1ac – 702
Advantages
1ac – NSA overreach
Contention 1 – NSA overreach
Executive Order 12333 authorizes foreign surveillance, but the NSA is using it to
exploit loopholes to create backdoor access for wholly domestic
communications
Arnbak and Goldberg 14- cybersecurity and information law research at the Institute for
Information Law, LL.M degree from Leiden University, A Competitive Strategy and Game Theory degree
from London School of Economics University of Amsterdam; Associate professor in the Computer
Science Department at Boston University, phD from Princeton University, B.A.S.c from University of
Toronto (Axel and Sharon, “Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance
on Americans by Collecting the Network Traffic Abroad”, Working Paper, June 27, 2014)//TT
Legal Loopholes. In Section 2 we start by describing the current U.S. regulatory framework for
intelligence gathering. From public and until-recently secret primary legal sources, three regimes can be
distinguished, based on where the surveillance is conducted, and who it targets:
1. Surveillance of domestic communications conducted on U.S. soil under s.215 of the “Patriot Act”;
2. Surveillance of foreign communications conducted on U.S. soil under the “Foreign Intelligence
Surveillance Act”; and
3. Surveillance conducted entirely abroad under “Executive Order 12333” (EO 12333) and its
minimization policies, notably U.S. Signals Intelligence Directive 18 (“USSID 18”). USSID 18 was drafted
and approved within the Executive branch with minimal Congressional or Judicial oversight.
The first two regimes are overseen by all three branches of the U.S. government, and currently under
scrutiny by the government, media and the general public. The third regime, however, is solely the
domain of the Executive branch and has largely been ignored by the public and other branches of
Government in recent months, especially since relevant legal documents related to EO 12333 remain
classified or redacted. However, according to the N.S.A., this third regime under EO 12333 is the
‘ primary legal authority ’ for its operations [5, p. 2-3]. Thus, it deserves more attention and careful
scrutiny.
Working with primary legal sources, many of which have only recently been made public and are still
redacted on key issues, we make the following central observation. A surveillance operation falls within
the EO 12333 regime when it presumes two connected criteria: it does not intentionally target a U.S.
person, and is conducted abroad. If an intelligence agency can construct plausible presumptions that
these two criteria have been meet, then the permissive legal regime under EO 12333 can be applied to
the surveillance operation. The surveillance is then considered to affect non-U.S. persons, and 4th
Amendment protections can thus be circumvented even if the operation primarily affects Americans .
Our main hypothesis is therefore that there is loophole for surveillance on Americans from abroad
resulting from the following interdependence: (1) the complete absence of legal protection for non-U.S.
persons under the U.S. regulatory framework [32,33] creates ‘foreignness’-presumptions under EO
12333 and (2) the technical realities of modern Internet communications.
Technical Loopholes. At first blush, one might suppose that a surveillance operation conducted abroad
should have no impact on the privacy of Americans. However, in Section 3 we discuss why the technical
realities of the Internet mean that American’s network traffic can easily be routed or stored abroad,
where it can then be collected under the permissive legal regime of EO 12333. Indeed, we already know
of surveillance programs that have exploited this legal loophole . The revealed MUSCULAR/TURMOIL
program, for example, illustrates how the N.S.A. presumed authority under EO 12333 to acquire traffic
between Google and Yahoo! servers located on foreign territory; this program allegedly collected up to
180 million user records per month abroad, including those of Americans [17].
We also discuss other technical means an intelligence agency can exploit the legal loopholes under EO
12333. Instead of eavesdropping on intradomain traffic (i.e., data sent within a network belonging to a
single organization, as in the MUSCULAR/TURMOIL program), these loopholes can be exploited in the
interdomain setting, where traffic traverses networks belonging to different organizations. We explain
why interdomain routing with BGP can naturally cause traffic originating in a U.S. network to be routed
abroad, even when it is destined for an endpoint located on U.S. soil . We also discuss why core
Internet protocols – BGP and DNS – can be deliberately manipulated to force traffic originating in
American networks to be routed abroad . We discuss why these deliberate manipulations fall within
the permissive EO 12333 regime, and how they can be used to collect, in bulk, all Internet traffic
(including metadata and content) sent between a pair of networks; even if both networks are located
on U.S. soil (e.g., from Harvard University to Boston University).
The perception that the NSA is using the XO 12333 back-door to circumvent
section 702 is causing a global backlash against US tech companies and driving
data localization
Eoyang, 14 - Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left
think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a
subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as
Chief of Staff to Rep. Anna Eshoo (D-Palo Alto) (“A Modest Proposal: FAA Exclusivity for Collection
Involving U.S. Technology Companies” Lawfare, 11/24, http://www.lawfareblog.com/modest-proposalfaa-exclusivity-collection-involving-us-technology-companies
Beyond 215 and FAA, media reports have suggested that there have been collection programs that
occur outside of the companies’ knowledge. American technology companies have been outraged about
media stories of US government intrusions onto their networks overseas, and the spoofing of their web
pages or products, all unbeknownst to the companies. These stories suggest that the government is
creating and sneaking through a back door to take the data . As one tech employee said to me, “the
back door makes a mockery of the front door .”
As a result of these allegations, companies are moving to encrypt their data against their own
government; they are limiting their cooperation with NSA; and they are pushing for reform. Negative
international reactions to media reports of certain kinds of intelligence collection abroad have resulted
in a backlash against American technology companies , spurring data localization requirements ,
rejection or cancellation of American contracts, and raising the specter of major losses in the cloud
computing industry. These allegations could dim one of the few bright spots in the American economic
recovery: tech.
Without commenting on the accuracy of these media reports, the perception is still a problem even if
the media reports of these government collection programs are not true---or are only partly true . The
tech industry believes them to be true , and more importantly, their customers at home and abroad
believe them to be true, and that means they have huge impact on American business and huge impact
as well on the relationship between these businesses and an intelligence community that depends on
their cooperation.
So, how should we think about reforms in response to this series of allegations the Executive Branch
can’t, or won’t, address? How about making the FAA the exclusive means for conducting electronic
surveillance when the information being collected is in the custody of an American company? This could
clarify that the executive branch could not play authority shell-games and claim that Executive Order
12333 allows it to obtain information on overseas non-US person targets that is in the custody of
American companies, unbeknownst to those companies.
As a policy matter, it seems to me that if the information to be acquired is in the custody of an American
company, the intelligence community should ask for it, rather than take it without asking . American
companies should be entitled to a higher degree of forthrightness from their government than foreign
companies, even when they are acting overseas. Under the FAA, we have a statutory regime that
creates judicial oversight and accountability to conduct electronic surveillance outside the US for
specific purposes: foreign intelligence (or traditional espionage), counter-terrorism, and prevention of
WMD proliferation. It addresses protections for both non-US and US persons. It creates a front-door ,
though compelled, relationship under which the intelligence community can receive communications
contents without individual warrants but with programmatic judicial oversight.
FAA exclusivity would say to the rest of the world that when the US conducts bulk electronic
surveillance overseas, we are doing so for a particular, national security purpose. The FAA structure with
FISC review provides an independent check that the statutory purposes are met. Through transparency
agreements with the government, the American companies are able to provide their customers with
some sense of how many requests are made.
The US needs to draw a sharp distinction between domestic and national
security surveillance to make the US Internet Freedom agenda credible –
otherwise global internet fragmentation will result
Fontaine, 14 – President of the Center for a New American Security; was foreign policy advisor to
Senator John McCain for more than five years; Worked at the State Department, the National Security
Council and the Senate Foreign Relations Committee; was associate director for near Eastern affairs at
the National Security Council; B.A. in International Relations from Tulan University (Richard, “Bringing
Liberty Online; Reenergizing the Internet Freedom Agenda in a Post-Snowden Era”, Center for a New
American Security, September 18, 2014, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf)//TT
The 2013 revelations of mass surveillance by the U.S. government transformed the global debate about
Internet freedom. Where once Washington routinely chided foreign governments and their corporate
collaborators for engaging in online censorship, monitoring and other forms of Internet repression, the
tables have turned. Edward Snowden, a former National Security Agency (NSA) contractor, leaked
thousands of documents revealing America’s most secret electronic surveillance programs, unleashing a
tidal wave of criticism and charges of hypocrisy, many directed at some of the very U.S. officials who
have championed online freedom.
America’s Internet freedom agenda – the effort to preserve and extend the free flow of information
online – hangs in the balance .1 Already a contested space, the Internet after the Snowden revelations
has become even more politically charged, with deep international divisions about its governance and
heated battles over its use as a tool of political change. With 2.8 billion Internet users today, and several
billion more expected over the next decade, the contest over online freedom grows more important by
the day.2 As an ever-greater proportion of human activity is mediated through Internet-based
technologies, the extent of online rights and restrictions takes on an increasingly vital role in political,
economic and social life.3
Despite the many complications arising from the Snowden disclosures, America still needs a
comprehensive Internet freedom strategy, one that tilts the balance in favor of those who would use the
Internet to advance tolerance and free expression, and away from those who would employ it for
repression or violence.4 It will need to pursue this strategy while drawing a sharp distinction between
surveillance for national security purposes (in which all governments engage) and monitoring as a
means of political repression (which democracies oppose). This is not an easy task, but it is an important
one. More than a year after the first Snowden revelations emerged, now is the time to reenergize the
Internet freedom agenda.
Internet Freedom before Snowden The U.S. government’s explicit pursuit of Internet freedom began
during the Bush administration’s second term. Among other steps, the establishment of the State
Department’s Global Internet Freedom Task Force aimed to coordinate efforts to promote Internet
freedom and to respond to online censorship.5 Building on this foundation, Secretary of State Hillary
Rodham Clinton made the expansion of online rights a major focus of U.S. foreign policy in the first
Obama term. Speaking in 2010, she cited Franklin Delano Roosevelt’s Four Freedoms and added a fifth,
the “freedom to connect – the idea that governments should not prevent people from connecting to the
Internet, to websites or to each other.”6 A year later, she pledged America’s “global commitment to
Internet freedom, to protect human rights” – including the rights to expression, assembly and
association – “online as we do offline.”7 And after the Arab Spring, the United States in 2011 established
the Freedom Online Coalition, a collaboration of 23 countries to coordinate efforts to expand global
Internet freedom.8
The U.S. government has backed up its words with resources. Since 2009, the State Department and
other government agencies have spent more than $125 million on Internet freedom programming.9 In
addition to the State Department’s efforts, other government agencies, including the Broadcasting
Board of Governors, the U.S. Agency for International Development, the Defense Advanced Research
Projects Agency and others, fund the development and deployment of tools aimed at expanding
Internet freedom. These programs invest in technologies that allow users to circumvent firewalls so as
to access censored material, communicate outside the watchful eye of autocratic regimes, secure their
websites and data, link computers in decentralized mesh networks, and establish new Internet
connections when existing ones have been cut.10 It supplements the provision of technology with
training programs in dozens of countries.
The Obama administration also took regulatory steps to promote Internet freedom, particularly after
technology demonstrably facilitated the 2009 Green Revolution in Iran and the 2011 Arab Spring. The
Treasury Department relaxed restrictions on the export of Internet-related software and services to Iran,
explicitly to “foster and support the free flow of information to individual Iranian citizens.”11 Two years
later, the White House issued an executive order that imposed sanctions on individuals who engaged in
computer and network disruption, monitoring and tracking on behalf of the governments of Iran or
Syria.12
The United States has aimed to promote the free flow of online information through diplomatic action
as well. State Department diplomats pressure repressive regimes to loosen their Internet restrictions,
free imprisoned bloggers and ensure that citizens can express themselves online without fear of
punishment. U.S. government officials have engaged in significant dialogue with U.S. and multinational
technology companies about their involvement in aiding Internet repression and in establishing
transparency standards. American diplomats have also pressed for Internet freedom in the proliferating
international fora that have taken up the issue. In 2012, for instance, the United States won approval of
a U.N. Human Rights Council resolution affirming that freedom of expression and other rights that
people have offline must also be protected online.13 Trade agreements have provided yet another
vehicle for the U.S. Internet freedom agenda with, for example, hortatory language in the U.S.-Korea
Free Trade Agreement calling for the free flow of online information.14
A key element of U.S. action has been aimed at preventing fundamental changes to the
multistakeholder model of Internet governance, which brings together individuals, governments, civil
society organizations, private firms and others for transparent and consensus-based decisionmaking.15
One such challenge arose at the December 2012 World Conference on International
Telecommunications, when 89 countries – a majority of ITU members in attendance – supported an
attempt by Russia, China, Iran and others to give governments greater control over the Internet.16
Despite opposition from the United States and others, the session ended with 89 countries signing the
revised treaty; 55 other countries did not. As a sign of what may come in future international treaty
negotiations, such numbers did not favor the multistakeholder model, and this was so even before the
Snowden revelations emerged to complicate U.S. efforts.
The Snowden Fallout and the Internet Freedom Agenda
The dramatic revelations about NSA spying that began to emerge in June 2013 provoked a storm of
international reaction.17 Political leaders expressed outrage at American surveillance practices and
threatened a raft of retaliatory measures. President Dilma Rousseff of Brazil cancelled a planned state
visit to the United States and the Brazilian government later organized an international meeting
(NetMundial) to discuss the future of Internet governance.18 German Chancellor Angela Merkel was
deeply affronted by the alleged monitoring of her personal cellphone. Chinese and other officials
charged America with blatant hypocrisy. The fallout affected the private sector as well; where previously
the focus of many observers had been on the aid given by U.S. companies to foreign governments
engaged in Internet repression, the gaze shifted to the role American corporations play – wittingly or
not – in enabling U.S. surveillance. Countries that had been the target of American reproaches rebuked
the U.S. government for what they saw as hypocrisy.
The United Nations and other international venues became platforms for international criticism of the
United States. Germany and Brazil together sponsored a resolution adopted by the U.N. General
Assembly in late 2013 backing a “right to privacy” in the digital age.19 In June 2014, the U.N. High
Commissioner for Human Rights issued a report that endorsed digital privacy as a human right and
criticized mass surveillance as “a dangerous habit rather than an exceptional measure.”20 Some
European officials began to question the existing Internet governance model itself. In a statement, the
European Commission said, “Recent revelations of large-scale surveillance have called into question the
stewardship of the US when it comes to Internet Governance. So given the US-centric model of Internet
Governance currently in place, it is necessary to broker a smooth transition to a more global model.”21
Nongovernmental groups that might otherwise be partners with the U.S. government in promoting
Internet freedom reacted sharply as well. Reporters Without Borders, for instance, listed the NSA as an
“Enemy of the Internet” in its 2014 report on entities engaged in online repression. Drawing no
distinction between surveillance aimed at protecting national security and surveillance intended to
suppress free expression and political dissent, the organization declared the NSA “no better than [its]
Chinese, Russian, Iranian or Bahraini counterparts.”22 Mass surveillance methods used by democracies
like the United States, it added, are “all the more intolerable” as they “are already being used by
authoritarian countries such as Iran, China, Turkmenistan, Saudi Arabia and Bahrain to justify their own
violations of freedom of information.”23 Tim Berners-Lee, the inventor of the World Wide Web, said,
“Mass surveillance is the most immediate threat to the open Internet and the most insidious because
we can’t see it.”24 The Electronic Frontier Foundation asserted that “mass surveillance is inherently a
disproportionate measure that violates human rights,”25 and officials with Human Rights Watch
observed that the surveillance scandal would render it more difficult for the U.S. government to press
for better corporate practices and for companies to resist overly broad surveillance mandates. “Now,”
its chief researcher said, “the vision and credibility of the U.S. and its allies on Internet freedom is in
tatters.”26
The reactions to the Snowden disclosures threatened to go beyond verbal denunciations, diplomatic
protests and critical press. The most serious commercial fallout came in the rising support for data
localization requirements . Russia in July 2014 approved legislation that requires data operators to store
the personal data of its citizens within the country’s borders.27 Indonesia, Brazil and Vietnam have also
called for their citizens’ data held by companies such as Facebook to be stored domestically.28 Data
localization has been debated in the European Parliament and elsewhere on the continent as well.29
Apart from the chilling effect on innovation and the loss of business to America companies, Internet
freedom itself could become a casualty of such mandates. If a user’s data must be held within the
borders of a repressive country, its government will have new opportunities to censor, monitor and
disrupt online information flows.
Such moves, combined with increasing questions about the multistakeholder approach to Internet
governance (and possible support for a governmentdriven approach), together give rise to concerns
about the potential “Balkanization” of the Internet, in which a constellation of national-level systems
could take the place of the current global online infrastructure. As former NSA general counsel Stewart
Baker warned, “The Snowden disclosures are being used to renationalize the Internet and roll back
changes that have weakened government control of information.”30
This is evident in other proposed steps as well. Brazil and the European Union have announced plans for
an undersea cable that would route data transmissions directly between Europe and Latin America and
bypass the United States.31 The European Union threatened to suspend the Safe Harbor data-sharing
agreement with the United States and promulgated new rules for it that EU officials said stemmed
directly from worries after the Snowden disclosures.32
Data localization will end internet freedom and cause global democratic
rollbacks
Hill, 14 – Internet Policy at U.S. Department of Commerce (Jonah, “The Growth of Data Localization
Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business Leaders”, The Hague
Institute for Global Justice, Conference on the Future of Cyber Governance, 2014 , May 1, 2014,
SSRN)//TT
Free Expression and Internet Freedoms Are Not Well Served
Most troubling of all the potential harms of data localization is its effect on free expression and Internet
freedom. This is ironic, in that to many of its advocates, data localization is a remedy to the threat posed
by the NSA to free expression and Internet freedom. I suggest that the opposite is actually true, that the
“remedy” only serves to make the danger greater.
The Internet and other online media have become indispensable tools for individuals to communicate
globally, and have furthered individual participation in the political process, increased transparency of
governmental activities, and promoted fundamental rights. Data localization, by centralizing control
over digital infrastructure, can diminish this capacity in a number of ways. As was discussed above, data
localization as a local server or local data storage requirement can limit freedom by permitting countries
more easily to collect information on their citizens (through domestic surveillance). It allows a
government more quickly and effectively to shut down Internet services (usually via legal threats to local
Internet service providers) that the government believes is abetting unwanted political opposition. 115
Data localization mandates also can obstruct Internet freedom in other, indirect ways. Restricted
routing, in particular, is problematic, because it is not technically possible as the existing Internet is
designed or organized. Unlike the telephone network, the Internet operates under a model known as
“best effort delivery,” where data is delivered to its destination in the most efficient manner possible,
without predetermined routes. For instance, data sent from the United States to Botswana will attempt
to travel along the shortest and most direct route possible. However, if there is a bottleneck along the
shortest route, a packet may find a longer but more expeditious route. This is a core feature of the
Internet that makes network congestion easy to navigate around. In order to restrict data routing to
specific geographies as governments are advocating, all Internet routers that are currently programmed
to follow this “best effort” routing model would have to be reconfigured to prohibit data from one
country from moving through the territory of “prohibited” countries. Moreover, since Internet
addresses are not always assigned according to a specific geography, the Internet’s addressing system
currently would have to be dramatically altered as well. Thus, the Border Gateway Protocol (one of the
core Internet networking protocols), the Internet’s routing tables (the address books by which routers
send data), and the process by which IP addresses are allocated, would all have to be modified. Such an
undertaking would require a fundamental overhaul not only of the Internet’s operating structures, but
also of the governance structures by which those structures are implemented and standardized.
These are not just arcane concerns of those involved in Internet governance, although they surely are
matters that greatly trouble those who favor an efficient and interoperable Internet. These alterations in
the way the Internet works will, I believe, materially restrict the power of the Internet to support free
expression. These modifications to these core characteristic of the current Internet – modifications that
localization would require – may result in intelligence agencies acquiring a previously unavailable
capacity to assess where data had originated and where it was heading, because the origin and
destination information would be included in the data packet.116 A centralized governance process,
further, which would be required to change the routing protocols and IP allocation system, would give
authoritarian countries significantly more influence over how information on the Internet is regulated.
In fact, this is one of the main reasons why China, Russia, many Arab states (among others) have pushed
for tracked routing protocols in the past, 117 just as they have lobbied for a handover of the global
Internet governance system to the U.N.’s International Telecommunications Union. 118
In short, localization would require dramatic changes to the current structure of the Internet, changes
that would have adverse consequences for those who see it as a principal – if not the principal – means
of global democratization . For some, those adverse consequences would be unintended; more
chillingly, there are those who intend precisely those consequences. This would be an enormous price
to pay, particularly since the other objectives that are promoted as justifications for localization –
namely, security for communications and economic development – are illusory.
Democracy as spread by the global internet is vital to the emergence of global
publics – that’s the key to solving all existential impacts
Keane, 11 – Professor of Politics at the University of Sydney (John, “Democracy in the Age of Google,
Facebook and WikiLeaks” http://sydney.edu.au/arts/downloads/news/ALR.pdf)
Communicative abundance enables one other trend that is of life-and-death importance to the future
of democracy : the growth of cross-border publics whose footprint is potentially or actually global in
scope.
The Canadian Scholar Harold Innis famously showed that communications media like the wheel and the
printing press and the telegraph had distance-shrinking effects, but genuinely globalised communication
only began (during the nineteenth century) with overland and underwater telegraphy and the early
development of international news agencies like Reuters. The process is currently undergoing an
evolutionary jump, thanks to the development of a combination of forces: wide-footprint geo-stationary
satellites, weblogs and other specialist computer-networked media, the growth of global journalism and
the expanding and merging flows of international news, electronic data exchange, entertainment and
education materials controlled by giant firms like Thorn-EMI, AOL/Time-Warner, News Corporation
International, the BBC, Al Jazeera, Disney, Bertelsmann, Microsoft, Sony and CNN.
Global media linkages certainly have downsides for democracy. Global media integration has
encouraged loose talk of the abolition of barriers to communication (John Perry Barlow). It is said to be
synonymous with the rise of a ‘McWorld’ (Benjamin Barber) dominated by consumers who dance to the
music of logos, advertising slogans, sponsorship, trademarks and jingles. In the most media-saturated
societies, such as the United States, global media integration nurtures pockets of parochialism; citizens
who read local ‘content engine’ newspapers like The Desert Sun in Palm Springs or Cheyenne's Wyoming
Tribune-Eagle are fed a starvation diet of global stories, which typically occupy no more than about 2%
of column space. And not to be overlooked is the way governments distort global information flows.
Protected by what in Washington are called ‘flack packs’ and dissimulation experts, governments
cultivate links with trusted or ‘embedded’ journalists, organise press briefings and advertising
campaigns, so framing - and wilfully distorting and censoring - global events to suit current government
policies.
All these fickle counter-trends are sobering, but they are not the whole story. For in the age of
communicative abundance there are signs that the spell of parochialism upon citizens is not absolute
because global media integration is having an unanticipated political effect: by nurturing a world stage
or theatrum mundi, global journalism and other acts of communication are slowly but surely cultivating
public spheres in which many millions of people scattered across the earth witness mediated
controversies about who gets what, when, and how, on a world scale.
Not all global media events - sporting fixtures, blockbuster movies, media awards, for instance - sustain
global publics, which is to say that audiences are not publics and public spheres are not simply domains
of entertainment or play. Strictly speaking, global publics are scenes of the political. Within global
publics, people at various points on the earth witness the powers of governmental and nongovernmental organisations being publicly named, monitored, praised, challenged, and condemned, in
defiance of the old tyrannies of time and space and publicly unaccountable power. It is true that global
publics are neither strongly institutionalised nor effectively linked to mechanisms of representative
government. This lack is a great challenge for democratic thinking and democratic politics. Global publics
are voices without a coherent body politic; it is as if they try to show the world that it resembles a
chrysalis capable of hatching the butterfly of cross-border democracy - despite the fact that we currently
have no good account of what ‘regional’ or ‘global’ or ‘cross border’ democratic representation might
mean in practice.
Still, in spite of everything, global publics have marked political effects, for instance on the suit-and-tie
worlds of diplomacy, global business, inter-governmental meetings and independent non-governmental
organizations. Every great global issue since 1945 - human rights, the dangers of nuclear war ,
continuing discrimination against women, the greening of politics - every one of these issues first
crystallised within these publics. Global publics sometimes have ‘meta-political’ effects, in the sense that
they help create citizens of a new global order. The speech addressed to ‘global citizens’ by Barack
Obama at the Siegessaule in the Tiergarten in July 2008 is a powerful case in point, a harbinger of a
remarkable trend in which those who are caught up within global publics learn that the boundaries
between native and foreigner are blurred. They consequently become footloose. They live here and
there; they discover the ‘foreigner’ within themselves.
Global publics centred on ground-breaking media events like Live-Aid (in 1985 it attracted an estimated
one billion viewers) can be spaces of fun, in which millions taste something of the joy of acting publicly
with and against others for some defined common purpose. When by contrast they come in the form of
televised world news of the suffering of distant strangers, global publics highlight cruelty; they make
possible what Hannah Arendt once called the ‘politics of pity’. And especially during dramatic media
events - like the nuclear meltdown at Chernobyl, the Tiananmen massacre, the 1989 revolutions in
central-eastern Europe, the overthrow and arrest of Slobodan Milosevic, the 9/11 terrorist attacks and
the recent struggles for dignity in Tunisia and Egypt - public spheres intensify audiences’ shared sense of
living their lives contingently, on a knife edge, in the subjunctive tense.
The witnesses of such events (contrary to McLuhan) do not experience uninterrupted togetherness.
They do not enter a ‘global village’ dressed in the skins of humankind and thinking in the terms of a
primordial ‘village or tribal outlook’. They instead come to feel the pinch of the world’s power relations;
in consequence, they put matters like representation, accountability and legitimacy on the global
political agenda, in effect by asking whether new democratic measures could inch our little blue and
white planet towards greater openness and humility, potentially to the point where power, wherever it
is exercised within and across borders, would come to feel more ‘biodegradable’, a bit more responsive
to those whose lives it currently shapes and reshapes, secures or wrecks.
A free internet is vital to combating every existential threat
Eagleman, 10 - American neuroscientist and writer at Baylor College of Medicine, where he directs the
Laboratory for Perception and Action and the Initiative on Neuroscience and Law (David, “Six ways the
internet will save civilization” Wired, 9/10,
http://www.wired.co.uk/magazine/archive/2010/12/start/apocalypse-no
Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. Usually
this results from: natural disasters, resource depletion, economic meltdown, disease, poor information
flow and corruption. But we’re luckier than our predecessors because we command a technology that
no one else possessed: a rapid communication network that finds its highest expression in the internet. I
propose that there are six ways in which the net has vastly reduced the threat of societal collapse.
Epidemics can be deflected by telepresence
One of our more dire prospects for collapse is an infectious-disease epidemic. Viral and bacterial
epidemics precipitated the fall of the Golden Age of Athens, the Roman Empire and most of the empires
of the Native Americans. The internet can be our key to survival because the ability to work
telepresently can inhibit microbial transmission by reducing human-to-human contact. In the face of an
otherwise devastating epidemic, businesses can keep supply chains running with the maximum number
of employees working from home. This can reduce host density below the tipping point required for an
epidemic. If we are well prepared when an epidemic arrives, we can fluidly shift into a self-quarantined
society in which microbes fail due to host scarcity. Whatever the social ills of isolation, they are worse
for the microbes than for us.
The internet will predict natural disasters
We are witnessing the downfall of slow central control in the media: news stories are increasingly
becoming user-generated nets of up-to-the-minute information. During the recent California wildfires,
locals went to the TV stations to learn whether their neighbourhoods were in danger. But the news
stations appeared most concerned with the fate of celebrity mansions, so Californians changed their
tack: they uploaded geotagged mobile-phone pictures, updated Facebook statuses and tweeted. The
balance tipped: the internet carried news about the fire more quickly and accurately than any news
station could. In this grass-roots, decentralised scheme, there were embedded reporters on every block,
and the news shockwave kept ahead of the fire. This head start could provide the extra hours that save
us. If the Pompeiians had had the internet in 79AD, they could have easily marched 10km to safety, well
ahead of the pyroclastic flow from Mount Vesuvius. If the Indian Ocean had the Pacific’s networked
tsunami-warning system, South-East Asia would look quite different today.
Discoveries are retained and shared
Historically, critical information has required constant rediscovery. Collections of learning -- from the
library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the
wrecking ball of natural disaster. Knowledge is hard won but easily lost. And information that survives
often does not spread. Consider smallpox inoculation: this was under way in India, China and Africa
centuries before it made its way to Europe. By the time the idea reached North America, native
civilisations who needed it had already collapsed. The net solved the problem. New discoveries catch on
immediately; information spreads widely. In this way, societies can optimally ratchet up, using the latest
bricks of knowledge in their fortification against risk.
Tyranny is mitigated
Censorship of ideas was a familiar spectre in the last century, with state-approved news outlets ruling
the press, airwaves and copying machines in the USSR, Romania, Cuba, China, Iraq and elsewhere. In
many cases, such as Lysenko’s agricultural despotism in the USSR, it directly contributed to the collapse
of the nation. Historically, a more successful strategy has been to confront free speech with free speech
-- and the internet allows this in a natural way. It democratises the flow of information by offering
access to the newspapers of the world, the photographers of every nation, the bloggers of every
political stripe. Some posts are full of doctoring and dishonesty whereas others strive for independence
and impartiality -- but all are available to us to sift through. Given the attempts by some governments to
build firewalls, it’s clear that this benefit of the net requires constant vigilance.
Human capital is vastly increased
Crowdsourcing brings people together to solve problems. Yet far fewer than one per cent of the world’s
population is involved. We need expand human capital. Most of the world not have access to the
education afforded a small minority. For every Albert Einstein, Yo-Yo Ma or Barack Obama who has
educational opportunities, uncountable others do not. This squandering of talent translates into
reduced economic output and a smaller pool of problem solvers. The net opens the gates education to
anyone with a computer. A motivated teen anywhere on the planet can walk through the world’s
knowledge -- from the webs of Wikipedia to the curriculum of MIT’s OpenCourseWare. The new human
capital will serve us well when we confront existential threats we’ve never imagined before.
Energy expenditure is reduced
Societal collapse can often be understood in terms of an energy budget: when energy spend outweighs
energy return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the
worry involves fossil-fuel depletion. The internet addresses the energy problem with a natural ease.
Consider the massive energy savings inherent in the shift from paper to electrons -- as seen in the
transition from the post to email. Ecommerce reduces the need to drive long distances to purchase
products. Delivery trucks are more eco-friendly than individuals driving around, not least because of
tight packaging and optimisation algorithms for driving routes. Of course, there are energy costs to the
banks of computers that underpin the internet -- but these costs are less than the wood, coal and oil
that would be expended for the same quantity of information flow.
The tangle of events that triggers societal collapse can be complex, and there are several threats the net
does not address. But vast, networked communication can be an antidote to several of the most deadly
diseases threatening civilisation. The next time your coworker laments internet addiction, the banality of
tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just be
the technology that saves us.
Data localization will destroy global economic growth
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
C. Economic Development
Many governments believe that by forcing companies to localize data within national borders, they will
increase investment at home. Thus, data localization measures are often motivated, whether explicitly
or not, by desires to promote local economic development. In fact, however, data localization raises
costs for local businesses, reduces access to global services for consumers, hampers local start-ups, and
interferes with the use of the latest technological advances.
In an Information Age, the global flow of data has become the lifeblood of economies across the world.
While some in Europe have raised concerns about the transfer of data abroad, the European
Commission has recognized "the critical importance of data flows notably for the transatlantic
economy." n209 The Commission observes that international data transfers "form an integral part of
commercial exchanges across the Atlantic including for new growing digital businesses, such as social
media or cloud computing, with large amounts of data going from the EU to the US." n210 Worried
about the effect of constraints on data flows on both global information sharing and economic
development, the Organisation for Economic Co-operation and Development (OECD) has urged nations
to avoid "barriers to the location, access and use of cross-border [*722] data facilities and functions"
when consistent with other fundamental rights, in order to "ensure cost effectiveness and other
efficiencies." n211
The worry about the impact of data localization is widely shared in the business community as well. The
value of the Internet to national economies has been widely noted. n212 Regarding Brazil's attempt to
require data localization, the Information Technology Industry Council, an industry association
representing more than forty major Internet companies, had argued that "in-country data storage
requirements would detrimentally impact all economic activity that depends on data flows." n213 The
Swedish government agency, the National Board of Trade, recently interviewed fifteen local companies
of various sizes across sectors and concluded succinctly that "trade cannot happen without data being
moved from one location to another." n214
Data localization, like most protectionist measures, leads only to small gains for a few local enterprises
and workers, while causing significant harms spread across the entire economy . The domestic benefits
of data localization go to the few owners and employees of data centers and the few companies
servicing these centers locally. Meanwhile, the harms of data localization are widespread, felt by small,
medium, and large businesses that are denied access to global services that might improve productivity.
In response to Russia's recently passed localization law, the NGO Russian Association for Electronic
Communications stressed the potential economic consequences, pointing to the withdrawal of global
services and substantial economic losses caused by the passing of similar laws in other countries. n215
For example, besides the loss of international social media platforms, localization would make it
impossible for [*723] Russians to order airline tickets or consumer goods through online services.
Localization requirements also seriously affect Russian companies like Aeroflot because the airline
depends on foreign ticket-booking systems. n216
Critics worried, at the time, that the Brazilian data localization requirement would "deny[] Brazilian
users access to great services that are provided by US and other international companies." n217 Marilia
Marciel, a digital policy expert at Fundacao Getulio Vargas in Rio de Janeiro, observes, "Even Brazilian
companies prefer to host their data outside of Brazil." n218 Data localization affects domestic
innovation by denying entrepreneurs the ability to build on top of global services based abroad.
Brasscom, the Brazilian Association of Information Technology and Communication Companies, argues
that such obligations would "hurt[] the country's ability to create, innovate, create jobs and collect taxes
from the proper use of the Internet." n219
Governments implementing in-country data mandates imagine that the various global services used in
their country will now build infrastructure locally. Many services, however, will find it uneconomical and
even too risky to establish local servers in certain territories. n220 Data centers are expensive, all the
more so if they have the highest levels of security. One study finds Brazil to be the most expensive
country in the Western hemisphere in which to build data centers. n221 Building a data center in Brazil
costs $ 60.9 million on average, [*724] while building one in Chile and the United States costs $ 51.2
million and $ 43 million, respectively. n222 Operating such a data center remains expensive because of
enormous energy and other expenses - averaging $ 950,000 in Brazil, $ 710,000 in Chile, and $ 510,000
in the United States each month. n223 This cost discrepancy is mostly due to high electricity costs and
heavy import taxes on the equipment needed for the center. n224 Data centers employ few workers,
with energy making up three-quarters of the costs of operations. n225 According to the 2013 Data
Centre Risk Index - a study of thirty countries on the risks affecting successful data center operations Australia, Russia, China, Indonesia, India, and Brazil are among the riskiest countries for running data
centers. n226
Not only are there significant economic costs to data localization, the potential gains are more limited
than governments imagine. Data server farms are hardly significant generators of employment,
populated instead by thousands of computers and few human beings. The significant initial outlay they
require is largely in capital goods, the bulk of which is often imported into a country. The diesel
generators, cooling systems, servers, and power supply devices tend to be imported from global
suppliers. n227 Ironically, it is often American suppliers of servers and other hardware that stand to be
the beneficiaries of data localization mandates. n228 One study notes, "Brazilian suppliers of
components did not benefit from this [data localization requirement], since the imported products
dominate the market." n229 By increasing capital purchases from abroad, data localization
requirements can in fact increase merchandise trade deficits. Furthermore, large data farms are [*725]
enormous consumers of energy, n230 and thus often further burden overtaxed energy grids . They
thereby harm other industries that must now compete for this energy, paying higher prices while
potentially suffering limitations in supply of already scarce power.
Cost, as well as access to the latest innovations, drives many e-commerce enterprises in Indonesia to use
foreign data centers. Daniel Tumiwa, head of the Indonesian E-Commerce Association (IdEA), states that
"the cost can double easily in Indonesia." n231 Indonesia's Internet start-ups have accordingly often
turned to foreign countries such as Australia, Singapore, or the United States to host their services. One
report suggests that "many of the "tools' that start-up online media have relied on elsewhere are not
fully available yet in Indonesia." n232 The same report also suggests that a weak local hosting
infrastructure in Indonesia means that sites hosted locally experience delayed loading time. n233
Similarly, as the Vietnamese government attempts to foster entrepreneurship and innovation, n234
localization requirements effectively bar start-ups from utilizing cheap and powerful platforms abroad
and potentially handicap Vietnam from "joining in the technology race." n235
Governments worried about transferring data abroad at the same time hope, somewhat contradictorily,
to bring foreign data within their borders. Many countries seek to become leaders in providing data
centers for companies operating across their regions. In 2010, Malaysia announced its Economic
Transformation Program n236 to transform Malaysia into a world-class data [*726] center hub for the
Asia-Pacific region. n237 Brazil hopes to accomplish the same for Latin America, while France seeks to
stimulate its economy via a "Made in France" digital industry. n238 Instead of spurring local investment,
data localization can lead to the loss of investment. First, there's the retaliation effect. Would countries
send data to Brazil if Brazil declares that data is unsafe if sent abroad? Brasscom notes that the Brazilian
Internet industry's growth would be hampered if other countries engage in similar reactive policies,
which "can stimulate the migration of datacenters based here, or at least part of them, to other
countries." n239 Some in the European Union sympathize with this concern. European Commissioner for
the Digital Agenda, Neelie Kroes, has expressed similar doubts, worrying about the results for European
global competitiveness if each country has its own separate Internet. n240 Then there's the avoidance
effect. Rio de Janeiro State University Law Professor Ronaldo Lemos, who helped write the original
Marco Civil and is currently Director of the Rio Institute for Technology and Society, warns that the
localization provision would have caused foreign companies to avoid the country altogether: "It could
end up having the opposite effect to what is intended, and scare away companies that want to do
business in Brazil." n241 Indeed, such burdensome local laws often lead companies to launch overseas,
in order to try to avoid these rules entirely. Foreign companies, too, might well steer clear of the country
in order to avoid entanglement with cumbersome rules. For example, Yahoo!, while very popular in
Vietnam, places its servers for the [*727] country in Singapore. n242 In these ways we see that data
localization mandates can backfire entirely, leading to avoidance instead of investment.
Data localization requirements place burdens on domestic enterprises not faced by those operating in
more liberal jurisdictions. Countries that require data to be cordoned off complicate matters for their
own enterprises, which must turn to domestic services if they are to comply with the law. Such
companies must also develop mechanisms to segregate the data they hold by the nationality of the data
subject. The limitations may impede development of new, global services. Critics argue that South
Korea's ban on the export of mapping data, for example, impedes the development of next-generation
services in Korea: Technology services, such as Google Glass, driverless cars, and information programs
for visually-impaired users, are unlikely to develop and grow in Korea. Laws made in the 1960s are
preventing many venture enterprises from advancing to foreign markets via location/navigation
services. n243
The harms of data localization for local businesses are not restricted to Internet enterprises or to
consumers denied access to global services. As it turns out, most of the economic benefits from Internet
technologies accrue to traditional businesses. A McKinsey study estimates that about seventy-five
percent of the value added created by the Internet and data flow is in traditional industries, in part
through increases in productivity. n244 The potential economic impact across the major sectors healthcare, manufacturing, electricity, urban infra-structure, security, agriculture, retail, etc. - is
estimated at $ 2.7 to $ 6.2 trillion per year. n245 This is particularly important for emerging economies,
in which traditional industries remain predominant. The Internet raises profits as well, due to increased
revenues, lower costs of goods sold, and lower administrative costs. n246 With data localization
mandates, traditional businesses [*728] will lose access to the many global services that would store or
process information offshore.
Data localization requirements also interfere with the most important trends in computing today. They
limit access to the disruptive technologies of the future, such as cloud computing, the "Internet of
Things," and data-driven innovations (especially those relying on "big data"). Data localization sacrifices
the innovations made possible by building on top of global Internet platforms based on cloud
computing. This is particularly important for entrepreneurs operating in emerging economies that might
lack the infrastructure already developed elsewhere. And it places great impediments to the
development of both the Internet of Things and big data analytics, requiring costly separation of data by
political boundaries and often denying the possibility of aggregating data across borders. We discuss the
impacts on these trends below.
That causes World War 3
James, 14 - Professor of history at Princeton University’s Woodrow Wilson School who specializes in
European economic history (Harold, “Debate: Is 2014, like 1914, a prelude to world war?” 7/3,
http://www.theglobeandmail.com/globe-debate/read-and-vote-is-2014-like-1914-a-prelude-to-worldwar/article19325504/)
Some of the dynamics of the pre-1914 financial world are now re-emerging. Then an economically
declining power, Britain, wanted to use finance as a weapon against its larger and faster growing
competitors, Germany and the United States. Now America is in turn obsessed by being overtaken by
China – according to some calculations, set to become the world’s largest economy in 2014.
In the aftermath of the 2008 financial crisis, financial institutions appear both as dangerous weapons of
mass destruction, but also as potential instruments for the application of national power.
In managing the 2008 crisis, the dependence of foreign banks on U.S. dollar funding constituted a major
weakness, and required the provision of large swap lines by the Federal Reserve. The United States
provided that support to some countries, but not others, on the basis of an explicitly political logic, as
Eswar Prasad demonstrates in his new book on the “Dollar Trap.”
Geo-politics is intruding into banking practice elsewhere. Before the Ukraine crisis, Russian banks were
trying to acquire assets in Central and Eastern Europe. European and U.S. banks are playing a much
reduced role in Asian trade finance. Chinese banks are being pushed to expand their role in global
commerce. After the financial crisis, China started to build up the renminbi as a major international
currency. Russia and China have just proposed to create a new credit rating agency to avoid what they
regard as the political bias of the existing (American-based) agencies.
The next stage in this logic is to think about how financial power can be directed to national advantage
in the case of a diplomatic tussle. Sanctions are a routine (and not terribly successful) part of the
pressure applied to rogue states such as Iran and North Korea. But financial pressure can be much more
powerfully applied to countries that are deeply embedded in the world economy.
The test is in the Western imposition of sanctions after the Russian annexation of Crimea. President
Vladimir Putin’s calculation in response is that the European Union and the United States cannot
possibly be serious about the financial war. It would turn into a boomerang: Russia would be less
affected than the more developed and complex financial markets of Europe and America.
The threat of systemic disruption generates a new sort of uncertainty, one that mirrors the decisive
feature of the crisis of the summer of 1914. At that time, no one could really know whether clashes
would escalate or not. That feature contrasts remarkably with almost the entirety of the Cold War,
especially since the 1960s, when the strategic doctrine of Mutually Assured Destruction left no doubt
that any superpower conflict would inevitably escalate.
The idea of network disruption relies on the ability to achieve advantage by surprise, and to win at no or
low cost. But it is inevitably a gamble, and raises prospect that others might, but also might not be able
to, mount the same sort of operation. Just as in 1914, there is an enhanced temptation to roll the dice,
even though the game may be fatal.
1ac – technological leadership
Contention 2 – technological leadership
NSA surveillance is crushing U.S. cloud-computing – decks competitiveness and
spills over to the entire tech sector
Donohue 15 – Professor of Law, Georgetown Law and Director, Center on National Security and the
Law, Georgetown Law (Lauren, HIGH TECHNOLOGY, CONSUMER PRIVACY, AND U.S. NATIONAL
SECURITY, Symposium Articles, 4 Am. U. Bus. L. Rev. 11 p.15-18, 2015, Hein Online)//JJ
I. ECONOMIC IMPACT OF NSA PROGRAMS
The NSA programs, and public awareness of them, have had an immediate and detrimental impact on
the U.S. economy . They have cost U.S. companies billions of dollars in lost sales, even as companies
have seen their market shares decline . American multinational corporations have had to develop new
products and programs to offset the revelations and to build consumer confidence. At the same time,
foreign entities have seen revenues increase. Beyond the immediate impact, the revelation of the
programs, and the extent to which the NSA has penetrated foreign data flows, has undermined U.S.
trade agreement negotiations. It has spurred data localization efforts around the world, and it has raised
the spectre of the future role of the United States in Internet governance. Even if opportunistic, these
shifts signal an immediate and long-term impact of the NSA programs , and public knowledge about
them, on the U.S. economy .
A. Lost Revenues and Declining Market Share
Billions of dollars are on the line because of worldwide concern that the services provided by U.S.
information technology companies are neither secure nor private. Perhaps nowhere is this more
apparent than in cloud computing .
Previously, approximately 50% of the worldwide cloud computing revenues derived from the United
States. The domestic market thrived: between 2008 and 2014, it more than tripled in value. But within
weeks of the Snowden leaks, reports had emerged that U.S. companies such as Dropbox, Amazon Web
Services, and Microsoft's Azure were losing business. By December 2013, ten percent of the Cloud
Security Alliance had cancelled U.S. cloud services projects as a result of the Snowden information. In
January 2014 a survey of Canadian and British businesses found that one quarter of the respondents
were moving their data outside the United States .
The Information Technology and Innovation Foundation estimates that declining revenues of
corporations that focus on cloud computing and data storage alone could reach $35 billion over the next
three years. Other commentators, such as Forrester Research analyst James Staten, have put actual
losses as high as $180 billion by 2016, unless something is done to restore confidence in data held by
U.S. companies. The monetary impact of the NSA programs extends beyond cloud computing to the
high technology industry . Cisco, Qualcomm, IBM, Microsoft, and Hewlett-Packard have all reported
declining sales as a direct result of the NSA programs. Servint, a webhosting company based in Virginia,
reported in June 2014 that its international clients had dropped by 50 % since the leaks began. Also in
June, the German government announced that because of Verizon's complicity in the NSA program, it
would end its contract with the company, which had previously provided services to a number of
government departments. As a senior analyst at the Information Technology and Innovation Foundation
explained, "It's clear to every single tech company that this is affecting their bottom line. The European
commissioner for digital affairs, Neelie Kroes, predicts that the fallout for U.S. businesses in the EU alone
will amount to billions of Euros.
Not only are U.S. companies losing customers, but they have been forced to spend billions to add
encryption features to their services. IBM has invested more than a billion dollars to build data centers
in London, Hong Kong, Sydney, and elsewhere, in an effort to reassure consumers outside the United
States that their information is protected from U.S. government surveillance.26 Salesforce.com made a
similar announcement in March 2014.27 Google moved to encrypt terms entered into its browser.28 In
June 2014 it took the additional step of releasing the source code for End-to-End, its newly-developed
browser plugin that allows users to encrypt email prior to it being sent across the Internet.29 The
following month Microsoft announced Transport Layer Security for inbound and outbound email, and
Perfect Forward Secrecy encryption for access to OneDrive.30 Together with the establishment of a
Transparency Center, where foreign governments could review source code to assure themselves of the
integrity of Microsoft software, the company sought to put an end to both NSA back door surveillance
and doubt about the integrity of Microsoft products.3'
Foreign technology companies, in turn, are seeing revenues increase . Runbox, for instance, an email
service based in Norway and a direct competitor to Gmail and Yahoo, almost immediately made it
publicly clear that it does not comply with foreign court requests for its customers' personal
information. Its customer base increased 34% in the aftermath of the Snowden leaks. Mateo Meier, CEO
of Artmotion, Switzerland's biggest offshore data hosting company, reported that within the first month
of the leaks, the company saw a 45% rise in revenue. Because Switzerland is not a member of the EU,
the only way to access data in a Swiss data center is through an official court order demonstrating guilt
or liability; there are no exceptions for the United States. In April 2014, Brazil and the EU, which
previously used U.S. firms to supply undersea cables for transoceanic communications, decided to build
their own cables between Brazil and Portugal, using Spanish and Brazilian companies in the process.36
OpenText, Canada's largest software company, now guarantees customers that their data remains
outside the United States. Deutsche Telekom, a cloud computing provider, is similarly gaining more
customers. Numerous foreign companies are marketing their products as "NSA proof' or "safer
alternatives" to those offered by U.S. firms, gaining market share in the process.
The best and newest research confirms the link
Marthews and Tucker, 15 – * National Chair at Restore the Fourth AND **PhD in economics and
professor of Marketing at MIT (Alex and Catherine, “Government Surveillance and Internet Search
Behavior”, 29 April 2015, file:///C:/Users/17GGonzalez/Downloads/SSRN-id2412564%20(2).pdf)//gg
This study is the first to provide substantial empirical documentation of a chilling effect, both
domestically in the shorter term and internationally in the longer term, that appears to be related to
increased awareness of government surveillance online. Furthermore, this chilling effect appears in
countries other than the US to apply to search behavior that is not strictly related to the government but
instead forms part of the private domain.
Our findings have the following policy implications. From an economic perspective, our finding that
there was an effect on international Google users’ browsing behavior has potential policy implications
for the effects of government surveillance on international commerce. From a US competitive
standpoint, the longer-run effect observed on international Google users’ search behavior indicates
that knowledge of US government surveillance of Google could indeed affect their behavior . At the
most limited end of the spectrum, it could steer them away from conducting certain searches on US
search engines; at the most severe end of the spectrum, they might choose to use non-US search
engines. Such effects may not be limited simply to search engines. For example, as Google’s services are
embedded in a large array of products, it could potentially hinder sales of Android-enabled mobile
phones. Though preliminary attempts are being made to work towards initial measures of the economic
impact of surveillance revelations (Dinev et al., 2008), no systematic study yet exists. All we can do,
within the context of our data, is to indicate that on the basis of the effects we find, the strong
possibility of substantial economic effects exists, and to suggest that such potential adverse economic
impacts should be incorporated into the thinking of policy makers regarding the appropriateness of
mass surveillance programs.
There are limitations to the generalizability of our findings. First, we are not sure how the results
generalize outside of the search domain towards important tech industries such as the rapidly growing
US cloud computing industry. Second, we are not sure how the revelations affected search on Google’s
major competitors, such as Bing and Yahoo! Search. It may be that the effect on their services was
lessened by reduced media focus on them relative to Google in the light of the PRISM revelations and
potentially the extent to which users anticipated that their servers may be located outside of the US.
Third, our results are focused on the effects of revelations about government surveillance as opposed to
the direct effects of government surveillance per se. Notwithstanding these limitations, we believe that
our study provides an important first step in understanding the potential for effects of government
surveillance practices on commercial outcomes and international competitiveness.
That undermines US global technological leadership
Castro and McQuinn 15, Daniel Castro works at the Center for Data Innovation, Government
Technology, The Information Technology & Innovation Foundation, worked at the U.S. Government
Accountability Office, went to Carnegie Mellon. Alan McQuinn works at the Federal Communications
Commission, previously had the Bill Archer Fellowship at the University of Texas, (June 2015, “Beyond
the USA Freedom Act: How U.S. Surveillance Still Subverts U.S. Competitiveness”,
file:///C:/Users/Mark/Downloads/2015-beyond-usa-freedom-act.pdf)//AK
CONCLUSION
When historians write about this period in U.S. history it could very well be that one of the themes will
be how the United States lost its global technology leadership to other nations. And clearly one of the
factors they would point to is the long-standing privileging of U.S. national security interests over U.S.
industrial and commercial interests when it comes to U.S. foreign policy.
This has occurred over the last few years as the U.S. government has done relatively little to address the
rising commercial challenge to U.S. technology companies, all the while putting intelligence gathering
first and foremost. Indeed, policy decisions by the U.S. intelligence community have reverberated
throughout the global economy . If the U.S. tech industry is to remain the leader in the global
marketplace, then the U.S. government will need to set a new course that balances economic interests
with national security interests. The cost of inaction is not only short-term economic losses for U.S.
companies, but a wave of protectionist policies that will systematically weaken U.S. technology
competiveness in years to come, with impacts on economic growth, jobs, trade balance, and national
security through a weakened industrial base. Only by taking decisive steps to reform its digital
surveillance activities will the U.S. government enable its tech industry to effectively compete in the
global market.
Tech leadership is the primary driver of hegemony –
Weiss 14 – Fellow of the Academy of the Social Sciences in Australia, Professor Emeritus in Government
and International Relations at the University of Sydney, Honorary Professor of Political Science at Aarhus
University. (Linda, America Inc.?: Innovation and Enterprise in the National Security State, Cornell
University Press, 4/1/14, p. 1-3)//JJ
*NSS=National Security State
So what accounts for America’s transformative capacity? Where do its breakthrough innovations come
from? My answer traces the relationship between high technology, national security, and political
culture. It advances three interlinked propositions regarding the role of the NSS as technology enterprise
and commercialization engine; its geopolitical drivers ; and the institutional consequences of an
antistatist constraint. The national security state as technology enterprise. First, America's capacity for
transformative innovation derives not merely from the entrepreneurship of its private sector, or simply
from the state as such, but from the national security state—a particular cluster of federal agencies that
collaborate closely with private actors in pursuit of security-related objectives. The NSS is a wholly new
postwar creation that is geared to the permanent mobilization of the nation's science and technology
resources for military primacy , and here I document and explain why it has had to become increasingly
involved in commercial undertakings. Although centered on defense preparedness, the NSS is a good
deal broader than the military, yet narrower than the state as a whole. In addition to its defense core in
the Department of Defense, the NSS comprises several other components created at the height of the
Cold War to pursue, deliver, or underwrite innovation in the service of securing technological
supremacy. Although some are designated as "civilian" in their ori- gins, evolution, and current mix of
activities, these NSS components remain deeply enmeshed in national security or dual-use functions (as
we shall see in chapter 2).4 Acting as commander in chief, the president sits at the peak of this complex,
supported by the Oval Office and, in particular, the Office of Science and Technology Policy. In sum, I
discuss NSS activities not in the more popular sense of a surveillance state, but as a national "technology
enterprise" in which the military is the central, but far from exclusive, actor. In telling this Story, I
demonstrate and account for a major shift in NS.S innovation programs and policies that involved the
national security agencies cultivating and undertaking commercialization ventures. (c. 1945 up to the
1970s), this process of fostering commercially relevant (general-purpose or dual-use) technologies took
both direct and indirect forms. Then (especially from the 1980s onward) it also took a more proactive
form, via patenting and licensing reforms and cooperative agreements to transfer technology from the
federal labs to the private sector, via the launching of new procurement and joint innovation initiatives,
and via the creation of new venture capital (VC) schemes. By placing greater emphasis on
commercialization opportunities, some of these incentives sought to sweeten collaboration with the
DOD and other security-related agencies, and thus to increase NISS influence over the direction of
technology. A significant problem for the NSS has been that since the late 1970s, it has become
progressively more challenging to enlist innovative companies in the private sector to work on securityrelated projects. While traditional defense suppliers grew increasingly large and specialized in systems
integration, by the 1970s the more innovative producer companies—above all, critical suppliers Of
integrated circuits—had begun to pull away from the federal market. Attracting nondefense firms to do
defense work was at one time easy because the government market (in semiconductors and computers,
for instance) was so much larger than the private market, and healthy profits could be made. But by the
mid- 1970s commercial markets had come into their own, leading firms to reorient production to suit
the more standardized demand. One consequence of lacking the earlier pull power Of massive demand
is that NISS agencies have had to create new incentives to foster private-sector collaboration. One of the
major incentives intended to reattract the private sector is the inclusion of commercial goals in NSS
technology policies. Commercial viability therefore has to stand alongside security and technological
supremacy in NSS policy. For instance, if a firm works with an agency to create a technology, service, or
prototype for use by the U.S. Army, it will also be encouraged from the outset of the project to create a
similar product for the commercial market. In this way, and many more, the NSS has progressively been
drawn into promoting commercial innovation for security reasons. One implication, demonstrated in
some detail, is that the NISS has achieved a much broader reach than commonly implied by the notion
Of a military-industrial complex. Geopolitical drivers. What are the drivers of the NSS technology
enterprise? Geopolitics and related threat perceptions have been the original catalyst for NSS
formation and its evolution as an innovation engine . This state- (and technology-) building dynamic has
occurred in three broad phases: the Cold War, the rise of Japan as techno-security challenge, and the
post-9/11 era of asymmetric threats. The NSS emerged and expanded in fits and starts after World War
II in response to a perceived international threat, emanating from the Soviet Union, that proved both
enduring and persistent. It is instructive to note that in this phase the NSS bears at least some
comparison with the erstwhile "developmental states" of Northeast Asia. They too emerged in response
to an intensely perceived security threat, from neighboring China and North Korea, but instead sought
national security more broadly via economic improvement, or industrial catch-up. Living on the fault
lines of the Cold War in the presence of a credible and unyielding security threat exerted an unusual
pressure on the East Asian states to pursue security by building economic strength. More distinctively in
the case of Japan, Peter Katzenstein has developed the argument that, against the backdrop of terrible
defeat, domestic power struggles succeeded in reorienting Japan's conception of security in favor Of
economic rather than military strength. Thus the Japanese state practices a form of "technological
national security" in order to ensure against its resource dependence and reduce its exposure to
international supply disruptions (Katzenstein 1996, 2005; also Samuels 1994). Fundamental motivations
drawn from different historical experiences thus serve to underline a unique feature of the NSS. In
contrast to Japan (and the East Asian developmental states more generally), America's national security
State has been geared to the pursuit of technological superior, not for reasons of national
independence, economic competitiveness, or resource dependency, but in order to maintain American
primacy . For the United States, the experience of World War Il drove home the point that science and
technology (S&T) was a game changer—the key to winning the war—and that future preparedness
would depend on achieving and sustaining technological superiority. Geopolitics is thus the driver, not
economics. I emphasize this point because many analysts have viewed the Pentagon as the source of an
industrial policy that is pursued beneath the radar6—a claim that this book disputes since it mistakes
the nature of the primary driver. From its inception, the NSS was tasked with ensuring the technology
leadership of the United States for the purpose of national defense. Even as the Soviet menace
retreated, security proved paramount as the U.S. confronted a newly resurgent Japan that threatened to
dethrone it as the regnant technology power. Appreciating the strength and intensity of the U.S. security
focus means never underestimating the significance of this point: as long as U.S. military strategy
continues to rely on a significant technology lead over its adversaries (real or potential), threats to that
lead can never be simply (or even primarily) a commercial matter—even when the NSS "goes
commercial.
Hegemonic decline causes great power wars
Zhang et al., Carnegie Endowment researcher, 2011
(Yuhan, “America’s decline: A harbinger of conflict and rivalry”, 1-22,
http://www.eastasiaforum.org/2011/01/22/americas-decline-a-harbinger-of-conflict-and-rivalry/, ldg)
This does not necessarily mean that the US is in systemic decline, but it encompasses a trend that appears to be negative and perhaps alarming. Although the US
still possesses incomparable military prowess and its economy remains the world’s largest, the once seemingly indomitable chasm that separated America from
anyone else is narrowing. Thus, the
global distribution of power is shifting, and the inevitable result will be a world
that is less peaceful, liberal and prosperous, burdened by a dearth of effective conflict regulation. Over
the past two decades, no other state has had the ability to seriously challenge the US military. Under
these circumstances, motivated by both opportunity and fear, many actors have bandwagoned with US
hegemony and accepted a subordinate role. Canada, most of Western Europe, India, Japan, South Korea, Australia, Singapore and the
Philippines have all joined the US, creating a status quo that has tended to mute great power conflicts. However, as the hegemony that drew
these powers together withers, so will the pulling power behind the US alliance. The result will be an
international order where power is more diffuse, American interests and influence can be more readily challenged, and conflicts
or wars may be harder to avoid. As history attests, power decline and redistribution result in military
confrontation. For example, in the late 19th century America’s emergence as a regional power saw it launch its first overseas war of conquest towards
Spain. By the turn of the 20th century, accompanying the increase in US power and waning of British power, the American Navy had begun to challenge the notion
that Britain ‘rules the waves.’ Such a notion would eventually see the US attain the status of sole guardians of the Western Hemisphere’s security to become the
order-creating Leviathan shaping the international system with democracy and rule of law. Defining this US-centred system are three key characteristics:
enforcement of property rights, constraints on the actions of powerful individuals and groups and some degree of equal opportunities for broad segments of
society. As
a result of such political stability, free markets, liberal trade and flexible financial mechanisms
have appeared. And, with this, many countries have sought opportunities to enter this system,
proliferating stable and cooperative relations. However, what will happen to these advances as America’s influence declines? Given that
America’s authority, although sullied at times, has benefited people across much of Latin America, Central and Eastern Europe, the Balkans, as well as parts of Africa
and, quite extensively, Asia, the answer to this question could affect global society in a profoundly detrimental way. Public
imagination and
academia have anticipated that a post-hegemonic world would return to the problems of the 1930s:
regional blocs, trade conflicts and strategic rivalry. Furthermore, multilateral institutions such as the
IMF, the World Bank or the WTO might give way to regional organisations. For example, Europe and East
Asia would each step forward to fill the vacuum left by Washington’s withering leadership to pursue their own visions of regional political
and economic orders. Free markets would become more politicised — and, well, less free — and major powers
would compete for supremacy. Additionally, such power plays have historically possessed a zero-sum
element. In the late 1960s and 1970s, US economic power declined relative to the rise of the Japanese and Western European economies, with the US dollar
also becoming less attractive. And, as American power eroded, so did international regimes (such as the Bretton Woods System in 1973). A world without
American hegemony is one where great power wars re-emerge, the liberal international system is
supplanted by an authoritarian one, and trade protectionism devolves into restrictive, anti-globalisation
barriers. This, at least, is one possibility we can forecast in a future that will inevitably be devoid of unrivalled US primacy.
Cloud computing is key to effective space situational awareness – prevents
space debris collisions with satellites
Johnston et al 13 – Ph.D. with the Computational Engineering and Design Group (CED) at the University
of Southampton, MEng degree in Software Engineering from the School of Electronics and Computer
Science, Senior Research Fellow for the Faculty of Engineering and the Environment at University of
Southampton (Steven, Neil O’Brien – Senior Technical Recruiter at Colloco Search, Hugh Lewis –
Astronautics Research Group at the University of Southampton, PhD, Elizabeth Hart – School of
Engineering Science at Southampton University, Adam White – School of Engineering Science at
Southampton University, Simon Cox – professor of Computational Methods and Director of the
Microsoft Institute for High Performance Computing, PhD, Clouds in Space: Scientific Computing using
Windows Azure, Journal of Cloud Computing, 2013,
http://www.journalofcloudcomputing.com/content/pdf/2192-113X-2-2.pdf)//JJ
Space situational awareness
Within the last two decades, the downstream services pro- vided by space-based assets have become a
ubiquitous component of everyday life within the European Union and internationally, from satellite
television and navigation to environmental monitoring. The European Space Agency (ESA) and European
national space agencies currently rely on information from outside sources to form an awareness of
these assets and the environment in which they operate. In the near future, this awareness will be
provided by a European space situational awareness (SSA ) system, which will provide “ a
comprehensive knowledge, understanding and maintained awareness of the population of space
objects, the space environment, and the existing threats and risks ”(User Expert Group of ESA SSA
requirement study, 2007).
Through its SSA Programme (and its Preparatory Programme), ESA aims to provide key services and
information regarding the space environment. The SSA system will comprise three main segments: 1.
Space surveillance and tracking (SST) of man-made space objects, 2. Space weather (SWE) monitoring
and forecasting, 3. Near-Earth object (NEO) surveillance and tracking .
The provision of timely, high quality data via the space surveillance and tracking segment is required to
maintain an awareness of operational space assets as well as the population of debris objects in Earth
orbit . This awareness provides key knowledge that supports space missions and includes the detection
of conjunction events, the detection and characterization of in-orbit fragmentations and the re-entry of
risk objects. In addition, knowledge of overall space traffic is required to understand the evolution of the
space (debris) environment and to support space debris mitigation and remediation activities.
Space debris represents a significant risk to satellite operations , particularly in the low Earth orbit
(LEO) region. Approximately 19,000 objects larger than 10 cm are known to exist, with around 500,000
larger than 1 cm. The number of smaller particles likely exceeds tens of millions [1]. Conjunctions
between satellite pay- loads and other catalogued objects occur at an average rate of 2,400 per day,
with operators having to perform collision avoidance maneuvers in cases where the risk cannot be
reduced to an acceptable level by dedicated tracking campaigns [2]. Whilst mitigation guidelines have
been adopted and measures implemented by space-faring nations, predictions made by computer
models of the space debris environment indicate that the population of orbiting objects will continue to
grow even in the absence of future space launches [3]. The remediation of the near- Earth space
environment is now widely accepted as a requirement for the long-term, sustainable use of this vital
resource. A reliable and robust SSA infrastructure will be essential for the development and operation
of any remediation technology.
The computational and data-intensive challenges presented by the requirements of a SSA system can be
met using a cloud-based computational approach . In this work, we establish the applicability of a
cloud-based architecture for space surveillance and tracking, algorithm development and comparison.
Debris collisions decks satellites – extinction
Moore 9 – Professor of Economics and International Affairs, M.S. and Ph.D. in economics from the
University of Wisconsin-Madison (Mike, Space Debris: From Nuisance to Nightmare, Foreign Policy,
2/12/9, http://foreignpolicy.com/2009/02/12/space-debris-from-nuisance-to-nightmare/)//JJ
When satellites collide in space, should ordinary people be worried? Here's a scenario for global doom
that should have your hair standing on end. News reports on Feb. 12 that two satellites had collided
some 491 miles above the Earth were compelling. There was a whiff of Cold War intrigue about them. A
defunct Russian communications relay satellite and an American commercial satellite had met abruptly
in space with a closing speed of more than 22,000 miles per hour. They were shattered into many
hundreds of pieces, creating an ever expanding debris cloud. In turn, that cloud threatened the satellites
of other countries in similar orbits. And yet, no one was harmed. Space is a big place, isn’t it? The
reports noted that there were already thousands of pieces of space junk large enough to be tracked and
catalogued. Nonetheless, no one has ever been harmed by a bit of space garbage. At the moment, the
amount of debris in low-earth orbit — the region of space that extends a few hundred miles above the
atmosphere — is merely a nuisance. The United States tracks objects in space and shares the data with
the world. Satellite handlers based in many countries use the data to slightly alter the course of their
birds if a collision seems possible. End of story? Not quite. Orbital space is a natural resource, as surely
as land, air, and water. It must be protected because it is home to nearly a thousand satellites put up by
many countries — communications, geo-observation, geopositioning, weather, and other kinds of
satellites. Globalization would not be possible without commercial satellites. Further, the United States’
military-related birds permit the country to conduct precision war . For the first time in history,
satellites provide the data and the guidance necessary to enable bombs and missiles to actually hit the
targets they are fired at. That’s a moral plus. If a war must be fought, it should be prosecuted in such a
way that military targets are hit and civilians spared to the greatest extent possible. No other country
can fight a conventional war as cleanly and humanely as the United States. Satellites make the
difference. Because of the importance of satellites to the American way of war, the United States insists
that it must achieve the capability to militarily dominate space in a time of conflict. It is the only country
that claims that right. Space, says international law on the other hand, is the common heritage of
humankind and must be devoted to peaceful purposes. America’s truculent space-dominance language
annoys many of its friends and allies. Meanwhile, some major powers — particularly China and Russia —
think it smells of imperialism. A country that could control space in a time of conflict might also exercise
that control in a time of peace. Since 1981, virtually every country save the United States and Israel has
gone on record in the U.N. General Assembly as favoring a treaty that would prevent an arms race in
space. Every year, the United States — under presidents Ronald Reagan, George H.W. Bush, Bill Clinton,
and George W. Bush — has used its veto power at the Conference on Disarmament in Geneva to
prevent serious talks. No one, including the United States, is likely to have actual weapons in space in
the foreseeable future. Space control does not require such weapons. Ground-based, sea-based, and
even air-based antisatellite weapons (ASATs) can do the trick. The United States has long been working
on a variety of highly sophisticated ASAT programs — indeed, the infrastructure for missile defense is
the sort of infrastructure needed for ASAT systems. When a country builds ever greater military
capabilities, potential rivals react. China, in particular, is wary of the coercive possibilities of U.S. military
power. The Middle Kingdom says it wants a space treaty, but in January 2007, it tested its own
somewhat primitive ASAT — a kinetic-kill device that roughly replicated a test the United States carried
out in 1985. Is a space-related arms race under way? Yes. But there is still time to ratchet it down, and
the Obama administration has signaled that it might do so. That will be difficult, though. Exceptionalism
is a major driver of foreign policy, and influential people and hard-line think tanks are comfortable with
the idea that full-spectrum dominance in all things military is America’s right. A nightmare scenario: The
United States continues to work on its defensive ASAT systems. China and Russia do the same to counter
U.S. capabilities. India and Japan put together their own individual systems. Ditto for Pakistan, if it
survives as a coherent country. Israel follows suit, as does Iran. In a time of high tension, someone
preemptively smashes spy satellites in low-earth orbits, creating tens of thousands of metal chunks and
shards. Debris-tracking systems are overwhelmed, and low-earth orbits become so cluttered with metal
that new satellites cannot be safely launched. Satellites already in orbit die of old age or are killed by
debris strikes . The global economy , which is greatly dependent on a variety of assets in space,
collapses . The countries of the world head back to a 1950s-style way of life, but there are billions more
people on the planet than in the 50s. That’s a recipe for malnutrition , starvation , and wars for
resources . The United States, by far the world’s most-advanced space power, must take the lead in
Geneva and engage in good-faith talks. If not, the space-is-ruined scenario could become reality.
702 mechanism
1ac – plan – 702
Version 1 The United States federal government should limit domestic surveillance for foreign intelligence
purposes of American corporations exclusively to authority under section 702 of the FISA Amendments
Act.
Version 2 The United States federal government should substantially curtail its surveillance of information in the
custody of American corporations by exclusively limiting surveillance to investigations carried out under
section 702 of the FISA Amendments Act.
1ac – solvency
Contention 3 – Solvency
The plan’s curtailment of surveillance of U.S. companies to exclusive section 702
authority is vital to restoring domestic and international trust in surveillance
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a
center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy,
and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as
as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way (“Restoring
Trust between U.S. Companies and Their Government on Surveillance Issues” 3/19,
http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-onsurveillance-issues
Fixing the Problem Means Changing the Existing Legal Framework
Currently, the U.S. collects electronic communications under four main authorities.
For collection occurring under both 215 and 702, the companies would have been served with an order
compelling production of their data. But outside the U.S., Executive Order 12333,15 the long-standing
guidance for foreign intelligence activities, would govern the kind of collection that has caused
international outrage.
E.O. 12333, signed by President Reagan, set the ground rules and authorization for foreign intelligence
collection when the nation’s primary security threat was the Soviet Union. At that time, traditional
intelligence activities would have been focused on other nation-states—identifying their spies, trying to
recruit spies for the U.S., and trying to steal other countries’ secrets while protecting our own. But the
growth of terrorist groups’ capabilities, and particularly the 9/11 attacks, helped dissolve the separation
between traditional overseas espionage and counter-terrorism.
As the nation was grappling with new threats posed by terrorism, people around the world were sharing
more and more of their information online and using mostly American companies to do so. Yet the legal
framework that had once recognized privacy rights was ill-suited to the Internet Age. The Intelligence
Community’s traditional position that constitutional rights like the Fourth Amendment’s privacy
protections didn’t apply to non-Americans outside the U.S. might have been clear when travelling and
communicating internationally were more difficult. But today’s free-flowing movement of people and
data means that the “nationality” of an individual’s communications is far less obvious.16
While extending constitutional or privacy protections to foreigners abroad is a tricky legal proposition,
for many their data is being held by entities that are entitled to the due process and privacy protections
of the U.S. Constitution: American companies. Our tech firms often act as custodians of other people’s
data, and as such don’t have the same heightened privacy interests as the targets of that data. But
accessing the companies’ data without even giving notice to the owner of the servers raises serious
constitutional questions.
As a politician once famously noted, “corporations are people too.”17 As a legal (if not political) matter,
he was right— these American tech companies are “U.S. Persons ,” and they therefore should know
when the government seeks to access the data they possess. The companies should be entitled to
notice, especially since they can be compelled to cooperate with law enforcement requests to hand over
user data. Those protections should hold true regardless of whether the user data sought by the U.S.
government is that of Americans or non-Americans.
In addition to those privacy protections that all U.S. persons enjoy under the Constitution, both at home
and abroad, surveillance reform should meet the following principles when dealing with information
about or from Americans:
 The U.S. government should have a process, consistent with the Constitution, to acquire from
companies the information that it needs to secure the country.
 The U.S. government should have a national security reason to collect the information that it
requests.
 U.S. companies should not have to fear unauthorized access to their data or products from their
own government.
 Any process to acquire information from U.S. companies should have safeguards to prevent
misuse or intentional over-collection.
The Solution
Include Overseas Collection from American Companies in Existing Statutory Frameworks
In order to meet the principles above, we propose that FAA’s 702 framework be the exclusive means
for conducting electronic surveillance when the information is in the custody of an American company
(“FAA Exclusivity”). Section 702 of FAA provides procedures to authorize data collection of foreign
targets reasonably believed to be outside the U.S. It empowers the Attorney General (AG) and Director
of National Intelligence (DNI) to jointly certify a high volume of targeting and does not require the
requesters to identify specific non-U.S. persons who will be targeted. Under this 702 framework,
information on foreigners that’s in the custody of a U.S. company should be subject to the following
rules:
1. The data must relate to targets “reasonably believed” to be outside the U.S. (can include foreign
persons, governments or their factions and similar entities).
2. The AG and DNI must jointly submit annual “certifications” to the Foreign Intelligence Surveillance
Court (FISC).
3. Certifications must identify categories of foreign intelligence targets that the Government wants to
surveil electronically; they do not need to identify specific persons to be targeted.
4. Certifications may include information or representations from other federal agencies authorized to
cooperate with the AG, DNI, or Director of the NSA.
5. Certifications must be reviewed by the FISC, which can authorize the targeting if they deem that the
statutory requirements have been met.
6. After the certifications are approved, the AG and DNI issue (written) “directives” to the providers,
ordering them to assist the government.
7. Collection should be executed with the appropriate “minimization procedures” in place to limit the
acquisition, retention, and dissemination of any non–publicly available U.S. person information
acquired through the Section 702 program.
8. The AG, in consultation with the DNI, must adopt FISC-approved targeting and minimization
procedures that are “reasonably designed” to ensure that the Government does not collect wholly
domestic communications , and that only persons outside the U.S. are surveilled .
9. The AG and DNI must also create acquisition guidelines (which are not subject to FISC approval).
Advantages of an FAA Framework
Shifting the legal authority for collection of data in the custody of an American company from E.O.
12333 to an FAA framework would have a number of advantages. Most importantly, it would create a
way for the government to get the data it needs from American companies while giving those firms
assurances that their data would not be accessed in other unauthorized ways. In particular, the FAA
framework would create specific purposes for which the information could be sought, rather than allow
the indiscriminate scooping up of every aspect of a person’s communications. FAA’s stated purpose is to
acquire foreign intelligence information, which it defines as "information that relates to the ability of the
U.S. to protect against an actual or potential attack by a foreign power; sabotage, international
terrorism, or the proliferation of weapons of mass destruction by a foreign power; or clandestine
intelligence activities by a foreign power."
