good – Legal ........................................................................................................................................................................ 25
Wiretapping Good – Legal ........................................................................................................................................................................ 27
Wiretapping Good – Legal ........................................................................................................................................................................ 28
Wiretapping Good – Crime........................................................................................................................................................................ 29
Wiretapping Good – Organized Crime Impact .......................................................................................................................................... 30
Wiretapping Good – A2: Privacy .............................................................................................................................................................. 31
Wiretapping Good – A2: Credibility ......................................................................................................................................................... 33
*** Con.......................................................................................................................................................................................................... 34
Wiretapping Bad – A2: Terrorism ............................................................................................................................................................. 35
Wiretapping Bad – Digital Infrastructure .................................................................................................................................................. 36
Wiretapping Bad – Credibility ................................................................................................................................................................... 37
Wiretapping Bad – Credibility ................................................................................................................................................................... 39
Wiretapping Bad – Credibility ................................................................................................................................................................... 40
Wiretapping Bad – Credibility ................................................................................................................................................................... 42
Wiretapping Bad – Credibility/Obama ...................................................................................................................................................... 45
Wiretapping Bad – Not Legal .................................................................................................................................................................... 47
Wiretapping Bad – Privacy ........................................................................................................................................................................ 49
Wiretapping Bad – Freedom ...................................................................................................................................................................... 51
Wiretapping Bad – Foreign Relations – EU .............................................................................................................................................. 64
Wiretapping Bad – Foreign Relations – Germany ..................................................................................................................................... 66
RESOLUTION: The use of domestic wiretapping and surveillance in the United States is justified.
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***Definitions
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Domestic
Domestic (adj.) of or pertaining to one's own or a particular country as apart from other countries: domestic trade. (dictionary.com)
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In The US
In the U.S.:
Physically residing, created, or formed in the physical boundaries of the U.S.; is a resident of or takes place in
Beliefs, ideas, or tangible events that took place or still hold true within U.S. mass culture
In (the United States) (prep.) (used to indicate inclusion within something abstract or immaterial): in politics; in the autumn.
(dictionary.com)
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Justified
Justified:
M: to provide or be a good reason for (something) : to prove or show (something) to be just, right, or reasonable
D: (Law): To show a satisfactory reason or excuse for something to be done
Justified (v.) to provide a good reason for the actions of (someone). (merriam-webster.com)
accepted by society.
acknowledged to have purpose.
to have beneficial reason.
purposeful in advancement.
beneficial in the advancement of the subject; chopping down the trees was
justified un the tribe’s need for expansion.
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Security
Security (n.) the state of being protected or safe from harm. (merriam-webster.com)
National Security (n.) a collective term for the defense and foreign relations of a country, protection of the interests of a country.
(dictionary.com)
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Surveillance
Surveillance:
D:close observation or supervision maintained over a person, group,etc, esp one in custody or under suspicion
M: the act of carefully watching someone or something especially in order to prevent or detect a crime
Surveillance (n.) a watch kept over a person, group, etc., especially over a suspect, prisoner, or the like: The suspects were under police
surveillance. (dictionary.com)
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Suspect
Suspect (n.) someone who is not able to be trusted. (merriam-webster.com)
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Use
Use (n.) the act of employing, using, or putting into service: the use of tools. (dictionary.com)
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Wiretapping
Wiretapping (v.) to listen in on by means of a wiretap; to wiretap a telephone; to wiretap a conversation. (dictionary.com)
Listen (in on) (v.) to make an effort to hear or pay close attention to someone or something. (yourdictionary.com)
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*** Pro
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Wiretapping Good – Economy
Wiretapping is good for the economy
Goral, Editor-in-Chief of University Business Magazine, 06
(Tim, “Higher Ed Coalition Fights Wiretapping Rules: New FCC Regulations Give the Feds Acess to Internet, Phone Services.” 6-302014, http://www.questia.com/magazine/1G1-143437261/higher-ed-coalition-fights-wiretapping-rules-new, MR.
A COALITION OF 14 EDUCATION GROUPS LED by the American Council on Education filed suit in January against the Federal
Communications Commission to block new surveillance rules from taking effect. Behind the concern is the 1994 Communications
Assistance for Law Enforcement Act (CALEA) that requires telecommunications companies to enable wiretaps by law enforcement
agencies. Last fall, the FCC amended CALEA to include broadband access and internet phone services--the kind found at colleges and
universities.
The Bush administration contends the new capabilities will help fight terrorism, yet others worry about privacy violations--not to mention
the expense of complying with the rules.
"If CALEA requires the replacement of a substantial portion of network equipment, the cost to the entire higher education community
could total billions of dollars," the brief reads. Citing the careful long-range planning that goes into technology expenditures, ACE--along
with the Association of American Universities, the American Association of Community Colleges, and others--maintains that the
compliance target of spring 2007 would require funding to be diverted from other programs, resulting in possible course eliminations and
tuition increases.
While economics are at the forefront of the controversy, the suit also speaks to concerns about growing government intrusions on privacy
and free speech. Many believe the government's actions cast a pall over constitutionally guaranteed freedoms.
The American Civil Liberties Union sued the National Security Agency, also in January, to stop illegal domestic surveillance.
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Wiretapping Good – Economy
Good for the economy
Schwartz, Professor UC Berkeley School of Law, 09
(Paul, “Law and technology Keeping track of telecommunications surveillance.” 6-30-2014, ebsco, MR.)
It is also a matter of great concern for the general public. Surpris- ingly enough, however, the phenom- enon of telecommunications
surveil- lance is poorly measured in the U.S. at present. As a result, any attempt at rational inquiry about telecommuni- cations
surveillance is hampered by the haphazard and incomplete infor- mation the U.S. government collects about its own behavior and
activities. Neither the U.S. government nor outside experts know basic facts about the level of surveillance prac- tices. As a consequence,
U.S. citizens have limited ability to decide if there is too much or too little telecommu- nications surveillance. It is also im- possible to
determine if telecommu- nications surveillance is increasing or decreasing, or if law enforcement is using its surveillance capacities most
effectively.4 Ideally, it would be possible to reach conclusions about these issues by examining data about U.S. government surveillance practices and their results. As a general model, federal and state crime statistics are publicly available and
criminologists pore over these databases to spot trends and determine police activities that are ef- fective. No such database is available
about the full range of telecommuni- cations surveillance.
The Telecommunications Surveillance index Congress should create one annual report card that measures and pub- licizes government’s
performance of telecommunications surveillance. This index will replace the bits and pieces of scattered reports that dif- ferent
governmental entities some- times release. Such an index will allow year-by-year comparisons of changes in the levels of government
telecommunications surveillance and permit meaningful judgments about the extent of privacy invasions and the effectiveness of the
activity. In this column, I describe the gap left by the reporting provisions in current statutes, which create only an incomplete and
discontinuous picture of the governmental activity. The creation of an annual telecom- munications surveillance index is an urgent matter,
and I will conclude by discussing four issues related to this necessary task. To understand the shortcomings of the statutes that permit U.S.
telecom- munications surveillance, one needs a sense of how they collect information about government use. The critical statutory
regulations are the Wiretap Act; the Pen Register Act; the Stored Communications Act; the Foreign Intelligence Surveillance Act (FISA);
and the different provisions for Na- tional Security Letters. The first three laws concern the use of surveillance for domestic purposes—
that is, in the context of ordinary criminal investiga- tions. The last two statutes regulate the use of surveillance for foreign in- telligence
purposes, such as counter- terrorism. And, in a nutshell, the most public information is generated about the U.S. government’s use of the
Wire- tap Act. Yet, this law in many ways has become less important than other telecommunications surveillance stat- utes, and we know
far less about the use of these other statutes.
Telecommunications Surveillance for criminal investigations A review of the legal basis for telecom- munications surveillance starts,
logi- cally, with the Wiretap Act, which is the oldest of the modern statutory au- thorities in this area. Enacted in 1968, the Wiretap Act
sets a high statutory standard before the government can “intercept” a “wire or oral communi- cation.” It also requires the govern- ment to
publish relatively detailed data sets about its use. The Wiretap Act assigns the task of collecting this information to the Administrative Office of the United States Courts, which then publishes the statistics.1 What is the problem then? The dif- ficulty is that the Wiretap Act
regu- lates only the capturing of the content of messages contemporaneously with their transmission. As an example of its coverage, if
law enforcement wish- es to intercept a telephone call as it is occurring, the Wiretap Act will apply. Yet, technological changes have created a variety of information that falls outside the Wiretap Act, whether be- cause it is “telecommunications attri- butes” rather than
content, or stored on a server. Telecommunications at- tributes are generally regulated by the Pen Register Act, and information stored on
a server generally falls under the Stored Communications Act. I will consider each law in turn. The Pen Register Act, as first enacted in
1986, regulated only access to telephone numbers dialed from a spe- cific phone, or received by it. Today, the Pen Register Act, as
amended by the Patriot Act in 2001, more broadly regulates access to “dialing, routing, addressing, or signaling informa- tion.” Examples
of such information are IP addresses and email address- ing information.
Like the Wiretap Act, the Pen Reg- ister Act requires collection of infor- mation about its use. Yet, reports pur- suant to it are far less
detailed than those under the Wiretap Act, and the U.S. government does not make them publicly available. And perhaps the greatest
surprise is that Congress has shown scant interest in even ensur- ing it actually receives the informa- tion to which it is statutorily entitled
from the Department of Justice. Overall, the situation is reminiscent of the anarchic administrative conditions prior to the New Deal’s creation of the Federal Register and other
means for the orderly publication of govern- mental records. As a further shortcoming, pen reg- ister reports only list federal collection of
information pursuant to the law. If use of the Pen Register Act follows the
pattern of the Wiretap Act, however, states are now engaging in far greater use of their authority than are federal law enforcement
authorities. The third statutory authority for telecommunications surveillance is the Stored Communications Act. This statute is
particularly significant today because so many kinds of telecommu- nications occur in asynchronous fash- ion. For example, sending an
email message may be the most prevalent form of telecommunications in the U.S. today. Yet, an email message is in transmission, as the
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term is under- stood under the Wiretap Act, for only a short period. Transmission is the time it takes from clicking on the “send”
command to the moment the mes- sage arrives at the server of the recipi- ent’s ISP. Rather than recourse to the Wiretap Act, law
enforcement typical- ly seeks collection of email from ISPs under the Stored Communications Act, which contains requirements for
obtaining access to information that are generally less rigorous than under the Wiretap Act. Despite the centrality of the Stored
Communications Act, there are almost no official statistics collected about law enforcement’s use of this statute. This statute contains
only a single re- porting exception, which regards dis- closure in an emergency. Information about its use is given to House and Senate
committees, but is not made publicly available at present. In this regard, Switzerland offers a step in the right direction: in that country,
the Federal Department of Justice and the police publish annual information about the number of orders for stored information.2
Telecommunications Surveillance for foreign intelligence Purposes The three statutory authorities thus far surveyed all regulate access to
tele- communications information for do- mestic law enforcement purposes. On the intelligence side, FISA provides the chief statutory
regulation for the gov- ernment’s collection of information about foreign intelligence within the U.S. In addition to FISA, several statutes permit the FBI to obtain personal information from third parties through National Security Letters (NSLs). A NSL is a written
directive from the FBI in cases involving national security; it does not require judicial review. FISA requires the Department of Justice to
file annual reports with Con- gress and the Administrative Office of the Courts. These reports provide merely skeletal information about
the use of FISA authorities. FISA also requires the Attorney General to file reports with the Senate and House regarding all uses of pen
register de- vices, pursuant to this statute. This in- formation is made publicly available. As for the NSLs, in its reauthoriza- tion of the
Patriot Act in 2005, Con- gress required two important kinds of information to be collected about this kind of information gathering. First,
it expanded an existing reporting re- quirement that sent information to Congress, and required annual pub- lic data on the FBI’s request
for NSLs. Second, the law required the Depart- ment of Justice to carry out audits of the use of NSLs. The resulting audits have already
demonstrated substan- tial underreporting of the actual num- ber of NSLs and misuse of statutory authorities.
Steps to Take As I’ve described here, there is cur- rently inadequate data about telecom- munications surveillance in the U.S. I conclude
by discussing four themes related to creation of a national tele- communications surveillance index. First, a central role should be given to
the Administrative Office of the U.S. Courts, as under the Wiretap Act, in collecting and publicizing telecom- munications surveillance
statistics. Since 1968, the Administrative Office has successfully carried out this role pursuant to the Wiretap Act, and the other applicable
statutes should be amended so that applicable informa- tion goes to this entity. Second, the annual index should include information about
all statu- tory authorities, not just the Wiretap Act. As noted earlier, this statute is less important as a source of statutory authorization for
surveillance activity than the Stored Communications Act and other statutes.
Third, one of the most difficult tasks in creating an annual report card will be harmonizing the information col- lected within a single
index. The goal is clear: to provide a picture of how activities in different statutory areas relate to each other. Nonetheless, development of
a workable yardstick raises a series of complex issues be- cause each statute sweeps in different kinds of data and, sometimes subtly,
different kinds of surveillance. Fourth, telecommunications sur- veillance statutes should increase independent audit functions. It is
essential to have an independent as- sessment of the accuracy of the sup- plied data and the completeness of supplied reports. As part of
this as- sessment, the use of statistical sam- pling of case files will be a useful technique. The Inspector General of the Department of
Justice has already taken this approach in assessing use of NSLs pursuant to its audit author- ity. In an international illustration of this
methodology, the Max Planck In- stitute for Foreign and International Criminal Law published an ambitious statistical analysis of a
sample of tele- communications surveillance orders issued in Germany.3 The twin goals of an annual tele- communications surveillance
index should be to minimize the impact of surveillance on civil liberties and to maximize its effectiveness for law en- forcement. There is
a compelling need at present for Congress to require sta- tistical benchmarks to accompany all the laws that authorize telecommunications surveillance.
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Wiretapping Good – Economy
Wiretapping good for the economy
Sanchez, Senior Fellow Cato Institute, 10
(Julian, “Wiretapping the Internet.” 6-30-2014 http://www.cato.org/publications/commentary/wiretapping-internet, MR.)
This article appeared on The American Prospect (Online) on October 4, 2010.
Taking a cue from the authoritarian regimes of Saudi Arabia and the United Arab Emirates, American law-enforcement and intelligence
agencies are seeking to re-engineer the Internet and other digital communications networks to make them easier to spy on.
In the week since the plan became public, it has been roundly condemned by civil liberties groups and security experts — and rightly so.
While the proposal described in Monday’s New York Timesprobably won’t do much to hinder sophisticated criminals or terrorists, it does
threaten to undermine the security of global communications and stifle technological innovation.
The details are still being hammered out, but the Times reports that next year the Obama administration will seek legislation requiring
telecoms, online services, and software companies that enable encrypted communications — from instant messaging to Voice over IP —
to build back doors into their systems for the government, guaranteeing law enforcement the ability to unscramble their users’
conversations. Foreign communications companies doing business in the U.S. would have to build local facilities for more convenient
eavesdropping.
“One could argue that these are costs worth bearing if the government’s plan had a prayer of actually working, but it doesn’t.”
The FBI, true to form, claims that these broad new mandates aren’t an expansion of power but merely an update aimed at “preserving our
ability to execute our existing authority.” And the proposal does bear a superficial similarity to the Communications Assistance for Law
Enforcement Act of 1994, which required telecoms to ensure that their new digitally switched networks were as wiretap-friendly as the
old analog phone system.
But the current proposal is far more radical, in part because the Internet is not much like a traditional phone network. To see why,
consider Skype, a popular program that allows users to conduct secure text chats, phone conversations, video conferences, and file
transfers. Skype is designed as a distributed peer-to-peer network, meaning there’s no central hub or switching station through which calls
are routed; only the login server used to register members as they sign on to the network is centralized. Calls are encrypted end-to-end,
meaning that only the end users who are parties to a call hold the secret keys to secure the conversation against online snoops. There’s no
device Skype can install at their headquarters that would let them provide police with access to the unencrypted communications; to
comply with such a mandate, they’d have to wholly redesign the network along a more centralized model, rendering it less flexible,
adaptable, and reliable as well as less secure.
Skype is just one of the thousands of firms, large and small, that would be burdened with the obligation to design their systems for breach.
We’ve already seen how this can cause security vulnerabilities on traditional phone networks: In 2005, it was discovered that unknown
hackers had exploited wiretap software built into Vodaphone Greece’s computer system for law-enforcement use to eavesdrop on the
cellular phone conversations of high Cabinet officials and even the prime minister. Designing for surveillance means, more or less by
definition, designing a less secure, more vulnerable infrastructure. It’s for just this reason that similar proposals were wisely rejected
during the Crypto Wars of the 1990s, a decision that helped give rise to a thriving online economy that’s wholly dependent on strong
encryption.
It’s not just hackers who could exploit such vulnerabilities, of course. A network architecture designed for the convenience of American
law enforcement also necessarily makes eavesdropping easy for the many regimes whose idea of a “national-security threat” includes
political dissent or blasphemous speech. And there’s always the threat of interception by insiders: An engineer at Google was recently
fired for using his privileged access to snoop into the private accounts of several teenage users. One way to alleviate such concerns is for
firms like Google to enable end-to-end encryption, so users can feel secure that even the company’s own employees won’t have the keys
needed to read their communications. The government’s proposal would deny them the ability to make that promise.
Companies in the burgeoning cloud-computing sector know full well that businesses and consumers alike are eager to take advantage of
the convenience and flexibility of cloud services but are also skittish about entrusting extremely valuable data to third parties. At a recent
Capitol Hill hearing, a panoply of high-tech executives testified that the complexity and unpredictability of American surveillance law, as
well as the relatively weak protections afforded to data stored in the cloud, were hampering the adoption of cloud services and placing
U.S. companies at a disadvantage relative to foreign competitors. The government’s proposal would only exacerbate the problem.
One could argue that these are costs worth bearing if the government’s plan had a prayer of actually working, but it doesn’t. There are
already a plethora of open-source encryption tools freely available on the Internet, which sophisticated terrorists and criminal enterprises
will have even greater incentive to use once we’ve announced that the encryption built into communication services can’t be trusted.
That’s a genie there’s no way to rebottle.
Fortunately, law enforcement still has a recourse that makes it unnecessary to impose architectural mandates on tech companies or
weaken the security of all our communications. They can get old-fashioned physical search warrants and bug the devices used by their
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suspects. Less convenient, to be sure, but with the advantage of not imposing massive economic and privacy costs on everyone who isn’t
a suspect.
There is one type of surveillance that genuinely would be rendered impractical by widespread use of secure communications, however.
Known individual suspects can be targeted by other means, but if the government wanted to do wholesale surveillance, in which the
whole communications stream is automatically analyzed and filtered by artificial intelligence software hunting for suspicious
communications by unknown parties — as several accounts have suggested the National Security Agency did under the warrantless
wiretapping program authorized by President George W. Bush — they really would need a back door at the system level. But while
governments may consider it a bug when network architecture renders such sweeping surveillance infeasible, citizens should probably
regard it as a feature.
It’s hard to blame harried law-enforcement officials for wishing they could freeze time or control disruptive technological changes. They
can’t, of course, but they could do a great deal of damage to both the high-tech economy and the security of global communications
before they figure that out.
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Wiretapping Good – Economy
Wiretapping good for the economy
Electronic Frontier Foundation, leading nonprofit organization defending civil liberties in the digital world, N.d
(“NSA Spying on Americans.” 6-30-2014, https://www.eff.org/nsa-spying, MR.)
The US government, with assistance from major telecommunications carriers including AT&T, has engaged in a massive illegal dragnet
surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001. Since this
was first reported on by the press and discovered by the public in late 2005, EFF has been at the forefront of the effort to stop it and bring
government surveillance programs back within the law and the Constitution.
News reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and
Internet communications. Those news reports, combined with a USA Today story in May 2006 and the statements of several members of
Congress, revealed that the NSA is also receiving wholesale copies of American's telephone and other communications records. All of
these surveillance activities are in violation of the privacy safeguards established by Congress and the US Constitution.
In early 2006, EFF obtained whistleblower evidence (.pdf) from former AT&T technician Mark Klein showing that AT&T is cooperating
with the illegal surveillance. The undisputed documents show that AT&T installed a fiberoptic splitter at its facility at 611 Folsom Street
in San Francisco that makes copies of all emails web browsing and other Internet traffic to and from AT&T customers and provides those
copies to the NSA. This copying includes both domestic and international Internet activities of AT&T customers. As one expert observed,
“this isn’t a wiretap, it’s a country-tap.” Secret government documents, published by the media in 2013, confirm the NSA obtains full
copies of everything that is carried along major domestic fiber optic cable networks.
In June 2013, the media, led by the Guardian and Washington Post started publishing a series of articles, along with full government
documents, that have confirmed much of what was reported in 2005 and 2006 and then some. The reports showed - and the government
later admitted - that the government is mass collecting phone metadata of all US customers under the guise of the Patriot Act. Moreover,
the media reports confirm that the government is collecting and analyzing the content of communications of foreigners talking to persons
inside the United States, as well as collecting collecting much more, without a probable cause warrant. Finally, the media reports confirm
the “upstream” collection off of the fiberoptic cables that Mr. Klein first revealed in 2006.
EFF is fighting these illegal activities in the courts. Currently, EFF is representing victims of the illegal surveillance program in Jewel v.
NSA, a lawsuit filed in September 2008 seeking to stop the warrantless wiretapping and hold the government and government officials
behind the program accountable. In July 2013, a federal judge ruled that the government could not rely on the controversial ‘state secrets’
privilege to block our challenge to the constitutionality of the program. This case is being heard in conjunction with Shubert v. Obama,
which raises similar claims.
Also in July, 2013, EFF filed another lawsuit, First Unitarian v. NSA, based on the recently published FISA court order demanding
Verizon turn over all customer phone records including who is talking to whom, when and for how long — to the NSA. This so-called
“metadata,” especially when collected in bulk and aggregated, allows the government to track the associations of various political and
religious organizations. The Director of National Intelligence has since confirmed that the collection of Verizon call records is part of a
broader program. In addition to making the same arguments we made in Jewel, we argue in UnitarianFirst Unitarian v. NSA that this type
of collection violates the First Amendment right to association.
Previously, in Hepting v. AT&T, EFF filed the first case against a cooperating telecom for violating its customers' privacy. After
Congress expressly intervened and passed the FISA Amendments Act to allow the Executive to require dismissal of the case, Hepting was
ultimately dismissed by the US Supreme Court.
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Wiretapping Good – Economy
Wiretapping helps the economy
Magallanes, telecommunications law firm owner, 11
(Raul, “Satellite Policies: Wiretapping and Telecom.”6-30-2014, http://eds.b.ebscohost.com.mutex.gmu.edu/ehost/detail?sid=414a45e937c9-4a02-a7423a497d5d5954%40sessionmgr112&vid=7&hid=115&bdata=JnNpdGU9ZWhvc3QtbGl2ZSZzY29wZT1zaXRl#db=bth&AN=59352272,
MR.
Government eavesdropping on private communications is as old as government itself. Telecommunications providers are but an
instrument for governmentwiretapping. As blunt as this may sound and regardless of whether this practice is justified, this is the
relationship between law enforcement agencies and private telecom providers. The issue of whether government should eavesdrop on its
citizens is left to constitutional lawyers, but there are extents to which telecom providers are required to cooperate.
The Wiretapping Law
In 1994, the U.S. Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in response to concerns that
emerging technologies, such as digital and wireless communications, were making it increasingly difficult for law enforcement to execute
authorized surveillance. Wiretapping authority actually is derived from the Electronics Communications Privacy Act, and a court order is
required before any such surveillance can take place. What CALEA does is impose a duty on telecommunications carriers to cooperate
with law enforcement in surveillance efforts.
The 1990s represented the technological culmination of a transition from circuit-switched to packet telephony and from analog to digital
communications. Similarly, the new millennium prompted a revision of CALEA regulations due to the emergence of Internet-related
technologies. Thus, CALEA obligations were extended to facilities-based broadband providers, and interconnected VoIP providers.
Satellite Service Providers and CALEA
The answer to the question whether satellite service providers are subject to CALEA lies with the type of services they offer; most
importantly, whether they provide broadband services. A facilities-based carrier owns transmission facilities and/or routing equipment. A
service is defined as broadband when data rates are at least 200 Kbps. Hence, a satellite service provider that provides facilities-based
broadband access most likely would be subject to CALEA.
Furthermore, a satellite service provider also may qualify as an interconnected VoIP provider. To do so, the provider would have to
facilitate two-way voice communications to the Public Switched Telephone Network (PSTN) over broadband, where the customer used
IP-compatible equipment (e.g., the Vonage model). On the other hand, it is quite possible that satellite service providers only provide
enterprise solutions to private networks. In this case, CALEA obligations would not apply. However, the private network must be totally
isolated from public access (PSTN or the Internet).
How to Comply with CALEA
Telecom carriers subject to CALEA can comply in any of three ways:
1.
1. Develop a customized solution
Carriers can develop their own customized hardware and software solution to comply with CALEA. In this case, carriers deal directly
with the law enforcement agency.
1. 2. Purchase a solution from manufacturers
Carriers can purchase CALEA-compatible equipment and install it in their networks. Here again, carriers deal directly with the law
enforcement agency.
1. 3. Outsource a solution to a third party
CALEA allows compliance through trusted third parties (TTPs). In essence, carriers subject to CALEA may give TTPs equipment access
for purposes of court-ordered wiretaps. The TTP interfaces with the law enforcement agency and takes care of setting up the tap. TTPs
typically charge an initial setup fee and a monthly fee, plus a separate fee for each requested tap. Compliance through TTPs remains the
most popular option.
Conclusion
The era of bug-ready telecom equipment is here. Some argue that with tap-compatible equipment, the danger is that if law enforcement
has the ability to tap, so can a hacker. Unfortunately, there is not much room for argument, as providers must nonetheless abide by the
statute. The practical thing to do is to make CALEA-compliant equipment part of your network planning. There are harsh federal
penalties for failing to comply. Service providers should carefully look at their services to decide whether compliance is required, and if
so, implement the solution that works best for them.
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Wiretapping Good – Terrorism
Domestic wiretapping is critical to counter-terrorism efforts---majority of experts concludes
Sorcher 13 Sara Sorcher, National Security Staff Writer for National Journal covering business of war, “Insiders: NSA's
Communications Surveillance Good Way to Target Terrorists” National Journal,
http://www.nationaljournal.com/nationalsecurity/insiders-nsa-s-communications-surveillance-good-way-to-target-terrorists-20130624,
July 1, 2013, NS
The National Security Agency's surveillance programs are effective tools for seeking out terrorists, according to 85.5 percent of
National Journal's National Security Insiders.
"In the digital age, when every individual's digital trail increases year by year, there is no faster way to draw a picture of a network, or
a conspiracy, than by piecing together different data streams," one Insider said. "This capability, in years to come, won't be a nice-tohave; it'll be critical."
Another Insider said that the NSA must have the tools necessary to root out terrorists or another 9/11 becomes not just possible, but
certain. "If we eliminate the online- and phone-surveillance programs and a dirty bomb explodes in an American city, we have only
ourselves to blame," the Insider said. "The days of gentlemen not reading other gentlemen's mail are over."
Some Insiders note that individual identities and habits are already tracked intensely in the commercial sphere.
"I have been fingerprinted at Disneyland and Universal Studios," one said. "When you board a plane in the U.K., your picture is taken
before you get on. When you cross a border into the U.S., video is taken of your license plate. Cruise ships require photo IDs be made.
Amazon and Google have consumer avatars created for customers and users. Financial institutions routinely collect and track data on
customers. When we drive over sensors on a road they collect metadata to establish patterns to improve flow and safety. Whatever NSA
may be doing pales in scale to what is happening in plain view."
Even backers of government surveillance have some reservations about it, though.
"The real question is whether a somewhat better counterterror program is worth the price in civil liberties," one Insider said. "This
program has reasonably strong oversight, but I'm skeptical all the same."
"They are ONE reasonably good way to target some of the less sophisticated terrorist activities, but by no means an end-all,"
another said. "Whether it's cost effective is another matter."
A 14.5 percent minority opposes the programs. "It is like adding hay to the stack allowing us to miss the needles, at the sacrifice of
freedom," one Insider said. "As a constitutional lawyer, President Obama should know better, and I say that as a Democrat."
"The coverage is way too broad; gather a ton, find a mouse seems to be the approach."
Two-thirds of Insiders agreed with Director of National Intelligence James Clapper, who said the leaks of the NSA's online
surveillance would damage U.S. intelligence-gathering capabilities. "Through the revelations, foreign terrorists will learn more about
U.S. intelligence tactics, techniques, and procedures that are used to pursue and identify them," one Insider said. "This will spur and aid
terrorists to employ more countermeasures, such as increasing the use of anonymizing techniques and encryption in their
communications." Still, these Insiders disagreed on the severity of lasting damage stemming from the leaks. "I understand why Clapper
said what he did," one Insider said. "However the program will continue on. And our enemies will continue to use phone lines."
GMU Patriot Debate Institute
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File Title
Wiretapping Good – Terrorism
Wiretapping prevents terrorist attacks
Sullivan 13 Sean Sullivan, Writer at Washington Post, “NSA head: Surveillance helped thwart more than 50 terror plots,”
http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/18/nsa-head-surveillance-helped-thwart-more-than-50-terror-attempts/
Washington Post, 7/1/13
Intelligence officials said Tuesday that the government’s sweeping surveillance efforts have helped thwart “potential terrorist events”
more than 50 times since the Sept. 11, 2001 attacks, and the officials detailed two new examples to illustrate the utility of the programs.
In testimony before the House Intelligence Committee on Tuesday, officials cited a nascent plot to blow up the New York Stock
Exchange and a case involving an individual providing financial support to an overseas terrorist group.
“In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the
globe to include helping prevent the terrorist — the potential terrorist events over 50 times since 9/11,” National Security Agency
Director Gen. Keith Alexander told the committee.
He said at least 10 of the plots targeted the United States.
FBI Deputy Director Sean Joyce said Tuesday that a provision in the Foreign Intelligence Surveillance Act helped officials monitor a
“known extremist in Yemen” who was in contact with an individual in the United States. The information led to disruption of the New
York Stock Exchange plot, Joyce said.
Joyce also said that the use of a FISA business record provision helped officials with an investigation involving an individual who was
communicating with an overseas terrorist.
“The NSA, using the business record FISA, tipped us off that this individual had indirect contacts with a known terrorist overseas,” said
Joyce. “We were able to reopen this investigation, identify additional individuals through a legal process and were able to disrupt this
terrorist activity.”
“So that’s four cases total that we have put out publicly,” Alexander said Tuesday.
The Washington Post and Britain’s Guardian newspaper recently revealed the sweeping Internet and telephone surveillance techniques the
NSA has utilized in recent years.
Several of the witnesses testifying Tuesday said the disclosure of the surveillance programs by admitted leaker Edward Snowden had
made the world a more dangerous place.
“We are now faced with a situation that because this information has been made public, we run the risk of losing these collection
capabilities,” said Robert S. Litt, general counsel of the Office of the Director of National Intelligence. “We’re not going to know for
many months whether these leaks in fact have caused us to lose these capabilities, but if they do have that effect, there is no doubt that
they will cause our national security to be affected.”
Alexander had previously said the intelligence gathering helped in the cases of Najibullah Zazi, an Afghan American who pleaded guilty
to planning suicide attacks in New York, and Pakistani American David Headley, who conducted surveillance in support of the 2008
attacks in Mumbai, India. Joyce elaborated on the two previously revealed cases on Tuesday.
Alexander said he would provide details of the 50 examples he cited Tuesday to lawmakers in a classified setting on Wednesday.
“Those 50 cases right now have been looked at by the FBI, CIA and other partners within the community, and the National
Counterterrorism Center is validating all the points so that you know that what we’ve put in there is exactly right,” said Alexander.
Alexander also said that if the surveillance programs had been in place before the Sept. 11 attacks, the United States would have known
that hijacker Khalid Muhammad Abdallah al-Mihdhar was in San Diego and communicating with a known al Qaeda safehouse in Yemen.
Alexander’s testimony came a day after President Obama defended his administration’s right to engage in such surveillance in an
interview with PBS host Charlie Rose, saying the programs had adequate checks and balances.
The Foreign Intelligence Surveillance Court, Obama argued, provided sufficient oversight of the National Security Agency’s activities
and said the government was “making the right trade-offs” in balancing privacy rights with national security prerogatives.
“What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target
your e-mails,” he added, before Rose interjected, “And have not.”
“And have not,” Obama reiterated. “They cannot and have not, by law and by rule, and unless they — and usually it wouldn’t be ‘they,’
it’d be the FBI — go to a court, and obtain a warrant, and seek probable cause, the same way it’s always been, the same way when we
were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause.”
During the interview — which aired Monday night — the president took pains to distinguish his national security approach from those of
former president George W. Bush and former vice president Richard B. Cheney.
“The whole point of my concern, before I was president — because some people say, ‘Well, you know, Obama was this raving liberal
before. Now he’s, you know, Dick Cheney.’ Dick Cheney sometimes says, ‘Yeah, you know? He took it all lock, stock and barrel,’ ”
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Obama said, according to a transcript provided by PBS. “My concern has always been not that we shouldn’t do intelligence gathering to
prevent terrorism, but rather are we setting up a system of checks and balances?”
GMU Patriot Debate Institute
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File Title
Wiretapping Good – Terrorism
Wiretapping stops terrorism---2008 attacks prove
Katersky Et Al 13 Aaron Katersky, James Meek, Josh Margolin, Brian Ross, Writers at ABC news, “Al Qaeda’s Abandoned NY
Stock Exchange Plot Revealed,” 7/1/2013, http://abcnews.go.com/Blotter/al-qaedas-abandoned-ny-stock-exchange-plotrevealed/story?id=19431509#.UdH0cfm1Frs ABC News, 7/1/13, AS
Top U.S. security officials revealed today that the government's recently exposed surveillance programs led them to an al Qaeda cell that
plotted, scouted, but ultimately abandoned a plan to bomb the Wall Street in 2008.
"We found through electronic surveillance that they were actually in the initial stages of plotting to bomb the New York Stock Exchange,"
FBI Assistant Director Sean Joyce told the House Permanent Select Committee on Intelligence.
9/11 Terror Threat: Staying Safe Watch Video
Joyce was testifying alongside high-level U.S. officials, including National Security Agency head Gen. Keith Alexander, before the
House Intelligence Committee to defend the NSA's practice of collecting vast amounts of telephone and internet usage data – programs
revealed last week by former NSA contractor Edward Snowden. Snowden, who is in hiding in Hong Kong after confessing to the leaks,
called the reach of the programs "horrifying." The U.S. officials who testified today claimed they helped put a stop to more than 50 terror
plots in 20 countries – four of which were discussed publicly.
The NYSE plot, which had until today been unknown to the public, was centered around an auto parts dealer in Kansas City, Missouri,
named Khalid Ouazzani, who pleaded guilty in 2010 for his role in a conspiracy to provide funding to al-Qaeda. At the time of his plea,
the complex case against Ouazzani seemed to have little to do with the famous NYSE headquarters on Wall Street in Lower Manhattan,
except for a vague reference in his plea agreement that said, "Over a period of years, [Ouazzani] and others discussed various ways they
could support al Qaeda."
The FBI now says Ouazzani was talking to an extremist in Yemen about a terror plot that would strike at the symbolic heart of America's
capitalist system – an attack on Wall Street.
Ouazzani was never charged with planning any attacks, and a federal law enforcement official told ABC News it was Ouazzani's role as a
cooperating witness, after he was identified with the help of NSA programs, that helped authorities uncover the plot in the first place.
A senior law enforcement official told ABC News that "overseas intel" connected Ouazzani to two U.S. citizen extremists, Sabirhan
Hasanoff and Wesam el-Hanafi. Court documents unsealed today showed that all three swore their allegiance to al Qaeda, but it was
Hasanoff who traveled to New York in 2008 to conduct a scouting mission for a possible bombing attack on the stock exchange.
Hasanoff wrote a "rudimentary report" to a "senior terrorist leader" in an email about the security situation there, the court documents say.
However, the leader decided that while the information "could be used by someone who wanted to do an operation, he was not satisfied
with the report, and he accordingly disposed of it."
Ouazzani's crew and the plot, never "went operational," a counter-terrorism official in New York said.
Hasanoff and el-Hanafi, both later pleaded guilty to terrorism-related charges in June 2012, but again the Department of Justice omitted
any mention of the stock exchange in their announcement at the time.
The plot was left out of the public record apparently because it was discovered in part from intelligence gathered through surveillance
authorized by the Foreign Intelligence Surveillance Court (FISA) in Washington, DC. Though there are ways to use such evidence at trial,
the Justice Department tries to instead attempt to secure convictions on more typical varieties of crimes like fraud and money-laundering.
That was the path chosen in case of the NYSE bomb plot that never was.
The stock exchange, at 11 Wall Street, is just a half-mile away from the site of the World Trade Center towers that were destroyed during
the Sept. 11, 2001 terror attacks by al Qaeda. Nicknamed the "Big Board," the exchange is the world's largest stock market with the total
value of the companies it lists hovering at more than $16.6 trillion.
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Though an attack on the building would be a colossal symbolic blow to the country, the market itself would remain largely intact because
the vast majority of trading is now done online, and the market's computer network was relocated to off-site locations in the wake of the
2001 attacks.
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Wiretapping Good – Terrorism
Wiretapping stops terrorism
Hosenball 13 Mark Hosenball, Writer at Reuters, “U.S. Internet spying foiled plot to attack NY subways – sources,” Jun 8 2013,
Reuter http://in.reuters.com/article/2013/06/07/usa-internet-subway-plot-idINDEE9560EW20130607, 7/1/13 AS
A secret U.S. intelligence program to collect emails that is at the heart of an uproar over government surveillance helped foil an Islamist
militant plot to bomb the New York City subway system in 2009, U.S. government sources said on Friday.
Savage 13 Charlie Savage, Writer at New York Times, “F.B.I. Director Warns Against Dismantling Surveillance Program,” June 19 2013,
http://www.nytimes.com/2013/06/20/us/politics/fbi-director-warns-against-dismantling-surveillance-program.html?_r=0 New York
Times, 7/1/13 AS
“In this particular area, where you’re trying to prevent terrorist attacks, what you want is that information as to whether or not that number
in Yemen is in contact with somebody in the United States almost instantaneously so you can prevent that attack,” he said. “You cannot
wait three months, six months, a year to get that information, be able to collate it and put it together. Those are the concerns I have about
an alternative way of handling this.”
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Wiretapping Good – Legal
Wiretapping is legal
Barone 13 Michael Barone, a political analyst and journalist, studies politics, American government, campaigns and elections, and a
senior political analyst for the Washington Examiner. “NSA surveillance, if ungentlemanly, is not illegal,” June 11, 2013, AEI,
http://www.aei.org/article/foreign-and-defense-policy/defense/intelligence/nsa-surveillance-if-ungentlemanly-is-not-illegal/, DOA: 7-1-13,
y2k
"Gentlemen do not read each other's mail." That's what Secretary of State Henry Stimson said to explain why he shut down the
government's cryptanalysis operations in 1929.
Edward Snowden, who leaked National Security Agency surveillance projects to Britain's Guardian, evidently feels the same way.
"I can't in good conscience allow the U.S. government," he explained, less succinctly than Stimson, "to destroy privacy, Internet freedom
and basic liberties for people around the world with this massive surveillance machine they're secretly building."
Some questions about this episode remain. How did a 29-year-old high school dropout get a $122,000 job with an NSA contractor? How
did his job give him access to material including, he says, Foreign Intelligence Surveillance Agency Court documents?
And why did he flee to China's Special Autonomous Region of Hong Kong and make his revelations just before the Sunnylands summit,
where Barack Obama was preparing to complain to Xi Jinping about China's cyberwarfare attacks?
Oh, and now that he has checked out of his Hong Kong hotel, where has he gone?
All tantalizing questions. But some other questions that many are asking have clear answers.