The FAA framework would also create a requirement that the Executive Branch explain how the
information sought meets the statutory purposes. And there would be the additional check of an
independent judge who would review the certifications and issue directives. Though this process is ex
parte, and therefore a potential rubber stamp for the government, there have been no documented
instances of intentional abuses of the system in seeking information beyond the statutory purposes.
Finally, the FAA framework would subject information sought from U.S. companies to the statutory
oversight requirements of the law. These are extensive and explicit.18
In addition to FAA’s inherent protections, FAA Exclusivity would send a powerful message to the rest of
the world : when the U.S. conducts electronic surveillance overseas from American companies, it is
doing so for a particular national security purpose. The FAA structure with FISC review provides an
independent check that the statutory purposes are met. Through transparency agreements with the
government, the American companies would be able to provide their customers with some sense of
how many requests are made.
FAA Exclusivity would not change the E.O. 12333 authorities with respect to non-U.S. companies. It
would not change E.O. 12333 authorities when the Executive Branch seeks to obtain the information in
some way other than through a U.S. company that holds the data (i.e. traditional espionage, like
breaking into a target’s laptop, parking a surveillance van outside their house, or sending a spy, would
still be permissible).
Of course, FAA Exclusivity wouldn’t solve every problem. It would not prevent foreign governments from
collecting information themselves and then providing it to U.S. intelligence agencies, as U.S. law cannot
bind a foreign government. And some may argue that FAA provides inadequate civil liberties protections
for Americans. This proposal says nothing about the adequacy of that statute in this respect. What it
says is that for data held by an American company about a target that is not a U.S. person, the checks
within FAA are stronger than those solely under E.O. 12333.
Others have argued that the FAA shifts the burden of cooperation solely onto the company, which will
suffer greater reputational harm as a more witting participant in affirmatively granting the government’s
requests. However, companies have suffered reputational harm as a result of allegations of unwitting
cooperation. Making the cooperation known, even if it’s secret, gives the companies the opportunity to
account for it in their own planning.
The move by certain U.S. companies to place subsidiaries in foreign ownership to resist requests by the
U.S. government presents an interesting twist on this idea. In shifting the balance back to increased
protections for U.S. companies, this legislation would change the incentives so that claiming U.S. law
would have operational advantages in giving companies uniformity of law for all their data. This would
also encourage the use of a single choice of law for all data governed by a company—that of the
nationality of incorporation—rather than encouraging a choice of law patchwork to govern the data as it
flows around the world.
Finally, some foreign multinational companies operating in the U.S. and abroad may argue that this is
inconsistent with principles that we treat all companies operating in the U.S. the same way for purposes
of law. While that would remain true under this proposal, it would create a difference in how the U.S.
treats U.S. companies operating abroad compared to how it treats foreign companies abroad. But
stretching the U.S. Constitution to foreign companies abroad is to stretch the document too far. If, on
the other hand, those companies see advantage in changing their nationality to U.S. in order to claim
protections of those laws, then that is the corporate version of the kind of immigration patterns that
America has seen since its founding.
Conclusion
Using FAA’s framework as the exclusive means to access data that U.S. companies are holding will give
the Intelligence Community a statutory framework to be able to get the intelligence information that it
needs to protect the nation while restoring the trust relationship between the companies and our
government. In addition, it will help restore the faith of foreign governments and customers that when
American companies are acting overseas, they bring with them American values, including those of
privacy protections.
Limiting the use of surveillance on US-based servers to national security
interests and increasing transparency regarding surveillance is vital to restoring
trust and US credibility
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
The NSA mass surveillance programs described in the introduction, conducted domestically pursuant to
USA PATRIOT Act Section 215 and FISA Amendments Act Section 702 and conducted outside the U.S.
under Executive Order 12333, have arguably had the greatest and most immediate impact on America’s
tech industry and global standing. Strictly limiting the scope and purpose of surveillance under these
authorities—not just in regard to surveillance of Americans but of non-Americans as well —will be
critical to regaining the trust of individuals, companies and countries around the world, as well as
stemming the economic and political costs of the NSA programs.
The President’s NSA Review Group acknowledged the need for such reform in its report on surveillance
programs, affirming that “the right of privacy has been recognized as a basic human right that all nations
should respect,” and cautioned that “unrestrained American surveillance of non-United States persons
might alienate other nations, fracture the unity of the Internet, and undermine the free flow of
information across national boundaries.”324 In addition to recommending a variety new protections for
U.S. persons, the Review Group urged in its Recommendation 13 that surveillance of non-U.S. persons
under Section 702 or “any other authority”—a reference intended to include Executive Order 12333325
— should be strictly limited to the purpose of protecting national security, should not be used for
economic espionage, should not be targeted based solely on a person’s political or religious views, and
should be subject to careful oversight and the highest degree of transparency possible.326 Fully
implementing this recommendation—and particularly restricting Section 702 and Executive Order 12333
surveillance to specific national security purposes rather than foreign intelligence collection generally—
would indicate significant progress toward addressing the concerns raised in the recent Report of the
Office of the United Nations High Commissioner for Human Rights on “The Right to Privacy in the Digital
Age.” The UN report highlights how, despite the universality of human rights, the common distinction
between “‘foreigners’ and ‘citizens’…within national security surveillance oversight regimes” has
resulted in “significantly weaker – or even non-existent – privacy protection for foreigners and noncitizens, as compared with those of citizens.”327
The leading legislative reform proposal in the U.S. Congress, the USA FREEDOM Act, would go a long way
to protecting both U.S. and non-U.S. persons against the bulk collection under Section 215 of records
held by American telephone and Internet companies.328 On that basis, passage of the law would very
much help address the trust gap that the NSA programs have created. However, with regard to Section
702, the bill as originally introduced only added new protections for U.S. persons or for wholly domestic
communications,329 and even those protections were stripped out or weakened in the version of the
bill that was passed by the House of Representatives in May 2014.330 Meanwhile, neither the bill as
introduced nor as passed by the House addresses surveillance conducted extraterritorially under
Executive or 12333. Therefore, even if USA FREEDOM is eventually approved by both the House and the
Senate and signed into law by the President, much more will ultimately need to be done to reassure
foreign users of U.S.-based communications networks, services, and products that their rights are being
respected.
Provide for increased transparency around government surveillance, both from the government and
companies.
Increased transparency about how the NSA is using its authorities, and how U.S. companies do—or do
not—respond when the NSA demands their data is critical to rebuilding the trust that has been lost in
the wake of the Snowden disclosures. In July 2013, a coalition of large Internet companies and advocacy
groups provided a blueprint for the necessary transparency reforms, in a letter to the Obama
Administration and Congress calling for “greater transparency around national security-related requests
by the US government to Internet, telephone, and web-based service providers for information about
their users and subscribers.”331 Major companies including Facebook, Google, and Microsoft—joined
by organizations such as the Center for Democracy and Technology, New America’s Open Technology
Institute, and the American Civil Liberties Union—demanded that the companies be allowed to publish
aggregate numbers about the specific types of government requests they receive, the types of data
requested, and the number of people affected. They also also urged the government to issue its own
transparency reports to provide greater clarity about the scope of the NSA’s surveillance programs.332
“This information about how and how often the government is using these legal authorities is important
to the American people, who are entitled to have an informed public debate about the appropriateness
of those authorities and their use, and to international users of US-based service providers who are
concerned about the privacy and security of their communications,” the letter stated.333
Two months later, many of the same companies and organizations issued another letter supporting
surveillance transparency legislation proposed by Senator Al Franken (D-MN) and Representative Zoe
Lofgren (D-CA) that would have implemented many of the original letter’s recommendations.334
Elements of both bills, consistent with the coalition’s recommendations, were included in the original
version of the USA FREEDOM Act introduced in the House and the Senate—as were new strong
transparency provisions requiring the FISA court to declassify key legal opinions to better educate the
public and policymakers about how it is interpreting and implementing the law. Such strong new
transparency requirements are consistent with several recommendations of the President’s Review
Group335 and would help address concerns about lack of transparency raised by the UN High
Commissioner for Human Rights.336
Unfortunately, all of these transparency provisions from the original USA FREEDOM Act were
substantially weakened in the version of the bill that was passed by the House of Representatives in May
2014.337 Congress will need to include stronger transparency provisions in any final version of the USA
FREEDOM Act if it intends to meaningfully restore trust in the U.S. Internet and telecommunications
industries and stem the loss of business that has begun as a result of the NSA programs. As
commentator Mieke Eoyang put it, “If reforms do not deliver sufficient protections and transparency for
[tech companies’] customers, especially those abroad who have the least constitutional protections,
they will vote with their feet.”338
Recommit to the Internet Freedom agenda in a way that directly addresses issues raised by NSA
surveillance, including moving toward international human-rights based standards on surveillance.
The United States must act immediately to restore the credibility of the Internet Freedom agenda, lest it
become another casualty of the NSA’s surveillance programs. As described in Part IV, various agencies
within the U.S. government have taken initial steps to demonstrate goodwill in this area, particularly
through the NTIA’s announcement that it intends to transition stewardship of the IANA functions to a
global multistakeholder organization and the State Department’s speech outlining six principles to guide
signals intelligence collection grounded in international human rights norms. However, it will take a
broader effort from across the government to demonstrate that the United States is fully committed to
Internet Freedom, including firmly establishing the nature of its support for the evolving
multistakeholder system of Internet governance and directly engaging with issues raised by the NSA
surveillance programs in international conversations.
Supporting international norms that increase confidence in the security of online communications and
respect for the rights of Internet users all around the world is integral to restoring U.S. credibility in this
area. “We have surveillance programmes that abuse human rights and lack in transparency and
accountability precisely because we do not have sufficiently robust, open, and inclusive debates around
surveillance and national security policy,” writes Matthew Shears of the Center for Democracy &
Technology.339 It is time to begin having those conversations on both a national and an international
level, particularly at key upcoming Internet governance convenings including the 2014 Internet
Governance Forum, the International Telecommunications Union’s plenipotentiary meeting, and the
upcoming WSIS+10 review process.340 Certainly, the United States will not be able to continue
promoting the Internet Freedom agenda at these meetings without addressing its national security
apparatus and the impact of NSA surveillance on individuals around the world. Rather than being a
problem, this presents an opportunity for the U.S. to assume a leadership role in the promotion of
better international standards around surveillance practices.
2ac - AT: Companies suffer reputational costs
FAA exclusivity on balance protects companies from reputational consequences
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a
center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy,
and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as
as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way (“Restoring
Trust between U.S. Companies and Their Government on Surveillance Issues” 3/19,
http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-onsurveillance-issues
Others have argued that the FAA shifts the burden of cooperation solely onto the company, which will
suffer greater reputational harm as a more witting participant in affirmatively granting the government’s
requests. However, companies have suffered reputational harm as a result of allegations of unwitting
cooperation. Making the cooperation known, even if it’s secret, gives the companies the opportunity to
account for it in their own planning.
2ac - AT: Foreign servers
Plan reverses incentives for companies to shift to foreign subsidiaries
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a
center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy,
and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as
as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way (“Restoring
Trust between U.S. Companies and Their Government on Surveillance Issues” 3/19,
http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-onsurveillance-issues
The move by certain U.S. companies to place subsidiaries in foreign ownership to resist requests by the
U.S. government presents an interesting twist on this idea. In shifting the balance back to increased
protections for U.S. companies, this legislation would change the incentives so that claiming U.S. law
would have operational advantages in giving companies uniformity of law for all their data. This would
also encourage the use of a single choice of law for all data governed by a company—that of the
nationality of incorporation—rather than encouraging a choice of law patchwork to govern the data as it
flows around the world.
2ac - AT: Circumvention
NSA will comply
De 14 - General Counsel, National Security Agency (Rajesh, “The NSA and Accountability in an Era of Big
Data”, JOURNAL OF NATIONAL SECURITY LAW & POLICY, 2014, p.8-10//DM)
Finally, NSA traditionally has maintained a strong culture of compliance among its workforce. Employees
receive basic mandatory training on NSA’s legal authorities and the procedures that ensure the
protection of privacy rights. Personnel also must receive refresher training throughout their career at
NSA. Follow-on training can include highly specialized legal and compliance training focused on the
specific requirements of the employee’s assigned mission. NSA has also proactively established a
corporate Director of Compliance to help ensure that legal, technical, and operational requirements of
the mission remain aligned. NSA’s compliance efforts draw from best practices across industry (such as
IT security and other heavily regulated industries like healthcare). NSA is actively engaging with the
broader compliance community to partner, to share best practices, and to understand emerging trends.
NSA is invested in the perception of compliance
Schlanger 15 [Margo, Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse., Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,
file:///C:/Users/Jonah/Downloads/Intelligence%20Legalism%20and%20the%20National%20Security%20
Agency-s%20Civil%20Li%20(2).pdf] Schloss3
In total, more than a few hundred people spend all or a substantial part of their work weeks on NSA
compliance and oversight. This enormous staffing commitment itself demonstrates real commitment to
abiding by the FISA and 12,333 rules. (In other topic areas, one might suspect that the commitment is to
being seen to abide by the rules—but the IC’s secrecy undercuts that cynical interpretation.)
Nonetheless, inevitably, the agency is far from perfectly compliant. On occasion, compliance errors have
been extremely widespread: In 2009, the government disclosed a series of significant compliance
failures to the FISA Court affecting both the internet and telephony metadata programs. These included
systemic failures to comply with the reasonable articulable suspicion standard, by use of less strictly
vetted alert lists and seed accounts; unauthorized sharing of unminimized query results with other
agency personnel; and collection of fields of metadata beyond what was allowed by court order on
nearly all the internet metadata records.91 In addition, in 2011, the government reported that the
“upstream” methods it was using to surveil American internet communications abroad were incapable
of confining NSA access to only communications that met the standard for collection.92 These were
extremely significant failures, and they prompted some moderately robust responses— creation of the
current NSA compliance office,93 augmentation of the Justice Department oversight role, 94 and some
stern (though for years secret) lectures by the FISA Court judges.
It is surely reasonable to expect better than these low points. But it would be unrealistic to demand
either perfect compliance or perfect detection of noncompliance. Both are unattainable for an
organization as complex as the NSA, governed by rulesets as complex as the Foreign Intelligence
Surveillance Act, Executive Order 12,333, and their related procedural documents. Error, after all, has
many causes. Sometimes the rules are misunderstood or miscommunicated. 96 Sometimes someone
who understands the rules makes a mistake—enters a typo, for example, 97 or seeks approval later than
the rules require.98 Sometimes, one can imagine, systems fail—a computer algorithm that is supposed
to distinguish among people with different statuses might miscategorize a new status, for example. And
sometimes people try to defeat the rules.99 In a system as massive and complicated as the NSA’s signals
intelligence program, even an extremely low rate of error can add up.100 (Although because most of the
information collected does not involve persons in the U.S. or Americans abroad, these errors frequently
do not violate anyone’s constitutional rights, under current doctrine.) Of course, each type of error can
be reduced. But compliance errors are often hydraulic—pushing out errors in one place is likely to
introduce at least some errors in another place.101 The goal, then, is not zero errors, but rather, as the
NSA’s Director of Compliance puts it, to “assure compliance at a reasonable level.” 102 NSA has not
always achieved that goal—but it musters substantial effort to do so .
2ac - AT: Section 702 weak
702 is a stronger limit on domestic surveillance than 12333
Bedoya 14 - Executive Director of the Center on Privacy and Technology at Georgetown Law (Alvaro
Bedoya, “Executive Order 12333 and the Golden Number”, Just Security, 10/9/2014,
http://justsecurity.org/16157/executive-order-12333-golden-number/)//MBB
More importantly, Litt’s explanation overlooks the fact that 12333 is a bulk collection authority – while
section 702 is not. Yes, 702 data pass through the United States. But at the end of the day, while section
702 collection may seem “bulky,” it is nonetheless an exclusively targeted collection authority. Section
702 can be used only to collect on communications to, from or (controversially) about a specific target.
There aren’t an infinite number of targets. In 2013, there were 89,138 of them.
Executive Order 12333, by contrast, allows for pure bulk collection of overseas electronic
communications. There is no requirement that electronic surveillance under 12333 be targeted at a
particular individual, organization or facility. A recent directive from the President (PPD-28) explains:
References to signals intelligence collected in “bulk” mean the authorized collection of large quantities
of signals intelligence data which, due to technical or operational considerations, is acquired without the
use of discriminants (e.g., specific identifiers, selection terms, etc.).
(Emphasis mine.) Indeed, 12333 lets the government conduct any electronic surveillance, so long as it
does so from a location abroad, so long as it does not affirmatively target a U.S. person, and so long as it
is done for a “foreign intelligence or counterintelligence purpose.”
The resultant difference in scale of collection is significant. In his 2011 opinion, Judge Bates stated that
NSA acquired over 250 million Internet communications annually under section 702; the Washington
Post revealed that a single program under 12333 collected nearly 5 billion cellphone location records
every day. This may be a bit of an apples-to-oranges comparison, but it’s an instructive one nonetheless.
The untargeted nature and massive scope of 12333 collection strongly suggest that it may be used to
collect far more U.S. person communications than are collected under section 702.
Moreover, because 12333 allows for bulk collection, it would seem to stand a high chance of capturing
Americans’ communications that are, in fact, entirely unrelated to foreign intelligence – precisely the
category of protected communications that Judge Bates found so problematic. Curiously, the new report
on 12333 from the NSA’s Civil Liberties and Privacy Office explicitly excludes bulk collection from its
analysis.
It would be great if Judge Bates could ask these questions. But he can’t. The FISC lacks jurisdiction over
12333 collection. And so it is on Congress – and on us – to fill in the gap. For section 702, the sponsors of
the USA FREEDOM Act succeeded in adding a modest but nonetheless incrementally positive provision
that would require the Director of National Intelligence to either annually disclose an estimate of the
number of Americans affected by section 702 programs, or to provide a detailed, public explanation of
why he or she cannot provide that figure (see subsection “(e)(4)” of section 603 of the bill).
FISA isn’t a rubber stamp – its approval rate is due to executive internal
compliance
Sievert 14 * Professor, Bush School of Government and U.T. Law School, author of three editions of
Cases and Materials on US Law and National Security (Ronald, “Time to Rewrite the Ill-Conceived and
Dangerous Foreign Intelligence Surveillance Act of 1978”, National Security Law Journal Vol. 3, Issue 1 –
Fall 2014)//GK
The public claim that the FISA Court is somehow a rubber stamp because most applications are eventually
approved, is completely ludicrous. This view does not reflect the real difficulty of obtaining a FISA
order.152 When the defense made a “rubber stamp” objection before the Ninth Circuit in United States v. Cavanaugh, the court noted that
the lack of rejections was “consistent with a practice of careful compliance with statutory requirements
on the part of the government.”153 Royce Lamberth, a former Chief Judge of the FISA Court, attributed the
government’s perfect record to the “superb internal review process created within DOJ,” 154 which requires
personal approval of both the Attorney General and the head of the requesting agency for each FISA application. This often results in the
submission of forty to fifty page affidavits at a minimum to FISA judges. 155 Judge Lamberth also stated that far
from granting
automatic approval of FISA requests, the Court often comes back to the government with questions and
comments about their requests and often requires intelligence agencies to modify them to meet the
Court’s standards.156 In 2013, Reggie Walton, current FISA Court presiding judge, said that “the court alters numerous government
requests for data collection or even refuses some of them, even though that may not be reflected in the final statistics that the court sends to
Congress.”157 In the opinion of Judge Richard Posner, the
positive statistics are a reflection of the fact that the
government is actually far too conservative in seeking surveillance orders . He believes that in our legalistic
culture the FBI tries to avoid violating the law and does not want to sail anywhere close to the wind. “The
analogy is to a person who has never missed a plane in his life because he contrives always to arrive at the airport eight hours before the
scheduled departure time.”158
702 has multiple layers of oversight – only .1% of cases are errors
PCLOB 14 - independent, bipartisan agency within the executive branch established by the
Implementing Recommendations of the 9/11 Commission Act (“Report on the Surveillance Program
Operated Pursuant to Sec7on 702 of the Foreign Intelligence Surveillance Act”, 07/02/14,
https://www.pclob.gov/library/702-Report.pdf)//GK p. 71
In enacting Section 702, Congress mandated additional external layers of oversight, each resulting in
reports made to Congress and the FISC. This Section describes the targeting and minimization reviews conducted by the DOJ’s
National Security Division (“NSD”) and the ODNI, the reports issued by the inspectors general, and additional oversight activities conducted by
the FISC and the Congressional Committees. A. NSD/ODNI Targeting Reviews As is discussed above, the
NSA is required under its
targeting procedures to document every targeting decision made under its targeting procedures. The record of
each targeting decision, known as a tasking sheet, includes (1) the specific selector to be tasked,312 (2) citations to
the specific documents and communications that led the NSA to determine that the target is reasonably believed to be located
outside the United States,313 (3) a narrative describing the contents of these specific documents and communications,
(4) a statement regarding the assessed U.S. person status of the target, and (5) a statement identifying the
foreign power or foreign territory regarding which the foreign intelligence information is to be acquired.314 The NSD
conducts a post-tasking review of every tasking sheet provided by the NSA;315 the ODNI reviews a
sample of these sheets. In addition to evaluating whether the tasking complied with the targeting procedures, the NSD and
ODNI review the targeting for overall compliance with the statutory limitations, such as the prohibition against
reverse targeting. If the NSD or ODNI is unable to determine whether the tasking sheet is sufficient, the NSD and ODNI will require the NSA to
provide the cited documents and communications that underlie the NSA’s foreignness determination at a bimonthly onsite review.316 The
NSD and ODNI also engage with the NSA compliance and legal personnel to ask follow-up questions
regarding the foreignness and foreign intelligence purpose determinations.317 As needed, the NSD and ODNI also seek additional information
from the CIA and FBI regarding selectors that they have nominated.318 The NSD and ODNI’s review of foreign intelligence purpose
determinations is more limited than its review of foreignness determinations insofar as the NSA analysts are required to document the basis for
their foreignness determination (i.e., they must show their work), whereas the analyst need only identify a foreign intelligence purpose. The
results of each NSD/ODNI bimonthly review are required by statute to be provided to the Congressional
Committees.319 Historically, the NSD and ODNI’s bimonthly reviews have determined that approximately
0.1% of all the NSA taskings did not meet the requirements of the NSA targeting procedures.320
Additionally but separately, the NSD and ODNI also conduct approximately monthly reviews of the FBI’s application
of its own targeting procedures.321 The NSD currently reviews every instance in which the FBI’s evaluation of
foreignness revealed any information regarding the target, regardless of whether the information confirms or rebuts the
NSA's foreignness determination. Follow-up questions regarding the FBI’s evaluation of this information are discussed with FBI analysts and
supervisory personnel.322 Like the NSA reviews, the
results of the NSD/ODNI monthly reviews regarding FBI targeting
are documented in a report that must be sent to the Congressional Committees.323 The NSD and ODNI have not
reported the historical percentage of tasking incidents that have been discovered as a result of these reviews. For the period of June through
November 2012, the overall FBI tasking
incident error rate, which would include incidents discovered by the NSD/ODNI reviews,
was 0.04%.
Not a rubber stamp - FISC approval rate isn’t lower than an Article III court
Dickerson, 15 - Julie Dickerson is currently a 3L at Harvard Law School, and previously served as Senior
Editor for the Harvard National Security Journal (“Meaningful Transparency: The Missing Numbers the
NSA and FISC Should Reveal” Harvard National Security Journal,
http://harvardnsj.org/2015/02/meaningful-transparency-the-missing-numbers-the-nsa-and-fisc-shouldreveal/
Critics of FISC argue that the 99% approval rating indicates lax overview, but the statistic does “not
reflect the fact that many applications are altered prior to final submission or even withheld from final
submission entirely, often after an indication that a judge would not approve them.” To more accurately
represent the nuance of FISC approval process, future tables should include columns for modified and
withheld applications. FISC could also present the information in a graph form, showing how many
applications were withheld, granted, and of those granted, how many were modified. A sample chart
below shows how this might be done using the following hypothetical numbers: 100 applications
withheld, 500 modified, and 1,727 granted total.
Moreover, FISC’s surveillance order approval percentages should be compared to an objective standard,
such as search warrant approval percentages by traditional criminal courts. The 2012 Federal Wiretap
Report contains a comprehensive set of publically available data regarding the number of warrants
granted and denied under the Federal Wiretap Act. The report states, “3,395 wiretaps were reported as
authorized in 2012 – 1,354 authorized by federal judges and 2,041 by state judges.” Of those authorized,
only “two state wiretap applications were denied.” This amounts to a 99.9% approval rating within the
state context and a 99.94% approval rating overall.
Section 702 means only non-US persons can be targeted – incidental collection
about US persons requires court approval and minimization
Cordero, 15 - Director of National Security Studies, Georgetown University Law Center, Adjunct
Professor of Law (Carrie, “Focusing on 702: A Brief Reply to the Brennan Center’s Liza Goitein and Faiza
Patel” Lawfare, 4/10, http://www.lawfareblog.com/focusing-702-brief-reply-brennan-centers-lizagoitein-and-faiza-patel
On the intended purpose of the 2008 amendment, I don’t think that a review of the legislative record
would show that the “primary purpose” of Section 702 - that is, the reason the legislative amendment
was sought - was to collect on U.S. persons (and/or persons in the United States, which includes both
U.S. and non-U.S. persons.) A review of the statements for the record from DOJ and DNI officials in 2007
and 2008 would reveal that the purpose was to facilitate acquisition directed at non-U.S. persons
reasonably believed to be outside the United States, for foreign intelligence purposes. Perhaps some
think that those arguments were simply subterfuge for a behind-the-scenes goal of collecting on U.S.
persons, but that impression is not supported by the record. Nor does it square with my own experience
working on these issues in government during that time period. Moreover, to the extent that those type
of concerns were held by some members of Congress at the time, the final, enacted version of the FISA
Amendments Act of 2008 included a specific prohibition on reverse targeting (targeting a non-U.S.
person for collection with the actual goal of collecting the communications of a U.S. person), as well as
court approval of the targeting and minimization procedures.
Incidental collection of U.S. persons was foreseen and expected; that’s why there are minimization
procedures that provide rules for how those communications must be handled. But when the
government sought 702 authority, it did so for the purpose of facilitating the targeting of non-U.S.
persons outside the United States for foreign intelligence purposes.
As to effect, Section 702 does not “remove the requirement for an individualized order for the
acquisition of communications between foreign targets and U.S. persons,” as Liza and Faiza describe it,
in circumstances when the target of the collection is a U.S. person, or, any person in the U.S. Instead, if
the U.S. government seeks to target for collection a U.S. person anywhere in the world (including the
U.S., of course), or a non-U.S. person inside the United States, the government must obtain a probable
cause based order from the Foreign Intelligence Surveillance Court.
Current 702 regulations provide the public with transparency and reasonably fit
under the Fourth Amendment
PCLOB 14 - independent, bipartisan agency within the executive branch established by the
Implementing Recommendations of the 9/11 Commission Act (“Report on the Surveillance Program
Operated Pursuant to Sec7on 702 of the Foreign Intelligence Surveillance Act”, 07/02/14,
https://www.pclob.gov/library/702-Report.pdf)//GK
The Board’s legal analysis of the Section 702 program includes an evaluation of whether it comports
with the terms of the statute, an evaluation of the Fourth Amendment issues raised by the program, and
a discussion of the treatment of non-U.S. persons under the program. In reviewing the program’s
compliance with the text of Section 702, the Board has assessed the operation of the program overall
and has separately evaluated PRISM and upstream collection. On the whole, the text of Section 702
provides the public with transparency into the legal framework for collection, and it publicly outlines the
basic structure of the program. The Board concludes that PRISM collection is clearly authorized by the
statute and that, with respect to the “about” collection, which occurs in the upstream component of the
program, the statute can permissibly be interpreted as allowing such collection as it is currently
implemented. The Board also concludes that the core of the Section 702 program — acquiring the
communications of specifically targeted foreign persons who are located outside the United States,
upon a belief that those persons are likely to communicate foreign intelligence, using specific
communications identifiers, subject to FISA court–approved targeting rules and multiple layers of
oversight — fits within the “totality of the circumstances” standard for reasonableness under the Fourth
Amendment, as that standard has been defined by the courts to date. Outside of this fundamental core,
certain aspects of the Section 702 program push the program close to the line of constitutional
reasonableness. Such aspects include the unknown and potentially large scope of the incidental
collection of U.S. persons’ communications, the use of “about” collection to acquire Internet
communications that are neither to nor from the target of surveillance, and the use of queries to search
for the communications of specific U.S. persons within the information that has been collected. With
these concerns in mind, this Report offers a set of policy proposals designed to push the program more
comfortably into the sphere of reasonableness, ensuring that the program remains tied to its
constitutionally legitimate core.
Status Quo 702 protections of non – U.S. persons solve
PCLOB 14 - independent, bipartisan agency within the executive branch established by the
Implementing Recommendations of the 9/11 Commission Act (“Report on the Surveillance Program
Operated Pursuant to Sec7on 702 of the Foreign Intelligence Surveillance Act”, 07/02/14,
https://www.pclob.gov/library/702-Report.pdf)//GK p. 99
A number of provisions of Section 702, as well as provisions in other U.S. surveillance laws, protect the privacy of U.S. and
non-U.S. persons alike. These protections can be found, for example, in (1) limitations on the scope of authorized
surveillance under Section 702; (2) damages and other civil remedies that are available to subjects of
unauthorized surveillance as well as sanctions that can be imposed on government employees who engage in
such conduct; and (3) prohibitions on unauthorized secondary use and disclosure of information acquired
pursuant to the Section 702 program. These sources of statutory privacy protections are discussed briefly. The first important privacy
protection provided to non-U.S. persons is the
statutory limitation on the scope of Section 702 surveillance, which requires that
targeting be conducted only for purposes of collecting foreign intelligence information.440 The definition
of foreign intelligence information purposes is limited to protecting against actual or potential attacks; protecting
against international terrorism, and proliferation of weapons of mass destruction; conducting counterintelligence; and collecting information with respect to a foreign power or foreign territory that concerns U.S.
national defense or foreign affairs.441 Further limitations are imposed by the required certifications identifying the specific categories of
foreign intelligence information, which are reviewed and approved by the FISC.442 These limitations do not permit unrestricted collection of
information about foreigners. The second group of statutory privacy protections for non-U.S. persons are the penalties that apply
to
government employees who engage in improper information collection practices — penalties that apply whether
the victim is a U.S. person or a non-U.S. person. Thus, if an intelligence analyst were to use the Section 702 program
improperly to acquire information about a non-U.S. person (for example, someone with whom he or she may have had a personal
relationship), he or she could be subject not only to the loss of his or her employment, but to criminal prosecution.443
Finally, a non-U.S. person who was a victim of a criminal violation of either FISA or the Wiretap Act could be entitled
to civil damages and other remedies.444 In sum, if a U.S. intelligence analyst were to use the Section 702 program to collect
information about a non-U.S. person where it did not both meet the definition of foreign intelligence and relate to one of the certifications
approved by the FISA court, he or she could face not only the loss of a job, but the prospect of a term of imprisonment and civil damage suits.
The third privacy protection covering non-U.S. persons is the statutory restriction on
improper secondary use found at 50
U.S.C. § 1806, under which information acquired from FISA-related electronic surveillance may not “be used or
disclosed by Federal officers or employees except for lawful purposes.”445 Congress included this language “to insure
that information concerning foreign visitors and other non-U.S. persons . . . is not used for illegal purposes.”446 Thus, use of Section 702
collection for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender,
sexual orientation, or religion, would violate Section 1806.
Section 702 is strictly regulated and rarely and has multiple agency oversight
PCLOB, 14 - Privacy and Civil Liberties Oversight Board [Report on the Surveillance Program Operated
Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, https://www.pclob.gov/library/702Report.pdf] Schloss
In PRISM collection, the government sends a selector, such as an email address, to a United Statesbased electronic communications service provider, such as an Internet service provider (“ISP”), and the
provider is compelled to give the communications sent to or from that selector to the government.
PRISM collection does not include the acquisition of telephone calls. The National Security Agency
(“NSA”) receives all data collected through PRISM. In addition, the Central Intelligence Agency (“CIA”)
and the Federal Bureau of Investigation (“FBI”) each receive a select portion of PRISM collection.
Upstream collection differs from PRISM collection in several respects. First, the acquisition occurs with
the compelled assistance of providers that control the telecommunications “backbone” over which
telephone and Internet communications transit, rather than with the compelled assistance of ISPs or
similar companies. Upstream collection also includes telephone calls in addition to Internet
communications. Data from upstream collection is received only by the NSA: neither the CIA nor the FBI
has access to unminimized upstream data. Finally, the upstream collection of Internet communications
includes two features that are not present in PRISM collection: the acquisition of so-called “about”
communications and the acquisition of so-called “multiple communications transactions” (“MCTs”). An
“about” communication is one in which the selector of a targeted person (such as that person’s email
address) is contained within the communication but the targeted person is not necessarily a participant
in the communication. Rather than being “to” or “from” the selector that has been tasked, the
communication may contain the selector in the body of the communication, and thus be “about” the
selector. An MCT is an Internet “transaction” that contains more than one discrete communication
within it. If one of the communications within an MCT is to, from, or “about” a tasked selector, and if
one end of the transaction is foreign, the NSA will acquire the entire MCT through upstream collection,
including other discrete communications within the MCT that do not contain the selector.
Each agency that receives communications under Section 702 has its own minimization procedures,
approved by the FISA court, that govern the agency’s use, retention, and dissemination of Section 702
data.11 Among other things, these procedures include rules on how the agencies may “query” the
collected data. The NSA, CIA, and FBI minimization procedures all include provisions permitting these
agencies to query data acquired through Section 702, using terms intended to discover or retrieve
communications content or metadata that meets the criteria specified in the query. These queries may
include terms that identify specific U.S. persons and can be used to retrieve the already acquired
communications of specific U.S. persons. Minimization procedures set forth the standards for
conducting queries. For example, the NSA’s minimization procedures require that queries of Section
702–acquired information be designed so that they are “reasonably likely to return foreign intelligence
information.”
The minimization procedures also include data retention limits and rules outlining circumstances under
which information must be purged. Apart from communications acquired by mistake, U.S. persons’
communications are not typically purged or eliminated from agency databases, even when they do not
contain foreign intelligence information, until the data is aged off in accordance with retention limits.
Each agency’s adherence to its targeting and minimization procedures is subject to extensive oversight
within the executive branch, including internal oversight within individual agencies as well as regular
reviews conducted by the Department of Justice (“DOJ”) and the Office of the Director of National
Intelligence (“ODNI”). The Section 702 program is also subject to oversight by the FISA court, including
during the annual certification process and when compliance incidents are reported to the court.
Information about the operation of the program also is reported to congressional committees. Although
there have been various compliance incidents over the years, many of these incidents have involved
technical issues resulting from the complexity of the program, and the Board has not seen any evidence
of bad faith or misconduct
Section 702 promotes regulations to make sure that U.S. citizens are not under
surveillance
Mann, research associate, 14 [Scott F., research associate with the Strategic Technologies Program
at the Center for Strategic and International Studies (CSIS) in Washington, D.C. research associate with
the Strategic Technologies Program at the Center for Strategic and International Studies (CSIS) in
Washington, D.C. , Fact Sheet: FISA Section 702, http://csis.org/publication/fact-sheet-fisa-section-702]
Schloss
Issue: Does Section 702 of the Foreign Intelligence Surveillance Act (FISA), which regulates the collection
of information from non-U.S. persons located abroad, result in the indirect, warrantless collection of
U.S. persons’ data?
Background: Section 702 of FISA, added under the FISA Amendments Act of 2008 (FAA), and
subsequently extended until 2017 via the FISA Amendments Act Reauthorization Act of 2012, provides
the authorities for the collection of foreign communications, including phone and email data, by the NSA
and establishes procedures for targeting non-U.S. persons believed to be outside the U.S. for foreign
intelligence collection purposes. The Attorney General and the Director of National Intelligence are
granted the authority to determine surveillance targets for periods up to one year as long as the
collection has a “significant” foreign intelligence purpose, is not aimed at U.S. persons or persons within
the U.S., and that they have undertaken minimization procedures to protect the collected data. Section
702 collection focuses on foreign individuals located outside of the U.S.
Controversy: The use of surveillance authorities under Section 702 has sparked concern about the
potential for warrantless surveillance of U.S. persons. While Section 702 explicitly prohibits both the
direct and indirect intentional targeting of U.S. persons or of any person known to be in the U.S., the
communications of some U.S. persons are occasionally collected in the course of legitimate surveillance
operations. The Washington Post reported that a leaked NSA program audit from May 2012 “counted
2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution
of legally protected communications.”
Assessment: Compliance issues are not willful violations. Rather, they are often the result of changes or
weaknesses in software technology, computer errors, or operator mistakes, each of which is reported as
an incident. The recently declassified 2013 “Semiannual Assessment of Compliance with Procedures and
Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” found a less than
half-percent incident compliance rate. Of the compliance incidents the joint oversight team assessed in
the semi-annual report, it did not identify any evidence of deliberate or intentional attempts to violate
or circumvent the requirements of FISA.
Section 702 actually expands the FISC’s oversight of foreign intelligence collection to an area it
previously didn’t oversee: “the surveillance, for foreign intelligence purposes, of foreigners overseas.”
FISA includes oversight mechanisms to prevent misuse for 702 collections. These include oversight by
the FISC of all 702 collection activities, the review and approval by the FISC of all targeting and
minimization procedures, regular reporting to Congress on Section 702 collection, and regular reviews
by independent Executive Branch Inspectors General.
New reforms to Section 702 protect against incidental collection and abuse
Litt, Counsel Office of the Director of National Surveillance, 15 [Robert S., second General
Counsel of the Office of the Director of National Intelligence, U.S. Intelligence Community Surveillance
One Year After President Obama’s Address, file:///C:/Users/Jonah/Downloads/3_NatlSecLJ_210231_Litt.pdf] Schloss1
But to address these concerns further, the President in his speech directed the Attorney General and the
DNI to “institute reforms that place additional restrictions on government’s ability to retain, search, and
use in criminal cases, communications between Americans and foreign citizens incidentally collected
under Section 702.”12 We are doing so.
First, as the PCLOB recommended, agencies have new restrictions on their ability to look through 702 collection
for information about U.S. persons. The agencies’ various rules are described in the report we issued yesterday.13 It’s important
to note that different agencies in the Intelligence Community have been charged by Congress and the President with focusing on different
intelligence activities. For example, NSA focuses on signals intelligence; CIA collects primarily human intelligence; and FBI has a domestic law
enforcement focus. Because these agencies’ missions are different, their internal governance and their IT systems have developed differently
from one another, and so the specifics of their procedures differ somewhat. But they will all ensure that information about U.S. persons
incidentally collected pursuant to Section 702 is only made available to analysts and agents when appropriate.
Second, we have reaffirmed that intelligence
agencies must delete communications acquired pursuant to Section
702 that are to, from, or about U.S. persons if the communications are determined to be of no foreign
intelligence value, and we have strengthened oversight of this requirement.
Third, the Government will use information acquired under Section 702 as evidence against a person in a criminal case only incases related to
national security or for certain other enumerated serious crimes,14 and only when the Attorney General approves. In his remarks as delivered,
Mr. Litt went on to describe the “enumerated serious crimes" for which the U.S.
Government will use information acquired
under Section702 as evidence against a person. Under the new policy, in addition to any other
limitations imposed by applicable law, including FISA, any communication to or from, or information
about, a U.S. person acquired under Section 702 of FISA shall not be introduced as evidence against that
U.S. person in any criminal proceeding except (1) with the prior approval of the Attorney General and (2) in (A)
criminal proceedings related to national security (such as terrorism, proliferation, espionage, or cybersecurity) or (B) other prosecutions of
crimes involving (i) death; (ii) short, we have taken concrete steps to ensure that there are limits on our ability
to identify and use information about U.S. persons that we incidentally collect under Section 702.
PPD-28 mechanism
1ac - plan – PPD-28
Version 1:
The United States federal government should limit domestic surveillance for foreign intelligence
purposes of American corporations exclusively to authority under section 702 of the FISA Amendments
Act, subject to additional use restrictions in Presidential Policy Directive 28.
Version 2:
The United States federal government should substantially curtail its surveillance of information in the
custody of American corporations by exclusively limiting surveillance to investigations carried out under
section 702 of the FISA Amendments Act, subject to additional use restrictions in Presidential Policy
Directive 28.
1ac – PPD-28 solvency addition
Applying the restrictions of PPD-28 to section 702 eliminates all negative
perceptions of overbreadth
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy &
Technology (Greg, “COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING
REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA” 4/11)
To address the problem of overbreadth in Section 702 collection, PCLOB should recommend that Section
702 surveillance be conducted only for carefully defined national security purposes. While there are
different ways to do this, the best way would be to turn the “use restrictions” in PPD-28 that govern
bulk collection into the permissible purposes for Section 702 surveillance.
This would require that collection pursuant to Section 702 only occur for purposes of detecting and
countering: (1) espionage and other threats and activities directed by foreign powers or their
intelligence services against the United States and its interests, (2) threats to the United States and its
interests from terrorism, (3) threats to the United States and its interests from the development,
possession, proliferation, or use of weapons of mass destruction, (4) cybersecurity threats, (5) threats to
U.S. or allied Armed Forces or other U.S or allied personnel, and (6) transnational criminal threats,
including illicit finance and sanctions evasion related to the other purposes named above. This change
would provide significant comfort to non-U.S. persons abroad who are concerned about the impact on
their human rights that Section 702 surveillance would otherwise have. Indeed, it would increase the
likelihood that Section 702 surveillance would meet human rights standards.
It would also focus Section 702 surveillance on true national security threats and still provide significant
leeway to intelligence officials. We note that each time intelligence officials at the March 19 PCLOB
hearings on Section 702 described the DNI certifications that identify the categories of foreign
intelligence information that may be collected pursuant to Section 702, they mentioned one of these six
categories of information.
Another way to limit to national security the purposes for collection pursuant to Section 702 would be
to remove “the conduct of foreign affairs” as a basis for collection. If adopted, this reform would permit
collection under Section 702 for the purpose of obtaining (1) information that relates to the ability of
the U.S. to protect against a hostile attack, espionage, sabotage or international terrorism or
proliferation of weapons of mass destruction, or (2) information with respect to a foreign territory or
foreign power (a foreign government, political party, or entity controlled by a foreign government, or a
foreign terrorist organization) that relates to the security of the U.S. Such a change would be consistent
with the stated counterterrorism purpose of Section 702. Refining the purpose for which surveillance
under Section 702 may be conducted would not prevent the Intelligence Community from gathering
information related to the conduct of foreign affairs, but rather would merely remove the highly
invasive practice of compelled company disclosure of communications content absent judicial review as
a means of doing so.
2ac – PPD-28 key to global modeling
Solvency – global modeling
The plan restores US cred as a global leader on privacy by limiting the FAA
Edgar, 4/13/15 - visiting fellow at the Institute and adjunct professor of law at the Georgetown
University Law Center (Timothy, “The Good News About Spying”
https://www.foreignaffairs.com/articles/united-states/2015-04-13/good-news-about-spying
NEXT STEPS
Has surveillance reform gone far enough? Hardly. Obama has taken the first steps, but the government
should take six more to enhance public confidence in surveillance programs.
First, the intelligence community should do even more to increase transparency. IC on the Record is a
good start, but it is mostly reactive, providing context to programs that Snowden had already leaked.
The intelligence community should continue to release as much as it possibly can about surveillance
programs without compromising sources and methods—even if they have not been leaked. Given
Snowden’s widespread public acclaim, coming clean about such controversial intelligence programs is
not just good government, but also provides the surest way to preserve vital intelligence capabilities.
With greater transparency, intelligence agencies can stay one step ahead of future leakers and earn
back the trust of a skeptical public.
The United States should also pivot from its defensive position and take the lead on global privacy. The
United States has an impressive array of privacy safeguards, and it has even imposed new ones that
protect citizens of every country. Despite their weaknesses, these safeguards are still the strongest in
the world. The U.S. government should not be shy about trumpeting them, and should urge other
countries to follow its lead. It could begin by engaging with close allies, like the United Kingdom,
Germany, and other European countries, urging them to increase transparency and judicial supervision
of their own communications surveillance activities.
The government also needs to finish the job on telephone records. The law that allows for bulk
collection of telephone records is set to expire on June 1, 2015. Congress should act now to pass
sensible reforms that would replace bulk collection with a privacy-preserving alternative. The only truly
viable option remains the bill that died in November last year.
Washington also needs to work with U.S. technology companies to reform PRISM and other surveillance
programs that have been an embarrassment for U.S. companies. Congress should narrow the FISA
Amendments Act of 2008 that authorizes PRISM . That law allows the government to obtain secret
court orders targeting communications that include foreign participants of interest to the NSA with the
compelled assistance of U.S. companies. Congress could start by limiting such orders to the same six
specific serious security threats that are included in Obama’s policy directive for bulk signals
intelligence collection.
PPD-28 not applied to 702
Obama PPD doesn’t solve section 702 perception problems – it’s not applied to
it
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy &
Technology (Greg, “COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING
REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA” 4/11)
The Presidential Policy Directive that President Obama issued on January 17, 2014 (PPD-28),7 while
remarkable in many ways, does not sufficiently address this problem. It prohibits the government from
collecting signals intelligence for the purpose of suppressing or burdening criticism or dissent, but that
prohibition permits the continued collection of information about such expressive activities merely
because they are relevant to U.S. foreign affairs.
On the other hand, PPD-28 does include very important restrictions on the use of information collected
in bulk for foreign intelligence purposes. They seem carefully thought out, and each permitted use of
information collected in bulk would directly advance U.S. national security interests. These are among
the most significant provisions of PPD-28, but they do not apply to Section 702 because it is not
considered a bulk collection program.8
Internationality requirement mechanism
1ac – plan – intentionality requirement
The United States federal government should curtail its surveillance of information in the custody of
American corporations by exclusively limiting its surveillance to investigations carried out under section
702 of the FISA Amendments Act. The United States federal government should amend section 702 to
require that the target of surveillance must be a foreign power or its agent, require executive branch
certification that the collection of foreign intelligence must be the primary purpose of and likely
outcome of programmatic surveillance, and require FISA Court review of executive certification. Any
executive surveillance that cannot satisfy this internationality requirement should be subject to Title III
warrant requirements.
1ac – internationality requirement solvency
The plan’s amendment to 702 solves the risk of abuse without ending
programmatic surveillance
Goitein and Patel 15 - Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Served
as counsel to Sen. Russell Feingold with a particular focus on government secrecy and privacy rights. Was a trial attorney in the Federal
Programs Branch of the Civil Division of the Department of Justice. Graduated from the Yale Law School and clerked for the Honorable Michael
Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit. Faiza Patel serves as co-director of the Brennan Center for Justice’s Liberty and
National Security Program. Clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Ms. Patel is a graduate of
Harvard College and the NYU School of Law. (Elizabeth and Faiza, “What went wrong with the FISA court”, Brennan Center for Justice at New
York University School of Law, 2015 //DM)
As the above discussion makes clear, the key to reforming the FISA Court is ending programmatic
surveillance. If such surveillance continues, serious Article III and Fourth Amendment problems will be
unavoidable. It is nonetheless worth noting that, as a policy matter, incorporating the reforms set forth
in Parts V.B and V.C, above, into programmatic surveillance would enhance privacy and strengthen the
judiciary’s role.
Specifically, if programmatic surveillance continues, Congress should amend Section 702 to require that
the target of surveillance must be a foreign power or its agent. It should narrow the definition of foreign
intelligence as discussed above. It should require the executive branch to certify that the collection of
foreign intelligence is both the primary purpose and the likely outcome of the programmatic activities,
and empower the FISA Court to review that certification on its substance. All of these changes would
nudge programmatic surveillance in the right direction on the Fourth Amendment reasonableness
spectrum — even if, in our view, they would not go far enough.288
Moreover, additional steps should be taken that would make the court’s limited role more meaningful.
More specific statutory requirements for targeting and minimization procedures would enhance the
FISA Court’s ability to ensure that the agencies conducting surveillance are complying with the law.
Currently, the criteria for these procedures are so subjective and open-ended, they provide no useful
benchmark for the court to apply. They also permit a level of vagueness in the agency’s own procedures
that renders the court’s facial review a hollow exercise.289
Finally, Congress should require the government, on a periodic basis, to submit to the FISA Court for its
review a list of the selection terms used to acquire electronic communications under Section 702. For
each selection term, the government should summarize succinctly the facts supporting its use. This
would provide the FISA Court with a concrete factual basis on which to evaluate the constitutionality of
foreign intelligence surveillance activities. The government’s determinations should be reviewed by the
court for clear error, with the government required to cease collection (and purge any already collected
information) in cases that fall below that low bar.290
Strengthening FISA’s internationality requirement means wholly domestic cases
will be limited by a Title III warrant – that curtails FISA overreach
Harper 14, University of Chicago Law School, U.S. Department of Justice, Civil Division, (Nick, “FISA’s
Fuzzy Line between Domestic and International Terrorism”, University of Chicago Law Review;
Summer2014, Vol. 81 Issue 3)//AK
Due to the strong possibility that certain interpretations of FISA’s nebulous internationality requirement
pose serious constitutional questions, a more tailored interpretation of the language is needed in order
to precisely identify the foreign policy interests that distinguish international terrorism.197 To that end,
this Comment proposes that FISA’s international terrorism provision should be satisfied only if an
individual engages in terrorist activities198 and there is probable cause to believe that either of the
following internationality conditions are met: (1) the terrorist activities are intended to impair significant
interests of a foreign power in the United States or abroad, or (2) the terrorist activities are achieved
through a knowing provision or receipt of material support to or from a foreign organization or a foreign
power. If this test is not satisfied, the government must meet the more rigorous warrant requirements
of Title III in order to perform electronic surveillance on the individual or group in question (assuming
that the individual or group does not qualify as any other “foreign power” or “agent of a foreign power”
under FISA).
This interpretation of FISA’s internationality requirement has several advantages. First, it provides a
refined method of sorting between international and domestic terrorism that is more aligned with FISA’s
legislative history and better attuned to the foreign policy interests that underlie the constitutional
distinction between the groups. The proposed test covers the typical case of international terrorism: an
al-Qaeda agent operating in the United States would always be considered an international terrorist
because he is knowingly providing material support to a foreign organization. The material-support
requirement would embody the definition of “material support or resources” in 18 USC § 2339A(b)(1),
which defines the minimum level of involvement in terrorist activities necessary to warrant criminal
prosecution. The statute defines “material support or resources” as:
[A]ny property, tangible or intangible, or service, including currency or monetary instruments or
financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false
documentation or identification, communications equipment, facilities, weapons, lethal substances,
explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except
medicine or religious materials.199
This standard better ensures that international terrorists have the “substantial international character”
that FISA’s enacting legislature desired.200 Indeed, Congress intended that the support necessary to
satisfy FISA’s internationality requirement be “material, technical, training, or other substantive
support,” rather than “moral or vocal support,” closely approximating the spirit of the current materialsupport statute.201
On the other hand, purely domestic groups would never be engaged in international terrorism under
this test unless they intend to impair significant foreign interests or knowingly provide or receive
material support to or from a foreign organization or a foreign power. Defining what constitutes a
“significant interest” of a foreign power will be one of the greatest challenges in implementing this test.
However, as the test’s purpose is to identify situations in which the government’s foreign policy
interests are triggered, “significant interests of a foreign power” should cover targets of terrorism that
would cause diplomatic crises, such as attacks by domestic groups on foreign soil or attacks within the
United States that are tantamount to acts of war (embassy attacks, assassinations of foreign dignitaries,
and so forth).202 It likely should not cover acts of terror by domestic groups within the United States
that happen to victimize a disproportionate number of foreigners (such as an attack on a popular
domestic tourist attraction).203 Although there will clearly be a line-drawing problem,204 a high
threshold should be set in order to prevent the sort of expansionary interpretation that is possible under
the current FISA regime.
A strengthened internationality requirement provides clear standards for
oversight and preventing abuse
Harper 14, University of Chicago Law School, U.S. Department of Justice, Civil Division, (Nick, “FISA’s
Fuzzy Line between Domestic and International Terrorism”, University of Chicago Law Review;
Summer2014, Vol. 81 Issue 3)//AK
Most importantly, this test more accurately categorizes groups that straddle the line between domestic
and international terrorism, such as groups that act parallel to, but without direction from, an
international terrorist group. It does so by greatly reducing the chance that tangential international
connections will transform otherwise-domestic activity into international terrorism. For example, under
the proposed test, Abdul-Latif would not be considered an international terrorist and his surveillance
would have been subject to the more rigorous Title III procedures. The military entrance processing
station that he planned to attack in Seattle would not constitute a significant foreign interest. Moreover,
his international connections on YouTube would not satisfy the material-support standard because he
neither provided nor was provided with anything approaching material support as defined in 18 USC §
2339A(b)(1), such as training or expert advice.205 This is a sensible result because, as discussed
above,206 it is difficult to see how Abdul- Latif’s conspiracy triggered any of the government’s foreign
affairs interests.
These borderline groups are further protected by the foreign organization requirement. To take the
example mentioned above, purchasing weapons from a friend in Mexico likely does not implicate
foreign policy interests, unless that friend is part of a foreign organization, because such a purchase
does not directly strengthen international terrorist networks. Moreover, there is no need for greater
secrecy in such a case because the seller is unlikely to be intimately connected to the politics of a foreign
nation. Rather, to trigger these interests, there should be a significant link to a foreign organization that
at least resembles the types of foreign terrorist organizations designated by the secretary of state.207
Additionally, to show that a group is a foreign organization, it would be necessary not to point to a base
in a specific country, but rather to show that the group does not operate solely in the United States.
The foreign-organization requirement would also have prevented the actions of the group in Duka from
falling into the category of international terrorism. The most serious potential international link in that
case was the admission of one group member that the group would need to receive a fatwa before it
could attack.208 Arguably, this conversation evidences sufficient agency such that the Duka group was
providing “personnel” under the material-support statute.209 However, there is no evidence that the
fatwa referenced in the conversation would have been issued by an individual affiliated with a foreign
organization. Thus, even if the conversation constitutes material support, it does not meet the
requirement that such support be provided to, or received from, a foreign organization or foreign
power.
Another advantage of the proposed test is that it achieves greater precision in the sorting of terrorist
groups while remaining consistent with FISA’s language, limiting it only to the extent necessary to
prevent the targeting of groups that do not implicate foreign affairs interests. For instance, both FISA’s
text and the proposed standard agree that members of purely domestic groups who seek asylum in a
foreign nation are international terrorists. FISA explicitly recognizes this situation,210 and under the
proposed test, such a group would qualify as international because asylum qualifies as material support
from a foreign power.211 This makes sense because a domestic terrorist who seeks asylum in a foreign
nation certainly risks causing a foreign-relations crisis.212 Additionally, the material-support and
“significant foreign- interest” requirements mirror FISA’s language that international terrorist activities
must “transcend national boundaries” either through the “means by which they are accomplished” or
with respect to the “persons they appear intended to coerce or intimidate.”213 While the test does limit
the viable interpretations of FISA’s internationality provision, the foregoing discussion has demonstrated
that it does so only in order to avoid potential constitutional violations by more precisely identifying
cases in which the government’s foreign policy interests are at stake.
Finally, this test would potentially increase the efficacy of ex post judicial oversight of surveillance
targeting by allowing for easy analogy to the existing definition of “material support or resources” and
its accompanying case law. Instead of analyzing whether the target’s activities transcended national
boundaries— a hopelessly nebulous standard with no helpful analogue elsewhere in the law—judges
could look to existing material support case law to make more-informed decisions about whether the
government satisfied probable cause.214 Moreover, the ability of defendants to access these
comparative materials would provide some much-needed balancing to the skewed FISA adversarial
process.
2ac – internationality requirement solves
FISA’s internationality requirement is blurring – allowing surveillance of purely
domestic groups
Harper 14, University of Chicago Law School, U.S. Department of Justice, Civil Division, (Nick, “FISA’s
Fuzzy Line between Domestic and International Terrorism”, University of Chicago Law Review;
Summer2014, Vol. 81 Issue 3)//AK
The Foreign Intelligence Surveillance Act of 1978 (FISA) regulates, among other things, the government’s
acquisition of electronic surveillance within the United States for foreign intelligence purposes. FISA
allows a federal officer to seek an order from a judge at a specially designated court “approving
electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining
foreign intelligence information.” As long as the requisite foreign nexus can be shown, FISA warrants are
preferable to their possible substitutes because they are easier to obtain and allow for more secretive
and penetrating investigations.
Consistent with FISA’s foreign focus, the government may use the statute to investigate members of
international terrorist groups within the United States. However, the activities of purely domestic
terrorist groups do not fall under FISA and must therefore be investigated using standard criminal
investigative tools. Often, terrorists will easily be identified as international; members of designated
“foreign terrorist organizations” operating within the United States are clearly international terrorists.
But the proliferation of modern communication technologies has caused increasing slippage between
the definitions of domestic and international terrorism . For example, many homegrown terrorists are
inspired by international groups to commit attacks in the United States. In many cases, the government
seems to classify these actors as international terrorists based on Internet activity that ranges from
viewing and posting jihadist YouTube videos to planning attacks with suspected foreign terrorists in chat
rooms, thus using FISA’s formidable investigatory weapons against them. The government is aided in
this task by FISA’s definition of international terrorism, which has an extremely vague and potentially
loose internationality requirement. An expansive interpretation of this requirement could be used to
subject what might properly be considered domestic terrorist groups to FISA surveillance.
One should be concerned about both the existence and the effects of an expansive interpretation of
FISA’s internationality requirement. Not only would subjecting domestic terrorist groups to FISA
surveillance violate FISA itself, but such an application might also be unreasonable under the Fourth
Amendment. Moreover, the FISA application and surveillance process is very secretive, lacks a true
adversarial process, and is devoid of meaningful oversight. This setting offers an ideal environment for
the government to push statutory and constitutional boundaries. Indeed, recent revelations from
Edward Snowden offer confirmation that the government is more likely to cross constitutional lines in
the name of national security when these institutional factors are present.
Strengthening the internationality requirement creates Fourth Amendment
protection against domestic surveillance
Harper 14, University of Chicago Law School, U.S. Department of Justice, Civil Division, (Nick, “FISA’s
Fuzzy Line between Domestic and International Terrorism”, University of Chicago Law Review;
Summer2014, Vol. 81 Issue 3)//AK
Part II demonstrated that FISA has drawn an imprecise line between international and domestic
terrorism. The requirement that a group’s activities transcend national boundaries, when combined
with FISA’s procedural secrecy and the proliferation of modern communication technologies, gives the
government the ability and the incentive to push the definition of international terrorism beyond its
intended boundaries. Additionally, two cases demonstrate that the government may have already
crossed that line. Arguably, though, this boundary pushing is not problematic. It may seem anachronistic
to contend that FISA is operating outside its intended boundaries when the world today is much more
technologically advanced and globally integrated than the 1978 Congress could have envisioned. Such a
broad interpretation of the internationality requirement still fits within the language’s plain meaning
and might be better seen as necessary statutory evolution than as a statutory violation. However, even
if the targeting of quasi-domestic groups using an evolving interpretation of FISA’s language is not a
statutory violation, it is still possible that using FISA to investigate these groups violates the Fourth
Amendment.
To answer whether such targeting violates the Fourth Amendment, Section A first explores why the
Fourth Amendment demands different treatment of domestic and international terrorist groups. It
argues that the government’s foreign policy interests in the international terrorism context result in less
Fourth Amendment protection for those groups. Section B demonstrates how FISA could be interpreted
to cover groups that should properly be considered domestic under the Fourth Amendment. It then
argues that two FISA procedures likely violate the Fourth Amendment when applied to domestic
terrorist groups. Finally, Section C proposes a more limited interpretation of FISA’s internationality
requirement—one that is in line with the text and legislative history of the statute and that sorts
terrorists based on the presence of the government’s foreign policy interests.
2ac – primary purpose test solves
The significant purpose test means provides cover for illegal domestic
surveillance – the primary purpose test prevents abuse
Goitein and Patel 15 - Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Served
as counsel to Sen. Russell Feingold with a particular focus on government secrecy and privacy rights. Was a trial attorney in the Federal
Programs Branch of the Civil Division of the Department of Justice. Graduated from the Yale Law School and clerked for the Honorable Michael
Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit. Faiza Patel serves as co-director of the Brennan Center for Justice’s Liberty and
National Security Program. Clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Ms. Patel is a graduate of
Harvard College and the NYU School of Law. (Elizabeth and Faiza, “What went wrong with the FISA court”, Brennan Center for Justice at New
York University School of Law, 2015//DM)
Contrary to the requirements articulated by several federal courts, Congress, backed by the FISA
Appeals Court, has allowed the government to conduct warrantless surveillance even when collecting
foreign intelligence is not its primary purpose.
As discussed, the most influential court of appeals decision permitting warrantless collection of foreign
intelligence (Truong) held that obtaining foreign intelligence must be the “primary purpose” of
collection. Other courts took a similar position.249 While these cases involved surveillance that targeted
U.S. persons, rather than surveillance of communications between foreign targets and U.S. persons, the
rationale for the requirement — to avoid an end-run around warrants in domestic criminal cases —
applies in both settings.
The Patriot Act, by contrast, adopted a “significant purpose” test, under which collection may take place
even if the government’s primary purpose is to gather evidence for a criminal prosecution. (The link to a
foreign intelligence purpose was further attenuated by Section 702 of the FISA Amendments Act, which
allows the government to certify that the acquisition of foreign intelligence is a significant purpose of
the program as a whole, rather than requiring such a certification for each target.) In a 2002 decision,
the FISA Court held that blurring the line between foreign intelligence and criminal investigations could
allow criminal prosecutors to bypass the warrant requirement by appropriating more flexible FISA tools
in cases where “the government is unable to meet the substantive requirements” of a regular warrant,
or where the administrative burdens of obtaining one are deemed “too onerous.”250
The FISA Appeals Court, however, disagreed and reversed, reasoning that criminal prosecutions “can be,
and usually are, interrelated with other techniques used to frustrate a foreign power’s efforts.”251 Even
where foreign intelligence is gathered for use in a criminal prosecution, the ultimate aim is still “to
counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a
secondary objective.”252 By contrast, the court opined, the purpose of criminal law is to punish
individual wrongdoers and deter others from following in their footsteps. Accordingly, the FISA Appeals
Court concluded that acquiring foreign intelligence information for the purpose of bringing a criminal
prosecution is consistent with Supreme Court case law holding that “special needs” can justify
warrantless searches only outside the law enforcement context.
This reasoning was a stretch at best. Without citing any authority, the court assumed that “ordinary”
criminal prosecutions differ from terrorism investigations because they are intended primarily to punish
or deter crime. It ignored the fact that almost all prosecutions may be framed as serving broader
societal purposes. Quite aside from punishment or deterrence, prosecutions of gang violence are
intended to protect community safety and vitality; prosecutions of drug offenses are intended to
promote public health; prosecutions of insider trading are intended to ensure the stability and integrity
of financial markets; etc. The Supreme Court has clearly held that such broader motives cease to justify
warrantless searches at the moment the “immediate objective” shifts to criminal investigation or
prosecution.253 Thus, for instance, a hospital’s program to test obstetrics patients for drug use in order
to improve fetal health was struck down because it involved referring those who tested positive to
criminal authorities for prosecution.254
At bottom, the FISA Appeals Court’s analysis tries to have it both ways. On the one hand, the court
characterized foreign intelligence investigations as fundamentally different from ordinary criminal
investigations, to the point that the former may be labeled a “special need” and placed in an entirely
separate category for Fourth Amendment purposes. On the other hand, the court found criminal
proceedings to be such a fundamental and inextricable element of foreign intelligence investigations as
to render the “primary purpose” test arbitrary and unworkable. These premises are, at a minimum, in
tension.
Finally, courts have emphasized the need for close judicial scrutiny of the particular facts of each case to
ensure that foreign intelligence collection is not used as a cover for domestic surveillance . The routine
use of “back-door searches” by the FBI when opening any investigation or assessment strongly suggests
that Section 702 has become , in substantial part , a domestic law enforcement tool . Leaving aside
whether this practice undermines the constitutional reasonableness of the program as a whole, it
certainly would undermine the legitimacy of any given instance of surveillance that was undertaken with
the goal of obtaining information about a U.S. person through a “back-door search.” Only close judicial
review can discern whether that is the case.
Yet no such scrutiny takes place under the current system. As discussed, there is rarely an opportunity
for after-the-fact review of the sort conducted by the courts of appeal in Truong and other foreign
intelligence cases. Even when a traditional, individualized FISA order is used to target a U.S. citizen and
the government discloses this fact in a criminal proceeding, the defendant is prohibited from seeing the
materials comprising the government’s application, which not only limits the defendant’s ability to
challenge the order but also significantly handicaps the court’s ability to adjudicate its validity.255
Nor does any court review particular cases or targets prior to collection under either Section 702 or the
Section 215 bulk collection program. Indeed, under Section 702, the FISA Court conducts no
individualized inquiry whatsoever and is barred from performing any substantive review of the
government’s certification of a “foreign intelligence” purpose. This forced judicial passivity is a far cry
from the microscopic examination courts have deemed necessary256 to ensure that foreign intelligence
surveillance does not become an end run around the Fourth Amendment’s warrant requirement.
FISA courts allow targeting of domestic individuals – they don’t provide a check
on domestic surveillance
Goitein and Patel 15 - Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Served
as counsel to Sen. Russell Feingold with a particular focus on government secrecy and privacy rights. Was a trial attorney in the Federal
Programs Branch of the Civil Division of the Department of Justice. Graduated from the Yale Law School and clerked for the Honorable Michael
Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit. Faiza Patel serves as co-director of the Brennan Center for Justice’s Liberty and
National Security Program. Clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Ms. Patel is a graduate of
Harvard College and the NYU School of Law. (Elizabeth and Faiza, “What went wrong with the FISA court”, Brennan Center for Justice at New
York University School of Law, 2015, p.3-5//DM)
In the years since then, however, changes in technology and the law have altered the constitutional
calculus. Technological advances have revolutionized communications. People are communicating at a
scale unimaginable just a few years ago. International phone calls, once difficult and expensive, are now
as simple as flipping a light switch, and the Internet provides countless additional means of international
communication. Globalization makes such exchanges as necessary as they are easy. As a result of these
changes, the amount of information about Americans that the NSA intercepts, even when targeting
foreigners overseas, has exploded.
Instead of increasing safeguards for Americans’ privacy as technology advances, the law has evolved in
the opposite direction since 9/11. It increasingly leaves Americans’ information outside its protective
shield. While surveillance involving Americans previously required individualized court orders, it now
happens through massive collection programs (known as “programmatic surveillance”) involving no
case-by-case judicial review. The pool of permissible targets is no longer limited to foreign powers —
such as foreign governments or terrorist groups — and their agents. Furthermore, the government may
invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal
prosecution rather than to thwart foreign threats.
Much has been written about the effect of these developments on Americans’ privacy, not to mention
the lawfulness of the NSA’s actions. But these developments also have had a profound effect on the role
exercised by the FISA Court. They have caused the court to veer off course, departing from its traditional
role of ensuring that the government has sufficient cause to intercept communications or obtain records
in particular cases and instead authorizing broad surveillance programs. It is questionable whether the
court’s new role comports with Article III of the Constitution, which mandates that courts must
adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The
constitutional infirmity is compounded by the fact that the court generally hears only from the
government, while the people whose communications are intercepted have no meaningful opportunity
to challenge the surveillance, even after the fact.
Moreover, under current law, the FISA Court does not provide the check on executive action that the
Fourth Amendment demands. Interception of Americans’ communications generally requires the
government to obtain a warrant based on probable cause of criminal activity. Although some courts
have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed
strict limits on the scope of such surveillance and have emphasized the importance of close judicial
scrutiny in policing these limits. The FISA Court’s minimal involvement in overseeing programmatic
surveillance does not meet these constitutional standards.
Fundamental changes are needed to fix these flaws. Following Snowden’s disclosures, several bills were
introduced to try to ensure that the court would hear the other side of the argument, generally from
some type of public advocate. Other bills addressed the court’s secrecy by requiring the executive
branch to declassify significant opinions or release summaries. These proposals would make important
improvements, but they do not address the full range of constitutional deficiencies resulting from the
changes in law and technology detailed in this report. The problem with the FISA Court is far broader
than a particular procedure or rule. The problem with the FISA Court is FISA.
The report proposes a set of key changes to FISA to help restore the court’s legitimacy.
 Congress should end programmatic surveillance and require the government to obtain judicial
approval whenever it seeks to obtain communications or information involving Americans. This
would resolve many constitutional concerns.
 Congress should shore up the Article III soundness of the FISA Court by ensuring that the
interests of those affected by surveillance are represented in court proceedings, increasing
transparency, and facilitating the ability of affected individuals to challenge surveillance
programs in regular federal courts.

Finally, Congress should address additional Fourth Amendment concerns by ensuring that the
collection of information under the rubric of “foreign intelligence” actually relates to our
national security and does not constitute an end-run around the constitutional standards for
criminal investigations.
Under today’s foreign intelligence surveillance system, the government’s ability to collect information
about ordinary Americans’ lives has increased exponentially while judicial oversight has been reduced to
near-nothingness. Nothing less than a fundamental overhaul of the type proposed here is needed to
restore the system to its constitutional moorings.
The significant purpose test allows domestic surveillance as long as there is
some foreign intelligence purpose
Goitein and Patel 15 - Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Served
as counsel to Sen. Russell Feingold with a particular focus on government secrecy and privacy rights. Was a trial attorney in the Federal
Programs Branch of the Civil Division of the Department of Justice. Graduated from the Yale Law School and clerked for the Honorable Michael
Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit. Faiza Patel serves as co-director of the Brennan Center for Justice’s Liberty and
National Security Program. Clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Ms. Patel is a graduate of
Harvard College and the NYU School of Law. (Elizabeth and Faiza, “What went wrong with the FISA court”, Brennan Center for Justice at New
York University School of Law, 2015, //DM)
Another critical change made by the Patriot Act was accomplished by revising two words. Previously,
FISA allowed the government to obtain surveillance orders if it certified that “the purpose” of
surveillance was the acquisition of foreign intelligence. Under the Patriot Act, however, the government
need only certify that acquiring foreign intelligence is “a significant purpose” of the surveillance.133 In
addition, the Patriot Act provided that federal officers who conduct electronic surveillance to acquire
foreign intelligence information “may consult with” law enforcement officials to protect against attack
or other hostile acts by foreign powers or their agents.134
A complex history underlies these deceptively simple changes. As discussed in Part II.A.3, the courts that
recognized a foreign intelligence exception to the warrant requirement generally held that collecting
foreign intelligence must be the “primary purpose” of surveillance. This condition served to ensure that
foreign intelligence wasn’t used as a pretext for warrantless searches in domestic criminal cases.
Discerning which motive predominates in any mixed-motive case, however, is a difficult endeavor. If the
NSA or FBI wiretaps someone to obtain foreign intelligence, and the Justice Department simultaneously
wishes to preserve the option of a criminal prosecution against that person, which is the “primary”
purpose? In United States v. Truong, the Fourth Circuit looked to the role that criminal prosecutors
played in the foreign intelligence investigation. If it appeared that the prosecutors were excessively
involved in the foreign intelligence surveillance, the court reasoned, one could conclude that the
primary purpose of the surveillance was law enforcement.135
Following this decision, the Justice Department voluntarily adopted a set of practices designed to
facilitate the sharing of information between intelligence and law enforcement components, while
avoiding any appearance that prosecutors were directing the intelligence investigations. A version of
these practices ultimately was formalized in a series of memoranda and procedures issued between
1995 and 2001.136
The procedures, taken together, encouraged consultation between prosecutors and intelligence officials
in a variety of ways — for example, by requiring intelligence investigators to report indications of
significant federal crimes to the Justice Department, and by requiring senior intelligence officials to
provide monthly briefings to officials overseeing criminal matters.137 At the same time, the procedures
included provisions to ensure that the Criminal Division of the Justice Department would not deploy
FISA surveillance as a tool to gather evidence for criminal prosecutions, thus making an end run around
the traditional Fourth Amendment warrant requirement. While the Criminal Division could provide
advice on intelligence investigations, it could not “direct[] or control[]” them, and it could not “instruct
the FBI on the operation, continuation, or expansion of FISA electronic surveillance or physical
searches.”138 Moreover, intelligence investigators needed approval from FBI headquarters and another
Justice Department component to share certain portions of their investigative memoranda with law
enforcement.139
In its first published opinion, the FISA Court in 2002 described these procedures as permitting “broad
information sharing,” as well as “substantial consultation and coordination.”140 Nonetheless, there was
a strong perception within the government that the procedures erected a “wall” between intelligence
and law enforcement that inhibited robust cooperation. This impression was echoed in the findings of a
May 2000 report by the Attorney General’s Review Team141 and a July 2001 report by the General
Accounting Office.142 After 9/11, the “wall” was blamed for impeding cooperation that conceivably
could have averted the attacks, and it was dismantled.143
To discourage any limits on coordination, Congress amended FISA to expressly permit consultation
between intelligence and law enforcement officials, and to provide that foreign intelligence acquisition
need only be a “significant” purpose of surveillance.144 As a result, when obtaining a traditional FISA
order, even if the primary purpose of surveillance is to build a prosecution against an American citizen,
the government is empowered to collect that person’s communications without making the probable
cause showing required in criminal cases as long as collection of foreign intelligence is a secondary aim.
2ac – warrant requirement solves
Fourth Amendment warrant requirement essential to addresses public trust
Heymann, 15 [Philip B, former Deputy Attorney General in the Clinton administration and currently a
law professor at Harvard Law School, AN ESSAY ON DOMESTIC SURVEILLANCE,
file:///C:/Users/Jonah/Downloads/Lawfare-Philip-Heymann-SURVEILLANCE-for-publ-10-May-2015.pdf]
Schloss4
The way the 4th Amendment works is straightforward; comprehensible to Americans who would
distrust a secret reliance merely on search terms; and surprisingly useful. To search any place, record, or
communication which is not freed, by Supreme Court doctrine, of the 4th Amendment obligations of
probable cause and a warrant to search any place, record, or communication which is not excepted by
Supreme Court doctrine from 4th Amendment obligations of a probable cause and a warrant (with some
exceptions) requires a factual basis for thinking it probable (or, in some cases, by reasonably suspecting)
that evidence of either a crime or a specified national danger will be found in a particular place (or in a
particular communication). A court, having satisfied itself of such a “predicate,” must certify that fact
and authorize a search or electronic surveillance and specify the conditions under which it may take
place.
The attributes and advantages of this system are immense. Consider six wonders of the 4th
Amendment:
(1) The system is entirely comprehensible and makes perfect sense to a very high percentage of
Americans who would never understand or trust the neutrality of government officials furnishing secret
search terms to technicians at the NSA.