Is the NSA surveillance of telephone records illegal? No, it has been authorized by the FISA Court under the FISA Act provisions passed
by (a Democratic) Congress in 2008.
The NSA is not entitled to listen to the contents of specific phone calls. It has to go back to the FISA Court for permission to do that.
Under the Supreme Court's 1979 Smith v. Maryland decision, the government can collect evidence of phone numbers called, just as the
government can read the addresses on the outside of an envelope.
Snowden presented no evidence that the NSA is abusing its powers by accessing the private information of those with obnoxious opinions.
There is, so far anyway, no evidence of the kind of political targeting committed by the Internal Revenue Service.
Instead, the NSA is looking for patterns of unusual behavior that might indicate calls to and from terrorists. This data mining relies on the
use of algorithms sifting through Big Data, much like the data mining of Google and the Obama campaign.
Snowden also exposed the NSA's Prism program, which does surveil the contents of messages -- but only those of suspected terrorists in
foreign countries.
During George W. Bush's administration, many journalists and Democrats assailed this as "domestic wiretapping." But the only time
people here are surveilled is when they are in contact with terrorism suspects in foreign countries.
The right of the government to invade people's privacy outside the United States is, or should not be, in question.
You might think, as Henry Stimson did in 1929, that it's ungentlemanly. But as secretary of war between 1940 and 1946, Stimson was
grateful for the code-breaking programs that enabled the United States and Britain to decrypt secret Japanese and German messages.
That code breaking, as historians have recounted, though not until long after the war, undoubtedly saved the lives of tens of thousands of
Allied service members.
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"The Constitution and U.S. laws," as former Attorney General Michael Mukasey wrote in the Wall Street Journal, "are not a treaty with
the universe; they protect U.S. citizens."
It is an interesting development that Barack Obama has continued and, Snowden asserts, strengthened programs at least some of which he
denounced as a U.S. senator and presidential candidate. As George W. Bush expected, Obama's views were evidently changed by the
harrowing contents of the intelligence reports he receives each morning. There are people out there determined to harm us, and not just
because they can't bear Bush's Texas drawl.
The Pew Research/Washington Post poll conducted from June 7 to 9 found that by a 56 to 41 percent margin, Americans found it
"acceptable" that the "NSA has been getting secret court orders to track calls of millions of Americans to investigate terrorism."
That's similar to the margin in a 2006 Pew poll on the NSA "secretly listening in on phone calls and reading emails without court
approval."
Those numbers are in line with changes in opinion over the last two decades.
With increased computer use, technology is seen as empowering individuals rather than Big Brother. And with an increased threat of
terrorist attack, government surveillance is seen as protecting individuals.
In these circumstances, most Americans seem willing to accept NSA surveillance programs that, if ungentlemanly, are not illegal.
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Wiretapping Good – Legal
Wiretapping is legal
Leahy, United States Senator, 06
(Patrick, “Is the Domestic Surveillance Program Legal?” 06-30-14, EBSCO, bdg)
The question for this hearing is the illegality of the government's domestic spying on ordinary
Americans without a warrant. The question facing us is not whether the government should have all the tools it needs to protect the
American people. Of course it should. The terrorist threat to America's security remains very real, and it is vital that we be armed with the
tools needed to protect Americans' security. That is why I coauthored the USA PATRIOT Act five years ago and
why it passed with such broad, bipartisan support. That is why we have amended the Foreign
Intelligence Surveillance Act [FISA] five times since 9/11 to provide more flexibility. We all agree that we should be wiretapping al
Qaeda terrorists. Congress has given the President authority to monitor these messages legally, with checks to guard against abuses when
Americans' conversations and email are being monitored. But instead, the President has chosen to do it illegally, without those safeguards.
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Wiretapping Good – Legal
Wiretapping is legal
House of Representatives, “Constitutional limitations on domestic surveillance,” June 7, 2007,
http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg35861/pdf/CHRG-110hhrg35861.pdf, 7/2/2013 AS
“The Honorable Trent Franks: Mr. Chairman, in 1968 when Congress enacted the first Federal wiretapping statute, it included in the
legislation an explicit statement that, ‘‘nothing in this chapter shall limit the constitutional power of the President to take such measures as
he deems necessary to protect the Nation against actual or potential attack, or to obtain foreign intelligence information deemed necessary
to the security of the United States.’’ Justice Holmes wrote for a unanimous Supreme Court in 1909 that, ‘‘when it comes to a decision by
the head of the state upon a matter involving its life, public danger warrants a substitution of executive process for judicial process.’’
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Wiretapping Good – Crime
Wire-tapping is key to effective FBI operations---key to rooting out crimes
National Journal 11 “Group Urges Scrutiny To Calls To Expand CALEA,” 2-5-11,
http://www.nationaljournal.com/blogs/techdailydose/2011/02/group-urges-scrutiny-to-calls-to-expand-calea-15?mrefid=site_search, DOA:
7-1-13, DS
A coalition of tech associations and privacy groups Tuesday released a "statement of concern" about the FBI's proposals to expand a
current law requiring communications providers to ensure law enforcement can conduct wiretaps on their networks.
The statement was released by a dozen groups including the Business Software Alliance, Center for Democracy and Technology,
Computer and Communications Industry Association, the Net Coalition, and TechAmerica, and comes two days before a House Judiciary
subcommittee hearing Thursday on ensuring lawful government surveillance with the rise of new technologies.
"Lawful electronic surveillance plays an important role in enabling government agencies to fulfill their obligations to stop crime and to
protect national security," according to the statement from the groups. "These goals, however, must be reconciled with other important
societal values, including cybersecurity, privacy, free speech, innovation and commerce."
The statement calls on the FBI and the Obama administration to answer several questions before lawmakers consider any proposals to
expand the law known as the Communications Assistance for Law Enforcement Act, which requires telecom providers to design
wiretapping capabilities into their networks.
These questions include explaining what problems would expanding CALEA address, have alternatives to a new CALEA-like mandate
been considered sufficiently, and have narrower approaches been pursued.
Once these questions are answered, the groups say any effort to expand CALEA must address several issues including preserving the trust
of communication users, safeguarding cybersecurity, protecting innovation, continuing to allow the use of strong encryption without
introducing new vulnerabilities, avoiding unfunded mandates, and anticipating international demands that may result from expanding U.S.
surveillance laws.
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Wiretapping Good – Organized Crime Impact
Organized Crime is bad
Dijk 07 Jan Van Dijk, Pieter van Vollenhoven Chair in Victimology, Human Security and Safety, University of Tilburg, Tilburg, The
Netherlands, “Mafia markers: assessing organized crime and its impact upon societies,” 9 October 2007,
http://link.springer.com/article/10.1007/s12117-007-9013-x/fulltext.html, 7/2/13 AS
In our view, the most important negative effect of organized crime, offsetting all possible benefits, is its pernicious impact on governance.
Organized crime tends to erode the integrity of those holding a public office, including those responsible for upholding the rule of law.
Where organized crime groups are powerful, legislation, policy-making and legal rulings no longer serve the general interest but the
interests of the few. Through the pervasive bias of legislation, policy decisions and jurisprudence, market efficiencies are undermined and
both local and foreign investors lose confidence in the legal and regulatory functions of the state and consequently stay away.
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Wiretapping Good – A2: Privacy
Impact of wiretapping and surveillance policies on privacy is limited
Taylor, 2013, Stuart Taylor Jr. is an American journalist. He graduated from Princeton University and Harvard Law School, and is a
regular columnist for The National Journal, a Contributing Editor at Newsweek, and a Nonresident Senior Fellow in Governance Studies
at the Brookings Institution. He comments on legal affairs and often focuses on the Supreme Court, appearing frequently in other
publications such as The Atlantic, Slate, The New Republic, and The Wall Street Journal. LEGAL “AFFAIRS - Wiretaps Are an
Overblown Threat to Privacy”, May 30 2013, National Journal, http://www.nationaljournal.com/magazine/legal-affairs-wiretaps-are-anoverblown-threat-to-privacy-20011006 7/1/2013, DS
The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be
picked up by it; moreover, ... he could be seen as well as heard. How often, or on what system, the Thought Police plugged in on any
individual wire was guesswork. It was even conceivable that they watched everybody all the time.-George Orwell, 1984
Ever since we first read those chilling words, many of us have felt a reflexive horror of being bugged, wiretapped, or (now) tracked by the
FBI's fearsomely named Carnivore program, which sifts through computer networks for evidence of crime.
And who can forget the wiretaps and buggings that fueled "the savage campaign of defamation waged by J. Edgar Hoover as head of the
FBI against Dr. Martin Luther King," in the words of Rep. Barney Frank, D-Mass.? (Some have forgotten that it was Robert F. Kennedy
who authorized the taps.) Presidents Roosevelt, Truman, Johnson, and Nixon also used wiretaps for political ends.
So when the government seeks broader electronic surveillance powers, as Attorney General John D. Ashcroft is doing now, a lot of us
instinctively worry about unleashing some kind of Big-Brother-Hoover-Nixon monster to spy on people and then blackmail or smear
them.
Now is a good time to ask whether this fear is exaggerated. The case for more surveillance is pretty obvious: We need to use every
available tool to prevent the mass murders of thousands or even millions of Americans. The case against is the familiar concern that the
government could abuse the new powers to destroy or damage our privacy. To strike the best balance, we must scrutinize that risk with
some skepticism. What bad things could happen, and how likely are they?
Abuses are always possible, especially in wartime, when the temptations for overzealousness are at their zenith and the internal
safeguards are at their weakest. "This isn't going to be limited to suspected bombers," as UCLA law professor Eugene Volokh wrote
recently in Slate. "Already the government is (wisely) considering trying to track those who financially assist terrorists; financial
institutions will find their records (which may include your and my records) being investigated. There will be a peace movement, and
there might be reason to suspect that our enemies will try to influence it; members of the movement might find themselves being
investigated."
So this is not to suggest that Congress should give the government carte blanche-or, indeed, should give it any new surveillance powers at
all unless they might help fight terrorism. While the details of Ashcroft's proposals are complex, the fundamental question is whether the
government should have a relatively free hand to spy on suspected terrorists and their associates-including people suspected of ordinary
crimes or immigration violations whose possible links to terrorism may largely be a matter of hunch and speculation-without producing
the specific evidence required in ordinary criminal investigations.
What dangers would such new powers present? Well, officials might be tempted to stray from their core counter-terrorism mission by
going after (say) suspected drug dealers who might possibly be linked to the Medellin cartel, which has engaged in terrorism outside the
United States. Officials might spy on anti-globalization demonstrators or peace protesters who throw rocks through the windows of
government buildings. And they might already be using their current foreign intelligence surveillance powers to fish for evidence of
terrorism by tapping or bugging leaders of Islamic and Arab groups in the United States, whose religious and political discussions are
sometimes seeded with hot anti-American rhetoric.
Many and probably most of the conversations overheard and e-mails intercepted would be innocent. That's inevitable when you throw a
broad net in the hope of catching people who are very hard to find. And the tappers and buggers might well overhear intimacies or
embarrassing disclosures that are none of the government's business. But any officials tempted to abuse such information would be
running very serious risks of removal from office, disgrace, and even criminal prosecution.
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A major reason for the electronic abuses during the bad old days of J. Edgar Hoover was that until 1967, the Supreme Court had held that
the Constitution imposed no limit on governmental wiretapping of anyone, for any reason. Nor were there serious penalties to deter
Hoover from using his dirt to play politics.
Now it is a federal crime for the FBI director or anyone else to leak information gleaned from wiretaps or bugs for political ends or for
other improper purposes. And now the Justice Department, FBI, and other agencies involved in surveillance are themselves scrutinized by
internal and external watchdog agencies with mandates to blow the whistle on any abuses. Washington lawyer Stewart Baker, former
general counsel of the National Security Agency, wrote in an online dialogue with Volokh in Slate: "As I once said to an outsider
skeptical of NSA's commitment to the law, `Why am I sure that the agency isn't breaking the law? Because there are five outside offices
with authority to audit our conduct, and those agencies are headed by five ambitious people whose careers would be made if they could
uncover violations of law at NSA.' "
And now our governmental, media, and academic elites are replete with one-time antiwar protesters and others who are quick to pounce
on any sign that the FBI or other agencies are up to no good. "Defending civil liberties is at the heart of the Baby-Boomer self-image, a
self-image that's been packaged and sold to adolescents ever since," as Baker wrote. "However powerful and rich and snobbish we exteenagers become, we still see ourselves as rebels fighting a lonely battle against overweening authority. To make that myth work, we
need an overweening authority to battle, preferably one that can't fight back. Intelligence agencies are perfect for that role." So we have
watchdogs galore.
Have any grave or widespread invasions of privacy in the past 25 years stemmed from surveillance of suspected terrorists-or of anybody,
for that matter? Not that I've noticed. I do know of one troublesome case of suspected political abuse of information gleaned from a
foreign intelligence wiretap in the 1980s.
Perhaps I've missed others. But I'd wager that for every such case, there have been dozens and dozens of other cases of people who have
seen their privacy or reputations unfairly shredded by or in media stories unrelated to governmental surveillance. "I'd worry more about
The New York Times going through my trash than about the police doing it," observes Yale law professor Kate Stith, a criminal law
expert.
Of course, the notion that FBI agents may be listening in on our conversations gives us the creeps, even if listening is all they do. "You
had to live," Orwell wrote in 1984, "in the assumption that every sound you made was overheard, and, except in darkness, every
movement scrutinized."
But the government has only a limited number of agents to spend their time listening to wiretaps. Agency heads have little incentive to
waste their time and budgets on unwarranted snooping. And they will have to justify any and all taps and bugs to their superiors, to
subordinates who might blow the whistle, and to judges.
So the chance that they will tap or bug or Carnivore you or me or even the Arab-American family down the street will remain quite small.
Indeed, the chance that they will spy on you is a great deal smaller than the chance that your employer is monitoring your e-mail and your
Web surfing. It is probably smaller than the chance that a computer hacker will get into your e-mail or a neighborhood kid will overhear
your cell phone conversation.
"Is privacy about government security agents decrypting your e-mail and then kicking down the front door with their jackboots?" James
Gleick wrote in The New York Times Sunday Magazine five years ago. "Or is it about telemarketers interrupting your supper with cold
calls? It depends. Mainly, of course, it depends on whether you live in a totalitarian or a free society." We live in a free one.
Eighteen years ago, in The Rise of the Computer State, the respected journalist David Burnham wrote: "The question looms before us:
Can the United States continue to flourish and grow in an age when the physical movements, individual purchases, conversations and
meetings of every citizen are constantly under surveillance by private companies and government agencies?"
It can. It has. And now that the computer state has risen indeed, the threat of being watched by Big Brother or smeared by the FBI seems a
lot smaller than the threat of being blown to bits or poisoned by terrorists.
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Wiretapping Good – A2: Credibility
University of South Florida 13 “Obama response to NSA scandal inadequate, alarming” June 10, 2013, usforacle.com,
http://www.usforacle.com/obama-response-to-nsa-scandal-inadequate-alarming-1.2829308#.UdH3oDuxWSo, July 1, 2013, NS
“Nobody is listening to your telephone calls,” the president ensured.
What the NSA says it is doing, however, is collecting metadata — information ranging from call locations, durations and telephone
numbers — a diminutive term that is likely being used for public relations purposes to avoid public suspicion.
“You cannot have 100 percent security and 100 percent privacy,” he said.
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2013
*** Con
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Wiretapping Bad – A2: Terrorism
Domestic spying program aids terrorist groups
Rood 8 Justin Rood is ABC Staff Reporter, “Domestic Spying Program Could Aid Terrorists, Experts Say,” Feb. 1, 2008, ABC News,
http://abcnews.go.com/Blotter/story?id=4224513&page=1#.UdGtFPmTiSo, DOA: 7-1-13, y2k
Although the Bush administration calls it a vital weapon against terrorism, its domestic wiretapping effort could become a devastating
tool for terrorists if hacked or penetrated from inside, according to a new article by a group of America's top computer security experts.
The administration has said little about the program except to defend it against charges it amounts to illegal spying on U.S. citizens. When
news of the program broke in 2006, then-White House spokesman Scott McClellan called the program a "limited" effort "targeted at al
Qaeda communications coming into or going out of the United States."
But documents submitted in an ongoing court case indicate the program involves data centers at major telecommunications hubs that
siphon off and analyze billions of bytes of Americans' emails, phone calls and other data.
By diverting the flow of so much domestic data into a few massive pools, the administration may have "[built] for its opponents
something that would be too expensive for them to build for themselves," say the authors: "a system that lets them see the U.S.'s
intelligence interests...[and] that might be turned" to exploit conversations and information useful for plotting an attack on the United
States.
The Office of the Director of National Intelligence referred a request for comment on the article to the interagency National
Counterterrorism Center, which directed calls to the National Security Agency, which reportedly runs the program. The NSA declined to
comment for this story.The White House referred calls to the NSA.
Senate on the verge of passing a sweeping law authorizing the wiretapping program and updating the law that governs international
surveillance.
The article, slated to appear in an upcoming issue of the journal IEEE Security & Privacy, was written by six experts from Sun
Microsystems, Columbia University, Princeton University, the University of Pennsylvania and California-based research giant SRI
International.
The data centers for the classified program are reportedly housed in "secure" rooms within telecommunications hubs around the country,
and connect to operations buried within the NSA's highly classified facilities. But judging by past breaches, the authors conclude this
system could be compromised also – from within or outside.
In 2004, hackers cracked a wiretapping function on a Greek national cell phone network. For 10 months, they intercepted conversations
by the country's prime minister and its ministers of defense, foreign affairs and justice, and roughly 100 other officials and parliament
members, the authors note. The hackers were never caught.
"Although the NSA has extensive experience in building surveillance systems, that does not mean things cannot go wrong," the authors
state. "When you build a system to spy on yourself, you entail an awesome risk."
Just as dangerous is the possibility that an insider could access the system undetected, according to the experts. Poorly-designed
surveillance technology used by the FBI relies on a "primitive" system to track people who use the operation to wiretap phone
conversations, the authors say, creating what they call a "real risk" of an insider attack.
They note that convicted spy Robert Hanssen, one of the most destructive moles in the bureau's history, exploited similar weaknesses to
steal information and follow the investigation into himself on FBI computers without leaving a trail.
Last August, a federal judge ruled the program was unconstitutional. The administration is appealing the decision. The Senate is currently
considering a White House-backed effort to retroactively immunize telecommunications companies which have participated in the
program from civil suits, several of which have been filed since the program came to light. The legislation, the authors say, would allow
the program to continue without ensuring proper oversight, accountability and security, creating "a long-term risk."
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Wiretapping Bad – Digital Infrastructure
Wiretapping undermines digital infrastructure and national security
JAYCOX & SCHOEN 13, MARK M. JAYCOX AND SETH SCHOEN a civil liberties organization focusing on people's rights
as they relate to technology “The Government Wants A Backdoor Into Your Online Communications” MAY-22-2013
https://www.eff.org/deeplinks/2013/05/caleatwo DOA 7-1-13
In an age where the government claims to want to beef up Internet security, any backdoors into our communications makes our
infrastructure weaker
.
Backdoors also take away developers' right to innovate and users' right to protect their privacy and First Amendment-protected anonymity
of speech with the technologies of their choice. The FBI's dream of an Internet where it can listen to anything, even with a court order, is
wrong and inconsistent with our values.
National security jeopardized
Wiretapping backdoors even affect national security. In 2012, Wired revealed the NSA's discovery and concern that every telephone
switch for sale to the Department of Defense had security vulnerabilities due to the legally-mandated wiretap implementation. If
politicians are serious about online security, they will not make these security blunders even worse by bringing more sensitive
communication technologies under CALEA's scope.
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Wiretapping Bad – Credibility
Zhendong, qualifications, 2013
(Pu, “Spy scandal ‘will weaken’ US global credibility,” accessed: 6-30-14, ASH)
Incident may lead to new international rules on surveillance
Anger over Washington's extensive eavesdropping on world leaders and ordinary citizens has shown no signs of abating, as observers say
using anti-terrorism as an excuse for pervasive surveillance is "hypocritical and abused".
Chinese experts said the disclosure shows the United States is making the most of its intelligence capabilities to secure its supremacy in
the world, and the scandal will weaken its global credibility.