(2) The way it works makes unnecessary any substantial effort to establish that the costs in terms of
privacy of a particular search are less than benefits to law enforcement or national security. It does not
require an extraordinarily complicated balancing of the amount of damage a search does to privacy
versus the amount of value it adds in terms of reduced crime or reduced danger to national security.
While we would like to allow only those searches whose cost in terms of citizen insecurity are
outweighed by the benefits in terms of solving or preventing a crime, the cost of making that judgment
in the case of each individual search would be immense.
Consider how difficult it would be to weigh each of the categories – costs and benefits – to determine
where the balance falls. The cost to citizens’ sense of privacy depends on, among other things, the fears
of government misuse of the power to search and that itself depends on whether the subject of the
search was known or anonymous when the search took place, how sensitive the information to be
acquired was, how private was the location where the information was found, how much was learned
about a single individual, and how carefully the information was retained and not disseminated. On the
other side of the balance, the benefits of surveillance are equally fact-dependent. They depend in each
case on how dangerous is the activity that is subject to surveillance, what alternative ways there are to
learn about it, how useful (or alternatively unnecessary) the information likely to be found is in ending
that danger, the inability of targets to find out about the manner of surveillance and thereby avoid it,
and the likely promptness of discovery of evidence.
Any such costly analysis of the trade-off between cost and benefits of a particular case is replaced under
the 4th Amendment by simply requiring a showing that evidence of a crime or of a grave future threat
would be found in the place or communication and at the time of the search or electronic surveillance.
The police can quickly know what they are allowed and forbidden to do. The cost of this radically
simplified balance is merely that a search is allowed even when the benefits of solving the crime may be
relatively unimportant. Yet this does not detract greatly from the security individuals can feel under the
4th Amendment.
(3) Use of 4th Amendment standards provides assurance of privacy to the vast majority of citizens who
are likely to know whether there is probable cause to search their places or surveil their
communications.
(4) At the same time, it prevents foolish or abusive government searches, an important check on the
efficiency and excesses of law enforcement.
(5) The system of the 4th Amendment, unlike a grand jury subpoena for documents, does not tip off the
suspect that he is about to be searched (and thus should hide or destroy any evidence). The suspect
takes no part in the decision of the court to issue a warrant.
(6) The 4th Amendment manages to do these things without making known to the suspect, even after a
search or an arrest, the identity of any informant who has decided to subject a dangerous suspect to the
risk of a search or electronic surveillance of his communications. The informant’s identity may and will
be kept secret.
2ac – FISA curtailment key
Curtailing NSA authority under FISA is the most effective action the US can take
Donohue, 14 - Professor of Law, Georgetown University Law Center (Laura, “HIGH TECHNOLOGY,
CONSUMER PRIVACY, AND U.S. NATIONAL SECURITY”, Georgetown University Law Center, 17
September 2014,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1119&context=cong)//gg
Numerous steps could be taken by Congress to address the situation in which U.S. industry currently
finds itself. The most effective and influential decision that legislators could take would be to curb the
NSA’s authorities under the Foreign Intelligence Surveillance Act . This action has two components:
first, ending the telephony metadata collection program and, second, restricting the use of to/from, or
about collection under upstream interceptions. Both programs would further benefit from greater
transparency, to make it clear that their aim is to prevent foreign aggression and to prevent threats to
U.S. national security—not to engage in the interception of trade secrets or to build dossiers on other
countries’ populations.
The second most effective change that could be undertaken would be to introduce stricter privacy
controls on U.S. companies, in the process bringing the United States into closer line with the principles
that dominate in the European Union. The two entities are not as far apart as the dialogue might have
one assume, and so changes required in this sphere would be minimal. Together, these two
alterations—curbing the NSA surveillance programs and providing increased consumer protections for
privacy—would allow U.S. industry to argue changed circumstance to allow companies to again become
competitive for contracts and markets to which they seek access.
A third alteration that would make a substantial difference over the longer term relates to the national
security infrastructure. The current failure of the United States to integrate economic concerns creates a
vulnerability for the country in terms of the breadth and depth of programs subsequently adopted. New
thought needs to be given to how to take on board—and mitigate—potentially devastating economic
consequences of government surveillance efforts.
FISA reforms that change PRISM and upstream are key to restoring US
credibility
Donohue, 14 - Professor of Law, Georgetown University Law Center (Laura, “HIGH TECHNOLOGY,
CONSUMER PRIVACY, AND U.S. NATIONAL SECURITY”, Georgetown University Law Center, 17
September 2014,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1119&context=cong)//gg
In addition to the economic impact of NSA telephony metadata collection (discussed, infra), the program
runs contrary to Congressional intent in introducing the Foreign Intelligence Surveillance Act, contradicts
the statutory language, and violates the Fourth Amendment.94 In 2014 the Privacy and Civil Liberties
Oversight Board came to a similar conclusion,95 as did the President’s own appointed Review Group,
charged with considering the telephony metadata collection program, in 2013.96
Accordingly, the President announced on January 17, 2014 that he was “ordering a transition that will
end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that
preserves the capabilities we need without the government holding this bulk metadata.”97 The
alternative approach was to be developed by March 28, 2014. Nine months later, on September 13,
2014, the Foreign Intelligence Surveillance Court approved DOJ’s request to extend the program for
another 90 days—without any transition program in place.
Although the President issued a new presidential directive in January 2014 for U.S. signals intelligence
activities both at home and abroad, the classified nature of parts of the document, international
skepticism about the Administration’s commitment to privacy, and the failure of the Administration to
make good on its promise of transition to a new program meant that the global community, with good
reason, has questioned whether anything has really changed. No new legislation is in place that would
provide limits on the Executive Branch beyond those that operated for the duration of the bulk
collection program.
As a matter of Section 702 and the interception of international content, both PRISM and upstream
collection present global concerns—neither of which have been addressed through any legislative
change. The existence of these programs, while perhaps statutorily consistent with the FISA
Amendments Act, as well as constitutionally sufficient with regard to the interception of non-U.S.
persons communications, where the individual is reasonably believed to be located outside the United
States, as a policy matter, goes some way towards undermining international confidence in U.S.
companies.
The Fourth Amendment does not reach non-U.S. persons based overseas who lack a substantial
connection to the United States.98 Writing for the Court in United States v. Verdugo-Urquidez, Chief
Justice Rehnquist concluded that “the people” referred to in the Fourth Amendment indicate a
particular group—not merely people qua people.99 His reading stems from a deeply Aristotelian
approach: i.e., one that emphasizes membership in the polis ( ), or political community, as a
concomitant of forming a structure of government.100 As members of the polis, U.S. persons, both
distributively and collectively, obtain the protections of the constitution.
Looked at in this regard, the Constitution itself embodies the collective organization of “the people” into
one entity. “U.S. persons” and “the people” are therefore one and the same. The “right of the people”
thus refers to a collective group of individuals “who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community.”101
Very few cases address precisely what constitutes sufficient contact with the United States to satisfy the
“substantial connections” aspect of the majority’s decision. Those that do point in seemingly different
directions.102 At a minimum, however, it would be extraordinary to assume that simply because an
individual uses a U.S. company, he or she thereby gains the protections of the Fourth Amendment. This
was the basic argument underlying the “modernization” of FISA in the first place, to take account of bad
actors, communicating overseas, who would suddenly fall within the more protective FISA regime
merely because their communications happened to come within U.S. territory by nature of the carrier in
question.
Even recognizing, however, that few constitutional barriers may apply to the programmatic use of
Section 702 insofar as it is applied to non-U.S. persons (leaving aside the questions that accompany the
incidental collection of U.S. persons’ information, as well as entirely domestic conversations), as a
matter of policy, certainly both PRISM and the use of to/from or about collection in upstream gathering
has dramatically undermined U.S. industry. As a matter of policy, therefore, greater restrictions, more
transparency, and more effective oversight of the international collection of content may help to alter
the situation with regard to the skepticism expressed towards U.S. companies.
AT: Warrant links to terrorism
The plan is middle ground ---a warrant requirement still allows surveillance
necessary to stop terrorism
Heymann, law professor, 15 [Philip B, former Deputy Attorney General in the Clinton
administration and currently a law professor at Harvard Law School, AN ESSAY ON DOMESTIC
SURVEILLANCE, file:///C:/Users/Jonah/Downloads/Lawfare-Philip-Heymann-SURVEILLANCE-for-publ-10May-2015.pdf] Schloss4
“Big
data” technology has greatly increased our capacity to draw conclusions from collections of nearpublic data such as these – to discover what characteristics of several collections, if combined
appropriately, are predictive of the future or revealing of a role in a past event. The techniques of big data analysis
may well reveal very personal and sensitive information about the prior or future activities of a readily identifiable individual.
We need a check on this – but not a prohibition . Allowing the government to collect and process such
information may turn out to be extremely useful in protecting our security and moreover not invasive of
the privacy of most members of the group that the data describes. So we need a middle ground
between an unchecked power to search, to be followed by analysis with other data, on the one hand,
and a flat denial of access to such data held by third parties, on the other. We need a different type of
predicate that would provide 18 some of the privacy protections of a warrant in these situations of
reduced privacy, while still allowing the use of Big Data processing to develop information and
conclusions useful to our security.
We thus need a middle ground. If our privacy is to be protected against searches and analyzing processing of
third-party records, it must be by rules that don’t require a warrant particularly describing the things to
be seized. At the time a data file is obtained, we often won’t know what about it is likely to be revealing. If the government’s use
of big data is to contribute to our safety, the predicate for the legal authorization granted by a warrant
should be a showing of a serious need for using techniques of big data analysis to draw conclusions
about individuals and private matters from previously collected fields of data – not what information
about the activities of a particular suspect we expect to find.
B. MODEL STATUTORY LANGUAGE
The plausible middle ground is that the government must, and should be able to, seek a warrant to
obtain non-private information that can be used to predict or identify private information about
individuals. As an example, consider a possible statute with the following provisions:
(i) To obtain a warrant [under this section] the government must provide specific and articulable facts
showing reason to believe that any data sought under this provision will, if analyzed in specified ways
and in connection with other specified data files, be likely to provide significant assistance in an ongoing
investigation either of a felony committed under federal or state laws or of a particular, identified
foreign threat. The court may grant access to sharply limited data without such a showing only if the
government satisfies the court that only with such access to information to be used for discovering and
testing correlations can it satisfy the standard set forth above.
(ii) The court shall not grant access to more data than is shown to be necessary for these purposes. If in
the course of this or another investigation the data made available to the government under this section
is to be used with other techniques and/or other data files or in a different ongoing investigation, a new
warrant must be obtained for such new uses of the previously acquired data.
(iii) Any warrant obtained under this provision shall provide for the prompt destruction of any
information obtained under the warrant if it is not relevant to the investigative purposes for which the
warrant was issued – other than information concerning a different felony or a different foreign threat.
Any data files obtained under the warrant and any copies thereof will be destroyed within three years of
acquisition unless a new warrant is obtained.
FCC version
FCC 1ac
FCC 1ac – NSA overreach
Contention 1 – NSA overreach
Legal prohibitions bar NSA domestic surveillance – but the lack of a credible
oversight mechanism means the NSA actively captures US person data through
section 702 and XO 12333
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
The NSA, originally formed to monitor outside threats to the security of the United States, has
increasingly turned its surveillance towards the American public.7 The NSA was originally formed in
1952 growing out of intelligence and cryptology analytics developed during WWII, which naturally
developed the agency’s mission to monitor threats coming from outside the United States.8 Today, the
NSA is “authorized to collect, process, analyze, produce, and disseminate signals intelligence
information and data for foreign intelligence and counterintelligence purposes to support national and
departmental missions, and to provide signals intelligence support for the conduct of military
operations.”9
Under the letter of the law , this power is significantly limited in the domestic arena. The Foreign
Intelligence Surveillance Act of 1978 (“FISA”)10 bars the NSA from intercepting any domestic, electronic
communications of persons inside the United States unless a judge on the Foreign Intelligence
Surveillance Court (“FISA Court”) issues a warrant upon finding that “the purpose of the surveillance is
to obtain foreign intelligence information . . . and there is probable cause to believe that the target of
the surveillance is an agent of a foreign power.”11 FISA also places various restrictions on other forms of
domestic surveillance activities that do not intercept the contents of communications, such as the
“installation and use” of pen registers or trap and trace devices, which capture the origin and
destination of phone calls or other communications to and from a particular telephone number or other
device.12 In 2001, Congress substantially expanded FISA with the USA PATRIOT Act,13 adding, among
other provisions, a section that authorizes the Director of the Federal Bureau of Investigation (“FBI”)—or
FBI agents designated by the Director—to petition the FISA Court for “an order requiring the production
of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a
United States person or to protect against international terrorism or clandestine intelligence
activities.”14 Moreover, under Executive Order 12,333, when the NSA conducts intelligence-gathering
activities abroad—which are not regulated by FISA15—it may collect, retain, or disseminate information
about United States persons “only in accordance with procedures established by the head of the agency
and approved by the Attorney General.”16
Despite its foreign-centric mission and the express limits on its domestic authority , the NSA has
increasingly turned its attention to activities of persons within the United States in the wake of 9/11. For
instance, in 2006, it was discovered that the NSA had created a call database in 2001 that collected tens
of millions of citizens’ phone records from data provided by AT&T, Verizon, and BellSouth.17 “[T]he
largest database ever assembled in the world” at the time, its goal was to log “every call ever made
within the nation’s borders.”18 The NSA itself has acknowledged its serious obligation to operate
effectively in an increasingly interconnected and globalized world without stepping on the toes of civil
liberties for the sake of national security.19
Additionally, the NSA’s intrusions into domestic communications extend beyond call data to reach
citizens’ activity on the Internet.20 For years, the NSA “unlawfully gathered tens of thousands of emails
and other electronic communications between Americans” as part of the agency’s broader collection of
communications as they “flow across Internet hubs” under Section 702 of FISA.21 Pursuant to these
practices, the NSA may have intercepted as many as 56,000 domestic electronic communications
through various methods, 22 some of which the FISA Court has found unconstitutional.23
The disclosure of these NSA practices triggered a substantial backlash . Many Americans reacted by
taking steps to insulate themselves from what they considered unwarranted government intrusion on
their private lives and activities.24 Even though several crucial FISA Court rulings have been partially
declassified and released to the public25 in an effort to demonstrate that the NSA’s powers are not
unrestrained, public trust and confidence in the agency has clearly diminished.26 In the wake of these
disclosures, forty-five percent of Americans felt that the government went too far in its surveillance
programs pursuant to anti-terrorism efforts.27 This “massive swing” in public opinion about government
policies embodies “the public reaction and apparent shock at the extent to which the government has
gone in trying to prevent future terrorist incidents.”28 Coupled with the steps that many Internet users
are taking to prevent government intrusion on their online activities and communication, this shift in
public opinion shows that Americans are dissatisfied with the reach of government surveillance.29
Existing oversight mechanisms guarantee NSA circumvention of prohibitions on
domestic surveillance – that creates a confidence crisis in the future of the
internet
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
III. OVERSIGHT IS NEEDED, AND THE FCC SHOULD PROVIDE IT
A. Existing executive and legislative oversight mechanisms are inadequate in promoting efficiency and
public confidence in the NSA.
The executive and legislative mechanisms currently in place to provide oversight of the NSA are
inadequate in promoting public confidence and effective national security. Ostensibly, the activities of
the NSA are generally governed by the Constitution, federal law, executive orders, and regulations of
the Executive Branch.41 On the legislative side, there are two congressional bodies—the House
Permanent Select Committee on Intelligence (“HPSCI”) and the Senate Select Committee on Intelligence
(“SSCI”) —that are responsible for ensuring that the NSA follows the applicable laws and regulations.42
In the executive branch, NSA oversight is vested in the President’s Intelligence Advisory Board, the
Office of the Director of National Intelligence, and the Department of Justice.43 Ostensibly, in addition
to these legislative and executive oversight mechanisms, the NSA has also implemented internal
controls: the Office of the Inspector General performs audits and investigations while the Office of
Compliance operates to ensure that the NSA follows relevant standards.44 However, despite the
appearance of effective controls, these oversight mechanisms have failed to prevent the current public
crisis in confidence that the NSA is fulfilling its mission with the least possible adverse impact on the
privacy of U.S. citizens.
The authority of the NSA, subject to the above controls, is very limited on paper . Every intelligence
activity that the NSA undertakes is purportedly constrained to the purposes of foreign intelligence and
counterintelligence.45 For instance, Executive Order 12,333 provides the authority for the NSA to
engage in the “collection of communications by foreign persons that occur wholly outside the United
States.”46 Additionally, FISA authorizes the NSA to compel U.S. telecommunications companies to assist
the agency in targeting persons who are not U.S. citizens and are reasonably believed to be located
outside the United States.47
However, despite the appearances of controls , both external and internal, the “communications of U.S.
persons are sometimes incidentally acquired in targeting the foreign entities.”48 The varying types of
data gathered can produce a “detailed map” of a given person’s life based on those persons with whom
they are in contact.49 For instance, metadata can be used to piece together substantial information
about relationships; this information includes who introduced two people, when they met, and their
general communication patterns, as well as the nature and the extent of their relationships.50 The
recently disclosed collection of contact lists by the NSA has not been authorized by Congress or FISA.51
Additionally, while other collection policies that touch upon domestic communications, such as those
under Section 702, have authorization, often neither lawmakers nor the public have even a rough
estimate of how many communications of U.S. citizens are being acquired.52
The NSA is easily able to operate around its apparent lack of authority. One anonymous official has been
quoted as saying that the NSA consciously avoids the restrictions placed on it by FISA by collecting this
information from access points all over the world.53 This method means that the NSA is not required to
restrict itself to collecting contact lists belonging to specified intelligence targets.54 The collection
mechanism ostensibly operates under the assumption that the bulk of the data collected through the
overseas access points is not data from American citizens.55 However, this is not necessarily true due to
the globalized nature of the Internet as a communications infrastructure, as “data crosses boundaries
even when its American owners stay at home.”56
The oversight mechanisms currently applied to this collection program require the NSA only to satisfy its
own internal oversight mechanisms or to answer possible inquiries from executive branch that there is a
“valid foreign intelligence target” in the data collected.57 Moreover, congressional oversight is not
effective because members of Congress have candidly said they do not know precisely the right
questions to ask NSA officials.58 Often, in congressional hearings, NSA officials and other senior
members of the intelligence community are evasive unless directly pressed, and the congressional
committees are stymied by their lack of knowledge regarding just which questions need asking.59
Given the realities of the NSA overstepping its authority, there is no indication to the public that the
agency, even as it has been collecting data from American citizens, has been required to answer to its
various oversight mechanisms in an effective manner. In response, President Obama directed the
Privacy and Civil Liberties Oversight Board (“PCLOB”) to conduct two reports about NSA intelligence
gathering methods.60 The PCLOB is an independent, bipartisan agency within the executive branch
tasked with reviewing and analyzing executive branch actions taken in the name of national security to
determine whether appropriate consideration has been afforded to civil liberties in the development
and implementation of national anti-terrorism policy.61 The recent PCLOB Report emphasizes that there
is a:
compelling danger . . . that the personal information collected by the government will be misused to
harass, blackmail, or intimidate, or to single out for scrutiny particular individuals or groups . . . . while
the danger of abuse may seem remote, given historical abuse of personal information by the
government during the twentieth century, the risk is more than merely theoretical.62
The second report addressed more specifically Internet surveillance activities of the NSA—specifically
those undertaken pursuant to Section 702.63 These reports demonstrate that there is a serious risk of
abuse of the data collected by the NSA, as well illustrating the failings of current governmental oversight
of NSA data collection policies.
Moreover, according to some classified intelligence documents released by The Washington Post and
other outlets, the NSA appears to be overwhelmed by the sheer amount of data it is has collected,
which indicates that the mechanisms in place do not adequately help the NSA to focus its search. For
instance, the NSA has begun to implement a program (SCISSORS) in order to focus on the portion of the
data that is relevant amongst the mass of data collected.64 This is because the NSA was collecting broad
swaths of data with “little or no [foreign intelligence] information.”65 The first PCLOB report indicates
that the NSA metadata collection program does not pass any semblance of relevancy standards to target
the data to a specific question of national security; this is because the NSA does not have reason to
suspect the owners of the metadata, unlike in other cases where the collection was lawful.66
Thus, the current oversight system suffers from some serious failings. First, it does not allow for a
focused inquiry by the congressional committees. Additionally, the NSA can get around requirements
imposed on it by FISA by conducting Internet surveillance abroad that nonetheless captures U.S. data
flows , many of which traverse foreign networks. Moreover, the NSA has over-collected data with little
value to the agency’s national security mission, and therefore must sift through masses of data involving
regular American citizens while fighting a public battle about how much information the agency
collects.67 This all suggests deficiencies in the NSA’s oversight structure, as all preventive executive,
legislative, and internal controls have not been effective.
The perception of surveillance overreach wrecks the US internet freedom
agenda
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
The effects of the NSA disclosures on the Internet Freedom agenda go beyond the realm of Internet
governance . The loss of the United States as a model on Internet Freedom issues has made it harder
for local civil society groups around the world—including the groups that the State Department’s
Internet Freedom programs typically support203—to advocate for Internet Freedom within their own
governments.204 The Committee to Protect Journalists, for example, reports that in Pakistan, “where
freedom of expression is largely perceived as a Western notion, the Snowden revelations have had a
damaging effect. The deeply polarized narrative has become starker as the corridors of power push back
on attempts to curb government surveillance.”205 For some of these groups, in fact, even the
appearance of collaboration with or support from the U.S. government can diminish credibility, making
it harder for them to achieve local goals that align with U.S. foreign policy interests.206 The gap in trust
is particularly significant for individuals and organizations that receive funding from the U.S. government
for free expression activities or circumvention tools. Technology supported by or exported from the
United States is, in some cases, inherently suspect due to the revelations about the NSA’s surveillance
dragnet and the agency’s attempts to covertly influence product development.
Moreover, revelations of what the NSA has been doing in the past decade are eroding the moral high
ground that the United States has often relied upon when putting public pressure on authoritarian
countries like China, Russia, and Iran to change their behavior. In 2014, Reporters Without Borders
added the United States to its “Enemies of the Internet” list for the first time, explicitly linking the
inclusion to NSA surveillance. “The main player in [the United States’] vast surveillance operation is the
highly secretive National Security Agency (NSA) which, in the light of Snowden’s revelations, has come to
symbolize the abuses by the world’s intelligence agencies,” noted the 2014 report.207 The damaged
perception of the United States208 as a leader on Internet Freedom and its diminished ability to
legitimately criticize other countries for censorship and surveillance opens the door
for foreign leaders to justify—and even expand—their own efforts.209 For example, the Egyptian
government recently announced plans to monitor social media for potential terrorist activity, prompting
backlash from a number of advocates for free expression and privacy.210 When a spokesman for the
Egyptian Interior Ministry, Abdel Fatah Uthman, appeared on television to explain the policy, one
justification that he offered in response to privacy concerns was that “the US listens in to phone calls,
and supervises anyone who could threaten its national security.”211 This type of rhetoric makes it
difficult for the U.S. to effectively criticize such a policy. Similarly, India’s comparatively mild response to
allegations of NSA surveillance have been seen by some critics “as a reflection of India’s own aspirations
in the world of surveillance,” a further indication that U.S. spying may now make it easier for foreign
governments to quietly defend their own behavior.212 It is even more difficult for the United States to
credibly indict Chinese hackers for breaking into U.S. government and commercial targets without fear
of retribution in light of the NSA revelations.213 These challenges reflect an overall decline in U.S. soft
power on free expression issues.
The US needs to draw a sharp distinction between domestic and national
security surveillance to make the US Internet Freedom agenda credible –
otherwise global internet fragmentation will result
Fontaine, 14 – President of the Center for a New American Security; was foreign policy advisor to
Senator John McCain for more than five years; Worked at the State Department, the National Security
Council and the Senate Foreign Relations Committee; was associate director for near Eastern affairs at
the National Security Council; B.A. in International Relations from Tulan University (Richard, “Bringing
Liberty Online; Reenergizing the Internet Freedom Agenda in a Post-Snowden Era”, Center for a New
American Security, September 18, 2014, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf)//TT
The 2013 revelations of mass surveillance by the U.S. government transformed the global debate about
Internet freedom. Where once Washington routinely chided foreign governments and their corporate
collaborators for engaging in online censorship, monitoring and other forms of Internet repression, the
tables have turned. Edward Snowden, a former National Security Agency (NSA) contractor, leaked
thousands of documents revealing America’s most secret electronic surveillance programs, unleashing a
tidal wave of criticism and charges of hypocrisy, many directed at some of the very U.S. officials who
have championed online freedom.
America’s Internet freedom agenda – the effort to preserve and extend the free flow of information
online – hangs in the balance .1 Already a contested space, the Internet after the Snowden revelations
has become even more politically charged, with deep international divisions about its governance and
heated battles over its use as a tool of political change. With 2.8 billion Internet users today, and several
billion more expected over the next decade, the contest over online freedom grows more important by
the day.2 As an ever-greater proportion of human activity is mediated through Internet-based
technologies, the extent of online rights and restrictions takes on an increasingly vital role in political,
economic and social life.3
Despite the many complications arising from the Snowden disclosures, America still needs a
comprehensive Internet freedom strategy, one that tilts the balance in favor of those who would use the
Internet to advance tolerance and free expression, and away from those who would employ it for
repression or violence.4 It will need to pursue this strategy while drawing a sharp distinction between
surveillance for national security purposes (in which all governments engage) and monitoring as a
means of political repression (which democracies oppose). This is not an easy task, but it is an important
one. More than a year after the first Snowden revelations emerged, now is the time to reenergize the
Internet freedom agenda.
Internet Freedom before Snowden The U.S. government’s explicit pursuit of Internet freedom began
during the Bush administration’s second term. Among other steps, the establishment of the State
Department’s Global Internet Freedom Task Force aimed to coordinate efforts to promote Internet
freedom and to respond to online censorship.5 Building on this foundation, Secretary of State Hillary
Rodham Clinton made the expansion of online rights a major focus of U.S. foreign policy in the first
Obama term. Speaking in 2010, she cited Franklin Delano Roosevelt’s Four Freedoms and added a fifth,
the “freedom to connect – the idea that governments should not prevent people from connecting to the
Internet, to websites or to each other.”6 A year later, she pledged America’s “global commitment to
Internet freedom, to protect human rights” – including the rights to expression, assembly and
association – “online as we do offline.”7 And after the Arab Spring, the United States in 2011 established
the Freedom Online Coalition, a collaboration of 23 countries to coordinate efforts to expand global
Internet freedom.8
The U.S. government has backed up its words with resources. Since 2009, the State Department and
other government agencies have spent more than $125 million on Internet freedom programming.9 In
addition to the State Department’s efforts, other government agencies, including the Broadcasting
Board of Governors, the U.S. Agency for International Development, the Defense Advanced Research
Projects Agency and others, fund the development and deployment of tools aimed at expanding
Internet freedom. These programs invest in technologies that allow users to circumvent firewalls so as
to access censored material, communicate outside the watchful eye of autocratic regimes, secure their
websites and data, link computers in decentralized mesh networks, and establish new Internet
connections when existing ones have been cut.10 It supplements the provision of technology with
training programs in dozens of countries.
The Obama administration also took regulatory steps to promote Internet freedom, particularly after
technology demonstrably facilitated the 2009 Green Revolution in Iran and the 2011 Arab Spring. The
Treasury Department relaxed restrictions on the export of Internet-related software and services to Iran,
explicitly to “foster and support the free flow of information to individual Iranian citizens.”11 Two years
later, the White House issued an executive order that imposed sanctions on individuals who engaged in
computer and network disruption, monitoring and tracking on behalf of the governments of Iran or
Syria.12
The United States has aimed to promote the free flow of online information through diplomatic action
as well. State Department diplomats pressure repressive regimes to loosen their Internet restrictions,
free imprisoned bloggers and ensure that citizens can express themselves online without fear of
punishment. U.S. government officials have engaged in significant dialogue with U.S. and multinational
technology companies about their involvement in aiding Internet repression and in establishing
transparency standards. American diplomats have also pressed for Internet freedom in the proliferating
international fora that have taken up the issue. In 2012, for instance, the United States won approval of
a U.N. Human Rights Council resolution affirming that freedom of expression and other rights that
people have offline must also be protected online.13 Trade agreements have provided yet another
vehicle for the U.S. Internet freedom agenda with, for example, hortatory language in the U.S.-Korea
Free Trade Agreement calling for the free flow of online information.14
A key element of U.S. action has been aimed at preventing fundamental changes to the
multistakeholder model of Internet governance, which brings together individuals, governments, civil
society organizations, private firms and others for transparent and consensus-based decisionmaking.15
One such challenge arose at the December 2012 World Conference on International
Telecommunications, when 89 countries – a majority of ITU members in attendance – supported an
attempt by Russia, China, Iran and others to give governments greater control over the Internet.16
Despite opposition from the United States and others, the session ended with 89 countries signing the
revised treaty; 55 other countries did not. As a sign of what may come in future international treaty
negotiations, such numbers did not favor the multistakeholder model, and this was so even before the
Snowden revelations emerged to complicate U.S. efforts.
The Snowden Fallout and the Internet Freedom Agenda
The dramatic revelations about NSA spying that began to emerge in June 2013 provoked a storm of
international reaction.17 Political leaders expressed outrage at American surveillance practices and
threatened a raft of retaliatory measures. President Dilma Rousseff of Brazil cancelled a planned state
visit to the United States and the Brazilian government later organized an international meeting
(NetMundial) to discuss the future of Internet governance.18 German Chancellor Angela Merkel was
deeply affronted by the alleged monitoring of her personal cellphone. Chinese and other officials
charged America with blatant hypocrisy. The fallout affected the private sector as well; where previously
the focus of many observers had been on the aid given by U.S. companies to foreign governments
engaged in Internet repression, the gaze shifted to the role American corporations play – wittingly or
not – in enabling U.S. surveillance. Countries that had been the target of American reproaches rebuked
the U.S. government for what they saw as hypocrisy.
The United Nations and other international venues became platforms for international criticism of the
United States. Germany and Brazil together sponsored a resolution adopted by the U.N. General
Assembly in late 2013 backing a “right to privacy” in the digital age.19 In June 2014, the U.N. High
Commissioner for Human Rights issued a report that endorsed digital privacy as a human right and
criticized mass surveillance as “a dangerous habit rather than an exceptional measure.”20 Some
European officials began to question the existing Internet governance model itself. In a statement, the
European Commission said, “Recent revelations of large-scale surveillance have called into question the
stewardship of the US when it comes to Internet Governance. So given the US-centric model of Internet
Governance currently in place, it is necessary to broker a smooth transition to a more global model.”21
Nongovernmental groups that might otherwise be partners with the U.S. government in promoting
Internet freedom reacted sharply as well. Reporters Without Borders, for instance, listed the NSA as an
“Enemy of the Internet” in its 2014 report on entities engaged in online repression. Drawing no
distinction between surveillance aimed at protecting national security and surveillance intended to
suppress free expression and political dissent, the organization declared the NSA “no better than [its]
Chinese, Russian, Iranian or Bahraini counterparts.”22 Mass surveillance methods used by democracies
like the United States, it added, are “all the more intolerable” as they “are already being used by
authoritarian countries such as Iran, China, Turkmenistan, Saudi Arabia and Bahrain to justify their own
violations of freedom of information.”23 Tim Berners-Lee, the inventor of the World Wide Web, said,
“Mass surveillance is the most immediate threat to the open Internet and the most insidious because
we can’t see it.”24 The Electronic Frontier Foundation asserted that “mass surveillance is inherently a
disproportionate measure that violates human rights,”25 and officials with Human Rights Watch
observed that the surveillance scandal would render it more difficult for the U.S. government to press
for better corporate practices and for companies to resist overly broad surveillance mandates. “Now,”
its chief researcher said, “the vision and credibility of the U.S. and its allies on Internet freedom is in
tatters.”26
The reactions to the Snowden disclosures threatened to go beyond verbal denunciations, diplomatic
protests and critical press. The most serious commercial fallout came in the rising support for data
localization requirements . Russia in July 2014 approved legislation that requires data operators to store
the personal data of its citizens within the country’s borders.27 Indonesia, Brazil and Vietnam have also
called for their citizens’ data held by companies such as Facebook to be stored domestically.28 Data
localization has been debated in the European Parliament and elsewhere on the continent as well.29
Apart from the chilling effect on innovation and the loss of business to America companies, Internet
freedom itself could become a casualty of such mandates. If a user’s data must be held within the
borders of a repressive country, its government will have new opportunities to censor, monitor and
disrupt online information flows.
Such moves, combined with increasing questions about the multistakeholder approach to Internet
governance (and possible support for a governmentdriven approach), together give rise to concerns
about the potential “Balkanization” of the Internet, in which a constellation of national-level systems
could take the place of the current global online infrastructure. As former NSA general counsel Stewart
Baker warned, “The Snowden disclosures are being used to renationalize the Internet and roll back
changes that have weakened government control of information.”30
This is evident in other proposed steps as well. Brazil and the European Union have announced plans for
an undersea cable that would route data transmissions directly between Europe and Latin America and
bypass the United States.31 The European Union threatened to suspend the Safe Harbor data-sharing
agreement with the United States and promulgated new rules for it that EU officials said stemmed
directly from worries after the Snowden disclosures.32
Data localization will end internet freedom and cause global democratic
rollbacks
Hill, 14 – Internet Policy at U.S. Department of Commerce (Jonah, “The Growth of Data Localization
Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business Leaders”, The Hague
Institute for Global Justice, Conference on the Future of Cyber Governance, 2014 , May 1, 2014,
SSRN)//TT
Free Expression and Internet Freedoms Are Not Well Served
Most troubling of all the potential harms of data localization is its effect on free expression and Internet
freedom. This is ironic, in that to many of its advocates, data localization is a remedy to the threat posed
by the NSA to free expression and Internet freedom. I suggest that the opposite is actually true, that the
“remedy” only serves to make the danger greater.
The Internet and other online media have become indispensable tools for individuals to communicate
globally, and have furthered individual participation in the political process, increased transparency of
governmental activities, and promoted fundamental rights. Data localization, by centralizing control
over digital infrastructure, can diminish this capacity in a number of ways. As was discussed above, data
localization as a local server or local data storage requirement can limit freedom by permitting countries
more easily to collect information on their citizens (through domestic surveillance). It allows a
government more quickly and effectively to shut down Internet services (usually via legal threats to local
Internet service providers) that the government believes is abetting unwanted political opposition. 115
Data localization mandates also can obstruct Internet freedom in other, indirect ways. Restricted
routing, in particular, is problematic, because it is not technically possible as the existing Internet is
designed or organized. Unlike the telephone network, the Internet operates under a model known as
“best effort delivery,” where data is delivered to its destination in the most efficient manner possible,
without predetermined routes. For instance, data sent from the United States to Botswana will attempt
to travel along the shortest and most direct route possible. However, if there is a bottleneck along the
shortest route, a packet may find a longer but more expeditious route. This is a core feature of the
Internet that makes network congestion easy to navigate around. In order to restrict data routing to
specific geographies as governments are advocating, all Internet routers that are currently programmed
to follow this “best effort” routing model would have to be reconfigured to prohibit data from one
country from moving through the territory of “prohibited” countries. Moreover, since Internet
addresses are not always assigned according to a specific geography, the Internet’s addressing system
currently would have to be dramatically altered as well. Thus, the Border Gateway Protocol (one of the
core Internet networking protocols), the Internet’s routing tables (the address books by which routers
send data), and the process by which IP addresses are allocated, would all have to be modified. Such an
undertaking would require a fundamental overhaul not only of the Internet’s operating structures, but
also of the governance structures by which those structures are implemented and standardized.
These are not just arcane concerns of those involved in Internet governance, although they surely are
matters that greatly trouble those who favor an efficient and interoperable Internet. These alterations in
the way the Internet works will, I believe, materially restrict the power of the Internet to support free
expression. These modifications to these core characteristic of the current Internet – modifications that
localization would require – may result in intelligence agencies acquiring a previously unavailable
capacity to assess where data had originated and where it was heading, because the origin and
destination information would be included in the data packet.116 A centralized governance process,
further, which would be required to change the routing protocols and IP allocation system, would give
authoritarian countries significantly more influence over how information on the Internet is regulated.
In fact, this is one of the main reasons why China, Russia, many Arab states (among others) have pushed
for tracked routing protocols in the past, 117 just as they have lobbied for a handover of the global
Internet governance system to the U.N.’s International Telecommunications Union. 118
In short, localization would require dramatic changes to the current structure of the Internet, changes
that would have adverse consequences for those who see it as a principal – if not the principal – means
of global democratization . For some, those adverse consequences would be unintended; more
chillingly, there are those who intend precisely those consequences. This would be an enormous price
to pay, particularly since the other objectives that are promoted as justifications for localization –
namely, security for communications and economic development – are illusory.
Democracy as spread by the global internet is vital to the emergence of global
publics – that’s the key to solving all existential impacts
Keane, 11 – Professor of Politics at the University of Sydney (John, “Democracy in the Age of Google,
Facebook and WikiLeaks” http://sydney.edu.au/arts/downloads/news/ALR.pdf)
Communicative abundance enables one other trend that is of life-and-death importance to the future
of democracy : the growth of cross-border publics whose footprint is potentially or actually global in
scope.
The Canadian Scholar Harold Innis famously showed that communications media like the wheel and the
printing press and the telegraph had distance-shrinking effects, but genuinely globalised communication
only began (during the nineteenth century) with overland and underwater telegraphy and the early
development of international news agencies like Reuters. The process is currently undergoing an
evolutionary jump, thanks to the development of a combination of forces: wide-footprint geo-stationary
satellites, weblogs and other specialist computer-networked media, the growth of global journalism and
the expanding and merging flows of international news, electronic data exchange, entertainment and
education materials controlled by giant firms like Thorn-EMI, AOL/Time-Warner, News Corporation
International, the BBC, Al Jazeera, Disney, Bertelsmann, Microsoft, Sony and CNN.
Global media linkages certainly have downsides for democracy. Global media integration has
encouraged loose talk of the abolition of barriers to communication (John Perry Barlow). It is said to be
synonymous with the rise of a ‘McWorld’ (Benjamin Barber) dominated by consumers who dance to the
music of logos, advertising slogans, sponsorship, trademarks and jingles. In the most media-saturated
societies, such as the United States, global media integration nurtures pockets of parochialism; citizens
who read local ‘content engine’ newspapers like The Desert Sun in Palm Springs or Cheyenne's Wyoming
Tribune-Eagle are fed a starvation diet of global stories, which typically occupy no more than about 2%
of column space. And not to be overlooked is the way governments distort global information flows.
Protected by what in Washington are called ‘flack packs’ and dissimulation experts, governments
cultivate links with trusted or ‘embedded’ journalists, organise press briefings and advertising
campaigns, so framing - and wilfully distorting and censoring - global events to suit current government
policies.
All these fickle counter-trends are sobering, but they are not the whole story. For in the age of
communicative abundance there are signs that the spell of parochialism upon citizens is not absolute
because global media integration is having an unanticipated political effect: by nurturing a world stage
or theatrum mundi, global journalism and other acts of communication are slowly but surely cultivating
public spheres in which many millions of people scattered across the earth witness mediated
controversies about who gets what, when, and how, on a world scale.
Not all global media events - sporting fixtures, blockbuster movies, media awards, for instance - sustain
global publics, which is to say that audiences are not publics and public spheres are not simply domains
of entertainment or play. Strictly speaking, global publics are scenes of the political. Within global
publics, people at various points on the earth witness the powers of governmental and nongovernmental organisations being publicly named, monitored, praised, challenged, and condemned, in
defiance of the old tyrannies of time and space and publicly unaccountable power. It is true that global
publics are neither strongly institutionalised nor effectively linked to mechanisms of representative
government. This lack is a great challenge for democratic thinking and democratic politics. Global publics
are voices without a coherent body politic; it is as if they try to show the world that it resembles a
chrysalis capable of hatching the butterfly of cross-border democracy - despite the fact that we currently
have no good account of what ‘regional’ or ‘global’ or ‘cross border’ democratic representation might
mean in practice.
Still, in spite of everything, global publics have marked political effects, for instance on the suit-and-tie
worlds of diplomacy, global business, inter-governmental meetings and independent non-governmental
organizations. Every great global issue since 1945 - human rights, the dangers of nuclear war ,
continuing discrimination against women, the greening of politics - every one of these issues first
crystallised within these publics. Global publics sometimes have ‘meta-political’ effects, in the sense that
they help create citizens of a new global order. The speech addressed to ‘global citizens’ by Barack
Obama at the Siegessaule in the Tiergarten in July 2008 is a powerful case in point, a harbinger of a
remarkable trend in which those who are caught up within global publics learn that the boundaries
between native and foreigner are blurred. They consequently become footloose. They live here and
there; they discover the ‘foreigner’ within themselves.
Global publics centred on ground-breaking media events like Live-Aid (in 1985 it attracted an estimated
one billion viewers) can be spaces of fun, in which millions taste something of the joy of acting publicly
with and against others for some defined common purpose. When by contrast they come in the form of
televised world news of the suffering of distant strangers, global publics highlight cruelty; they make
possible what Hannah Arendt once called the ‘politics of pity’. And especially during dramatic media
events - like the nuclear meltdown at Chernobyl, the Tiananmen massacre, the 1989 revolutions in
central-eastern Europe, the overthrow and arrest of Slobodan Milosevic, the 9/11 terrorist attacks and
the recent struggles for dignity in Tunisia and Egypt - public spheres intensify audiences’ shared sense of
living their lives contingently, on a knife edge, in the subjunctive tense.
The witnesses of such events (contrary to McLuhan) do not experience uninterrupted togetherness.
They do not enter a ‘global village’ dressed in the skins of humankind and thinking in the terms of a
primordial ‘village or tribal outlook’. They instead come to feel the pinch of the world’s power relations;
in consequence, they put matters like representation, accountability and legitimacy on the global
political agenda, in effect by asking whether new democratic measures could inch our little blue and
white planet towards greater openness and humility, potentially to the point where power, wherever it
is exercised within and across borders, would come to feel more ‘biodegradable’, a bit more responsive
to those whose lives it currently shapes and reshapes, secures or wrecks.
A free internet is vital to combating every existential threat
Eagleman, 10 - American neuroscientist and writer at Baylor College of Medicine, where he directs the
Laboratory for Perception and Action and the Initiative on Neuroscience and Law (David, “Six ways the
internet will save civilization” Wired, 9/10,
http://www.wired.co.uk/magazine/archive/2010/12/start/apocalypse-no
Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. Usually
this results from: natural disasters, resource depletion, economic meltdown, disease, poor information
flow and corruption. But we’re luckier than our predecessors because we command a technology that
no one else possessed: a rapid communication network that finds its highest expression in the internet. I
propose that there are six ways in which the net has vastly reduced the threat of societal collapse.
Epidemics can be deflected by telepresence
One of our more dire prospects for collapse is an infectious-disease epidemic. Viral and bacterial
epidemics precipitated the fall of the Golden Age of Athens, the Roman Empire and most of the empires
of the Native Americans. The internet can be our key to survival because the ability to work
telepresently can inhibit microbial transmission by reducing human-to-human contact. In the face of an
otherwise devastating epidemic, businesses can keep supply chains running with the maximum number
of employees working from home. This can reduce host density below the tipping point required for an
epidemic. If we are well prepared when an epidemic arrives, we can fluidly shift into a self-quarantined
society in which microbes fail due to host scarcity. Whatever the social ills of isolation, they are worse
for the microbes than for us.
The internet will predict natural disasters
We are witnessing the downfall of slow central control in the media: news stories are increasingly
becoming user-generated nets of up-to-the-minute information. During the recent California wildfires,
locals went to the TV stations to learn whether their neighbourhoods were in danger. But the news
stations appeared most concerned with the fate of celebrity mansions, so Californians changed their
tack: they uploaded geotagged mobile-phone pictures, updated Facebook statuses and tweeted. The
balance tipped: the internet carried news about the fire more quickly and accurately than any news
station could. In this grass-roots, decentralised scheme, there were embedded reporters on every block,
and the news shockwave kept ahead of the fire. This head start could provide the extra hours that save
us. If the Pompeiians had had the internet in 79AD, they could have easily marched 10km to safety, well
ahead of the pyroclastic flow from Mount Vesuvius. If the Indian Ocean had the Pacific’s networked
tsunami-warning system, South-East Asia would look quite different today.
Discoveries are retained and shared
Historically, critical information has required constant rediscovery. Collections of learning -- from the
library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the
wrecking ball of natural disaster. Knowledge is hard won but easily lost. And information that survives
often does not spread. Consider smallpox inoculation: this was under way in India, China and Africa
centuries before it made its way to Europe. By the time the idea reached North America, native
civilisations who needed it had already collapsed. The net solved the problem. New discoveries catch on
immediately; information spreads widely. In this way, societies can optimally ratchet up, using the latest
bricks of knowledge in their fortification against risk.
Tyranny is mitigated
Censorship of ideas was a familiar spectre in the last century, with state-approved news outlets ruling
the press, airwaves and copying machines in the USSR, Romania, Cuba, China, Iraq and elsewhere. In
many cases, such as Lysenko’s agricultural despotism in the USSR, it directly contributed to the collapse
of the nation. Historically, a more successful strategy has been to confront free speech with free speech
-- and the internet allows this in a natural way. It democratises the flow of information by offering
access to the newspapers of the world, the photographers of every nation, the bloggers of every
political stripe. Some posts are full of doctoring and dishonesty whereas others strive for independence
and impartiality -- but all are available to us to sift through. Given the attempts by some governments to
build firewalls, it’s clear that this benefit of the net requires constant vigilance.
Human capital is vastly increased
Crowdsourcing brings people together to solve problems. Yet far fewer than one per cent of the world’s
population is involved. We need expand human capital. Most of the world not have access to the
education afforded a small minority. For every Albert Einstein, Yo-Yo Ma or Barack Obama who has
educational opportunities, uncountable others do not. This squandering of talent translates into
reduced economic output and a smaller pool of problem solvers. The net opens the gates education to
anyone with a computer. A motivated teen anywhere on the planet can walk through the world’s
knowledge -- from the webs of Wikipedia to the curriculum of MIT’s OpenCourseWare. The new human
capital will serve us well when we confront existential threats we’ve never imagined before.
Energy expenditure is reduced
Societal collapse can often be understood in terms of an energy budget: when energy spend outweighs
energy return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the
worry involves fossil-fuel depletion. The internet addresses the energy problem with a natural ease.
Consider the massive energy savings inherent in the shift from paper to electrons -- as seen in the
transition from the post to email. Ecommerce reduces the need to drive long distances to purchase
products. Delivery trucks are more eco-friendly than individuals driving around, not least because of
tight packaging and optimisation algorithms for driving routes. Of course, there are energy costs to the
banks of computers that underpin the internet -- but these costs are less than the wood, coal and oil
that would be expended for the same quantity of information flow.
The tangle of events that triggers societal collapse can be complex, and there are several threats the net
does not address. But vast, networked communication can be an antidote to several of the most deadly
diseases threatening civilisation. The next time your coworker laments internet addiction, the banality of
tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just be
the technology that saves us.
Data localization will destroy global economic growth
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
C. Economic Development
Many governments believe that by forcing companies to localize data within national borders, they will
increase investment at home. Thus, data localization measures are often motivated, whether explicitly
or not, by desires to promote local economic development. In fact, however, data localization raises
costs for local businesses, reduces access to global services for consumers, hampers local start-ups, and
interferes with the use of the latest technological advances.
In an Information Age, the global flow of data has become the lifeblood of economies across the world.
While some in Europe have raised concerns about the transfer of data abroad, the European
Commission has recognized "the critical importance of data flows notably for the transatlantic
economy." n209 The Commission observes that international data transfers "form an integral part of
commercial exchanges across the Atlantic including for new growing digital businesses, such as social
media or cloud computing, with large amounts of data going from the EU to the US." n210 Worried
about the effect of constraints on data flows on both global information sharing and economic
development, the Organisation for Economic Co-operation and Development (OECD) has urged nations
to avoid "barriers to the location, access and use of cross-border [*722] data facilities and functions"
when consistent with other fundamental rights, in order to "ensure cost effectiveness and other
efficiencies." n211
The worry about the impact of data localization is widely shared in the business community as well. The
value of the Internet to national economies has been widely noted. n212 Regarding Brazil's attempt to
require data localization, the Information Technology Industry Council, an industry association
representing more than forty major Internet companies, had argued that "in-country data storage
requirements would detrimentally impact all economic activity that depends on data flows." n213 The
Swedish government agency, the National Board of Trade, recently interviewed fifteen local companies
of various sizes across sectors and concluded succinctly that "trade cannot happen without data being
moved from one location to another." n214
Data localization, like most protectionist measures, leads only to small gains for a few local enterprises
and workers, while causing significant harms spread across the entire economy . The domestic benefits
of data localization go to the few owners and employees of data centers and the few companies
servicing these centers locally. Meanwhile, the harms of data localization are widespread, felt by small,
medium, and large businesses that are denied access to global services that might improve productivity.
In response to Russia's recently passed localization law, the NGO Russian Association for Electronic
Communications stressed the potential economic consequences, pointing to the withdrawal of global
services and substantial economic losses caused by the passing of similar laws in other countries. n215
For example, besides the loss of international social media platforms, localization would make it
impossible for [*723] Russians to order airline tickets or consumer goods through online services.
Localization requirements also seriously affect Russian companies like Aeroflot because the airline
depends on foreign ticket-booking systems. n216
Critics worried, at the time, that the Brazilian data localization requirement would "deny[] Brazilian
users access to great services that are provided by US and other international companies." n217 Marilia
Marciel, a digital policy expert at Fundacao Getulio Vargas in Rio de Janeiro, observes, "Even Brazilian
companies prefer to host their data outside of Brazil." n218 Data localization affects domestic
innovation by denying entrepreneurs the ability to build on top of global services based abroad.
Brasscom, the Brazilian Association of Information Technology and Communication Companies, argues
that such obligations would "hurt[] the country's ability to create, innovate, create jobs and collect taxes
from the proper use of the Internet." n219
Governments implementing in-country data mandates imagine that the various global services used in
their country will now build infrastructure locally. Many services, however, will find it uneconomical and
even too risky to establish local servers in certain territories. n220 Data centers are expensive, all the
more so if they have the highest levels of security. One study finds Brazil to be the most expensive
country in the Western hemisphere in which to build data centers. n221 Building a data center in Brazil
costs $ 60.9 million on average, [*724] while building one in Chile and the United States costs $ 51.2
million and $ 43 million, respectively. n222 Operating such a data center remains expensive because of
enormous energy and other expenses - averaging $ 950,000 in Brazil, $ 710,000 in Chile, and $ 510,000
in the United States each month. n223 This cost discrepancy is mostly due to high electricity costs and
heavy import taxes on the equipment needed for the center. n224 Data centers employ few workers,
with energy making up three-quarters of the costs of operations. n225 According to the 2013 Data
Centre Risk Index - a study of thirty countries on the risks affecting successful data center operations Australia, Russia, China, Indonesia, India, and Brazil are among the riskiest countries for running data
centers. n226
Not only are there significant economic costs to data localization, the potential gains are more limited
than governments imagine. Data server farms are hardly significant generators of employment,
populated instead by thousands of computers and few human beings. The significant initial outlay they
require is largely in capital goods, the bulk of which is often imported into a country. The diesel
generators, cooling systems, servers, and power supply devices tend to be imported from global
suppliers. n227 Ironically, it is often American suppliers of servers and other hardware that stand to be
the beneficiaries of data localization mandates. n228 One study notes, "Brazilian suppliers of
components did not benefit from this [data localization requirement], since the imported products
dominate the market." n229 By increasing capital purchases from abroad, data localization
requirements can in fact increase merchandise trade deficits. Furthermore, large data farms are [*725]
enormous consumers of energy, n230 and thus often further burden overtaxed energy grids . They
thereby harm other industries that must now compete for this energy, paying higher prices while
potentially suffering limitations in supply of already scarce power.
Cost, as well as access to the latest innovations, drives many e-commerce enterprises in Indonesia to use
foreign data centers. Daniel Tumiwa, head of the Indonesian E-Commerce Association (IdEA), states that
"the cost can double easily in Indonesia." n231 Indonesia's Internet start-ups have accordingly often
turned to foreign countries such as Australia, Singapore, or the United States to host their services. One
report suggests that "many of the "tools' that start-up online media have relied on elsewhere are not
fully available yet in Indonesia." n232 The same report also suggests that a weak local hosting
infrastructure in Indonesia means that sites hosted locally experience delayed loading time. n233
Similarly, as the Vietnamese government attempts to foster entrepreneurship and innovation, n234
localization requirements effectively bar start-ups from utilizing cheap and powerful platforms abroad
and potentially handicap Vietnam from "joining in the technology race." n235
Governments worried about transferring data abroad at the same time hope, somewhat contradictorily,
to bring foreign data within their borders. Many countries seek to become leaders in providing data
centers for companies operating across their regions. In 2010, Malaysia announced its Economic
Transformation Program n236 to transform Malaysia into a world-class data [*726] center hub for the
Asia-Pacific region. n237 Brazil hopes to accomplish the same for Latin America, while France seeks to
stimulate its economy via a "Made in France" digital industry. n238 Instead of spurring local investment,
data localization can lead to the loss of investment. First, there's the retaliation effect. Would countries
send data to Brazil if Brazil declares that data is unsafe if sent abroad? Brasscom notes that the Brazilian
Internet industry's growth would be hampered if other countries engage in similar reactive policies,
which "can stimulate the migration of datacenters based here, or at least part of them, to other
countries." n239 Some in the European Union sympathize with this concern. European Commissioner for
the Digital Agenda, Neelie Kroes, has expressed similar doubts, worrying about the results for European
global competitiveness if each country has its own separate Internet. n240 Then there's the avoidance
effect. Rio de Janeiro State University Law Professor Ronaldo Lemos, who helped write the original
Marco Civil and is currently Director of the Rio Institute for Technology and Society, warns that the
localization provision would have caused foreign companies to avoid the country altogether: "It could
end up having the opposite effect to what is intended, and scare away companies that want to do
business in Brazil." n241 Indeed, such burdensome local laws often lead companies to launch overseas,
in order to try to avoid these rules entirely. Foreign companies, too, might well steer clear of the country
in order to avoid entanglement with cumbersome rules. For example, Yahoo!, while very popular in
Vietnam, places its servers for the [*727] country in Singapore. n242 In these ways we see that data
localization mandates can backfire entirely, leading to avoidance instead of investment.
Data localization requirements place burdens on domestic enterprises not faced by those operating in
more liberal jurisdictions. Countries that require data to be cordoned off complicate matters for their
own enterprises, which must turn to domestic services if they are to comply with the law. Such
companies must also develop mechanisms to segregate the data they hold by the nationality of the data
subject. The limitations may impede development of new, global services. Critics argue that South
Korea's ban on the export of mapping data, for example, impedes the development of next-generation
services in Korea: Technology services, such as Google Glass, driverless cars, and information programs
for visually-impaired users, are unlikely to develop and grow in Korea. Laws made in the 1960s are
preventing many venture enterprises from advancing to foreign markets via location/navigation
services. n243
The harms of data localization for local businesses are not restricted to Internet enterprises or to
consumers denied access to global services. As it turns out, most of the economic benefits from Internet
technologies accrue to traditional businesses. A McKinsey study estimates that about seventy-five
percent of the value added created by the Internet and data flow is in traditional industries, in part
through increases in productivity. n244 The potential economic impact across the major sectors healthcare, manufacturing, electricity, urban infra-structure, security, agriculture, retail, etc. - is
estimated at $ 2.7 to $ 6.2 trillion per year. n245 This is particularly important for emerging economies,
in which traditional industries remain predominant. The Internet raises profits as well, due to increased
revenues, lower costs of goods sold, and lower administrative costs. n246 With data localization
mandates, traditional businesses [*728] will lose access to the many global services that would store or
process information offshore.
Data localization requirements also interfere with the most important trends in computing today. They
limit access to the disruptive technologies of the future, such as cloud computing, the "Internet of
Things," and data-driven innovations (especially those relying on "big data"). Data localization sacrifices
the innovations made possible by building on top of global Internet platforms based on cloud
computing. This is particularly important for entrepreneurs operating in emerging economies that might
lack the infrastructure already developed elsewhere. And it places great impediments to the
development of both the Internet of Things and big data analytics, requiring costly separation of data by
political boundaries and often denying the possibility of aggregating data across borders. We discuss the
impacts on these trends below.
That causes World War 3
James, 14 - Professor of history at Princeton University’s Woodrow Wilson School who specializes in
European economic history (Harold, “Debate: Is 2014, like 1914, a prelude to world war?” 7/3,
http://www.theglobeandmail.com/globe-debate/read-and-vote-is-2014-like-1914-a-prelude-to-worldwar/article19325504/)
Some of the dynamics of the pre-1914 financial world are now re-emerging. Then an economically
declining power, Britain, wanted to use finance as a weapon against its larger and faster growing
competitors, Germany and the United States. Now America is in turn obsessed by being overtaken by
China – according to some calculations, set to become the world’s largest economy in 2014.
In the aftermath of the 2008 financial crisis, financial institutions appear both as dangerous weapons of
mass destruction, but also as potential instruments for the application of national power.
In managing the 2008 crisis, the dependence of foreign banks on U.S. dollar funding constituted a major
weakness, and required the provision of large swap lines by the Federal Reserve. The United States
provided that support to some countries, but not others, on the basis of an explicitly political logic, as
Eswar Prasad demonstrates in his new book on the “Dollar Trap.”
Geo-politics is intruding into banking practice elsewhere. Before the Ukraine crisis, Russian banks were
trying to acquire assets in Central and Eastern Europe. European and U.S. banks are playing a much
reduced role in Asian trade finance. Chinese banks are being pushed to expand their role in global
commerce. After the financial crisis, China started to build up the renminbi as a major international
currency. Russia and China have just proposed to create a new credit rating agency to avoid what they
regard as the political bias of the existing (American-based) agencies.
The next stage in this logic is to think about how financial power can be directed to national advantage
in the case of a diplomatic tussle. Sanctions are a routine (and not terribly successful) part of the
pressure applied to rogue states such as Iran and North Korea. But financial pressure can be much more
powerfully applied to countries that are deeply embedded in the world economy.
The test is in the Western imposition of sanctions after the Russian annexation of Crimea. President
Vladimir Putin’s calculation in response is that the European Union and the United States cannot
possibly be serious about the financial war. It would turn into a boomerang: Russia would be less
affected than the more developed and complex financial markets of Europe and America.
The threat of systemic disruption generates a new sort of uncertainty, one that mirrors the decisive
feature of the crisis of the summer of 1914. At that time, no one could really know whether clashes
would escalate or not. That feature contrasts remarkably with almost the entirety of the Cold War,
especially since the 1960s, when the strategic doctrine of Mutually Assured Destruction left no doubt
that any superpower conflict would inevitably escalate.
The idea of network disruption relies on the ability to achieve advantage by surprise, and to win at no or
low cost. But it is inevitably a gamble, and raises prospect that others might, but also might not be able
to, mount the same sort of operation. Just as in 1914, there is an enhanced temptation to roll the dice,
even though the game may be fatal.
FCC 1ac – technological leadership
Contention 2 – technological leadership
NSA surveillance is crushing U.S. cloud-computing – decks competitiveness and
spills over to the entire tech sector
Donohue 15 – Professor of Law, Georgetown Law and Director, Center on National Security and the
Law, Georgetown Law (Lauren, HIGH TECHNOLOGY, CONSUMER PRIVACY, AND U.S. NATIONAL
SECURITY, Symposium Articles, 4 Am. U. Bus. L. Rev. 11 p.15-18, 2015, Hein Online)//JJ
I. ECONOMIC IMPACT OF NSA PROGRAMS
The NSA programs, and public awareness of them, have had an immediate and detrimental impact on
the U.S. economy . They have cost U.S. companies billions of dollars in lost sales, even as companies
have seen their market shares decline . American multinational corporations have had to develop new
products and programs to offset the revelations and to build consumer confidence. At the same time,
foreign entities have seen revenues increase. Beyond the immediate impact, the revelation of the
programs, and the extent to which the NSA has penetrated foreign data flows, has undermined U.S.
trade agreement negotiations. It has spurred data localization efforts around the world, and it has raised
the spectre of the future role of the United States in Internet governance. Even if opportunistic, these
shifts signal an immediate and long-term impact of the NSA programs , and public knowledge about
them, on the U.S. economy .
A. Lost Revenues and Declining Market Share
Billions of dollars are on the line because of worldwide concern that the services provided by U.S.
information technology companies are neither secure nor private. Perhaps nowhere is this more
apparent than in cloud computing .
Previously, approximately 50% of the worldwide cloud computing revenues derived from the United
States. The domestic market thrived: between 2008 and 2014, it more than tripled in value. But within
weeks of the Snowden leaks, reports had emerged that U.S. companies such as Dropbox, Amazon Web
Services, and Microsoft's Azure were losing business. By December 2013, ten percent of the Cloud
Security Alliance had cancelled U.S. cloud services projects as a result of the Snowden information. In
January 2014 a survey of Canadian and British businesses found that one quarter of the respondents
were moving their data outside the United States .
The Information Technology and Innovation Foundation estimates that declining revenues of
corporations that focus on cloud computing and data storage alone could reach $35 billion over the next
three years. Other commentators, such as Forrester Research analyst James Staten, have put actual
losses as high as $180 billion by 2016, unless something is done to restore confidence in data held by
U.S. companies. The monetary impact of the NSA programs extends beyond cloud computing to the
high technology industry . Cisco, Qualcomm, IBM, Microsoft, and Hewlett-Packard have all reported
declining sales as a direct result of the NSA programs. Servint, a webhosting company based in Virginia,
reported in June 2014 that its international clients had dropped by 50 % since the leaks began. Also in
June, the German government announced that because of Verizon's complicity in the NSA program, it
would end its contract with the company, which had previously provided services to a number of
government departments. As a senior analyst at the Information Technology and Innovation Foundation
explained, "It's clear to every single tech company that this is affecting their bottom line. The European
commissioner for digital affairs, Neelie Kroes, predicts that the fallout for U.S. businesses in the EU alone
will amount to billions of Euros.
Not only are U.S. companies losing customers, but they have been forced to spend billions to add
encryption features to their services. IBM has invested more than a billion dollars to build data centers
in London, Hong Kong, Sydney, and elsewhere, in an effort to reassure consumers outside the United
States that their information is protected from U.S. government surveillance.26 Salesforce.com made a
similar announcement in March 2014.27 Google moved to encrypt terms entered into its browser.28 In
June 2014 it took the additional step of releasing the source code for End-to-End, its newly-developed
browser plugin that allows users to encrypt email prior to it being sent across the Internet.29 The
following month Microsoft announced Transport Layer Security for inbound and outbound email, and
Perfect Forward Secrecy encryption for access to OneDrive.30 Together with the establishment of a
Transparency Center, where foreign governments could review source code to assure themselves of the
integrity of Microsoft software, the company sought to put an end to both NSA back door surveillance
and doubt about the integrity of Microsoft products.3'
Foreign technology companies, in turn, are seeing revenues increase . Runbox, for instance, an email
service based in Norway and a direct competitor to Gmail and Yahoo, almost immediately made it
publicly clear that it does not comply with foreign court requests for its customers' personal
information. Its customer base increased 34% in the aftermath of the Snowden leaks. Mateo Meier, CEO
of Artmotion, Switzerland's biggest offshore data hosting company, reported that within the first month
of the leaks, the company saw a 45% rise in revenue. Because Switzerland is not a member of the EU,
the only way to access data in a Swiss data center is through an official court order demonstrating guilt
or liability; there are no exceptions for the United States. In April 2014, Brazil and the EU, which
previously used U.S. firms to supply undersea cables for transoceanic communications, decided to build
their own cables between Brazil and Portugal, using Spanish and Brazilian companies in the process.36
OpenText, Canada's largest software company, now guarantees customers that their data remains
outside the United States. Deutsche Telekom, a cloud computing provider, is similarly gaining more
customers. Numerous foreign companies are marketing their products as "NSA proof' or "safer
alternatives" to those offered by U.S. firms, gaining market share in the process.
The best and newest research confirms the link
Marthews and Tucker, 15 – * National Chair at Restore the Fourth AND **PhD in economics and
professor of Marketing at MIT (Alex and Catherine, “Government Surveillance and Internet Search
Behavior”, 29 April 2015, file:///C:/Users/17GGonzalez/Downloads/SSRN-id2412564%20(2).pdf)//gg
This study is the first to provide substantial empirical documentation of a chilling effect, both
domestically in the shorter term and internationally in the longer term, that appears to be related to
increased awareness of government surveillance online. Furthermore, this chilling effect appears in
countries other than the US to apply to search behavior that is not strictly related to the government but
instead forms part of the private domain.
Our findings have the following policy implications. From an economic perspective, our finding that
there was an effect on international Google users’ browsing behavior has potential policy implications
for the effects of government surveillance on international commerce. From a US competitive
standpoint, the longer-run effect observed on international Google users’ search behavior indicates
that knowledge of US government surveillance of Google could indeed affect their behavior . At the
most limited end of the spectrum, it could steer them away from conducting certain searches on US
search engines; at the most severe end of the spectrum, they might choose to use non-US search
engines. Such effects may not be limited simply to search engines. For example, as Google’s services are
embedded in a large array of products, it could potentially hinder sales of Android-enabled mobile
phones. Though preliminary attempts are being made to work towards initial measures of the economic
impact of surveillance revelations (Dinev et al., 2008), no systematic study yet exists. All we can do,
within the context of our data, is to indicate that on the basis of the effects we find, the strong
possibility of substantial economic effects exists, and to suggest that such potential adverse economic
impacts should be incorporated into the thinking of policy makers regarding the appropriateness of
mass surveillance programs.
There are limitations to the generalizability of our findings. First, we are not sure how the results
generalize outside of the search domain towards important tech industries such as the rapidly growing
US cloud computing industry. Second, we are not sure how the revelations affected search on Google’s
major competitors, such as Bing and Yahoo! Search. It may be that the effect on their services was
lessened by reduced media focus on them relative to Google in the light of the PRISM revelations and
potentially the extent to which users anticipated that their servers may be located outside of the US.
Third, our results are focused on the effects of revelations about government surveillance as opposed to
the direct effects of government surveillance per se. Notwithstanding these limitations, we believe that
our study provides an important first step in understanding the potential for effects of government
surveillance practices on commercial outcomes and international competitiveness.
That undermines US global technological leadership
Castro and McQuinn 15, Daniel Castro works at the Center for Data Innovation, Government
Technology, The Information Technology & Innovation Foundation, worked at the U.S. Government
Accountability Office, went to Carnegie Mellon. Alan McQuinn works at the Federal Communications
Commission, previously had the Bill Archer Fellowship at the University of Texas, (June 2015, “Beyond
the USA Freedom Act: How U.S. Surveillance Still Subverts U.S. Competitiveness”,
file:///C:/Users/Mark/Downloads/2015-beyond-usa-freedom-act.pdf)//AK
CONCLUSION
When historians write about this period in U.S. history it could very well be that one of the themes will
be how the United States lost its global technology leadership to other nations. And clearly one of the
factors they would point to is the long-standing privileging of U.S. national security interests over U.S.
industrial and commercial interests when it comes to U.S. foreign policy.
This has occurred over the last few years as the U.S. government has done relatively little to address the
rising commercial challenge to U.S. technology companies, all the while putting intelligence gathering
first and foremost. Indeed, policy decisions by the U.S. intelligence community have reverberated
throughout the global economy . If the U.S. tech industry is to remain the leader in the global
marketplace, then the U.S. government will need to set a new course that balances economic interests
with national security interests. The cost of inaction is not only short-term economic losses for U.S.
companies, but a wave of protectionist policies that will systematically weaken U.S. technology
competiveness in years to come, with impacts on economic growth, jobs, trade balance, and national
security through a weakened industrial base. Only by taking decisive steps to reform its digital
surveillance activities will the U.S. government enable its tech industry to effectively compete in the
global market.
Tech leadership is the primary driver of hegemony –
Weiss 14 – Fellow of the Academy of the Social Sciences in Australia, Professor Emeritus in Government
and International Relations at the University of Sydney, Honorary Professor of Political Science at Aarhus
University. (Linda, America Inc.?: Innovation and Enterprise in the National Security State, Cornell
University Press, 4/1/14, p. 1-3)//JJ
*NSS=National Security State
So what accounts for America’s transformative capacity? Where do its breakthrough innovations come
from? My answer traces the relationship between high technology, national security, and political
culture. It advances three interlinked propositions regarding the role of the NSS as technology enterprise
and commercialization engine; its geopolitical drivers ; and the institutional consequences of an
antistatist constraint. The national security state as technology enterprise. First, America's capacity for
transformative innovation derives not merely from the entrepreneurship of its private sector, or simply
from the state as such, but from the national security state—a particular cluster of federal agencies that
collaborate closely with private actors in pursuit of security-related objectives. The NSS is a wholly new
postwar creation that is geared to the permanent mobilization of the nation's science and technology
resources for military primacy , and here I document and explain why it has had to become increasingly
involved in commercial undertakings. Although centered on defense preparedness, the NSS is a good
deal broader than the military, yet narrower than the state as a whole. In addition to its defense core in
the Department of Defense, the NSS comprises several other components created at the height of the
Cold War to pursue, deliver, or underwrite innovation in the service of securing technological
supremacy. Although some are designated as "civilian" in their ori- gins, evolution, and current mix of
activities, these NSS components remain deeply enmeshed in national security or dual-use functions (as
we shall see in chapter 2).4 Acting as commander in chief, the president sits at the peak of this complex,
supported by the Oval Office and, in particular, the Office of Science and Technology Policy. In sum, I
discuss NSS activities not in the more popular sense of a surveillance state, but as a national "technology
enterprise" in which the military is the central, but far from exclusive, actor. In telling this Story, I
demonstrate and account for a major shift in NS.S innovation programs and policies that involved the
national security agencies cultivating and undertaking commercialization ventures. (c. 1945 up to the
1970s), this process of fostering commercially relevant (general-purpose or dual-use) technologies took
both direct and indirect forms. Then (especially from the 1980s onward) it also took a more proactive
form, via patenting and licensing reforms and cooperative agreements to transfer technology from the
federal labs to the private sector, via the launching of new procurement and joint innovation initiatives,
and via the creation of new venture capital (VC) schemes. By placing greater emphasis on
commercialization opportunities, some of these incentives sought to sweeten collaboration with the
DOD and other security-related agencies, and thus to increase NISS influence over the direction of
technology. A significant problem for the NSS has been that since the late 1970s, it has become
progressively more challenging to enlist innovative companies in the private sector to work on securityrelated projects. While traditional defense suppliers grew increasingly large and specialized in systems
integration, by the 1970s the more innovative producer companies—above all, critical suppliers Of
integrated circuits—had begun to pull away from the federal market. Attracting nondefense firms to do
defense work was at one time easy because the government market (in semiconductors and computers,
for instance) was so much larger than the private market, and healthy profits could be made. But by the
mid- 1970s commercial markets had come into their own, leading firms to reorient production to suit
the more standardized demand. One consequence of lacking the earlier pull power Of massive demand
is that NISS agencies have had to create new incentives to foster private-sector collaboration. One of the
major incentives intended to reattract the private sector is the inclusion of commercial goals in NSS
technology policies. Commercial viability therefore has to stand alongside security and technological
supremacy in NSS policy. For instance, if a firm works with an agency to create a technology, service, or
prototype for use by the U.S. Army, it will also be encouraged from the outset of the project to create a
similar product for the commercial market. In this way, and many more, the NSS has progressively been
drawn into promoting commercial innovation for security reasons. One implication, demonstrated in
some detail, is that the NISS has achieved a much broader reach than commonly implied by the notion
Of a military-industrial complex. Geopolitical drivers. What are the drivers of the NSS technology
enterprise? Geopolitics and related threat perceptions have been the original catalyst for NSS
formation and its evolution as an innovation engine . This state- (and technology-) building dynamic has
occurred in three broad phases: the Cold War, the rise of Japan as techno-security challenge, and the
post-9/11 era of asymmetric threats. The NSS emerged and expanded in fits and starts after World War
II in response to a perceived international threat, emanating from the Soviet Union, that proved both
enduring and persistent. It is instructive to note that in this phase the NSS bears at least some
comparison with the erstwhile "developmental states" of Northeast Asia. They too emerged in response
to an intensely perceived security threat, from neighboring China and North Korea, but instead sought
national security more broadly via economic improvement, or industrial catch-up. Living on the fault
lines of the Cold War in the presence of a credible and unyielding security threat exerted an unusual
pressure on the East Asian states to pursue security by building economic strength. More distinctively in
the case of Japan, Peter Katzenstein has developed the argument that, against the backdrop of terrible
defeat, domestic power struggles succeeded in reorienting Japan's conception of security in favor Of
economic rather than military strength. Thus the Japanese state practices a form of "technological
national security" in order to ensure against its resource dependence and reduce its exposure to
international supply disruptions (Katzenstein 1996, 2005; also Samuels 1994). Fundamental motivations
drawn from different historical experiences thus serve to underline a unique feature of the NSS. In
contrast to Japan (and the East Asian developmental states more generally), America's national security
State has been geared to the pursuit of technological superior, not for reasons of national
independence, economic competitiveness, or resource dependency, but in order to maintain American
primacy . For the United States, the experience of World War Il drove home the point that science and
technology (S&T) was a game changer—the key to winning the war—and that future preparedness
would depend on achieving and sustaining technological superiority. Geopolitics is thus the driver, not
economics. I emphasize this point because many analysts have viewed the Pentagon as the source of an
industrial policy that is pursued beneath the radar6—a claim that this book disputes since it mistakes
the nature of the primary driver. From its inception, the NSS was tasked with ensuring the technology
leadership of the United States for the purpose of national defense. Even as the Soviet menace
retreated, security proved paramount as the U.S. confronted a newly resurgent Japan that threatened to
dethrone it as the regnant technology power. Appreciating the strength and intensity of the U.S. security
focus means never underestimating the significance of this point: as long as U.S. military strategy
continues to rely on a significant technology lead over its adversaries (real or potential), threats to that
lead can never be simply (or even primarily) a commercial matter—even when the NSS "goes
commercial.
Hegemonic decline causes great power wars
Zhang et al., Carnegie Endowment researcher, 2011
(Yuhan, “America’s decline: A harbinger of conflict and rivalry”, 1-22,
http://www.eastasiaforum.org/2011/01/22/americas-decline-a-harbinger-of-conflict-and-rivalry/, ldg)
This does not necessarily mean that the US is in systemic decline, but it encompasses a trend that appears to be negative and perhaps alarming. Although the US
still possesses incomparable military prowess and its economy remains the world’s largest, the once seemingly indomitable chasm that separated America from
anyone else is narrowing. Thus, the
global distribution of power is shifting, and the inevitable result will be a world
that is less peaceful, liberal and prosperous, burdened by a dearth of effective conflict regulation. Over
the past two decades, no other state has had the ability to seriously challenge the US military. Under
these circumstances, motivated by both opportunity and fear, many actors have bandwagoned with US
hegemony and accepted a subordinate role. Canada, most of Western Europe, India, Japan, South Korea, Australia, Singapore and the
Philippines have all joined the US, creating a status quo that has tended to mute great power conflicts. However, as the hegemony that drew
these powers together withers, so will the pulling power behind the US alliance. The result will be an
international order where power is more diffuse, American interests and influence can be more readily challenged, and conflicts
or wars may be harder to avoid. As history attests, power decline and redistribution result in military
confrontation. For example, in the late 19th century America’s emergence as a regional power saw it launch its first overseas war of conquest towards
Spain. By the turn of the 20th century, accompanying the increase in US power and waning of British power, the American Navy had begun to challenge the notion
that Britain ‘rules the waves.’ Such a notion would eventually see the US attain the status of sole guardians of the Western Hemisphere’s security to become the
order-creating Leviathan shaping the international system with democracy and rule of law. Defining this US-centred system are three key characteristics:
enforcement of property rights, constraints on the actions of powerful individuals and groups and some degree of equal opportunities for broad segments of
society. As
a result of such political stability, free markets, liberal trade and flexible financial mechanisms
have appeared. And, with this, many countries have sought opportunities to enter this system,
proliferating stable and cooperative relations. However, what will happen to these advances as America’s influence declines? Given that
America’s authority, although sullied at times, has benefited people across much of Latin America, Central and Eastern Europe, the Balkans, as well as parts of Africa
and, quite extensively, Asia, the answer to this question could affect global society in a profoundly detrimental way. Public
imagination and
academia have anticipated that a post-hegemonic world would return to the problems of the 1930s:
regional blocs, trade conflicts and strategic rivalry. Furthermore, multilateral institutions such as the
IMF, the World Bank or the WTO might give way to regional organisations. For example, Europe and East
Asia would each step forward to fill the vacuum left by Washington’s withering leadership to pursue their own visions of regional political
and economic orders. Free markets would become more politicised — and, well, less free — and major powers
would compete for supremacy. Additionally, such power plays have historically possessed a zero-sum
element. In the late 1960s and 1970s, US economic power declined relative to the rise of the Japanese and Western European economies, with the US dollar
also becoming less attractive. And, as American power eroded, so did international regimes (such as the Bretton Woods System in 1973). A world without
American hegemony is one where great power wars re-emerge, the liberal international system is
supplanted by an authoritarian one, and trade protectionism devolves into restrictive, anti-globalisation
barriers. This, at least, is one possibility we can forecast in a future that will inevitably be devoid of unrivalled US primacy.
Cloud computing is key to effective space situational awareness – prevents
space debris collisions with satellites
Johnston et al 13 – Ph.D. with the Computational Engineering and Design Group (CED) at the University
of Southampton, MEng degree in Software Engineering from the School of Electronics and Computer
Science, Senior Research Fellow for the Faculty of Engineering and the Environment at University of
Southampton (Steven, Neil O’Brien – Senior Technical Recruiter at Colloco Search, Hugh Lewis –
Astronautics Research Group at the University of Southampton, PhD, Elizabeth Hart – School of
Engineering Science at Southampton University, Adam White – School of Engineering Science at
Southampton University, Simon Cox – professor of Computational Methods and Director of the
Microsoft Institute for High Performance Computing, PhD, Clouds in Space: Scientific Computing using
Windows Azure, Journal of Cloud Computing, 2013,
http://www.journalofcloudcomputing.com/content/pdf/2192-113X-2-2.pdf)//JJ
Space situational awareness
Within the last two decades, the downstream services pro- vided by space-based assets have become a
ubiquitous component of everyday life within the European Union and internationally, from satellite
television and navigation to environmental monitoring. The European Space Agency (ESA) and European
national space agencies currently rely on information from outside sources to form an awareness of
these assets and the environment in which they operate. In the near future, this awareness will be
provided by a European space situational awareness (SSA ) system, which will provide “ a
comprehensive knowledge, understanding and maintained awareness of the population of space
objects, the space environment, and the existing threats and risks ”(User Expert Group of ESA SSA
requirement study, 2007).
Through its SSA Programme (and its Preparatory Programme), ESA aims to provide key services and
information regarding the space environment. The SSA system will comprise three main segments: 1.
Space surveillance and tracking (SST) of man-made space objects, 2. Space weather (SWE) monitoring
and forecasting, 3. Near-Earth object (NEO) surveillance and tracking .
The provision of timely, high quality data via the space surveillance and tracking segment is required to
maintain an awareness of operational space assets as well as the population of debris objects in Earth
orbit . This awareness provides key knowledge that supports space missions and includes the detection
of conjunction events, the detection and characterization of in-orbit fragmentations and the re-entry of
risk objects. In addition, knowledge of overall space traffic is required to understand the evolution of the
space (debris) environment and to support space debris mitigation and remediation activities.
Space debris represents a significant risk to satellite operations , particularly in the low Earth orbit
(LEO) region. Approximately 19,000 objects larger than 10 cm are known to exist, with around 500,000
larger than 1 cm. The number of smaller particles likely exceeds tens of millions [1]. Conjunctions
between satellite pay- loads and other catalogued objects occur at an average rate of 2,400 per day,
with operators having to perform collision avoidance maneuvers in cases where the risk cannot be
reduced to an acceptable level by dedicated tracking campaigns [2]. Whilst mitigation guidelines have
been adopted and measures implemented by space-faring nations, predictions made by computer
models of the space debris environment indicate that the population of orbiting objects will continue to
grow even in the absence of future space launches [3]. The remediation of the near- Earth space
environment is now widely accepted as a requirement for the long-term, sustainable use of this vital
resource. A reliable and robust SSA infrastructure will be essential for the development and operation
of any remediation technology.
The computational and data-intensive challenges presented by the requirements of a SSA system can be
met using a cloud-based computational approach . In this work, we establish the applicability of a
cloud-based architecture for space surveillance and tracking, algorithm development and comparison.
Debris collisions decks satellites – extinction
Moore 9 – Professor of Economics and International Affairs, M.S. and Ph.D. in economics from the
University of Wisconsin-Madison (Mike, Space Debris: From Nuisance to Nightmare, Foreign Policy,
2/12/9, http://foreignpolicy.com/2009/02/12/space-debris-from-nuisance-to-nightmare/)//JJ
When satellites collide in space, should ordinary people be worried? Here's a scenario for global doom
that should have your hair standing on end. News reports on Feb. 12 that two satellites had collided
some 491 miles above the Earth were compelling. There was a whiff of Cold War intrigue about them. A
defunct Russian communications relay satellite and an American commercial satellite had met abruptly
in space with a closing speed of more than 22,000 miles per hour. They were shattered into many
hundreds of pieces, creating an ever expanding debris cloud. In turn, that cloud threatened the satellites
of other countries in similar orbits. And yet, no one was harmed. Space is a big place, isn’t it? The
reports noted that there were already thousands of pieces of space junk large enough to be tracked and
catalogued. Nonetheless, no one has ever been harmed by a bit of space garbage. At the moment, the
amount of debris in low-earth orbit — the region of space that extends a few hundred miles above the
atmosphere — is merely a nuisance. The United States tracks objects in space and shares the data with
the world. Satellite handlers based in many countries use the data to slightly alter the course of their
birds if a collision seems possible. End of story? Not quite. Orbital space is a natural resource, as surely
as land, air, and water. It must be protected because it is home to nearly a thousand satellites put up by
many countries — communications, geo-observation, geopositioning, weather, and other kinds of
satellites. Globalization would not be possible without commercial satellites. Further, the United States’
military-related birds permit the country to conduct precision war . For the first time in history,
satellites provide the data and the guidance necessary to enable bombs and missiles to actually hit the
targets they are fired at. That’s a moral plus. If a war must be fought, it should be prosecuted in such a
way that military targets are hit and civilians spared to the greatest extent possible. No other country
can fight a conventional war as cleanly and humanely as the United States. Satellites make the
difference. Because of the importance of satellites to the American way of war, the United States insists
that it must achieve the capability to militarily dominate space in a time of conflict. It is the only country
that claims that right. Space, says international law on the other hand, is the common heritage of
humankind and must be devoted to peaceful purposes. America’s truculent space-dominance language
annoys many of its friends and allies. Meanwhile, some major powers — particularly China and Russia —
think it smells of imperialism. A country that could control space in a time of conflict might also exercise
that control in a time of peace. Since 1981, virtually every country save the United States and Israel has
gone on record in the U.N. General Assembly as favoring a treaty that would prevent an arms race in
space. Every year, the United States — under presidents Ronald Reagan, George H.W. Bush, Bill Clinton,
and George W. Bush — has used its veto power at the Conference on Disarmament in Geneva to
prevent serious talks. No one, including the United States, is likely to have actual weapons in space in
the foreseeable future. Space control does not require such weapons. Ground-based, sea-based, and
even air-based antisatellite weapons (ASATs) can do the trick. The United States has long been working
on a variety of highly sophisticated ASAT programs — indeed, the infrastructure for missile defense is
the sort of infrastructure needed for ASAT systems. When a country builds ever greater military
capabilities, potential rivals react. China, in particular, is wary of the coercive possibilities of U.S. military
power. The Middle Kingdom says it wants a space treaty, but in January 2007, it tested its own
somewhat primitive ASAT — a kinetic-kill device that roughly replicated a test the United States carried
out in 1985. Is a space-related arms race under way? Yes. But there is still time to ratchet it down, and
the Obama administration has signaled that it might do so. That will be difficult, though. Exceptionalism
is a major driver of foreign policy, and influential people and hard-line think tanks are comfortable with
the idea that full-spectrum dominance in all things military is America’s right. A nightmare scenario: The
United States continues to work on its defensive ASAT systems. China and Russia do the same to counter
U.S. capabilities. India and Japan put together their own individual systems. Ditto for Pakistan, if it
survives as a coherent country. Israel follows suit, as does Iran. In a time of high tension, someone
preemptively smashes spy satellites in low-earth orbits, creating tens of thousands of metal chunks and
shards. Debris-tracking systems are overwhelmed, and low-earth orbits become so cluttered with metal
that new satellites cannot be safely launched. Satellites already in orbit die of old age or are killed by
debris strikes . The global economy , which is greatly dependent on a variety of assets in space,
collapses . The countries of the world head back to a 1950s-style way of life, but there are billions more
people on the planet than in the 50s. That’s a recipe for malnutrition , starvation , and wars for
resources . The United States, by far the world’s most-advanced space power, must take the lead in
Geneva and engage in good-faith talks. If not, the space-is-ruined scenario could become reality.
FCC 1ac - plan
Plan:
The United States federal government should establish Federal Communications Commission oversight
of the National Security Agency to curtail its surveillance of the United States communications
infrastructure.
FCC 1ac – solvency
Contention 3 - solvency
FCC oversight of the NSA curtails bulk internet surveillance and enforces
targeted surveillance that excludes domestic users. FCC technical expertise and
transparency prevent circumvention
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
IV. HOW THE FCC SHOULD ADDRESS THE NSA SURVEILLANCE: IMPLEMENTING THE SOLUTION
Congress is equipped to enact legislation codifying FCC oversight of the NSA by virtue of both current
law and the PCLOB’s recommendations. First, the Telecommunications Act can serve as the basis for the
FCC to take action to further develop its protection of consumers on the Internet, Moreover, there has
been some movement in Congress calling on the FCC to take action regarding the NSA phone database,
indicating the possibility of the FCC taking up an oversight role.116 Further, Congress gave the FCC
broad investigation, regulatory, and enforcement powers, as well as the privacy-focused directive of
implementing Consumer Propriety Network Information protection.117 Additionally, the first PCLOB
Report calls for extensive changes in the NSA and FISA Court regime while the second report calls
expressly for industry input and expertise: the FCC could facilitate some of the suggested changes
through its subject matter expertise. Even as the FCC is set up to facilitate the PCLOB recommendations,
Congress needs to codify the legal authority for the FCC to do this specifically. Granting express legal
authority is key , as organic statutes of agencies determine what a given agency can and cannot do.
Congressional authorization would be a logical outgrowth of both the FCC’s regulatory interests and
current legal recommendations regarding NSA oversight.
A. Congress should amend the organic statutes of the FCC and NSA and encourage participation in the
FISA Court.
The lack of oversight of NSA data collection practices will continue to be problematic moving forward, as
national security is an ongoing concern and technology is a large part of life in a modern society. There is
need for effective and transparent oversight of the NSA’s data collection. As such, Congress should act
by amending the organic statutes of both the NSA and the FCC to provide the FCC with oversight
authority over the NSA, and by allowing the FCC to participate as amicus curiae with the FISA Court.
1. Congress should amend the NSA organic statute to provide for collection of data by the FCC.
The NSA needs transparent and easily understood oversight. While it should not have to disclose
national security information, the agency should be required to disclose basic statistics, such as how
much information it is gathering, similar to Recommendation 9 in the second PCLOB Report.118 This
would at least illustrate to the public, via the FCC, that the NSA is targeting its surveillance at legitimate
threats to national security— rather than performing blanket surveillance of all Internet users . Further,
these reforms would comport with the PCLOB’s enumerated Recommendations.119 As of now,
“lawmakers and the public do not have even a rough estimate of how many communications of U.S.
persons are acquired under section 702.”120 Because the NSA is required to target foreign
communications in order for its surveillance to be lawful,121 an annual snapshot showing the volume of
its surveillance will help foster some degree of transparency,122 helping assure citizens that their
privacy is not being intruded upon, without hampering legitimate national security efforts.123
This expanded role for the FCC in relation to the NSA should be codified by Congress. First, Congress
should amend the NSA’s organic statute to require the agency to comply with FCC requests for data.
Additionally, while the FCC does not have the security clearance to review the substance of the
surveillance, such clearance is not necessary on an agency-wide basis. Instead, Congress should require
the NSA to provide targeting statistics that could be reasonably disclosed, or at least preliminary
statistics that could focus the FCC’s inquiry. This new legislation is all that is necessary to facilitate
oversight on the NSA side, as the FCC will require most of the congressional authorization.
2. The FCC’s organic statute should be amended to allow the FCC authority over NSA data collection and
participation in the FISA Court.
To enact a solution based on FCC oversight of NSA data collection, Congress should pass legislation
allowing the FCC to collect information from the NSA, and to allow the FCC to submit its findings about
this data to congressional oversight committees as well as the FISA Court. While novel, this solution is in
keeping with the PCLOB recommendations, particularly the recommendation emphasizing the need for
the NSA to publicly disclose the scope of its surveillance.124 Moreover, it is not uncommon for agencies
to have oversight authority over other agencies.125 Thus, this type of inter-agency accountability could
be codified to provide the FCC with oversight authority over NSA data collection.
Congress should first authorize the FCC to request certain types of data from the NSA. Similar to the
PCLOB’s recommendation,126 this data, rather than being substantive, would be statistical; for instance,
it might include data and the basic context surrounding how many communications providers from
which the NSA is collecting metadata, or how many email contact lists the NSA is gathering.127 This
would thereby provide oversight over the relevancy problem, wherein the NSA collects information in
such wide swaths so as not to be tied to any particularized inquiry.128 The FCC would therefore be in a
position to review the volume of information, while keeping it confidential.
The legislation should also include authorization for the FCC to interact with the other oversight bodies.
Congress should give the FCC the authority to send any of the statistics that the agency finds
problematic to the FISA Court and the relevant congressional committees, and should provide for the
FCC to be informed of proceedings implicating data collection over which the FCC would be granted
authority. Additionally, Congress should provide a mechanism for the FCC to liaise with Congress on a
regular basis specifically about the NSA data collection since it involves sensitive information: for
instance, setting out regular reports or allowing Congress to send inquiries to the FCC as needed on the
technical aspects of the NSA’s methods of data collection. The language could also allow for public
comment on NSA collection to some extent, modeled on the current FCC notice and comment
procedures. The FCC could thereby ask for generalized comments without disclosing the exact nature of
its inquiry. Thus, the FCC could solicit public comment on the underlying idea of NSA surveillance as it
relates to the communications infrastructure and incorporate valid comments in its representations to
the relevant oversight mechanisms. This would enable the FCC to incorporate comments by carriers and
consumer interest groups into the oversight process and allow some degree of public participation
without sacrificing national security.
Moreover, the legislation must include a mechanism for protecting national security information. The
FCC has knowledge about the underlying infrastructure where the data is coming from as well as
experience dealing with sensitive information.129 However, there are valid concerns in disclosing any
sort of information implicating national security. To that end, Congress may wish to consider adding a
position in the FCC for an intelligence officer with clearance who can look into relevance when the
amounts of data raise a red flag in the FCC’s internal process for reviewing the data. Moreover,
placement of a member of an NSA staffer in the FCC would facilitate inter-agency cooperation and
dialogue about data collection.
For enforcement, in order to preserve national security, Congress should avoid providing the FCC any
mechanism to call the NSA before it via hearing. However, the FCC would be able to report specially to
the House and Senate committees, as well as petition the FISA Court as amicus curae. Additionally, if the
PCLOB wants to stay involved and keep developing oversight, Congress should provide an avenue for the
FCC to call forth another PCLOB investigation should the need arise.
3. Congress should allow outside parties to petition the FISA Court.
Congress should follow the PCLOB Recommendation to allow outside parties, to petition the FISA Court
to put forth independent views. The PCLOB recommendation about FISA Court operations would allow
for public comment.130 While there are logistical problems with allowing other parties before the court,
the PCLOB suggests that a Special Advocate could advise the FISA Court whether amicus participation
would be helpful in a given case.131 Input from outside sources132—and, in particular, the FCC—would
be useful in terms of providing technical insights into the impact of NSA surveillance on
telecommunications. In particular, the FCC could be among the independent viewpoints incorporated in
the continuing process of evaluating upstream and “about” collection. 133 Moreover, even if Congress
decides to provide limited amicus participation, the FCC, providing volumetric data or technical
expertise, could help act as a bridge between the public, parties in the communications field, and the
court.
The FISA Court itself considers each and every surveillance application fastidiously, but the public needs
to have the same confidence in the court’s impartiality and rigor as those government actors who
interact with or serve on the court.134 While there is need for secrecy due to national security concerns,
there is also the need for the court to take into account a greater range of views and legal arguments, as
well as receive technical assistance and legal input from outside parties.135 The PCLOB report indicates
that, while there are difficulties in inviting amicus participation by parties lacking national security
clearance, such as the FCC, the fact that it has been done in one instance indicates that it is possible to
invite participation from outside parties without infringing upon national security.136
Moreover, as mentioned above, it may be useful for Congress to create a position at the FCC in which
national security clearance is granted. Not only would this create a safeguard for the integrity of
national security information, but this would provide for a person who can be called before the FISA
Court who could be exposed to the facts of a given case, and using the data that has been collected
and/or analyzed by the FCC, could provide insight into a particular instance.
Therefore, Congress should encourage the FISA Court to use its ability to appoint technical experts as
well as passing legislation to allow for more amicus participation by outside parties.137 Congress should
enact legislation following the PCLOB recommendations with an eye towards focusing on the FCC as an
expert by enacting legislation for the FCC to participate as amicus curiae before the FISA Court.
V. CONCLUSION
The FCC is in a position to provide oversight and transparency to the NSA Internet monitoring scandal.
As an agency tasked with regulating the technology and communications sectors, the FCC has been
keeping up with the infrastructure and development of technology vis-à-vis the Internet as it pertains to
its congressional mandate and its own regulations. Moreover, there would not be an intrusion onto
national security efforts because only the volume of information collected would be disclosed. The
current crisis in public confidence shows that there is a place for the FCC to be an integral part of the
oversight process. The FCC would focus the inquiry of the congressional oversight committees and
provide the FISA Court with much-needed outside perspective and technical assistance , while
simultaneously giving the public some comfort and adding transparency to the process. This interagency monitoring could increase accountability and public confidence in a way that traditional
oversight mechanisms cannot : thus, the FCC is in a unique position to add value to the oversight of the
NSA and Congress should pursue codifying this solution.
FCC public visibility, expertise in communication tech, and data analysis curb
overreaching and boost public and industry confidence in privacy protection
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
C. The FCC mission can be naturally expanded to protect privacy in relation to surveillance.
The FCC has a strong privacy background as well as a strong history of promoting openness and
transparency on the Internet. First, this section shows the FCC has been extending many of its
regulations to the Internet and adapting to changes in technology as it does so. Second, the FCC has a
strong history of protecting the nation’s communications infrastructure. The FCC has experience with
accounting for the globalized nature of communications.91 This section next argues that the FCC’s
background in these areas prepares the agency to step into a new role overseeing the NSA collection of
data. Finally, this section discusses the benefits of tasking the FCC with this important oversight role.
1. The FCC has strong a background and significant expertise that will allow the agency to provide
oversight of the NSA.
Since the “advent of the Internet,” the FCC has been involved in regulating this facet of the nation’s
communications infrastructure.92 For instance, as early as 1980, the FCC considered the extent to which
information processing (as involved in Internet services) required further or different regulation from
other communications networks.93 In 1980, the FCC began to recognize a distinction between basic and
enhanced services, and applied this distinction until its codification in the Telecommunications Act of
1996.94 Following codification, the FCC continued its use of this framework, but expanded its scope to
include elements of Internet infrastructure, such as broadband connectivity.95 However, the FCC
remained willing to consider applying its regulatory framework to new technologies.96 This flexibility
has helped the agency adapt to new and changing technology as it influences the nation’s
communications infrastructure.
Additionally, the FCC acknowledges the impact of privacy on the Internet. The recognition that
“[c]onsumers’ privacy needs are no less important when consumers communicate over and use
broadband Internet access than when they rely on [telephone] services,” has played a large part in FCC
policy, as the agency has long supported protecting the privacy of broadband users.97 The FCC further
ensures that consumers have control over how their information is used, and that they are protected
from “malicious third parties.”98 Moreover, there is a direct link between consumer confidence and the
adoption of new technology, which the agency has taken into account as it formulates new policies. As
former Chairman Genachowski explained, in the FCC’s view, “[i]f consumers lose trust in the Internet,
this will suppress broadband adoption and online commerce and communication, and all the benefits
that come with it.”99 Moreover, the FCC has recognized that it can, and should, play a major role in
protecting privacy and consumer confidence in the Internet, including working with industry members
to provide best practices for security100 and encouraging broadband adoption.101 The next logical step
is for Congress to authorize the FCC to further develop Internet privacy principles in the context of
protecting consumers from NSA monitoring of their Internet communications and access of the
Internet providers’ infrastructure to do so.
2. FCC oversight of the NSA could confer significant benefits.
The lack of oversight indicates the need for a solution that is publically visible but would not undermine
national security: due to its relevant expertise, the FCC is that solution. First, there are benefits specific
to the FCC’s area of expertise which make it well-suited to provide insight into the data collection
regarding the public good and communications infrastructure. Second, the FCC’s unique insights into the
technological aspects of the Internet put the agency in a position to be uniquely helpful to congressional
oversight committees. Moreover, the FCC is also particularly well-suited to
provide oversight consistent with plans advocated by the PCLOB: for instance, specially providing the
FISA Court with useful and insightful amicus curiae briefs.102
There are significant benefits to the FCC being the agency to provide insight into the NSA’s monitoring
activities. The NSA gets the information it collects from “major Internet switches” and depending on the
type of surveillance, does not have to notify the companies from which it collects data.103 However, the
FCC could, with additional congressional authority, provide insight into basic statistics about the
information collected by the NSA: for instance, volume, requiring the NSA to at least show patterns (i.e.,
the “relationship mapping” aspects).104 This could be beneficial to the national security mission: by
providing a volumetric, technical analysis, based on practices that can be described, the FCC could help
focus the NSA’s data collection, and thereby contribute to the effort to reduce overcollection , as well
as provide a grounds for congressional monitoring and more effective court cases.105 Moreover, the
FCC routinely deals with sensitive information and collecting public comments.106 For instance, the FCC
often makes certain pieces of information confidential in its proceedings. Recently, the agency issued
protective orders in its comment-seeking proceeding regarding the Technological Transition of the
Nations Communications Infrastructure.107 This experience would facilitate the FCC acting as a bridge
between the NSA and its oversight mechanisms.
Additionally the PCLOB report calls for a similar oversight scheme.108 The PCLOB, in its first report, calls
for the government to work with Internet service providers and other companies that regularly receive
FISA production orders to develop rules permitting the companies to voluntarily disclose certain
statistical information.109 Additionally, the PCLOB recommends that the government publicly disclose
detailed statistics to provide a more complete picture of government surveillance operations.110 The
PCLOB also recommends that independent experts as well as telecommunications service providers help
assess at least one data collection technique.111 The FCC regularly interacts with these companies in its
own rulemaking proceedings, and would therefore be in a position to facilitate independent expertise
being utilized in assessing the efficacy of the collection.112 This is not only because the agency works
with the companies and the infrastructure involved already, 113 but also because the FCC’s general
technical expertise places the agency in a position to consider what types of statistics would be helpful
to the public. The need for expertise in determining the technical aspects of whether the data being
collected is authorized is not limited to DOJ and NSA efforts, but extends to the FISA Court.
In its first report, the PCLOB calls for Congress to enact legislation enabling the FISA Court to hear
independent views.114 While a federal agency rather than an “independent” entity, the FCC would be
particularly well-suited to bolster the outside input and provide the FISA Court with information
regarding the impact on telecommunications, particularly the Internet, of NSA surveillance of the
American public. The FCC would be a particularly helpful independent view to involve in the FISA Court
proceedings because of its technical expertise. Furthermore, the FCC has significant experience dealing
with sensitive information, such as trade secrets.115 Both these traits make the agency particularly wellsuited to provide helpful insights to the FISA Court.
FCC specific 2ac blocks
Solvency – FCC
FCC has the technical expertise to effectively curtail NSA internet surveillance
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
The NSA’s extensive surveillance of U.S. citizens was brought into the spotlight by the recent disclosures
of former NSA contractor Edward Snowden.5 The first of Snowden’s disclosures, released by The
Guardian on Wednesday, June 5, 2013, revealed that the NSA was collecting phone call detail records
from millions of U.S. consumers on a daily basis.6 This has prompted widespread public concern about
the extensive information collection policy of the NSA. As technology continues to develop and the
Internet continues to play a major role in modern life, governmental monitoring of Internet activity will
likely become an area of increasing concern. The best way to ensure proper oversight of this monitoring
is by empowering an administrative agency: namely, the Federal Communications Commission (the
“FCC”).
This Note will address what role the FCC could and should play in overseeing intelligence activities that
implicate individual privacy on the Internet and telecommunications networks. This Note argues that the
FCC, as the expert independent agency that routinely deals with the Internet and telecommunications
networks, has both the tools and capacity to provide some oversight and protection for Internet users.
Part II discusses the background of each agency, beginning with the NSA, then delves into the FCC and
its efforts to keep pace with the ever-changing Internet. Part III argues that, because the existing
mechanisms for overseeing governmental, domestic surveillance programs are inadequate, and given
the FCC’s long history of scrutinizing the interplay of national security and privacy involving
telecommunications, Congress should empower the FCC to address privacy concerns raised by the NSA’s
surveillance of U.S. citizens. Part IV discusses how the FCC could address NSA surveillance activities,
laying out possible, practical solutions that Congress should provide.
FCC key to broadband
Restoring consumer trust is vital to widespread broadband adoption –
perception of credible FCC oversight is key
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
B. The Federal Communications Commission is a dynamic agency, adapting to new communications
technology as it emerges.
The FCC makes a conscious effort to adapt to new technology. Established by the Communications Act
of 1934,30 the FCC regulates interstate and international communications by radio, television, wire,
satellite, and cable in all 50 states, the District of Columbia, and U.S. territories.31 As the agency’s thenChairman acknowledged in 2012, the FCC necessarily plays a role in facilitating the continuing
development of the Internet.32 Moreover, the FCC’s governing statutes empower the agency to
investigate and regulate actual and potential breaches in communications privacy that threaten
customer proprietary network information (“CPNI”), among other types of customer information.33 This
authority encompasses not only traditional mediums of telecommunications,34 such as the Public
Switched Telephone Network,35 but also newer mediums, such as the Internet, to the extent that the
FCC considers providers of Internet traffic to be “telecommunications carriers.”36
Communications privacy plays an important role in the FCC’s formulation of policies and procedures to
promote the use and development of the Internet, and the FCC may even have substantial authority to
act in this area.37 The agency recognizes that the adoption of broadband is affected by consumer’s
perception of their online privacy and security .38 Indeed, the FCC has made a point of adapting to and
fostering privacy and security on the Internet by developing industry standards to regulate
communications providers as new technology has developed.39 To that end, the agency puts a strong
emphasis on working with industry leaders, academics, engineers, federal partners, as well as
companies that work to build and expand Internet infrastructure and services, representatives from
state and local entities, and Internet entrepreneurs and pioneers.40 The FCC has thus made a point to
stay abreast of new technological developments in Internet and broadband technology, while working
to facilitate consumer use of and confidence in this technology.
AT: PCLOB CP
Perm do both – PCLOB already recommended the plan; the CP is the squo
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
Additionally the PCLOB report calls for a similar oversight scheme .108 The PCLOB, in its first report,
calls for the government to work with Internet service providers and other companies that regularly
receive FISA production orders to develop rules permitting the companies to voluntarily disclose certain
statistical information.109 Additionally, the PCLOB recommends that the government publicly disclose
detailed statistics to provide a more complete picture of government surveillance operations.110 The
PCLOB also recommends that independent experts as well as telecommunications service providers help
assess at least one data collection technique.111 The FCC regularly interacts with these companies in its
own rulemaking proceedings, and would therefore be in a position to facilitate independent expertise
being utilized in assessing the efficacy of the collection.112 This is not only because the agency works
with the companies and the infrastructure involved already, 113 but also because the FCC’s general
technical expertise places the agency in a position to consider what types of statistics would be helpful
to the public. The need for expertise in determining the technical aspects of whether the data being
collected is authorized is not limited to DOJ and NSA efforts, but extends to the FISA Court.
PCLOB already recommended the plan – Congressional action is necessary to
legally follow up
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
IV. HOW THE FCC SHOULD ADDRESS THE NSA SURVEILLANCE: IMPLEMENTING THE SOLUTION
Congress is equipped to enact legislation codifying FCC oversight of the NSA by virtue of both current
law and the PCLOB’s recommendations . First, the Telecommunications Act can serve as the basis for
the FCC to take action to further develop its protection of consumers on the Internet, Moreover, there
has been some movement in Congress calling on the FCC to take action regarding the NSA phone
database, indicating the possibility of the FCC taking up an oversight role.116 Further, Congress gave the
FCC broad investigation, regulatory, and enforcement powers, as well as the privacy-focused directive of
implementing Consumer Propriety Network Information protection.117 Additionally, the first PCLOB
Report calls for extensive changes in the NSA and FISA Court regime while the second report calls
expressly for industry input and expertise: the FCC could facilitate some of the suggested changes
through its subject matter expertise. Even as the FCC is set up to facilitate the PCLOB recommendations,
Congress needs to codify the legal authority for the FCC to do this specifically. Granting express legal
authority is key , as organic statutes of agencies determine what a given agency can and cannot do.
Congressional authorization would be a logical outgrowth of both the FCC’s regulatory interests and
current legal recommendations regarding NSA oversight.
AT: FISA reform CP
The FISA Court is incapable of restoring public confidence that the government
can protect privacy
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
2. The FISA Court is not providing an adequate level of publicly available oversight.
Moreover, the FISA Court, a specialized judicial entity which is intended to provide direct oversight over
data collection, is not providing an adequate level of publicly accountable oversight. Unlike regular
courts, the FISA Court does not provide a mechanism for non-governmental parties to provide insight
into the particulars of any given case via amicus briefs.79 This characteristic of FISA Court proceedings
means that the Court does not take adequate account of positions other than the government’s, which
in turn undermines the credibility and usefulness of the Court in cases involving metadata, as the court
must rely solely on the assertions of the NSA .80 The PCLOB noted that “[i]t is central to the integrity of
the process that public has confidence in its impartiality and rigor,” and the FISA Court proceedings lack
this element by not allowing for outside comment.81 Indeed, the FISA Court must rely on the assertions
of the regulated parties, such as the NSA, and is unable to benefit from expertise of relevant parties,
unlike regular courts, where outside parties are able to submit amicus briefs.82 The public has a
significant interest in privacy; this constitutional right is of central importance to the American people,
and lack of public input is a serious failing of the process.83
Therefore, as the FISA Court must rely solely on the representations of the government, it is susceptible
to misrepresentations. The recent declassified decision of the FISA Court revealed that “[c]ontrary to the
government’s repeated assurances, NSA had been routinely running queries of the metadata using
methods and terms that did not meet the standard for querying.”84 This confidential nature of FISA
Court proceedings does not foster public confidence, as there has been public backlash to the fact that
the primary opinion authorizing bulk metadata collection of U.S. citizens’ records has taken this long to
produce, even in redacted form.85 This ruling shows that the FISA Court is not well-equipped to provide
effective oversight of NSA operations because of the lack of public input in its proceedings, the
possibility of misrepresentation, and the delays involved with providing decisions to the public.86
Moreover, while redaction is required to protect national security information, it does not inspire public
confidence. The recent decision is necessarily heavily redacted due to the sensitive nature of the
national security information involved.87 There is, however, a need for more transparent information
proving that the NSA is not intruding too far into the privacy of American citizens with its world-wide
programs88 Moreover, recent judicial inquiries have focused on violations of the privacy of individuals
one at a time, rather than large-scale violations, which are unlikely to stem the larger problem of
continuing NSA surveillance.89 Additionally, these judicial decisions, while setting conflicting
precedents, are backward-looking, rather than forward-looking; courts cannot enjoin surveillance
programs unless injured parties know they exist .90 Moreover, as the discussion above has shown, the
way the FISA Court oversight is structured works against promoting public confidence due to the
necessary lack of disclosure and comment opportunities for the public. This illustrates the gap in
oversight, as neither the appellate courts nor the FISA Court are able to foster public confidence in the
government’s ability to react to NSA privacy infringement, just as congressional and executive oversight
cannot foster public confidence that the government can prevent privacy violations by intelligence
agencies.
AT: Court CP
Courts can’t solve the confidence internal link
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
Moreover, while redaction is required to protect national security information, it does not inspire public
confidence. The recent decision is necessarily heavily redacted due to the sensitive nature of the
national security information involved.87 There is, however, a need for more transparent information
proving that the NSA is not intruding too far into the privacy of American citizens with its world-wide
programs88 Moreover, recent judicial inquiries have focused on violations of the privacy of individuals
one at a time, rather than large-scale violations, which are unlikely to stem the larger problem of
continuing NSA surveillance.89 Additionally, these judicial decisions, while setting conflicting
precedents, are backward-looking, rather than forward-looking; courts cannot enjoin surveillance
programs unless injured parties know they exist .90 Moreover, as the discussion above has shown, the
way the FISA Court oversight is structured works against promoting public confidence due to the
necessary lack of disclosure and comment opportunities for the public. This illustrates the gap in
oversight, as neither the appellate courts nor the FISA Court are able to foster public confidence in the
government’s ability to react to NSA privacy infringement, just as congressional and executive oversight
cannot foster public confidence that the government can prevent privacy violations by intelligence
agencies.
Court oversight fails – low expertise, lack of uniformity, deference
Healey, 14 - J.D. Candidate, The George Washington University Law School (Audra, “A Tale of Two
Agencies: Exploring Oversight of the National Security Administration by the Federal Communications
Commission”, FEDERAL COMMUNICATIONS LAW JOURNAL Vol. 67, December)
B. Stronger oversight is also needed because the courts are ill-equipped to adequately review and
oversee the NSA.
Further demonstrating that change in oversight is needed, federal courts, including the FISA Court, have
shown themselves inadequately suited to oversee the NSA’s activities. As discussed in the previous
subsection, existing oversight mechanisms have not stopped the NSA from pursuing these aggressive
and intrusive data collection policies. Additionally, the courts too have a similar gap in reactive
oversight. As such, some form of oversight is needed to bridge the gap between preventative oversight
by congressional committees and reactive oversight by the FISA Court. This section first shows that the
NSA defies judicial control, then discusses how the traditional appellate process is ineffective, before
arguing that the FISA Court is ineffective at controlling the NSA’s data collection policies.
The NSA is not effectively controlled by judicial mechanisms: the agency violated the orders of the FISA
Court that set out the parameters of permissible surveillance. In 2009, the Department of Justice (“DOJ”)
discovered that the NSA had been operating an automated searching system contrary to FISA Court
orders.68 The NSA acknowledged that the Court’s orders did not provide the agency with authority to
employ the list of phone records in the manner in which it did.69 Separately, it was also disclosed to the
FISA Court that the NSA had violated the court’s orders when thirty-one NSA analysts queried the
telephone records database.70 Moreover, traditional courts without security clearance have limited
authority over the NSA.71
1. Traditional courts do not provide an adequate avenue of appeal.
The regular avenue of redress through trial and appellate courts does not provide an adequate avenue
of appeal for citizens challenging NSA data collection. One primary drawback of the ordinary appellate
process is its lack of uniformity. For instance, the U.S. District Court for the District of Columbia and the
U.S. District Court for the Southern District of New York have reached wildly different conclusions while
dealing with the same basic issue.72 In particular, the United States District Court for the District of
Columbia granted injunctive relief for citizens challenging NSA data collection policies, holding that the
public interest weighed in favor of relief on constitutional grounds.73 However, the District Court for the
Southern District of New York found that, while the right to be free from searches and seizures is
fundamental, it is not absolute, and thus held that NSA data collection practices were lawful.74
Moreover, while courts recently have not shied away from analyzing the constitutional issues
involved,75 these same opinions have indicated a healthy reluctance to overstep into issues where
jurisdiction is more questionable due to national security concerns.76 The regular appeals process
generally cannot, or at least is often unable to, consider national security information.77 Both this
limitation and the lack of uniformity show that the courts are not a guaranteed avenue for citizens to
seek redress from NSA data collection practices, nor do they provide one national voice to speak on
such important topics that necessitate uniform and effective review.78
NSA overreach
Overreach internals
NSA backdoor access increasing
MUSCULAR allows domestic communications to be re-routed abroad – XO12333
incentivizes it
Arnbak and Goldberg 14- cybersecurity and information law research at the Institute for
Information Law, LL.M degree from Leiden University, A Competitive Strategy and Game Theory degree
from London School of Economics University of Amsterdam; Associate professor in the Computer
Science Department at Boston University, phD from Princeton University, B.A.S.c from University of
Toronto (Axel and Sharon, “Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance
on Americans by Collecting the Network Traffic Abroad”, Working Paper, June 27, 2014)//TT
We have just argued the that collection of US person’s network traffic from abroad presents a major
loophole that can be exploited to circumvent legal safeguards protecting Americans and oversight
mechanisms in other branches of Government. Put differently, the current regulatory framework for
network surveillance by intelligence agencies creates incentives for conducting surveillance on foreign
soil, regardless of whether it actually affects American communications or not. We now discuss how the
technical details of Internet’s core protocols can cause traffic sent by Americans to be routed abroad,
where it can be collected under the most permissive third legal regime for network surveillance. We
distinguish two settings: (1) situations where the vagaries of Internet protocols cause Americans’ traffic
to naturally be routed abroad, and (2) situations where Internet protocols can be deliberately
manipulated to cause Americans’ traffic to be routed abroad.
3.1 Why US Traffic can Naturally be Routed Abroad.
The Internet was not designed around geopolitical borders; instead, its design reflects a focus on
providing robust and reliable communications while, at the same time, minimizing cost. For this reason,
network traffic between two endpoints located on US soil can sometimes be routed outside the US.
3.1.1 Interception in the Intradomain.
A network owned by a single organization (even an organization that is nominally “based” in the U.S.
such as Yahoo! or Google) can be physically located in multiple jurisdictions. The revealed
MUSCULAR/TURMOIL program illustrates how the N.S.A. exploited this by presuming authority under
EO 12333 to acquire traffic between Google and Yahoo! servers located on foreign territory, collecting
up to 180 million user records per month, regardless of nationality [17].5 Yahoo! and Google replicate
data across multiple servers that periodically send data to each other, likely for the purpose of backup
and synchronization. These servers are located in geographically diverse locations, likely to prevent
valuable data from being lost in case of failures or errors in one location. The MUSCULAR/TURMOIL
program collects the traffic sent between these servers: while this traffic can traverse multiple
jurisdictions, it remains with the logical boundaries of the internal networks of Yahoo! and Google. Thus,
we already have one example where loopholes under the legal regime of EO 12333 were exploited in
the intradomain, i.e., within the logical boundaries of a network owned by a single organization.
3.1.2 Interception in the Interdomain.
Another possibility is the interdomain setting, where traffic traverses networks belonging to different
organizations. Specifically, interdomain routing with BGP can naturally cause traffic originating in a U.S.
network to be routed abroad, even when it is destined for a network that is located on U.S. soil. BGP
(i.e., the Border Gateway Protocol) is the routing protocol that enables communication between
networks owned by different organizations (Autonomous Systems or ASes, e.g., Google’s network, China
Telecom’s network, or Boston University’s network). As shown in Fig. 1, ASes are interconnected,
creating a graph where nodes are ASes and edges are the links between them. ASes use BGP to learn
paths through the AS-level graph; an AS discovers a path to a destination AS via BGP messages that it
receives from each of its neighboring ASes. An AS then uses its local routing policies to choose a single
most-preferred path to the destination AS from the set of paths it learned from its neighbors, and then
forwards all traffic for the destination AS to the neighboring AS that announced the most-preferred
path.
Importantly, the local policies used to determine route selection in BGP are typically agnostic to
geopolitical considerations; path selection is often based on the price of forwarding traffic to the
neighboring AS that announced the path, as well as on the number of ASes on the path announced by
that neighbor. This means that it can sometimes be cheaper to forward traffic through a neighboring AS
that is physically located in a different country, rather than one located in the same country; this
situation is common, for example, in South America (where network paths between two South
American endpoint ASes often cross undersea cables to Miami [24]) and Canada (where network paths
between two Canadian endpoint ASes regularly traverse American ASes [10]). Ongoing work by one of
the authors seeks to measure how often this occurs when both endpoints are located in the US.
3.2 How Deliberate Manipulations can Divert US traffic Abroad.
In addition to situations where Americans’ traffic is naturally routed abroad, the Internet’s core
protocols – BGP and DNS – can be deliberately manipulated to force traffic originating and terminating
in an American network to be routed abroad . As we discussed earlier, deliberately manipulating
Internet protocols for subsequent data collection from abroad, even when the manipulation was
performed from within the U.S., does not fall under the legal definition for ‘electronic surveillance’ in
FISA; instead, these manipulations are regulated under the most permissive third legal regime for
network surveillance, EO 12333 (and perhaps further specified in non-public guidelines).
3.2.1 Deliberate BGP Manipulations.
We know of numerous real-world incidents where manipulations of the BGP protocol have caused
network traffic to take unusual paths, including situations where traffic from two American endpoint
ASes was rerouted through ASes physically located abroad. While there is no evidence that these
incidents were part of a surveillance operation, or even a clear understanding of why they occurred, it is
instructive to consider them as examples of how an authority could circumvent the legal safeguards
protecting U.S. persons by forcing their network traffic to be diverted abroad.
In 2013, Renesys observed a number of highly-targeted manipulations of BGP that caused traffic sent
between two American endpoint ASes to be routed through Iceland [26]. One manipulation that
occurred on June 31, 2013, is shown in Fig. 1. Traffic originating at an endpoint physically located in
Denver and logically located inside Atrato’s AS, then travels to an Icelandic AS (Siminn) and then back to
its destination, which is physically located in Denver and logically located in Qwest/Centurylink’s AS.
Renesys also observed nine other Icelandic ASes, as well as a few ASes based in Belarus, performing
similar BGP manipulations.
Similar incidents have been known to occur periodically in the Internet [9]. In 2010, for example, a
routing incident caused traffic sent between multiple American endpoint ASes to be diverted through
China Telecom during a single 18-minute time period [11]. In 2008, a presentation at DEFCON [27]
demon- strated how these manipulations could be performed in a covert manner that could be used to
confound the network measurement mechanisms (e.g., tracer- oute, BGP looking glasses) that
researchers used to detect the 2010 and 2013 incidents mentioned above.
Target and Location of the BGP Manipulation. To understand how the legal framework applies to
manipulations of the BGP protocol for the purpose of surveillance, we need to understand who is
targeted, and where the manipulation is executed.
The incidents mentioned above are executed as follows. Per Fig. 1, the manip- ulating AS (e.g., Icelandic
AS Siminn) manages to divert traffic to itself by send- ing, to some carefully selected neighboring ASes,
BGP messages that “imper- sonate” those sent by the legitimate destination AS (Qwest/Centurylink’s
AS). Because BGP lacks authentication mechanisms, these neighbors (Atrato’s AS) accept the BGP
message for the impersonated route,and select the impersonated route. They then forwards their traffic
along the impersonated route to the ma- nipulator’s AS (Icelandic AS Siminn). The manipulator receives
the traffic, and forwards it back to the legitimate destination AS (Qwest/Centurylink) via a le- gitimate
route. The manipulator AS therefore becomes a man-in-the-middle be- tween targeted source AS
(Atrato) and the destination AS (Qwest/Centurylink). While Fig. 1 shows traffic between two individual
endpoints within Atrato and Qwest/Centurylink being intercepted by the BGP manipulation, typically all
traffic originating inside Atrato and destined to the Qwest/Centurylink AS would be intercepted by the
manipulator.
To further understand the targets of this manipulation, we consider what it means to send BGP
messages that “impersonate” a legitimate destination AS. First, we provide more detail on BGP
messages. A BGP message is used to ad- vertise the path to a specific IP address block hosted by a
particular destination AS.6 Each AS in the Internet is allocated one of more IP address blocks, used to
identify devices operated by that AS. Multiple devices can use a single IP address; thus, referring back to
our legal analysis, a single IP address can be used by multiple devices or even ‘persons’. A separate BGP
message is used to advertise each IP address block allocated to a particular destination AS.
Thus, sending a BGP message that “impersonates” a legitimate destination AS means that the
manipulator AS (Icelandic AS Siminn) sends a BGP message that claims a false route to the IP address
block (206.51.69.0/24). As shown in Fig. 1, the manipulator AS (Siminn) falsely claims that the IP address
block 206.51.69.0/24 is allocated to Siminn’s own customer AS, the Icelandic Opin Kerfi AS 48685; in
reality that IP address block is allocated to the legitimate destination AS (Qwest/Centurylink). Because
BGP lacks mechanisms that can authenticate allocations of IP address blocks, the manipulator’s
neighbors will accept this impersonated route, and forward all traffic destined to the IP ad- dresses in
the disputed block to manipulator’s AS (Siminn), instead of the legiti- mate destination
(Qwest/Centurylink). This “impersonated” route will continue to propagate through the network, as the
ASes that select the “impersonated” route pass it on to their own neighbors.
Thus, we can see that the “target” of this BGP manipulation is (1) all traffic sent by each source AS that
selected the impersonated route (e.g., all traffic from Atrato) that (2) is sent to IP addresses in the block
that the manipulator falsely claims is allocated to him (e.g., the 256 IP addresses contained in the block
206.51.69.0/24). That has important legal implications: the permissive legal regime under EO 12333
applies to such surveillance operations, as it does not necessarily ‘intentionally’ target a ‘known,
particular U.S. person’. It is also important to note that this BGP manipulation (which involves sending
just a single “impersonated” BGP message from the Icelandic AS Siminn, shown in red in Figure 1) is
executed entirely outside of the targeted endpoint ASes (Atrato and Qwest/Centurylink). Thus, this BGP
manipulation can be executed entirely abroad .
3.2.2 Deliberate DNS Manipulations.
An alternate network protocol manipulation that can divert traffic to servers located abroad involves
manipulating the DNS (i.e., Domain Name System). The DNS is a core Internet protocol that maps
human-readable domain names (e.g., www.facebook.com) to the IP addresses that identify the servers
hosting the domain (e.g., 69.63.176.13); applications that wish to communicate with the domain
(www.facebook.com) first perform a DNS lookup to learn the IP address of the server that hosts the
domain, and then direct their network traffic to that IP address. DNS lookups for end users and
applications within a single AS are typically performed by a device called a recursive resolver, typically
located within the AS; see Fig. 2. Recursive resolvers engage in the DNS protocol with devices located
outside their AS, and return responses to DNS lookups to users and applications within their AS.
The DNS is well known to be vulnerable to manipulations the subvert the mapping from a domain name
to IP address [8, 20, 22].7 These manipulations, which have often been observed in the wild as
mechanisms for performing net- work censorship [1, 35], can also be used to redirect network traffic
through servers located abroad. Fig. 2 presents an example. Suppose that a manipulator wants network
traffic destined to www.facebook.com from a given source AS (e.g., Boston University) to be routed
though a foreign server located abroad. Suppose the foreign server has IP address 6.6.6.6. The
manipulator can execute a DNS manipulation that causes the recursive resolver in the source AS (Boston
University) to map www.facebook.com to IP address 6.6.6.6. All network traffic for www.facebook.com
from the source AS (Boston University) will then flow to the foreign server at IP address 6.6.6.6. Finally,
the foreign server will silently for- ward the traffic it receives to the real facebook server at IP address
69.63.176.13. Thus, the foreign server becomes a man-in-the-middle for traffic sent between two US
endpoints (Boston University and www.facebook.com).
Target and Location of the DNS Manipulation. This manipulation is more fined-grained than the BGP
manipulation we discussed earlier: it targets all traffic sent to a particular domain (www.facebook.com)
that is sent by all users and applications served by the targeted recursive resolver (i.e., within a Boston
University’s AS). Again, the permissive legal regime under EO 12333 applies to such surveillance
operations, as the traffic does not necessarily ‘intentionally target a U.S. person’.
Moreover, like the BGP manipulations we described earlier, these DNS manipulations can be
conducted entirely abroad ; Hertzberg and Shulman [20] describe a technique that allows this
manipulation to be executed by a device located entirely outside the targeted source AS. For those
interested in the de- tails, we sketch out the technique below and in Fig. 3:
Figure 3: We show how the manipulator located abroad can subvert the DNS mapping for
www.facebook.com at the target source AS 111 (Boston University). First, it is important to observe that
recursive resolvers usually do not accept messages from senders outside their AS; however, mailservers
do. (Mailservers are devices that provide email services for an AS. They therefore need to accept emails
from outside the AS.) Thus, a manipulator located outside the target AS can use the mailserver to attack
the recursive resolver. Specifically, the manipulator sends some carefully-crafted messages to a
mailserver located inside the target AS. These messages act as a trigger for the mailserver to send DNS
queries to the DNS resolver inside the AS; the DNS resolver accepts messages from the mailserver,
because the mailserver is inside the AS. The recursive resolver then proceeds to resolve the mailserver’s
DNS queries. To do this, the recursive re- solver sends DNS messages to other DNS servers outside the
target AS. Finally, the manipulator responds to these DNS messages with carefully-crafted bogus DNS
messages of its own; this allows the manipulator to subvert the recursive resolver’s mapping from a
domain name to an IP address. Observe that this manipulation just involves sending messages from
outside the AS; no internal devices in the AS need to be compromised.
NSA uses MUSCULAR for backdoor access to US company data
Gellman, 13 – staff writer for Washington Post, won 3 Pulitzers (Barton, “NSA infiltrates links to Yahoo,
Google data centers worldwide, Snowden documents say” Washington Post, 10/30,
http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-datacenters-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e3-8b74d89d714ca4dd_story.html
The National Security Agency has secretly broken into the main communications links that connect
Yahoo and Google data centers around the world, according to documents obtained from former NSA
contractor Edward Snowden and interviews with knowledgeable officials.
By tapping those links, the agency has positioned itself to collect at will from hundreds of millions of
user accounts, many of them belonging to Americans. The NSA does not keep everything it collects, but
it keeps a lot.
According to a top-secret accounting dated Jan. 9, 2013, the NSA’s acquisitions directorate sends
millions of records every day from internal Yahoo and Google networks to data warehouses at the
agency’s headquarters at Fort Meade, Md. In the preceding 30 days, the report said, field collectors had
processed and sent back 181,280,466 new records — including “metadata,” which would indicate who
sent or received e-mails and when, as well as content such as text, audio and video.
The NSA’s principal tool to exploit the data links is a project called MUSCULAR, operated jointly with the
agency’s British counterpart, the Government Communications Headquarters . From undisclosed
interception points, the NSA and the GCHQ are copying entire data flows across fiber-optic cables that
carry information among the data centers of the Silicon Valley giants.
The infiltration is especially striking because the NSA, under a separate program known as PRISM, has
front-door access to Google and Yahoo user accounts through a court-approved process.
The MUSCULAR project appears to be an unusually aggressive use of NSA tradecraft against flagship
American companies. The agency is built for high-tech spying, with a wide range of digital tools, but it
has not been known to use them routinely against U.S. companies.
In a statement, the NSA said it is “focused on discovering and developing intelligence about valid foreign
intelligence targets only.”
“NSA applies Attorney General-approved processes to protect the privacy of U.S. persons — minimizing
the likelihood of their information in our targeting, collection, processing, exploitation, retention, and
dissemination,” it said.
In a statement, Google’s chief legal officer, David Drummond, said the company has “long been
concerned about the possibility of this kind of snooping” and has not provided the government with
access to its systems.
“We are outraged at the lengths to which the government seems to have gone to intercept data from
our private fiber networks, and it underscores the need for urgent reform,” he said.
A Yahoo spokeswoman said, “We have strict controls in place to protect the security of our data centers,
and we have not given access to our data centers to the NSA or to any other government agency.”
Under PRISM, the NSA gathers huge volumes of online communications records by legally compelling
U.S. technology companies, including Yahoo and Google, to turn over any data that match courtapproved search terms. That program, which was first disclosed by The Washington Post and the
Guardian newspaper in Britain, is authorized under Section 702 of the FISA Amendments Act and
overseen by the Foreign -Intelligence Surveillance Court (FISC).
Intercepting communications overseas has clear advantages for the NSA, with looser restrictions and
less oversight. NSA documents about the effort refer directly to “full take,” “bulk access” and “high
volume” operations on Yahoo and Google networks. Such large-scale collection of Internet content
would be illegal in the United States, but the operations take place overseas, where the NSA is allowed
to presume that anyone using a foreign data link is a foreigner.
Outside U.S. territory, statutory restrictions on surveillance seldom apply and the FISC has no
jurisdiction. Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) has acknowledged that
Congress conducts little oversight of intelligence-gathering under the presidential authority of Executive
Order 12333 , which defines the basic powers and responsibilities of the intelligence agencies.
John Schindler, a former NSA chief analyst and frequent defender who teaches at the Naval War College,
said it is obvious why the agency would prefer to avoid restrictions where it can.
“Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and
maximize collection by exploiting every loophole,” he said. “It’s fair to say the rules are less restrictive
under Executive Order 12333 than they are under FISA,” the Foreign Intelligence Surveillance Act.
XO 12333 collects US person data
XO 12333 is used to collect large quantities of metadata and find personal
information on U.S. citizens
Rotenberg, EPIC President and Executive Director, 6-16-15 [Electronic privacy information
center, non-profit research and educational organization established in 1994 to focus
public attention on emerging privacy and civil liberties issues.12 We work with a distinguished panel of
advisors in the fields of law, technology and public policy., COMMENTS OF THE ELECTRONIC PRIVACY
INFORMATION CENTER, file:///C:/Users/Jonah/Downloads/EPIC-12333-PCLOB-Comments-FINAL.pdf]
Schloss2
Despite the restrictions placed on the Intelligence Community by Executive Order 12333 and the foreign
intelligence surveillance laws, the NSA and CIA continue to engage in bulk collection and interception of
communications and sensitive information about United States Persons.33 As Senate Intelligence
Committee member Senator Ron Wyden recently noted, “Today there’s a global communications
infrastructure, so there’s a greater risk of collecting on Americans when the NSA collects overseas.”34
EPIC also raised this issue during a PCLOB’s public meeting last year, pointing out that, “Although 12333
requires a court order to target a United States Person, this is of little comfort. Given the global nature
of communications, the indiscriminate mass surveillance the NSA conducts overseas captures the
information of United States Persons.”35 Now that communications are transmitted via a global
telecommunications network, the territorial restrictions of EO 12333 do not meaningfully limit the bulk
collection of U.S. person information and private communications transmitted via U.S. companies.
These programs significantly infringe citizens’ rights under both the Privacy Act and the Fourth
Amendment. Yet there is very little independent oversight of these programs; collection activities of the
IC are difficult to monitor. As EPIC previously stated in a letter to PCLOB, “[t]he Privacy Act defines the
right to privacy with regard to the collection and use of personal information by federal agencies . . . .
Much has happened since 9-11 that is clearly contrary to the purposes of Privacy Act and the
expectation of many Americans who rightly believe that the U.S. government would not develop
massive databases to secretly profile Americans.”36 The Supreme Court recently issued a landmark
ruling on digital privacy rights, finding that the Fourth Amendment requires officers to obtain a warrant
prior to searching an individuals’ cell phone incident to arrest. 37 The Court emphasized that “the
Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs
of assistance’ of the colonial era, which allowed British officers to rummage through homes in an
unrestrained search of evidence of criminal activity.”38 The Court also held that the Fourth Amendment
requires heightened protections for digital content and communications, finding digital files are
fundamentally different than analog records.39
Government programs of mass surveillance that indiscriminately collect data about U.S. Persons are similar to the reviled “general warrants”
that the Founders sought to abolish.40However, in the context of foreign intelligence collection, it
is difficult to ensure that
collection is properly targeted and limited. As EPIC has emphasized, “the only check on surveillance under EO
12333 comes from Executive oversight. This type of self-regulation has proven to be ineffective at best
in limiting surveillance overreach. The minimal oversight in place does not even give the appearance of
the checks and balances provided by judicial or congressionaloversight.”41
It is urgent that PCLOB examine the scope of collection currently conducted under EO12333, given that courts have already ruled that other
NSA bulk collection programs wereillegal.42 EPIC previously reported on one of these other agency programs: “On October 3, 2011,the FISC
ruled that the NSA ‘upstream collection’ of Internet communications violated the Fourth Amendment and the FISA. Specifically, the targeting
and minimization procedures adopted by the NSA were not sufficient to protect the significant number (more than 50,000 per year) of wholly
domestic communications obtained via ‘upstream collection.’”43 Courts have already imposed new restrictions on these narrower surveillance
programs conducted under Congressional
and Judicial oversight, and the much broader EO 12333 bulk
collection programs present an even more pressing need for new oversight and limitations.
The privacy impact of these surveillance programs is not limited to the collection of the contents of U.S.
persons’ communications; the collection of metadata can be even more intrusive. In an amicus curiae brief in the
U.S. Court of Appeals for the Ninth Circuit, EPIC emphasized that “Analysis of large metadata sets equivalent to those
created by the NSA can reveal even more personal information including the identities of our friends
and associates, the identities of our loved ones, and even our political, religious, or social affiliations.”44
EPIC stressed that “[a]ll metadata can be used to make inferences about our daily activities, but location data is particularly sensitive since it
can uniquely identify individuals, reconstruct a person’s movements across space and time, predict future movements, and determine social
interactions and private associations.”45 Collection
of metadata can be a massive invasion of privacy, especially if
the procedures for collection are too expansive.
XO 12333 surveillance is unchecked and unregulated—low legal protections
Arnbak and Goldberg 14- cybersecurity and information law research at the Institute for
Information Law, LL.M degree from Leiden University, A Competitive Strategy and Game Theory degree
from London School of Economics University of Amsterdam; Associate professor in the Computer
Science Department at Boston University, phD from Princeton University, B.A.S.c from University of
Toronto (Axel and Sharon, “Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance
on Americans by Collecting the Network Traffic Abroad”, Working Paper, June 27, 2014)//TT
Until recently only a 1993 version of USSID 18 was de-classified. Most probably in response to the
MUSCULAR revelations on 30 October 2013 [17], the authorities released a 2011 version of USSID 18 on
18 November 2013 [7] that remains redacted on critical parts, as we will see. Noting that the 1982 DoD
Directive, until this day, contains a completely classified Annex A particularized for N.S.A. conduct that
may affect U.S. persons, we focus our analysis on this recently declassified 2011 version of USSID 18.
With regard to actual operations, the public has learned how the N.S.A. assumed authority under EO
12333 to acquire communications within Google and Yahoo! networks because the operation was
conducted on foreign territory [17], collecting up to 180 million user records per month, regardless of
nationality (we discuss this program is Section 3.1.)
Nevertheless, unlike under FISA, critical parts of the underlying policies are still classified, or heavily
redacted. In this section, we will analyze what is publicly known about this third regime and indicate the
remaining knowledge gaps. We first discuss the scope of EO 12333, and when it applies to advanced
network surveillance methods. We then describe how U.S. intelligence authorities enjoy broad and
largely unchecked legal authority when conducting surveillance abroad, and how legal protection
offered to Americans under EO12333 are substantially lower than under the other regimes. Finally, we
point at fundamental institutional barriers in the U.S. Constitution to long term reform of EO12333
policies, regardless of their serious impact on Americans’ privacy.
XO 12333 must be curtailed to protect privacy—massive deregulation under the
Executive Branch
Arnbak and Goldberg 14- cybersecurity and information law research at the Institute for
Information Law, LL.M degree from Leiden University, A Competitive Strategy and Game Theory degree
from London School of Economics University of Amsterdam; Associate professor in the Computer
Science Department at Boston University, phD from Princeton University, B.A.S.c from University of
Toronto (Axel and Sharon, “Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance
on Americans by Collecting the Network Traffic Abroad”, Working Paper, June 27, 2014)//TT
2.3.1 Scope of the Third Regulatory Regime under EO 12333: Electronic Surveillance Conducted Abroad.
As discussed in the Section 2.2, electronic surveillance falls within the EO 12333 regime when it is
conducted on foreign soil, and when it does not fall within the 1978 FISA definition of ‘electronic
surveillance’. Or as the N.S.A. recently put it, when surveillance is “conducted through various means
around the globe, largely from outside the United States, which is not otherwise regulated by FISA.” [5,
p. 2-3]. 4
While FISA surveillance is conducted from U.S. soil, EO 12333 surveillance is mostly conducted abroad.
EO 12333 presumes that network traffic intercepted on foreign soil belongs to non-U.S. persons (cf. s.
9.8 & 9.18.e.2 of USSID 18 defining ‘foreign communications’ and ‘U.S. person’). Companies and
associations are also considered in the EO 12333 definition of U.S. persons. These entities may be
assumed to be non-U.S. persons if they have their headquarters outside the U.S. Even when it is known
to the N.S.A. that a company is legally controlled by a U.S. company, it may be assumed a non-U.S.
person. Taken together, the rules for presuming a non-U.S. person under this regime are permissive on
the individual-, group- and organizational levels.
Installing a Device. We return to the question of ‘installing a device’, to understand how EO 12333
regulates the network protocol manipulations we describe in Section 3.2. These manipulations fall under
EO 12333. However, on top of the 1978 FISA definition of ‘electronic surveillance’, neither EO 12333 nor
the 2011 update of USSID 18 further specify what ‘installing a device’ means to- day. It is not covered in
the definitions of ‘collection’ (section 9.2 USSID 18), ‘interception’ (section 9.11 USSID 18) nor in the
definition of ‘electronic surveillance’ (section 9.7 USSID 18). The definition of ‘installing a device’ to
enable surveillance could possibly be redacted in USSID 18 or further specified in a still-classified
guideline. A post-Snowden N.S.A. memorandum does not provide any clarity [5, p. 2-3]. To the contrary:
NSA uses EO 12333 authority to collect foreign intelligence from communications systems around the
world. Due to the fragility of these sources, providing any significant detail outside of classified channels
is damaging to national security.
The only sensible observation we can make at this point is that a leaked document on the use of
malware by the N.S.A. seems to suggest that the EO 12333 governs untargeted malware, and that USSID
18 only restricts it once the N.S.A. specifically knows who it is targeting [4]. This would be consistent
with our ear- lier argument that the 1978 FISA definition of ‘installing a device’ (cf. 1801(f)(4) FISA) does
not cover the advanced network manipulations we present in Sec- tion 3.2.
2.3.2 Weak Legal Protections for Americans under EO 12333.
Section 1.1 of EO 12333 provides that electronic surveillance should consider U.S. persons rights. The
details are further specified in the underlying documentation, in particular in the heavily redacted USSID
18. In the Washington Post, a former N.S.A. chief analyst provided some background on the interplay
between FISA and EO 12333 [17]:
“Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and
maximize collection by exploiting every loophole,” he said. “It’s fair to say the rules are less restrictive
under Executive Order 12333 than they are under FISA,” the Foreign Intelligence Surveillance Act.
In spite of the redactions in USSID 18, we can make several new contributions to our collective
understanding how legal protection for U.S. persons indeed are less restrictive under EO 12333.
Intentionally targeting U.S. persons. Essentially, section 2.4 of EO 12333 establishes that electronic
surveillance operations that fall under the EO 12333 regime and do not fall under the FISA regime may
intentionally target U.S. persons , as long as they meet the conditions summed up in s. 4.1. USSID 18.
Before looking at those specific conditions, we mention that it is striking that a central passage of the
opening paragraph of section 4.1. is redacted. It reads:
4.1. Communications which are known to be to, from or about a U.S. PERSON [one entire line redacted]
not be intentionally intercepted, or selected through the use of A SELECTION TERM, except in the following instances:
Here we can only call attention to the redaction, but we have no possibility of knowing what it exactly
states. (This would be one of many specific points that could be clarified through e.g., political oversight
or a FOIA request.) The more specific ‘instances’, where ‘communications which are known to be to,
from, or about U.S. persons’ may be ‘intentionally intercepted’ are outlined in sections of 4.1.(a-d)
USSID 18 and span 4 full pages.
Even with the many redactions, we can see that the restrictions provide less protection on critical points
than the already permissive ‘minimization procedures’ under FISA. Often, instead of FISA Court
approval, operations merely need Attorney-General or in some cases even only Director N.S.A. approval
to be ‘legal’. To name just one relevant example, s. 4.1.(c).(1) of USSID 18 holds that when U.S. persons
(including U.S. corporations) consent to a surveillance operation, the approval of the Director of the
N.S.A. may suffice to go ahead with a program. Indeed, May 2014 saw revelations on N.S.A.’s ‘strategic
partnerships’ with several leading corporations in several routing sectors, which may point at obtained
‘consent’. Given aforementioned legal loopholes, it seems likely that the advanced network protocol
manipulations we discuss in Section 3.2 fall within this category, as well as subsequently collected
internet traffic. But several of the relevant criteria are, again, redacted (notably an entirely redacted s.
4.1.(b).(a). on ‘international communications’), which prohibits us from establishing this with complete
certainty [19]. Political pressure or perhaps FOIA request specifically targeted at transparency on s. 4.1.
USSID 18 would be particularly useful to further analyze the scope of unilateral approval by the Director
of the N.S.A. for broad surveillance programs.
Wide Exemptions to Process U.S. Person data Already Collected. Under USSID 18, further processing of
foreign communications is unrestrained (cf. s. 5.3 USSID 18), while the exemptions to further process
communication between U.S. persons intercepted during the collection of foreign communications are
generous (cf. s. 5.4.(d) USSID 18): when communications are encrypted; when ‘significant’ for a ‘foreign
intelligence’ purpose; when useful as evidence in criminal proceedings, or helpful to reveal
communications security vulnerabilities (cf. section 5.4.d). In all these instances, the Director of the
N.S.A. can determine to hold onto the communications between U.S. persons; under FISA, the AttorneyGeneral must make such determinations.
Many More Classified Guidelines. Adding to the host of relevant but classified sentences, section 2 of
USSID 18 references several classified legal documents that further govern specific intelligence activities,
among them the DoD Direc- tives mentioned at the start of this section and NSA/CSS Policy No. 1 to 23,
titled “procedures governing NSA/CSS Activities that affect U.S. persons”, as revised 29 May 2009. The
public has no ability to analyse (the recent versions of) these mostly classified documents in detail. It is
hard to tell whether such guidelines provide more legal loopholes. More generally, there are several
differ- ences in legal protection between FISA and EO 12333 that we haven’t discussed here. In future
work, we hope to further research these issues, in particular the DoD Directives, NSA/CSS policies and
possible new disclosures.
2.3.3 Reforming the Third Legal Regime under EO 12333: Just One Branch of Government.
A more fundamental difference can be signalled at this point: over the next years, three branches of
Government are involved with Patriot Act and FISA reform. In the sphere of EO 12333, this is not the
case. Electronic surveillance regulated under EO 12333 is solely overseen by the Executive branch,
regardless of its actual impact on the privacy of Americans. This simple observation has a long tradition
in U.S. Constitutional law, that gives broad so-called Article II authorities to the U.S. President when it
comes to national security. As we have seen, EO 12333 and its underlying guidelines have been adopted
within the Executive Branch. Much of the lowered legal protection we have signaled demonstrates how
oversight between branches of Government can be circumvented by conducting surveillance under EO
12333.
In response to media inquiries, Senator Dianne Feinstein (D-Cal), Chair of the U.S. Senate Intelligence
Committee tasked to oversee U.S. intelligence agencies, provides some insight into what seems a
complete lack of congressional oversight over EO 12333 operations [34]:
“Twelve-triple-three [EO 12333] programs are under the executive branch entirely.” Feinstein has also
said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she
said.”
One very real outcome of this lack of oversight (or checks and balances between separate branches of
Government) is the wide range of redactions still in place under the EO 12333 regime, which limits
independent analysis. We mention, that by contrast, a central criterion under the European Convention
of Human Rights (‘ECHR’) is that any government policy that impacts rights guaranteed under that
Convention, including privacy, must be publicly available and contain specific safeguards against
overreach. Under the ECHR, such transparency is seen to be a critical guarantee against overreach and
abuse of power. In a range of cases, such as the 2008 Liberty v. UK case, surveillance programs have
been ruled in violation of the fundamental right to privacy precisely because transparency and
safeguards against abuse had been absent. [32].
To summarize, programs under EO 12333 may collect startling amounts of sensitive data on both
foreigners and Americans. EO 12333 and USSID 18 presume communications are non-American,
precisely because their operations are conducted abroad. Such operations are regulated by guidelines
adopted almost entirely within the Executive branch, without any meaningful congressional of judiciary
involvement. Generous exemptions exist that enable use of information ‘incidentally’ collected on U.S.
persons, and critical details remain classified. Overcoming these concerns remains an issue that will be
addressed entirely by the Executive branch. So far, it has not sufficiently been addressed at all, most
probably because the lack of checks and balances between three branches of Government.
Absent a reform of XO 12333 unrestrained surveillance on US persons continue
Arnbak and Goldberg 14- cybersecurity and information law research at the Institute for
Information Law, LL.M degree from Leiden University, A Competitive Strategy and Game Theory degree
from London School of Economics University of Amsterdam; Associate professor in the Computer
Science Department at Boston University, phD from Princeton University, B.A.S.c from University of
Toronto (Axel and Sharon, “Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance
on Americans by Collecting the Network Traffic Abroad”, Working Paper, June 27, 2014)//TT
Therefore, we emphasize that while the Patriot Act and FISA are overseen by all three branches of
Government, EO 12333 remains solely under the executive branch because the U.S. Constitution grants
it wide national security authorities to protect the nation against threats overseas. The implications for
long term reform are real: even if the legislative of judiciary branches of Government address the
loopholes in the Patriot Act and FISA, the U.S. Constitution emerges as a significant obstacle to the long
term reform of EO 12333. We have argued that consolidation of the loopholes in EO 12333 within the
Executive branch could leave Americans’ Internet traffic as vulnerable to surveillance, and as
unprotected by U.S. law, as the traffic of foreigners. Going forward, without a fundamental
reconsideration of the lack of privacy and due process safeguards for non-U.S. persons, U.S. surveillance
legislation leaves the door wide open for unrestrained surveillance on U.S. persons from abroad.
XO 12333 allows the NSA to go way beyond it’s legal limits---multiple program
examples
Rotenberg, EPIC President and Executive Director, 6-16-15 [Electronic privacy information
center, non-profit research and educational organization established in 1994 to focus
public attention on emerging privacy and civil liberties issues.12 We work with a distinguished panel of
advisors in the fields of law, technology and public policy., COMMENTS OF THE ELECTRONIC PRIVACY
INFORMATION CENTER, file:///C:/Users/Jonah/Downloads/EPIC-12333-PCLOB-Comments-FINAL.pdf]
Schloss2
Former NSA Director General Keith Alexander declared in a prepared statement before the Senate Judiciary Committee that the “NSA
conducts the majority of its SIGINT46 activities solely pursuant to the authority provided by EO 12333.”47
While the agency does not discuss most of the sources and methods of SIGINT collection publicly, disclosures in recent years have. June 16,
2015 Under Executive
Order 12333exposed some details of the broad surveillance conducted under EO
12333. Under these programs, the NSA collects a broad range of U.S. Person (“USP”) information.. These
bulk collection programs also result in collection of a massive amount of communications and
information unrelated to surveillance targets. For example, NSA’s MYSTIC program is capable of recording
and storing all calls transmitted to or from a given country.48 The MYSTIC program has been used to collect and store all
of the audio from phone calls made in the Bahamas as well as an unnamed country for thirty days.49 Under MYSTIC, the NSA also collected the
associated metadata for all phone calls made in above countries as well as the metadata from Mexico, Kenya, and the Philippines.50
Using SOMALGET, a tool utilized by the MYSTIC program to help collect and store the audio content of conversations, the NSA is able to
processes over 100 million call events perday.51 SOMALGET can store and manage approximately five billion call events.52
Using its retrospective retrieval (“RETRO”) tool analysts in the NSA, as well as other undisclosed agencies, can listen to audio from phone calls
that were not flagged as of interest at the time of the original conversation.53
The MYSTIC bulk
collection program captures under EO 12333 information on every telephone call of an
estimated 250 million residents in the four named countries.54 An estimated five million U.S. citizens visit the Bahamas alone
every year.55Because this bulk collection indiscriminately sweeps up all telephone calls in the Bahamas, USPs’ phone calls’
associated audio and metadata would necessarily be collected and stored under the MYSTIC program.
Also some, if not the majority, of the foreign communications swept up are unrelated to any valid foreign intelligence target.
The NSA’s programs
under EO 12333 also include massive data collection from the links between Yahoo’s
and Google’s internal data centers.56 Under project MUSCULAR, a joint operation with the British Government Communications
Headquarters (“GCHQ”), the NSA has specifically targeted U.S companies data center links for collection.