Observers also said the scandal may prompt new international rules to rein in transnational spying as 21 countries have reportedly asked
for a UN draft resolution against the US surveillance.
The latest reports reveal the US was responsible for broad surveillance of the communications of as many as 35 world leaders and likely
millions of foreign nationals.
The leaders monitored through the National Security Agency phone tapping included German Chancellor Angela Merkel, who was
reported to have been spied on by the US since 2002.
The NSA was also accused of accessing tens of thousands of French phone records as well as tracking 60.5 million telephone calls in
Spain in a single month.
Qu Xing, president of the China Institute of International Studies, said Washington has been highly concerned by European integration, as
Europe would surpass the US to become a new power center if the EU worked as successfully as expected.
But Qu said US-EU relations will forge ahead in the long term despite the recent setback.
"The US and Europe are like a pair of business partners. Both benefit from a cooperative relationship and neither can put up with the
consequences of a breakup," Qu said.
Shi Yinhong, a senior expert on US studies at Renmin University of China, said, "Perceiving itself as a superpower, the US holds the
arrogant attitude that it is not a big deal to steal other countries' information".
In another development, Japanese media revealed over the weekend that the NSA approached the Japanese government in 2011 to allow it
to tap the international fiber-optic cables that traverse the country and carry much of the traffic across East Asia, in an attempt to gather
more information on China.
Calling cybersecurity "a matter of sovereignty", Foreign Ministry spokeswoman Hua Chunying urged the international community on
Tuesday to set up a new security concept of mutual trust, benefit and equality, and to create binding regulations within the UN framework.
"China and Russia have submitted a draft plan, in an effort to help the world jointly tackle the problem," Hua said.
Experts said Washington not only offends its allies by the extensive monitoring, but also harms mutual trust.
Dong Manyuan, deputy director of the China Institute of International Studies, said Washington can hardly find any excuse for its
wiretapping.
"Originally, the US claimed that it monitored billions of calls worldwide to fight terrorism. However, the reality shows that Washington
has expanded its monitoring to Merkel and other European leaders, who share the same values as (US President Barack) Obama," Dong
said.
Washington recently denied that Obama was informed of the operation against Merkel in 2010.
"Obama did not halt the operation but rather let it continue," German newspaper Bild am Sonntag quoted a high-ranking NSA official as
saying. A poll by a German magazine found that 60 percent of Germans believe the scandal has damaged ties.
The White House on Monday acknowledged that more constraints are needed regarding the NSA's surveillance practices to ensure that
privacy rights are protected.
"We need to make sure that we're collecting intelligence in a way that advances our security needs and that we don't just do it because we
can," White House spokesman Jay Carney said.
The spying row prompted European leaders last week to demand a new deal with Washington on intelligence gathering that would
maintain an essential alliance while keeping the fight against terrorism on track.
Swiss President Ueli Maurer warned the revelations risked "undermining confidence between states".
"We don't know if we're only seeing the tip of the iceberg or if other governments are acting in the same ruthless manner," he told
reporters.
Analysts said the exposure of the US surveillance and the subsequent global anger may lead to the birth of a binding international
agreement on spying through telecommunications and cyberspace.
Shi said the series of eavesdropping operations may accelerate the formulation of rules in the global community, but it will be extremely
difficult.
"In fact, international rules can only help in a limited way. What we can do is protect ourselves technically," Shi said.
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During the weekend, Germany and Brazil drafted a UN General Assembly resolution that condemns "indiscriminate" and "extraterritorial" surveillance, and ensures "independent oversight" of electronic monitoring.
The draft has enlisted 19 other countries including US allies Mexico and France.
Brazilian President Dilma Rousseff canceled a trip to the US last month over allegations the NSA intercepted her office's communications.
Guo Xiangang, vice-president of the China Institute of International Studies, said Washington will restrain its "current unbridled
behavior" if a UN resolution comes into force, but it will never give up surveillance of other countries, including its allies.
"Despite a rift with allies, the US will further integrate its intelligence power to continue actions that fit its national interest," Guo said.
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Wiretapping Bad – Credibility
The associated press, 2013
(“NSA spying threatens to hurt US foreign policy,” accessed: 6/30/14,ASH)
Secretary of State John Kerry landed in Rome and Paris to talk about Mideast peace, Syria and Iran but was confronted by outrage over
the sweep and scope of U.S. spying abroad. President Barack Obama already has defended America's surveillance activities to leaders of
Russia, Mexico, Brazil, France and Germany and was even questioned about it during his birthday appearance on late-night television.
Obama and Kerry are trying to calm international anger over classified disclosures by former National Security Agency contractor
Edward Snowden. Snowden's revelations about NSA tactics — that allegedly include tapping as many as 35 world leaders' cellphones —
threaten to harm U.S. foreign policy in several areas.
In Washington, demonstrators held up signs reading "Thank you, Edward Snowden!" as they marched near the U.S. Capitol to demand
that Congress investigate the NSA's mass surveillance programs.
"The magnitude of the eavesdropping is what shocked us," former French Foreign Minister Bernard Kouchner said in a radio interview.
"Let's be honest, we eavesdrop too. Everyone is listening to everyone else. But we don't have the same means as the United States, which
makes us jealous."
The British ambassador to Lebanon, Tom Fletcher, tweeted this week: "I work on assumption that 6+ countries tap my phone.
Increasingly rare that diplomats say anything sensitive on calls."
Diplomatic relations are built on trust. If America's credibility is in question, the U.S. will find it harder to maintain alliances, influence
world opinion and seal trade deals.
Spying among allies is not new. Madeleine Albright, secretary of state during the Clinton administration, recalled being at the United
Nations and having the French ambassador ask her why she said something in a private conversation that the French had apparently
intercepted. The French government protested revelations this week that the NSA had collected 70.3 million French-based telephone and
electronic message records in a 30-day period.
Albright said Snowden's disclosures have been very damaging to U.S. policymakers.
"I think it has made life very difficult for Secretary Kerry," Albright said at a conference hosted by the Center for American Progress in
Washington.
The disclosures could give the Europeans leverage in talks with the U.S. on a free trade agreement, which would bring together nearly
half of the global economy. "If we go to the negotiations and we have the feeling those people with whom we negotiate know everything
that we want to deal with in advance, how can we trust each other?" Martin Schulz, president of the European Parliament, asked.
To Henry Farrell and Martha Finnemore at George Washington University, damage from the NSA disclosures could "undermine
Washington's ability to act hypocritically and get away with it."
Writing in the magazine Foreign Affairs, they claim the disclosures forced Washington to abandon its "naming-and-shaming campaign
against Chinese hacking."
The revelations could undercut Washington's effort to fight terrorism, says Kiron Skinner, director of the Center for International
Relations and Politics at Carnegie Mellon University. The sweeping nature of NSA surveillance goes against the Obama administration's
claim that much of U.S. espionage is carried out to combat terrorism, she says.
"Allied leaders will have no incentive to put their own militaries at risk if they cannot trust U.S. leadership," Skinner said.
The Obama administration's response to the outrage has been that the U.S. is gathering foreign intelligence of the type gathered by all
nations and that it's necessary to protect the U.S. and its allies against security threats.
Most governments have not retaliated, but some countries are pushing back.
Germany and France are demanding that the Obama administration agree by year's end to new rules that could mean an end to reported
American eavesdropping on foreign leaders, companies and innocent citizens.
Brazilian President Dilma Rousseff canceled her official state visit to the White House. And Brazil says it is working with other countries
to draft a United Nations General Assembly resolution that would guarantee people's privacy in electronic communications.
A European Parliament committee in Brussels approved sweeping data protection rules that would strengthen online privacy and outlaw
the kind of data transfers the U.S. is using for its spying program.
European lawmakers have called for the suspension of an agreement that grants U.S. authorities access to bank data needed for terrorrelated investigations.
"We need trust among allies and partners," said German Chancellor Angela Merkel, whose cellphone was allegedly tapped by the NSA.
"Such trust now has to be built anew."
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Wiretapping Bad – Credibility
Riechmann, qualifications, 2013
(Deb, “NSA spying threatens U.S. foreign policy efforts,” accessed: 6/30/14, ASH)
WASHINGTON -- WASHINGTON (AP) — Secretary of State John Kerry went to Europe to talk about Mideast peace, Syria and Iran.
What he got was an earful of outrage over U.S. snooping abroad.
President Barack Obama has defended America's surveillance dragnet to leaders of Russia, Mexico, Brazil, France and Germany, but the
international anger over the disclosures shows no signs of abating in the short run.
Longer term, the revelations by former National Security Agency contractor Edward Snowden about NSA tactics that allegedly include
tapping the cellphones of as many as 35 world leaders threaten to undermine U.S. foreign policy in a range of areas.
This vacuum-cleaner approach to data collection has rattled allies.
"The magnitude of the eavesdropping is what shocked us," former French Foreign Minister Bernard Kouchner said in a radio interview.
"Let's be honest, we eavesdrop too. Everyone is listening to everyone else. But we don't have the same means as the United States, which
makes us jealous."
So where in the world isn't the NSA? That's one big question raised by the disclosures. Whether the tapping of allies is a step too far
might be moot.
The British ambassador to Lebanon, Tom Fletcher, tweeted this past week: "I work on assumption that 6+ countries tap my phone.
Increasingly rare that diplomats say anything sensitive on calls."
Diplomatic relations are built on trust. If America's credibility is in question, the U.S. will find it harder to maintain alliances, influence
world opinion and maybe even close trade deals.
Spying among allies is not new.
Madeleine Albright, secretary of state during the Clinton administration, recalled being at the United Nations and having the French
ambassador ask her why she said something in a private conversation apparently intercepted by the French.
The French government protested revelations this past week that the NSA had collected 70.3 million French-based telephone and
electronic message records in a 30-day period.
Albright says Snowden's disclosures have hurt U.S. policymakers.
"A lot of the things that have come out, I think are specifically damaging because they are negotiating positions and a variety of ways that
we have to go about business," Albright said at a conference hosted by the Center for American Progress in Washington.
"I think it has made life very difficult for Secretary Kerry. ... There has to be a set of private talks that, in fact, precede negotiations and I
think it makes it very, very hard."
The spy flap could give the Europeans leverage in talks with the U.S. on a free trade agreement, which would join together nearly half of
the global economy.
"If we go to the negotiations and we have the feeling those people with whom we negotiate know everything that we want to deal with in
advance, how can we trust each other?" asked Martin Schulz, president of the European Parliament.
Claude Moniquet, a former French counterintelligence officer and now director of Brussels-based European Strategic Intelligence and
Security Center, said the controversy came at a good time for Europe "to have a lever, a means of pressure ... in these negotiations."
To Henry Farrell and Martha Finnemore at George Washington University, damage from the NSA disclosures could "undermine
Washington's ability to act hypocritically and get away with it."
The danger in the disclosures "lies not in the new information that they reveal but in the documented confirmation they provide of what
the United States is actually doing and why," they wrote in Foreign Affairs.
"When these deeds turn out to clash with the government's public rhetoric, as they so often do, it becomes harder for U.S. allies to
overlook Washington's covert behavior and easier for U.S. adversaries to justify their own."
They claim the disclosures forced Washington to abandon its "naming-and-shaming campaign against Chinese hacking."
The revelations could undercut Washington's effort to fight terrorism, says Kiron Skinner, director of the Center for International
Relations and Politics at Carnegie Mellon University. The broad nature of NSA surveillance goes against the Obama administration's
claim that much of U.S. espionage is carried out to combat terrorism, she said.
"If Washington undermines its own leadership or that of its allies, the collective ability of the West to combat terrorism will be
compromised," Skinner said. "Allied leaders will have no incentive to put their own militaries at risk if they cannot trust U.S. leadership."
The administration asserts that the U.S. is amassing intelligence of the type gathered by all nations and that it's necessary to protect the
U.S. and its allies against security threats.
Kerry discussed the NSA affair in Europe with French and Italian officials this past week.
Most governments have not retaliated, but some countries are pushing back.
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Germany and France are demanding that the administration agree by year's end to new rules that could mean an end to reported American
eavesdropping on foreign leaders, companies and innocent citizens.
Brazilian President Dilma Rousseff canceled her official state visit to the White House. She ordered measures aimed at greater Brazilian
online independence and security after learning that the NSA intercepted her communications, hacked into the state-owned Petrobras oil
company's network and spied on Brazilians.
Brazil says it is working with other countries to draft a U.N. General Assembly resolution that would guarantee people's privacy in
electronic communications.
A European Parliament committee approved rules that would strengthen online privacy and outlaw the kind of data transfers the U.S. is
using for its spying program.
European lawmakers have called for the suspension of an agreement that grants U.S. authorities access to bank data needed for terrorismrelated investigations.
"We need trust among allies and partners," said German Chancellor Angela Merkel, whose cellphone was allegedly tapped by the NSA.
"Such trust now has to be built anew."
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Wiretapping Bad – Credibility
Zawilzka-Florczuk and Frymark, qualifications and qualifications, 2014
(Marta and Kamil, “The NSA: the impact of the wiretapping scandal on German-American relations,” accessed:
6/30/14,ASH)
Edward Snowden revealed that America’s National Security Agency (NSA) had tapped Chancellor Angela Merkel’s mobile phone and
had collected date en masse. This has caused the largest crisis of confidence in relations between Germany and the US since the Iraq war.
Due to the technological advantage which American intelligence services have, Germany wishes to continue close co-operation with the
US but is making efforts to change the legal basis of this co-operation dating back to Cold War times.
Berlin would like to secure part of provisions similar to the Five Eyes alliance – agreements signed between the US, the UK, Canada,
New Zealand and Australia in the second half of the 1940s, aimed at intelligence sharing and a ban mutual bugging. This could spell the
end of the last (not including the military presence) relic of Germany's dependence on the US which emerged following World War II and
took shape in the shadow of the Cold War. The process of Germany's emancipation in trans-Atlantic relations, which began after
Germany's reunification, would be complete. The US is however opposed to such far-reaching changes as it is interested in continued cooperation with Germany without limiting it. Were it not to sign agreements satisfactory for Berlin, this would lead to a protracted crisis of
confidence in German-American relations.
American security service surveillance in Germany
According to the information disclosed in June 2013 by Edward Snowden, a former NSA employee, the US used the PRISM programme
in order to run large-scale surveillance operations outside the country, including in the territory of the European Union. According to the
Der Spiegel weekly, Germany were one of the countries most targeted, with the NSA intercepting approximately 500 million phone calls,
e-mails and text messages at the turn of 2012 and 2013[1]. In July 2013 the German press revealed that the US had also used PRISM in
the ISAF mission in Afghanistan with the knowledge and consent of German intelligence and the Bundeswehr. Furthermore, information
surfaced that the Federal Intelligence Service (BND) and the Federal Office for the Protection of the Constitution (BfV) use the American
spying programme XKeyscore, which gives the NSA the complete access to all data thus collected. On 24 October the news broke out
that along with the surveillance of German inhabitants the telephone of the German chancellor, Gerhard Schroeder had been tapped since
2002. Later Angela Merkel received the same treatment. President Barack Obama claims that the US administration was unaware that this
was happening.
The scandal in connection with the NSA operations in Germany developed in two stages. During the first stage between June and
September 2013 allegations appeared that large-scale bugging of telephone connections in Germany was taking place. The largest
controversies and firm reactions from German politicians were however caused by the information revealed in October about Chancellor
Merkel's telephone being tapped and the scope of co-operation between the German and American security services.
The reactions of German politicians
The fact that German citizens were being spied upon by the US security services was revealed in the middle of the Bundestag election
campaign. The opposition parties (the SPD, the Green Party and the Left Party) tried to make use of the scandal by discrediting the ruling
Christian Democrats and Liberals. The liberal FDP sought to emphasise the necessity to protect personal data and civil liberties, which
has traditionally been an important item on the party's political agenda. The reaction of the Christian Democrats at both stages of the
scandal proved to be the mildest. Nonetheless, even they toughened their stance when further information leaked regarding the methods
used by the American agency.
Since the beginning of the scandal over the NSA operations in Germany, the federal government in Berlin claims that it did not know
about the surveillance of German citizens by Americans, let alone about Chancellor Merkel's telephone being tapped. While MPs from the
FDP, in particular Justice Minister Sabine Leutheusser-Schnarrenberger, firmly demanded that the US clarify the issue and be held
accountable for it, the Christian Democrats attempted to smooth it over. Chancellor Angela Merkel and Interior Minister Hans-Peter
Friedrich called on the US to respect German law. Representatives of the Federal Ministry of the Interior and the German security
services paid two visits to the US where they met with their American counterparts and negotiated an agreement on bringing to a halt
intelligence operations carried out against each other. On the other hand, in Germany Friedrich emphasised the advantages of co-operation
between the security services of the two countries.
The reaction of the opposition was much more severe and has led to the establishment of an investigative committee in the Bundestag.
Ronald Pofalla, the head of the Federal Chancellery, who coordinates the work of the security services, was among those to be heard by
this committee. The SPD and the Left Party criticised the federal government for its inept handling of the situation. During the election
campaign for the Bundestag, the Social Democrats also demanded that the work on the free trade agreement between the US and the EU
be suspended. The opposition parties reproached the government for being slow to respond to the NSA scandal and for the
disproportionate reaction to the revealed scale of the surveillance. Peter Schaar, the Federal Commissioner for Data Protection and
Freedom of Information, also criticised the government for its passivity.
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After it was revealed that Chancellor Merkel's telephone had been tapped the reactions from politicians began to converge. The
government responded more critically than before – Foreign Minister Guido Westerwelle summoned the US ambassador to provide an
explanation and Chancellor Merkel termed the NSA operations. The negotiations to sign the agreement about stopping intelligence
operations against each other have also been intensified. It is, however, the opposition parties who have been at the forefront of the debate
on the NSA’s activity. During the coalition negotiations the SPD held back from attacking the Christian Democrats but still called for the
US to be held accountable. It is mainly due to the Social Democrats that the provision regarding the NSA activity was included in the
CDU/CSU-SPD coalition agreement[2]. The Left Party and the Greens are calling for the establishment of another investigative
committee in the Bundestag, this time to deal with the fact that Merkel’s telephone had been tapped. As proposed by the opposition
politicians, this committee would summon Edward Snowden among other people. The Green Party is the most active in this issue as data
protection is becoming an increasingly important item on their political agenda. The party's renowned politician Hans-Christian Stroebele
even met with Snowden in Moscow in order to discuss the possibility of his appearing before the committee.
The reactions of German society
German society, which is sensitive to the issue of data protection, has reacted to the information about the NSA surveillance in two ways.
On the one hand, a survey commissioned by the public TV station ARD in July 2013 indicates that confidence in the USA has
substantially declined from 65% to 49% – for the first time since Barack Obama became US president[3]. In November the number of
Germans who believed that the US is a reliable partner for Germany stood at only 35%. The majority of Germans also declared
themselves dissatisfied with the position of the federal government on the NSA scandal (over 70% of those surveyed). Part of the
intellectuals and politicians whose political agendas are based on the concept of data protection (including the Green Party, the Pirate
Party) is vehemently opposed to the surveillance of Internet activity by foreign security services. Seven German-speaking writers have
also protested against it; as a group called “Writers Against Mass Surveillance” they have initiated a petition against these practices. On
10 December their manifesto was published by 30 European daily newspapers. On the other hand, a majority of Germans (76%) do not
feel threatened by the NSA actions in Germany, and 44% believe that too much significance has been assigned to the surveillance by the
American agency[4].
The legal context of the NSA activity in Germany
As the media reported and representatives of German ministries announced, the agreements regarding co-operation between the German
and American security services which were in force at the time when the scandal broke out date back mainly to the 1960s. They include:
an additional agreement to the North-Atlantic Treaty regarding the deployment of military forces, signed in 1963; the law of 1968 relating
to limiting the confidentiality of the post and telecommunications (under which the BND shares collected data with the military forces of
the allied countries which are deployed in Germany), and the administrative agreements of 1968. Under these provisions the US
intelligence services are entitled, as part of the protection of their citizens (initially, the troops deployed in bases in Germany) to use data
gathered by the BND wiretapping and to independently run their own data collection operations. Additionally, in 2002 in the context of
the war on terror being fought by the US, an agreement was signed about the establishment of a satellite tracking station (SIGNIT) whose
tasks would include the protection of the troops on missions, also in Afghanistan.