MUSCULAR intercepts data, including e-mails and other private communications of users, that pass through the companies’ internal networks
en route to their overseas data centers.57
These data centers are connected via fiber-optic cables, enabling synchronous storage of large amounts
of corporate and user data all across the world. For instance, Yahoo is able to synchronize a Yahoo accountholder’s entire
email archive from the U.S. to another data center across the world, and the NSAMUSCULAR program could capture those e-mail contents en
route.
As of January 2013, the NSA
sent millions of records a day to its Fort Meade headquarters that it collected
from Yahoo’s and Google’s internal networks.58
2012, over 181 million new records, including metadata, were processed and sent to FortMeade.59The full extent of USP information collected
under MUSCULAR is unknown. However, the
bulk collection program would necessarily sweep up irrelevant and
personal information from USP and non-targeted foreign person.
AT: Freedom Act solves
The Freedom Act didn’t actually curtail surveillance
Brenner, 15 - Senior Fellow, the Center for Transatlantic Relations; Professor of International Affairs,
University of Pittsburgh (Michael, Huffington Post, “The NSA's Second Coming” 6/8,
http://www.huffingtonpost.com/michael-brenner/the-nsas-second-coming_b_7535058.html
That all makes for one awesome production. Doubtless there will be a film adaptation immortalized in a
script by Bob Woodward. Something like that will happen -- even though it is a concocted yarn whose
meaning has been twisted and whose significance has been vastly inflated. For the truth is that what
Congress did, and what it did not do earlier, changes very little -- and nothing of cardinal importance.
The main effect is to give the impression of change so as to release pressure for reform that might really
be meaningful. The base truth is that everything that counts remains the same. To entrench and to
legitimate a system of massive surveillance that undercuts our privacy while doing nothing to secure our
well-being.
Let's look at the false notes struck by this narrative.
Matters of Fact
1.
The so-called restrictions on bulk data collection apply only to telephone calls. All else is
exempted: emails, Internet searches, social media, and info regarding each that is retained in our
communicating devices.
2.
The restrictions on real-time surveillance of telephone calls can be overcome by the granting of
a warrant by the FISA upon request by NSA, FBI, Justice Department, CIA -- not to speak of local
authorities. That Court, over the past eight years, has refused only 11 of 33,900 requests. The judges, by
the way, are handpicked by Supreme Court Chief Justice John Roberts who has jumped into the policy
arena by declaring himself strongly opposed to any tightening of restrictions on how the court operates
or on the NSA's methods. The FISA court's attitude toward government spying on Americans has been
generous to the extreme. Former lead judge of the FISA Court, John D. Bates, has campaigned vigorously
on behalf of the status quo. He even objected to the extra workload of requiring that courts approve all
national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about
communications and financial transactions without court approval.
3.
The specified targets may be organizations, groups and networks as well as an individual. In
practice, that means each grant of surveillance power may authorize comprehensive electronic spying
on hundreds or thousands of citizens.
Currently the NSA is overwhelmed by the billions of communications they register and try to catalogue
each week. Long-term data retention only makes sense if there is a project afoot to exploit it
systematically in order to control, to suppress, to penalize. There is no such Big Brother plan in place or
on the horizon. NSA operations fortunately have instead been conceived and managed by fantasists and
bureaucratic empire builders -- as is demonstrated by Edward Snowden's leaks of their immense target
list and their major intelligence failures.
4.
The terms of the warrants allow for a two-step "hop" from the identified target to others whose
suspect communications emerge from the initial combing.
Here is one hypothetical scenario. The NSA requests approval from the FISA court to collect the
communications of the Arab-American Civil Rights League on the grounds that it suspects some dubious
characters have been using its facilities. Over a period of months (if there a restriction on the duration of
electronic surveillance under FISA rules), they register 1,000 communications. Using 'first hop' privileges
they identify 250 persons whose own communications they wish to tap. Using "second hop" privileges
they next identify a total of 1,500 more people whose communications they wish to tap. That makes a
total of 2,700 persons whose telephone calls they are monitoring and storing. Each year, the NSC
requests warrants from the FISA courts about 500 times. Hence, we can project more than 1 million
telephone numbers now under surveillance for an indefinite period of time. For we should further note
that once an official investigation is begun the records acquire the status of legal documents in a judicial
or quasi-judicial proceeding.
5. There is an exemption for on-going investigations. The Patriot Act's Section 224, its "grandfather
clause", allows active investigations that began prior to midnight on Monday to continue using the
expired programs.They number in the thousands given the hyper-activism of our security agencies in
identifying subjects for their attentions in order to justify vast capabilities and vast budgets. Those
broadly cast investigations can go on for years. And all of this is secret.
FREEDOM Act reforms for the FISA court are hollow – no substantive
protections
Brenner, 15 - Senior Fellow, the Center for Transatlantic Relations; Professor of International Affairs,
University of Pittsburgh (Michael, Huffington Post, “The NSA's Second Coming” 6/8,
http://www.huffingtonpost.com/michael-brenner/the-nsas-second-coming_b_7535058.html
8.
Sponsors of the Freedom Act trumpet a supposed breakthrough insofar as it mandates some
small transparency from the secret Foreign Intelligence Surveillance Court. It vaguely affirms that the
Court will be required to declassify a few of its tightly held opinions. Those are opinions explaining why a
warrant request is approved -- as they automatically are. There is no reason to expect any great
revelations. After all, the essence of the FISA Court's reasoning is well known. We live in dangerous
times -- as witness 9/11; the government assures us that there is compelling evidence of dangerous
persons on the prowl and plots afoot; the classified information upon which that assessment is made is
persuasive -- even though we have been granted only a glimpse of a brief summary; this Court cannot
take on itself the responsibility of overriding the professional judgment of our public servants and
thereby put at risk the security and well-being of the American people; blah-blah, blah. Judge Bates
reflects the reigning philosophy of the FISA court in warning that greater public disclosure of unclassified
summaries of court rulings would "likely to promote confusion and misunderstanding" among the likes
of you and me.
9.
The new legislation also allows the judges to appoint a "friend of court" to argue on behalf of
privacy concerns. This does not mean that there will be adversary proceedings or a systematic
examination of the case for a warrant. It simply means that there may be designated persons available
to remind the FISA judges that privacy considerations should be taken into account in their
deliberations. For all that is worth, they might as well prepare a form letter that is emailed to the Court
every time that a request arrives on their computers.
FREEDOM Act creates no actual constraints against intelligence
Brenner, 15 - Senior Fellow, the Center for Transatlantic Relations; Professor of International Affairs,
University of Pittsburgh (Michael, Huffington Post, “The NSA's Second Coming” 6/8,
http://www.huffingtonpost.com/michael-brenner/the-nsas-second-coming_b_7535058.html
The United States Freedom Act does not trouble Intelligence agency leaders. They have widely assumed,
as admitted in private statements, that the compromise provisions merely create a few procedural
inconveniences that could be circumvented or neutralized by exploiting loopholes - no more than speed
bumps. None of the Agency's core activities would be significantly affected. So there is no reason for
anyone in the intelligence agencies to sweat the small stuff: a shift in the number of days the NSA can
retain the sweepings of Metadata collection; or whether the data should be held at their storage lock-up
or the one across the street protected by a bicycle lock and owned by a very accommodating neighbor?
And who's checking, anyway -- the FBI? the FCC?
The Freedom Act is largely symbolic – hardly restricts surveillance
Timm 6/2 - co-founder and the executive director of the Freedom of the Press Foundation (Trevor
Timm, Boing Boing, 6/2/2015, http://boingboing.net/2015/06/02/congress-passes-usa-freedomac.html)//MBB
Today the Senate passed a version of the USA Freedom Act, a bill touted by its authors as surveillance
reform that will end the NSA’s mass, suspicionless collection of Americans’ personal data. Given that
parts of the Patriot Act expired on June 1st, and that the government is pretending the expiration is a
“crisis” rather than an opportunity, President Obama is expected to sign the bill as soon as possible.
While the bill has many significant flaws, the USA Freedom Act vote is also historic: it’s the first time
since the 1970s that Congress has indicated its intention to restrict the vast powers of intelligence
agencies like the NSA, rather than exponentially expand them. It also shows the power that investigative
journalism and brave whistleblowing can have on even the most entrenched government interests. Two
years ago, debating these modest changes would’ve been unthinkable, and it is absolutely a vindication
for Edward Snowden.
Unfortunately, the bill is also woefully inadequate and largely symbolic, and Congress would’ve been
better off letting Section 215 of the Patriot Act expire permanently. The USA Freedom Act supposedly
bans bulk collection of phone records or any other private records, and we certainly hope it actually
does. But its provisions are vague and confusing, leading many legal experts to believe they could be reinterpreted in secret—by NSA lawyers with a history of warping the common definitions of ordinary
words beyond recognition—and could lead the FISA court to continue to allow the NSA to collect large
quantities of Americans’ data in secret. (The administration will shamefully now re-start the phone
program that expired on Monday for six months, as allowed under the new law's "transition" period.)
The ultra-secret FISA court, a Kafkaesque nightmare for civil liberties, also gets to keep many of its worst
features, with just minor changes around the edges. Such an anathema to democracy should be
dismantled entirely.
The USA Freedom Act also does not touch on two of the NSA’s most powerful and controversial tools:
the FISA Amendments Act and Executive Order 12333, which have been used to scan untold billions of
emails coming in and out of the United States, and give the agency free rein to spy on 95% of the world’s
population with virtually no restrictions.
And perhaps most shamefully, given that Congress never would’ve even had this debate without Edward
Snowden, the bill does nothing for whistleblowers who can be prosecuted as spies under the Espionage
Act for speaking to journalists and telling the American public the truth.
As Snowden himself said two weeks ago, we hope the USA Freedom Act is just the beginning of
Congress’ reform of the NSA, and not the end. And we are reminded that it took more than five years
for the Church Committee’s intelligence reforms to make their way through Congress in the 1970s.
Freedom Act does not actually limit bulk collection – new works in the mix
Toomey 6/25 - graduate of Harvard College and Yale Law School, Staff Attorney in the ACLU’s
National Security Project (Patrick C. Toomey, “Has the CIA Asked the FISC to Restart Its Bulk Collection
Program?”, Just Security, 6/25/2015, http://justsecurity.org/24216/cia-asked-fisc-restart-bulkcollection-program/)//MBB
There’s a curious gap in the documents currently posted on the FISC’s public docket — one that suggests
the NSA call records program isn’t the only type of bulk collection the government has asked the FISC to
reauthorize following the USA Freedom Act’s passage on June 2. It’s an exercise in reading tea leaves at
this point, but the gap raises important and unanswered questions about bulk collection programs we
still know little about.
In the weeks since the USA Freedom Act became law, the FISC has published a series of filings and
orders on its website. Those documents indicate that the government has submitted at least four
applications for orders under the post-USA Freedom version of Section 215. One of them, docketed as
BR 15-75, is the government’s application to restart the NSA’s bulk call records program. (The “BR”
stands for FISA’s “business records” provision, while “15” stands for the year.) Two others, numbered BR
15-77 and BR 15-78, are addressed by Judge Saylor’s opinion concerning the appointment of an amicus
curiae and the question of whether Section 215’s brief expiration made gibberish of Congress’ effort to
renew the law in the USA Freedom Act. Based on the description in the opinion and the scope of the
issues addressed, one can fairly surmise that these are targeted applications for records under Section
215.
But what about the missing BR 15-76?
It’s hard to be certain, but it’s likely that BR 15-76 is an application to restart the phantom CIA bulk
financial records program or another undisclosed bulk collection program. Beginning in late 2013,
multiple outlets reported on the CIA’s bulk collection of Americans’ international money transfer
records from companies like Western Union and Moneygram. Other outlets stated at the time that the
CIA program overlapped significantly with efforts to collect “financial transaction data” by both the NSA
and the Treasury Department. And according to the New York Times, beyond the CIA program, several
officials “said more than one other bulk collection program has yet to come to light.” (There is other
evidence of these programs in the ACLU’s FOIA litigation, in which the government identified a set of
bulk collection orders dated October 31, 2006, but refused to say more.) Troublingly, none of these
programs have ever been publicly acknowledged — not even in the course of a months-long public and
congressional debate about how to reform Section 215.
And now it appears, the government may be seeking to restart another one of the very bulk collection
programs that many people understood the USA Freedom Act was meant to prohibit.
There are a few reasons to think the missing application relates to one of these still-secret bulk
collection programs and is not just another targeted request. First, in issuing the opinion related to BR
15-77 and BR 15-78, the FISC made a deliberate decision to split off the questions it considered nobrainers from the more difficult statutory and constitutional questions raised by the government’s
application to renew its bulk call records program in BR 15-75. The legal authority for that program has
been deeply undermined by the Second Circuit’s decision in ACLU v. Clapper, and at least based on the
public record today, the FISC still has not resolved those questions. But in the meantime, as Judge
Saylor’s opinion makes clear, the FISC chose to skip ahead to several subsequent applications that
presented only “relatively simple” questions. The FISC’s decision to leave BR 15-76 out of Judge Saylor’s
opinion suggests that it involves more complicated questions on par with the bulk call records
application — i.e., that it involves a different bulk collection program, one the government wants to
restart but the FISC must now analyze more closely.
Second, it’s very unlikely that BR 15-76 is a targeted application that the FISC simply went ahead and
silently granted. That’s because the FISC would have had to address the same questions raised by BR 1577 and BR 15-78 in order to grant virtually any application under Section 215 — namely, which version
of Section 215 is currently in effect. The temporary expiration of Section 215 on June 1 left it unclear, at
least as a technical matter, what remained of the law when Congress decided to amend it. If the missing
application were also a targeted one, why didn’t the FISC resolve this question and announce its
decision in the context of that earlier application? The better conclusion is that BR 15-76 isn’t a targeted
application at all, but concerns a bulk collection program the government continues to hide from the
public.
Now, it’s possible that BR 15-76 is a targeted request that simply got delayed, or was rejected outright,
based on some other defect in the government’s application. But, as we know, that doesn’t happen very
often in the FISC. Alternatively, it’s possible that the government sought a type of record — such as
hotel or car rental records — that was available under even the pre-2001 version of FISA’s business
records provision. But, even so, the FISC would have had to determine which version of the law is
currently in effect in order to know what type of showing the government was required to make.
The more likely scenario is that the government has asked the FISC to reinstate the CIA’s bulk collection
program or one of its still-secret brethren. If that’s right, the public should know about this program.
The government’s application goes directly to one of the key questions in the USA Freedom Act debate:
whether the legislation would prove effective in halting the bulk collection of Americans’ sensitive
information. Perhaps the government is simply seeking to “transition” this program over the coming 180
days, as it has said of its effort to restart the NSA call records program — but of course we don’t know.
So long as the government continues to keep the public in the dark about its efforts to collect their data
en masse, we can’t judge whether the USA Freedom Act really put an end to bulk collection under
Section 215.
Freedom Act didn’t change anything
Bond and Malitz 6/3 – (Becky Bond and Zack Malitz, “Why USA Freedom Act is not a win for civil
liberties, but how what you accomplished can help change the game”, Defending Dissent Foundation Bill
of Rights Defense Committee, 6/3/2015, http://www.bordc.org/blog/why-usa-freedom-act-not-wincivil-liberties-how-what-you-accomplished-can-help-change-game)
In reality, this latest version of the USA FREEDOM Act does not enact deep, meaningful reform to the
surveillance state.4 The White House supported the bill, as did the surveillance agencies, because they
were desperate to be able to say that something, anything, has been done to address Edward
Snowden’s revelations of unconstitutional spying.
At best, the current version of the bill will place some restrictions on the bulk collection of telephone
records, curtailing somewhat the use of a handful of the government’s many surveillance authorities. It
by no means will end mass, suspicionless spying on Americans, though it could reduce somewhat the
number of Americans impacted by certain surveillance programs at any given time. The NSA may have
to collect merely huge numbers of records about large numbers of Americans – instead of nearly all
domestic telephone records. The bill also makes some reforms to the secretive Foreign Intelligence
Surveillance Court – which may be a little more transparent under this bill.
At CREDO, we don’t believe that these relatively superficial changes, some of which may hamper the
NSA’s suspicionless spying somewhat but won’t end mass surveillance, are worth reauthorizing the
PATRIOT Act, nor are we confident that the government will interpret the law in the same way as
reformers – after all, agencies like the NSA and FBI have an egregious track record of ignoring or
distorting laws they find inconvenient. The USA FREEDOM Act is far worse than simply allowing section
215 of the PATRIOT Act to expire.
It’s not clear that the USA FREEDOM Act will reform anything. Even if it forces the NSA to change some
practices under particular authorities, we know that they’ll try to shift those same behaviors
elsewhere , will stretch the law beyond anything reasonable, and based on past experience they’ll then
lie to their overseers in Congress about it. But what is clear is that it re-creates the PATRIOT Act’s
expired authorities and explicitly authorizes sweeping and invasive programs to collect highly-sensitive
medical, educational, financial, email and telephone records without a warrant.5 It never touched on
most of the authorities the government exploits to justify its many mass surveillance programs,
including section 702 of the FISA Amendments Act and Executive Order 12333. It gives corporations –
including many of the tech companies that supported the bill – legal immunity from prosecution for
participating in spying on Americans.
AT: Amicus curiae briefs solve adversariality
Relying on amicus curiae briefs won’t resolve Article III problems of FISA
Goitein and Patel 15 - Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Served
as counsel to Sen. Russell Feingold with a particular focus on government secrecy and privacy rights. Was a trial attorney in the Federal
Programs Branch of the Civil Division of the Department of Justice. Graduated from the Yale Law School and clerked for the Honorable Michael
Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit. Faiza Patel serves as co-director of the Brennan Center for Justice’s Liberty and
National Security Program. Clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Ms. Patel is a graduate of
Harvard College and the NYU School of Law. (Elizabeth and Faiza, “What went wrong with the FISA court”, Brennan Center for Justice at New
York University School of Law, 2015 //DM)
Several existing reform proposals would address the lack of a party opposing the government in FISA
Court proceedings by establishing a permanent public interest advocate (or slate of advocates) to
represent the interests of people affected by government surveillance.272 President Obama and two
former judges of the court publicly support the appointment of such an attorney, commonly referred to
as the “Special Advocate.”273 An alternative approach would allow the FISA Court to hear from certain
individuals or interest groups as amici curiae.274 The court could call upon these outside
representatives to weigh in on potential privacy and civil liberties concerns raised by a government
application.275
The latter approach would not resolve the Article III problem, particularly if participation were left to the
court to decide. The FISA Court already has discretion to solicit or permit amicus participation, and with
few exceptions, has preferred to rely on the government’s submissions alone .276 Article III would be
best served by strengthening the special advocate concept to the greatest extent possible, including by
ensuring that special advocates are notified of cases pending before the court, have the right to
intervene in cases of their choosing, and are given access to all materials relevant to the controversy in
which they are intervening.
AT: No metadata abuse
We kill people based on metadata – it generates more info than actual content
Schneier, 15 - fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Introduction)//AK
There are other sources of intimate data and metadata. Records of your purchasing habits reveal a lot
about who you are. Your tweets tell the world what time you wake up in the morning, and what time
you go to bed each night. Your buddy lists and address books reveal your political affiliation and sexual
orientation. Your e-mail headers reveal who is central to your professional, social, and romantic life.
One way to think about it is that data is content, and metadata is context. Metadata can be much more
revealing than data, especially when collected in the aggregate. When you have one person under
surveillance, the contents of conversations, text messages, and emails can be more important than the
metadata. But when you have an entire population under surveillance, the metadata is far more
meaningful, important, and useful.
As former NSA general counsel Stewart Baker said, “Metadata absolutely tells you everything about
somebody’s life. If you have enough metadata you don’t really need content.” In 2014, former NSA and
CIA director Michael Hayden remarked, “We kill people based on metadata.”
Internet freedom
Uniqueness – US pushing IF agenda
The US government continues to push for IF reforms
Fontaine, 14 – President of the Center for a New American Security; was foreign policy advisor to
Senator John McCain for more than five years; Worked at the State Department, the National Security
Council and the Senate Foreign Relations Committee; was associate director for near Eastern affairs at
the National Security Council; B.A. in International Relations from Tulan University (Richard, “Bringing
Liberty Online; Reenergizing the Internet Freedom Agenda in a Post-Snowden Era”, Center for a New
American Security, September 18, 2014, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf)//TT
Despite the international outrage, and both public and private criticism of U.S. surveillance policies, the
U.S. government has continued its Internet freedom–related activities, albeit at a lower public volume.
In early 2014, Secretary of State John Kerry, addressing the Freedom Online Coalition conference in
Estonia, called for an “open, secure, and inclusive Internet.”33 U.S. Internet freedom programming
continues: the State Department’s Bureau of Democracy, Human Rights and Labor alone planned to
expend roughly $18 million in 2014 on anti-censorship technology, secure communications, technology
training and rapid response to bloggers under threat.34 In June, the United States sponsored a
successful U.N. Human Rights Council resolution reaffirming that the same rights that people have
offline, including freedom of expression, must be protected online, regardless of frontiers.35
While continuing to execute the Internet freedom agenda, U.S. officials have attempted to reconcile
their government’s surveillance practices with its expressed desire for greater online freedom. This is
challenging, to say the least. U.S. officials draw a critical distinction between monitoring
communications for purposes of protecting national security and surveillance aimed at repressing
political speech and activity. While this distinction is intuitive to many Americans, it is likely to be lost on
many others, particularly where autocratic regimes consider domestic political dissent to be a national
security threat. At its bluntest, the American position is that it is legitimate, for example, for the U.S.
government, but not for the Chinese government, to surveil Chinese citizens. This is and will remain a
tough sell.
Secretary Kerry has defended the Obama administration’s reforms to signals intelligence collection,
saying that they are based on the rule of law, conducted pursuant to a legitimate purpose, guided by
proper oversight, characterized by greater transparency than before and fully consistent with the
American vision of a free and open Internet.36 In March 2014, Deputy Assistant Secretary of State Scott
Busby addressed the linkage between surveillance and Internet freedom and added two principles to
Kerry’s – that surveillance should not be arbitrary but rather as tailored as possible, and that decisions
about intelligence collection priorities should be informed by guidance from an authority outside the
collection agency.37 In addition, the U.S. government has taken other steps to temper the international
reaction. For example, the Department of Commerce opted to relinquish its oversight of ICANN – the
organization that manages domain name registries – to the “global Internet community.”38
Overreach kills internet freedom
NSA surveillance wrecks US cred in promoting Internet Freedom and spills over
to larger foreign policy cred
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
Mandatory data localization proposals are just one of a number of ways that foreign governments have
reacted to NSA surveillance in a manner that threatens U.S. foreign policy interests, particularly with
regard to Internet Freedom. There has been a quiet tension between how the U.S. approaches freedom
of expression online in its foreign policy and its domestic laws ever since Secretary of State Hillary
Clinton effectively launched the Internet Freedom agenda in January 2010.170 But the NSA disclosures
shined a bright spotlight on the contradiction: the U.S. government promotes free expression abroad
and aims to prevent repressive governments from monitoring and censoring their citizens while
simultaneously supporting domestic laws that authorize surveillance and bulk data collection. As
cybersecurity expert and Internet governance scholar Ron Deibert wrote a few days after the first
revelations: “There are unintended consequences of the NSA scandal that will undermine U.S. foreign
policy interests – in particular, the ‘Internet Freedom’ agenda espoused by the U.S. State Department
and its allies.”171 Deibert accurately predicted that the news would trigger reactions from both
policymakers and ordinary citizens abroad, who would begin to question their dependence on American
technologies and the hidden motivations behind the United States’ promotion of Internet Freedom. In
some countries, the scandal would be used as an excuse to revive dormant debates about dropping
American companies from official contracts, score political points at the expense of the United States,
and even justify local monitoring and surveillance. Deibert’s speculation has so far proven quite
prescient. As we will describe in this section, the ongoing revelations have done significant damage to
the credibility of the U.S. Internet Freedom agenda and further jeopardized the United States’ position
in the global Internet governance debates. Moreover, the repercussions from NSA spying have bled over
from the Internet policy realm to impact broader U.S. foreign policy goals and relationships with
government officials and a range of other important stakeholders abroad. In an essay entitled, “The End
of Hypocrisy: American Foreign Policy in the Age of Leaks,” international relations scholars Henry Farrell
and Martha Finnemore argue that a critical, lasting impact of information provided by leakers like
Edward Snowden is “the documented confirmation they provide of what the United States is actually
doing and why. 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.”172 Toward the end of the essay, Farrell and Finnemore suggest, “The
U.S. government, its friends, and its foes can no longer plausibly deny the dark side of U.S. foreign policy
and will have to address it head-on.” Indeed, the U.S. is currently working to repair damaged bilateral
and multilateral relations with countries from Germany and France to Russia and Israel,173 and it is
likely that the effects of the NSA disclosures will be felt for years in fields far beyond Internet
policy .174
This overreach will end US internet leadership and cause global fragmentation
Eoyang, 13 - Director of the National Security Program (Mieke, “NSA Snooping's Negative Impact On
Business Would Have The Founding Fathers 'Aghast'” Forbes,
http://www.forbes.com/sites/realspin/2013/12/20/nsa-snoopings-negative-impact-on-business-wouldhave-the-founding-fathers-aghast/
Second, what will this mean for the future of Internet governance? Since its earliest days, the U.S.-based
Internet Corporation for Assigned Names and Numbers (ICANN) has governed the web. As the Internet
has expanded, several nations, especially China, have been pressing to end American dominance and
transfer control of Internet governance to the International Telecommunication Union (ITU), a
specialized agency within the United Nations.
Worse still for prospects of continued American dominance, the NSA revelations have prompted calls for
extensive regional control of the Internet. For example, Brazil, which has long called for such regional
control, will host an important Internet governance conference in April that could challenge America’s
role. Unless the U.S. government takes steps to restore some degree of trust, the groundswell of
international interest in a new approach to Internet governance could undermine or end U.S. Internet
leadership . This could leave management of the Internet to nations like China or Russia that do not
share America’s commitment to safety, openness, competition, and growth.
Recommendations for change are coming from many corners. President Obama’s advisory group on NSA
reform is calling for an end to bulk collection of Americans’ metadata and other steps to restore
protections abroad. Major Internet companies have called for greater restrictions on surveillance
activities, saying the balance has tipped too far from the individual. The government should heed these
calls for reflection and reform. Without understanding the economic implications of our security policies
and taking reasonable steps to restore trust in America’s surveillance efforts, our Internet dominance
and our economy could pay the price.
US hypocrisy in surveillance policies kills Internet freedom agenda
Gross, 13 – Covers technology and telecom policy in the US government for the IDG News Service, was
an editor and reporter at daily newspapers for 10 years (Grant, “The NSA scandal has damaged U.S.
credibility online”, Computer World, December 5, 2013,
http://www.computerworld.com/article/2486546/internet/the-nsa-scandal-has-damaged-u-s-credibility-online.html)//TT
The U.S. government has a huge image problem worldwide as it promotes Internet freedom on one
hand and conducts mass surveillance on the other, potentially creating major problems for U.S.
technology companies, a former official with President Barack Obama's administration said Thursday.
Many U.S. policy makers don't recognize the level of distrust created by recent revelations about U.S.
National Security Agency surveillance, and that lack of trust will drive other countries away from U.S.
technology firms, said Andrew McLaughlin, former White House deputy CTO.
"We, as an advocate for freedom of speech and privacy worldwide, are much, much, much more
screwed than we generally think in Washington, and ... American industry and our Internet sector is
more much, much, much more screwed than we think internationally," McLaughlin said during a speech
at a Human Rights First summit in Washington, D.C.
Many overseas critics of the U.S. see the Obama administration's push for Internet freedom as
"profoundly hypocritical" in the face of the NSA surveillance revelations and a continued push by U.S.
trade officials to have U.S. trading partners filter the Internet to protect against copyright violations, said
McLaughlin, now president of Digg, the online news aggregation service.
The NSA surveillance has led to an intense "level of anger and the degree of betrayal" in many countries
that U.S. policy makers don't seem to fully appreciate, he said. And many countries have begun to
explore other options beyond U.S. technology companies because of the surveillance revelations, he
added.
There's now a perception outside the U.S. that the country's technology companies "are willing
instruments of violation of civil rights and civil liberties," McLaughlin said. "We have essentially
nationalized what were previously seen as stateless Internet entities."
Many countries will move to use domestic technology companies and require citizen data to stay within
their borders, he said. "If you're an American company that sells cloud services, I think you've probably
sold your last contract to a foreign government," he said.
NSA surveillance undermines US leadership and credibility globally
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 11)//AK
Political scientist Ian Bremmer has argued that public revelations of the NSA’s activities “have badly
undermined US credibility with many of its allies.” US interests have been significantly harmed on the
world stage, as one country after another has learned about our snooping on its citizens or leaders:
friendly countries in Europe, Latin America, and Asia. Relations between the US and Germany have been
particularly strained since it became public that the NSA was tapping the cell phone of German
chancellor Angela Merkel. And Brazil’s president Dilma Rousseff turned down an invitation to a US state
dinner—the first time any world leader did that—because she and the rest of her country were incensed
at NSA surveillance.
Much more is happening behind the scenes, over more private diplomatic channels. There’s no softpedaling it; the US is undermining its global stature and leadership with its aggressive surveillance
program.
Overreach kills IHRL
Unrestricted surveillance violates international human rights law—reforms key
Brown et al, 15 – Professor of Information Security and Privacy at the Oxford Internet Institute (Ian,
“Towards Multilateral Standards for Surveillance Reform”, Oxford Institute Discussion Paper, January 5,
2015, https://cihr.eu/wp-content/uploads/2015/01/Brown_et_al_Towards_Multilateral_2015.pdf)//TT
But the lack of clarity around the authorisation and scope of foreign intelligence practices stands in stark
contrast to the array of international human rights standards that should apply to laws and policies in
this area. The surveillance of Internet activities and the electronic communications of individuals (and of
the patterns of their interactions), affects a range of human rights protected by international (global and
regional) human rights treaties. This directly impacts on the right to privacy (or "private life") and
correspondence, but also clearly affects other rights, including freedom of expression, freedom of
information, and freedom of association.
The main global and regional human rights treaties13 all stipulate that rights can only be restricted or
interfered with on the basis of "law"; and that such restrictions or interferences must serve a "legitimate
aim" and must be "necessary" to achieve that aim. Secret rules - or secret guidelines on or
interpretations of the rules - that an affected person cannot know, are not "law".14 Neither are rules
that give the authorities excessive discretion or that fail to protect against arbitrary exercise of the
powers in question. The scope and manner of exercise of any discretion granted must therefore be
indicated (in the law itself, or in binding, published guidelines) with "reasonable clarity" so that, again,
individuals can reasonably foresee how the law will be applied in practice.15
It is one of the hallmarks, and one of the greatest achievements, of modern, post-WWII international
human rights law that human rights must be accorded to "everyone". This approach was confirmed by,
and under, the binding international human rights treaties adopted to implement the Universal
Declaration of Human Rights, including both the UN ICCPR and the European Convention on Human
Rights (ECHR).16 While positive human rights obligations on states (to ensure, to protect, or to legislate)
may not apply outside a country's own territory, the negative obligation not to violate (i.e. the more
modest obligation to respect) human rights applies everywhere and with respect to everyone. As former
UN Human Rights Committee member and Special Rapporteur Martin Scheinin has observed:
The question about surveillance abroad is not whether it per se is prohibited under the ICCPR.
Obviously, it is not. The pertinent question is whether such specific forms of surveillance that
would constitute a human rights violation ifperformed at home will be immune from review
under the ICCPR if performed by the same state in relation to the same individuals but outside
the national territory.17
3.1 The basic principles applied to surveillance
A joint declaration on surveillance programmes by the UN and the InterAmerican special rapporteurs on
freedom of expression, which draws on the case law of the UN's Human Rights Committee and the InterAmerican Commission and Court of Human Rights, says: 18
[...] states must guarantee that the interception, collection and use of personal information,
including all limitations on the right of the affected person to access this information, be clearly
authorized by law in order to protect them from arbitrary or abusive interference with their
private interests. The law must establish limits with regard to the nature, scope and duration of
these types of measures; the reasons for ordering them; the authorities with power to
authorize, execute and monitor them; and the legal mechanisms by which they may be
challenged.
Given the importance of the exercise of these rights for a democratic system, the law must
authorize access to communications and personal information only under the most exceptional
circumstances defined by legislation. When national security is invoked as a reason for the
surveillance of correspondence and personal information, the law must clearly specify the
criteria to be used for determining the cases in which such surveillance is legitimate. Its
application shall be authorized only in the event of a clear risk to protected interests and when
the damage that may result would be greater than society's general interest in maintaining the
right to privacy and the free circulation of ideas and information. The collection of this
information shall be monitored by an independent oversight body and governed by sufficient
due process guarantees and judicial oversight, within the limitations permissible in a democratic
society.
As the UN and Inter-American rapporteurs make clear (as did the European Court of Human Rights on
numerous occasions), there is an interference with fundamental rights as soon as communication data is
intercepted and collected, not just at the moment data is extracted from a bulk interception database
and used in respect of the relevant person (as some governments have suggested). As such, individuals
must be protected against their data being "hoovered" up for the purpose of analysis and data mining.
This was explicitly stressed in terms of the ECHR by Judge Zupancic of the European Court of Human
Rights at the hearing into mass surveillance of the European Parliament's civil liberties committee
(LIBE).19 It has also been stressed in recent reports from the High Commissioner for Human Rights,20
and the Special Rapporteuron Counter-Terrorism and Human Rights, who noted:21
By permitting bulk access to all digital communications traffic, this technology eradicates the possibility
of any individualized proportionality analysis. It permits intrusion on private communications without
independent (or any) prior authorization based on suspicion directed at a particular individual or
organization. Ex ante scrutiny is therefore possible only at the highest level of generality.
3.2 The applicability of international human rights treaty obligations to extra-territorial acts of states
that are parties to these treaties22
States must ensure (or secure) the rights guaranteed by international human rights treaties without
distinction or discrimination to "everyone within their territory or jurisdiction" or simply "within their
jurisdiction" or "subject to their jurisdiction" (ICCPR, Art. 2(1); ECHR, Art. 1; IACHR, Art. 1(1)).23 This has
consistently been the position ofthe Human Rights Committee, as expressed in its views in the cases of
Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay,24 and as summed up in its General
Comment on "the Nature of the General Legal Obligation Imposed on States Parties to the Covenant".25
If a state intercepts, extracts copies of, and analyses communications made by individuals and
organisations outside its borders, that "produces effects" on those concerned, even if they are
"foreigners" and not physically on the territory of the state concerned. It is therefore difficult to
maintain that if a state explicitly legislates to authorise such surveillance, it is not exercising its
"jurisdiction" in that respect: bringing something within its law is perhaps the most conspicuous way to
exercise a country's jurisdiction. It can be argued that in international legal terms, the country would be
exercising both "legislative" and "enforcement jurisdiction" (executive powers to enforce the law,
including by investigating a crime) over the data.
This would be the case even if the exercise of that jurisdiction violated the sovereignty of another state,
for example by concerning data physically located in another country. The fact that the act was contrary
to international law does not mean that the state perpetrating the act was not bound by its human
rights obligations. However, certain states, most notably the US and Israel, do not accept any
extraterritorial effect of their international human rights treaty obligations, in particular in relation to
the ICCPR. In its 2006 Concluding Observations on the US report under the ICCPR, the Human Rights
Committee26 urged the US to review this approach. The Special Rapporteur on counter-terrorism and
human rights concluded: "States are legally bound to afford the same protection to nationals and nonnationals, and to those within and outside theirjurisdiction."27
Bulk collection violates IHRL
Brown et al, 15 – Professor of Information Security and Privacy at the Oxford Internet Institute (Ian,
“Towards Multilateral Standards for Surveillance Reform”, Oxford Institute Discussion Paper, January 5,
2015, https://cihr.eu/wp-content/uploads/2015/01/Brown_et_al_Towards_Multilateral_2015.pdf)//TT
The third issue is the amount of surveillance that is allowed. In the absence of meaningful standards, the
authorisation for SIGINT operations in many nations appears to be almost automatic, allowing the
interception, storage and subsequent analysis of that data as long as it is "relevant" to the national
interest. This is where the largest disjunct between international human rights norms and the existing
regulation of surveillance powers is located: SIGINT agencies have essentially been allowed to decide for
themselves how much data they need in order to fulfil their mandates, and they have become
accustomed to collecting this data.
This practice, and the discourse around it, is typically framed in terms of looking for "needles" in data
"haystacks"; a narrative which views bulk interception and data storage as an a priori legitimate tool in
effective intelligence operations and not an infringement of individuals rights per se. It is further
assumed by the intelligence community that the infringement of the data subject's rights takes place
only at the point at which their data is retrieved from the "haystack" on the basis of a search term,
keyword or other selector. At this point the justification for privacy violations is reduced to a matter of
SIGINT operating procedures.
As shown above, this position cannot be reconciled with international human rights law, and most
stakeholders agree that the bulk collection programmes revealed by Snowden are unacceptable. The UN
Special Rapporteur on Counter-Terrorism and Human Rights went as far as to call them "indiscriminately
corrosive of online privacy and imping[ing] on the very essence of the right guaranteed by article 17. In
the absence of a formal derogation from States' obligations under the Covenant, these programmes
pose a direct and ongoing challenge to an established norm of international law."85
Surveillance of specific persons without consent is a violation of international
human rights
Bauman et al, 14 - Professor Emeritus of Sociology at the University of Leeds (Zygmunt, “After
Snowden: Rethinking the Impact of Surveillance”, 29 May 2014, International Political Sociology Journal,
Volume 8 Issue 2, pages 121-144)//gg
Before engaging directly with the arguments and examining how political actors dissatisfied with them
have responded, we would like very briefly to clarify the relationship of the right to respect for privacy
with that of data protection. The right to respect for a person’s privacy is the overarching international
human right. It is found in the UN Universal Declaration of Human Rights, 1948, 7andits legal form is
found in the UN International Covenant on Civil and Political Rights, 1966. 8Any interference with the
privacy of a person must first and foremost be subject to the consent of that person. The right to
consent or refuse use of personal data belongs to the individual, not the state. Further consent is only
valid if the individual knows exactly what he or she is consenting to. This aspect of the right requires
there to be purpose limitation regarding the collection and use of personal data and prohibits function
creep. Where the state seeks to interfere with the right to collect and use personal data which
constitutes an intrusion into the privacy of the person concerned, such interference must be justified by
the state authorities. First it must be permitted by law, and that law must be sufficiently clear and public
that everyone can know what it is and how to adjust their behavior accordingly. Any exception
permitted by law to a human right must be interpreted narrowly. It must have a legitimate objective and
be necessary to achieve that objective only. There must be no alternative which would be less intrusive
into the life of the person. There must be judicial oversight of any state interference and a person
affected by interference must have access to justice to challenge it. Mass surveillance by its very nature
is not targeted at any person specifically; thus the possibility to justify the interference with the privacy
of any person individually is an exceedingly difficult task. Where such mass, weakly targeted surveillance
techniques have been used in Europe, the Human Rights Court has found them inconsistent with the
right to respect for privacy. Mass surveillance is, by definition, arbitrary.
States’ duty to protect data arises from the person’s right to respect for his or her privacy. Where states
interfere with people’s privacy, they must fulfill strict rules to justify that interference. Further, states
are under a duty to ensure that private sector actors do not breach a person’s privacy. Thus, states are
under an obligation to regulate the collection and use of personal data by the private sec-tor. This gives
rise to the obligation of data protection. The duty to protect personal data arises when personal data
are being used by state or private actor sand are designed to ensure that the use is consistent with the
individual’s right to respect for his or her privacy. It is for this reason that there are many different types
of regimes of data protection depending on the country under consideration. How states go about
protecting data is for them to determine; the key is that personal data must be protected because the
individual has a right to respect for his or her privacy. The content of the human right to respect for
privacy of the person is not variable.
NSA surveillance violates international human rights law
Greene and Rodriguez 14 – David Greene is an EFF Senior Staff Attorney, and Katitza Rodriguez is an EEF International Rights Director
(David and Katitza, “NSA Mass Surveillance Programs - Unnecessary and Disproportionate”, Electronic Frontier Foundation, May 29, 2014//DM)
EFF believes that, in order to restore the strong protections provided for by international human rights
law, we do not need a new human rights framework. Instead, we need to interpret and apply existing
human rights protections appropriately in light of new technological developments and changing
patterns of communications, and do so with an intention to protect human rights. As with all human
rights protections, we need to implement these steps in domestic laws to ensure everyone’s right of
privacy remains legally protected in the digital age.
Executive Summary
As set forth below, the US mass communications surveillance programs, as conducted by the NSA and
exposed by Edward Snowden and other whistleblowers, violate several of the Necessary and
Proportionate Principles:
• The NSA surveillance lacks “legality” in that NSA surveillance laws are largely governed by a body of
secret law developed by a secret court, the Foreign Intelligence Surveillance Court (FISC), which
selectively publishes its legal interpretations of the law;
• The NSA surveillance programs are neither “necessary,” nor “proportionate,” in that the various
programs in which communications data are obtained in bulk violate the privacy rights of millions of
persons who are not suspected of having any connection to international terrorism;
• The NSA surveillance programs are not supported by competent judicial authority because the only
judicial approval, if any, comes from the secret Foreign Intelligence Surveillance Court, and access to
courts is largely denied to the individuals whose data are collected;
• The NSA surveillance programs lack due process because there is frequently no opportunity for a
public hearing;
• The NSA surveillance programs lack user notification; those whose data is obtained do not know that
their communications have been monitored and therefore cannot appeal the decision nor acquire legal
representation to defend themselves;
• The NSA surveillance programs operate in secret and thus rely on gag orders against the entities from
whom the data is obtained. The secret court proceedings, if there are any, lack necessary transparency
and public oversight;
• The NSA surveillance programs damage the integrity of communication systems by undermining
security systems (such as encryption), requiring the insertion of surveillance back doors in
communications technologies, including the installation of fiber optic splitters in transmission hubs; and
• The US surveillance framework is illegitimate because it applies less favorable standards to non-US
persons than its own citizens; this discrimination places it in violation of the International Covenant on
Civil and Political Rights (ICCPR) as well.
Moreover, the United States justifies the lawfulness of its communications surveillance by reference to
distinctions that, considering modern communications technology, are solely semantic rather than
substantive. The US relies on the outmoded distinction between “content” and “metadata,” falsely
contending that the latter does not reveal private facts about an individual. The US also contends that
the collection of data is not surveillance—it argues, contrary to both international law and the Necessary
and Proportionate Principles, that an individual’s privacy rights are not infringed as long as her
communications data are not analyzed by a human being.
Internet freedom key to democracy
Internet freedom facilitates democratic transitions—extensive scholarship
proves
Nisbet et al 12 – PhD in communication, assistant professor at the School of Communication at The Ohio
State University, research on public diplomacy, foreign policy, comparative democratization, and
communication (Erik, “Internet Use and Democratic Demands: A Multinational, Multilevel Model of
Internet Use and Citizen Attitudes About Democracy”, Journal of Communication, April 2012,
http://onlinelibrary.wiley.com/doi/10.1111/j.1460-2466.2012.01627.x/epdf)//DBI
Moving from institutions to citizens, an open question is whether greater Internet penetration and use
influence individual attitudes about democracy? Though not empirically tested, Howard (2009) answers
this question in the affirmative, theorizing that Internet use plays an important role in shaping and
mobilizing citizen attitudes about democracy in transitioning or emerging democracies. Howard
asserts that traditional media in nondemocratic states ‘‘constrains’’ public opinion to those of ruling
elites, creating a passive public incapable of challenging autocratic institutions and power-relations.
Leslie (2002) and Howard view the Internet as distinct from the one-way communication of radio,
television, and print media that provide information to an audience, but are incapable of soliciting
immediate feedback. The Internet is lauded as having great democratic potential because it does allow
for feedback and encourages the development of ‘‘participant’’ citizens , as described by Almond and
Verba (1963). Rather than acting as passive receptors of political information, participant citizens are
more sophisticated and engage with political information provided to them and subsequently respond
or make ‘‘demands’’ from it (Almond & Verba, 1963). For example, as Lei (2011) observes in the case of
China, the ‘‘Internet has contributed to a more critical and politicized citizenry’’ with ‘‘citizens no longer
merely compliant receivers of official discourse’’ (p. 311). In this sense, Howard sees the potential of the
Internet, especially when paired with organizations such as political parties or movements, to promote
the formation of ‘‘mass’’ public opinion that demands political change within authoritarian or
democratizing states.
Other scholars also embrace the Internet’s capacity to promote political change by serving as a
pluralistic media platform (Bratton et al., 2005; Groshek, 2009; Lei, 2011). Bratton and colleagues (2005)
argue that media use in transitioning or emerging democracies ‘‘expands the range of considerations
that people bear in forming their political and economic attitudes,’’ which promotes democratic
citizenship and greater demand for democratic processes and reform (Bratton et al., 2005, p. 209).
Media that enjoys low government regulation and high plurality of content have ‘‘the greatest impact in
inducing an audience to reject authoritarian rule, especially one- party rule,’’ compared to other forms
of media use (p. 210). In this context, Groshek (2009) draws upon media dependency theory (BallRokeach & DeFleur, 1976) to argue that Internet use influences the democratic orientations of
audiences—which in turn promotes (democratic) change in sociopolitical systems in which audiences
are embedded. Internet penetration, in other words, allows citizens to access more pluralistic content
that increases citizen demand for democracy. Increased demand promotes ‘‘bottom-up’’
democratization by increasing the likelihood of democratic transitions in nondemocratic states or
strengthening democratic institutions in young democracies. Lei (2011) asserts this bottom-up
democratization has emerged in China, with ‘‘netizens’’ constituting ‘‘an important social force that
imposes much pressure on the authoritarian state’’ (p. 311). Moreover, this theoretical perspective is
consistent with scholarship examining the role of citizen attitudes in processes of democratization
(Inglehart & Welzel, 2005; Mattes & Bratton, 2007; Welzel, 2007).
Internet freedom provides the necessary infrastructure for democratic
transitions—social media and communication
Howard 10 – PhD sociology, Director of the Center for Media, Data and Society, studies the impact of
information technologies on democracy and social inequality (Philip, The Digital Origins of Dictatorship
and Democracy: Information Technology and Political Islam, p. 11)//DBI
Cyberactivism is no longer the unique provenance of isolated, politically motivated hackers. It is instead
deeply integrated with contemporary social movement strategy and accessible to computer and
mobile phone users with only basic skills: it is a distinguishing feature of modern political
communication and a means of creating the élan that marks social change. Twitter may have been the
branded information tool of choice for some of Iran’s opposition opinion leaders, and other tools will
emerge in the years ahead. The service routes messages from many sources to many users through
varied outlets from webpages, mobile phones, and many other kinds of consumer electronics. But it is
the networked design that is a distinguishing feature of social media that will be ever more threatening
to authoritarian rule.
Information and communication technologies are the infrastructure for transposing democratic ideals
from community to community. They support the process of learning new approaches to political
representation, of testing new organizational strategies, and of cognitively extending the possibilities
and prospects for political transformation from one context to another. It does not matter that the
number of bloggers, twitterers, or internet users may seem small, because in a networked social
moment only a few “brokers” need to be using these tools to keep everyone up to date. These are the
communication tools for the wealthy, urban, educated elites whose loyalties or defection will make or
break authoritarian rule . Indeed, it is probably more useful to evaluate applications such as Twitter
through the communities they support, rather than through tool features. Twitter communities have
leaders and followers, and tweets supply them with information, misinformation, and disinformation.
During the protests, the top 10 percent of users generated over 65 percent of the tweets.
Internet surveillance and censorship justify international governmental
domination over its citizens- creates authoritarian technocracies
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 13)//AK
Twenty years ago, few governments had any policies regulating the Internet. Today, every country does,
and some of them are pretty draconian. This shouldn’t come as a surprise; the Internet became too big a
deal for governments to ignore. But this change took many Internet watchers by surprise, and continues
to do so.
Increasingly, the world’s governments are fighting against the Internet’s inherently international nature.
If a regime wants to surveil its people, limit what they can read, and censor what they can say, the
international free-and-open nature of the Internet presents a problem.
For this reason, countries like Russia, China, and Saudi Arabia have pushed for years for more national
control over their domestic Internet. Through international organizations like the International
Telecommunications Union—that’s the UN agency that controls telephony standards—they are trying to
wrest control of the Internet from the more informal multi-stakeholder international organizations that
are currently in charge. Their arguments sound benign, but their motivations are not. They want an
Internet that recognizes both national borders and the rights of governments to exert control within
those borders: in this case, resulting in more surveillance and censorship.
The disclosure of the NSA’s surveillance activities has given this position a huge boost. Several
governments have pushed back against US dominance of the Internet because they’re concerned about
their citizens’ privacy. Countries like Brazil and Germany have called for more of their citizens’ data to be
stored within their own borders. Other countries, with the opposite agenda, have seized on the same
rhetoric. Russia passed a law in 2014 mandating that online businesses store data on its citizens within
the country, beyond the reach of the NSA but within easy reach of the Russian government. I hold
conflicting views about this. On one hand, I want countries with stronger privacy laws to protect their
citizens’ data by demanding that it be subject to their jurisdiction. On the other hand, I don’t think this
will protect such data against NSA surveillance. At least the NSA has some constraints on what it may
access within the US. If that same data were stored in Brazilian and German servers, those legal
restrictions would not apply. And given what we know about the NSA’s technical capabilities, I have no
doubt that the agency will gain access in any case.
The fundamentally international nature of the Internet is an enormous benefit for people living in
countries that engage in surveillance and censorship. Cyber sovereignty is often a smoke screen for the
desires of political leaders to monitor and control their citizens without interference from foreign
governments or corporations. And the fight against cyber sovereignty is often viewed as a smoke screen
for the NSA’s efforts to gain access to more of the world’s communications. We need to reaffirm our
support for a free, open, and global Internet, and then work to ensure its continued existence.
Democracy solves war
Empirics prove that democracies are in wars less and if they are lose a lot less
than other systems
Hegre, Peace and Conflict Research, 14 [Havard, Department of Peace and Conflict Research,
Uppsala University & Peace Research Institute Oslo (PRIO), Democracy and Armed Conflict,
jpr.sagepub.com/content/early/2014/01/08/0022343313512852.full.pdf] Schloss
The interstate democratic peace has been studied at several ‘levels of analysis’ (Gleditsch & Hegre,
1997). At the dyadic level, there is considerable agreement that the ‘absence of war between
democratic states comes as close as anything we have to an empirical law in international relations’
(Levy, 1989: 270).3 Important studies in favor of the proposition are Rummel (1983), Doyle (1983, 1986),
and a string of studies by Bruce Russett and coauthors (e.g. Maoz & Russett, 1992, 1993; Russett &
Oneal, 2001). Following the review of Gleditsch (1992), JPR became a major outlet for the debate.4 The
dyadic finding has to a large degree withstood a series of counter-arguments. I discuss these in detail
below.
There is less compelling evidence for democratic countries being less warlike overall – the ‘monadic’
level of the democratic peace. The bulk of the early large-N studies (e.g. Small & Singer, 1976; Weede,
1984), agree with Chan (1984) who found that ‘relatively free’ countries participated in war just as much
as the ‘less free’. Gleditsch & Hegre (1997) show that democracies rarely initiate wars, and Hegre (2008)
that they are more peaceful overall when controlling for their military potential. Research at the system
level has recently attracted renewed attention.5 Gleditsch & Hegre (1997) suggest that a world with an
intermediate share of democracy may be associated with more war since the probability of war on
average is highest in dyads with one democracy and one non-democracy. However, an increase in the
proportion of countries that are democratic may alter the dyadic and monadic probabilities as systemic
democratization affects international interactions (Russett, 1993; Huntley, 1996; Mitchell, Gates &
Hegre, 1999; Kadera, Crescenzi & Shannon, 2003). Cederman (2001) rephrases the standard account of
Kant (1795/1991), seeing the development of the democratic peace as a dialectic process where states
gradually learn to form (democratic) pacific unions. He shows that the risk of war between democracies
has been falling over the past two centuries. The risk of non-democratic war has also declined, but less
swiftly. Relatedly, Mitchell (2002) shows that non-democracies in the Americas became much more
likely to settle territorial claims peacefully when the proportion of democracies in the system increased.
Gartzke & Weisiger (2013), on the other hand, argue that regime type becomes a less salient indicator of
‘otherness’ as more states become democratic, and their empirical analysis indicates that the risk of
conflict between democracies has increased as the world has become more democratic.6
Studies using tools of network analysis also indicate systemic effects of democracy. Dorussen & Ward
(2010) and Lupu & Traag (2013) find support for the democratic peace while accounting for the pacifying
impact of trade networks. Maoz (2006) finds that large ‘democratic cliques’ in networks dampen
conflicts, but Cranmer & Desmarais (2011) conclude that the support for this claim is weak when using a
more appropriate statistical method.
The internal democratic peace A number of studies find empirical confirmation of an ‘inverted-U’
relationship between level of democracy and the probability of onset of internal armed conflict.
Semidemocratic regimes have a higher risk of internal conflict than consistent autocracies or
democracies (Boswell & Dixon, 1990; Muller & Weede, 1990; Hegre et al., 2001; Fearon & Laitin, 2003).
The existence of this ‘inverted U’ has been challenged, however (Elbadawi & Sambanis, 2002; Collier &
Hoeffler, 2004; Vreeland, 2008).7 In any case, very few studies find traces of a monotonic effect of
democracy. When controlling for GDP per capita or other indicators of socio-economic development,
democratically governed countries have no lower risk of internal armed conflict than autocratic ones.8
Buhaug (2006) finds that semi-democracies have a higher risk of wars over government than autocracies
and democracies, but that democracies are more likely to experience conflicts over territory than the
other two regime types. Cederman, Hug & Krebs (2010) find democratization to affect conflicts over
government, but not over territory.
Although democratic institutions by themselves are ineffective in reducing risk of internal conflict onset,
several studies find that they affect how internal conflicts evolve. Lacina (2006) and Gleditsch, Hegre &
Strand (2009) show that internal wars in democracies are less lethal. Democratic governments make use
of less violence against civilians (Eck & Hultman, 2007) and engage in less repression (Davenport, 2007b;
Colaresi & Carey, 2008),9 but rebel groups tend to make more extensive use of violence against civilians
when fighting democratic regimes (Eck & Hultman, 2007). Possibly because of the stronger constraints
on the use of violence against insurgents, democracies tend to have longer internal wars (Gleditsch,
Hegre & Strand, 2009).10
Some studies, such as Mukherjee (2006), find that post-conflict democracies have a lower risk of conflict
recurrence. Other studies report contrasting results (Walter, 2004; Quinn, Mason & Gurses, 2007;
Collier, Hoeffler & So¨derbom, 2008).
Democracy is key to overall peace
Silva, MA International Relations, 11 [Shanila De, MA International Relations, Department of
Politics & International Studies, University of Warwick,
https://www.academia.edu/1139228/Facilitating_Peace_Democracy_Building_Following_Violent_Confli
ct] Schloss
The idea of democracy building as a solution to violent conflict is a challenging one. Statistically, with
high levels of stable and evenly distributed growth, and sufficient governance, regime type becomes
unimportant to peace. However, democracy’s strength lies in its inherent ability to deliver these
conditions. Where policy-makers and theorists run into problems is in the transition and design process
of democracy following civil conflict. The following paper argues that in combination with growth and
governance, democracy can have a positive impact on the peace process. While democracy building can
be challenging, there are ways to mitigate potential instability and to design around potential hurdles.
Given democracy’s intrinsic qualities, policy makers should focus on effective design of democracy and
on facilitating conditions for growth and governance. Such a combination should theoretically result in a
stable system. While reality does not always follow theory, the cases examined in this paper show that
these conditions are effective and mutually reinforcing. They go on to demonstrate, that while there is
no perfect model to create post-conflict stability, with a carefully managed transition, and a series of
necessary conditions, democracy can help to facilitate peace in a developing country.
Democracy solves growth
Democracy is directly correlated with economic growth
Silva, MA International Relations, 11 [Shanila De, MA International Relations, Department of
Politics & International Studies, University of Warwick,
https://www.academia.edu/1139228/Facilitating_Peace_Democracy_Building_Following_Violent_Confli
ct] Schloss
Rodrick and Wacziarg show that democratization is not bad for economic performance and that, in fact,
democracies have positive effects on growth. 60 They conclude that the idea that political reforms
should wait until a country is ‘mature enough’ for democracy, or the idea that growth should precede
democracy, is not supported by evidence. 61 The assumption that autocracies are better equipped to
grow the economy presupposes that autocracies deliver better performance than democracy, which, in
their analysis, is shown to be false. 62
A market system may reduce the tendency towards corruption by providing higher standards of living
and alternative pathways for advancement. 63 However, in a market economy there are winners and
losers, and while growth, overall, may be a stabilizing factor, inequalities can be destabilizing. 64
Wittman explains that in a democracy, it is in the interest of policy makers to create policies that result
in a more equitable distribution of the gains from growth the gains from growth. 65 A more even
distribution, including higher investment in human capital, enhances overall stability. 66 Democracy can
maintain the high standards of living and substantial economic growth that are required for long term
stability. 67
Besley and Kudamatsu show that autocracies that achieve high levels of growth are those which
constrain the behaviour of their leader, meaning that it is not the case that all dictatorships benefit from
growth. 68 Growth seems to be correlated with constrained leaders. 69 Liberal democracies have
constraints built in, through the ability of voters to discipline politicians. 70 They also make sure that
political change, in the event of inadequate leadership, is regular and stable rather than irregular and
unstable. This regular-change effect has further positive impacts on growth. 71
Democracy and growth are mutually reinforcing. 72 While democracy can have a positive effect on postconflict stability, this effect is more pronounced when a country’s income is higher. 73 Overall,
“countries whose citizens enjoy high levels of economic well being and have access to a more open
political system are significantly less likely to experience multiple civil wars than autocratic countries
with low levels of individual welfare.” 74 An appropriately moulded democratic system, combined with
effective institutions results in stable, growth oriented states. 75 Effective institutions highlight the
importance of governance, which is the next condition necessary for stability and is as important as
economic management. 76
Democracy solves terrorism
Democracies are significantly less susceptible to terrorist attacks--- political
freedom, counter terrorist measures, less incentives
Li, Political Science Professor, 15 [Quan, Department of Political Science The Pennsylvania State
University, Does Democracy Promote or Reduce Transnational Terrorist Incidents?,
http://jcr.sagepub.com/content/49/2/278.full.pdf+html] Schloss
One argument in the democracy-terrorism literature posits that aspects of democracy reduce terrorism.
In nondemocratic societies, the lack of opportunities for political participation induces political
grievances and dissatisfaction among dissenters, motivating terrorism (Crenshaw 1981, 383). In
contrast, in democratic societies, free and fair elections ensure that rulers can be removed and that
desirable social changes can be brought about by voters, reducing the need to resort to violence
(Schmid 1992). Democratic rules enable nonviolent resolution of political conflict. Democracies permit
dissenters to express their policy preferences and seek redress (Ross 1993). Different social groups are
able to participate in the political process to further their interest through peaceful means, such as
voting and forming political parties (Eubank and Weinberg 1994, 2001). Since democracy lowers the cost
of achieving political goals through legal means, groups find costly illegal terrorist activities less
attractive (Ross 1993; Eyerman 1998).
Wide democratic participation also has beneficial consequences that remain largely unnoticed in the
literature. To the extent that democratic participation increases political efficacy of citizens, terrorist
groups will be less successful recruiting new members in democracy than in autocracy. This may reduce
the number of terrorist attacks in democracy. Within the context of transnational terrorism, wide
democratic participation helps to reduce incentives of domestic groups to engage in terrorist activities
against foreign targets in a country. When citizens have grievances against foreign targets, greater
political participation under a democratic system allows them to exert more influence on their own
government so that they can seek favorable policy changes or compensation more successfully. Joining a
terrorist group and attacking the foreign target become less appealing options. To the extent that
democratic participation leads to public tolerance of counterterrorist efforts, a democratic government
will be more effective stopping a variety of terrorist attacks, including those by domestic terrorists
against foreign targets as well as those committed by foreign terrorists in the country.
Democracies are proven to reduce terrorist attacks against them
Li, Political Science Professor, 15 [Quan, Department of Political Science The Pennsylvania State
University, Does Democracy Promote or Reduce
Transnational Terrorist Incidents?, http://jcr.sagepub.com/content/49/2/278.full.pdf+html] Schloss
In this article, I investigate the various mechanisms by which democracy affects transnational terrorism.
New theoretical mechanisms are advanced that either complement or encompass existing arguments.
First, democratic participation reduces transnational terrorism in ways in addition to those conceived in
the literature. It increases satisfaction and political efficacy of citizens, reduces their grievances, thwarts
terrorist recruitment, and raises public tolerance of counterterrorist policies. Second, the institutional
constraints over government play a fundamental role in shaping the positive relationship between
democracy and transnational terrorism. Institutional checks and balances create political deadlock,
increase the frustration of marginal groups, impose on the democratic government the tough task of
protecting the general citizenry against terrorist attacks, and weaken the government’s ability to fight
terrorism. The effect of civil liberties on terrorism popularized in the literature is more complex than
commonly recognized. Finally, heterogeneous democratic systems have different implications for
transnational terrorist activities.
Effects of different aspects of democracy on transnational terrorism are assessed in a multivariate
analysis for a sample of about 119 countries from 1975 to 1997. Results show that democratic
participation reduces transnational terrorist incidents in a country. Government constraints, subsuming
the effect of press freedom, increase the number of terrorist incidents in a country. The proportional
representation system experiences fewer transnational terrorist incidents than either the majoritarian
or the mixed system. Overall, democracy is demonstrated to encourage and reduce transnational
terrorist incidents, albeit via different causal mechanisms. The findings suggest several important policy
implications for the war on terrorism. Democracy does not have a singularly positive effect on terrorism
as is often claimed and found. By improving citizen satisfaction, electoral participation, and political
efficacy, democratic governments can reduce the number of terrorist incidents within their borders.
Democracy key to human rights
Democratic countries don’t violate human rights abuses
Mesquita et al, political scientist, 05 [BRUCE BUENO DE MESQUITA, GEORGE W. DOWNS,
ALASTAIR SMITH, FERYAL MARIE CHERIF, political scientist, professor at New York University, and senior
fellow at Stanford University's Hoover Institution., American political scientist and pioneer of the
application of noncooperative game theory , Political Science, Thinking Inside the Box: A Closer Look at
Democracy and Human Rights, http://onlinelibrary.wiley.com/doi/10.1111/j.14682478.2005.00372.x/pdf] Schloss
The principal prescriptive message of the analysis appears to be that those interested in human rights
should focus their time and effort on figuring out how best to promote broad-based participation and
competition. In particular, the building blocks that help institutionalize democracy do not appear to yield
major gains in respect for human rights until party competition is normalized. This means that patience
is critical to improving human rights, but patience must be rewarded by the steady development of the
institutions that can support multiparty competition in genuinely competitive elections. It is unlikely that
one will see dramatic improvements in respect for human rights as the process of institutionalizing
democracy unfolds. Rather, the payoff comes when the threshold has been passed in terms of party
competition. More than 93 percent of cases fall into the two best human rights categories once that
stage is reached. Executive constraints certainly help: 73 percent of the time when executives are
maximally constrained, human rights records fall in the two best categories. But, when executive
constraints are fully in place and multiparty competition is not, the average human rights score is a
mediocre 2.77 (N ¼ 270), while the average human rights score improves dramatically to 1.51 (N ¼ 382)
when both executive constraints and multiparty competition are in place.
The probability that the human rights record is in the two best categories is relatively low when
associated with other institutional changes that may, nevertheless, foreshadow improvements in critical
areas. For instance, only 26 percent of the times when countries have open executive recruitment have
they also institutionalized multiparty competition. But, if they have multiparty competition, then 97
percent of the time they also have open executive recruitment. Open recruitment appears to be
necessary but not sufficient for multiparty competition. Thus, structural change is necessary for
behavior to change, but behavior does not change until enough structures are in place to make it
compelling for political leaders to restrain themselves and to respect the rights of their subjects.
Democracy key to stop famine
Democracy is key to prevent and survive famine
Waal, Executive Director of the World Peace Foundation, 2000 [Alex, British writer and researcher on
African issues, is the executive director of the World Peace Foundation at the Fletcher School of Law and
Diplomacy at Tufts University, Democratic Political Process and the Fight Against Famine,
https://www.ids.ac.uk/files/Wp107.pdf] Schloss
The assumption behind the claim that democracy prevents famine is that civil and political rights – to
free speech, to free association, to elect representatives of one's choice - contribute to the protection of
social and economic -- the right to food and livelihood. Certainly, one of the major uses of civil and
political liberties has been to promote social, economic and cultural rights. Those engaged in the
women's suffrage movement, the anti-colonial independence movements, and the civil rights
movement, did not claim their civil and political rights solely for their own sake. They also believed that
achieving these liberties would help them to attain better livelihoods, economic advancement,
improved education, and more respect for their cultures and societies. The struggles for the different
categories of rights were indivisible. In mature capitalist democracies, politicians appeal to voters'
economic self- interest, and many people cast their votes because they hope they can better their
economic position. It1 retribution of their constituents in the polling booths, and hope for the electoral
reward of successfully delivering famine prevention. Civil servants fear disgrace or demotion of their
failure to prevent famine is exposed, while hoping that they can use the opportunities of a famine
emergency to prove their capabilities and win promotion. The democracy-dictatorship distinction is of
course not clear cut.
AT: Internet freedom hurts democracy
Internet freedom promotion mitigates the negative effects of the internet
Morozov, 2012– Contributing editor at The New Republic and author of two books ; has written for The
New York Times, The Economist, The Wall Street Journal, Financial Times, London Review of Books,
Times Literary Supplement (Evgeny, The Net Delusion: The Dark Side of Internet Freedom, p. 256)//TT
While Internet enthusiasts like to quote the optimistic global village reductionism of Marshall McLuhan,
whom Wired magazine has chosen as its patron saint, few of them have much use for McLuhan’s darker
reductionism, like this gem from 1964: “That Hitler came into political existence at all is directly owing to
radio and the public-address system.” As usual, McLuhan was overstating the case, but we certainly do
not want to discover that our overly optimistic rhetoric about the freedom to connect has deprived us of
the ability to fix the inevitable negative consequences that such freedom produces. Some networks are
good; some are bad. But all networks require a thorough ethical investigation. Promoting Internet
freedom must include measures to mitigate the negative side effects of increased
interconnectedness.
AT: Foreign surveillance prevents Internet Freedom
Protections against domestic surveillance are sufficient to draw a sharp
distinction between democracies and authoritarian governments
Fontaine, 14 – President of the Center for a New American Security; was foreign policy advisor to
Senator John McCain for more than five years; Worked at the State Department, the National Security
Council and the Senate Foreign Relations Committee; was associate director for near Eastern affairs at
the National Security Council; B.A. in International Relations from Tulan University (Richard, “Bringing
Liberty Online; Reenergizing the Internet Freedom Agenda in a Post-Snowden Era”, Center for a New
American Security, September 18, 2014, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf)//TT
Reenergizing the Internet freedom agenda begins with acknowledging that the United States must
promote that agenda even as it continues to engage in electronic surveillance aimed at protecting
national security . The U.S. government will simply have to endure some significant amount of
continuing criticism and opposition. At the same time, it should continue to draw a sharp distinction
between surveillance for national security purposes (in which all governments engage) and
monitoring as a means of political repression (which democracies oppose). To those who see no
distinction between American surveillance and that of autocracies, government officials should point
out that key legal guarantees matter: the U.S. Constitution’s first amendment protects against
censorship and political repression at home, while in autocratic systems such safeguards are nonexistent
or not enforceable.49
AT: Keane not about internet
The internet is vital to realizing communicative abundance
Keane, 11 – Professor of Politics at the University of Sydney (John, “Democracy in the Age of Google,
Facebook and WikiLeaks” http://sydney.edu.au/arts/downloads/news/ALR.pdf)
In the spirit of the revolution, fascination mixed with excitement is fuelling bold talk of the
transcendence of television, the disappearance of printed newspapers, the decline of the book, even the
end of literacy as we have known it. There is broad recognition that time is up for spectrum scarcity,
mass broadcasting and predictable prime-time national audiences. Symbolised by the Internet, the age
of communicative abundance is widely seen as a whole new world system of overlapping media devices
that integrate texts, sounds and images in compact and reproducible form. The perception is correct:
this is indeed a new multi-media world system that enables communication to take place, for the first
time in human history, through dispersed user points, in chosen time, either real or delayed, within
modularised and ultimately global networks that are affordable and accessible to more than a billion
people scattered across the globe.
AT: Corporate surveillance
Government surveillance is uniquely worse
Heymann, 15 [Philip B, former Deputy Attorney General in the Clinton administration and currently a
law professor at Harvard Law School, AN ESSAY ON DOMESTIC SURVEILLANCE,
file:///C:/Users/Jonah/Downloads/Lawfare-Philip-Heymann-SURVEILLANCE-for-publ-10-May-2015.pdf]
Schloss4
Why should we care particularly about government surveillance in a world where private surveillance on
the internet and the information and predictions that can be derived from a mass of such information
are driving much of the economy of the internet as companies seek knowledge useful for developing
and selling new products?
Government surveillance has far greater reach. FBI and other law enforcement agents can – without any
need of a predicate or judicial warrant – do whatever private individuals are allowed to do to discover
information, using one of the “not-a-search” exceptions. But they can do much more. They can demand,
with the assistance of a federal prosecutor, any records that “might” be useful to a grand jury – a
standard much more far-reaching than probable cause or reasonable suspicion. The government can be,
and is, empowered to demand access to any records kept by third parties, including the vast array of
electronic records now kept by businesses about their customers. What private businesses can obtain by
requiring a waiver of privacy rights as a condition of access to their goods or services, the government
can also obtain without even that strained form of consent and without the alerting knowledge that
consent gives to the individual being monitored.
The government is allowed to use informants and undercover agents in a way that is not available to
businesses. The government can and does develop technology, such as drones, which can greatly
increase its powers to observe the activities of individuals. All of this can be done without any special
showing of need and without getting a judge’s certificate that a required predicate such as “probable
cause” is met. With a predicate and a judicial warrant, the government can search places or activities,
such as electronic communications, that no private individual can search without consent.
The government also has capacities to use information it acquires in ways far more frightening and more
likely to be hostile than those of a company seeking to make you a loyal customer. It can turn suspicions
into investigations, arrest and search with probable cause; it can deny appointments or other
discretionary benefits, insist on cumbersome formalities when you cross U.S. borders, and influence the
actions of others by making obvious its suspicion of, or attention to, particular individuals. It can store
data to be used for any of these purposes or for noncriminal forms of regulation.
Data localization
Data localization increasing
Global data localization now
Donohue 15 – Professor of Law, Georgetown Law and Director, Center on National Security and the
Law, Georgetown Law (Lauren, HIGH TECHNOLOGY, CONSUMER PRIVACY, AND U.S. NATIONAL
SECURITY, Symposium Articles, 4 Am. U. Bus. L. Rev. 11 p.20-23, 2015, Hein Online)//JJ
C. Data Localization and Data Protection
Over the past eighteen months, countries around the world have increasingly adopted data localization
laws, restricting the storage, analysis, and transfer of digital information to national borders.45 To some
extent, the use of barriers to trade as a means of incubating tech-based industries predated the
Snowden releases.46 In the aftermath of the leaks, the dialogue has gained momentum . The asserted
purpose is to protect government data and consumer privacy.
As of the time of writing, China, Greece, Malaysia, Russia, South Korea, Venezuela, Vietnam, Iran, and
others have already implemented local data server requirements. Turkey has introduced new privacy
regulations preventing the transfer of personal data (particularly locational data) overseas. Others, such
as Argentina, India, and Indonesia are actively considering new laws, even as Brazilian president, Dilma
Rousseff, has been promoting a law that would require citizens' personal data to be stored within
domestic bounds. Germany and France are considering a Schengen routing system, retaining as much
online data in the European Union as possible.
As a regional matter, the European Union (EU) Commission's Vice President, Viviane Reding, is pushing
for Europe to adopt more expansive privacy laws. In March 2014, the European Parliament passed the
Data Protection Regulation and Directive, imposing strict limits on the handling of EU citizens' data.
Reding announced, "The message the European Parliament is sending is unequivocal: This reform is a
necessity, and now it is irreversible. Europe's directly elected parliamentarians have listened to
European citizens and European businesses and, with this vote, have made clear that we need a uniform
and strong European data protection law, which will... strengthen the protection of our citizens."
Regardless of where the information is based, those handling the data must obtain the consent of the
data subjects to having their personal information processed. They also retain the right to later
withdraw consent. Those violating the directive face steep fines, including up to five percent of
revenues. Apart from the new directive, the Civil Liberties, Justice, and Home Affairs Committee of the
European Parliament passed a resolution calling for the end of the US/EU Safe Harbor agreement .
Some 3000 U.S. companies rely on this framework to conduct business with the EU.
Data localization proposals are spreading to democracies—now is key
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Today, more than a dozen countries,1 both developed and developing, have introduced or are actively
contemplating introducing data localization laws. The laws, restrictions, and policies under consideration
are diverse in their strategies and effects. Some proposals would enforce limitations for data storage,
data transfer, and data processing; others require the local purchasing of ICT equipment for government
and private sector procurements. There are proposals for mandatory local ownership of data storage
equipment, limitations on foreign online retailers, and forced local hiring.
Proposals of this sort are not historically unprecedented. Indeed, forms of data localization policies have
been actively in place in many countries for years, including in the United States, where sensitive
government data, such as certain classified materials, must be maintained within the servers of
domestic companies. Broader localization rules, which apply to all citizen data, have tended to be
pursued by authoritarian governments such as Russia, China, and Iran, for which data localization laws
have been viewed as an effective means to control information and to monitor the activities of their
citizens.2 Post- Snowden, however, even democratic countries are now seriously considering these
more expansive data localization measures. Most notably, Brazil, Germany, and India– countries that
have witnessed some of the most virulent anti-NSA reactions –are now contemplating enacting
significant data localization laws. The EU is also contemplating localization within its area of authority.3
Surveillance key - data localization
Surveillance overreach is the driving force of global data localization
Castro and McQuinn 15 – * Vice President of the Information Technology and Innovation Foundation
and Director of the Center for Data Innovation, B.S. in Foreign Service from Georgetown University and
an M.S. in Information Security Technology and Management from Carnegie Mellon University, AND **
Research Assistant with the Information Technology and Innovation Foundation, B.S. in Public Relations
and Political Communications from the University of Texas (Daniel and Alan, Beyond the USA Freedom
Act: How U.S. Surveillance Still Subverts U.S. Competitiveness, Information Technology and Innovation
Foundation, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf?_ga=1.33178294.940386433.1435342104)//JJ
U.S. SURVEILLANCE POWERS ARE THE JUSTIFICATION FOR FOREIGN PROTECTIONISM
The ability of companies — both tech and traditional — to easily share data across borders has brought
a vast array of benefits to countries, companies, consumers, and economies through increased
efficiency, decreased costs, and improved services. 26 And yet nations have continued to erect barriers
to cloud computing and cross - border data flows, much to their own detriment. 27 While some
defenders of these policies have asserted that they are designed to increase the privacy or security of
their citizens’ data, it is clear that they are also motivated by misguided self - interest . By creating rules
that advantage domestic firms over foreign firms, many countries believe they will build a stronger
domestic tech industry or gain short - term economic value , such as jobs in domestic dat a centers . In
reality, these policies unwittingly limit the ability of a country’s own firms to innovate by shielding them
from international competition. 28 These policies not only limit the number of services that a country’s
citizens and businesses can en joy, but also harm that country’s productivity and competitiveness.
Some countries used U.S. surveillance laws to justify data protectionism even before Snowden’s NSA
revelations. For example, when Rackspace built data centers in Australia in 2012, an Australian
competitor stirred up fears that the United States would use the Patriot Act to track Australian citizens
as a means to force Rackspace out of Australia. 29 In addition, this same Australian company funded a
report calling on Australian policymakers to impose additional regulations designed to put foreign cloud
computing competitors at a disadvantage. 30 However, since the recent NSA revelations, the use of
privacy concerns to justify protectionist barriers has grown significantly.
Amid growing anti - U . S . sentiment, Europe has seen calls for data localization requirements,
procurement preferences for European providers, and even a “Schengen area for data” — a system that
keeps as much data in Europe as possible — as ways to promote deployment of cloud services entirely
focused on the European market. 31 France and Germany have even started to create dedicated
national networks : “Schlandnet” for the former and the “Sovereign Cloud” for the latter. 32 The French
government has gone so far as to put € 150 million ($200 million) into two start - ups, Numergy and
Cloudwatt, to create a domestic infrastructure independent of U.S. tech giants. 33 Furthermore, some
groups have invoked U.S. cyber espionage to argue that European citizens are n ot adequately protected
and are call ing for the removal of the “safe harbor” agreement — an agreement that allows Internet
companies to store data outside of the European Union . Yet if this were removed it would cut
Europeans off from many major Internet services
There is also an increasingly distressing trend of countries , such as Australia , China , Russia , and
India , passing laws that prevent their citizens’ personal information from leaving the country’s
borders — effectively mandating that cloud computing firms build data centers in those countries or
risk losing access to their markets. For example, in 201 4 Russian implemented and Indonesia began
considering policies that would require Internet - based companies to set up local data centers. 35 These
policies are often a veiled attempt to spur short term economic activity by creating data - center jobs.
However, this benefit is often outweighed by the substantial cost of building unnecessary data centers, a
cost that is eventually passed along to the country’s citizens. Several U.S. tech giants, such Apple and
Salesforce, have already started to build their data c enters abroad to appease foreign watchdogs and
privacy advocates. 36 For example, Amazon started running Internet services and holding data in
Germany for its European business partners in an effort to downplay threats of online spying.
The perception of overreach prevents the US from stopping data localization
globally
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
Costs to the Internet Freedom Agenda and U.S. Credibility in Internet Governance
“As the birthplace for so many of these technologies, including the internet itself, we have a
responsibility to see them used for good,” declared Secretary of State Hillary Clinton in January
2010.175 Her speech at the Newseum in Washington DC effectively launched the United States’ Internet
Freedom agenda, articulating a leading role for the U.S. in using the Internet to promote freedom of
expression, freedom of worship, and the freedom to connect around the world. Clinton went on to give
two other major addresses on Internet Freedom, becoming the first global leader to emphasize Internet
Freedom as a foreign policy priority and urging “countries everywhere… to join us in the bet we have
made, a bet that an open internet will lead to stronger, more prosperous countries.”176 As Richard
Fontaine and Will Rogers describe in a seminal paper on the subject in June 2011, “Internet Freedom,
broadly defined, is the notion that universal rights, including the freedoms of expression, assembly and
association, extend to the digital sphere.”177
Although there were questions from the beginning about whether the United States would hold itself to
the same high standards domestically that it holds others to internationally,178 the American
government has successfully built up a policy and programming agenda in the past few years based on
promoting an open Internet.179 These efforts include raising concerns over Internet repression in
bilateral dialogues with countries such as Vietnam and China,180 supporting initiatives including the
Freedom Online Coalition, and providing over $120 million in funding for “groups working to advance
Internet freedom – supporting counter-censorship and secure communications technology, digital safety
training, and policy and research programs for people facing Internet repression.”181 However, the
legitimacy of these efforts has been thrown into question since the NSA disclosures began. “Trust has
been the principal casualty in this unfortunate affair,” wrote Ben FitzGerald and Richard Butler in
December 2013. “The American public, our nation’s allies, leading businesses and Internet users around
the world are losing faith in the U.S. government’s role as the leading proponent of a free, open and
integrated global Internet.”182
Prior to the NSA revelations, the United States was already facing an increasingly challenging political
climate as it promoted the Internet Freedom agenda in global Internet governance conversations. At the
2012 World Conference on International Telecommunications (WCIT), the U.S. and diverse group of
other countries refused to sign the updated International Telecommunications Regulations based on
concerns that the document pushed for greater governmental control of the Internet and would
ultimately harm Internet Freedom.183 Many observers noted that the split hardened the division
between two opposing camps in the Internet governance debate: proponents of a status quo
multistakeholder Internet governance model, like the United States, who argued that the existing
system was the best way to preserve key online freedoms, and those seeking to disrupt or challenge
that multistakeholder model for a variety of political and economic reasons, including governments like
Russia and China pushing for greater national sovereignty over the Internet.184 Many of the proposals
for more governmental control over the network could be understood as attempts by authoritarian
countries to more effectively monitor and censor their citizens, which allowed the U.S. to reasonably
maintain some moral high ground as its delegates walked out of the treaty conference.185 Although few
stakeholders seemed particularly pleased by the outcome of the WCIT, reports indicate that by the
middle of 2013 the tone had shifted in a more collaborative and positive direction following the
meetings of the 2013 World Telecommunications/ICT Policy Forum (WTPF) and the World Summit on
Information Society + 10 (WSIS+10) review.186
However, the Internet governance conversation took a dramatic turn after the Snowden disclosures.
The annual meeting of the Freedom Online Coalition occurred in Tunis in June 2013, just a few weeks
after the initial leaks. Unsurprisingly, surveillance dominated the conference even though the agenda
covered a wide range of topics from Internet access and affordability to cybersecurity.187 Throughout
the two-day event, representatives from civil society used the platform to confront and criticize
governments about their monitoring practices.188 NSA surveillance would continue to be the focus of
international convenings on Internet Freedom and Internet governance for months to come, making
civil society representatives and foreign governments far less willing to embrace the United States’
Internet Freedom agenda or to accept its defense of the multistakeholder model of Internet governance
as a anything other than self-serving. “One can come up with all kinds of excuses for why US surveillance
is not hypocrisy. For example, one might argue that US policies are more benevolent than those of many
other regimes… And one might recognize that in several cases, some branches of government don’t
know what other branches are doing… and therefore US policy is not so much hypocritical as it is
inadvertently contradictory,” wrote Eli Dourado, a researcher from the Mercatus Center at George
Mason University in August 2013. “But the fact is that the NSA is galvanizing opposition to America’s
internet freedom agenda.”189 The scandal revived proposals from both Russia and Brazil for global
management of technical standards and domain names, whether through the ITU or other avenues.
Even developing countries, many of whom have traditionally aligned with the U.S. and prioritize access
and affordability as top issues, “don’t want US assistance because they assume the equipment comes
with a backdoor for the NSA. They are walking straight into the arms of Russia, China, and the ITU.”190
Consequently, NSA surveillance has shifted the dynamics of the Internet governance debate in a
potentially destabilizing manner. The Snowden revelations “have also been well-received by those who
seek to discredit existing approaches to Internet governance,” wrote the Center for Democracy &
Technology’s Matthew Shears. “There has been a long-running antipathy among a number of
stakeholders to the United States government’s perceived control of the Internet and the dominance of
US Internet companies. There has also been a long-running antipathy, particularly among some
governments, to the distributed and open management of the Internet.”191 Shears points out that
evidence of the NSA’s wide-ranging capabilities has fueled general concerns about the current Internet
governance system, bolstering the arguments of those calling for a new government-centric governance
order. At the UN Human Rights Council in September 2013, the representative from Pakistan—speaking
on behalf of Cuba, Venezuela, Zimbabwe, Uganda, Ecuador, Russia, Indonesia, Bolivia, Iran, and China—
explicitly linked the revelations about surveillance programs to the need for reforming Internet
governance processes and institutions to give governments a larger role.192 Surveillance issues
continued to dominate the conversation at the 2013 Internet Governance Forum in Bali as well, where
“debates on child protection, education and infrastructure were overshadowed by widespread concerns
from delegates who said the public’s trust in the internet was being undermined by reports of US and
British government surveillance.”193
Further complicating these conversations is the fact that several of the institutions that govern the
technical functions of the Internet are either tied to the American government or are located in the
United States . Internet governance scholar Milton Mueller has described how the reaction to the NSA
disclosures has become entangled in an already contentious Internet governance landscape. Mueller
argues that, in addition to revealing the scale and scope of state surveillance and the preeminent role of
the United States and its partners, the NSA disclosures may push other states toward a more nationally
partitioned Internet and “threaten… in a very fundamental way the claim that the US had a special
status as neutral steward of Internet governance.”194 These concerns were publicly voiced in October
2013 by the heads of a number of key organizations, including the President of the Internet Corporation
for Assigned Names and Numbers (ICANN) and the chair of the Internet Engineering Task Force (IETF), in
the Montevideo Statement on the Future of Internet Cooperation. Their statement expressed “strong
concern over the undermining of the trust and confidence of Internet users globally due to recent
revelations of pervasive monitoring and surveillance” and “called for accelerating the globalization of
ICANN and Internet Assigned Numbers Authority (IANA) functions, towards an environment in which all
stakeholders, including all governments, participate on an equal footing.”195 In particular, the process
of internationalizing ICANN—which has had a contractual relationship with the Commerce Department’s
National Telecommunications and Information Association (NTIA) since 1998—has progressed in recent
months.196
That will collapse the global internet
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
The era of a global Internet may be passing. Governments across the world are putting up barriers to the
free flow of information across borders. Driven by concerns over privacy, security, surveillance, and law
enforcement, governments are erecting borders in cyberspace, breaking apart the World Wide Web.
The first generation of Internet border controls sought to keep information out of a country - from Nazi
paraphernalia to copyright infringing material. n1 The new generation of Internet border controls seeks
not to keep information out but rather to keep data in. Where the first generation was relatively narrow
in the information excluded, the new generation seeks to keep all data about individuals within a
country.
Efforts to keep data within national borders have gained traction in the wake of revelations of
widespread electronic spying by United States intelligence agencies. n2 Governments across the world,
indignant at the recent disclosures, have cited foreign surveillance as an argument to prevent data from
leaving their borders, allegedly into foreign hands. n3 As the argument [*680] goes, placing data in
other nations jeopardizes the security and privacy of such information. We define "data localization"
measures as those that specifically encumber the transfer of data across national borders. These
measures take a wide variety of forms - including rules preventing information from being sent outside
the country, rules requiring prior consent of the data subject before information is transmitted across
national borders, rules requiring copies of information to be stored domestically, and even a tax on the
export of data. We argue here that data localization will backfire and that it in fact undermines privacy
and security, while still leaving data vulnerable to foreign surveillance. Even more importantly, data
localization increases the ability of governments to surveil and even oppress their own populations.
Imagine an Internet where data must stop at national borders, examined to see whether it is allowed to
leave the country and possibly taxed when it does. While this may sound fanciful, this is precisely the
impact of various measures undertaken or planned by many nations to curtail the flow of data outside
their borders. Countries around the world are in the process of creating Checkpoint Charlies - not just
for highly secret national security data but for ordinary data about citizens. The very nature of the World
Wide Web is at stake. We will show how countries across the world have implemented or have planned
dramatic steps to curtail the flow of information outside their borders. By creating national barriers to
data, data localization measures break up the World Wide Web, which was designed to share
information across the globe. n4 The Internet is a global network based on a protocol for
interconnecting computers without regard for national borders. Information is routed across this
network through decisions made autonomously and automatically at local routers, which choose paths
based largely on efficiency, unaware of political borders. n5 Thus, the services built on the Internet,
from email to the World [*681] Wide Web, pay little heed to national borders. Services such as cloud
computing exemplify this, making the physical locations for the storage and processing of their data
largely invisible to users. Data localization would dramatically alter this fundamental architecture of the
Internet.
Such a change poses a mortal threat to the new kind of international trade made possible by the
Internet - information services such as those supplied by Bangalore or Silicon Valley. n6 Barriers of
distance or immigration restrictions had long kept such services confined within national borders. But
the new services of the Electronic Silk Road often depend on processing information about the user,
information that crosses borders from the user's country to the service provider's country. Data
localization would thus require the information service provider to build out a physical, local
infrastructure in every jurisdiction in which it operates, increasing costs and other burdens enormously
for both providers and consumers and rendering many of such global services impossible.
While others have observed some of the hazards of data localization, especially for American
companies, n7 this Article offers three major advances over earlier work in the area. First, while the
earlier analyses have referred to a data localization measure in a country in the most general of terms,
our Article provides a detailed legal description of localization measures. Second, by examining a variety
of key countries around the world, the study allows us to see the forms in which data localization is
emerging and the justifications offered for such measures in both liberal and illiberal states. Third, the
Article works to comprehensively refute the various arguments for data localization offered around the
world, showing that data localization measures are in fact likely to undermine security, privacy,
economic development, and innovation where adopted.
[*682] Our paper proceeds as follows. Part I describes the particular data localization measures in place
or proposed in different countries around the world, as well as in the European Union. Part II then
discusses the justifications commonly offered for these measures - such as avoiding foreign surveillance,
enhancing security and privacy, promoting economic development, and facilitating domestic law
enforcement. We appraise these arguments, concluding that, in fact, such measures are likely to
backfire on all fronts. Data localization will erode privacy and security without rendering information
free of foreign surveillance, while at the same time increasing the risks of domestic surveillance.
Data localization causes war
Data localization will end globalization, cause war
Schwartz, 2014 Peter, co-founder of the Global Business Network, (Peter, “WARNING: The Internet Might End in December”, September
22, 2014 http://www.huffingtonpost.com/peter_schwartz/end-of-internet_b_5856168.html//DM)
THE GEO-DIGITAL WORLD ORDER
Among the most important battlefields is the one for control of the world's information networks,
especially the Internet. The Internet was designed to facilitate the easy movement of information, and it
has succeeded brilliantly. For anyone with access to it, the Internet makes available a vast amount of the
world's knowledge. Money flashes all over the world in a globally integrated marketplace. The Internet
has eliminated friction from almost every market and transaction.
The rapidly growing concerns about privacy, government spying and hacking, have set in motion a
cascade that may be unstoppable, having created an alliance of both our friends and challengers.
The next battle will be fought in Busan, Korea in a few weeks at the meeting of the International
Telecommunications Union, a body chartered to technically regulate the interconnection standards of
telephone and telegraph networks and assign parking spots in Earth orbit for communications satellites.
At that meeting the challenger countries will once again, as they tried to do last December in Dubai, try
to wrest control from the multi-stakeholder coalition that has been governing the Internet under a
contract with the U.S. government.
THE END OF THE WORLD AS WE KNOW IT
If they succeed, it very well may lead to the end of the world as we know it. There will be no Internet.
There will be many nets : ChinaNet, Euronet, maybe Deutsche Net and France net and Brazil Net and
Russia Net. It will resemble the world before the Internet with many private networks and a constant
challenge of interconnection.
I remember carrying around all the devices I needed to use to connect to the early Internet because of a
variety of technical standards. The Internet was created to take the friction out of digital
communications, whether those borders were university boundaries or national borders. The digital
borders will begin to rise and with it the cost of doing everything will begin to grow. The nations of the
world will once again begin to diverge. Economies of scale will disappear.
A HIGH FRICTION FUTURE
As we disconnect, nationalism is likely to grow. We will be in a high friction world with the
opportunities for conflict growing fast. It is a recipe for poverty and war . Just as Smoot-Hawley was a
staggeringly self-destructive act that made the Great Depression much worse, so the fragmentation of
the Internet driven by the desire for national control will accelerate the end of the second era of
globalization
Data localization kills cybersecurity
Data localization wrecks cybersecurity
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
Closely related to the goal of avoiding foreign surveillance through data localization is the goal of
protecting the privacy and security of personal information against nongovernmental criminal activities.
As the country studies above show, the laws of many countries make it difficult to transfer personal data
outside of national borders in the name of privacy and security. While these laws are not explicitly
designed to localize data, by creating significant barriers to the export of data, they operate as data
localization measures.
[*719] The irony is that such efforts are likely to undermine, not strengthen, the privacy and security of
the information. n195 First, localized data servers reduce the opportunity to distribute information
across multiple servers in different locations. As we have noted above, the information gathered
together in one place offers a tempting jackpot, an ideal target for criminals. As some computer experts
have noted, "Requirements to localize data ... only make it impossible for cloud service providers to take
advantage of the Internet's distributed infrastructure and use sharding and obfuscation on a global
scale." n196 Sharding is the process in which rows of a database table are held separately in servers
across the world - making each partition a "shard" that provides enough data for operation but not
enough to re-identify an individual. n197 "The correct solution," Pranesh Prakash, Policy Director with
India's Centre for Internet and Society suggests, "would be to encourage the creation and use of decentralised and end-to-end encrypted services that do not store all your data in one place." n198
Second, as we noted above, the Protected Local Provider offering storage and processing services may
be more likely to have weak security infrastructure than companies that continuously improve their
security to respond to the ever-growing sophistication of cyberthieves. As a recent cover feature of the
IEEE Computer Society magazine observes, "The most common threats to data in the cloud involve
breaches by hackers against inadequately protected systems, user carelessness or lack of caution, and
engineering errors." n199 Information technology associations from Europe, Japan, and the United
States have echoed this observation, arguing that "security is a function of how a product is made, used,
and maintained, not by whom or where it is made." n200 When Australia was contemplating a rule
requiring health data to [*720] remain in the country (a rule that was subsequently implemented),
Microsoft made a similar argument. Microsoft argued that the rule might undermine the security of
Australian health information by limiting consumer choice among potential providers and wrote,
"Consumers should have the ability to personally control their [personal electronic health records] by
choosing to have their [personal electronic health records] held by an entity not located within
Australia's territorial boundaries if they believe that entity can provide to them a service that meets
their individual needs." n201
Indeed, countries pushing for data localization themselves are sometimes hotbeds of cybercrimes.
According to experts, "Cyber security is notoriously weak in Indonesia." n202 Indeed, the nation has
been called a "hacker's paradise." n203 One 2013 report on Vietnam suggests that "2,045 agency and
business websites were hacked this year, but the number of cyber security experts was too small to
cope with all of them." n204 Another account suggests that "Brazil is among the main targets of virtual
threats such as malware and phishing." n205 For example, in 2011, hackers stole one billion dollars from
companies in Brazil, as Forbes put it, the "worst prepared nation to adopt cloud technology." n206 At
times, a cybertheft can begin with a domestic burglary, as in the case of one recent European episode.
n207 Or cyberthefts can [*721] be accomplished with a USB "thumb" drive. In January 2014,
information about more than 100 million South Korean credit cards was stolen, likely through an "inside
job" by a contractor armed with a USB drive. n208
Most fundamentally, there is little reason to believe that the personal information of British Columbians
is more secure just because it is stored on a government computer in Vancouver than one owned by
IBM, a few miles further south.
Data Localization kills internet
Mandatory data localization wrecks US internet company competitiveness and
US internet freedom – also threatens the functioning of the internet itself
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
Some analysts have questioned whether data localization and protection proposals are politically
motivated and if they would actually enhance privacy and security for ordinary individuals living in
foreign countries,160 especially given the existence of similar laws in a number of countries and Mutual
Legal Assistance Treaties (MLATs) between nations that provide cross-border access to data stored for
lawful investigations.161 Yet there is no doubt that American companies will pay a steep price if these
policies move forward. Mandatory data localization laws could lead to soaring costs for major Internet
companies such as Google, Facebook, and Twitter, who would be faced with the choice of investing in
additional, duplicative infrastructure and data centers in order to comply with new regulations or pulling
their business out of the market altogether.162 In testimony before Congress last November, for
example, Google’s Director of Law Enforcement and Information Security suggested that requirements
being discussed in Brazil could be so onerous that they would effectively bar Google from doing business
in the country.163 The penalties that companies face for violating these new rules are also significant. In
some cases, unless U.S. policy changes , it may be virtually impossible for American companies to avoid
violating either domestic or foreign laws when operating overseas.164 The costs and legal challenges
could easily prevent firms from expanding in the first place or cause them to leave existing markets
because they are no longer profitable.165 ITIF’s Daniel Castro has suggested that data privacy rules and
other restrictions could slow the growth of the U.S. technology-services industry by as much as four
percent.166
Data localization proposals also threaten to undermine the functioning of the Internet, which was built
on protocols that send packets over the fastest and most efficient route possible, regardless of physical
location. If actually implemented, policies like those suggested by India and Brazil would subvert those
protocols by altering the way Internet traffic is routed in order to exert more national control over
data.167 The localization of Internet traffic may also have significant ancillary impacts on privacy and
human rights by making it easier for countries to engage in national surveillance, censorship, and
persecution of online dissidents, particularly where countries have a history of violating human rights
and ignoring rule of law.168 “Ironically, data localization policies will likely degrade – rather than
improve – data security for the countries considering them, making surveillance, protection from which
is the ostensible reason for localization, easier for domestic governments, if not foreign powers, to
achieve,” writes Jonah Force Hill.169 The rise in data localization and data protection proposals in
response to NSA surveillance threatens not only U.S. economic interests, but also Internet Freedom
around the world.
Data localization kills the global internet
Vogel, 14– E-Commerce Times Columnist, Chair of the Internet, eCommerce & Technology Team at
Gardere Wynne Sewell (Peter S., “Will Global Localization Kill the Internet?”, E-Commerce Times,
February 10, 2014, http://www.ecommercetimes.com/story/79946.html)//TT
In the wake of revelations that the U.S. and UK governments regularly monitor private communications - including Internet usage, GPS data, and cell information -- a number of countries are considering a new
type of law called "data localization."
In the simplest of terms, data localization laws would require that businesses that operate on the
Internet -- including Internet service providers, companies with data operations, and cloud services that
control and maintain digital data for business and individuals, including redundant backups -- store that
data within the country where the businesses are located, rather than on servers in other countries.
Internet businesses that do not comply could be barred from doing business in that country or fined
millions of dollars. So far, Brazil is the only country where data localization laws are now pending, but
other countries are considering such laws.
Data Localization Will Transform the Internet
Google and many other Internet businesses have expressed concern that data localization may change
the Internet as we know it. In November 2013, Richard Salgado, Google's director of law enforcement
and information securit, testified before the US Senate in support of the Surveillance Transparency Act
of 2013. He made the following statement:
If data localization and other efforts are successful, then what we will face is the effective Balkanization
of the Internet and the creation of a 'splinternet' broken up into smaller national and regional pieces,
with barriers around each of the splintered Internets to replace the global Internet we know today.
Until data localization laws are passed and implemented, Google's point is, of course, theoretical.
Where Should Data Be Stored?
If data localization becomes widespread, determining what data belongs in which country may be easier
said than done. People generally reside in one country, but many people work, travel and study in
various countries. So when a person travels from Brazil to the U.S. to work for a year -- or goes on
vacation for a month -- which data should be localized, and where?
If data were produced in the U.S. and emailed to Brazil, or the individual were using a Brazil service to
text in the U.S., which country would keep the data? And for how long? Should the data in the U.S. be
transferred when the person returns to Brazil?
Of course, data localization for a company is more complex, because so many companies operate in a
number of countries. For instance, Toyota is headquartered in Japan, but it has subsidiaries around the
world. Does that mean under data localization laws all of Toyota's data would have to be stored in Japan
by cloud services and ISPs it used to manage its digital operations?
Or should localized data be stored in the country of each Toyota subsidiary? Does country of
incorporation matter, or just the country where the particular office or employee is located? For the
moment, there are more questions than answers.
Microsoft Supports Customer Choice
In a recent interview with the Financial Times, Microsoft's general counsel Brad Smith said its customers
should be able choose where their data is stored, that is, "an informed choice of where their data
resides."
Smith went on to say the following:
Technology today requires that people have a high degree of trust in the services they are using... . The
events of the last year undermine some of that trust ... . That is one of the reasons new steps are
needed to address it.
However, it is unlikely that Microsoft, which is both an ISP and cloud service, will build data centers in
every country in the world for either complying with the customer's choice or data localization laws.
Impact on Cloud Providers
Since so many businesses and individuals rely on cloud services, data localization could change Internet
usage dramatically.
For example, data localization laws could require that cloud companies change the way they conduct
business and in what countries they store data to optimize their cloud operations, Forrester suggested.
They might no longer be able to service customers in every country in the world.
In the next three years, the cloud computing industry could lose US$180 billion -- 25 percent of its
revenue.
Data localization kills internet freedom
Data localization threatens internet freedom – creates a bordered internet
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
The NSA disclosures have prompted some foreign leaders to propose new policies for data localization
and data protection that could have serious ramifications for the Internet ecosystem. In the name of
strengthening privacy and security, many of these changes could hurt American tech companies, impact
the future growth of the network as a whole, and endanger human rights and Internet Freedom.99 In
particular, proposals that would require data localization or strengthen data protection laws could
fundamentally alter the way traffic flows over the Internet and create significant additional compliance
costs for American technology companies operating overseas. Major economic powers such as
Germany, Brazil, and India have discussed requiring that all Internet traffic be routed or stored locally.
Various leaders in these countries have also urged government agencies and their citizens to stop using
American tools altogether because of concerns about backdoors or other arrangements with the
NSA.100 Meanwhile, legislators in the European Union have passed strict new data protection rules for
the continent and considered various privacy-focused proposals, including the development of “national
clouds” and the suspension of key trade agreements with the United States.101 “The vast scale of online
surveillance revealed by Edward Snowden is leading to the breakup of the Internet as countries
scramble to protect privacy or commercially sensitive emails and phone records from UK and US security
services,” reported The Guardian in November 2013.102 In combination, these various proposals could
threaten the Internet economy while endangering privacy and free expression.
Mandatory Data Localization and the Costs of a Bordered Internet
Internet jurisdiction and borders were contentious issues long before the Snowden leaks, but the debate
has become significantly more complex in the past year. For decades, the borderless nature of
cyberspace103 has raised concerns about sovereignty and how governments can regulate and access
their citizens’ personal information or speech when it is stored on servers that may be located all over
the world.104 Various data localization and national routing proposals have been put forth by
governments that seek greater control of the information that flows within their borders, often in order
to make censorship and surveillance over the local population easier.105 On the other side, free speech
advocates, technologists, and civil society organizations generally advocate for a borderless cyberspace
governed by its own set of internationally-agreed upon rules that promote the protection of human
rights, individual privacy, and free expression.106 The revelations about NSA surveillance have
heightened concerns on both sides of this debate. But the disclosures appear to have given new
ammunition to proponents of greater governmental control over traffic and network infrastructure,
accelerating the number and scope of national control proposals from both long-time advocates as well
as governments with relatively solid track records on human rights.107
There are now more than a dozen countries that have introduced or are actively discussing data
localization laws.108 Broadly speaking, data localization can be defined as any measures that
“specifically encumber the transfer of data across national borders,” through rules that prevent or limit
these information flows.109 The data localization proposals being considered post-Snowden generally
require that foreign ICT companies maintain infrastructure located within a country and store some or
all of their data on that country’s users on local servers.110 Brazil, for example, has proposed that
Internet companies like Facebook and Google must set up local data centers so that they are bound by
Brazilian privacy laws.111 The Indian government’s draft policy would force companies to maintain part
of their IT infrastructure in-country, give local authorities access to the encrypted data on their servers
for criminal investigations, and prevent local data from being moved out of country.112 Germany,
Greece, Brunei, and Vietnam have also put forth their own data sovereignty proposals. Proponents
argue that these policies would provide greater security and privacy protection because local servers
and infrastructure can give governments both physical control and legal jurisdiction over the data being
stored on them—although the policies may come with added political and economic benefits for those
countries as well. “Home grown and guaranteed security in data storage, hardware manufacture, cloud
computing services and routing are all part of a new discussion about ‘technological sovereignty,’” write
Mascolo and Scott. “It is both a political response and a marketing opportunity.” 113 At the same time,
data localization can also facilitate local censorship and surveillance, making it easier for governments to
exert control over the Internet infrastructure.
Data localization kills democracy
Data localization rolls back global democracy
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
E. Freedom
Information control is central to the survival of authoritarian regimes. Such regimes require the
suppression of adverse information in order to maintain their semblance of authority. This is because
"even authoritarian governments allege a public mandate to govern and assert that the government is
acting in the best interests of the people." n280 Information that disturbs the claim of a popular
mandate and a beneficent government is thus to be eliminated at all costs. Opposition newspapers or
television is routinely targeted, with licenses revoked or printing presses confiscated. The Internet has
made this process of information control far more difficult by giving many dissidents the ability to use
services based outside the country to share information. The Internet has made it harder, though not
impossible, for authoritarian regimes to suppress their citizens from both sharing and learning
information. n281 Data localization will erode that liberty-enhancing feature of the Internet.
The end result of data localization is to bring information increasingly under the control of the local
authorities, regardless of whether that was originally intended. The dangers inherent in this are plain.
Take the following cases. The official motivation for the Iranian Internet, as set forth by Iran's [*736]
head of economic affairs Ali Aghamohammadi, was to create an Internet that is "a genuinely halal
network, aimed at Muslims on an ethical and moral level," which is also safe from cyberattacks (like
Stuxnet) and dangers posed by using foreign networks. n282 However, human rights activists believe
that "based on [the country's] track record, obscenity is just a mask to cover the government's real
desire: to stifle dissent and prevent international communication." n283 An Iranian journalist agreed,
"this is a ploy by the regime," which will "only allow[] [Iranians] to visit permitted websites." n284 More
recently, even Iran's Culture Minister Ali Janati acknowledged this underlying motivation: "We cannot
restrict the advance of [such technology] under the pretext of protecting Islamic values." n285
Well aware of this possibility, Internet companies have sought at times to place their servers outside the
country in order to avoid the information held therein being used to target dissidents. Consider one
example: when it began offering services in Vietnam, Yahoo! made the decision to use servers outside
the country, perhaps to avoid becoming complicit in that country's surveillance regime. n286 This
provides important context for the new Vietnamese decree mandating local accessibility of data. While
the head of the Ministry of Information's Online Information Section defends Decree 72 as
"misunderstood" and consistent with "human rights commitments," n287 the Committee to Protect
Journalists worries that this decree will require "both local and foreign companies that provide Internet
services ... to reveal the identities of users who violate numerous vague prohibitions against certain
speech in Vietnamese law." n288 As Phil Robertson of Human Rights Watch argues, "This is a law that
has been established for selective persecution. This [*737] is a law that will be used against certain
people who have become a thorn in the side of the authorities in Hanoi." n289
Data localization efforts in liberal societies thus offer cover for more pernicious efforts by authoritarian
states. When Brazil's government proposed a data localization mandate, a civil society organization
focused on cultural policies compared the measure to the goals of China and Iran:
[SEE FIGURE IN ORIGNIAL]
Translated, this reads as follows: "Understand this: storing data in-country is the Internet dream of
China, Iran, and other totalitarian countries, but it is IMPOSSIBLE #MarcoCivil." n290
Thus, perhaps the most pernicious and long-lasting effect of data localization regulations is the template
and precedent they offer to continue and enlarge such controls. When liberal nations decry efforts to
control information by authoritarian regimes, the authoritarian states will cite our own efforts to bring
data within national control . If liberal states can cite security, privacy, law enforcement, and social
economic reasons to justify data controls, so can authoritarian states. Of course, the Snowden
revelations of widespread U.S. surveillance will themselves justify surveillance efforts by other states.
For example, Russia has begun to use NSA surveillance to justify increasing control over companies such
as Facebook and Google. n291 Such rules have led critics to worry about increasing surveillance powers
of the Russian state. n292 Critics caution, "In the future, Russia may even succeed in splintering the web,
[*738] breaking off from the global Internet a Russian intranet that's easier for it to control." n293 Even
though officials describe such rules as being antiterrorist, others see a more sinister motive. The editor
of Agentura.ru, Andrei Soldatov, believes that Zheleznyak's proposal is motivated by the government's
desire to control internal dissent. n294 Ivan Begtin, the director of the group Information Culture,
echoes this, arguing that Zheleznyak's surveillance power "will be yet another tool for controlling the
Internet." n295 Begtin warns, "In fact, we are moving very fast down the Chinese path." n296
Finally, creating a poor precedent for more authoritarian countries to emulate is not the only impact on
liberty of data localization by liberal states. Even liberal states have used surveillance to undermine the
civil rights of their citizens and residents. n297 The proposal for a German "Internetz" has drawn worries
that national routing would require deep packet inspection, raising fears of extensive surveillance. n298
The newspaper Frankfurter Allgemeine argues that not only would a state-sanctioned network provide
"no help against spying," it would lead to "a centralization of surveillance capabilities" for German spy
agencies. n299 India's proposed localization measures in combination with the various surveillance
systems in play - including Aadhaar, CMS, National Intelligence Grid (Natgrid), and Netra - have raised
concerns for human rights, including freedom of expression. n300
[*739] In addition to concerns regarding human rights violations based on surveillance and censorship,
data localization measures also interfere with the freedom of expression - particular the "freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontier[]." n301 Preventing
citizens from using foreign political forums because such use might cause personal data to be stored or
processed abroad might interfere with an individuals' right to knowledge. n302 Armed with the ability to
block information from going out and to filter the information coming in, data location consolidates
power in governments by making available an infrastructure for surveillance and censorship.
Data localization kills US economy
Data localization will cost US corporations tens of billions of dollars
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Unsurprisingly, these declarations from government officials at the ministerial level and higher, and the
policy responses those declarations suggest, are profoundly troubling to American technology
companies. U.S. firms have issued dire warnings in response,14 predicting that they could lose tens of
billions of dollars in revenue abroad as distrustful foreign governments and customers move – either by
choice or by legal mandate – to non-U.S. alternatives. Firms fear that the anti-American backlash and
potentially resulting data localization laws (depending on the specifics of the rules enacted) will mean
that they will be forced out of certain markets, or forced to build expensive – and oftentimes
unnecessarily redundant – data centers abroad. Analysts are suggesting the fallout could mirror what
happened to Huawei and ZTE, the Chinese technology and telecommunications firms that were forced
to abandon some U.S. contracts when American lawmakers accused the companies of planting in their
products coding “backdoors” for the Chinese People’s Liberation Army and intelligence services.15 A
much-cited estimate16 by the Information Technology and Innovation Foundation, an independent
think-tank, confirmed American tech firms’ worst fears when it opined that the U.S. cloud computing
industry alone could lose between $21.5 billion and $35 billion over the next three years as a result of
the NSA backlash.17
Data localization kills global economy
NSA surveillance leaks are spurring data localization measures—that
undermines the global economy
Kornbluh 14 - senior fellow for digital policy at the Council on Foreign Relations (Karen, “Beyond
Borders: Fighting Data Protectionism”, Democracy, Fall 2014,
http://www.democracyjournal.org/pdf/34/beyond_borders_fighting_data_protectionism.pdf)//DBI
Preserving the ability of information to flow through the pipes of the Internet should be a major U.S.
foreign and international economic policy priority. According to the National Foreign Trade Council, a
business organization, "goods, services, and content flowing through the Internet" were responsible for
15 percent of U.S. GDP growth from 2007 to 2012. Products and services that rely on cross-border data
flows were expected to add an estimated $1 trillion in value to the U.S. economy annually over the next
ten years. Globally, the Organization for Economic Cooperation and Development (OECD) calls the
Internet a technological enabler likely to generate more growth than electricity , the internal
combustion engine, the steam engine, or railways-and an astonishing 60 percent of the planet has yet to
come online. And, as we've been reminded these last few years, the Internet's power to generate
innovation and growth is rivaled only by its potential to help people realize their rights and democratic
aspirations.
All this was put in serious jeopardy by Snowden's revelations of National Security Agency (NSA)
surveillance. Countries already harboring mercantilist fears that U.S. Internet companies are
undermining their commerce and culture are now more openly considering protectionist measures .
The effect of these various government incursions could be to clog the pipes of the Internet, or even to
create, as Google's law enforcement and information security director has warned, a "splinter net."
U.S. entrepreneurs and Silicon Valley giants alike would have a hard time reaching customers, and those
seeking information, expression, and association in repressive societies would have fewer options to do
so safely.
The United States has championed the open, rules-based trading system since World War II. But as a
number of governments have attempted to control the flow of digital goods, services, and information
into and out of their countries, U.S. efforts have been hamstrung -first by the lack of successful foreign
Internet companies, then by the lack of foreign participation in global Internet governance mechanisms,
and finally by the surveillance revelations. In addition, a disconnect between U.S. Internet "geek" policymakers (at the Federal Communications Commission, the White House Office of Science and Technology
Policy, the Commerce Department's National Telecommunications and Information Administration, and
the State Department's Internet and telecommunications units) and national security and economic
policy "wonks" (at the National Security Council, National Economic Council, Treasury, and the Office of
the U.S. Trade Representative) has kept the issue at the margins of policy-making.
Several countries are turning to data localization now—that harms several
sectors of the economy
Kornbluh 14 - senior fellow for digital policy at the Council on Foreign Relations (Karen, “Beyond
Borders: Fighting Data Protectionism”, Democracy, Fall 2014,
http://www.democracyjournal.org/pdf/34/beyond_borders_fighting_data_protectionism.pdf)//DBI
Following the initial diplomatic protests and media attention abroad about eavesdropping on the
German chancellor and Brazilian president (and lack of public acknowledgement by our allies that they
engage in similar activities), we began to see the repercussions. Brazil debated legislation to require that
all data remain local, and the European Parliament voted to revoke the U.S.-EU Safe Harbor Framework.
Even as negotiations continue, a lawsuit filed in the Irish courts by privacy activists is attempting to
strike down the safe harbor through the European court system. A recent European Court of Justice
ruling codified a person's "right to be forgotten," or the obligation of search engines to remove links to
personal information upon request from the subject. In order to comply, ISPs must act as censors rather
than as neutral platforms. This causes friction-and high costs. An analysis by the U.S. Chamber of
Commerce estimated that implementing the "right to be forgotten" fully could lead to a decrease of
between 1.5 and 3.9 percent in the EU's GDP.
This summer, Russia passed a new law requiring that beginning in 2016, Internet companies store
Russian data on servers based in Russia. This has caused concerns about the potential for censorship,
but it would also eliminate the efficiencies gained by using data centers in other countries.
In Asia, there has been a flurry of privacy regulation. South Korea's restriction requires that personal
data be hosted locally, absent very specific consent from the data subject. Where obtaining consent is
not practicable, the law effectively bans many data offshoring arrangements. Indonesia has a draft
regulation that may require all sites that facilitate online transactions to maintain local data centers.
Vietnam's Decree 72 requires that any website, gaming platform, or social network have at least one
server in Vietnam so that it can be inspected by Vietnamese authorities. This means domestic
companies cannot use international platforms. And the "Golden Shield Project," better known as the
"Great Firewall of China," blocks routing through designated IP addresses.
These efforts clog the pipes of the Internet , but a more drastic proposal would do even more damage
by giving national governments sovereign control of the traffic in their countries. A group of countries
including Russia, China, and a number of African and Middle Eastern nations voted at the UN's
International Telecommunications Union (ITU) a year and a half ago for the Internet to be covered by
UN regulations-meaning that the current "multi-stakeholder" governance system (especially ICANN, but
also including the Internet Engineering Task Force, the Internet Architecture Board, the World Wide
Web Consortium, and the Internet Society) would be supplanted by national governmental control.
Regulating the Internet through the UN, rather than allowing it to continue to work out issues with the
relevant stakeholders, would effectively allow clogging throughout the network through conflicting
technical and regulatory requirements, potentially preventing many smaller and noncommercial users
from traversing the Web.
These restrictions have significant implications not only for Internet companies but also for sectors of
the economy like finance, transport, communication, energy, health, education, and commerce . They
can cause severe unintended consequences, such as a reduction in data security, increased cost,
decreased competitiveness, and harm to consumers.
The United States has a lot to lose, but so does the world. A recent report by the Boston Consulting
Group reiterates that uncoordinated policies hampering access to content can prevent a country-or, by
extension, the world-from realizing the Internet's full benefits. Yet restrictions on the free flow of data
among countries are not seen as a global no-no. And as more countries without a history of light-touch
regulation come online, a far different, far slower, less innovative, and more expensive Internet may
result.
Data localization wrecks the global economy
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
This is a deeply troubling development – not just for the technology firms of the United States who
stand to lose customers and contracts as a result of these policies,4 but also for all the nations, firms,
and individual Internet users who rely on the Web for economic trade and development,
communications, and civic organizing. Not only do data localization policies fail to achieve their stated
goals, they introduce a host of unintended consequences. By restricting data flows and competition
between firms, localization will likely bring up costs for Internet users and businesses, may retard
technological innovation and the Internet’s “generativity,”5 may reduce the ability of firms to
aggregate services and data analytics through cloud services, and will surely curb freedom of
expression and transparency globally. Ironically, data localization policies will likely degrade – rather
than improve – data security for the countries considering them, making surveillance, protection from
which is the ostensible reason for localization, easier for domestic governments (and perhaps even for
foreign powers) to achieve. Restricted routing, often a core component of data localization rules, may
be technically infeasible without initiating a significant overhaul of the Internet’s core architecture and
governance systems, which itself would have significant negative effects. And perhaps most worrying,
data localization policies – if implemented on a wide international scale – could have the effect of
profoundly fragmenting the Internet,6 turning back the clock on the integration of global
communication and ecommerce , and putting into jeopardy the myriad of societal benefits that Internet
integration has engendered.
Unquestionably, online espionage, citizen privacy, government overreach, and the protection of
fundamental rights are legitimate concerns of states. Advances in surveillance technologies and
offensive cyber capabilities have plainly outpaced the legal, normative, and diplomatic mechanisms
needed to protect digital data. For government officials hoping to take meaningful action in response,
data localization looks to be a convenient and simple solution. But a close examination reveals that it is
not a viable remedy to any of the privacy, security, or surveillance problems governments hope to
address. This paper discusses these points and seeks to expose the often dubious and pretextual
motivations behind the new push for data localization, to explain how such measures are profoundly
imprudent and often self-defeating, and to offer United States businesses and the United States
government a few key recommendations for how to counter this problematic trend.
Economy impact – global war
Economic decline causes great power instability
Green and Schrage 09 - Senior Advisor and Japan Chair at the Center for Strategic and International
Studies (CSIS) and Associate Professor at Georgetown University, CSIS Scholl Chair in International
Business and a former senior official with the US Trade Representative's Office, State Department and
Ways & Means Committee (Michael and Steven, “It's not just the economy”, Asia Times Online,
03/26/09, http://www.atimes.com/atimes/Asian_Economy/KC26Dk01.html)
Facing the worst economic crisis since the Great Depression, analysts at the World Bank and the US Central
Intelligence Agency are just beginning to contemplate the ramifications for international stability if there is
not a recovery in the next year. For the most part, the focus has been on fragile states such as some in Eastern Europe. However, the Great
Depression taught us that a downward global economic spiral can even have jarring impacts on great
powers. It is no mere coincidence that the last great global economic downturn was followed by the
most destructive war in human history. In the 1930s, economic desperation helped fuel autocratic regimes
and protectionism in a downward economic-security death spiral that engulfed the world in conflict. This
spiral was aided by the preoccupation of the United States and other leading nations with economic troubles at
home and insufficient attention to working with other powers to maintain stability abroad. Today's challenges are different, yet
1933's London Economic Conference, which failed to stop the drift toward deeper depression and world war, should be a cautionary tale for
leaders heading to next month's London Group of 20 (G-20) meeting. There is no question the
US must urgently act to address
banking issues and to restart its economy. But the lessons of the past suggest that we will also have to keep an eye on those
fragile threads in the international system that could begin to unravel if the financial crisis is not reversed early in the Barack Obama
administration and realize that economics and security are intertwined in most of the critical challenges we face. A disillusioned rising power?
Four areas in Asia merit particular attention, although so far the current financial crisis has not changed Asia's fundamental
strategic picture. China is not replacing the US as regional hegemon, since the leadership in Beijing is too nervous about the
political implications of the financial crisis at home to actually play a leading role in solving it internationally. Predictions that the US
will be brought to its knees because China is the leading holder of US debt often miss key points. China's currency controls
and full employment/export-oriented growth strategy give Beijing few choices other than buying US Treasury bills or harming its own economy.
Rather than creating new rules or institutions in international finance, or reorienting the Chinese economy to generate
greater long-term consumer demand at home, Chinese leaders are desperately clinging to the status quo (though Beijing
deserves credit for short-term efforts to stimulate economic growth). The greater danger with China is not an eclipsing of US
leadership, but instead the kind of shift in strategic orientation that happened to Japan after the Great
Depression. Japan was arguably not a revisionist power before 1932 and sought instead to converge with the global economy through open
trade and adoption of the gold standard. The worldwide depression and protectionism of the 1930s devastated the
newly exposed Japanese economy and contributed directly to militaristic and autarkic policies in Asia as the
Japanese people reacted against what counted for globalization at the time. China today is similarly converging with the
global economy, and many experts believe China needs at least 8% annual growth to sustain social stability. Realistic growth predictions
for 2009 are closer to 5%. Veteran China hands were watching closely when millions of migrant workers returned to work after the Lunar New
Year holiday last month to find factories closed and jobs gone. There were pockets of protests, but nationwide unrest seems unlikely this year,
and Chinese leaders are working around the clock to ensure that it does not happen next year either. However, the economic slowdown has
only just begun and nobody is certain how it will impact the social contract in China between the ruling communist party and the 1.3 billion
Chinese who have come to see President Hu Jintao's call for "harmonious society" as inextricably linked to his promise of "peaceful
development". If the Japanese example is any precedent, a sustained economic slowdown has the potential to open a dangerous path from
economic nationalism to strategic revisionism in China too. Dangerous states It
is noteworthy that North Korea, Myanmar
and Iran have all intensified their defiance in the wake of the financial crisis, which has distracted the world's leading
nations, limited their moral authority and sown potential discord. With Beijing worried about the potential impact of
North Korean belligerence or instability on Chinese internal stability, and leaders in Japan and South Korea under
siege in parliament because of the collapse of their stock markets, leaders in the North Korean capital of Pyongyang have
grown increasingly boisterous about their country's claims to great power status as a nuclear weapons state. The
junta in Myanmar has chosen this moment to arrest hundreds of political dissidents and thumb its nose at fellow members of the 10-country
Association of Southeast Asian Nations. Iran continues its nuclear program while exploiting differences between the US, UK and France (or the
P-3 group) and China and Russia - differences that could become more pronounced if economic friction with Beijing or Russia crowds out
cooperation or if Western European governments grow nervous about sanctions as a tool of policy. It is possible that the economic
downturn will make these dangerous states more pliable because of falling fuel prices (Iran) and greater need for foreign aid
(North Korea and Myanmar), but that may depend on the extent that authoritarian leaders care about the well-being of their people or face
internal political pressures linked to the economy. So far, there is little evidence to suggest either and much evidence to suggest these
dangerous states see an opportunity to advance their asymmetrical advantages against the international system.
Data localization kills trade
Free internet solves trade, growth, competitiveness, and innovation –
Wyden 10 – U.S. Senator from Oregon, chairman, Subcommittee on International Trade, Customs, and
Global Competitiveness, Committee on Finance, Juris Doctor degree from the University of Oregon
School of Law (Ron, INTERNATIONAL TRADE IN THE DIGITAL ECONOMY: HEARING BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL TRADE, CUSTOMS, AND GLOBAL COMPETITIVENESS OF THE
COMMITTEE ON FINANCE UNITED STATES SENATE, p. 1-2, 11/18/10, ProQuest)//JJ
I apologize to all our guests. As you may have gathered, it is somewhat chaotic in terms of trying to get
through all of the organizing. My colleague, ranking minority member, and very, very valuable Senator,
Senator Crapo, has been called to a meeting of the Deficit Commission, otherwise he would be here. He
is very interested in today's subject: International Trade in the Digital Economy. I appreciate all our
guests and their patience. We will go to your remarks here in just a moment.
There is rampant global protectionism being deployed today against America's digital exports . The
purpose of our hearing this afternoon is to expose it, describe it, and identify ways to combat it. Today
the subcommittee is going to shed new light on an old issue: the importance of keeping the modes of
international trade open. Whether it is the Oregon Trail, the Silk Road, or the World Wide Web, safe and
efficient trade routes that enable people to connect are essential for economies to grow .
The modes over which trade is conducted have changed over time, but the fundamentals of trade do
not. The development of civilization parallels the growth of open trade routes, and the Internet
represents the trade route of the 21st century . Keeping the net open at home and overseas is of
paramount importance to the American economy because it is increasingly the primary way that the
global population will communicate , create , and conduct commerce .
Our economy has faced some dark times, but one bright spot, one very vibrant spot , is the continued
innovation in the digital space . American companies, whether they are designing and manufacturing
semiconductors or rearranging the way that Americans socialize and engage in commerce, are
transforming global society in profound and irreversible ways.
This innovation does not just happen in Silicon Valley; it is occurring in communities across the country.
To be sure, Intel, Facebook, Apple, and Google come to mind when many of us think of the digital
economy, but these firms are also the platforms upon which further innovation occurs, the platforms by
which a seller in the Pacific Northwest can reach a buyer in Southeast Asia without leaving his desk.
That is why I am especially pleased that Mike Sax is here. He is from beautiful Eugene, OR, home of the
University of Oregon Ducks, where we are number one and will never let a moment pass when we can
point that out. Mike develops applications that piggy- back on the mobile IT platforms like Apple's
iPhone. Thanks to Mike, over a million early iPhone adopters around the world can download his app to
type their e-mail and text messages much easier. Mike, in my view, is going to speak today for hundreds
of small developers and entrepreneurs throughout the country, and we are glad once again to see
leadership coming from our home State.
The ability of American IT companies to penetrate foreign markets directly affects American
companies' ability to increase exports of goods and services , digital or otherwise. So, when an Internet
website is blocked or filtered or data flow is impeded, it has a direct impact on the American economy
and its ability to produce the new, good-paying jobs that our country needs.
As American technology firms create and expand global markets for digital products and outpace our
competition, foreign governments have responded by resorting to discriminatory measures against
American technology and content providers. According to industry sources that relied on the work of
the Open Network Initiative, now more than 40 countries impose broad restrictions on online
information, which represents a 10-fold increase from a decade ago.
In many cases, the censorship does not aim to serve a repressive political motive, but is about blatant
commercial protectionism . Make no mistake about it, it is not primarily about politics, it is about
commercial protectionism, pure and simple. My view is, these actions constitute a direct economic
threat to the United States, and that is what our subcommittee is going to be working to combat.
Now, we have seen this before. American firms drive innovation , but we have seen in the past that
foreign regimes think that they have a license to disfavor American technology because their own
companies cannot get out of the starting gate. Witnesses today will describe specific trade barriers that
go beyond discriminating against American content. Secret regulations, licensing standards, various
practices are being deployed to disadvantage American companies and the American workers that they
rely on.
Internet growth solves trade
Wyden 10 – U.S. Senator from Oregon, chairman, Subcommittee on International Trade, Customs, and
Global Competitiveness, Committee on Finance, Juris Doctor degree from the University of Oregon
School of Law (Ron, INTERNATIONAL TRADE IN THE DIGITAL ECONOMY: HEARING BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL TRADE, CUSTOMS, AND GLOBAL COMPETITIVENESS OF THE
COMMITTEE ON FINANCE UNITED STATES SENATE, p. 94-96, 11/18/10, ProQuest)//JJ
Given the borderless nature of the Internet, it should surprise no one that Internet firms have become
important exporters in their own rights, as well as key generators of international trade . According to a
study by Hamilton Consultants, large U.S. Internet corporations earn about one-half their revenues
outside the United States." In the case of Google, revenues from outside of the United States comprised
53 percent of total revenues in the first quarter of 2010, and more than half of Google searches come
from outside the United States."
Even in more traditional trade sectors , like the goods and services businesses, the Internet has also
been transformative . The Internet has empowered businesses of all sizes to reach international
markets in ways unimaginable a generation ago. It has dramatically reduced the high entry costs to
export markets that has for centuries kept most small business limited to local geography. This
transformation of industry happens in both the industrial and developing world. In the U.S. state of
Georgia, a small manufacturing operation is reaching out to international customers through Internet
advertising . 2 In Idaho, a wilderness tourism company has attracted international customers through
online search ads." And in the South American nation of Guyana, women are using online marketing to
sell hand-woven hammocks to people around the world."
Many companies rely on the Internet, including particular websites, as their key advertising platform.
For instance, companies are projected to spend over $225 billion on Internet advertising over the next
three years (2011-2013).'$ Google alone generated more than $54 billion in economic activity in the
United States in 2009 based largely on returns that businesses received from advertisements run next to
search results and on websites.
The Internet's impact on export growth is clear and demonstrable . According to one recent study, a 10
percent increase in a country's overall Internet penetration is associated with a 1.7 percent increase in
export growth in the services sector. A lower, but similar correlation pertains to trade in goods."
As a new dynamic and open force in the global economy, the Internet has helped produce phenomenal
change and growth . This growth has been accompanied by increasing demand worldwide for
information and services from beyond national borders. While many governments have welcomed the
new trade, some have recoiled at the new openness - and are determined to restrict the flow of
information across the Internet.
Tech protectionism spills-over
Castro and McQuinn 15 – * Vice President of the Information Technology and Innovation Foundation
and Director of the Center for Data Innovation, B.S. in Foreign Service from Georgetown University and
an M.S. in Information Security Technology and Management from Carnegie Mellon University, AND **
Research Assistant with the Information Technology and Innovation Foundation, B.S. in Public Relations
and Political Communications from the University of Texas (Daniel and Alan, Beyond the USA Freedom
Act: How U.S. Surveillance Still Subverts U.S. Competitiveness, Information Technology and Innovation
Foundation, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf?_ga=1.33178294.940386433.1435342104)//JJ
U.S. SURVEILLANCE POWERS ARE THE JUSTIFICATION FOR FOREIGN PROTECTIONISM
The ability of companies — both tech and traditional — to easily share data across borders has brought
a vast array of benefits to countries, companies, consumers, and economies through increased
efficiency, decreased costs, and improved services. 26 And yet nations have continued to erect barriers
to cloud computing and cross - border data flows, much to their own detriment. 27 While some
defenders of these policies have asserted that they are designed to increase the privacy or security of
their citizens’ data, it is clear that they are also motivated by misguided self - interest . By creating rules
that advantage domestic firms over foreign firms, many countries believe they will build a stronger
domestic tech industry or gain short - term economic value , such as jobs in domestic dat a centers . In
reality, these policies unwittingly limit the ability of a country’s own firms to innovate by shielding
them from international competition. 28 These policies not only limit the number of services that a
country’s citizens and businesses can en joy, but also harm that country’s productivity and
competitiveness .
Data localization causes poverty
Data localization collapses the global economy and increases poverty
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Economic Growth Objectives Not Well Served
Data localization (most especially, as a ban on foreign firms operating local servers) appeals to those
political and business leaders who hope to give domestic technology firms a competitive advantage. It
also appeals to those leaders who believe that that competitive advantage will, over time, lead to the
development of a strong technology sector, following what might be thought of as a “China
developmental model,” in which early domestic protectionism is tapered off as local firms find their
competitive edge. But again, the benefits of this kind of policy (which generally only advantage certain
favored local companies) are outweighed by its drawbacks. By prohibiting foreign firms from operating
in country, or by making operations prohibitively expensive for foreign firms, governments are
dramatically limiting the options available to local consumers. This includes small businesses that often
require the cheaper and more advanced services that only international firms can provide. Indeed, even
non tech-related industries that nevertheless rely on IT services, such as advanced manufacturing, are
likely to see that their costs rise and their efficiencies deteriorate as a consequence of Internet
protectionism in the guise of localization.
These costs may not be trivial. The European Centre for International Political Economy has estimated
that if and when cross-border data flows between the U.S. and EU are seriously disrupted (assuming
existing models for cross-border transfer and processing of data, such as the Safe Harbor and BCRs108
are disrupted), the negative impact on EU GDP could reach -0.8% to -1.3% , and EU services exports to
the United States could drop by as much as -6.7% due to loss of competitiveness.109 Developing
countries, too, would likely suffer. There, Internet access and data services are significant drivers of
economic growth. According to several important studies on the issue, access to the Internet can
dramatically reduce the effect on developing countries of geographical isolation from major exports
markets.110And, according to a Deloitte study, expanding access to the 4 billion people who live in
developing countries to levels developed economies currently enjoy would increase productivity in
those areas by as much as 25 percent , add $2.2 trillion in additional GDP, increase the GDP growth
rate by 72 percent , add more than 140 million new jobs , and lift 160 million people out of extreme
poverty. 111 Certainly, the cost inherent in localization alone will not forestall all of these positive
developments, but it would retard them. To leaders in developing nations such as India and Brazil,
where data localization measures are under serious consideration, these potential adverse economic
impacts ought to give serious pause.
Less directly, but perhaps even more critically as a long-term matter, data localization adversely affects
the Internet’s capacity for productivity by reducing the Internet’s “network effect” and
“generativity.112” By placing limitations on which firms can participate in the network, data localization
reduces the overall size of the network, which, according to network theory as well as Metcalfe’s Law
(which states that the value of a communications network is proportional to the number of users of the
system), would bring up both costs and the overall innovative potential of the aggregated network.
Consider big data analytics, for example, which often involves the transfer of data from numerous
sources without regard to geography and can have major benefits for society.113 By severing the ties
between nations and the data that can be collected an analyzed, data localization vastly diminishes the
capacity for new discoveries and for new solutions to some of the world’s most pressing problems.
Data localization kills advanced manufacturing
Data localization stifles competitiveness and innovation – wrecks manufacturing
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.27)//GK
Data localization (most especially, as a ban on foreign firms operating local servers) appeals to those political and business leaders who hope to
give domestic technology firms a competitive advantage. It also appeals to those leaders who believe that that competitive advantage will, over
time, lead to the development of a strong technology sector, following what might be thought of as a “China developmental model,” in which
early domestic protectionism is tapered off as local firms find their competitive edge. But again, the benefits of this kind of policy (which
generally only advantage certain favored local companies) are outweighed by its drawbacks. By
prohibiting foreign firms from
operating in country, or by making operations prohibitively expensive for foreign firms, governments are
dramatically limiting the options available to local consumers. This includes small businesses that often
require the cheaper and more advanced services that only international firms can provide. Indeed, even
non tech-related industries that nevertheless rely on IT services, such as advanced manufacturing , are
likely to see that their costs rise and their efficiencies deteriorate as a consequence of Internet
protectionism in the guise of localization. These costs may not be trivial. The European Centre for International Political
Economy has estimated that if and when cross-border data flows between the U.S. and EU are seriously disrupted
(assuming existing models for cross-border transfer and processing of data, such as the Safe Harbor and BCRs108 are disrupted), the
negative impact on EU GDP could reach -0.8% to -1.3%, and EU services exports to the United States could
drop by as much as -6.7% due to loss of competitiveness.109 Developing countries, too, would likely suffer.
There, Internet access and data services are significant drivers of economic growth. According to several important
studies on the issue, access to the Internet can dramatically reduce the effect on developing countries of
geographical isolation from major exports markets.110And, according to a Deloitte study, expanding access to the
4 billion people who live in developing countries to levels developed economies currently enjoy would
increase productivity in those areas by as much as 25 percent, add $2.2 trillion in additional GDP,
increase the GDP growth rate by 72 percent, add more than 140 million new jobs, and lift 160 million
people out of extreme poverty. 111 Certainly, the cost inherent in localization alone will not forestall all of these positive
developments, but it would retard them. To leaders in developing nations such as India and Brazil, where data localization measures are under
serious consideration, these potential adverse economic impacts ought to give serious pause. Less directly, but perhaps even more critically as
a long-term matter, data
localization adversely affects the Internet’s capacity for productivity by reducing the
Internet’s “network effect” and “generativity.112” By placing limitations on which firms can participate in the network,
data localization reduces the overall size of the network, which, according to network theory as well as Metcalfe’s Law
(which states that the value of a communications network is proportional to the number of users of the system), would bring up both
costs and the overall innovative potential of the aggregated network. Consider big data analytics, for example, which often
involves the transfer of data from numerous sources without regard to geography and can have major benefits for society.113 By severing the
ties between nations and the data that can be collected an analyzed, data
localization vastly diminishes the capacity for
new discoveries and for new solutions to some of the world’s most pressing problems.
Brazil internal link
Snowden disclosures have strained US-Brazil relations
Young 14– President and General Counsel of Ronin Analytics, LLC. and former NSA senior leader (Mark,
“National Insecurity: The Impacts of Illegal Disclosures of Classified Information”, I/S: A Journal of Law
and Policy for the Information Society, 2014,
http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Young-Article.pdf)//DBI
The disclosures have impacted U.S. national security relationships with Latin America, but particularly
Brazil. Good intentions over the past three years to establish a trade deal and Brazilian membership in
the UN Security council have been unsuccessful. Brazil’s President Dilma Vana Rousseff has stated that
each country has much to gain from deepening coordination with the U.S. It is reasonable to assume,
given the threats to stability and the illicit narcotics trafficking from Latin America, that the U.S.
intelligence Community has a partnership with Brazil. If true, then the disclosures by Snowden will
complicate this cooperation. According to the New York Times, “Diplomatic ties have also been
damaged, and among the results was the decision by Brazil’s president, Dilma Rousseff, to postpone a
state visit111 to the United States in protest over revelations that the agency spied on her, her top aides
and Brazil’s largest company, the oil giant Petrobras.”112 Although an apology113 may be enough to
have a trade deal between the U.S. and Brazil reenergized, other issues continue to strain the
relationship between Washington and Brasília.
According to the Council of Foreign Relations, the Snowden scandal, the White House “response to it
and President Dilma Rousseff's decision to cancel the state visit has (sic) revealed the weakness of the
U.S.-Brazil relationship.”114 Snowden’s disclosures are now spawning an effort within Latin America to
strengthen protections against alleged NSA collection. “According to the AP, Brazilian Foreign Minister
Luiz Alberto Figueiredo said, ‘We’re going to talk with our partners, including developed and developing
nations, to evaluate how they protect themselves and to see what joint measures could be taken in the
face of this grave situation.’”115
Not only is U.S. national security affected by reactions in Brazil, but U.S. commercial interests as well.
According to the LA Times, President Rousseff is “promoting legislation that would require technology
companies such as Google and Facebook to store data collected in Brazil on Brazilian soil and therefore
submit it to Brazilian law.”116 In addition, Brazil is now planning to develop a secure e-mail system to
improve the security of government communications against American spying. Ironically, “President
Dilma Rousseff used the secure messaging channel Twitter to make the announcement that she's going
to order SERPRO – that country's federal data processing service – to implement a whole-of-government
secure e-mail system.”117
Perceived NSA overreach caused immediate Brazilian backlash
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.14-15)//GK
In certain interesting ways, the Brazilian response to the Snowden revelations has mirrored that of Germany. Brazilians, like their German
counterparts, took serious umbrage when they learned that the NSA targeted their head of state—in Brazil’s case,
President Dilma Rousseff. Perhaps more significantly, if less sensationally, Brazilians were angered to learn that the NSA
conducted a program that infiltrated the networks of Brazil’s national oil and gas company, Petrobas.52
The parallels between Brazil and Germany have not been lost on the leaders of either of the two countries. Brazil, like Germany, is
deeply
scarred by its own history of military dictatorship and the system of state surveillance orchestrated by
that regime. When the NSA leaks became public, President Rousseff, who herself fought against Brazil’s dictatorship as an
anti-government guerilla fighter, canceled a planned U.S. visit and state dinner with President Obama.53 Later, in
November, she launched a long and impassioned diatribe from the podium of the UN General Assembly
against the intrusion of U.S. surveillance. Acting upon their shared perceptions of the seriousness of the NSA’s transgressions,
Germany and Brazil have jointly proposed a resolution on 54 online privacy to the UN,55 and have put
forward proposals to build an undersea fiber-optic cable that is intended to funnel Internet traffic between South America
and Europe, without having to pass through the U.S. 56
Current NSA perception results in loss of Brazilian markets
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.15-16)//GK
On the home front, the Brazilian government has announced plans to abandon Microsoft Outlook for its own
domestic email system that utilizes only Brazilian data centers.57 The Brazilian parliament has also recently passed
its “Marco Civil da Internet,” an Internet “bill of rights”—the first major Internet policy legislation in
Brazilian history—that enshrines fundamental rights for Internet users, and establishes legal obligations of Internet
companies in furtherance of those rights. The Brazilian Parliament and ministries have, since 2009, been engaged in
negotiations over the details of the bill, which the Center for Democracy and Technology, a prominent American technology think tank, has
called a “major victory for Brazilian civil society,” in that it provides sweeping new protections for Brazilian Internet users. 58 Following the
Snowden firestorm, however, some legislators proposed to expand the Marco Civil beyond its “bill of rights” function, arguing for the inclusion
of a provision requiring foreign companies to store copies of all data pertaining to Brazilians in local data servers. That provision, which was
initially backed by President Rousseff but has since been removed from the current bill as passed, 59 was aimed at enabling greater access for
Brazilian law enforcement to data stored abroad or belonging to foreign companies. 60 While the Marco Civil was signed into law on April 23,
201461 with the most potent localization provision rescinded, one provision remained, Article
11,62 which deeply troubles
international business interests, in that it extends the reachof Brazilian law to any Internet service in the
world with Brazilian users. A firm based in the United States whose services are used by Brazilians could, for example, be penalized for
adhering to its domestic data-disclosure laws if they conflict with Brazil’s. Penalties include fines of up to ten percent of a
firm’s Brazilian revenues or even termination of the offending company’s services in Brazil.63 Additionally,
immediately following the passage the Marco Civil, Brazil’s largest paper, Folha de Sao Paulo, reported that the Minister of Communications,
Paulo Bernardo, stated that the government has not totally abandoned its desire to pursue a local server requirement, despite the deletion of
the provision from the Marco Civil, and is considering pursuing the policy as part of a new “Data Protection Law.”64 With more
than 94
million Internet users, and Facebook usage second only to the United States, 65 the Brazilian market is enormously
important for the major U.S. Internet companies. It will be extremely difficult and expensive for them to
remove themselves from the Brazilian market. However, if the Brazilian President elects aggressively to
enforce the rules found in the Marco Civil, or if the Brazilian government pursues localization as part of other legislation such as
a new data protection law, affected U.S. companies may be left with no choice but to take their business
elsewhere.
EU internal link
The EU is threatening new data protection rules
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
New rules would include much higher fines for firms deemed to be in violation of data protection law in
the EU (including those firms located outside of Europe), a limited right of citizens to demand the
deletion or limited retention of their personal data, and strict limitations on what can be done with EU
citizens’ data outside the Union. Fines for violating certain rules could be as high as €100 million or up to
five percent of an enterprise’s annual revenue, whichever is larger48 – an eye-popping sum. Companies
such as Google could, under the new EU regulatory regime, face much higher fines for privacy breaches
than the relatively trivial sums they pay today for the same violation. Perhaps most importantly, EU
privacy rules now apply to the processing of EU citizens’ data, even if that data is processed in another
country, a requirement that could force U.S. firms to set up additional servers in Europe.
The effect of these proposed EU rules could seriously undermine the position of some U.S. firms. They
would bar some firms’ practice, embedded in their business models, of selling data (not necessarily
sensitive or private data) to third parties, while others use data analytic tools at odds with the new rules.
Furthermore, business models aside, the rules if adopted may require U.S. firms to place their servers,
and European citizen data they hold, permanently in Europe, potentially a prohibitively expensive – or
even technically unfeasible – requirement. The consequences, in either case, would be de facto, if not
de jure, data localization .
Snowden disclosures have strained US-EU relations, especially with Germany
and France
Young 14– President and General Counsel of Ronin Analytics, LLC. and former NSA senior leader (Mark,
“National Insecurity: The Impacts of Illegal Disclosures of Classified Information”, I/S: A Journal of Law
and Policy for the Information Society, 2014,
http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Young-Article.pdf)//DBI
European Union. Traditional strong diplomatic and intelligence sharing relationships with members of
the European Union have also been strained by revelations of programs allegedly collecting the personal
communication of 35 heads of state.88 These reports of U.S. surveillance in Europe are “eating away at
the fabric of trust that is part of the alliance.”89 According to the Council on Foreign Relations Senior
Fellow Charles A. Kupchan, there is a direct relationship between the political discomfort with alleged
U.S. intelligence collection and European disappointment about the President’s inability to better
balance security and civil liberties. Kupchan has noted that many Europeans feel that Obama “has failed
to deliver on his pledge to clean up some of the excesses left behind by the George W. Bush
administration.” 90
German Chancellor Angela Merkel originally defended the apparent intelligence cooperation disclosed
by Snowden. She pointed out that Germany had “avoided terrorist attacks hanks to information from
allies.” But, in the face of new disclosures, she is now discussing limits on intrusions on privacy. Berlin
has alluded repeatedly to “Cold War” tactics and has said spying on friends is unacceptable. Her
spokesman has said a transatlantic trade deal requires a level of “mutual trust.” 91 Chancellor Merkel
has been criticized for her apparently feigned indignation about alleged cooperation with the U.S.
intelligence community. “Germany has demanded explanations for Snowden's allegations of large-scale
spying by the NSA, and by Britain via a programme codenamed ‘Tempora,’ on their allies including
Germany and other European Union states, as well as EU institutions and embassies.”92
The Head of Germany’s domestic intelligence has said he knew nothing about the reported NSA
surveillance. Opposition parties believe otherwise. They claimed that, because German intelligence
activities are coordinated within the Office of the Chancellor, high-level officials must have known about
speculative NSA activities.93 Der Spiegel has reported that NSA monitored about 20 million German
phone connections and 10 million internet sessions on an average day and 60 million phone connections
on above average days.94 Thus, unconfirmed U.S. intelligence activities are now an issue that will affect
German political leadership and the diplomatic and intelligence relationships between Germany and the
U.S.
The impact on European Union allies is already seen in the talks being held between EU member states
and the US about American surveillance tactics that may have included spying on European allies.95
President Obama assured Germany that the United States “takes seriously the concerns of our European
allies and partners.”96
The initiation of a dialogue between the U.S. and EU Members about intelligence collection and
appropriate oversight97 will also complicate the transatlantic relationship. Restrictions or legislation
that shifts standards of privacy and data protection will diminish American and EU security.
France. Tensions in the European Union are not limited only to Germany. Although not as vocal, the
French government has expressed concerns about U.S. intelligence activity because of the Snowden
leaks. In response to allegations that NSA had collected “more than 70 million phone calls in France over
a 30-day period,” U.S. Ambassador to France Charles Rivkin was called meet with French diplomats.98 A
news release from French President Francois Hollande's office said he expressed his "deep disapproval
with regard to these practices" and that “such alleged activities would be unacceptable between allies
and friends.”99
Surveillance kills US-EU relations
Tene, 14 - Associate Professor at the College of Management School of Law (Omar,2014, “A NEW
HARM MATRIX FOR CYBERSECURITY SURVEILLANCE”, http://ctlj.colorado.edu/wpcontent/uploads/2014/11/Tene-website-final.pdf)//gg
Over the past decade, a range of factors has transformed the nature of national security threats and
amplified tensions between operational personnel and counsel applying laws and regulations. First,
military threats have transcended national borders and become pervaded by non-state actors.
Traditional national security threats, which were once the domain of Cold War superpowers, are now
“privatized” through terrorist networks. Similarly, cybersecurity threats, once focused on cyber
superpowers such as China and Russia, have now spilled over to private organizations such as
Anonymous and even lone-wolf hackers who are sometimes co-opted by hostile states. Unlike nuclear
proliferation, which requires a deployment of resources unavailable to non-state actors, very
rudimentary tools are sufficient to unleash potentially devastating cyber attacks.
Second, defending national infrastructure is complicated by the interdependence of military and private
networks. Indeed, the Internet itself emerged from the military domain, as have technologies, software
and applications such as mobile phones and encryption tools. The vulnerability of such networks and
connected infrastructure presents a menacing threat to the functioning of society. This includes risks not
only to military assets and critical infrastructure but also to peripheral networks and even individual
devices, which could be used as discreet gateways to stage focused attacks. Lord Cameron of Dillington
famously coined the phrase that “no society stands more than nine meals away from total anarchy.”47
He predicted that merely three days of disruption to British supermarket supply chains would be enough
to send law and order reeling, at grave risk to the life and security of ordinary citizens. Despite this,
neither the United Kingdom nor any other country categorizes its supermarket chains as critical
infrastructure.48
Third, the distinction between domestic and foreign communications is muddled. Indeed, the crisis in
international relations resulting from the Snowden revelations, particularly between the European
Union and the United States, is rooted in the fact that large amounts of foreign communications are
routed through or stored in the United States.49 At the same time, a large volume of domestic
communications has cross-border elements, such as connections with foreign websites, services or
counterparties.
Countries are turning to domestic content production since NSA leaks
Bauman et al, 14 - Professor Emeritus of Sociology at the University of Leeds (Zygmunt, “After
Snowden: Rethinking the Impact of Surveillance”, 29 May 2014, International Political Sociology Journal,
Volume 8 Issue 2, pages 121-144)//gg
The policies announced by the Brazilian government to contain the threats presented by US mass
surveillance techniques include the increase of international Internet connectivity and domestic content
production. According to Brazilian authorities, the production of domestic content, such as a national
email service or a national social media, would allow Brazilian citizens to keep their data within national
borders. The debate regarding the creation of a “European data cloud” raises similar issues. Indeed,
Brazilian authorities are not alone. In a similar vein, Dutch authorities have tried to keep the
government’s data out of the reach of American companies, while the European Union is discussing
the possibility of isolating data storage from US mining techniques , and the German government is
trying to keep traffic local by warning Internet users when they pull out of European cyberspace. Not to
mention the well-known cases of the Chinese “GreatFirewall” or the Iranian “Halal Internet.” In every
case, states are thickening their digital borders. Although one should not overlook the differences
between what Brazilian or German authorities are doing to protect data and privacy, and what the
Chinese government is doing with its firewall, in each of these cases a massive infrastructure has to be
built. Hence, a vast array of technologies, legislations, and expertise has to be developed and deployed
either to protect data, to control traffic or even for surveillance. On top of all of these investments in
state capacities for protection or surveillance, security professionals and intelligence experts have to be
mobilized to manage the nation al systems.