On 2 August 2013 the Federal Ministry of Foreign Affairs of Germany announced that it had terminated the administrative agreement
regarding the law on limiting the confidentiality of the post and telecommunications with the US and the UK by mutual consent, through
the exchange of diplomatic notes. This does not spell the end of co-operation between the German and American intelligence services but
merely the abandonment of a provision which was already a relic of a bygone age. The remaining legal acts which regulate co-operation
between the German and American services have not been abrogated.
The implications of the NSA scandal
In the wake of the information that Chancellor Merkel’s telephone may have been tapped by the NSA and that other German citizens may
have been eavesdropped, the government in Berlin is demanding that the present legal framework of intelligence co-operation between
the two countries be changed. So far it has enabled close co-operation between Germany and the US but has not included a ban on mutual
espionage.
Germany at present is seeking to sign two new agreements with the US which would supersede the present regulations: an
intergovernmental agreement and an agreement between the intelligence services of the two countries. They will regulate both cooperation between the services and limit the scope of operations of American intelligence agencies in Germany. In the intergovernmental
agreement of a political nature, Germany would like to include provisions which would rule out mutual surveillance, economic espionage
in bilateral relations, espionage with the use of operational techniques in Germany and the bugging of the heads of the two states. As was
reported in Der Spiegel, Germany would like to ensure that certain provisions are included similar to those in the Five Eyes agreements,
that is, the agreements between the US, the UK, Canada, New Zealand and Australia signed in the second half of the 1940s with regard to
intelligence sharing and prohibiting mutual surveillance[5]. Merkel’s foreign policy advisor, Christoph Heusgen is responsible for
negotiating the intergovernmental agreement for Germany, which proves that this document has been given top priority by Chancellor
Merkel. There are opinions in Germany that the EU’s largest countries should first conclude similar agreements between themselves since
this would strengthen their negotiating position in talks with the US. Officially, Germany has stressed the individual character of these
agreements from the outset. This may also mean that it wishes to emphasise the singularity of these German-American documents in the
context of attempts to change the basis of relations between the two countries. Nevertheless, the US has ruled out negotiations of similar
agreements with a larger number of parties. Already during the current talks Washington is opposed to setting a precedent with regard to
the legal exclusion of wiretapping as it fears that similar demands will be made by other states[6]. This may mean that the German
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demands will not be met by signing the agreement with the US, which in practice would mean that the current US intelligence operations
aimed at Germany will continue.
From the German perspective the further co-operation between the German and American intelligence services is necessary in order to
guarantee security both for German citizens in Germany and for Bundeswehr troops involved in foreign missions (particularly in
Afghanistan). This is mainly due to the US advantage in the field of cybersecurity. With regard to this, the German security services
(above all the BND and the BfV) widely use intelligence gathered by the US[7]. The NSA scandal has further intensified the debate on
the necessity to extend the cybernetic competences of German intelligence and the defence capacities of counterintelligence to deal with
cyber-attacks. This debate has also been part of the discussion over the reform of the BfV and the Federal Office for the Protection of the
Constitution (LfV) and co-operation between the services in the case of the NSU scandal (the three-person National Socialist
Underground which murdered nine immigrants and a German policewoman in 2000-2007; clarifying the circumstances of the murders
and their extreme right-wing background was possible only after one member of the group denounced herself to the police in November
2011 and two other members committed suicide).
There is traditional opposition in Germany to the security services being strengthened and to the concentration of their competences (one
of the fundamental principles with regard to the work of these services prohibits the intelligence and the investigative competences –
Trennungsgebot – being combined). The NSA scandal may thus serve as an argument to persuade public opinion that more competences
are needed by the BND and the BfV to enable them to become more effective and less dependent on American intelligence.
Extending the competences of the German services will require increased funding for both scientific research, technological development,
and the development of the capacities of the services themselves, including personnel. Such measures are presented in the new coalition
agreement between the CDU/CSU and the SPD; additional funding is mentioned in order to strengthen the Federal Office for Information
Security (BSI) and the Cyber-Defence Centre (Cyber-Abwehrzentrum) and other services in the area of cyber capacities. These are
however long-term measures and in the short term Germany will be forced to use information from American intelligence agencies.
Representatives of the German services admit that the detection of certain attempted attacks in Germany was possible exclusively due to
intelligence obtained from foreign services (due to numerous connections this refers above all to American services) as in the cases of
Sauerland-Gruppe and members of Deutsche Taliban Mudschahidin[8]. Furthermore, Germany is interested in intelligence intercepted by
the US from the regions of Afghanistan, Pakistan and North Africa and intelligence regarding organised crime and illegal immigration,
which may help Germany’s internal security.
The conclusions
The current crisis of confidence in relations between Germany and the US is the most important one since Germany expressed its
opposition to the US intervention in Iraq in 2003 in the UN Security Council. The new agreements currently being negotiated are aimed at
mutual non-surveillance and are intended to ease the tension and to reassure public opinion in Germany which demands that Chancellor
Merkel respond to this situation. At the same time they will not have an important influence on the present co-operation between the
intelligence services of the two countries due to its large scale and the common areas of collecting data which is used by both the US and
Germany. America fears setting a precedent and is reluctant to limit its own competences. It will therefore not extend the intelligence
alliance with Anglo-Saxon states (the Five Eyes agreement) to Germany and will probably not agree to a bilateral agreement with
Germany to regulate new principles of co-operation between the intelligence services, including the ban on mutual espionage. In the long
term a revision of the present principles of co-operation would result in the removal of one of the last relics of post-war relations between
Germany and the US. Germany would thus enter a further – and perhaps the final – stage of emancipating its foreign policy following the
fall of the Berlin Wall, which would see the creation of the basis of co-operation between the two partners.
Germany has used the information about the NSA operations to build a new foundation in its transatlantic relations. This foundation is
aimed at reflecting Germany’s strong political and economic position as the EU’s most important state which is developing co-operation
with the BRICS states and the new regional powers (Gestaltungsmächte). One of Berlin’s goals is to confirm its strong position in the
international arena and this may be seen in the country’s efforts to gain permanent membership on the UN Security Council. American
opposition to Germany’s proposal regarding the provisions in the agreements means that the German part in the NSA scandal will not be
closed and will impact both German-American relations and Germany’s internal relations (for example, the demands made by the
opposition that Germany grant asylum to Snowden will resurface). Despite the visit of US Secretary of State John Kerry, which has been
scheduled for the beginning of this year (it had initially been thought that the agreements between Germany and the US would be signed
during this visit) and Chancellor Merkel’s confirmed visit to the US this year, a breakthrough in bilateral relations should not be expected.
They will remain tense and full of mutual distrust.
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Wiretapping Bad – Credibility/Obama
Wiretapping undermines Obama’s credential
Foster 13 Peter Foster is Telegraph Staff Reporter, “Domestic Spying Revelation Could Be Devastating For The Obama White House,”
6-6-13, Business Insider, http://www.businessinsider.com/affect-of-nsa-surveillance-on-obama-2013-6, DOA: 7-1-13, y2k
Democratic presidential hopeful Sen. Barack Obama D-Ill., pauses as he talks about the assasination of Pakistan opposition leader Benazir
Bhutto as he begins a campaign rally Thursday, Dec. 27, 2007 in Des Moines, Iowa.
Egypt protests: Live from Tahrir Square
Talk like Egyptians
Ladies' men
The Obama administration will be bracing itself for a torrent of hostile questions this morning following the apparent revelation that the
National Security Agency has been data-mining the phone records of tens of millions of ordinary Americans.
Not to be confused with eaves-dropping, or bugging the phones of those suspected of conspiring to commit a terrorist or criminal offence,
the top secret court order published by The Guardian appears to show that the NSA has been trawling the anonymous 'metadata' of
potentially billions of phone-calls.
On the one hand, Americans might take comfort that the 'internals' of their phone conversations — ie the voices themselves — are not
being routinely recorded, but on the other, it seems from this leak that potentially everyone with a phone is under some form of
surveillance in the USA.
Studies have shown that while anonymous, the 'metadata' — records of location data, call duration, unique identifiers — can provide a
surprising amount of information, surprisingly quickly when zeroed in on by investigators.
For Mr Obama– a president who prided himself on his liberal credentials — this leak is a potentially devastating revelation since it
exposes him to attack on two fronts — from both the libertarian Right and the liberal Left.
Already the administration has been hammered over its aggressive prosecution of leakers, including what appeared to be an attempt to
criminalise a Fox News journalist, James Rosen, for working a source to obtain a leak from the State Department about North Korea.
That story caused the New York Times — usually a reliable friend of the Obama administration — to write a seething editorial accusing
the Department of Justice of over-reaching, and using its powers to send a "chilling" message to the media.
It is not clear how wide the NSA data-mining project goes, it's effectiveness as a counter-terrorism tool in identifying potential terrorist or
criminal cells or — indeed — whether it has been used for any other purposes.
It appears from previous reports that the NSA's data-mining operation is not new, and has long been suspected — but this is the first clearcut proof, in the shape of a highly unusual leak from the secretive Foreign Intelligence Service Court (Fisa), that the practice is occurring.
A report in USA Today newspaper from 2006, quoting anonymous intelligence officials, alleged that the NSA been "secretly collecting
the phone call records of tens of millions of Americans" and that the agency was using the data to "analyze calling patterns in an effort to
detect terrorist activity".
Since September 11 and the passing of the 2001 Patriot Act, the American public has accepted a great deal of inconvenience and intrusion
in the name of national security. The publication of this court order will re-open the debate on how far the security services' writ should
run.
Politically, the difficulty for Mr Obama is that even if the NSA is actually doing nothing different than it did for George W Bush, the
American public — particularly on the liberal left — had believed that Mr Obama's administration represented a fundamental departure
from the excesses of the Bush years.
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Now, with the continued debate over the use of drones, the failure to close Guantanamo, the ultra-aggressive prosecution of leaks even to
the point, perhaps, of muzzling a free press — the questions from the public and the media are starting to weigh down on the Obama
White House.
Already last night, within hours of publication, civil liberties groups who have long warned about the extent of secret surveillance, were
jumping on the revelations.
"This confirms what we had long suspected," says Cindy Cohn, an attorney at the Electronic Frontier Foundation (EFF), a civil liberties
organization that has accused the government of operating a secret dragnet surveillance program told the Washington Post.
"I don't think Congress thought it was authorizing dragnet surveillance" when it passed the Patriot Act, Ms Cohn said, "I don't think
Americans think that's OK. I would be shocked if the majority of Congressmen thought it's okay." Over the next few days and weeks,
expect a fierce and polarizing debate over just what Americans do feel is acceptable, in the name of their national security.
Using wiretapping makes Obama lose his credibility and trustworthiness.
NYT Editorial Board 13, The Editorial Board, composed of 18 journalists with wide-ranging areas of expertise, “President
Obama’s Dragnet” June 6, 2013 New York Times, http://www.nytimes.com/2013/06/07/opinion/president-obamasdragnet.html?pagewanted=all&_r=0, July 1, 2013 NS
Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they
have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered everytime
President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal
with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your
rights.Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret
orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and
accountability. The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch
will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of
fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of
unnecessary and overbroad surveillance powers.
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Wiretapping Bad – Not Legal
Wiretapping has been deemed unconstitutional
Lee, Professor of Law at the University of California, 06
(Evan, “The Legality of the NSA Wwiretapping Program,” 06-30-14, EBSCO, bdg)
In December 2005, the New York Times revealed that the National Security Agency (NSA) was engaged in the warrantless wiretapping
of calls involving Americans.' In the several subsequent lawsuits challenging the wiretapping program, the government had a relatively
rough go of it. One district judge stridently ruled the program unconstitutional on multiple grounds/ and another rejected the government's
invocation of the "state secrets" doctrine.'' Now, the Bush Administration has reached an agreement with the Foreign Intelligence
Surveillance Court permitting that court to review all warrants on all wiretaps in terrorism investigations. Presumably, this moots the
existing litigation, which focuses on prospective injunctive relief. Thus it now appears that there will never be a final judgment
adjudicating the legality of the wiretapping program, leaving the question to the legal academy.
Not legal
Jones, Gallup Poll Analyst, 06
(Jeffrey, “Public Remains Divided About Wiretapping Controversy,” 06-30-14, EBSCO, bdg)
PRINCETON, NJ -- Politicians and media pundits, among others, continue to question the
legality of a Bush administration practice of conducting warrantless surveillance of telephone
conversations between U.S. citizens living in the United States and suspected terrorists living
in other countries. Last week, Attorney General Alberto Gonzales defended the practice before
the Senate Judiciary committee, but his answers failed to satisfy many members of the
committee. Public attention on the wiretapping controversy remains high, and opinion on the
matter remains divided and has not changed in recent weeks.
The poll also finds essentially no change in the public's views about the matter. Forty-seven
percent believe the Bush administration was right in wiretapping the telephone conversations
without getting a court order, while 50% say it was wrong to do so. In late January, 46% said
the administration was right and 51% wrong. In early January, Americans were slightly more
inclined to say the Bush administration was right (50%) than wrong (46%).
Not legal
Harris, Amember of the Washington Bureau of the St. Louis Post- Dispatch, 49
(E.A., “Is Wiretapping Legal?” 06-30-14, EBSCO, bdg)
President Roosevelt, in authorizing its use, was careful to point out that the problem of balancing the need for law-enforcement agents
with the need for protection of citizens against abuse of such power raised "the most delicate problem in the field of democratic
statesmanship." The federal government has no statute governing the use of wire-tapping, but even New York
State, which took the lead among the commonwealths in applying a policy of supervised wire-tapping for crime detection, has found the
state statute in large measure abused or ignored.
Not legal
Desai, Assistant Professor of Law at the University of Wisconsin, 07
(Anuj, “Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy,” 06-30-14, EBSCO, bdg)
In December 2005, the New York Times reported that the National Security Agency (NSA) had been engaged in warrantless surveillance
of international communications—telephone calls, e-mails, etc.— made from within the United States.' The ensuing outrage included
several lawsuits claiming that the government and various telecommunications companies had violated a host of statutes, particularly the
Foreign Intelligence Surveillance Act (FISA), which establishes specific procedures for the government to follow prior to engaging in
domestic surveillance for intelligence purposes. At the same time, a few of the lawsuits and some commentators went even further,
alleging that the NSA surveillance program violated the Fourth Amendment, in essence arguing that even Congress could not authorize
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such surveillance. In August 2006, a federal district judge in Detroit agreed."* One of the unstated premises of the court's holding was that
the Fourth Amendment protects the privacy of long distance communications transmitted through a communications network, a premise
that was unequivocally correct as a matter of current Fourth Amendment doctrine.
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Wiretapping Bad – Privacy
Digital wiretapping undermines private security---damages individuality
Keen, 2013 Andrew Keen, Andrew Keen is a British-American entrepreneur, professional skeptic and the author of "The Cult of the
Amateur" and "Digital Vertigo.", “Why we're all stuck in the digital transit zone with Snowden”
CNN,http://edition.cnn.com/2013/06/28/opinion/keen-snowden-digital-monitoring/index.html?hpt=hp_c Jun 30 2013 NS
Editor's note: Editor's note: Andrew Keen is a British-American entrepreneur, professional skeptic and the author of "The Cult of the
Amateur" and "Digital Vertigo." Follow Andrew Keen on Twitter.
(CNN) -- So where, exactly, is Edward Snowden? President Vladimir Putin knows. But Russia's chief snooper isn't telling. Not exactly,
anyway.
The ex-KGB officer and master of doublespeak described Snowden as a "free man" ( biding his time in a "transit area" in Moscow's
Sheremetyo airport. So free, of course, that the young American ex-surveillance officer -- watched around the clock by hawkish Russian
security agents - has become as ubiquitously and transparently invisible as the brightly lit subject of a dystopian Kafka story.
Read more: How to hide your data from Internet
Snowden isn't alone in his fate. The truth is that anyone who uses the Internet is also all in that brightly lit "transit area." I'm afraid we are
all in danger of becoming Edward Snowden now.
"Mr. Snowden really did fly into Moscow," Putin said, with just the glimmer of a secret policeman's smile. "For us it was completely
unexpected." Oh, yes, it must have been totally unexpected. So unexpected, indeed, that the area between passport control and the arrival
gates in Sheremetyo airport has been transformed into a high security hotel designed to both shield Snowden from public view and to
watch him.
Yes, Sheremetyo is beginning to mirror the Internet, a vast all-seeing digital panopticon, a network in which somebody might be watching
everything we do, a place where individual privacy no longer exists. And Snowden's fate -- of being watched around the clock, of having
zero privacy -- could easily become all of our fates.
Opinion: In digital age, everyone is becoming a spook
Ironically, it's Snowden himself who has most clearly revealed to us our fate. In secret National Security Agency (NSA) documents which
Snowden gave to the Guardian newspaper, we now know that for more than two years, the Obama administration allowed the NSA, to
continue -- as the newspaper put it -- "collecting vast amounts of records detailing the email and internet usage of Americans."
Doublespeak isn't, of course, unique to the Russian security apparatchik. The Americans are pretty skilled at it too. "I'm not going to say
we're not collecting any internet metadata," thus one Obama Adminstration official told the Washington Post.
But, as the Guardian notes, the distinction between metadata and data is mostly semantic. The truth is that the NSA has been data-mining
us all of us to death -- Americans and foreigners alike -- in their paranoid search for enemies of the American state. Last year I wrote a
book warning about this and called it "Digital Vertigo" -- in homage to Alfred Hitchcock's nightmarish movie about a San Francisco
private eye whose life is destroyed by both surveillance and voyeurism. Some people said I was exaggerating. Now they know I wasn't.
By being able to read our emails and Internet usage, by harvesting over a trillion metadata records, the NSA knows absolutely everything
about us. They know our tastes, what we think, where we go, what we eat, how we sleep, when we are angry, when we are sad. They have
become our eyes and our brains. Hitchcock's 20th century movie about surveillance and voyeurism really has become the truth about 21st
century digital life.
More from Andrew Keen: Should we fear mind-reading future tech?
Deal offered for Snowden's return Where is Edward Snowden?
It's almost as if the agents at the NSA have become as omniscient as Google or Facebook.
The really terrifying thing about Snowden's revelations is the doublethink articulated by the Silicon Valley technology companies whose
pipes and platforms have been hijacked by the snooping NSA bureaucrats. Google, Facebook and the rest all, of course, claim, in the
sophisticatedly obtuse doublespeak of their lawyers, both ignorance and innocence about the NSA allegations.
But, as Techcrunch founder Mike Arrington notes, the truth about Silicon Valley's complicity is this horror story is much murkier, much
more like the dark transit area in Sheremetyo airport where Vladimir Putin's spooks are monitoring Snowden's every movement.
Silicon Valley's fetish with radical transparency, with encouraging us to broadcasting everything we do and think, is destroying our
privacy. And without privacy, I warn, our individuality, the very thing that defines us as unique human-beings, is fatally compromised.
Snowden's fate, whether he ends up in Ecuador or Guantanamo or stays in Sheremetyo airport, is to be watched by spooks for the rest of
his life. Snowden, the "free man" in Putin's doublespeak, will never truly be alone again.
To avoid becoming Edward Snowden, we need to be much more critical of the invasiveness of Silicon Valley's big data companies. We
must recognize the creepiness of all-seeing location devices like Google Glass. Most of all, we need to remember that the Internet is never
really private so our most intimate thoughts are best kept to ourselves.
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Visibility is a trap. Remaining free in our digital age requires us to be alone. We have to teach the internet how to forget. We must build
an off-switch to the internet, to reinvent it as a dark space, a place where nobody can know what anyone else is doing.
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Wiretapping Bad – Privacy
Grossman, non-staff member of the cato institute/ u.s. Policymaker in washington, june 4, 2009
(andrew, “the state secret protection act: unnecessary, unconstitutional, and undemocratic”, 6-04-09, heritage foundation,
http://www.heritage.org/research/testimony/the-state-secret-protection-act-unnecessary-unconstitutional-and-undemocratic)
The misnamed state secret protection act of 2009 (h.r. 984) is dangerous, in terms of both its effect on national security and the violence it
would do to the constitutional separation of powers. Congress should be aware of the following key points: the state secrets privilege has
a 200 year history in the united states and has existed in essentially its present form for 135 years. It has been used by every president
since lyndon johnson, up to and including president barack obama. There is absolutely no evidence of abuse of the state secrets privilege.
Data from 1954 through 2008 show that its use is rare. In reported opinions, the privilege was asserted just seven times in 2007, and three
times in 2008. There is no evidence that the state secrets privilege is being used more frequently than in the past or in cases where it is not
needed. There is no evidence that it is being used to stifle cases on political grounds. There is no evidence that judges are unduly
deferential to the executive when it is asserted; the trend is actually in the opposite direction. The state secret protection act would force
the government to admit highly classified secrets, such as the identities of spies, in the course of litigation, putting national security at risk.
The state secret protection act would give activists a "heckler's veto" over many national security programs created by the democratic
branches of government. The state secret protection act attempts to transfer powers clearly assigned to the president to judges, in violation
of the constitution. It is unconstitutional. The state secret protection act is a cynical attempt by congress to duck tough decisions in the
national security arena--where bad decisions can have catastrophic consequences--by passing the buck to the courts. The state secrets
privilege is only one of several "immunities" that can bar litigation altogether. For example, courts have cited the speech or debate clause
to dismiss suits against members of congress and other legislators involving invasion of privacy, defamation, wiretapping, incitements to
violence, age, race, and sex discrimination, retaliation for reporting sexual discrimination, and larceny and fraud. The modern application
of the privilege was defined in a 1953 case, u.s. v. Reynolds. The reynolds framework carefully balance the sometimes harsh results of the
state secrets privilege--the exclusion of relevant evidence or dismissal of a claim altogether--with the genuine needs of u.s. national
security. Seven separate requirements, including department of justice review and "personal consideration" by high-ranking federal
officials, ensure that the state secrets privilege is used only when necessary to protect national security. My name is andrew grossman. I
am senior legal policy analyst at the heritage foundation. The views i express in this testimony are my own, and should not be construed
as representing any official position of the heritage foundation. My testimony this afternoon concerns the misnamed state secret protection
act of 2009 (h.r. 984, "sspa"), which would regulate, and in some cases prohibit, the federal government's invocation of the state secrets
privilege to prevent the disclosure of sensitive national security information and programs in civil litigation. The sspa is dangerous, in
terms of both its direct effect on national security and the violence it would do to the constitutional separation of powers, and i thank the
subcommittee for holding this hearing and considering my testimony on the consequences of this legislation. As i will explain, members
of congress should be wary of the sspa for three reasons. First, it is unnecessary because there is no evidence of abuse of the state secrets
privilege. Second, it raises serious constitutional concerns, particularly as regards the article ii duties assigned to the president. Third, the
legislation can be seen as a cynical attempt by congress to evade its constitutional duty to make tough decisions about our national
security, and this abdication puts the nation's safety at risk. For these reasons, congress should resist succumbing to pressure from political
partisans and activists to force the disclosure of closely held national security information in civil lawsuits. I. No evidence of abuse on the
terms of the justifications offered by its supporters, the sspa is unnecessary. Contrary to repeated claims by civil liberties groups and
others, recent use of the state secrets privilege is not different in kind or quantity than in the past. Despite more attention paid to the
privilege in recent years--largely as a result of political opposition to the policies of the george w. Bush administration and their embrace
by the obama administration--the strong accountability mechanisms built into it continue to guarantee that it is not overused or otherwise
abused. To understand this point requires some understanding of the privilege's historical pedigree. Though usually discussion of the state
secrets privilege begins with the supreme court's 1953 decision in united states v. Reynolds[1], that approach presents a pinched view of
the privilege's history and scope--and perhaps this is deliberate. The privilege's first acknowledgement in the law of the united states--or at
least the first in written reports uncovered by modern scholars--is typically accredited to chief justice john marshall, who referred
obliquely to executive privilege in marbury v. Madison and, while riding circuit, to an intelligence-based privilege in the trial of aaron
burr for treason. In the former case, marshall allowed that while attorney general levi lincoln could not be "obligated" to disclose "any
thing [that] was communicated to him in confidence," the fact whether the disputed commissions had been found in the office of the
secretary of state the disposition of the commissions "could not be a confidential fact," thereby relegating marshall's brief description of
the privilege to dicta.[2] marshall elucidated that privilege's application to secret communications and intelligence while presiding over
the treason trial of aaron burr. Burr sought to admit a letter from general james wilkinson, an essential witness against him, to president
jefferson, over the government's objection that the letter "contains matter which ought not to be disclosed."[3] the balancing of a party's
need with the necessity of government secrecy in certain matters "present a delicate question," explained marshall--one "which, it is
hoped, will never be rendered necessary in this country."[4] yet again, marshall sidestepped the need for such balancing, because
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"certainly nothing before the court which shows that the letter in question contains any matter the disclosure of which would endanger the
public safety."[5] but "if it does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to
disclose, such matter...will, of course, be suppressed."[6] in such a case, said marshall, "much reliance must be placed on the declaration
of the president."[7] and, marshall made clear, "the propriety of withholding it must be decided by [the president], not by another for
him."[8] though the issue was made moot when jefferson, pressed to make a decision, consented to admission of the letter "excepting such
parts as he deemed he ought not to permit to be made public,"[9] this formulation, as well as its rationale, would greatly influence the
reynolds court. The issue would next arise in u.s. courts in the matter of totten v. United states, the supreme court's 1875 decision which,
though brief, merits careful consideration. Totten, heir to one william lloyd, brought an action against the united states claiming that lloyd
had entered into a contract with president lincoln to ascertain troop placements in the south and "other information as might be beneficial"
to the north during the civil war.[10] such a contract would ordinarily be binding, justice field explained for the court, but not in the
circumstances presented by this particular case: "the service stipulated by the contract was a secret service; the information sought was to
be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed."[11] on
the basis of these facts, the court propounded two rules, quite intertwined, one narrow and one broad. The narrow rule, that offered in
most discussions of the case,[12] is simply that no suit may require disclosure of a spy's employment by the government. This was not
framed as a privilege but as an absolute bar to litigation. Without such a bar, "whenever an agent should deem himself entitled to greater
or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of
dealings with individuals and officers, might be exposed, to the serious detriment of the public."[13] as the court explained, "a secret
service, with liability to publicity in this way, would be impossible."[14] it is thus an implied term of such contracts that the very act of
suing for compensation is a breach of contract that defeats recovery. Yet it is the broader rule, though less discussed by academics, which
has proven more influential to the development of the law. Put simply: it may be stated as a general principle that public policy forbids the
maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself
regards as confidential, and respecting which it will not allow the confidence to be violated.[15] among these confidential matters are
those typically covered by the various privileges, such as between a husband and wife or patient and physician. But, said the court, "much
greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a
contract of that kind is itself a fact not to be disclosed."[16] thus, in some circumstances relating to national security, lawsuits that would
inevitably disclose state secrets, such as a spy relationship, are simply barred, because their very existence "is itself a fact not to be
disclosed" and disclosure would be "a detriment to the public."[17] the court would affirm this rule's vitality in reynolds[18] and
subsequently reaffirm it in a 2005 case.[19] by 1875, then, the basic contours of the law were set. In cases where parties sought to
subpoena or otherwise introduce state secrets, the courts would exclude materials that the executive determined to be "imprudent" to
disclose, in effect giving the executive a privilege to protect certain information from disclosure. And lawsuits that, at their core, concern
secret government relationships and activities, such as spy contracts, would simply be barred as non-justiciable. Even at this early date,
the state secrets "privilege" was not strictly a privilege in every case; sometimes it would be a "threshold question" that could defeat a
claim at the outset of the case. Understood in this historical context, reynolds was less a revolution than a refinement, one that began the
task of regularizing invocation and application of the privilege with respect to modern civil procedure. The case was brought under the
federal tort claims act (ftca) by the widows of three civilians killed in the crash of an air force bomber testing "secret electronic
equipment."[20] the government refused to disclose its post-accident report, arguing that disclosure would, according to an affidavit of the
judge advocate general of the air force, hamper "national security, flying safety, and the development of highly technical and secret
military equipment."[21] the district court resolved the case in the plaintiffs' favor after the government declined to present the report for
ex parte, in camera inspection.[22] the third circuit affirmed, holding that the ftca had waived any privilege that the government might
have had.[23] in an opinion by justice vinson, the supreme court expounded a new framework for invocation of the privilege, drawing
freely from legal precedent: the privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.[24]
of this final step, the court provided some elucidation by analogy to the privilege against self-incrimination, as described by justice
marshall during the burr trial. A court should consider "all circumstances of the case" in determining whether "there is a reasonable
danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be
disclosed."[25] but once the court has reached that determination, "the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone,
in chambers."[26] courts thus have significant flexibility and discretion in determining whether the government's use of the privilege is
appropriate, but their inquiry is limited, with great focus, to that question alone. It also recognizes that in some instances, particular
evidence will pose such a significant and obvious danger to national security that even in camera review is inappropriate. (after all, among
other concerns, very few judges review evidence in secured rooms, encased in reinforced concrete and with doors that seal, designed to
prevent eavesdropping or outright theft.[27]) the necessity of the evidence to the party seeking to admit it is also a relevant consideration.
"[t]he showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking
the privilege is appropriate."[28] the district court, explained the supreme court, should have been satisfied with the government's
assertion alone, for the plaintiffs' need was tempered by the availability of alternative evidence on the same factual allegations. This is not,
however, a balancing test, weighing necessity against risk. The court was careful to explain that no showing of necessity, no matter how
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great, may overcome a determination that the privileges was properly asserted.[29] at most, great necessity may prompt a judge to
scrutinize the basis of the assertion more closely. It is worth, at this point, a brief historical detour. Some have argued, in recent years, that
the declassified accident report proves that the privilege was asserted unnecessarily and improperly in reynolds--in other words, that there
was no risk at all that giving the report to the plaintiffs or court would have risked disclosing national security secrets. Courts that have
examined this issue directly, however, reject that claim. After finding the declassified report, heirs of those killed in the crash brought suit
against the united states in 2003, alleging that the air force had misrepresented the nature of the information contained in the report and
thereby committed fraud on the court by improperly asserting the privilege.[30] a district court and the third circuit directly considered the
issue of whether the government officers asserting the privilege had committed perjury; both courts rejected the accusation.[31] the courts
found that the report contained extensive technical information about the b-29 bomber, as well as details about the electronic equipment (a
classified experimental radar system) that was being tested.[32] as the district court explained, "details of flight mechanics, b-29 glitches,
and technical remedies in the hands of the wrong party could surely compromise national security."[33] in short, in this much-assailed
case, history has confirmed that the assertion of the privilege was appropriate. Since reynolds, the courts have done little more than flesh
out its approach. One notable development was judicial embrace of the analogy of foreign intelligence gathering to the construction of a
mosaic: "thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling
clarity how the unseen whole must operate."[34] this view counsels strong deference to the executive's assertion of the privilege because
"what may seem trivial to the uninformed [e.g., a judge], may appear of great moment to one who has a broad view of the scene and may
put the questioned item of information in its proper context."[35] another notable development was the taxonomy of possible dispositions
of a case in which the privilege has been asserted[36]; these are incorporated into the discussion below. Most importantly, the courts built
up a body of case law that would provide guidance in evaluating assertions of the privilege. The reynolds framework can be seen as a
deliberate effort to balance the harsh reality of the state secrets privilege--the exclusion of relevant, and perhaps determinative, evidence
or dismissal of a claim altogether--with the genuine needs of u.s. national security. It ensures that assertion of the privilege comports with
procedural due process as it is practiced today and, to the extent it intrudes on substance, provides a check against abusive assertions. This
dual nature--protecting procedural and substantive rights--is evident in the long list of requirements and protections that, post-reynolds,
must be satisfied to ensure that the privilege is not "lightly invoked." first of all, the privilege may be invoked only by the united states,
and not by a private litigant. This requirement alone greatly circumscribes the potential for abuse, as relatively few civil cases touch upon
national security or classified matters. Second, the privilege may not be asserted by a line attorney or even supervising attorney but only
by the head of the department that has control over the matter, usually an agency head. This requirement ensures that the decision to assert
the privilege will be subject to more extensive review, by more individuals and at higher levels of responsibility. It is analogous to the
similar requirements in the foreign intelligence surveillance act (fisa) that high-ranking officials, such as the attorney general and national
security advisor, certify that applications made to the fisa court meet the exacting requirements of the law.[37] indeed, recognizing the
value of independent certifications made by high-ranking officials, paired with precise judicial review, congress greatly increased the
fisa's reliance on this mechanism in the fisa amendments act of 2008.[38] third, it must be formally invoked. This requires a separate
determination of the propriety of invoking the privilege by the department of justice, which is charged with conducting litigation for the
united states and supervising litigation carried out by the government.[39] an agency head, acting alone, generally cannot assert the
privilege without the concurrence of the department of justice. This ensures not only additional levels of review and accountability, but
also that the proposed assertion of the privilege will be evaluated by legal and security specialists who will ensure that the united states
uses the privilege in a consistent fashion that promotes national security over any agency's parochial interests. Department of justice
lawyers are also especially attentive to identifying and rejecting weak claims that might ultimately undermine the privilege, providing
another check against overuse of the privilege and its assertion in cases in which it is not necessary. Fourth, the department head asserting
the privilege must undertake "actual personal consideration" of the matter, just as justice marshall ruled was required of the president in
the burr trial. For a high-ranking official, typically carrying great responsibility, this is a significant and potentially burdensome
requirement, demanding that he or she personally review the evidence or matter at issue and produce a declaration (or several in cases
where classified and unclassified declarations are required) explaining, to the satisfaction of the court, why disclosing the evidence at
issue would endanger national security. Typically, both requests and declarations will be reviewed by agency counsel and mid-level
officials.[40] only then are declarations signed and filed--under the penalty of perjury. Fifth, after many levels of executive-branch review,
the "court itself must determine whether the circumstances are appropriate for the claim of privilege"--that is, whether the government has
demonstrated that there is a "reasonable danger" disclosure would harm national security.[41] reynolds counsels that the privilege is not to
be "lightly accepted" and that the showing of necessity of the party seeking to compel the evidence "will determine how far the court
should probe" in determining whether the privilege is appropriate.[42] this inquiry may even include examination of the evidence at issue
in camera.[43] only when a claim is not supported by necessity will assertion of the privilege, with nothing more, suffice to invoke it.
That, however, is a rare occurrence because, as explained by carl nichols, former deputy assistant attorney general in the civil division of
the department of justice, the government's disclosures to the court are typically extensive: in making its determination, moreover, a court
often reviews not just the public declarations of the executive officials explaining the basis for the privilege, but also classified
declarations providing further detail for the court's in camera, ex parte review. One misperception about the state secrets privilege is that
the underlying classified information at issue is not shared with the courts, and that the courts instead are simply asked to dismiss cases
based on trust and non-specific claims of national security. Instead, in every case of which i am aware, out of respect for the judiciary's
role the executive branch has made available to the courts both unclassified and classified declarations that justify, often in considerable
detail, the bases for the privilege assertions.[44] in a recent opinion, in a case that aroused no little controversy due to the government's
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assertion of the state secrets privilege, the ninth circuit professed itself "satisfied that the basis for the privilege is exceptionally well
documented."[45] among the evidence filed by the government for in camera review was the complete document which it sought to
protect from disclosure.[46] in reaching its decision to affirm the exclusion of the document, the court relied on "[d]etailed statements,"
including classified information, that "underscore that disclosure of information concerning the sealed document and the means, sources
and methods of intelligence gathering in the context of this case would undermine the government's intelligence capabilities and
compromise national security."[47] sixth, the court, if it upholds assertion of the privilege, must decide what effect that decision has on
the case before it. Assertion of the state secrets privilege does not, in theory and in fact, necessarily result in the dismissal of a case. As in
reynolds, the case may be able to proceed, just without the privileged evidence. In others cases, where the evidence is crucial, it will not.
This is no different than the application of any other privilege that results in the exclusion of evidence. For example, the attorney-client
privilege protects communications between criminal defendants and their lawyers that would be extremely to government prosecutors; in
some instances, without this evidence, prosecutors are unable to bring charges. Another example is the speech or debate clause, which
grants members of congress a testimonial privilege under which they "may not be made to answer questions" no matter the gravity of the
claim involved.[48] it should not be controversial, then, when cases are not allowed to proceed for the same reasons that apply in other
contexts. This generally occurs when, once the privileged evidence has been excluded, the plaintiff is simply unable to establish a prima
facie case. This is the same as summary judgment following invocation of the doctor-patient or attorney-client privilege. But the state
secrets "privilege" is, as described above, sometimes more than a privilege, because it protects against the disclosure of secret facts, rather
than just the use of certain evidence in court. For example, it is no violation of the doctor-patient privilege to prove the factual matters
confessed to a psychiatrist by other means--e.g., an invoice or an email; under the state secrets "privilege," however, the very facts
themselves may be off-limits. This would include, for example, lawsuits based on covert espionage agreements.[49] in the reynolds
court's words, cases are simply non-justiciable when "the very subject of the action...was a matter of state secret."[50] or as formulated in
totten: "[p]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure
of matters which the law itself regards as confidential."[51] this is, as in totten and tenet v. Doe, a complete bar on litigation. It is also, as
the supreme court explained in tenet, a "threshold question," like abstention, that a court may resolve before it even addresses
jurisdiction.[52] yet this seemingly harsh result is not unusual in the law. For example, the speech and debate clause, another of the
constitution's means to affect the separation of powers[53], renders members of congress, as well as their staff and invited witnesses,
completely "immune from suit" for a wide variety of conduct that is "within the sphere of legitimate legislative activity."[54] on this
ground, the courts have dismissed claims of invasion of privacy,[55] slander and libel,[56] civil rights violations,[57] wiretapping,[58]
incitements to violence,[59] violations of first amendment rights,[60] age discrimination,[61] racial discrimination,[62] sexual
discrimination,[63] retaliation for reporting sexual discrimination,[64] larceny and fraud,[65] and mccarthyism.[66] qualified immunity,
as well, has a similar effect, shielding government officials from immunity for violations of civil rights and ending cases before the
plaintiff has had an opportunity to conduct discovery.[67] as the supreme court has explained, this is so because "broad-ranging discovery
and the deposing of numerous persons...can be peculiarly disruptive of effective government."[68] in addition, dismissal or summary
judgment may be mandated when the assertion of the privilege denies the defendant a complete defense to the claim.[69] this remedy may
be available only when the court, through its review of affidavits and other materials to resolve the privilege claim, is also satisfied that
the defense is availing.[70] any other result "would be a mockery of justice," observed one court.[71] thus, outside the core of the state
secrets privilege--that is, lawsuits specifically targeted at national security secrets--a judge exercises his or her usual discretion in
determining whether a case will proceed, providing yet another procedural check on assertion of the privilege. Only when a lawsuit moves
from the periphery to the core of clandestine operations is this discretion limited--for example, wholesale challenges to government
intelligence programs. This is as it should be, considering the purpose of the privilege. The objects of these suits should usually be
pursued, if at all, through the political process. Seventh and finally, as with other privileges, assertions of the state secrets privilege are
appealable and are usually reviewed de novo by the courts of appeal.[72] this means that the appellate court accords the trial court's
application of the standard no deference whatsoever and considers the issue anew. Aggrieved appellants thus have the opportunity for a
second bite at the apple, to correct any legal errors, such as undue deference to the government's assertion, the trial court may have made.