By building their fortresses in the clouds, states shift from the cosmopolitan move to strategic play.
While the first move is based on claims to universal rights, the strategic game is based on claims to state
sovereignty, or in this case cyber-sovereignty. Within these strategic games, very often, the reference to
universal rights fades and ends up being replace d by a strategic reasoning embedded in uncertainty and
fear. Concepts such as national interest, national or state security, espionage, and war come to the fore
when state representatives go public to support policies and techniques that protect a given society.
Cyberspace is, then, described as a US-centered space, and so US cyber power should be balanced
through the development of national cyber capabilities or international coalitions.
Germany internal link
German companies are preparing for data localization now
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
What such a proposal would mean in practice is unclear; what is clear, however, is that some Germany
technology companies are now spearheading the data localization movement. In particular, Deutsche
Telekom, the largest provider of high-speed Internet and wireless services in Germany and the largest
telecommunications organization in the European Union, has begun to act in advance of any German
government legislation. In partnership with GMX, one of Germany’s largest email providers, the
company has already implemented its " e-mail made in Germany " service, a program that promises to
keep German email communications within German territory.32 Thomas Tschersich, who heads
Deutsche Telekom's IT Security, explained that IP addresses will be used to recognize when both the
sender and the recipient of the emails are in Germany, and based on that information, arrangements
between national email providers will be used to transfer this information.33
Further, consistent with, and supported by, Chancellor Merkel’s declarations of Internet independence,
Deutsche Telekom has also raised the idea of creating a “ Schengen area routing ,” a network for the 26
European countries that have agreed to remove passport controls at their borders. 34 (The Schengen
area does not include the U.K., which the Snowden documents have revealed has closely cooperated
with the U.S. spying programs through its own signals intelligence agency, the GCHQ). This network
would supposedly allow the network nations’ citizens securely to exchange data within the area without
having to send that data to the United States. “The idea is that when the sender and recipient of any
Internet data are in Germany their data is not sent via another country, as it sometimes is today,”
Philipp Blank, a Deutsche Telekom spokesman explained. Blank left no doubt as to which other
countries’ practices – and companies – troubled him: "We're simply asking: Why does an e-mail from
Bonn to Berlin have to pass through New York or London?" 35
Indonesia internal link
Indonesia already passed data protection policies
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Quick Glance: Indonesia’s “Regulation 82”
In Indonesia, U.S. companies are closely watching how a 2012 amendment to the Law No. 11 regarding
“Implementation of Electronic Systems and Electronic Transactions (‘Regulation 82’)” and how “public
service” data is defined. 66 According to Regulation 82, all digital providers of a “public service” are
required to build a domestic data center in the country. The government has not yet offered a
regulatory definition of “public service” under Regulation 82. For the time being, regulators are relying
on a definition found in Public Service Law no. 25 of 2009. There, “public service” is defined
extraordinarily broadly as “anything that is pertinent to people’s welfare.” This crucial definitional issue
is currently being worked out in the Indonesian legislature and within the Ministry of Communications
and Information. Depending on how expansively or narrowly lawmakers ultimately define the term, they
could determine how freely American companies will be to operate in Indonesia.
India internal link
NSA overreach will cause a forceful push for domestic data localization laws in
India
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.17-18)//GK
In September 2013, The Hindu newspaper, one of India’s largest English language dailies, reported that the NSA had used the PRISM
and other secret programs to gather information on India's domestic politics and on a variety of the country's most
important strategic and commercial interests, including India’s nuclear and space industries. 67 A separate NSA document, also
obtained by The Hindu, suggested that the NSA had selected the office of India's UN mission and Washington
embassy as "location targets," where records of Internet traffic, emails, telephone and office conversations could
potentially be accessed.68 Indeed, Snowden’s disclosures revealed that India was one of the most highly
surveilled countries on the NSA target list.69 In contrast to the anger generated by the Snowden
revelations within other democratic countries such as Germany and Brazil, and despite the apparent extent of the NSA’s
targeting of Indian security and political secrets, the Snowden revelations did not evoke wide-scale condemnation in India, nor
did a particularly harsh response issue from Delhi.70 After discussing the matter with U.S. Secretary of State John Kerry, India’s
Foreign Minster stated that, “We had an issue, which was discussed when Secretary Kerry was in India...He [Kerry]made a very clear
explanation that no content has been sought or received of any email... So, I think as far as we are concerned, there is no issue today.” The
reasons for the measured, even mild, Indian diplomatic response are complex, but it seems possible that at the level of
Internet policy, as opposed to bilateral or international relations, a more forceful response may be coming, and it may
take the form of domestic data localization laws. The Indian national security establishment, at least,
appears to be considering localization in the wake of Snowden’s revelations as an important policy
objective. Significantly, in February 2014 The Hindu published the contents of an internal memorandum of the
Indian National Security Council (NSC) proposing a policy that would require Indian data to be stored locally. 71
According to the memorandum, the policy would provide that “[a]ll email service providers may be mandated to host servers for their India
operations in India. 72 All
data generated from within India should be hosted in these India-based servers and
this would make them subject to Indian laws.”73 The NSC proposal would prohibit “as a general principle,
mirroring of data in these servers to main servers abroad.”74 Additionally, India’s National Security Advisor
has called on the Department of Telecom to mandate that all telecom and Internet companies route local
data through the National Internet Exchange of India (NIXI) to ensure that domestic Internet traffic remains within the country, and “to
limit the capacity of foreign elements to scrutinize intra-India traffic.”75
A push for Indian data localization jeopardizes U.S. business prospects
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.18-19)//GK
The formation of a government under the leadership of the Bharatiya Janata Party – which came to power in the
Indian national elections in May 2014 – is likely to give greater impetus to Indian localization efforts. During the campaign,
BJP leaders stated publicly that data localization may be a necessary means to force foreign (read: American)
Internet companies to comply with local law and to respect Indian cultural norms. India has become an important
outsourcing hub for U.S. multinational organizations. American firms have established extensive IT and back-office centers
in India’s growing technology capitals, such as Bangalore and Hyderabad. The total expulsion of American tech firms from the country seems
remote,78 but
any significant data localization legislation of the kind proposed by the NSC could impose a
substantial financial burden on American companies; perhaps more importantly, it could jeopardize the firms’
business prospects in a country in which reside hundreds of millions of potential customers.
Pakistan internal link
Snowden disclosures have undermined US-Pakistan relations
Young 14– President and General Counsel of Ronin Analytics, LLC. and former NSA senior leader (Mark,
“National Insecurity: The Impacts of Illegal Disclosures of Classified Information”, I/S: A Journal of Law
and Policy for the Information Society, 2014,
http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Young-Article.pdf)//DBI
The Snowden disclosures are undermining an already tense relationship between the U.S. and Pakistan.
The illegal disclosures will likely reduce intelligence sharing and military cooperation at time when
threats for both countries are still extremely grave. The disclosures have diminished U.S. national
security by damaging the diplomatic and intelligence relationship with a key ally in a region from
whence one of the greatest attacks against the U.S. originated.
The diplomatic and intelligence relationships established over the past sixty years have been critical to
the security of the United States. National security is proportionally linked to cooperation with other
nations. The quantity and quality of intelligence sharing with foreign intelligence services can reduce the
burden and expense on U.S intelligence agencies. Regardless of the veracity of the information illegally
disclosed by Snowden, the tensions it is causing within foreign relations must negatively impact the
intelligence sharing and cooperation. Less sharing and cooperation equals reduced national security for
the U.S.
Intelligence relationships with foreign security services support good partnerships between the U.S. and
the partner nation. These relationships provide access to areas the U.S. may not have direct admission.
Partners can offer intelligence agility with an ability to collect information that may take longer in the
U.S. They provide local insight to a particular target of areas with expertise not resident in the U.S.
intelligence community. And relationships with foreign intelligence services may provide cover for U.S.
interests by masking American action under their domestic security or military organizations.130 These
advantages have been placed at risk by the recent disclosures of potentially classified information.
Russia internal link
Russia already passed a data localization law
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Note: this law takes effect in September 2015
Quick Glance: Russia’s “Six-Month” Local Server Law
In April 2014, Russia’s State Duma approved a draft law49 that would require Internet companies such
as Google to locate servers handling Russian traffic inside the country and store user data locally for six
months after the data is created.50 The move came as Russian agencies had been pressuring foreign
Internet companies for data on Ukrainians who had been supporting the February overthrow of the
country’s Kremlin-backed president, Viktor Yanukovych, and following President Vladimir Putin’s
remarks that the Snowden disclosures had demonstrated that the Internet was a “CIA project.”51 How
the law will be enforced remains unclear, but as with other localization proposals the new law could
have the effect of forcing non-Russian firms and their services out of the country.
South Korea internal link
South Korea is considering data localization measures
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Quick Glance: South Korea’s Financial Services Requirement
The South Korean Financial Services Commission is considering regulations that would require insurers
and other financial institutions to maintain servers for housing company financial data in-country, and
would restrict transfers of such data outside of South Korea’s borders. The U.S.-Korea Free Trade
Agreement (KORUS FTA) states, “Parties shall endeavor to refrain from imposing or maintaining
unnecessary barriers to electronic information flows across borders,” and establishes principles for nondiscrimination for digital products. 37 However, this provision is a non-binding feature of the FTA, and
could 38 be revoked by the Korean Parliament. Revocation would create a daunting logistical
obligation for American financial firms and the companies those firms use to store their data.
AT: Data localization solves surveillance
Data localization increases the risk of surveillance
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
Fourth, far from making surveillance more difficult for a foreign government, localization requirements
might in fact make it easier. By compelling companies to use local services rather than global ones, there
is a greater likelihood of choosing companies with weak security measures. By [*717] their very nature,
the global services are subject to intense worldwide competition, while local services - protected by the
data localization requirements - might have less need to offer stronger security to attract customers,
and fewer resources to do so, than companies with a global scale. Weaker security makes such systems
easier targets for foreign surveillance. This is what we call the "Protected Local Provider" problem.
Fifth, data localization might actually facilitate foreign surveillance. Centralizing information about users
in a locality might actually ease the logistical burdens of foreign intelligence agencies, which can now
concentrate their surveillance of a particular nation's citizens more easily. We call this the "Jackpot"
problem.
Data localization worsens privacy intrusions
Hill 14 - technology and international affairs consultant, formerly worked in the Office of the
Cybersecurity Coordinator on the National Security Staff at the White House (Jonah, “The Growth of
Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Business
Leaders”, Conference on the Future of Cyber Governance, 5/1/14)//DBI
Advocates for data localization who understand this fact often point to jurisdictional differences
between nations as a reason to keep data local. Data stored in the U.S. is unsafe, they argue, because it
can be obtained by the NSA under legal coercion. Data localization (as a restriction on data storage
abroad), they insist, would negate this risk. While this may be true in certain respects, the argument
omits an important reality, namely that while locating data beyond the borders of the United States
might preclude the NSA or FBI from obtaining data via a subpoena or other formal legal mechanism,
moving data abroad could actually empower the NSA by lowering the legal threshold required to
obtain that same data by way direct intrusion into foreign data servers or data links. As was mentioned
briefly above, U.S. domestic law (as it is currently written and interpreted) puts fairly strict limits on the
collection of intelligence information on American soil. Data capture outside the U.S., by contrast, even
when that data is in the hands of American firms, is in large measure legally permissible when there is a
“national security interest,” a fairly broad criterion. Data localization (as a local data requirement) could
potentially give the NSA greater freedom to mine data, not less.104
Furthermore, while moving data into the servers outside the U.S. may prevent the U.S. government
from obtaining certain types of data via subpoena (ignoring the direct intrusion distinction for a
moment), data localization in that form would, at the same time, give domestic intelligence agencies of
the home country increased data collection powers over their citizens’ data. Given the fact that it is
those domestic agencies and their governments, and not the NSA and the United States, that can more
immediately impose and enforce coercive measures upon the citizens, those citizens need to ask
themselves, first, which presents the greater threat to their liberty generally, and to the security of
their personal information in particular? And, once recognizing that one’s own government may not be
trusted to abjure obtaining data of its citizens, is a domestic company possessing the data more or less
likely than a giant like Google to knuckle under to the demands of one’s own government? With respect
to most of the nations of the world, where there exist scant judicial independence and little
governmental transparency, the questions, I would argue, are answered in the asking.105
AT: Data localization helps law enforcement
Data localization doesn’t aid law enforcement
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
Equally important, it seems unlikely that data localization will prove an effective means to ensure that
data about their residents is available to law enforcement personnel when they want it. Moreover,
other alternatives are reasonably available to assist law enforcement access to data - alternatives that
are both less trade restrictive and more speech-friendly than data localization.
Data localization will not necessarily provide law enforcement better access to a criminal's data trail
because localization requirements are extremely hard to enforce. They might simply end up driving
potential wrongdoers abroad to less compliant and more secretive services. Indeed, the most lawabiding companies will follow costly data localization rules, while others will simply ignore them,
comforted by the knowledge that such laws are difficult to enforce. Any success with gaining
information from these companies will likely prove temporary, as, over time, potential scofflaws will
become aware of the monitoring and turn to services that intentionally skirt the law. The services
avoiding the law will likely be foreign ones, lacking any [*733] personnel or assets on the ground
against which to enforce any sanction. Thus, understood dynamically, the data localization requirement
will only hamper local and law-abiding enterprises, while driving some citizens abroad.
Law enforcement is, without doubt, a laudable goal, so long as the laws themselves do not violate
universal human rights. Many governments already have authority under their domestic laws to compel
a company operating in their jurisdictions to share data of their nationals held by that company abroad.
A recent study of ten countries concluded that the government already had the right to access data held
extraterritorially in the cloud in every jurisdiction examined. n268 Although the process varied, "every
single country ... vests authority in the government to require a Cloud service provider to disclose
customer data in certain situations, and in most instances this authority enables the government to
access data physically stored outside the country's borders." n269
Even if companies refuse to comply with such orders, or if the local subsidiary lacks the authority to
compel its foreign counterpart to share personal data, governments can resort to information-sharing
agreements. For example, the Convention on Cybercrime, which has been ratified by forty-four
countries including the United States, France, and Germany, n270 obliges Member States to adopt and
enforce laws against cybercrimes and to provide "mutual assistance" to each other in enforcing
cyberoffenses. n271 Many states have entered into specific Mutual Legal Assistance Treaties (MLATs)
with foreign nations. These treaties establish a process that protects the rights of [*734] individuals yet
gives governments access to data held in foreign jurisdictions. Currently, the United States has MLATs in
force with fifty-six countries. n272 The United States also entered into a Mutual Legal Assistance
Agreement (MLAA) with China and Taiwan. n273 All the countries discussed in the country studies
above, with the exception of Indonesia, Kazakhstan, and Vietnam, have MLAT arrangements in force
with the United States. Generally, MLATs "specify which types of requested assistance must be
provided, and which may be refused." n274 Requests for assistance may be refused typically when the
execution of such request would be prejudicial to the state's security or public interest; the request
relates to a political offense; there is an absence of reasonable grounds; the request does not conform
to the MLAT's provisions; or the request is incompatible with the requested state's law. n275 The
explanatory notes to the MLAT between the United States and the European Union observe that a
request for data shall only be denied on data protection grounds in "exceptional cases." n276 At the
same time, there are procedural requirements to help ensure that the information gathering is
supporting a proper governmental investigation. For example, Article 17 of the U.S.-Germany MLAT
provides that the government requesting assistance must do [*735] so in writing and must specify the
evidence or information sought, authorities involved, applicable criminal law provisions, etc. n277
An effective MLAT process gives governments the ability to gather information held on servers across
the world. The International Chamber of Commerce has recognized the crucial role of MLATs in
facilitating the lawful interception of cross-border data flow and stressed the need to focus on MLATs
instead of localization measures. n278 Similarly, the European Commission has recently stressed that
the rebuilding of trust in the U.S.-E.U. relationship must focus in part on a commitment to use legal
frameworks such as the MLATs. n279 Mutual cooperation arrangements are far more likely to prove
effective in the long run to support government information gathering efforts than efforts to confine
information within national borders.
AT: Alt causes
Significant FISA reform solves international perception of NSA and mitigates the
fear driven data localization agenda
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.30)//GK
The primary justification raised in favor of data localization policies is the need to protect citizens and
companies from government surveillance of the like orchestrated by the NSA. While the U.S.
government should not compromise what it perceives as essential national security objectives in the
face of threats to American businesses (especially in light of the hypocrisy involved in some of those
threats), it should nevertheless seriously address the concerns of the international community.
Specifically, the U.S. can start by adopting some of the important recommendations of the President
Review Group on Communications and Technologies, in particular, “Chapter IV: Reforming Foreign
Intelligence Surveillance Directed at Non-United States Person,” recommendations 12-15, focusing on
reforming section 702 of the Foreign Intelligence Surveillance Act, such as applying the 1974 Privacy Act
to non- U.S. persons. These are serious recommendations, and their implementation ought to go a long
way towards reducing (though surely not eliminating) international concerns over the surveillance
policies of the United States. Implementation will demonstrate a willingness on the part of the U.S.
government to respect global opinion and to impose limits on the reach of its intelligence agencies.
Technological leadership
Surveillance kills competitiveness
The perception of NSA overreaching wrecks global trust in the US tech sector –
that wrecks the US economy and competitiveness
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
“It is becoming clear that the post-9/11 surveillance apparatus may be at cross-purposes with our hightech economic growth,” declared Third Way’s Mieke Eoyang and Gabriel Horowitz in December 2013.
“The economic consequences [of the recent revelations] could be staggering.”25 A TIME magazine
headline projected that “NSA Spying Could Cost U.S. Tech Giants Billions,” predicting losses based on the
increased scrutiny that economic titans like Google, Microsoft, Facebook, and Yahoo have faced both at
home and abroad since last June.26 The NSA’s actions pose a serious threat to the current value and
future stability of the information technology industry, which has been a key driver of economic growth
and productivity in the United States in the past decade.27 In this section, we examine how emerging
evidence about the NSA’s extensive surveillance apparatus has already hurt and will likely continue to
hurt the American tech sector in a number of ways, from dwindling U.S. market share in industries like
cloud computing and webhosting to dropping tech sales overseas. The impact of individual users turning
away from American companies in favor of foreign alternatives is a concern. However, the major losses
will likely result from diminishing confidence in U.S. companies as trustworthy choices for foreign
government procurement of products and services and changing behavior in the business-to-business
market.
Costs to the U.S. Cloud Computing Industry and Related Business
Trust in American businesses has taken a significant hit since the initial reports on the PRISM program
suggested that the NSA was directly tapping into the servers of nine U.S. companies to obtain customer
data for national security investigations.28 The Washington Post’s original story on the program
provoked an uproar in the media and prompted the CEOs of several major companies to deny
knowledge of or participation in the program.29 The exact nature of the requests made through the
PRISM program was later clarified,30 but the public attention on the relationship between American
companies and the NSA still created a significant trust gap, especially in industries where users entrust
companies to store sensitive personal and commercial data. “Last year’s national security leaks have
also had a commercial and financial impact on American technology companies that have provided
these records,” noted Representative Bob Goodlatte, a prominent Republican leader and Chairman of
the House Judiciary Committee, in May 2014. “They have experienced backlash from both American and
foreign consumers and have had their competitive standing in the global marketplace damaged.”31
Given heightened concerns about the NSA’s ability to access data stored by U.S. companies, it is no
surprise that American companies offering cloud computing and webhosting services are among those
experiencing the most acute economic fallout from NSA surveillance. Within just a few weeks of the first
disclosures, reports began to emerge that American cloud computing companies like Dropbox and
Amazon Web Services were starting to lose business to overseas competitors.32 The CEO of Artmotion,
one of Switzerland’s largest offshore hosting providers, reported in July 2013 that his company had seen
a 45 percent jump in revenue since the first leaks,33 an early sign that the country’s perceived neutrality
and strong data and privacy protections34 could potentially be turned into a serious competitive
advantage.35 Foreign companies are clearly poised to benefit from growing fears about the security
ramifications of keeping data in the United States. In a survey of 300 British and Canadian businesses
released by PEER 1 in January 2014,36 25 percent of respondents indicated that they were moving data
outside of the U.S. as a result of the NSA revelations. An overwhelming number of the companies
surveyed indicated that security and data privacy were their top concerns, with 81 percent stating that
they “want to know exactly where their data is being hosted.” Seventy percent were even willing to
sacrifice performance in order to ensure that their data was protected.37
It appears that little consideration was given over the past decade to the potential economic
repercussions if the NSA’s secret programs were revealed.38 This failure was acutely demonstrated by
the Obama Administration’s initial focus on reassuring the public that its programs primarily affect nonAmericans, even though non-Americans are also heavy users of American companies’ products.
Facebook CEO Mark Zuckerberg put a fine point on the issue, saying that the government “blew it” in its
response to the scandal. He noted sarcastically: “The government response was, ‘Oh don’t worry, we’re
not spying on any Americans.’ Oh, wonderful: that’s really helpful to companies [like Facebook] trying to
serve people around the world, and that’s really going to inspire confidence in American internet
companies.”39 As Zuckerberg’s comments reflect, certain parts of the American technology industry are
particularly vulnerable to international backlash since growth is heavily dependent on foreign markets.
For example, the U.S. cloud computing industry has grown from an estimated $46 billion in 2008 to $150
billion in 2014, with nearly 50 percent of worldwide cloud-computing revenues coming from the U.S.40
R Street Institute’s January 2014 policy study concluded that in the next few years, new products and
services that rely on cloud computing will become increasingly pervasive. “Cloud computing is also the
root of development for the emerging generation of Web-based applications—home security,
outpatient care, mobile payment, distance learning, efficient energy use and driverless cars,” writes R
Street’s Steven Titch in the study. “And it is a research area where the United States is an undisputed
leader.”41 This trajectory may be dramatically altered, however, as a consequence of the NSA’s
surveillance programs.
Economic forecasts after the Snowden leaks have predicted significant, ongoing losses for the cloudcomputing industry in the next few years. An August 2013 study by the Information Technology and
Innovation Foundation (ITIF) estimated that revelations about the NSA’s PRISM program could cost the
American cloud computing industry $22 to $35 billion over the next three years.42 On the low end, the
ITIF projection suggests that U.S. cloud computing providers would lose 10 percent of the foreign
market share to European or Asian competitors, totaling in about $21.5 billion in losses; on the highend, the $35 billion figure represents about 20 percent of the companies’ foreign market share. Because
the cloud computing industry is undergoing rapid growth right now—a 2012 Gartner study predicted
global spending on cloud computing would increase by 100 percent from 2012 to 2016, compared to a 3
percent overall growth rate in the tech industry as a whole43—vendors in this sector are particularly
vulnerable to shifts in the market. Failing to recruit new customers or losing a competitive advantage
due to exploitation by rival companies in other countries can quickly lead to a dwindling market share.
The ITIF study further notes that “the percentage lost to foreign competitors could go higher if foreign
governments enact protectionist trade barriers that effectively cut out U.S. providers,” citing early calls
from German data protection authorities to suspend the U.S.-EU Safe Harbor program (which will be
discussed at length in the next section).44 As the R Street Policy Study highlights, “Ironically, the NSA
turned the competitive edge U.S. companies have in cloud computing into a liability, especially in
Europe.”45
In a follow up to the ITIF study, Forrester Research analyst James Staten argued that the think tank’s
estimates were low, suggesting that the actual figure could be as high as $180 billion over three years.46
Staten highlighted two additional impacts not considered in the ITIF study. The first is that U.S.
customers—not just foreign companies—would also avoid US cloud providers, especially for
international and overseas business. The ITIF study predicted that American companies would retain
their domestic market share, but Staten argued that the economic blowback from the revelations would
be felt at home, too. “You don’t have to be a French company, for example, to be worried about the US
government snooping in the data about your French clients,” he wrote.47 Moreover, the analysis
highlighted a second and “far more costly” impact: that foreign cloud providers, too, would lose as much
as 20 percent of overseas and domestic business because of similar spying programs conducted by other
governments. Indeed, the NSA disclosures “have prompted a fundamental re-examination of the role of
intelligence services in conducting coordinated cross-border surveillance,” according to a November
2013 report by Privacy International on the “Five Eyes” intelligence partnership between the United
States, the United Kingdom, Canada, Australia, and New Zealand.48 Staten predicts that as the
surveillance landscape around the world becomes more clear, it could have a serious negative impact on
all hosting and outsourcing services, resulting in a 25 percent decline in the overall IT services market, or
about $180 billion in losses.49
Recent reports suggest that things are, in fact, moving in the direction that analysts like Castro and
Staten suggested.50 A survey of 1,000 “[Information and Communications Technology (ICT)] decisionmakers” from France, Germany, Hong Kong, the UK, and the USA in February and March 2014 found
that the disclosures “have had a direct impact on how companies around the world think about ICT and
cloud computing in particular.”51 According to the data from NTT Communications, 88 percent of
decision-makers are changing their purchasing behavior when it comes to the cloud, with the vast
majority indicating that the location of the data is very important. The results do not bode well for
recruitment of new customers, either—62 percent of those currently not storing data in the cloud
indicated that the revelations have since prevented them from moving their ICT systems there. And
finally, 82 percent suggested that they agree with proposals made by German Chancellor Angela Merkel
in February 2014 to have separate data networks for Europe, which will be discussed in further detail in
Part III of this report. Providing direct evidence of this trend, Servint, a Virginia-based webhosting
company, reported in June 2014 that international clients have declined by as much as half, dropping
from approximately 60 percent of its business to 30 percent since the leaks began.52
With faith in U.S. companies on the decline, foreign companies are stepping in to take advantage of
shifting public perceptions. As Georg Mascolo and Ben Scott predicted in a joint paper published by the
Wilson Center and the New America Foundation in October 2013, “Major commercial actors on both
continents are preparing offensive and defensive strategies to battle in the market for a competitive
advantage drawn from Snowden’s revelations.”53 For example, Runbox, a small Norwegian company
that offers secure email service, reported a 34 percent jump in customers since June 2013.54 Runbox
markets itself as a safer email and webhosting provider for both individual and commercial customers,
promising that it “will never disclose any user data unauthorized, track your usage, or display any
advertisements.”55 Since the NSA revelations, the company has touted its privacy-centric design and
the fact that its servers are located in Norway as a competitive advantage. “Being firmly located in
Norway, the Runbox email service is governed by strict privacy regulations and is a safe alternative to
American email services as well as cloud-based services that move data across borders and
jurisdictions,” company representatives wrote on its blog in early 2014.56 F-Secure, a Finnish cloud
storage company, similarly emphasizes the fact that “its roots [are] in Finland, where privacy is a fiercely
guarded value.”57 Presenting products and services as ‘NSA-proof’ or ‘safer’ alternatives to Americanmade goods is an increasingly viable strategy for foreign companies hoping to chip away at U.S. tech
competiveness.58
U.S. surveillance programs are crushing U.S. tech industry competitiveness –
collapse the economy and inflames foreign protectionism – surveillance reforms
key to solve
Castro and McQuinn 15 – * Vice President of the Information Technology and Innovation Foundation
and Director of the Center for Data Innovation, B.S. in Foreign Service from Georgetown University and
an M.S. in Information Security Technology and Management from Carnegie Mellon University, AND **
Research Assistant with the Information Technology and Innovation Foundation, B.S. in Public Relations
and Political Communications from the University of Texas (Daniel and Alan, Beyond the USA Freedom
Act: How U.S. Surveillance Still Subverts U.S. Competitiveness, Information Technology and Innovation
Foundation, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf?_ga=1.33178294.940386433.1435342104)//JJ
Almost two years ago, ITIF described how revelations about pervasive digital surveillance by the U.S.
intelligence community could severely harm the competitiveness of the United States if foreign
customers turned away from U.S. - made technology and services. 1 Since then, U.S. policymakers have
failed to take sufficient action to address these surveillance concerns ; in some cases, they have even
fanned the flames of discontent by championing weak information security practices . 2 In addition,
other countries have used anger over U .S. government surveillance as a cover for implementing a new
wave of protectionist policies specifically targeting information technology . The combined result is a
set of policies both at home and abroad that sacrifices robust competitiveness of the U.S. tech sector
for vague and unconvincing promises of improved national security.
The failure of U.S. policymakers to address surveillance concerns over the last few years has buoyed
foreign protectionism and hurt American businesses
ITIF estimated in 2013 that even a modest drop in the expected foreign market share for cloud
computing stemming from concerns about U.S. surveillance could cost the United States between $21.5
billion and $35 billion by 2016. 3 Since then , it has become clear that the U.S. tech industry as a whole,
not just the cloud computing sector , has under - performed as a result of t he Snowden revelations .
Therefore, the economic impact of U.S. surveillance practices will likely far exceed ITIF’s initial $35
billion estimate. This report catalogues a wide range of specific examples of the economic harm that has
been done to U.S. busin esses . In short, foreign customers are shunning U.S. companies . The policy
implication of this is clear: Now that Congress has reformed how the National Security Agency ( NSA )
collects bulk domestic phone records and allowed private firms — rather than the government — to
collect and store approved data, it is time to address other controversial digital surveillance activities by
the U.S. intelligence community.
The U.S. government’s failure to reform many of the NSA’s surveillance programs has damaged the
competitiveness of the U.S. tech sector and cost it a portion of the global market share . 5 This includes
programs such as PRISM — the controversial program authorized by the FISA Amendments Act , which
allows for warrantless access to private - use r data on popular online services both in the United States
and abroad — and Bullrun — the NSA’s program to undermine encryption standards both at home and
abroad . Foreign companies have seized on these controversial policies to convince their customers that
keeping data at home is safer than sending it abroad, and foreign governments have pointed to U.S.
surveillance as justification for protectionist policies that require data to be kept within their national
borders . In the most extreme cases, such as in China, foreign governments are using fear of digital
surveillance to force companies to surrender valuable intellectual property, such as source code.
In the short term, U.S. companies lose out on contracts, and over the long term, other countries create
protectionist policies that lock U.S. businesses out of foreign markets . This not only hurt s U.S.
technology companies , but costs American jobs and weakens the U.S. trade balance. To reverse this
Increase transparency about U.S. surveillance activities
both at home and abroad
i
Complete trade agreements like the Trans Pacific Partnership that ban digital protectionism, and
pressure nations that seek to erect protectionist barriers to abandon those efforts .
The loss of trust locks IT companies out of foreign markets, wrecks
competitiveness
Eoyang, 13 - Director of the National Security Program (Mieke, “NSA Snooping's Negative Impact On
Business Would Have The Founding Fathers 'Aghast'” Forbes,
http://www.forbes.com/sites/realspin/2013/12/20/nsa-snoopings-negative-impact-on-business-wouldhave-the-founding-fathers-aghast/
The revelations about the scope and scale of NSA’s surveillance both at home and abroad have made
many uneasy about the security of their data. This loss of trust could have ongoing consequences for the
U.S. economy and for the future development of the Internet. Policymakers must understand these
implications as they make decisions on how to reform our surveillance efforts.
First, what will this mean for American competitiveness? For years, the Internet has been largely “Made
in America”, but the technical architecture and data transcend national borders. European, Chinese,
Russian, and other global competitors are vying for the billions of consumers who currently use U.S.
Internet services every day—from Google to Facebook to Ebay. One major competitive global advantage
for U.S. companies is that America’s openness and freedoms have brought an implied level of trust in
the security and privacy of the data flowing through their servers. But when the U.S. government asserts
that it can exploit electronic data abroad for intelligence purposes, it creates an international reaction
with profound economic consequences.
For example, Europe’s Commissioner for digital affairs, Neelie Kroes, predicts the fallout from
Snowden’s leaks will have “multi-billion Euro consequences” for US businesses. The EU Commission’s
Vice President, Viviane Reding, is pushing for Europe to adopt more expansive privacy laws that will help
build market share for regional companies—thereby shutting American companies out.
The economic consequences could be staggering . Studies by leading Internet researchers at ITIF,
Gartner, and Forrester examining the NSA surveillance revelations’ impact project potential lost revenue
for U.S. cloud computing companies ranging from $35 billion to $180 billion over the next three years.
More than half of the overseas members of a cloud industry group, the Cloud Security Alliance, said they
were less likely to use U.S. cloud providers in the future. Ten percent of such members said they had
cancelled a U.S. cloud services project as a result of the “Snowden Incident”. While the true costs of the
loss of trust are hard to quantify, and will be reported in future quarters, the potential losses are
enormous.
U.S. surveillance is decimating the entire tech industry
Targeted News Service 6/9/15 – Washington editorial news service, citing VP of ITIF, Daniel Castro
(Tarnished by Association with Ongoing U.S. Surveillance Policies, Tech Sector Likely to Lose More Than
$35 Billion in Sales, Proquest)//JJ
Information Technology and Innovation Foundation issued the following news release:
Shortly after Edward Snowden revealed extensive U.S. government surveillance, the Information
Technology and Innovation Foundation (ITIF) estimated that the U.S. tech sector could lose between
$21.5 billion and $35 billion over three years if U.S. cloud computing providers saw even a modest drop
in their foreign market share due to concerns about electronic surveillance. Since then, it has become
clear that the U.S. tech industry as a whole , not just the cloud computing sector, has under-performed
as a result of these spying concerns . Therefore, the total economic impact of U.S. surveillance practices
will likely far exceed ITIF's initial $35 billion estimate .
ITIF is releasing a new report today, Beyond the USA Freedom Act: How U.S. Surveillance Still Subverts
U.S. Competitiveness, (http://www.itif.org/publications/2015/06/09/beyond-usa-freedom-act-how-ussurveillance-still-subverts-us-competitiveness) which catalogues a wide range of specific examples of the
economic harm that has been done to U.S. businesses as result of unreformed government surveillance
practices, and it proposes a series of reforms designed to improve security, protect transparency, and
increase cooperation and accountability in the global technology ecosystem.
"Foreign customers are increasingly shunning U.S. companies , and governments around the world are
using U.S. surveillance as an excuse to enact a new wave of protectionist policies . This is bad for U.S.
companies, U.S. workers, and the U.S. economy as a whole ," notes Daniel Castro, Vice President of ITIF
and co-author of the report. "Now that Congress has passed the USA Freedom Act, it is imperative that
it turn its attention to reforming the digital surveillance activities that continue to impact our nation's
competitiveness ."
The report recommends policymakers level the playing field for the U.S. tech sector by implementing a
series of reforms such as increasing the transparency of its surveillance practices, opposing government
efforts to weaken encryption or introduce backdoors in software, and strengthening its mutual legal
assistance treaties with other nations. In addition, it should combat anti-competitive practices by other
nations through the establishment of international legal standards for government access to data and
pushing for trade agreements to include bans on digital protectionism.
"Over the last few years, the U.S. government's failure to meaningfully reform its surveillance practices
has taken a serious economic toll on the U.S. tech sector and the total cost continues to grow each
day," adds Castro. " Other countries are scrambling to take advantage of this opportunity, and if
policymakers fail to address this issue head on, these losses will be locked in permanently . Ultimately,
Congress must decide how many American jobs it is willing to sacrifice in pursuit of intelligence
gathering and find a better balance between economic interests and national security interests."
NSA overreach is wrecking tech industry competitiveness
Rubinstein and Hoboken 14 – *Senior Fellow at the Information Law Institute (ILI) and NYU School of
Law, AND **Microsoft Research Fellow in the Information Law Institute at New York University, PhD
from the University of Amsterdam (Ira and Joris Van, PRIVACY AND SECURITY IN THE CLOUD: SOME
REALISM ABOUT TECHNICAL SOLUTIONS TO TRANSNATIONAL SURVEILLANCE IN THE POST- SNOWDEN
ERA, 66 Maine L. Rev. 488, September 2014, http://ssrn.com/abstract=2443604)//JJ
On June 5, 2013, the British newspaper The Guardian broke the first of many stories involving the
“Snowden revelations.”104 The leaks revealed—and continue to reveal—that multiple U.S. government
collection and surveillance programs are seemingly beyond the scope of Sections 215 of the USA
PATRIOT Act and 702 of the FAA. The first article described an NSA program to collect millions of calling
records of U.S. customers of Verizon, regardless of whether they are suspected of any wrongdoing. This
program involved the government collection of “telephony metadata” (but not the content of phone
calls) on an ongoing basis, subject to the terms of a court order pursuant to Section 215.105 The next
day, The Guardian reported on another NSA program referred to in the leaked documents as “PRISM,”
under which the government collects the content of electronic communications, including “search
history, the content of emails, file transfers and live chats.”106 One of the leaked documents suggested
that the government was collecting this data directly from the servers of leading U.S. companies
including Google, Facebook, and Apple, although the government and the companies involved have all
denied such claims.107
These and other Snowden revelations ignited a firestorm of criticism. The leaks sparked what many
consider a long overdue debate on the nature and extent of the NSA’s surveillance programs and their
impact on civil liberties, both in the U.S. and abroad.108 In the view of many, the revelations also caused
immediate damage to U.S. foreign relations109 and national security.110 Additionally, the U.S. tech
industry—and especially companies in the cloud computing industry—worried about potential spillover
damage based on foreign businesses and governments threatening not to use their services because of
concerns over NSA spying .111 And they had good reason for these concerns. Over the course of the
next several months, there were at least three additional press reports that undermined U.S. cloud
services in the eyes of foreign customers. First, in August 2013, The New York Times described another
program conducted under Section 702 in which the NSA acquires communications by “systematically
searching—without warrants— through the contents of Americans’ communications that cross the
border . . . temporarily copying and then sifting through the contents of what is apparently most
[international] e-mails and other text-based communications.”112 This is sometimes referred to as
upstream collection, because it apparently involves real- time interception of communications as they
pass through fiber cables or other major data pipelines.113
A month later, The New York Times reported that the NSA has been engaged in and winning a “secret
war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes
persuasion to undermine the major tools protecting the privacy of everyday communications in the
Internet age.”114 This program, which the leaked documents refer to as BULLRUN,115 is especially
significant for present purposes because it reveals how NSA overcame its defeat in the key escrow and
export control debates by finding new ways to exploit vast amounts of encrypted online data. BULLRUN
relied on a number of stealthy methods ranging from the use of superfast computes to break codes, to
allegedly pressuring companies into handing over their master encryption keys or building in backdoors,
to introducing technical weaknesses covertly into commercial encryption standards.116
Finally, in October, the Washington Post reported that the NSA “has secretly broken into the main
communications links that connect Yahoo and Google data centers around the world.”117 Whereas
PRISM apparently provided front-door access to Yahoo and Google accounts through a court-approved
process under Section 702 of the FAA, this alternative program, called MUSCULAR, intercepted Yahoo
and Google data flows through the backdoor as they transited the companies’ private fiber-optic
networks.118 In public statements, the companies expressed their “outrage”119 and, in the wake of
these revelations, analysts predicted that U.S. tech companies may lose as much as $180 billion by
2016 due to international concerns about NSA’s spying .120
NSA surveillance is wrecking the perception of US companies both domestically
and internationally- creating foreign cloud competition
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 9)//AK
Those of us who fought the crypto wars, as we call them, thought we had won them in the 1990s. What
the Snowden documents have shown us is that instead of dropping the notion of getting backdoor
government access, the NSA and FBI just kept doing it in secret. Now that this has become public, US
companies are losing business overseas because their non-US customers don’t want their data collected
by the US government. NSA surveillance is costing US companies business in three different ways:
people fleeing US cloud providers, people not buying US computer and networking equipment, and
people not trusting US companies.
When the story about the NSA’s getting user data directly from US cloud providers— the PRISM
program—broke in 2013, businesses involved faced a severe public relations backlash. Almost
immediately, articles appeared noting that US cloud companies were losing business and their
counterparts in countries perceived as neutral, such as Switzerland, were gaining. One survey of British
and Canadian companies from 2014 found that 25% of them were moving their data outside the US,
even if it meant decreased performance. Another survey of companies found that NSA revelations made
executives much more concerned about where their data was being stored.
Estimates of how much business will be lost by US cloud providers vary. One 2013 study by the
Information Technology and Innovation Foundation foresees the loss of revenue at $22 to $35 billion
over three years; that’s 10% to 20% of US cloud providers’ foreign market share. The Internet analysis
firm Forrester Research believes that’s low; it estimates three-year losses at $180 billion because some
US companies will also move to foreign cloud providers.
US computer and networking companies are also taking severe hits. Cisco reported 2013 fourth quarter
revenue declines of 8% to 10%. AT&T also reported earnings losses, and had problems with its European
expansion plans. IBM lost sales in China. So did Qualcomm. Verizon lost a large German government
contract. There’s more. I have attended private meetings where large US software companies
complained about significant loss of foreign sales. Cisco’s CEO John Chambers wrote to the Obama
administration, saying that NSA’s hacking of US equipment “will undermine confidence in our industry
and in the ability of technology companies to deliver products globally.” Chambers’s comments echo the
third aspect of the competitiveness problem facing US companies in the wake of Snowden: they’re no
longer trusted. The world now knows that US telcos give the NSA access to the Internet backbone and
that US cloud providers give it access to user accounts. The world now knows that the NSA intercepts
US-sold computer equipment in transit and surreptitiously installs monitoring hardware. The world
knows that a secret court compels US companies to make themselves available for NSA eavesdropping,
and then orders them to lie about it in public. Remember the Lavabit story from Chapter 5?
All of this mistrust was exacerbated by the Obama administration’s repeated reassurances that only
non-Americans were the focus of most of the NSA’s efforts. More than half of the revenue of many
cloud companies comes from outside the US. Facebook’s Mark Zuckerberg said it best in a 2013
interview: “The government response was, ‘Oh don’t worry, we’re not spying on any Americans.’ Oh,
wonderful: that’s really helpful to companies trying to serve people around the world, and that’s really
going to inspire confidence in American internet companies.”
To be fair, we don’t know how much of this backlash is a temporary blip because NSA surveillance was in
the news, and how much of it will be permanent. We know that several countries—Germany is the big
one—are trying to build a domestic cloud infrastructure to keep their national data out of the NSA’s
hands. German courts have recently ruled against data collection practices by Google, Facebook, and
Apple, and the German government is considering banning all US companies that cooperate with the
NSA. Data privacy is shaping up to be the new public safety requirement for international commerce. It’s
also a new contractual requirement. Increasingly, large US companies are requiring their IT vendors to
sign contracts warranting that there are no backdoors in their IT systems. More specifically, the
contractual language requires the vendors to warrant that there is nothing that would allow a third
party to access their corporate data. This makes it harder for IT companies to cooperate with the NSA or
with any other government agency, because it exposes them to direct contractual liability to their
biggest and most sophisticated customers. And to the extent they cannot sign such a guarantee, they’re
going to lose business to companies who can.
We also don’t know what sort of increase to expect in competitive products and services from other
countries around the world. Many firms in Europe, Asia, and South America are stepping in to take
advantage of this new wariness. If the 1990s crypto wars are any guide, hundreds of non-US companies
are going to provide IT products that are beyond the reach of US law: software products, cloud services,
social networking sites, networking equipment, everything. Regardless of whether these new products
are actually more secure—other countries are probably building backdoors in the products they can
control—or even beyond the reach of the NSA, the cost of NSA surveillance to American business will be
huge.
Foreign fear of NSA backdoors devastate US tech firm competitiveness
Hill 14* Technology policy consultant at Monitor 360, fellow of the Global Governance Futures 2025
program at the Brookings Institution (Jonah, “THE GROWTH OF DATA LOCALIZATION POST-SNOWDEN:
ANALYSIS AND RECOMMENDATIONS FOR U.S. POLICYMAKERS AND BUSINESS LEADERS” p.)//GK
For a great many around the globe, the Snowden disclosures revealed a disturbing relationship between the major
U.S. technology firms and the American national security establishment. Specifically, the disclosures showed that
Yahoo, Google, and other large American tech companies had provided the NSA with access to the data of the
users of their services. Although there were many programs that tied the major American firms to the NSA, three in particular drew
special ire: the much-discussed PRISM7 program, a collaborative effort between the NSA and the FBI which compelled
Internet companies to hand over data held within servers located on U.S. soil in response a subpoena
issued by a special intelligence court, and two programs known as MUSCULAR and TEMPORA,89 both of which allowed the NSA
(in partnership with Britain’s signals intelligence agency, the GCHQ) to access information transmitted through the data communication links of
American-owned firms located outside the U.S., where statutory limitations on data collection are far less stringent.10 The
fact that
American companies provided the U.S. government with information and access to data (knowingly in some cases,
apparently unwittingly in others) has led many foreign leaders to conclude that only domestic firms – or at least nonAmerican firms – operating exclusively within local jurisdictions, can be trusted to host the data of their citizens.
Prominent political voices around the globe have been anything but subtle in their articulation of this
assessment. Following the publication of the PRISM program in the Guardian newspaper, German Interior Minister HansPeter Friedrich declared that, “whoever fears their communication is being intercepted in any way should use
services that don't go through American servers.”11 France’s Minister for the Digital Economy similarly insisted that it was
now necessary to “locate datacenters and servers in [French] national territory in order to better ensure data security.”12 Brazilian President
Dilma Rousseff agreed, insisting that, "there is a serious problem of storage databases abroad. That certain situation we will no longer
accept."13 Unsurprisingly, these declarations from government officials at the ministerial level and higher, and the policy
responses
profoundly troubling to American technology companies. U.S. firms have issued dire
warnings in response,14 predicting that they could lose tens of billions of dollars in revenue abroad as distrustful
foreign governments and customers move – either by choice or by legal mandate – to non-U.S. alternatives. Firms fear
that the anti-American backlash and potentially resulting data localization laws (depending on the specifics of the rules
enacted) will mean that they will be forced out of certain markets, or forced to build expensive – and
oftentimes unnecessarily redundant – data centers abroad. Analysts are suggesting the fallout could mirror what happened to Huawei
those declarations suggest, are
and ZTE, the Chinese technology and telecommunications firms that were forced to abandon some U.S. contracts when American lawmakers
accused the companies of planting in their products coding “backdoors” for the Chinese People’s Liberation Army and intelligence 15 A muchcited estimate16 by the Information Technology and services. Innovation Foundation, an independent think-tank, confirmed American tech
firms’ worst fears when it opined that the
U.S. cloud computing industry alone could lose between $21.5 billion
and $35 billion over the next three years as a result of the NSA backlash.17
Loss of overseas markets wrecks tech competitiveness
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
The economic impact of NSA spying does not end with the American cloud computing industry.
According to The New York Times, “Even as Washington grapples with the diplomatic and political
fallout of Mr. Snowden’s leaks, the more urgent issue, companies and analysts say, is economic.”59 In
the past year, a number of American companies have reported declining sales in overseas markets like
China (where, it must be noted, suspicion of the American government was already high before the NSA
disclosures), loss of customers including foreign governments, and increased competition from non-U.S.
services marketing themselves as ‘secure’ alternatives to popular American products.
There is already significant evidence linking NSA surveillance to direct harm to U.S. economic interests.
In November 2013, Cisco became one of the first companies to publicly discuss the impact of the NSA on
its business, reporting that orders from China fell 18 percent and that its worldwide revenue would
decline 8 to 10 percent in the fourth quarter, in part because of continued sales weakness in China.60
New orders in the developing world fell 12 percent in the third quarter, with the Brazilian market
dropping roughly 25 percent of its Cisco sales.61 Although John Chambers, Cisco’s CEO, was hesitant to
blame all losses on the NSA, he acknowledged that it was likely a factor in declining Chinese sales62 and
later admitted that he had never seen as fast a decline in an emerging market as the drop in China in
late 2013.63 These numbers were also released before documents in May 2014 revealed that the NSA’s
Tailored Access Operations unit had intercepted network gear—including Cisco routers—being shipped
to target organizations in order to covertly install implant firmware on them before they were
delivered.64 In response, Chambers wrote in a letter to the Obama Administration that “if these
allegations are true, these actions will undermine confidence in our industry and in the ability of
technology companies to deliver products globally.”65
Much like Cisco, Qualcomm, IBM, Microsoft, and Hewlett-Packard all reported in late 2013 that sales
were down in China as a result of the NSA revelations.66 Sanford C. Bernstein analyst Toni Sacconaghi
has predicted that after the NSA revelations, “US technology companies face the most revenue risk in
China by a wide margin, followed by Brazil and other emerging markets.”67 Industry observers have also
questioned whether companies like Apple—which hopes to bring in significant revenue from iPhone
sales in China—will feel the impact overseas.68 Even AT&T reportedly faced intense scrutiny regarding
its proposed acquisition of Vodafone, a European wireless carrier, after journalists revealed the extent
of AT&T’s collaboration with the NSA.69
American companies are also losing out on business opportunities and contracts with large companies
and foreign governments as a result of NSA spying. According to an article in The New York Times,
“American businesses are being left off some requests for proposals from foreign customers that
previously would have included them.”70 This refers to German companies, for example, that are
increasingly uncomfortable giving their business to American firms. Meanwhile, the German
government plans to change its procurement rules to prevent American companies that cooperate with
the NSA or other intelligence organizations from being awarded federal IT contracts.71 The government
has already announced it intends to end its contract with Verizon, which provides Internet service to a
number of government departments.72 “There are indications that Verizon is legally required to provide
certain things to the NSA, and that’s one of the reasons the cooperation with Verizon won’t continue,” a
spokesman for the German Interior Ministry told the Associated Press in June.73
The NSA disclosures have similarly been blamed for Brazil’s December 2013 decision to award a $4.5
billion contract to Saab over Boeing, an American company that had previously been the frontrunner in
a deal to replace Brazil’s fleet of fighter jets.74 Welber Barral, a former Brazilian trade secretary,
suggested to Bloomberg News that Boeing would have won the contract a year earlier,75 while a source
in the Brazilian government told Reuters that “the NSA problem ruined it for the Americans.”76 As we
will discuss in greater depth in the next section, Germany and Brazil are also considering data
localization proposals that could harm U.S. business interests and prevent American companies from
entering into new markets because of high compliance costs.
Perception key
The widespread perception that the NSA is acting beyond the established
legislative framework is destroying the reputation of U.S. tech companies
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a
center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy,
and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as
as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way (“Restoring
Trust between U.S. Companies and Their Government on Surveillance Issues” 3/19,
http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-onsurveillance-issues
Allegations of intrusive U.S. government electronic surveillance activities have raised international
outcry and created antagonism between U.S. technology companies and the government. Without a
bold and enduring reform, American companies will continue to suffer a competitive disadvantage from
perceptions of U.S. government intrusion into their data. We propose bringing electronic surveillance
collection from U.S. companies into an existing statutory framework in order to reassure international
customers and to respect the rights of U.S. companies operating abroad.
The Problem
In the wake of the Snowden revelations, people around the world have become uneasy about the
security of their communications that flow through the servers of American companies.1 They now
fear—not without reason—that the NSA has broad access to a wide range of their data that may not
have any direct relevance to the core foreign policy or security concerns of the United States.2
Snowden has also alleged that the NSA accessed American companies’ data without their knowledge.3
American technology companies reacted with outrage to media reports that, unbeknownst to them, the
U.S. government had intruded onto their networks overseas and spoofed their web pages or products.4
These stories suggested that the government created and snuck through back doors to take the data
rather than come through well-established front doors.5
Beyond the broad implications for civil liberties and diplomacy, these fears led to two immediate
consequences for the industry: First, many U.S. companies shifted to an adversarial relationship with
their own government. They moved to secure and encrypt their data to protect the privacy rights of
their customers.6 They are pushing for reform.7 They are building state-of-the-art data centers in
Europe and staffing their high-paying jobs with Europeans, not Americans.8 They are challenging the
government in court.9
Second, international customers of U.S. technology and communications companies began taking their
business elsewhere. Brazil decided against a $4.5 billion Boeing deal and cancelled Microsoft
contracts.10 Germany dropped Verizon in favor of Deutsche Telekom.11 Both of these examples suggest
that if even friendly governments can go to the expense and trouble of dropping American companies,
foreign individual and corporate customers could certainly decide to switch their data providers for
greater privacy protection. Simply put, the reputational harm had a direct impact on American
companies’ competitiveness—some estimate that it has cost U.S. tech firms $180 billion thus far.12
Defenders of the programs may argue that the Snowden allegations are overblown or that foreign
companies are just using the revelations for their own protectionist purposes. But it doesn’t matter if
the allegations are actually true because the global public believes them to be true , and they are
therefore real in their consequences.
In many ways, the Snowden revelations have created a sense of betrayal among American companies.
Some had been providing information to the NSA through existing legislative means – either under
Section 215 of the USA Patriot Act,13 or under Section 702 of the FISA Amendments Act (FAA).14 It was
unsettling to read stories that, outside of this statutorily compelled cooperation, the government had
been getting access to huge amounts of their data in other unauthorized ways. As one tech employee
said, “the back door makes a mockery of the front door.”
Tech leadership key to hegemony
*Tech leadership underpins hegemony
Weiss 14 – Fellow of the Academy of the Social Sciences in Australia, Professor Emeritus in Government
and International Relations at the University of Sydney, Honorary Professor of Political Science at Aarhus
University. (Linda, America Inc.?: Innovation and Enterprise in the National Security State, Cornell
University Press, 4/1/14, p. 1-3)//JJ
Bill Gates's "state-less" depiction of America's high-tech economy perfectly captures the prevailing
understanding of U.S. techno-industrial preeminence. Both at home and abroad, the United States is
widely portrayed as the quintessential free-market economy. In this reputedly freewheeling
entrepreneurial setting, robust antistatism combines with weak State capacity to ensure that the U.S.
government contributes little more to America's global technology leadership than a business-friendly
environment. This book tells a different story, one that links high technology with national security and
(antistatist) political norms. 1 It proposes that there is more to American capitalism and the American
state than meets the free-market eye. In getting to this "something more," we start from the
substantive observation that the U S. has an unmatched capacity for transformative innovation. For half
a century and more, the United States has been the uncontested high-technology hegemon, leading the
world in virtually all the major technologies that drive the modern economy and underpin its prosperity.
Think of innovations such as communications satellites, micro- electronics, computers, software,
biotechnology, the internet—the list goes on. More striking still is that every one of these breakthrough
innovations emanated from the United States precisely in the period since World War Il, giving rise to
entirely new industries. My main argument focuses on the role of what I call the national security state
or NSS (though I use the term in an unusual sense; more on this shortly). Since World War Il, the NSS has
dominated in high-risk, break- through technologies and emerging industries; this pursuit has
established, and continues to secure, the foundations for a high-technology commercial sector.
Nevertheless, the NSS pursues technology leadership in order to sustain U.S. military-political
primacy , not to achieve commercial advantage. To do so it has to rely on the private sector to advance
its technology goals. After all, the days when the military could source all it needed from its arsenals are
long gone. But as leading-edge capabilities came to reside less and less within the pool of large defense
contractors (core of what is traditionally described as the military-industrial complex), and more and
more within high-tech firms reluctant to work on security related projects, the NSS was compelled to
retool its incentive system. As I explain in more detail below, increasingly since the 1980s the NSS has
had to reach outside the traditional pool of large Contractors to attract the most innovative companies,
by building commercial goals into its programs. By placing greater emphasis on commercializalion
opportunities, some of these incentives seek to sweeten collaboration with the Department of Defense
(DoD) and other security-related agencies, and thus to increase NSS influence over the direction of
technology. In this manner, commercialization becomes the sine qua non of technological- cum-military
primacy. Far from being mutually exclusive, security and com- merce have become closely entwined in
NSS policy and practice. At one level then, this is a story about how the geopolitics of threat perception
has generated a vast state machinery geared to perpetual innovation in the quest for technological
superiority . At another level, it is a story about the domestic challenges and political obstacles that
have reshaped the NSS and its relationship with the private sector, not only by integrating the goals of
security with those of commerce but also by merging public and private resources in distinctive ways.
It’s a bigger internal link than econ
Weiss 14 – Fellow of the Academy of the Social Sciences in Australia, Professor Emeritus in Government
and International Relations at the University of Sydney, Honorary Professor of Political Science at Aarhus
University. (Linda, America Inc.?: Innovation and Enterprise in the National Security State, Cornell
University Press, 4/1/14, p. 1-3)//JJ
Pursuit of defense preparedness, driven by Cold War exigencies and threat perceptions, produced a
national security State much broader and more encompassing than the "defense sector," responsible for
mobilizing the nation's science and technology resources. The technology activism of the national
security state—though of inestimable benefit to the nation's industry and innovation— was not
motivated by economic ambition (industry policy) but by the pressure to sustain American primacy
through technological dominance.
Tech leadership key to economic leadership
Technological innovation and leadership are key to economic leadership
Gallagher 12, Under Secretary of Commerce for Standards and Technology and NIST Director, (Patrick,
Innovation as a Key Driver of Economic Growth & Competitiveness, Remarks at FedScoop's U.S.
Innovation Summit, http://www.nist.gov/director/speeches/innovation-summit.cfm)//AK
I'm going to just give you some final parting thoughts on why we're here, why we're talking about
innovation.
One observation I'll make: there was a Wall Street Journal article that was put out last month that talked
about innovation, and it made a couple of interesting comments. It said if you look at the Securities and
Exchange Commission collection of annual and quarterly reports that are filed with that agency, just last
year, the word "innovation" was mentioned 33,000 times. Now, that's a 64 percent increase over just
five years ago.
If you ask executives whether they have a chief innovation officer, about four in 10 will now say they do.
But what's really interesting is if you talk to them about why do you use the term, a common answer is
"well everybody else does it."
I think one of the reasons that we're talking about innovation is that it is now sexy. This is something
that everyone is excited about.
But I want to back up a little bit and from a very government-centric viewpoint, talk about why we're
talking about innovation. And I'm going to be more specific—we're talking about technological
innovation.
The reason we're focused on it, the reason the President, for me, did this rather startling thing of putting
it at the centerpiece of our economic agenda, is because the truth of the matter is it has been the key
driver to our economy.
Well over half of the economic growth in this country since the end of World War II has been directly
attributable to technological innovation. It accounts for most of the positive difference in per capita
income. It drives almost all of the growth in economic output and productivity. And it's really the key to
competitiveness for almost every company that's there. If you look at how innovative companies are,
you can directly correlate that with how competitive and successful they are.
So in the midst of one of the deepest recessions this country has had since the Great Depression, the
reason we're talking about innovation is because it matters. It drives our economy.
The other problems, or a thought about innovation, is that we tend to talk about innovation in the
context of its moving parts. We talk about research and development, the generation of new ideas,
science, obviously a critical part. We talk about the role of the creative engines of innovation, the
entrepreneurial community, the risk takers, the ones who have that vision and took a chance to make it
happen.
Increasingly, we're talking about manufacturing, the producers, the ones who take those ideas to scale
and generate the products and services in our economy.
It's actually an interesting development, as an aside, that the focus on manufacturing, from my
perspective, was an inevitable consequence —I didn't foresee it coming—but it was an inevitable
consequence of raising innovation as a centerpiece. And one of the reasons for that is that's where a lot
of the innovation takes place.
You cannot escape the fact that the process of developing new technologies and new ideas is deeply
entwined with the struggles of making it. And if you look at where scientists and engineers work in the
private sector, they are mostly embedded in our manufacturing-based industries.
If you look at where patents come from, they're almost all from manufacturing-based industries. If you
look at our balance of trade, a lot of it is being driven by manufacturing. So a lot of the action, where the
participation by the broader public in an innovation economy takes place, is really in the production
side.
And so it is evitable that we were going to be talking about it. It's refreshing. When I first came to
Washington and started my career at NIST 19 years ago, we were not openly talking about
manufacturing. It was not sexy. And so that's a refreshing change that we're talking about.
By the way, manufacturing has changed radically—something that we all have a job to talk about. There
was a report the Commerce Department put out about a week and half ago talking about jobs in the
manufacturing sector. Very interesting.
So there is a salary gap. The manufacturing sector on average earns about 8 percent more in salaries and
wages over service-based industries. What's really interesting if you look at benefits, there's a 59
percent advantage in terms of health care benefits and retirement benefits for those who work in
manufacturing-based companies over services—an enormous difference.
The other interesting thing is manufacturing jobs are becoming high-skill jobs. A couple of years ago, the
fraction of the manufacturing workforce that had a college education or more exceeded those without
for the first time in that sector. And it's grown 43 percent, the fraction of manufacturing workers with
college degrees, 43 percent in the last decade alone. One in three of those jobs— those jobs requiring a
college degree—require STEM education: science, technology, engineering, and math. I think that is
something we need to help explain to the public, because I don't think that transformation that is
happening in this country is well understood.
So we talk about innovation from the moving parts. We talk about talent, R&D capacity, translation,
commercialization, entrepreneurship.
The government role in innovation is largely defined by traditional government roles. It's not that there
is anything new to this. The government has always played a role in a lot of these moving parts. It plays
a clear and obvious role in driving research and development, transformative changes in technology that
are essential to our national security and other critical national needs. Its role in promoting effective
infrastructure, whether that's physical infrastructure or transportation infrastructure, cyber
infrastructure, energy infrastructure. Promoting trade. Nurturing the tax and business environment
that's conducive to the risk taking, the entrepreneurial risk and growth that we want to see happening.
And supporting small businesses. These are all traditional roles, long-term roles.
Tech leadership is key to economic leadership- new tech now key
Ashton 6/29, British technology pioneer who cofounded the Auto-ID Center at the Massachusetts
Institute of Technology (MIT), which created a global standard system for RFID and other sensors. He is
known for inventing the term "the Internet of Things" to describe a system where the Internet is
connected to the physical world via ubiquitous sensors, (Kevin, America last? The man who coined
‘Internet of Things’ says this is the first tech race America might lose.,
http://www.politico.com/agenda/story/2015/06/kevin-ashton-internet-of-things-in-the-us-000102)//AK
Almost all transformative new technologies of the past few decades — nuclear energy, advanced jet
aircraft, integrated circuits, computer networks — rose the same way. They were developed in the
United States and seeded by the federal government, typically through defense spending.
This “weaponize to monetize” model served the U.S. well. In addition to enabling the world’s most
powerful, technologically advanced military, it funded basic research in universities and applied research
in corporations, making technology a substantial component of America’s exports. In 1989, the first year
for which there are data, high tech — meaning products that require intense research and development
— made up a third of U.S. exports, worth $77 billion. The U.S. was the global leader, and it retained its
lead through the boom, bust and boom-again years of the Internet.
Then something changed.
The next major technology revolution after the Internet itself has been the “Internet of Things,” a
ubiquitous ad hoc open network of sensors for information systems, which I helped to conceptualize
and develop (and name) in the late 1990s. Like the Internet or the integrated circuit, the Internet of
Things is really a fundamental infrastructure that enables new technologies and applications, and, like
them, it will transform every part of the global economy.
Early Internet of Things development more or less followed the standard U.S. model. My colleagues and
I, for example, did most of our work at the Massachusetts Institute of Technology with funding from the
Department of Defense, as well as forward-thinking U.S. corporations like Wal-Mart, Procter & Gamble
and Coca-Cola.
But as other governments began competing aggressively in the Internet of Things economy, America
loosened its grip. This was partly because of two wars, which focused the Pentagon on immediate
combat needs, and a recession, which reduced government spending. But there was a bigger problem
lurking behind those emergencies — one that remains today, long after the wars and recession have
ended: The U.S. government doesn’t invest in basic science and visionary technology anymore. Or, to be
more precise, it does not invest like it used to.
Last year, federal investment in research and development sank to 0.69 percent of GDP — a level not
seen since 1958. That year, not coincidentally, was the year President Dwight Eisenhower authorized the
creation of the Advanced Research Projects Agency to, as The New York Times described it at the time,
“explore and develop any novel idea, regardless of whether it seems practical at the beginning.” (It’s
now called DARPA, for Defense Advanced Research Projects Agency.) In 1959, because of ARPA and
similar initiatives, the U.S. government’s R&D spending doubled to more than 1 percent of GDP. In 1962,
the Apollo space program followed. At Apollo’s peak, the U.S. government was investing more than 2
percent of GDP on R&D — over three times today’s amount.
ARPA and Apollo were visionary government programs. There are visionary government programs for
the Internet of Things, too, but they are almost everywhere but the United States — in China, the
European Union, Korea, India and Singapore, for example. Over the past 10 years, heads of government
from all over the world have shared their visions for the Internet of Things. China’s sixth premier, Wen
Jiabao, called it the “Wisdom of the Earth”; India’s Narendra Modi declared it the path to “zero defect,
zero effect” manufacturing; and Britain’s David Cameron described it as “a huge transformative
development … the brink of a new industrial revolution.” As far as I know, neither George W. Bush nor
Barack Obama, the U.S. presidents in power during this period, have ever mentioned it.
And, while they were not mentioning it, some key indicators began swinging away from the U.S. In 2005,
China’s high-tech exports exceeded America’s for the first time. In 2009, just after Wen Jiabao spoke
about the Internet of Things, Germany’s high-tech exports exceeded America’s as well. Today, Germany
produces five times more high tech per capita than the United States. Singapore and Korea’s high-tech
exporters are also far more productive than America’s and, according to the most recent data, are close
to pushing the U.S. down to fifth place in the world’s high-tech economy. And, as the most recent data
are for 2013, that may have happened already.
This decline will surprise many Americans, including many American policymakers and pundits, who
assume U.S. leadership simply transfers from one tech revolution to the next. After all, that next
revolution, the Internet of Things, was born in America, so perhaps it seems natural that America will
lead. Many U.S. commentators spin a myth that America is No. 1 in high tech, then extend it to claims
that Europe is lagging because of excessive government regulation, and hints that Asians are not
innovators and entrepreneurs, but mere imitators with cheap labor. This is jingoistic nonsense that
could not be more wrong. Not only does Germany, a leader of the European Union, lead the U.S. in high
tech, but EU member states fund CERN, the European Organization for Nuclear Research, which
invented the World Wide Web and built the Large Hadron Collider, likely to be a source of several
centuries of high-tech innovation. (U.S. government intervention killed America’s equivalent particle
physics program, the Superconducting Super Collider, in 1993 — an early symptom of declining federal
investment in basic research.)
Asia, the alleged imitator, is anything but. Apple’s iPhone, for example, so often held up as the epitome
of American innovation, looked a lot like a Korean phone, the LG KE850, which was revealed and
released before Apple’s product. Most of the technology in the iPhone was invented in, and is exported
by, Asian countries.
Tech leadership key to economy
Tech industry vital to the entire economy and global stability
Donohue 15 – Professor of Law, Georgetown Law and Director, Center on National Security and the
Law, Georgetown Law (Lauren, HIGH TECHNOLOGY, CONSUMER PRIVACY, AND U.S. NATIONAL
SECURITY, Symposium Articles, 4 Am. U. Bus. L. Rev. 11 p.46-47, 2015, Hein Online)//JJ
C. Establishing Economic Security as National Security
Economic strength as national security, as was previously discussed, is not a new concept. The Founding
itself was premised, in part, on the importance of economic security as being vital to U.S. national
interests. In 1787, the Articles of Confederation were written out of existence in part because of concern
about building a stronger economy to allow the government to fulfill its domestic obligations, and to
reassure the international community that the United States was a viable trading partner.64 Since that
time, the United States has at times had to remind itself of the importance of the economy to U.S.
national interests. We are once again at such a moment.
High technology is a vital part of the U.S. economy . It is a symbolic and actual manifestation of the
country's commitment to innovation in every sphere of life. It plays to the United States' strengths as a
nation . It has the potential to change regimes , to alter political relationships , and to shape the daily
lives of people around the globe. And it deserves special attention. The danger is that U.S. industry will
become less competitive and that the U.S. will lose its dominance in the Internet sphere .
To some extent, we do, structurally, pay some attention to the importance of the economy for U.S.
national security. But many consequential decisions are not aired in full light of the possible implications
for U.S. economic interests. One way Congress could rectify this would be to take a look at how to
integrate economic concerns, as an institutional matter, into the national security infrastructure-and not
just at the highest levels, but at a programmatic level, where key decisions about programs are being
made.
Wrecks the economy and industry reforms alone won’t solve
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
It is abundantly clear that the NSA surveillance programs are currently having a serious, negative impact
on the U.S. economy and threatening the future competitiveness of American technology companies.
Not only are U.S. companies losing overseas sales and getting dropped from contracts with foreign
companies and governments—they are also watching their competitive advantage in fast-growing
industries like cloud computing and webhosting disappear, opening the door for foreign companies who
claim to offer “more secure” alternative products to poach their business. Industry efforts to increase
transparency and accountability as well as concrete steps to promote better security by adopting
encryption and other best practices are positive signs, but U.S. companies cannot solve this problem
alone. “It’s not blowing over,” said Microsoft General Counsel Brad Smith at a recent conference. “In
June of 2014, it is clear it is getting worse, not better .”98 Without meaningful government reform and
better oversight, concerns about the breadth of NSA surveillance could lead to permanent shifts in the
global technology market and do lasting damage to the U.S. economy .
Hegemony impact – China
Maintaining US hegemony is key to counter China rise – causes the world to
descend into great power politics which breed conflict
Roloff 14 – Writer of a thesis submitted to Johns Hopkins University in conformity with the
requirements for∂ the degree of Master of Arts in Global Security Studies. (Luke, “PATTERNS OF
INSTABILITY: THE CAUSES AND CONSEQUENCES OF STRUCTURAL INSECURITY AND POWER POLITICS IN
THE ASIA-PACIFIC SPHERE”, May 2014,
https://jscholarship.library.jhu.edu/bitstream/handle/1774.2/37219/ROLOFF-THESIS2014.pdf?sequence=1//DM)
Since the end of the Cold War, the international environment has been a∂ historical anomaly in which
the traditional strategies and motivations for interstate∂ rivalries and zero-sum power politics were
subdued. As the United States emerged as the∂ world’s sole superpower and hegemon, so too did the
current unipolar system. The era of∂ Pax Americana, coupled with the proclaimed victories of
democracy and liberal market,∂ ushered out a 20th century marred by interstate wars and welcomed a
new millennium∂ heralded as an era of cooperation and collective prosperity. It soon became a
common∂ refrain that peace in the post-Cold War era would be founded upon multinational∂
organizations, international norms, and the linkages of a globalized economy. This was a∂ drastic and
marked departure from the great power politics of alliance blocs, deterrence∂ and arms races that had
dominated mainstream strategic rationale during the Cold War∂ and most of history. Under the new Pax
Americana, these concepts of international∂ power contests were deemed obsolete and understandably
became dormant in a time∂ when the most imminent threats ranged from terrorism and pandemics to
rouge states and∂ rising tides. However, the supposed passing of great power politics was prematurely∂
based upon a benign power distribution and not a fundamental change in the structure of∂ the global
order. The cyclical calculus of power politics is rapidly resurfacing in an∂ increasingly multipolar AsiaPacific Sphere due to the rise of China, the forthcoming∂ response of the United States, and the
insecurity of regional actors.1
Future stability of∂ the Asia-Pacific is contingent upon how the relationship between the U.S. and China
will∂ evolve in a new multipolar environment. History cautions that rising powers and the∂ status quo
rarely enjoy a frictionless relationship, but why does this occur? What are the∂ unstable dynamics of the
international system that plague great power politics with such∂ frequency that some even term it the
‘tragedy’ of great powers? The answer to both∂ questions resides in the very structure of the
international order and the instability∂ inherent therein.
The goal of this thesis is to identify the systemic causes for structural instability,∂ which are again
emerging to drive a new regional power rivalry between the U.S. and∂ China and transform the AsiaPacific into a region governed by power rivalries and∂ brinkmanship. There are no new explanations or
theories offered here. Instead, what is∂ unique is the revival of previously discarded explanations of
world politics to address the∂ remerging symptoms of great power conflicts. The strategic value of a
state’s relative∂ power in comparison to potential rivals may resemble Bismarkian Europe, but the∂
following chapters will show that this thinking has a very real and immediate place in∂ modern strategic
planning. It may seem that this historically grounded analysis is too∂ abstract or notional and cannot
offer much strategic guidance in the current Asia-Pacific.∂ However, by identifying the root causes of
power rivalries and incorporating structural∂ influences into operational doctrine, modern strategies can
benefit by accurately∂ deciphering an adversary’s geopolitical decision and predict the outcome based
upon∂ historical precedence. An understanding of great power politics and history allows for∂ preemptive
actions rather than a reactive posture, which only invites further∂ misunderstandings and escalation. An
analytical framework that asks why China is∂ pursuing a seemingly destabilizing posture or assesses the
impact of the U.S.’s own∂ rebalancing actions can prevent the region from continuing to slide towards a
more ∂ 4∂ hostile, militarized and volatile future. Nowhere is the need for accurate information and∂
sound engagements more critical than in the evolving geopolitical postures between the∂ reigning U.S.
and an emerging China.
This outlook hypothesizes that if current strategies fail to account for the∂ underlying structural
influences driving geopolitical struggles, future Sino-U.S.∂ exchanges will succumb to the same historical
cycle of conflict based upon mutual∂ apprehension, distrust and spiraling insecurity. The specter of
China as a prospective∂ regional challenger against American power rekindles the possibility that great
power∂ rivalries will soon preoccupy both sides’ interactions and jeopardize the stability of the∂ region.
This trajectory is incumbent upon China’s expanding military prowess and∂ economic clout, which
threatens to upset the current regional status quo underwritten by∂ American preponderance in the
region. China’s growing capabilities suggest that the∂ region will be soon become a tense bipolar or
even more treacherous and unbalanced∂ multipolar structure.
The prospect of competing powers and a structural shift away from a clear∂ hegemonic power will drive
the calculated cycle of power politics, which manifests itself∂ in the international arena as security
dilemmas, entangling alliances and militarization.∂ However, China’s military growth is not the result of
tyrannical or irrational opponents.∂ This instability is the consequence of the present international
structure. The global∂ commons is still an anarchic environment where each nation must ensure its own∂
survival. Consequently, state strategies are driven by an intrinsic insecurity stemming∂ from
misperceptions of other state’s intentions and relative military capabilities. China’s∂ rise is an ongoing
issue, but the underlying tensions are symptomatic of enduring ∂ 5∂ geopolitical sensitivities that have
long fueled national fears, thwarted peace, and bred∂ conflict.
To demonstrate how structural instability within the global system subsists in∂ emerging strategies and
force postures, the following chapters will present three∂ overarching ‘hazards’ that are commonly
associated with great power politics and∂ regional instability: security dilemmas, balance of power
dynamics and an overreliance∂ upon economic interdependence. Each chapter will identify how the
hazard can∂ negatively influence state strategies and each chapter follows a similar pattern of∂ analysis.
First, a brief, but comprehensive, literature review explains the definition of∂ each hazard, traces the
theoretic lineage and outlines the current scholarship. Second, a∂ historical case study with similar
characteristics to today’s operating environment will∂ demonstrate how each of these elements
contributed to and intensified past power∂ rivalries. Third, the lessons from the case study will be
juxtaposed against current∂ strategies or regional posturing in the modern Pacific to demonstrate how
these structural∂ hazards are increasingly weighing upon today’s strategic calculus.