Further, in some cases, appellate courts have taken the unusual step of reconsidering factual determinations made at the trial court
level[73]; when this occurs, the appellant is essentially afforded a second trial--and a second opportunity to defeat aspects of the factual
basis underlying the assertion of the privilege. As this exercise makes clear, the requirements of the reynolds framework provide
extensive protections against abusive or improper assertions of the state secrets privilege and afford adverse parties significant
opportunity to challenge both its invocation and its effect. The evidence supports this conclusion. One source of evidence is quantitative
analysis of cases. It is difficult, of course, to provide an exact count of the number of cases in which the privilege has been at issue,
because not all cases result in published opinions. It is possible, however, to catalogue all published opinions adjudicating assertions of
the privilege. Robert chesney did this in a 2007 article, providing an appendix listing all such opinions since reynolds through 2006.[74]
the data collected in that useful article disproves many of the claims made about the state secrets privilege, particularly those concerning
its use during the george w. Bush administration. As should be expected, given the procedural hurdles and checks, assertion of the state
secrets privilege is rare. From 1954 through 2006, the privilege was adjudicated in 89 cases.[75] most of these cases concern intelligence
operations; a few concern each of military technology, military contracts, and diplomatic communications. In most, but not all, the
assertion of the privilege was upheld. This demonstrates that the government uses the privilege only sparingly, when necessary, and that
courts are willing to push back when they doubt its application. A few trends in the usage of the privilege are visible, though the paucity
of cases prevents confident analysis. Assertion of the privilege was rare until the early 1970s, when cases became more frequent, reaching
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a peak in 1982. This rise coincided somewhat with popular concern over the government's domestic intelligence activities--the subject of
many of these cases--and dissipated as reforms engineered by the executive and congress branch reined in excesses. There was another
surge in the early 1990s, and then one beginning in 2004, about two years into the war on terrorism and around the time that the media
began to report on classified programs. The final year of chesney's study, 2006, witnessed seven assertions of the privilege in published
opinions--a seemingly low number but, in fact, a new high. Despite claims to the contrary, the privilege was not claimed more frequently
by the bush administration. At least through 2006, chesney concludes, the data "does not support the conclusion that the bush
administration chooses to resort to the privilege with greater frequency than prior administrations"--that is, the rate of assertion of the
privilege relative to the amount of litigation implicating classified national security programs is little changed.[76] this is a more
appropriate measure than just counting the number of cases because, unlike with prosecutions, the government does not control the
number of civil cases filed that implicate state secrets. Indeed, the more irresponsible and obviously barred suits that are filed, the more
the government will be forced to assert the privilege. I attempted to replicate chesney's methodology to provide data for the years 2007
and 2008. Federal courts, i found, issued seven reported opinions adjudicating the state secrets doctrine in 2007, and just three in 2008-for ten in total.[77] by comparison, the government contractor defense was adjudicated in more than twice as many published opinions
over the same period. One reason for the decrease between 2007 and 2008 may be the aggregation of several lawsuits challenging national
security agency programs in one court, perhaps resulting in fewer total opinions. This result and chesney's data are strong evidence that
the privilege is asserted only rarely and that it is rarely, if ever, misused. After all, cases demonstrating misuse or inappropriately harsh
results, such as dismissal based on a peripheral connection to national security, are those more likely to be contested and appealed,
whether by the government or the party against whom the privilege has been asserted. Such cases, then, are disproportionately likely to
result in published opinions. Similarly, activist litigation intended to alter government policies or strike down government programs are of
some public interest, receive significant coverage in the media, and are often aggressively litigated. These too are more likely to result in
appeals and published opinions. There is also no evidence that the privilege is being asserted with respect to different kinds of subject
matter than it was in the past. Chesney's data show that surveillance programs were the subject of extensive litigation in the 1970s and
1980s, resulting in some assertions of the privilege.[78] the other regular subjects of cases in which the privilege was asserted during that
period were employment and contractual disputes within the military and the intelligence agencies and cases risking the disclosure of
purely technical information, such as the operation of stealth aircraft technology.[79] the data, concludes chesney, "does not support the
conclusion that the bush administration [was] breaking new ground with the state secrets privilege" in terms of subject matter.[80] the
2007 and 2008 data do not alter that conclusion. Five of the opinions were in cases challenging nsa intelligence programs.[81] two
concerned "extraordinary rendition."[82] two concerned the valerie plame affair and her attempt to collect damages from the federal
government, as well as other defendants, for the disclosure of her identity.[83] (neither of the plame opinions directly adjudicated an
assertion of the privilege but both considered it relevance to a bivens inquiry.) The remaining case concerned allegations that a cia agent
stationed in rangoon, burma, had tapped the phone of a drug enforcement administration agent also stationed there.[84] there is also no
evidence that the government has sought harsher remedies, such as dismissal, more often than in the past. Indeed, the government sought,
and received, dismissal in the first state secrets case decided after reynolds in 1954 and has sought dismissal regularly since the early
1970s.[85] roughly, the bush administration sought dismissal or summary judgment in 70 percent of the cases in which it asserted the
privilege through 2006. The clinton administration sought dismissal or summary judgment in 55 percent. Both were more likely to seek
summary disposition in cases relating to intelligence policy and employment disputes involving classified programs. The bush
administration simply faced a higher proportion of these suits, leading it to seek summary disposition in a slightly higher proportion of
cases. There is also no evidence that the courts have accorded inappropriate deference to executive assertions of the privilege in recent
years. In cases with reported opinions, courts granted the government's requested relief 83 percent of the time during the clinton
administration. Through 2006, courts granted the bush administration its requested relief 65 percent of the time; many of the rejections
were in cases alleging warrantless domestic surveillance. Including the data from 2007 and 2008 reduces the bush administration's "win
rate" to just 60 percent. And in its first few months, the obama administration has racked up a single loss, in the ninth circuit[86], and a
looming loss (several procedural issues are disputed) in district court.[87] if anything, the courts have become less deferential to executive
assertions of the privilege. Finally, the privilege has been embraced by the obama administration as a necessary tool to protect national
security. This should come as no surprise, despite the charged rhetoric of the 2008 presidential campaign; the privilege has been used by
every presidential administration since the johnson administration asserted it in 1967 to block discovery concerning warrantless
surveillance by the fbi. (that assertion was rejected by the court.) The new administration declined to change course in mohamed, a suit
challenging the cia's "extraordinary rendition" program; the government lawyer responding to insistent questions from a ninth circuit
judge stated that the position had been "thoroughly vetted with the appropriate officials within the new administration" and that "these are
the authorized positions."[88] in al-haramain, a suit by an islamic charity accused of funding terrorism challenging an intelligence
program, the obama administration stated, in a motion challenging the court's refusal to sustain its assertion of the privilege, that the
"disclosure of classified information ... Would create intolerable risks to national security."[89] the administration has stated that, if the
court orders it to disclose details about the program to the charity, it will appeal swiftly.[90] it is significant that president barack obama,
who as a candidate was so critical of the bush administration's use of the privilege[91], has come to agree that, in some cases, its use is
necessary and legitimate. To summarize this review of cases applying the privilege, there is no evidence that the state secrets privilege-quite separate from the underlying legal doctrines that implicate the merits of any case--has been abused or misused during the bush
administration or, more broadly, at all. There is no evidence that the privilege is being used frequently or in cases where it is not needed,
no evidence that it is being used to stifle cases on political grounds, and no evidence that judges are unduly deferential to the executive
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when it is invoked. The fact that some cases concerning government policies have been bounced out of court by the privilege is both
unexceptional (assertion of any privilege may, in some cases, defeat a claim) and appropriate--many of these cases, had they been allowed
to proceed, would quite obviously have exposed secrets that would put u.s. national security at risk. Finally, the privilege has been
employed sparingly by all administrations since lyndon johnson was in office, including the current administration, demonstrating that
protecting state secrets from disclosure is not, and should not be, a partisan or ideological issue. This would seem to defeat any argument
in favor of substantively limiting or procedurally hobbling the state secrets privilege, such as the sspa would do. The act would radically
alter the privilege, placing a much higher--and at times, insurmountable--burden on the government to protect national security
information that, in other contexts, is protected by strict laws and regulations carrying heavy criminal penalties for their violation.[92] in
general, the act would require the government to disclose all evidence it claims is privileged to the court and then prove that public
disclosure of each piece of evidence "would be reasonably likely to cause significant harm to the national defense or diplomatic relations
of the united states"--a higher standard than that articulated in reynolds. Gone would be reynold's sliding scale approach based on
necessity, replaced with a mandate that the court personally review every bit of evidence, no matter the obviousness of the consequences
of disclosure, the lack of necessity, or the risk of interception during proceedings, as acknowledged by the court in reynolds. Counsel for
all parties would be presumptively authorized to participate in proceedings concerning the privilege--at least one hearing would be
required. The court would accord government officials and experts no deference at all on national security matters, thereby requiring
judges to determine weighty matters of national security policy and classification. Further, in every case, whether or not the privilege is
sustained, dismissal or summary judgment would be forbidden until the party against whom the privilege has been upheld "has had a full
opportunity" to complete discovery and litigate the issue or claim to which the privileged material is relevant.[93] this would essentially
overturn totten, forcing the government to admit highly classified secrets, such as the identities of spies, in the course of litigation. It
would also force the government to submit to "broad-ranging discovery" that itself would be "disruptive of effective government,"
particularly national defense.[94] it is difficult to see how these changes could cut down on abuse or misuse of the state secrets privilege,
because, as described above, none has been documented. It is clear, however, that the act would cause the government to lose more often
on the privilege issue and to expend greater effort, and disclose more information, even when it is able to prevail. The effect would be
particularly harsh in totten-style cases, in which the government would face the unattractive choice of being uncooperative and losing (by
default or on summary judgment) or actually litigating, which would itself confirm the existence of secret relationships and programs.
One would expect the government to settle most cases or lose on default judgment, and this strategy would encourage a flood of litigants,
some of them with frivolous claims that the government could not challenge lest it disclose state secrets merely by doing do. This would
not be, in any way, an improvement over current law--quite the opposite. The most significant effect, however, may be in activist lawsuits
challenging government programs, which would be difficult or impossible to settle without shutting down large portions of our national
security infrastructure. The only choice, then, would be to litigate, at considerable expense in terms of dollars and distraction. Because the
government would lose more often--as a result of the act's heightened standard and inordinately complex procedural requirements--the
courts would play a major role in making national security policy by disclosing details about, and effectively ending, programs that have
been authorized by the president and congress. This would give activists a "heckler's veto" over many national security programs created
by the democratic branches of government, to which such powers are textually committed in the constitution. This consequence is
discussed further below. Finally, it is likely that the act's procedures would result in the inadvertent disclosure of closely held national
security information. This too is discussed below. Far from being necessary, the sspa would endanger national security. It offers no
apparent benefits, other than the possibility, attractive to some, that activists with unpopular ideas could use it to achieve an end-run
around the democratic process on issues relating to national security. Ii. Serious constitutional concerns the sspa raises serious
constitutional concerns by altering a privilege that has a constitutional dimension. Unlike most other privileges, which are supported
solely by the common law or statutory law, the state secrets privilege is grounded in the powers committed to the president in article ii of
the constitution. Congress's undisputed power to codify or even abrogate common-law privileges by statute cannot extend to altering to
the constitution's assignments of authority and responsibility. Because it would radically restrict the authority of the president to safeguard
military and diplomatic secrets and intelligence, the act is likely unconstitutional. As the supreme court explained in c & s airlines v.
Waterman s.s. corp., courts simply lack the constitutional authority and the expertise to make certain types of decisions that are assigned
to the executive: the president, both as commander-in-chief and as the nation's organ for foreign affairs, has available intelligence services
whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information,
should review and perhaps nullify actions of the executive taken on information properly held secret. Nor can courts sit in camera in order
to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are wholly confided by our constitution to the political departments of the government,
executive and legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the judiciary has
neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial
intrusion or inquiry.[95] this is not merely a prudential limitation on judicial power, but a bar to its exercise altogether. The courts both
should not and "could not" second guess such decisions.[96] justice potter stewart provides a compelling explanation for the constitution's
investiture of this narrow but absolute band of power in the executive, and concomitant narrow and absolute bar on judicial discretion: [i]t
is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both
confidentiality and secrecy. Other nations can hardly deal with this nation in an atmosphere of mutual trust unless they can be assured that
their confidences will be kept. And within our own executive departments, the development of considered and intelligent international
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policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in
confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.[97] the court confirmed
and elucidated the c & s airlines rule in u.s. v. Nixon, in which it rejected the president's claim of executive privilege.[98] nixon's
assertion of the privilege fell short, explained the court, because "[h]e does not place his claim of privilege on the ground they [the
materials sought] are military or diplomatic secrets."[99] "as to those areas of art. Ii duties," the opinion continues, the courts have "shown
the utmost deference to presidential responsibilities."[100] put plainly, "to the extent this interest [a president's interest in confidentiality]
relates to the effect discharge of a president's powers, it is constitutionally based."[101] in such cases, said the court, the rule in reynolds
applies: "the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers."[102] the sspa seemingly ignores this clear jurisprudence and constitutional imperative,
running roughshod over the separation of powers. Whereas reynolds required a court to determine only whether the executive had
properly asserted the privilege--i.e., that it had complied with the requisite procedures and that the assertion concerned a matter assigned
to the executive, as determined by the deferential "reasonable power" standard--the act would require courts to "determine whether the
privilege claim is valid" by reviewing, for itself, all of the evidence asserted to be privileged and then determining "whether the harm
identified by the government...is reasonably likely to occur should the privilege not be upheld."[103] in this inquiry, the court "shall
weigh testimony from government experts in the same manner as it does, and along with, any other expert testimony," including that from
other parties' experts or experts appointed by the court.[104] in this way, the act attempts to transfer a power clearly assigned to the
executive to the courts. Under the act, even when a matter falls clearly within the executive's constitutional purview, and clearly outside of
the judiciary's, the executive's assertion of the need for confidentiality would be afforded no deference at all, nullifying the executive's
power to maintain secrecy in state affairs. This is directly contrary to c & s airlines, nixon, and dept. Of the navy v. Egan, in which the
court explained that the president's "authority to classify and control access to information bearing on national security...flows primarily
from this constitutional investment of power [art. Ii, § 2] in the president and exists quite apart from any explicit congressional
grant."[105] because the state secrets privilege is raised only by the executive and only (rather axiomatically) in cases that the executive
determines threaten to reveal state secrets, a determination which is assigned to the executive, the act would be "unconstitutional in all of
its applications," easily satisfying the most stringent test for facial invalidity.[106] further, the sspa may also impermissibly intrude on the
judicial authority conferred in article iii of the constitution. As the supreme court observed in city of boerne v. Flores, congress lacks "the
power to establish the meaning of constitutional provisions."[107] this limitation incorporates the supreme court's constitutional
precedents: when the court has interpreted the constitution, it has acted within the province of the judicial branch, which embraces the
duty to say what the law is. When the political branches of the government act against the background of a judicial interpretation of the
constitution already issued, it must be understood that in later cases and controversies the court will treat its precedents with the respect
due them under settled principles, including stare decisis, and contrary expectations must be disappointed.[108] on this basis, the court
struck down the religious freedom restoration act ("rfra") as an impermissible intrusion on its power to interpret the constitution,
explaining "it is this court's precedent, not rfra, which must control."[109] the sspa is similar to rfra in that it purports to define the
constitution. Specifically, it would impose a rule of decision on the courts requiring them to adopt a narrow construction of presidential
power in cases where the state secrets privilege is asserted. But as in boerne, congress does not legislate on a blank slate. As discussed
above, the court has held clearly and repeatedly that the state secrets privilege is grounded in article ii of the constitution. By ignoring this
precedent, the sspa would usurp the power of the judicial branch "to say what the law is."[110] finally, several of the procedures specified
in the act also impinge on the executive prerogative described in egan. First, the court may, at its discretion, order the executive to submit
"all of the information that the government asserts is privileged" for review by the court.[111] second, the court may order the executive
to produce "an adequate substitute [for protected information], such as a redacted version, summary of the information, or stipulation
regarding the relevant facts, if the court deems such a substitute feasible."[112] third, the court may order the executive "to provide a
manageable index of the information that the government asserts is subject to the privilege."[113] fourth, the court may order the
executive to conduct a "prompt" review of any party or counsel to determine whether to provide that individual with a security
clearance.[114] fifth, the court may require that protected information be disclosed to counsel at the hearings required by the act.[115]
sixth, the court may order the executive to disclose protected information after it determines that the privilege claim is not "valid."[116]
each of these procedures would, in some or all instances, violate the executive's constitutional authority "to classify and control access to
information bearing on national security" and to "to determine whether an individual is sufficiently trustworthy to...give that person
access to such information."[117] in short, the no fewer than seven provisions of the sspa, including its core operative provision, attempt
to alter the constitutional separation of powers by reassigning powers from the executive to the judicial branch. In addition, the core
provision may also impermissibly intrude the judicial power. Outside of the constitutional amendment process specified in article v of the
constitution, congress lacks the power to affect such changes. Iii. Weakening congress and national security by altering the structural
relationship between the branches, the sspa would also allow the courts to usurp congress's power and responsibility--a result that the
most cynical members of congress may welcome for its political benefits. This, in turn, threatens to undermine the effectiveness of
national security policy, putting americans at risk.the constitutional separation of powers is no mere legal nicety but an essential bulwark
against both tyranny and impotence. The framers had experience with each of these ills, the former under british rule and the latter as
citizens of states weakly bound by the articles of confederation. Thus they created an executive energetic in foreign affairs and national
security but comparatively weak in domestic policy, recognizing that diplomacy and defense have aspects inimical to drawn-out
deliberation, particularly in public. John jay described one such need in federalist no. 64:it seldom happens in the negotiation of treaties,
of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. These are cases where the most useful
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intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will
operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions,
who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular
assembly. Further, as alexander hamilton concluded in federalist no. 74, "of all the cares or concerns of government, the direction of war
most peculiarly demands those qualities which distinguish the exercise of power by a single hand."thus, proposals which make exercise of
this kind of executive power contingent on the approval of another branch sacrifice these advantages, as well as the accountability of the
president for foreign affairs and national security. Not all matters relating to foreign entanglements and defense are, of course, strictly
executive affairs. In many, congress plays an essential role in legislating programs that draw on its powers for the executive to carry out
and in appropriating funds to these programs. And it is congress, of course, that is responsible for declaring war, defining the laws of war,
and raising and supporting armed forces.[118] this raises a question: what is sacrificed when this legislative power and responsibility is
transferred to another branch, in this case the judiciary? Perversely, that would be one of the consequences of the sspa. This is because the
state secrets privilege enforces the separation of powers not just between the executive and the judiciary, but also between congress and
the judiciary. By limiting judicial discretion in certain fields, it protects congressional policymaking in those fields. Broadly speaking, this
is but one example of a textual commitment made to the legislative branch, the exercise of which should be and usually is met with the
utmost judicial deference. In many instances, these powers are shared, in whole or in part depending on context, with the executive.[119]
thus, the courts should not, and usually will not, adjudicate matters that are "political questions," a subset of the larger class of matters
committed to the legislature, the executive, or both of the political branches. By impinging on the executive's ability to carry out programs
that demand stealth and secrecy, the sspa (if not struck down as unconstitutional) would allow the courts to intrude on matters that would
otherwise be outside of the powers committed to the judiciary. Courts would have the power to expose and effectively end or at least
hinder all manner of intelligence and national security programs approved by congress that rely, in any measure, on stealth or secrecy.
Even when the court ultimately rules that an assertion of the state secrets privilege was "valid," the damage of exposure will already have
been done. In this way, the act would empower courts, and private parties bringing cases before them, to make policy that had previously
been the exclusive domain of the political branches. This proposition is not far-fetched. As described above, many of the lawsuits in
which the government asserts the state secrets privilege concern intelligence and national security programs, some of which have been
specifically authorized by congress and some of which have proceeded under more general legislative authority with congress's
acquiescence.[120] several of these lawsuits, launched and litigated by activist groups that have failed to convince congress to adopt their
agendas, are intended to end or significantly restrict these programs. The act would facilitate these efforts, enabling activists to make an
end-run around congress's legislative process.a totten-style case presents a simple example. Assume that the most recent intelligence
authorization bill, passed by congress and signed by the president, permits the central intelligence agency to conduct human intelligence
activities in foreign states. Assume, as well, that congress has also funded this program in its most recent appropriations bill. A single
overseas agent or informant would be empowered, under the act, to extract "graymail" from the agency by threatening to reveal aspects of
its human intelligence program through litigation.[121] the agency would face a choice: it could either pay (through a settlement or
default judgment) and thereby make itself a target for identical threats from scores of sources and employees, or it could fight the lawsuit,
effectively acknowledging aspects of its program, including the existence of an intelligence relationship. In either case, potential
informants are likely to regard the cia with great wariness, for fear that their identities could be disclosed in litigation or by association
with the disclosure of another. The human intelligence program, authorized and funded by congress and carried out by the executive,
would be effectively shut down by judicial interference. As this simple hypothetical demonstrates, the direct consequences to national
security of disclosing state secrets could be immense. But they are also straightforward and so need not be dwelled upon. Less obvious,
but no less pernicious, are the indirect consequences. The benefit of congress's deliberative process, as concerns any number of
intelligence and national security programs, would be undermined, as the courts upset carefully crafted balances hashed out in
congressional committee and on the floor before being wrought into law. If such programs are to be ended or scaled back, it should be
congress, which legislates over a far broader canvas than any court hearing a particular case, that should do it, relying on its understanding
of the nation's needs and the appropriate means of satisfying them. The courts, considering the law case by case, simply lack the
institutional expertise and resources to make policy. The result, in all likelihood, would be worse policy that does not strike the
appropriate balance between national security, individual rights, expense, efficacy, and all the other factors that congress considers in
writing legislation the other indirect effect, premised on cynicism, could do far more damage to congress and our representative
democracy. In recent years, members of congress have been accused for their unwillingness to intervene in controversial actions carried
out by the executive branch. Some of these activities, such as certain aspects of foreign intelligence collection, may be beyond congress's
power to affect. Others, however, are not. This latter group includes the bush and obama administration's use of funds earmarked for
financial institutions to bail out and then purchase general motors and chrysler; the federal reserve's bank bailouts; the aig bailout; the cia's
use of "enhanced interrogation techniques" including waterboarding; surveillance programs that intercept some communications that are
arguably domestic in nature; and the use of national security letters. In each case, congress held multiple hearings and many members of
congress expressed their criticism, often in harsh, accusatory tones. In none, however, did congress pass legislation significantly curtailing
the executive's discretion or rescinding the statutory authority upon which the executive relied. The sspa takes this cynicism to a new level.
It would allow congress to duck tough decisions in the national security arena--where bad decisions can have catastrophic consequences-by passing the buck to the courts. These are the same courts that have already come under criticism from the majority party in congress
for upholding state secrets claims and thereby declining to invalidate programs that congress itself could eliminate with a single bill. The
act would take the pressure off of congress to check executive overreaching, while giving members still more targets to criticize in
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overheated floor statements. This result, pushing contentious matters out of the realm of debate, would be politically safe--which no doubt
explains its attraction to some members--but absolutely poisonous to the american politic. Rather than attempt to alter the constitutional
separation of powers so as to evade responsibility for government actions and omissions, congress should confront these issues directly
and forthrightly. Iv. The greater public good "dismissal is a harsh sanction," the fifth circuit observed in one state secrets case. "but the
results are harsh in either direction and the state secret doctrine finds the greater public good--ultimately the less harsh remedy--to be
dismissal."[122] congress should not sacrifice this greater good to ameliorate the unfortunate plight of the very few who suffer a harsh
remedy under the law. The sspa would have that effect, putting the nation and its citizens at risk to aid the undemocratic efforts of
activists who have been unable to sway congress to adopt their risky policies. The act, however, offers an indirect approach--shifting
controversial and contentious issues to the courts--thereby promising to shield congress from deserved opprobrium for allowing our
nation's security to be placed at risk. This legislation is cynical. It is also unconstitutional and completely unnecessary to remedy any
genuine ill. Congress should look past the parochial interests of those who would use the courts to make policy, as well as political
expediency, and focus on the greater public good.
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Wiretapping Bad – Privacy
Lewis, gordon mckay professor of computer science in the school of engineering and applied sciences at harvard university, 10-08-08
(harry, “how far can government go to track your private messages”, 10-08-08, lexisnexus)
We use e-mail for everything from business negotiations to quick i-love-yous. Because e-mail resembles a telephone conversation, we too
often assume it's private. It's not. Just ask sarah palin. A college student recently broke into her yahoo e-mail account with frightening
ease; he boasted that it took just 45 minutes using wikipedia and google to find the answers to yahoo's security questions about her birth
date, zip code and where she met her husband. But break-ins are hardly the only threat to our e-mail privacy.who can see your e-mail ?
Even en route ? Is a complicated question, made more uncertain by a recent court decision. First, your office e-mail is governed by
whatever rules your company decides. For example, harvard university, where i work, states that e-mail "may be accessed at any time by
management or by other authorized personnel for any business purpose." businesses need to be able to investigate fraud, but such
sweeping authorizations create opportunities for abuse. What about government searches? Let's start with the easy case. If you go to china
and e-mail or instant message from your hotel room, the chinese government may read your content. It's scanned for "security" purposes ?
The government is looking for discussions of tibetan independence, perhaps. You may never notice anything, or you may mysteriously
lose your internet connection. It recently came out that china monitors and censors text messages among skype users ? A canadian
research group uncovered more than 166,000 censored messages. Could such surveillance happen in the united states? The fourth
amendment states: "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause."you might think that means the government can't
clandestinely search your e-mail, but it doesn't. You may not even know suppose you use gmail or yahoo! Mail. If the government wants
to see your e-mail, it can have the warrant served on that company. Of course, the service provider has to respond to the warrant, just as
you would if the feds came to your house. The difference is that the company decides whether to resist the court order, not you. You are
supposed to be informed within 90 days, but in practice you may never know. E-mail stored elsewhere really isn't yours. In 2005, the new
york times exposed a program of "warrantless wiretapping" of communications, including e-mail between individuals in the united states
and foreign countries. Congress codified the legality of some such searches in 2007 and again this summer. In a word, the rules change
when "terrorism" is invoked as a justification. If the government demands your e-mail using a national security letter, your service
provider is prohibited from telling you. Searching e-mail as it crosses the u.s. Border is perhaps analogous to inspecting a laptop carried
into the united states. Customs officials can inspect (and confiscate) your possessions; arguably they should also be able to search your email ? Though under antiterrorism legislation, the eavesdropping can happen without your knowledge. Non-terror-related snooping what
about purely domestic e-mail surveillance without a warrant? The terrorist surveillance program processes domestic e-mail in cooperation
with internet service providers; the electronic frontier foundation has taken the government to court. But eavesdropping occurs even for
non-terror-related crimes. As part of the investigation of one steven warshak, yahoo turned over his e-mail to federal agents, who had not
gotten a warrant. A lower court threw out the evidence, but on july 11, a federal appeals court allowed it to stand. The court didn't say that
there was no constitutional issue, only that the case had enough other complexities that a fourth amendment ruling about e-mail would be
premature. A minority of the court was not satisfied with that technical dodge, and stated in its blistering opinion, "heaven forbid that we
should intrude on the government's investigatory province and actually require it to abide by the mandates of the bill of rights. I can only
imagine what our founding fathers would think of this decision. If i were to tell james otis and john adams that a citizen's private
correspondence is now potentially subject to unannounced searches by the government without a warrant supported by probable cause,
what would they say? Probably nothing, they would be left speechless."so as of today, we don't know whether the government can search
your e-mail without a warrant, as happens routinely in china. My advice? Be careful putting secrets in e-mail. Use encryption software,
some of which is free. And urge congress to act on e-mail privacy. Harry lewis is a professor of computer science at harvard university
and fellow of the berkman center for internet and society. With hal abelson and ken ledeen, he is coauthor of "blown to bits: your life,
liberty, and happiness after the digital explosion."
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Wiretapping Bad – Privacy
Diffie and Landau, consulting professor at CISAC and Senior Staff Privacy Analyst at Google, 2009
(Whitfield and Susan, “Communications Surveillance: Privacy and Security at Risk”, 06-30-14, EBSCOHOST, NV)
In 2005
the New York Times revealed that the U.S. government had been wiretapping communications
to and from the U.S. without a warrant. After the passage of FISA, NSA (National Security
Agency), America’s foreign-intelligence eavesdroppers, had been forbidden to listen in on radio
communications inside the U.S. without a warrant unless at least one end of the communication
was outside the country and the internal end was not a targeted “U.S. person.” Interception of purely
domestic communications within the country always required a warrant. As more messages came to
travel by fiber-optic cable and fewer by radio, NSA was forced to turn to other, not necessarily legal,
approaches.
Curiously, the greatest threat to privacy may not be snooping on people but snooping on things.
We are moving from a world with a billion people connected to the Internet to one in which 10 or
100 times that many devices will be connected as well. These range from the much-discussed smart
refrigerator that knows when it is time to order more milk to RFID (radio-frequency identification) tags
in products that enable the tracking of where the goods are located before, and perhaps after, retail
sale. Particularly in aggregation, the information reported by these devices will blanket the world with
a network whose gaze is difficult to evade. The future of privacy will depend on a combination of legal
and technical measures by which device-to-device communications are protected.
It is not just privacy that is at risk under the new regime, it is security as well. National security is
much broader than simply enabling intelligence and law-enforcement investigations. Although
undertaken in the name of national security, building wiretapping into our telecommunications
system may be a greater threat to that security than the spies and terrorists against whom it is aimed.
First and foremost, information security means protecting public and private computing and
communications systems against attacks from both inside and outside. It was the need for that
type of protection that caused the European Union in 1999 and the U.S. government in 2000 to
relax their export controls on strong cryptography, a change that bolstered the security of Internet
communications.
A network may be designed to provide security to its individual users against everything except
authorized intrusions by the network itself, a plausible goal for a DoD (Department of Defense)
network. Such a model requires centralization of authority that is possible for DoD, and might have PRIVACY
been possible for the Internet in 1985—when it was a U.S. project—but is not feasible now.
The Internet has become essential to modern life. Business and personal communications—and
even critical infrastructure—rely upon the network to function. Yet the combination of attacks on the
network and on network hosts means that we are increasingly reliant upon an unreliable network.
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Wiretapping Bad – Privacy
Wu, professor at Columbia Law School, senior advisor to Federal Trade Commision, 2013
(Tim, “Wiretapping the Web”, 6-30-14, The New Yorker, JMM)
“While it is easy to dislike government surveillance in the abstract, the case for tapping becomes extremely strong when facing the actual
investigation of a serious crime, like a murder, a planned terrorist attack, or a powerful criminal organization”
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Wiretapping Bad – Freedom
Allowing wiretapping in one instance opens a floodgate of governmental surveillance
Schubert 10, Joseph Schubert Yahoo! Contributor Network “Public Surveillance Pros and Cons” Dec-6-2010
http://voices.yahoo.com/public-surveillance-pros-cons-7284444.html DOA 7-1-13 SH
The "slippery slope" effect is what we need to watch out for. When the citizens under watch are completely desensitized to their lack of
security caused by the public surveillance, it will be easier for the government to take even more of the freedom and privacy from its
people. This is even more likely if the surveillance camera networks in London become more successful in tracking and preventing crime.
Cities all over the world will look to it as an example and officials will want to put their own systems in place, using London's successful
drop in crime to gain support of voters and government. London has an extreme case of surveillance, as well as all of Britain with its 4.2
million CCTV cameras, but it is one of the growing number of cities with these networks put into place and operating.
We cannot be sure what stance the world will take on public surveillance in the future, but we can already see that it is met with some
resistance and some invitation. We know that we need to be cautious when our privacy and rights are concerned, and we know that we
need to be weary when giving our governments more power over them.
Privacy and security are two separate ideas that have gone hand in hand, but in this age of rapid advance in technology and information,
the two seem to be in a tug-of-war with one another. With cameras lurking, the government monitoring phone calls and email messages,
and laws changing to accommodate these acts, we can hardly assume we have any privacy when we leave our homes when we are far
from guaranteed privacy within them. Bruce Schneier, security technologist and author writes, "We've been told we have to trade off
security and privacy so often ... that most of us don't even question the fundamental dichotomy. But it's a false one" (Security vs. Privacy)
Schneier mentions the terrorist attacks on 9/11/01, an event like many others that has lead to the fear many people hold about their safety
and security, and may be a headlining cause to why many American citizens would sacrifice their privacy for the feeling of security
promised by the government wanting more power to watch its people closer. We are not guaranteed privacy in this country, though many
states have laws in place to control and place limits on surveillances such as audio and video recording.
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Wiretapping Bad – Foreign Relations – EU
Wiretapping undermine relations with EU
Levs & Schoichet 13 Josh Levs and Catherine E. Shoichet are CNN Correspondent, “Europe furious, ‘shocked’ by report of U.S.
Spying,” 7-1-13, CNN, http://www.cnn.com/2013/06/30/world/europe/eu-nsa/index.html, DOA: 7-1-13, PK
European officials reacted with fury Sunday to a report that the U.S. National Security Agency spied on EU offices.
The European Union warned that if the report is accurate, it will have tremendous repercussions.
"I am deeply worried and shocked about the allegations," European Parliament President Martin Schulz said in a statement. "If the
allegations prove to be true, it would be an extremely serious matter which will have a severe impact on EU-US relations. On behalf of
the European Parliament, I demand full clarification and require further information speedily from the U.S. authorities with regard to
these allegations."
Bush on Snowden: He damaged the country Still looking for Edward Snowden Deal offered for Snowden's return Obama covers his
bases on Snowden
German Justice Minister Sabine Leutheusser-Schnarrenberger "said if the accusations were true, it was reminiscent of the Cold War,"
ministry spokesman Anders Mertzlufft said, adding that the minister "has asked for an immediate explanation from the United States."
French Foreign Minister Laurent Fabius called for a swift explanation from American authorities.
"These acts, if they are confirmed, would be absolutely unacceptable," he said in a statement.
The outrage from European officials over the weekend was the latest fallout since Edward Snowden, a former National Security Agency
computer contractor, started spilling details of U.S. surveillance programs to reporters earlier this month.
Citing information from secret documents obtained by Snowden, the German news magazine Der Spiegel reported Sunday that several
U.S. spying operations targeted European Union leaders.
Der Spiegel said it had "in part seen" documents from Snowden that describe how the National Security Agency bugged EU officials'
Washington and New York offices and conducted an "electronic eavesdropping operation" that tapped into a EU building in Brussels,
Belgium.
The magazine's report also says that NSA spying has targeted telephone and Internet connection data in Germany more than any other
European nation. An average of up to 20 million phone connections and 10 million Internet data connections are surveyed daily, Der
Spiegel said, noting that the intensity of surveillance puts the U.S. ally on par with China, Iraq and Saudi Arabia.
Another report Sunday claimed that surveillance extended beyond European offices.
The Guardian newspaper reported that one NSA document leaked by Snowden describes 38 embassies and missions as "targets" and
details surveillance methods that include planting bugs in communications equipment and collecting transmissions with specialized
antennae.
Targets included France, Italy, Greece, Japan, Mexico, South Korea, India and Turkey, according to The Guardian.
CNN has not independently confirmed the allegations in the reports from Der Spiegel and the Guardian.
U.S. officials did not immediately respond to the Guardian's report. The Office of the Director of National Intelligence declined to
comment Sunday on specific allegations published in Der Spiegel.
"The United States government will respond appropriately to the European Union through our diplomatic channels, and through the
EU/U.S. experts' dialogue on intelligence that the U.S. proposed several weeks ago," the office said in a statement. "We will also discuss
these issues bilaterally with EU member states. While we are not going to comment publicly on specific alleged intelligence activities, as
a matter of policy, we have made clear that the United States gathers foreign intelligence of the type gathered by all nations."
Ben Rhodes, White House deputy national security adviser for strategic communications, said he had not seen the report and "would not
comment on unauthorized disclosures of intelligence programs. The intelligence community would be the most appropriate to do that."
Rhodes added that "those are some of our closest intelligence partners, so it's worth noting that the Europeans work very closely with us.
We have very close intelligence relationships with them."
Father proposes deal for Snowden's voluntary return
U.S. asks Ecuador to reject any asylum request from Snowden
Michael Hayden, a former director of the NSA and CIA, told "Face the Nation" on CBS on Sunday morning that he didn't know whether
the report was true.
"I've been out of government for about five years, so I really don't know, and even if I did, I wouldn't confirm or deny it," he said. "But I
think I can confirm a few things for you here this morning. Number one, the United States does conduct espionage. Number two, our
Fourth Amendment, which protects Americans' privacy, is not an international treaty. And number three, any European who wants to go
out and rend their garments with regard to international espionage should look first and find out what their governments are doing."
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European Union spokeswoman Marlene Holzner, in a e-mail to CNN, said, "We have immediately been in contact with the U.S.
authorities in Washington D.C. and in Brussels and have confronted them with the press reports. They have told us they are checking on
the accuracy of the information released yesterday and will come back to us."
In Brussels, Der Spiegel says, the agency targeted the Justus Lipsius Building, which houses the European Council and the EU Council of
Ministers, the union's main decision-making and legislative body.
And in Washington, the magazine report claims, the NSA installed bugs in the European Union's building and infiltrated its computer
network.
Der Spiegel's report comes as negotiations for a trans-Atlantic trade agreement between the United States and the European Union are set
to start next month in Washington.
Obama: Pay no attention to that man we can't capture
Snowden has revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the
e-mail and Internet traffic of virtually all Americans.
Critics slam him as a traitor. Supporters hail him as a hero.
Now Snowden, who faces espionage charges in the United States, is in Russia and seeking asylum from Ecuador.
U.S. Vice President Joe Biden asked Ecuador "to please reject" the request for asylum, according to Ecuadorian President Rafael Correa.
"That's not acceptable," WikiLeaks founder Julian Assange told ABC's "This Week" on Sunday.
Assange, whose organization facilitates the release of classified documents and is assisting Snowden's asylum bid, said he couldn't reveal
details about the former NSA contractor's specific location or the status of his case. He criticized U.S. officials for pressuring Ecuador on
the matter.
"Asylum is a right that we all have. It's an international right. The United States has been founded largely on accepting political refugees
from other countries and has prospered by it. Mr. Snowden has that right," said Assange. "Ideally, he should be able to return to the
United States. Unfortunately, that's not the world that we live in and hopefully another country will give him the justice that he deserves."
Former Cuban leader Fidel Castro weighed in on Sunday. In a letter to Nicaraguan President Daniel Ortega published in Cuban state
media, Castro praised Ecuador's president for standing up to U.S. threats over Snowden.
On Saturday night, Correa said the ball was in Russia's court.
"We didn't ask to be in this situation. Mr. Snowden has been in touch with Mr. Assange, who recommended he ask for asylum in Ecuador.
In order to process this request, he needs to be in Ecuadorian territory," Correa said in an interview with Ecuador's Oromar TV on
Saturday night. "At this point, the solution for Snowden's final destination is in the hands of the Russian authorities."
Russian President Vladimir Putin has said it's up to Snowden to figure out his next step.
"The sooner he selects his final destination point, the better both for us and for himself," Putin said.
A top Russian lawmaker said Sunday that Russia must not hand Snowden over to the United States.
"It's not a matter of Snowden's usefulness to Russia, it's a matter of principle," Alexei Pushkov -- who heads the international affairs
committee at the Duma, the lower house of parliament -- said on Twitter.
"He is a political refugee and handing him over is morally unacceptable," he said.
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Wiretapping Bad – Foreign Relations – Germany
Germany opposes wiretapping
Traynor 13 Ian Traynor, Ian Traynor is the Guardian's European editor. He is based in Brussels, “NSA spying row: bugging friends is
unacceptable, warn Germans” 7-1-13, theguardian, http://www.guardian.co.uk/world/2013/jul/01/nsa-spying-allegations-germany-usfrance, DOA: 7-1-13, PK
Martin Schulz, the president of the European parliament, likened the NSA to the Soviet-era KGB and indirectly suggested a delay in the
talks.
Greens in the European parliament, as well as in France and Germany, called for the conference to be postponed pending an investigation
of the allegations. They also called for the freezing of other data-sharing deals between the EU and the US, on air transport passengers
and banking transactions, for example, and called for the NSA whistleblower, Edward Snowden, to be granted political asylum in Europe.
French Greens asked Hollande to grant Snowden asylum in France.