A US-China confrontation will escalate
Roloff 14 – Writer of a thesis submitted to Johns Hopkins University in conformity with the
requirements for∂ the degree of Master of Arts in Global Security Studies. (Luke, “PATTERNS OF
INSTABILITY: THE CAUSES AND CONSEQUENCES OF STRUCTURAL INSECURITY AND POWER POLITICS IN
THE ASIA-PACIFIC SPHERE”, May 2014,
https://jscholarship.library.jhu.edu/bitstream/handle/1774.2/37219/ROLOFF-THESIS2014.pdf?sequence=1//DM)
The existence and possible consequences of a Sino-American security dilemma∂ will be discussed in the
context of both China and the United States’ nascent operational∂ strategies: China’s anti-access/areadenial (A2/AD) doctrine and the United States’ Joint∂ Operational Access Concept (JOAC). I argue that
neither strategy will effectively ∂ dissuade opposing forces and instead inflame an escalating security
dilemma between the∂ two principal powers of the 21st century. Both strategies seek to gain
operational control∂ of the western Pacific. China’s maturing A2/AD strategy seeks to bypass
conventional∂ balancing metrics and instead relies upon specific technology and regional advantages to∂
create an operating environment that is too dangerous to risk United States’ forces. In∂ response, the
United States’ JOAC mandates assured access in A2/AD environments will∂ be a key operational
requirement for future military plans and force posture. Previous∂ security dilemmas have occurred due
to the insecurity inherent within an anarchic∂ international order in which the security preparations of
one state will inevitable create∂ insecurity within surrounding states. Often historical security dilemmas
manifest themselves as arms races, competing coalitions, or even outright war . If further∂
implemented, China’s A2/AD and the United States’ JOAC will generate an atmosphere∂ ripe for the
development of regional arms races and military tensions within the guise of∂ a larger Sino-American
security dilemma.
I maintain that the operational characteristics of A2/AD and JOAC are indicative∂ of a classical security
dilemma due to three inherent conditions shared by both strategies:∂ the primacy of preemptive
offensive strikes, misperceptions surrounding new A2/AD∂ weapon technology and finally, the
uncertainty created by a lack of discernable∂ information about China’s ultimate strategic goals in the
Pacific. There is no standard∂ list of ingredients for security dilemmas but preemption, misperception,
and uncertainty∂ were chosen because of the frequency these factors appeared in security dilemma∂
literature. These three accelerants combine to create chronic insecurity that is∂ reminiscent of past
security dilemmas and only serve to foster an operational ∂ environment that impedes future stability.
To demonstrate the emerging structural∂ instability within the Asia-Pacific, this chapter will utilize a
historical case study method∂ that compares how preemption, misperception and uncertainty drove the
Cold War-era∂ security dilemma between the Soviet Union and the United States to analogous patterns∂
emerging in the Sino-U.S. relationship. To demonstrate the structural instability of∂ preemptive attack, I
will compare the Cold War’s first strike nuclear doctrine and the∂ offensive long-range first-strike that
are favored in both Chinese and United States∂ strategic literature. For examining how misperceptions of
military capabilities and∂ technology exacerbate regional insecurity, I will compare the paranoia
surrounding early∂ Soviet intercontinental ballistic missiles (ICBMs) to the nascent fear surrounding
China’s∂ anti-ship ballistic missile (ASBM). Finally, I will liken the misperception surrounding∂ Soviet grand
intentions and the ensuing strategic uncertainty with a similar lack of∂ understanding and information
when attempting to decipher China’s long-term strategic∂ goals.
Multipolarity increases conflict
Multipolarity is bad – insecurities cause security dilemmas, proliferation, and
escalatory measures
Roloff 14 – Writer of a thesis submitted to Johns Hopkins University in conformity with the
requirements for∂ the degree of Master of Arts in Global Security Studies. (Luke, “PATTERNS OF
INSTABILITY: THE CAUSES AND CONSEQUENCES OF STRUCTURAL INSECURITY AND POWER POLITICS IN
THE ASIA-PACIFIC SPHERE”, May 2014,
https://jscholarship.library.jhu.edu/bitstream/handle/1774.2/37219/ROLOFF-THESIS2014.pdf?sequence=1//DM)
The security dilemma concept is a theoretical foundation in realist school∂ interpretations of security
problems and especially relevant within the defense realism∂ and offense-defense realist subsets. A
realist interpretation of the world maintains that∂ anarchy, or the lack of any overarching authority to
protect individual states, defines the∂ international order. Therefore, as noted realist scholar John
Mearsheimer predicts, there∂ are certain “bedrock assumptions” that exist in an anarchic international
system. 7∂ Some∂ of Mearsheimer expectations are: states will develop offensive military capabilities;
states∂ are never sure of another actor’s intention; and every state is a rational actor that seeks to∂
survive in such a Hobbesian atmosphere.8
Professor Shiping Tang, in his work The Security Dilemma: A Conceptual∂ Analysis, builds upon
Mearsheimer’s ‘bedrock’ and constructs a theoretical roadmap∂ demonstrating the causal linkages,
which explicate how an anarchic world order leads to∂ security dilemmas and conflict . Tang shares
many of Mearsheimer’s assumptions and∂ draws connections between the self-help anarchic structure
that creates a high level of∂ “uncertainty about each other intentions and fear, states resort to the
accumulation of∂ power and capabilities as a means of defense, and these capabilities inevitably
contain∂ some offensive capabilities”.9∂ This uncertainty and resulting armament generate the∂ security
dilemma, whereas stated, other states begin to arm themselves in response. Tang∂ believes that this
cycle of “actions and reactions” when mixed with national psychologies∂ and material estimations,
entrenches each state into a self-propelled pattern of heightened∂ tensions and escalatory measuresoften referred to as a security spiral.∂ 10 The unfortunate∂ outcome being that the security dilemma
often results in war, deteriorating relations, or∂ arms races. According to the security dilemma, this
creates a self-defeating paradox∂ because a state’s attempts for increased security will regularly result
in a less stable and∂ increasingly hostile environment.
*Multipolarity is uniquely bad in the context of our internal link
Teitelbaum 7 – Senior Research Associate at the Labor and Worklife Program at Harvard
Law School, former Vice President of the Alfred P. Sloan Foundation, former
Commissioner to the U.S. Commission for the Study of International Migration and
Cooperative Economic Development (Michael, Perspectives on U.S. Competitiveness in
Science and Technology, RAND Corporation, p.87-88)//JJ
Implications for National Security
Loss of dominance in the supply of scientific and engineering talent and in high-tech production has
three implications for U.S. national security:
Proposition 4: Foreign countries and groups will have potentially ample supplies of S&E workers for
developing high-tech sectors that may be critical for national security. As the number of scientists and
engineers working in foreign countries continues to increase, the United States’ comparative advantage
in generating scientific and engineering knowledge and in the high-tech sectors and products associated
with that knowledge will decline. Increased numbers of scientists and engineers will stimulate the rate
of technological advance , expand- ing the global production possibility frontier, and benefiting people
worldwide. But the United States will also face economic difficulties as its technological superiority
erodes . The group facing the biggest danger from the loss of America’s technological edge is workers
whose living standards depend critically on America’s technological superiority. The big winners from
the spread of technology will be workers in developing countries and the firms that employ them,
including many U.S. multinational corporations. In the long term, the spread of knowledge and
technology around the world will almost certainly outweigh the loss of U.S. hegemony in science and
technology, but the transition period is likely to be lengthy and difficult —more formidable than that
associated with the recovery of Europe and Japan after World War II. In national security, however, the
risks to the United States—in the form of more countries with potentially competitive technologies in
the military area or more groups with access to possibly dangerous technologies —may
outweigh
any gains from a more multipolar world in which other leading countries could take on
greater responsibilities. The increased supply of S&E specialists overseas and accompanying economic
and technological competence will give foreign countries that seek to compete in high-tech military
areas the potential resources to do so.
Surveillance kills cloud computing
U.S. surveillance pushing cloud computing to the brink –
Rubinstein and Hoboken 14 – *Senior Fellow at the Information Law Institute (ILI) and NYU School of
Law, AND **Microsoft Research Fellow in the Information Law Institute at New York University, PhD
from the University of Amsterdam (Ira and Joris Van, PRIVACY AND SECURITY IN THE CLOUD: SOME
REALISM ABOUT TECHNICAL SOLUTIONS TO TRANSNATIONAL SURVEILLANCE IN THE POST- SNOWDEN
ERA, 66 Maine L. Rev. 488, September 2014, http://ssrn.com/abstract=2443604)//JJ
A. Transnational Surveillance
Transnational surveillance of data in the cloud presents complex scenarios that are currently not
handled in any satisfactory way by existing legal or technical mechanisms. Of particular complexity is the
question of whether and how globally operating services can ensure that the data of an individual or
organization in ‘country T’ (the targeted country) can be secured from disproportionate access by a
government agency in ‘country A’ (the accessing country). In practice, many scenarios are even more
complex, given there may be agencies in multiple countries seeking access to data of a particular
organization, data that could be stored and transmitted across multiple international locations.
It is well established that lawful access frameworks in different jurisdictions permit—to varying
extents—transnational access to cloud data.5 transnational surveillance by foreign governments to
access international data outside the terms of Mutual Legal Assistance Treaties is generally considered
problematic from a legal perspective.6 with a particular reference to the USA PATRIOT Act and other
U.S. lawful access authorities with possible extraterritorial effect.7 the extraterritorial application of
such laws is not necessarily unique to the U.S.; rather, the U.S. occupies a unique position due to the
global strength of U.S. cloud services.
The question of transnational surveillance is of special interest for a number of reasons. First, it is likely
that individuals, businesses, and organizations want to minimize foreign government access to their
data.9 that certain States may impose legal requirements on cloud services aimed at preventing such
access from taking place. Examples of this include discussions about “localization ” (i.e., requiring that
services locate their operations inside the country where the service is offered and/or provide local
storage of data) in Europe and Brazil, and the debate about the revision of the European data protection
framework.10 Third, fundamental questions remain and are the subject of official review, such as
through the President’s Review Group,11 as to the appropriate standards and related safeguards for
lawful access to data of foreign organizations and individuals.12 Finally, it seems likely that cross border
markets and flows of data will continue to grow and intensify in light of the technology and market
dynamics underlying cloud computing services. Thus, the challenges for the cloud industry facing these
unresolved issues of transnational cloud surveillance are substantial.
B. A Cloud Industry Under Threat
If anything, the Snowden leaks clearly illustrate that global cloud service providers are facing a new
class of threats from intelligence agencies across the world. The revelations are many and diverse in
nature. This Article proposes that, from the perspective of the cloud industry, the threats can be
generally distinguished in terms of front-door versus backdoor access to data and communications
handled by cloud providers. Revelations of front-door access in the U.S. context include PRISM and the
widely discussed telephone metadata program.13 The PRISM program is conducted on the basis of
Section 702 of the FISA Amendments Act 2008 (FAA), under which the U.S. intelligence community has
successfully gained access to data from U.S. cloud services related to non-U.S. persons reasonably
believed to be outside the U.S.14 Under this program, the NSA gains access by demanding cloud and
communication service providers hand over customer information and content , requiring annual
certification , and with targeting and minimization procedures reviewed by the Foreign Intelligence
Surveillance Court.15 What is most striking about these programs is the structural basis and scale on
which access takes place. In addition, many have raised doubts about the statutory and constitutional
basis of these programs under U.S., international, as well as foreign law.16 Observers and stakeholders
from outside of the United States are especially troubled by the fact that Section 702 would clearly
violate the Fourth Amendment if it were designed to intercept the communications of U.S. persons.17
Even more worrying from an industry perspective is that intelligence agencies have begun to gain
backdoor access to the data handled by cloud providers. Backdoor access dispenses with serving orders
on cloud providers or otherwise notifying them or seeking their cooperation.18 Reports about a variety
of U.S. and British programs show how the intelligence community has systematically sought such
backdoor access to data outside of the knowledge of cloud providers . For example, a program known
as MUSCULAR apparently enables the NSA to intercept the unencrypted data traffic between cloud
provider data centers.19 Similarly, the UPSTREAM program, details of which were revealed in
combination with the revelations about PRISM, showed that the NSA was gaining sweeping access to
Internet communications through the targeting of the telecommunications infrastructure.20
Additionally, the BULLRUN program showed how the NSA had systematically undermined encryption
and security in available commercial systems through a variety of covert methods.21 These methods
include the undermining of encryption standards, the covert influence of software design, and the
pressuring of industry and firms to hand over encryption keys, thereby allowing for circumvention of
security measures more generally.22 Leaked documents suggest that these programs are conducted
pursuant to Section 702 of the FAA as well as Executive Order 12333 .23 The latter sets guidelines for
intelligence activities including foreign intelligence gathering conducted abroad, but does not involve
any judicial or congressional oversight.24
C. The Cloud Industry Responds While Being Caught in the Middle As discussed in more detail later in
this Article, the revelations involving backdoor access have led to the strongest industry response. Most
fundamentally, backdoor access programs have forced cloud providers to rethink their relationship with
(their own and foreign) governments and to take steps designed to prevent intelligence agencies from
gaining unauthorized access to their systems.25 In other words, when cloud providers implement
security measures against unauthorized access, they are forced to consider intelligence agencies as just
another third-party adversary whose access they must block.26 The main difference is one of resources
and skills: as compared with any other adversary, intelligence agencies have world- class technology and
expertise and seemingly unlimited budgets. Furthermore, cooperation among allied agencies with
similar capabilities acts as a force multiplier, as is the case with the “Five Eyes,” consisting of the U.S.,
the U.K., Canada, Australia, and New Zealand.27
The international political response to the revelations of large scale transnational surveillance has been
significant.28 Foreign governments, such as Germany and Brazil, have not only sought clarifications from
the U.S. but have also started to propose regulatory measures designed to counter it.29 In the EU- U.S.
context, the revelations have complicated ongoing trade negotiations ,30 imperiled the Safe Harbor
Program ,31 and emboldened the European Parliament to adopt poison pill amendments to the
proposed EU data protection regulation.32 In the broader international context, Brazil has been
particularly vocal about its objections to U.S. spying and, with Germany, sponsored a new United
Nations resolution requiring a report on the protection and promotion of privacy “in the context of
domestic and extraterritorial surveillance . . . including on a mass scale. 33 Moreover, the U.S. now faces
significantly more opposition to its historically dominant position in Internet governance. 34
In addition, market conditions for U.S. cloud providers have deteriorated as a result of new doubts
about the security and privacy of cloud data. The revelations have also dealt a significant blow to the
reputation of major Internet industry players, which have seen their brands implicated in the reporting
about NSA spying programs.35 Cloud customers expect providers to reassure them that their data is
safe and that firms are taking active steps to respond to these new threats. The U.S. cloud industry not
only feels besieged by government agencies seeking access to their systems left and right, but rightly
worries that its overseas revenues will dry up due to customer mistrust or new restrictions on market
entry.36 Although the increased emphasis on localization rules and requirements in foreign jurisdictions
may smack of protectionism and local government surveillance demands,37 it further complicates the
geopolitical situation facing the U.S. industry.
US surveillance has negative effects on the international and domestic cloud
computing
Gasser and O’Brien, 14 – * Executive Director at the Berkman Center for Internet and Society at
Harvard University AND ** J.D. in economics (Urs and David, “Governments and Cloud Computing:
Roles, Approaches, and Policy Considerations”, 17 March 2014, Berkman Center Research Publication
No. 2014-6.,http://ssrn.com/abstract=2410270)//gg
Perhaps even more than in other areas of ICT, many governments play multiple roles simultaneously in
the evolving cloud computing ecosystem. Such a multi-role approach can come with great synergies. For
instance, the approach taken by the European Commission to encourage government adoption of the
cloud and boost the industry is a situation where the objectives of the government as a user and as a
promoter are well aligned. However, as in other domains of society and life, governments might face
actual or potential role conflicts when exercising roles corresponding to two or more statues.
Based on the map of roles provided in the previous section, one can identify a number of potential role
conflicts. For instance, conflicts might arise between regulatory compliance (government as regulator)
for agencies conflicts with cloud-first strategy (government as user). And there might be tension areas
between the roles as regulator and promotional activities for industry. The lack of protective legislation
(e.g., security and privacy issues), for example, might discourage private sector adoption both
domestically and internationally. Conversely, regulatory burdens – for instance in sensitive areas such as
health care of the financial industry – may be greater in the cloud and discourages adoption in the
private sector.
A case in point of an actual role conflict along these lines are the recent revelations of the US National
Security Agency’s PRISM plan and its abilities to easily gain access to information being stored at
technology companies. cxlii Analysts and industry executives expect that the surveillance program by
the US government might have substantial negative effects on cloud adoption, both domestically and
internationally .cxliii Public clouds in particular will be met with increased skepticism, according to these
observers, creating an actual conflict between the US government’s efforts to promote cloud technology
(government as promoter) and its national security programs (government as regulator). Decisions by
local data protection authorities in Canada and Europe, which prohibit or discourage domestic or
regional government plans to migrate data to the cloud or use US cloud services , are examples of the
possible consequences of such conflicts.cxliv Already government officials in these countries are
discussing these as possible reactions to this program.
While some of these role conflicts might be hard or impossible to avoid, it is interesting to observe that
discussion about the potential of any role conflicts has not yet received much public attention in policy
circles, not even in countries with advanced cloud strategies such as the US, Europe, or Japan.
Cloud computing key to SSA
Cloud-computing solves effective Space Situational Awareness
Liu et al 14 – Research Assistant at The Research Foundation for SUNY (Bingwei, Yu Chen – Associate
Professor at the Department of Mathematics at New York University, Dan Shen and Genshee Chen –
Infusion Technology Inc., Khanh Pharm and Erik Blasch and Bruce Rubin – Air Force Research Lab, An
adaptive process-based cloud infrastructure for space situational awareness applications, SPIE Digital
Library, 6/3/14, http://proceedings.spiedigitallibrary.org/proceeding.aspx?articleid=1879782)//JJ
*can’t access full-text, that will be much better
Space situational awareness (SSA) and defense space control capabilities are top priorities for groups
that own or operate man-made spacecraft. Also, with the growing amount of space debris, there is an
increase in demand for contextual understanding that necessitates the capability of collecting and
processing a vast amount sensor data. Cloud computing , which features scalable and flexible storage
and computing services, has been recognized as an ideal candidate that can meet the large data
contextual challenges as needed by SSA . Cloud computing consists of physical service providers and
middleware virtual machines together with infrastructure , platform , and software as service (IaaS,
PaaS, SaaS) models. However, the typical Virtual Machine (VM) abstraction is on a per operating systems
basis, which is at too low-level and limits the flexibility of a mission application architecture. In
responding to this technical challenge, a novel adaptive process based cloud infrastructure for SSA
applications is proposed in this paper. In addition, the details for the design rationale and a prototype is
further examined. The SSA Cloud (SSAC) conceptual capability will potentially support space situation
monitoring and tracking , object identification , and threat assessment . Lastly, the benefits of a more
granular and flexible cloud computing resources allocation are illustrated for data processing and
implementation considerations within a representative SSA system environment. We show that the
container-based virtualization performs better than hypervisor-based virtualization technology in an SSA
scenario.
Cloud computing is vital to SSA and stopping space debris
Johnston et al 13 – Ph.D. with the Computational Engineering and Design Group (CED) at the University
of Southampton, MEng degree in Software Engineering from the School of Electronics and Computer
Science, Senior Research Fellow for the Faculty of Engineering and the Environment at University of
Southampton (Steven, Neil O’Brien – Senior Technical Recruiter at Colloco Search, Hugh Lewis –
Astronautics Research Group at the University of Southampton, PhD, Elizabeth Hart – School of
Engineering Science at Southampton University, Adam White – School of Engineering Science at
Southampton University, Simon Cox – professor of Computational Methods and Director of the
Microsoft Institute for High Performance Computing, PhD, Clouds in Space: Scientific Computing using
Windows Azure, Journal of Cloud Computing, 2013,
http://www.journalofcloudcomputing.com/content/pdf/2192-113X-2-2.pdf)//JJ
The space surveillance and tracking segment of ESA’s space situational awareness ( SSA ) system will
provide vital security for space assets due to the increased awareness of the risks posed by space
debris . The requirements of the SSA system will grow as the population of space objects — and the
threat they pose — increases into the future . In this work, we have shown the relevance of a cloudbased architecture to SSA. In particular, the cloud-based architecture is able to manage unpredictable
computational demands , in response to a break-up event, in addition to the predictable requirements
associated with the regular processing of a space object catalogue. The solution can grow to include
more physical computational and storage resources, thereby scaling with the demands of a catalogue of
space objects which is rapidly increasing in size due both to conjunctions which introduce new debris,
and the introduction of new measurement hardware which can provide information on increasingly
smaller debris.
The cloud-based solution provides additional advantages, including the ability to share data with
trusted partners simply, rapidly and securely . The partners, at their option, could then fund additional
compute resources located close to the data to perform further analysis. The data marketplace provided
by Windows Azure is also potentially advantageous, in that it extends the concept of readily and
securely sharing data to include the option for the data owner to monetise the data set, the income
from which could fund additional analysis, for example.
Further, we have illustrated the applicability of the cloud-based architecture to the development of
algorithms that support the long-term sustainable use of outer space . The modular architecture
pattern that a cloud- based solution promotes is ideal for this purpose, since a new algorithm could be
implemented as a new worker type, and could be run in parallel with existing algorithms on the same
data. The computer resources required to try out a novel algorithm and compare its results to those
from an established code could be rented just for the time that they are required, making this an
economical way to proceed .
In conclusion, not only have we shown how a cloud- based architecture using Microsoft Windows Azure
can be successfully applied to an active debris removal mission design task, we have also developed a
modular architecture which will be used in the future to support other SSA activities. The modular,
cloud-based nature of this solution gives it some unique advantages over alternative architectures due
to the rapid availability of huge computational and data storage resources ; due to the simplicity that
it brings to securely sharing raw or processed data; and due to the ease with which it facilitates the
side-by-side comparison of alternative algorithms.
Space debris impact – nuclear war
Debris and satellite collisions deck readiness and missile-response capabilities –
nuclear war
Imburgia 11 – B.S. United States Air Force Academy, J.D. University of Tennessee College of Law, LL.M.
The Judge Advocate General’s Legal Center & School, Judge Advocate in the United States Air Force,
legal exchange officer to the Directorate of Operations and International Law (Joseph, Space Debris and
Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk,
Volume 44 of Vanderbilt Journal Transnational Law, p. 608-610, 2011,
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Imburgia-FINAL-CR-pdf.pdf)//JJ
These gloomy prognostications about the threats to our space environment should be troubling to
Americans. The United States relies on the unhindered use of outer space for national security.
According to a space commission led by former Secretary of Defense Donald Rumsfeld, “[t]he [United
States] is more dependent on space than any other nation.” According to Robert G. Joseph, former
Undersecretary for Arms Control and International Security at the State Department, “space capabilities
are vital to our national security and to our economic well-being.” Therefore, a catastrophic collision
between space debris and the satellites on which that national security so heavily depends poses a
very real and current threat to the national security interests of the United States. Since “the [1991]
Gulf War, the [United States] military has depended on satellites for communications , intelligence
and navigation for its troops and precision-guided weapons.” Satellites are also used for
reconnaissance and surveillance, command and control, and control of Unmanned Aerial Vehicles.
According to the United States Space Command’s Fact Sheet: Satellites provide essential in-theater
secure communications, weather and navigational data for ground, air and fleet operations and threat
warning . Ground-based radar and Defense Support Program satellites monitor ballistic missile
launches around the world to guard against a surprise missile attack on North America. Space
surveillance radars provide vital information on the location of satellites and space debris for the nation
and the world. Maintaining space superiority is an emerging capability required to protect our space
assets. With the modern speed of warfare, it has become difficult to fight conflicts without the timely
intelligence and information that space assets provide. Space-based assets and space-controlled assets
have created among U.S. military commanders “a nearly insatiable desire for live video surveillance,
especially as provided from remotely piloted vehicles like the Predator and now the Reaper.” Moreover,
military forces have become so dependent on satellite communications and targeting capabilities that
the loss of such a satellite would “ badly damage their ability to respond to a military emergency .” In
fact, the May 2008 malfunction of a communications satellite demonstrates the fragile nature of the
satellite communications system. The temporary loss of a single satellite “effectively pulled the plug on
what executives said could [have been] as much as 90 percent of the paging network in the United
States.” Although this country’s paging network is perhaps not vital to its national security, the incident
demonstrates the possible national security risks created by the simultaneous loss of multiple satellites
due to space debris collisions.
Satellites solve nuclear war
Kallberg 12 – PhD, is a Swedish-American lawyer, political scientist, and opinion writer, MA in political
science from the University of Texas (Jan, Designer Satellite Collisions from Covert Cyber War, Strategic
Studies Quarterly, Spring 2012, http://www.au.af.mil/au/ssq/2012/spring/kallberg.pdf)//JJ
Network-centric warfare is dependent on the global information grid for joint war-fighting capabilities.
The pivotal layer creating global war-fighting capability is the space backbone of the information grid
where space as- sets are the decisive element. The United States depends on space-borne capabilities
for success, and US national security relies today on a limited number of heavily used satellites . These
satellites are crucial for strategic deterrence , surveillance, intelligence gathering, and military
communications . If strategic deterrence fails, the satellites become an integral part of offensive and
defensive ballistic missile defense . Satellites are pivotal not only for American space superiority but
also for information superiority—the engine in the multichannel joint war-fighting machinery that has
proven to be successful in recent conflicts. American forces can fight globally be- cause of access to
satellite-supported C4ISR. Potential adversaries of all sizes and intentions understand that American
military might is closely linked to the capabilities of US space assets. James Finch and Shawn Steene of
the Office of the Undersecretary of Defense for Policy express this unique link between space assets and
national security well: Although other states increasingly utilize space for economic and military
purposes, the United States is by far the most reliant on space systems due to its global responsibilities
and high-technology approach to warfare that heavily leverages space systems for communication,
navigation, and intelligence, surveillance, and reconnaissance. This asymmetry creates an imbalance;
the more a nation relies on space systems, the more tempted a potential adversary is to target those
systems. 4 Since the fall of the Soviet Union, US space superiority has not been extensively challenged,
and we have seen two decades of US space supremacy. At- tacks against US satellites have been a
concern since the 1970s, 5 with a focus on signal jamming, laser beams from the earth, 6 and direct
kinetic antisatellite (ASAT) missile attacks. William J. Lynn III, former US deputy secretary of defense,
stated in the summer of 2011, “The willingness of states to interfere with satellites in orbit has serious
implications for our national security. Space systems enable our modern way of war. They allow our
warfighters to strike with precision, to navigate with accuracy, to communicate with certainty, and to
see the battlefield with clarity. Without them, many of our most important military advantages
evaporate .” 7 Lynn’s comments are to a high degree drawn from the National Security Space Strategy
of January 2011. That strategy states that space is becoming congested, contested, and competitive. It
clearly outlines the importance of protecting US space-borne capabilities: The National Security Space
Strategy draws upon all elements of national power and requires active US leadership in space. The
United States will pursue a set of interrelated strategic approaches to meet our national security space
objectives: Promote responsible, peaceful, and safe use of space; provide improved US space
capabilities; partner with responsible nations, international organizations, and commercial firms;
prevent and deter aggression against space infrastructure that supports US national security; and
prepare to defeat attacks and to operate in a degraded environment.
Space debris impact – terrorism
Debris collisions decks terror response capabilities
Imburgia 11 – B.S. United States Air Force Academy, J.D. University of Tennessee College of Law, LL.M.
The Judge Advocate General’s Legal Center & School, Judge Advocate in the United States Air Force,
legal exchange officer to the Directorate of Operations and International Law (Joseph, Space Debris and
Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk,
Volume 44 of Vanderbilt Journal Transnational Law, p. 608-610, 2011,
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Imburgia-FINAL-CR-pdf.pdf)//JJ
Simply put, the United States depends on space- based assets for national security, and those assets are
vulnerable to space debris collisions. As Massachusetts Democratic Congressman Edward Markey
stated, “American satellites are the soft underbelly of our national security.” The Rumsfeld Commission
set the groundwork for such a conclusion in 2001, when it discussed the vulnerability of U.S. spacebased assets and warned of the Space Pearl Harbor. Congress also recognized this vulnerability in June
2006, when it held hearings concerning space and its import to U.S. national power and security. In his
June 2006 Congressional Statement, Lieutenant General C. Robert Kehler, then the Deputy Commander,
United States Strategic Command, stated that “space capabilities are inextricably woven into the fabric
of American security.” He added that these space capabilities are “vital to our daily efforts throughout
the world in all aspects of modern warfare” and discussed how integral space capabilities are to
“ defeating terrorist threats , defending the homeland in depth, shaping the choices of countries at
strategic crossroads and preventing hostile states and actors from acquiring or using WMD .”
Space debris impact – NASA budget
Collisions deck NASA’s budget
Imburgia 11 – B.S. United States Air Force Academy, J.D. University of Tennessee College of Law, LL.M.
The Judge Advocate General’s Legal Center & School, Judge Advocate in the United States Air Force,
legal exchange officer to the Directorate of Operations and International Law (Joseph, Space Debris and
Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk,
Volume 44 of Vanderbilt Journal Transnational Law, p. 608-610, 2011,
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Imburgia-FINAL-CR-pdf.pdf)//JJ
Because so much of the United States’ security depends on satellites, these integral space-based
capabilities would, therefore, be costly to lose. That loss would be felt in more than just the security
arena. Due to the steep price tags attached to some of the national space security platforms, the
economic loss of a satellite due to space debris would also be significant. For example, a pair of new
Global Positioning Satellites (GPS), which provides valuable targeting and battle space awareness to
military commanders, costs $1.5 billion . Accordingly, if a piece of space debris destroys one of these
satellites , $750 million could be lost instantly . Additionally, NASA invests billions of dollars annually
in space assets . Congress provided NASA with $18.3 billion to spend on space utilization and
exploration for fiscal year 2010, and it provided $17.7 billion for fiscal year 2011. Air Force General
(retired) Ronald E. Keys, former Commander of Air Combat Command, summed it up best, stating that a
great deal “rides on space-borne satellites .” Because these space capabilities are so costly yet so vital
to the United States’ national security and economic well-being, the preservation of these space
capabilities should also be vital.
Yes debris
ISS just avoided asteroid but threats are looming- won’t be lucky twice
Fessenden 14, space debris analyst and writer for The Smithsonian, (Marissa, 11/6/14, The
International Space Station Just Avoided a Collision With Space Junk, Smithsonian,
http://www.smithsonianmag.com/smart-news/international-space-station-just-avoided-gravitydisaster-180953265/?no-ist)//AK
Space debris in orbit pose a serious threat: A fleck of paint can travel nearly 17,900 miles per hour and
cause major damage if it slams into a satellite. In Alfonso Cuarón’s Gravity, this threat blooms to its most
extreme in a cascade of collisions between satellites that eventually wipes out even the International
Space Station.
Although the nitpicking on that film’s science made clear that satellites orbit at different altitudes and
couldn’t all be taken out at the same time, collision threats are real.
In fact, the International Space Station just had to do an emergency maneuver to dodge a hand-sized
chunk of the Russian Cosmos-2251 satellite on October 27, reports the European Space Agency.
Fortunately, the agency’s unmanned Georges Lemaître Automated Transfer Vehicle — which ferries
supplies to the station from earth — was docked to the ISS. It fired its thrusters for four minutes to raise
the 463-ton space station by one kilometer and out of the space junk’s path.
The errant satellite piece is one of the remnants from a 2009 collision between the then-deactivated
Russian Cosmos-2251 and a U.S. Iridium satellite. While several entities track space debris in order to
prevent collisions (most satellites can move out of the way) making accurate predictions are tough.
“The main problem here is the data quality for the data representing the satellites locations,” Bob Hall,
Technical Director of Analytical Graphics, Inc., told Universe Today in 2009. That company analyses
potential collisions every day, but uncertainty riddles these calculations. That fateful 2009 collision
wasn’t even in the top-10 collisions predicted for that day.
"While many collision threats are spotted at least days before impact," writes Elizabeth Howell for
Universe Today, "occasionally ground networks aren’t able to see a piece until 24 hours or less before
the potential impact." The Cosmos shard was spotted just six hours before it would pass within 2.5 miles
of the ISS’s position.
The space junk cascade phenomenon is named Kessler Syndrome after the man who discovered it could
happen, explains Corrinne Burns, writing for The Guardian. Donald Kessler, an astrophysicist who
worked for NASA, first applied his calculations about meteorite collisions to satellites in 1978. "The
results of those calculations surprised me – I didn't realize it could be that bad," he told The Guardian in
2013. "But it's building up as I expected. The cascade is happening right now – the Kosmos-Iridum
collision was the start of the process. It has already begun." (Kosmos or Cosmos spellings are used by
different publications.) Burns writes:
Kessler syndrome isn't an acute phenomenon, as depicted in [Gravity] – it's a slow, decades-long
process. "It'll happen throughout the next 100 years – we have time to deal with it," Kessler says. "The
time between collisions will become shorter – it's around 10 years at the moment. In 20 years' time, the
time between collisions could be reduced to five years."
The increasing risk of collision has prompted the ESA to sign an agreement with the U.S. Strategic
Command in order to communicate more and reduce the collision threat, reports the space news site
Sen. The European Space Agency typically has to "preform four to six debris avoidances each year, and
this number has been increasing," Jenny Winder writes. The CryoSat-2 satellite — which measures the
thickness of polar ice sheets — had to avoid a fragment of Cosmos-2251 on October 7.
This recent maneuver wasn’t the first time the ISS had to deal with the remains of the 2009 collision, or
other space debris, but it was remarkable because it was executed within a fairly short time window.
Space debris risks massive collisions with satellites and aircrafts now
Science Daily 5/6, frontier news source for topical science articles, (5/6/15, University of
Southampton, Space debris from satellite explosion increases collision risk for space
craft, Science Daily,
http://www.sciencedaily.com/releases/2015/05/150506084549.htm)//AK
On 3 February 2015, the DMSP F13 satellite exploded in orbit producing over an estimated 100 pieces of
space debris that were detected using radar. In assessing how debris created by the explosion might
affect their spacecraft, the European Space Agency and other satellite operators concluded that it would
pose little risk to their missions.
However, scientists from the Astronautics Research Group at the University of Southampton
investigated the risks to a wide range of space missions, coming from smaller pieces of debris created by
the explosion that cannot be detected using radar based on the ground.
In the case of the explosion of DMSP-F13, they detected 100 new catalogued objects, which suggest that
more than 50,000 small fragments larger than 1mm were created.
PhD student Francesca Letizia, who led the research under the supervision of Dr Camilla Colombo and Dr
Hugh Lewis, says: "The fragments from the explosion spread around the Earth forming a band, which
can be crossed by spacecraft with orbits that are quite different from the one of DMSP-F13."
The Southampton team developed a new technique called CiELO (debris Cloud Evolution in Low Orbits)
to assess the collision risk to space missions from small-sized debris. They produced a collision
probability map showing a peak in the risk at altitudes just below the location of the DMSP-F13
explosion. The map was created by treating the debris cloud produced by the explosion as a fluid, whose
density changes under the effect of atmospheric drag.
Dr Colombo, who proposed this idea as a part of a Marie Curie project in the European 7th Framework
Programme, says: "Treating the fragment band as a fluid allows us to analyse the motion of a large
number of fragments very quickly, and much faster than conventional methods. In this way, the
presence of small fragments can be easily taken into account to obtain a refined estimation of the
collision probability due to an explosion or a collision in space."
Francesca, who was awarded the 2013 Amelia Earhart Fellowship for this work, adds: "This map can be
used with a database of spacecraft or space debris objects to identify the targets that are most exposed.
For example, in the map we show the top ten spacecraft at risk from the fragments generated by the
explosion of DMSP-F13 according to our model. They are mainly US and Russian satellites in sunsynchronous or polar orbits."
The aim of the team's research is to gain a deeper insight into the dynamics of small debris fragments
and their contribution to collision risk in the Earth orbital environment.
Dr Lewis, who represents the UK Space Agency on the Inter-Agency Space Debris Coordination
Committee (IADC), says that it is important to understand this contribution: "Even though many of these
objects will be no bigger than the ball in a ballpoint pen, they can disable a spacecraft in a collision
because of their enormous speed. In the case of the DMSP-F13 explosion, our work has shown that the
introduction of a new cloud of small-sized debris into orbit will have increased the risks for other
spacecraft in the vicinity, even if the risk from the larger fragments has been discounted."
Satellite collision risk increasing now- space debris experts- preventative
measures necessary
Science Daily 14, frontier news source for topical science articles, (9/30/14, Space debris
expert warns of increasing small satellite collision risk, Science Daily,
http://www.sciencedaily.com/releases/2014/09/140930090447.htm)//AK
The increasing number of small 'CubeSat' satellites being launched combined with a relaxed attitude
to debris mitigation could lead to hazards for all space users unless preventative measures are taken,
warns a leading space debris expert from the University of Southampton.
Speaking today at the 65th International Astronautical Congress in Toronto, Dr Hugh Lewis said that this
combination leads to a growth in space debris, as a result of collisions between CubeSats and other
objects in orbit.
CubeSats are small satellites (around 10x10x10cm) that are providing opportunities for companies to
break into the space data and communications industries. Despite many CubeSats not having any
manoeuvring capability so they cannot avoid collisions during the mission or manoeuvre to a disposal
orbit at their mission end, they are still perceived to have a low impact on the space debris environment.
However, despite guidelines requiring the satellites to deorbit within 25 years, some are being launched
into high Earth orbits, which means their orbital lifetime could be much greater.
More than a third of all CubeSats launched to-date (around 160 between 2003 and 2013) are predicted
to remain on-orbit for more than 25 years. Since 2005, CubeSats have been involved in more than
360,000 close approaches of less than 5 km with other orbiting objects.
Dr Lewis says: "To reduce the risks, some effort is needed to engage with the growing small satellite
community. All space users, not just those in the CubeSat community, who are taking the right steps
should be encouraged to continue and, ultimately, lead on sustainable practices and debris mitigation
activities.
"Those who are not yet engaged with this approach should be encouraged to do so. It's probably a
matter of changing their perceptions of the risks and helping them to understand that there is a
collective responsibility to ensure that outer space activities are sustainable so that future generations
have the same opportunities to use space as we do."
Dr Lewis and his team used their Debris Analysis and Monitoring Architecture to the Geosynchronous
Environment (DAMAGE) model to simulate three future CubeSat launch traffic scenarios until the year
2043. By comparing these with close approach data from 2005 to 2013, the team found CubeSats are
estimated to be involved in millions of close approaches over the next 30 years, with a handful leading
to a collision.
Analysis of the close approaches found that most of the collision risk from CubeSats comes from highspeed encounters with large spacecraft. In addition, many of these encounters were in Sun-synchronous
orbits that are popular with remote sensing and Earth science satellites.
Dr Lewis adds: "By far the greatest risk comes from those with long lifetimes at altitudes of about 750
km. If CubeSats continue to be launched into long-lived orbits without any means of disposing of them,
then they will contribute to the growing space debris hazard. This is not a responsible or sustainable
practice, in my view. However, if efforts are made to limit the lifetimes- as some are already doing -then the risks will be reduced."
AT: Doesn’t hurt cloud computing
Data localization is an independent internal link
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther
King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School
AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D.,
University of California, Davis School of Law (Anupam and Uyen, “DATA NATIONALISM” 64 Emory L.J.
677, lexis)
Cloud Computing. Data localization requirements will often prevent access to global cloud computing
services. As we have indicated, while governments assume that global services will simply erect local
data server farms, such hopes are likely to prove unwarranted. Thus, local companies will be denied
access to the many companies that might help them scale up, or to go global. n247 Many companies
around the world are built on top of existing global services. Highly successful companies with Indian
origins such as Slideshare and Zoho relied on global services such as Amazon Web Services and Google
Apps. n248 A Slideshare employee cites the scalability made possible by the use of Amazon's cloud
services, noting, "Sometimes I need 100 servers, sometimes I only need 10." n249 A company like Zoho
can use Google Apps, while at the same time competing with Google in higher value-added services.
n250 [*729] Accessing such global services thus allows a small company to maintain a global presence
without having to deploy the vast infrastructure that would be necessary to scale as needed.
The Internet of Things. As the world shifts to Internet-connected devices, data localization will require
data flows to be staunched at national borders, requiring expensive and cumbersome national
infrastructures for such devices. This erodes the promise of the Internet of Things - where everyday
objects and our physical surroundings are Internet-enabled and connected - for both consumers and
businesses. Consumer devices include wearable technologies that "measure some sort of detail about
you, and log it." n251 Devices such as Sony's Smartband allied with a Lifelog application to track and
analyze both physical movements and social interactions n252 or the Fitbit n253 device from an
innovative start-up suggest the revolutionary possibilities for both large and small manufacturers. The
connected home and wearable computing devices are becoming increasingly important consumer
items. n254 A heart monitoring system collects data from patients and physicians around the world and
uses the anonymized data to advance cardiac care. n255 Such devices collect data for analysis typically
on the company's own or outsourced computer servers, which could be located anywhere across the
world. Over this coming decade, the Internet of Things is estimated to generate $ 14.4 trillion in value
that is "up for grabs" for global enterprises. n256 Companies are also adding Internet sensors not just to
consumer products but to their own equipment and facilities around the world through RFID tags or
through other devices. The oil industry has embraced what has come to be known as the "digital oil
field," where real-time [*730] data is collected and analyzed remotely. n257 While data about oil flows
would hardly constitute personal information, such data might be controlled under laws protecting
sensitive national security information. The Internet of Things shows the risks of data localization for
consumers, who may be denied access to many of the best services the world has to offer. It also shows
the risk of data localization for companies seeking to better monitor their systems around the world.
Data Driven Innovation (Big Data). Many analysts believe that data-driven innovations will be a key basis
of competition, innovation, and productivity in the years to come, though many note the importance of
protecting privacy in the process of assembling ever-larger databases. n258 McKinsey even reclassifies
data as a new kind of factor of production for the Information Age. n259 Data localization threatens big
data in at least two ways. First, by limiting data aggregation by country, it increases costs and adds
complexity to the collection and maintenance of data. Second, data localization requirements can
reduce the size of potential data sets, eroding the informational value that can be gained by crossjurisdictional studies. Large-scale, global experiments technically possible through big data analytics,
especially on the web, may have to give way to narrower, localized studies. Perhaps anonymization will
suffice to comport with data localization laws and thus still permit cross-border data flow, but this will
depend on the specifics of the law.
AT: Alt causes
Surveillance is the most important cause
Donohue, 14 - Professor of Law, Georgetown University Law Center (Laura, “HIGH TECHNOLOGY,
CONSUMER PRIVACY, AND U.S. NATIONAL SECURITY”, Georgetown University Law Center, 17
September 2014,
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1119&context=cong)//gg
High technology is a vital part of the U.S. economy. It is both a symbolic and actual manifestation of the
country’s commitment to innovation in every sphere of life. It plays to the United States’ strengths as a
nation. It has the potential to change regimes, to alter political relationships , and to shape the daily
lives of people around the globe. And it deserves special attention. The danger is that U.S. industry will
become less competitive and that the U.S. will thus lose its dominance in the Internet economic sphere.
To some extent, we do, structurally, pay some attention to the importance of the economy. But many
consequential decisions are thus not aired in full light of the possible implications for U.S. national
security.122 One way Congress could rectify this would be to take a look at how to integrate economic
concerns, as a statutory matter, into the national security infrastructure.
V. CONCLUDING REMARKS
To redress the negative effects that have followed from public awareness of the NSA programs
conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA Amendments Act, the
most important step that Congress could take would be to reign in the surveillance authorities
themselves, in the process providing greater transparency and oversight. An alteration in U.S. privacy
law would also help to reassure U.S. customers and individuals located outside domestic bounds that
consumer privacy is protected, thus allowing industry accurately to assert that the circumstances have
changed. Consideration of how to integrate economic concerns into the national security infrastructure
would further help to emphasize the importance of taking account of the impact of new initiatives on
the United States.
AT: Chinese cloud computing good
the plan resolves all reasons Chinese tech is good
Castro and McQuinn 15 – * Vice President of the Information Technology and Innovation Foundation
and Director of the Center for Data Innovation, B.S. in Foreign Service from Georgetown University and
an M.S. in Information Security Technology and Management from Carnegie Mellon University, AND **
Research Assistant with the Information Technology and Innovation Foundation, B.S. in Public Relations
and Political Communications from the University of Texas (Daniel and Alan, Beyond the USA Freedom
Act: How U.S. Surveillance Still Subverts U.S. Competitiveness, Information Technology and Innovation
Foundation, June 2015, http://www2.itif.org/2015-beyond-usa-freedomact.pdf?_ga=1.33178294.940386433.1435342104)//JJ
Protectionist policies in China have further strained the U.S. tech industry. In January 2015, the Chinese
government adopted new regulations that forced companies that sold equipment to Chinese banks to
turn over secret source code, submit to aggressive audits, and build encryption keys into their products.
38 While ostensibly an attempt to strengthen cybersecurity in critical Chinese industries, many western
tech companies saw these policies as a shot across the bow trying to force them out of China’s markets.
After all, the Chinese government ha d already launched a “de - IOE” movement — IOE stands for IBM,
Oracle and EMC — to convince its state - owned banks to stop buying from these U.S. tech giants. 39 To
be sure, the Chinese government recently halted this policy under U.S. pressure. 40 However, the
halted policy can be seen as a part of a larger clash between China and the United States over trade and
cybersecurity. Indeed, these proposed barriers were in part a quid pro quo from China, after the United
States barred Huawei, a major Chinese computer maker, from selling its products in the United States
due to the fear that this equipment had “back doors” for the Chinese government. 41 Since the
Snowden revelations essentially gave them cover, Chinese lawmakers have openly called for the use of
domestic tech products over foreign goods both to boost the Chinese economy and in response to U.S.
surveillance tactics . This system of retaliation has not only led to a degradation of business interests for
U.S. tech companies in China, but also disrupted the dialogue between the U.S. government and China
on cybersecurity issues. 4
Laundry list of alt causes to Chinese cloud-computing
Mulvenon et al 14 – Vice-President of Defense Group Inc.’s Intelligence Division and Director of DGI’s
Center for Intelligence Research and Analysis, Ph.D. in political science from UCLA (James, Leigh Ann
Ragland – Research Analyst, Defense Group, Inc., Center for Intelligence Research and Analysis, Joseph
McReynolds – Research Analyst at Defense Group Inc.'s Center for Intelligence, Mathew Southerland –
becoming a Master of Public Policy with a specialization in International Security and Economic Policy at
the University of Maryland, B.A. in Anthropology from Georgetown, RED CLOUD RISING: CLOUD
COMPUTING IN CHINA, International Journal of Computer Research section 21.4, p. 281-331, 2014,
Proquest)//JJ
Cloud Computing Capabilities Gaps between China and the World
Although many elements factor into the equation, the relatively low penetration rate of cloud
computing technology in China appears linked to several issues that are common in China's IT sector:
distrust of foreign technology (a common theme in literature discussing government requirements for
indigenous innovation), a lack of crucial technology required to develop the kind of mature
technological capabilities that are needed, and a lack of technical standards and requirements to drive
technology development. Recent reports from Chinese government agencies indicate that they are
aware of these deficiencies. For example, in January 2013, the director of the China Center for
Information Industry Development described the cloud computing industry as being still only in its
infancy . He cited major problems in the industry, including a lack of cloud computing services and
applications.21
On a macro level, self-reported weaknesses in industries that are essential to cloud computing software , integrated circuits , and information security - underscore the broad challenges facing
Chinese firms as they attempt to reach or exceed the technical capacity achieved for cloud computing in
other countries. For example, in the realm of information security, MIIT's assessment of China's
domestic cloud computing industry published in the Information Security Industry Development Plan for
the 12th FYP was that it was -relatively weak as a whole ," and listed a number of the industry's key
deficiencies:
· A reliance on importing foreign products and services
· A lack of core technology
· An absence of large enterprises to lead the development of the industry
· An inability to properly support national security needs
· An inadequate innovation capability
· A lack of high-end information security personnel who can meet the industry's development
requirements
MIIT also identified several deficiencies in China's software and integrated circuits industries, some of
which are similar to the problems found in the information security industry:
· A lack of enterprises with leading global positions
· At an overall level, the industries are at the low-end of the value chain
· An imperfect industrial innovation system
· A lack of core technology
· An inability to fully realize industry chain synergies
· A lack of an industry development plan supporting leading enterprises and small-to-medium
enterprises (SME)
· Serious structural personnel problems - a lack of high-level, well-rounded personnel in leadership
positions
· Deficiencies in the industry's capacity for sustainable development
Chinese cloud computing fails – too immature
Mulvenon et al 14 – Vice-President of Defense Group Inc.’s Intelligence Division and Director of DGI’s
Center for Intelligence Research and Analysis, Ph.D. in political science from UCLA (James, Leigh Ann
Ragland – Research Analyst, Defense Group, Inc., Center for Intelligence Research and Analysis, Joseph
McReynolds – Research Analyst at Defense Group Inc.'s Center for Intelligence, Mathew Southerland –
becoming a Master of Public Policy with a specialization in International Security and Economic Policy at
the University of Maryland, B.A. in Anthropology from Georgetown, RED CLOUD RISING: CLOUD
COMPUTING IN CHINA, International Journal of Computer Research section 21.4, p. 281-331, 2014,
Proquest)//JJ
In 2012, the China Software Industry Association (CSIA) released a report on China's software and
information technology service industry, which also offered insight into issues affecting the technical
capacity of Chinese cloud computing. The report cited six major problems in Chinese cloud computing
development , specifically:22
1) Cloud computing development -l acked understanding ;" 23 there was uninformed -blind"
development,"24 and a hasty issuance of projects at cloud computing centers that resulted in a lack of
coordination between the research organizations and policy makers involved, and a general waste of
resources .
2) China still lacks a mature cloud computing development platform ; key prerequisite technologies
such as massive data processing and large-scale IT resource management still need to be developed.
3) There are issues that are hindering the development of cloud computing technology for the social
management and public service sector. Systemic issues that must be resolved include: a lack of
collaboration between government departments, inadequate sharing of government information and
resources, and government services outsourcing .
4) There are no successful cases of cloud computing applications in the most important sectors of the
Chinese economy, and the capabilities for organizations to integrate cloud computing applications into
existing operations and infrastructure need to be improved.
5) Information security is a great challenge due to the large amount of data being collectively stored
and managed.
6) There is a lack of standards for cloud computing services, and reliability and security inspection
capabilities are weak. Further, user data security and privacy protection require urgent resolution.
Taken together, the CSIA criticisms suggest that the technical capacity of Chinese cloud computing is still
limited and that several basic conditions must be met before cloud computing can mature. One of
these is Internet speed, which is an important factor in performance for cloud computing services, and
where China's cloud computing technical capacity currently lags behind the United States and other
leading ICT countries. As of late 2011, the average rate of data transfer in China was 1463 kilobytes per
second, five times slower than the rate in OECD countries.25 China's network speed is further
burdened by the government's network monitoring requirements, which slow the speed of Internet
traffic. Deschert LLP, an international law firm founded in the United States with practices in Europe,
Asia, and the Middle East, in a report on cloud computing in China, noted that -cloud computing only
functions as a useful commodity when used with a high-speed broadband connection." 26 These and
other infrastructure deficiencies have helped ensure that Chinese cloud computing firms are generally
ill-suited to match the services that are provided in other countries with more advanced cloud
industries.
Alt. cause to cloud computing leadership – Netherlands
Mulvenon et al 14 – Vice-President of Defense Group Inc.’s Intelligence Division and Director of DGI’s
Center for Intelligence Research and Analysis, Ph.D. in political science from UCLA (James, Leigh Ann
Ragland – Research Analyst, Defense Group, Inc., Center for Intelligence Research and Analysis, Joseph
McReynolds – Research Analyst at Defense Group Inc.'s Center for Intelligence, Mathew Southerland –
becoming a Master of Public Policy with a specialization in International Security and Economic Policy at
the University of Maryland, B.A. in Anthropology from Georgetown, RED CLOUD RISING: CLOUD
COMPUTING IN CHINA, International Journal of Computer Research section 21.4, p. 281-331, 2014,
Proquest)//JJ
Emerging cloud computing firms in other foreign markets appear to show a relatively higher technical
capacity as both providers and innovators . Two companies headquartered in the Netherlands ,
Interexion and GoGrid, appear to have made particular headway in this area. Interexion, for instance,
operates 32 cloud data centers spread across 11 countries , including the United Kingdom, Germany,
and France. The Netherland's technical capacity for cloud computing technology is backed by a mature
software industry that has a history of innovations and inventions (e.g., Bluetooth technology, WiFi,
and Route Navigation). Further, the Netherlands currently has the ICT infrastructure needed for cloud
computing and is sometimes considered the leading country for broadband capability in the world.27
Also, Netherlands-based companies appear to operate in an industry-led, rather than government-led ,
standards environment, and also show low rates of software piracy , both factors which typically
encourage innovation and investment in the software industry. This favorable industry environment
shows similarities with that of the US, which BSA reports also enjoy relatively low-levels of software
piracy and industry-led standards environment. Published US government standards for cloud
computing are not mandatory for commercial systems used outside of the government, though many
commercial firms voluntarily adopt these standards.
AT: Domestic limit kills solvency
Extending privacy rights to US companies solves
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, “SECTION 702 AND THE
COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT” 38 Harv. J.L. & Pub. Pol'y 117,
Winter, lexis)
The difficulty, for Section 702 purposes, enters in regard to Kennedy's reliance on the rule that he saw as
most consistent with the United States' role as a sovereign nation. n447 "[W]e must interpret
constitutional protections," he wrote, "in light of the undoubted power of the United States to take
actions to assert its legitimate power and authority abroad." n448 What is the scope of the United
States' legitimate power and authority abroad? To what degree is it rooted in the legal status of the
individual against whom the state is acting? And what is the relationship between different forms of
legal relationships and membership in the political community?
Let us focus here on the types of relationships most at issue with regard to Section 702: global electronic
communications. One danger in according non-U.S. persons Fourth Amendment rights via (substantial)
virtual contact with the United States is that individuals could use such contacts to evade detection.
n449 Foreign persons could become members of Amazon Prime, communicate with associates in the
United States via Verizon, and take Massive Open Online Courses (MOOCs) from the latest American
university to offer them, perhaps even in the process obtaining a U.S. college or graduate degree. This
could then become a shield to mask behavior that may undermine U.S. national security.
One response to this might be that in a global communications environment, privacy protections must
be thought about in a broader sense. It matters little whether a customer is French, English, or
American. Privacy rights should be extended to customers by nature of their dual status with U.S.
persons qua customers--or even as a concomitant of their rights as people. This was the thrust of part of
Privacy and Civil Liberties Oversight Board's (PCLOB) analysis that suggested privacy be regarded as a
human right.
There is a realpolitic argument to be made here as well, which ties more directly to U.S. foreign
interests. Namely, U.S. failure to [*228] ensure privacy protections may lead to a loss in U.S.
competitiveness. And economic concerns are central to U.S. national security. Consider the impact of
the public release of information about NSA Section 702 surveillance on the U.S. cloud computing
industry. There was an immediate, detrimental impact on the strength of the U.S. economy. Billions of
dollars are now on the line because of concerns that the services provided by U.S. information
technology companies are neither secure nor private. n450 The Information Technology and Innovation
Foundation estimates that declining revenues of corporations that focus on cloud computing and data
storage alone could reach $ 35 billion over the next three years. n451 Other commentators, such as
Forrester Research analyst James Staten, have put actual losses as high as $ 180 billion by 2016, unless
something is done to restore overseas' confidence in data held by U.S. companies. n452
Failure to extend privacy protections to individuals with substantial connections to the country via
industry would, in this view, make it harder, not easier for the United States to assert its legitimate
power and authority abroad. So, under Kennedy's reasoning, one could argue that Fourth Amendment
rights should be extended to individuals economically tied to U.S. entities. This determination, however,
is ultimately one of policy--not law. Deciding whether a greater national security threat is entailed in loss
of competitiveness of U.S. industry, versus loss of protections extended to non-U.S. persons in the
interests of privacy, is part of the weighing that must be done by the executive branch in pursuing its
interests abroad. In this way, the Rehnquist opinion and [*229] the Kennedy concurrence can be read
as compatible with not extending Fourth Amendment rights to individuals lacking a legal relationship (in
other words, those stemming directly from the individual's status as a member of the political
community). n453
Addons
Soft power
2ac Soft power addon
Surveillance overreach spills over to gut overall US global legitimacy
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
Broader Foreign Policy Costs
Beyond Internet Freedom, the NSA disclosures “have badly undermined U.S. credibility with many of its
allies,” Ian Bremmer argued in Foreign Policy in November 2013.214 Similarly, as Georg Mascolo and
Ben Scott point out about the post-Snowden world, “the shift from an open secret to a published secret
is a game changer… it exposes the gap between what governments will tolerate from one another under
cover of darkness and what publics will tolerate from other governments in the light of day.”215 From
stifled negotiations with close allies like France and Germany to more tense relations with emerging
powers including Brazil and China, the leaks have undoubtedly weakened the American position in
international relations, opening up the United States to new criticism and political maneuvering that
would have been far less likely a year ago.216
U.S. allies like France, Israel, and Germany are upset by the NSA’s actions, as their reactions to the
disclosures make clear.217 Early reports about close allies threatening to walk out of negotiations with
the United States—such as calls by the French government to delay EU-U.S. trade talks in July 2013 until
the U.S. government answered European questions about the spying allegations218—appear to be
exaggerated, but there has certainly been fallout from the disclosures. For months after the first
Snowden leaks, German Chancellor Angela Merkel would not visit the United States until the two
countries signed a “no-spy” agreement—a document essentially requiring the NSA to respect German
law and rights of German citizens in its activities. When Merkel finally agreed come to Washington, D.C.
in May 2014, tensions rose quickly because the two countries were unable to reach an agreement on
intelligence sharing, despite the outrage provoked by news that the NSA had monitored Merkel’s own
communications.219 Even as Obama and Merkel attempted to present a unified front while they
threatened additional sanctions against Russia over the crisis in the Ukraine, it was evident that relations
are still strained between the two countries. While President Obama tried to keep up the appearance of
cordial relations at a joint press conference, Merkel suggested that it was too soon to return to
“business as usual” when tensions still remain over U.S. spying allegations.220 The Guardian called the
visit “frosty” and “awkward.”221 The German Parliament has also begun hearings to investigate the
revelations and suggested that it is weighing further action against the United States.222
Moreover, the disclosures have weakened the United States’ relationship with emerging powers like
Brazil, where the fallout from NSA surveillance threatens to do more lasting damage. Brazilian President
Dilma Rousseff has seized on the NSA disclosures as an opportunity to broaden Brazil’s influence not
only in the Internet governance field, but also on a broader range of geopolitical issues. Her decision not
to attend an October 2013 meeting with President Barack Obama at the White House was a direct
response to NSA spying—and a serious, high-profile snub. In addition to cancelling what would have
been the first state visit by a Brazilian president to the White House in nearly 20 years, Rousseff’s
decision marked the first time a world leader had turned down a state dinner with the President of the
United States.223 In his statement on the postponement, President Obama was forced to address the
issue of NSA surveillance directly, acknowledging “that he understands and regrets the concerns
disclosures of alleged U.S. intelligence activities have generated in Brazil and made clear that he is
committed to working together with President Rousseff and her government in diplomatic channels to
move beyond this issue as a source of tension in our bilateral relationship.”224
Many observers have noted that the Internet Freedom agenda could be one of the first casualties of the
NSA disclosures. The U.S. government is fighting an uphill battle at the moment to regain credibility in
international Internet governance debates and to defend its moral high ground as a critic of
authoritarian regimes that limit freedom of expression and violate human rights online. Moreover, the
fallout from the NSA’s surveillance activities has spilled over into other areas of U.S. foreign policy and
currently threatens bilateral relations with a number of key allies. Going forward, it is critical that
decisions about U.S. spying are made in consideration of a broader set of interests so that they do not
impede—or, in some cases, completely undermine—U.S. foreign policy goals.
Legitimacy is key to international leadership – solves all global problems
Stanley, 7 (Elizabeth Stanley, Ass Prof @ Georgetown, 7 “International Perceptions of US Nuclear Policy”
Sandia Report, http://www.prod.sandia.gov/cgi-bin/techlib/access-control.pl/2007/070903.pdf)
How important is soft power, anyway? Given its vast conventional military power, does the United
States even need soft power? Some analysts argue that US military predominance is both possible and
desirable over the long term, and thus soft power is not important. But a growing consensus disagrees.
These analysts argue that soft power is critical for four reasons. First, soft power is invaluable for
keeping potential adversaries from gaining international support, for “winning the peace” in
Afghanistan and Iraq, and for convincing moderates to refrain from supporting extremist terrorist
groups. Second, soft power helps influence neutral and developing states to support US global
leadership. Third, soft power is also important for convincing allies and partners to share the
international security burden.14 Finally, and perhaps most importantly, given the increasing
interdependence and globalization of the world system, soft power is critical for addressing most
security threats the United States faces today. Most global security threats are impossible to be
countered by a single state alone. Terrorism, weapons of mass destruction (WMD) proliferation, failed
and failing states, conflicts over access to resources, are not confined to any one state. In addition,
disease, demographic shifts, environmental degradation and global warming will have negative security
implications as well.15 All of these potential threats share four traits: (1) they are best addressed
proactively, rather than after they develop into full-blown crises; (2) they require multi-lateral
approaches, often under the umbrella of an international institution; (3) they are not candidates for a
quick fix, but rather require multi-year, or multi-decade solutions; and, (4) they are “wicked” problems.
Given these four traits, soft power is critical for helping to secure the international, multi-lateral
cooperation that will be necessary to address such threats effectively.
Backdoor access kills soft power
Overreach through back-door access wrecks US soft power
Wheeler, 14 - Marcy Wheeler is an independent journalist and PhD from the University of Michigan. She
specializes in civil liberties, technology, and national security. (Marcy, “The Drama Ahead: Google versus
America” 6/16, http://www.cato-unbound.org/2014/06/16/marcy-wheeler/drama-ahead-googleversus-america
This leaves one central drama to play out, in which Google and other tech companies (and to a much
lesser extent, a few telecoms) begin to push back against the NSA’s overreach. It’s not just that U.S.
cloud (and other tech) companies stand to lose billions as their clients choose to store data locally rather
than expose it easily to the NSA. It’s also that the NSA violated several aspects of the deal the Executive
Branch made six years ago with the passage of the FISA Amendments Act (FAA), Section 702 of which
authorizes the PRISM program and domestic upstream collection.
Congress passed the FISA Amendments Act several years after the New York Times’ exposure of the
illegal wiretap program, ostensibly to address a technical problem used to justify that program.
Technology had changed since the analog and radio world in place when FISA was first passed in 1978.
Now, much of the world’s communications – including those of extremists who were targeting America
– were sitting in Google’s and Yahoo’s and Microsoft’s servers within the United States. So Congress
authorized the NSA to conduct collection inside the United States on targets located outside of the
country (which swept up those who communicated with those targets, wherever they were located). In
exchange , the government and its supporters promised, it would extend protections to Americans who
were overseas.
Yahoo and Google played by the rules, as the PRISM slide released last June revealed. The data of both
Yahoo and Google have been readily available for any of the broad uses permitted by the law since
January 2009. Yet, in spite of the fact that the NSA has a legal way to obtain this Internet data inside the
United States using PRISM, the government also broke in to steal from Yahoo and Google fiber
overseas.
That’s an important implication of Sanchez’ point that “modern communications networks obliterate
many of the assumptions about the importance of geography.” American tech companies now store
data overseas, as well as in the United States. Americans’ data is mixed in with foreigners’ data
overseas. Many of the more stunning programs described by Snowden’s documents – the collection of 5
billion records a day showing cell location, NSA partner GCHQ’s collection of millions of people’s
intimate webcam images, and, of course, the theft of data from Google and Yahoo’s servers – may suck
up Americans’ records too.
Plus there’s evidence the NSA is accessing U.S. person data overseas. The agency permits specially
trained analysts to conduct Internet metadata contact chaining including the records of Americans from
data collected overseas. And in a Senate Intelligence Committee hearing earlier this year, Colorado
Senator Mark Udall asked hypothetically what would happen with a “a vast trove of U.S. person
information” collected overseas; the answer was such data would not get FISA protection (California
Senator Dianne Feinstein, the Intelligence Committee Chair, asked an even more oblique question on
the topic).
Udall and Feinstein’s questions show that a lot of this spying does not undergo the oversight Benjamin
Wittes and Carrie Cordero point to. Last year, Feinstein admitted her committee gets less reporting on
such spying. Even for programs overseen by FISA, the NSA has consistently refused to provide even its
oversight committees and the FISA Court real numbers on how many Americans get sucked into various
NSA dragnets.
Moreover, the government’s threat to tech companies exists not just overseas. When a group of tech
companies withdrew their support for the USA Freedom Act, they argued the bill could permit the
resumption of bulk collection of Internet users’ data domestically. In the past, that has always meant
telecoms copying Internet metadata at telecom switches, another outside entity compromising tech
companies’ services. As with the data stolen overseas, Internet metadata is available to the government
legally under PRISM.
In response to the news that the government at times bypasses the legal means it has to access Google’s
clients’ data, the tech giant and others have found new ways to protect their customers. That consists of
the new encryption Sanchez described – both of that fiber compromised overseas and of emails sent
using Google – but also the right to publish how much data the government collects. Even within the
criminal context, tech companies (including telecoms Verizon and AT&T) are challenging the U.S.
government’s efforts to use tech companies’ presence in the United States to get easy access to
customers’ data overseas.
The conflict between Google and its home country embodies another trend that has accelerated since
the start of the Snowden leaks. As the President of the Computer & Communications Industry
Association, Edward Black, testified before the Senate last year, the disclosure of NSA overreach did not
just damage some of America’s most successful companies, it also undermined the key role the
Internet plays in America’s soft power projection around the world : as the leader in Internet
governance , and as the forum for open speech and exchange once associated so positively with the
United States.
The U.S. response to Snowden’s leaks has, to a significant degree, been to double down on hard power,
on the imperative to “collect it all” and the insistence that the best cyberdefense is an aggressive
cyberoffense. While President Obama paid lip service to stopping short of spying “because we can,” the
Executive Branch has refused to do anything – especially legislatively – that would impose real controls
on the surveillance system that undergirds raw power.
NSA overreach wrecks US smart power
Donahoe, 14 - Eileen Donahoe served as U.S. ambassador to the United Nations Human Rights Council.
She is a visiting scholar at Stanford University's Freeman Spogli Institute for International Studies (“Why
the NSA undermines national security” Reuters, 3/6, http://blogs.reuters.com/greatdebate/2014/03/06/why-nsa-surveillance-undermines-national-security/
But this zero-sum framework ignores the significant damage that the NSA’s practices have done to U.S.
national security. In a global digital world, national security depends on many factors beyond
surveillance capacities, and over-reliance on global data collection can create unintended security
vulnerabilities.
There’s a better framework than security-versus-privacy for evaluating the national security implications
of mass-surveillance practices. Former Secretary of State Hillary Clinton called it “smart power.”
Her idea acknowledges that as global political power has become more diffuse, U.S. interests and
security increasingly depend on our ability to persuade partners to join us on important global security
actions. But how do we motivate disparate groups of people and nations to join us? We exercise smart
power by inspiring trust and building credibility in the global community.
Developing these abilities is as important to U.S. national security as superior military power or
intelligence capabilities.
I adopted the smart-power approach when serving as U.S. ambassador to the United Nations Human
Rights Council. Our task at the council was to work with allies, emerging democracies and human rightsfriendly governments to build coalitions to protect international human rights. We also built alliances
with civil society actors, who serve as powerful countervailing forces in authoritarian systems. These
partnerships can reinforce stable relationships, which enhances U.S. security.
The NSA’s arbitrary global surveillance methods fly in the face of smart power. In the pursuit of
information, the spy agency has invaded the privacy of foreign citizens and political leaders,
undermining their sense of freedom and security. NSA methods also undercut U.S. credibility as a
champion of universal human rights.
The U.S. model of mass surveillance will be followed by others and could unintentionally invert the
democratic relationship between citizens and their governments. Under the cover of preventing
terrorism, authoritarian governments may now increase surveillance of political opponents.
Governments that collect and monitor digital information to intimidate or squelch political opposition
and dissent can more justifiably claim they are acting with legitimacy.
For human rights defenders and democracy activists worldwide, the potential consequences of the
widespread use by governments of mass surveillance techniques are dark and clear.
Superior information is powerful, but sometimes it comes at greater cost than previously recognized.
When trust and credibility are eroded, the opportunity for collaboration and partnership with other
nations on difficult global issues collapses. The ramifications of this loss of trust have not been
adequately factored into our national security calculus.
What is most disconcerting is that the NSA’s mass surveillance techniques have compromised the
security of telecommunication networks, social media platforms, private-sector data storage and public
infrastructure security systems. Authoritarian governments and hackers now have a roadmap to
surreptitiously tap into private networks for their own nefarious purposes.
By weakening encryption programs and planting backdoor entries to encryption software, the NSA has
demonstrated how it is possible to infiltrate and violate information-security systems. In effect, the spy
agency has modeled anarchic behavior that makes everyone less safe.
Some have argued, though, that there is a big difference between the U.S. government engaging in
mass-surveillance activities and authoritarian governments doing so. That “big difference” is supposed
to be democratic checks and balances, transparency and adherence to the rule of law. Current NSA
programs, however, do not operate within these constraints.
With global standards for digital surveillance now being set, our political leaders must remember that
U.S. security depends upon much more than unimpeded surveillance capabilities. As German Chancellor
Angela Merkel, one of President Barack Obama’s most trusted international partners, has wisely
reminded us, just because we can do something does not mean that we should do it.
National security policies that fail to calculate the real costs of arbitrary mass surveillance threaten to
make us less secure. Without trusted and trusting partners, U.S. priority initiatives in complex global
negotiations will be non-starters.
The president, his advisers and our political leaders should reassess the costs of the NSA’s spy programs
on our national security, our freedom and our democracy. By evaluating these programs through a
smart-power lens, we will be in a stronger position to regain the global trust and credibility so central to
our national security.
Soft power solves everything
Soft power is necessary to facilitate international coalition building which is key
to solve a laundry list of existential threats
Nye, 15 - JOSEPH S. NYE, JR. is University Distinguished Service Professor at Harvard and former dean of
Harvard’s Kennedy School of Government (Interview by Christina Pazzanese, “America, still at top”,
Harvard Gazette, March 17, 2015, http://news.harvard.edu/gazette/story/2015/03/america-still-attop//DM)
GAZETTE: You say America’s dominance is not necessarily a direct result of economic power or military
might and that we still have significant soft-power advantages over other countries, including China.
What are some of those advantages, and how might we lose our ability to influence world events in the
coming years?
NYE: Soft power is the ability to get what you want through attraction rather than coercion or payment.
It’s an important component of America’s role in the world. It doesn’t replace the hard power of military
capability or economic capability, but it can be what’s sometimes called a “force multiplier,” something
that, if used in a smart way with your hard power, can make you more powerful by having hard and soft
power reinforce each other. If we were to turn inward, to be less accepting of the rest of the world, [or]
if we were to, in contrast, overextend ourselves as I think we did in the Iraq War, we could damage that
soft power and undercut our ability to help lead coalitions and networks and alliances that are necessary
for being able to provide leadership in the world.
GAZETTE: What challenges does China’s largely internal political focus and the increasing upward
mobility of many more of its citizens pose for it?
NYE: The good news for China is that they’ve raised hundreds of millions of people out of poverty and
developed a large middle class. The bad news is they haven’t figured out how to bring that middle class
into political participation. What we know is that when countries get to about $10,000-per-capita
income, there are increased demands for participation. China hasn’t quite figured out how to
accommodate that. So that’s one problem they face, what you might call the political transition.
Another problem they face is a demographic transition. China’s population is getting older as a result of
the one-child policy. And many Chinese say they “fear they’re going to grow old before they grow rich.”
A third problem is: Can they adapt their growth model, which has been heavily reliant upon export
industries based along the coast, and become more innovative and more oriented toward their
domestic market? Their plans are to do that, but they haven’t yet fully accomplished that. They may be
able to do this — that’s sometimes called the “middle-income trap,” that you reach a certain level on
the growth model that’s worked so far, and then you don’t develop the institutions and the capacity for
innovation that take you to the next level.
GAZETTE: You write: “The real problem for the United States is not that it will be overtaken by China or
another contender, but that it will be faced with a rise in the power resources of many others — both
state and non-state actors,” and that “the U.S. will be less able to control others.” Who are some of
these actors, and how will this diffusion of power likely play out?
NYE: Some of the actors are other large states like India, which will be the largest country in the world
by population by the middle of this century; Brazil; Indonesia, which is the largest Muslim country in the
world; perhaps Nigeria or South Africa — we don’t know how their fates are going to turn out. But the
point is there will be many more states that will have more power than they’ve had in the past. In
addition to those state actors, there are a lot of non-state actors who are empowered by the
information revolution. Perhaps the most dramatic of these would be cyber actors — “hacktivists” and
even cybercriminals and other such groups — who are able to do things that often in the past were
reserved to governments. So the combination of more state actors and more powerful non-state actors
makes a world in which it’s harder to get things done. This is sometimes called entropy, the inability to
get work done. ISIS is a very good example of such a non-state actor. But I worry more about entropy
than I worry about China.
GAZETTE: Does it dilute America’s overall power, or will it force us to rely on other strategies?
NYE: If we rely on other strategies, we can overcome this. If we see that our role is to organize coalitions
and networks to get things done, then we can repair the problems that this creates for American power.
But if we think that we can either do it ourselves or opt out of anybody doing it, then we’ll suffer the
consequences along with others. If you think of problems like global financial stability or dealing with
climate change or dealing with pandemics or dealing with transnational terrorism, these are not
problems that we can solve by ourselves. Our ability to manage those problems depends on our ability
to organize coalitions with others.
Soft power and cooperation is necessary to combat a laundry list of
transnational issues
Nye 12 - JOSEPH S. NYE, JR. is University Distinguished Service Professor at Harvard and former dean of
Harvard’s Kennedy School of Government. He is the author of The Powers to Lead and Soft Power: The
Means to Success in World Politics. (Joesph, “Diversifying American Power”, International
Relations.com, September 9, 2012, http://www.internationalrelations.com/2012/09/09/joseph-s-nye-jrdiversifying-american-power//DM)
Conventional wisdom has always held that the state with the largest military prevails, but in an
information age it may be that the state (or nonstate) with the best story will win. Soft or attractive
power becomes as important as hard military or economic power. Secretary of State Hillary Clinton has
said, “We must use what has been called ‘smart power,’ the full range of tools at our disposal.” Smart
power means the combination of the hard power of command and the soft power of attraction.
In today’s world, power resources are distributed in a pattern that resembles a complex, threedimensional chess game. On the top chessboard, military power is largely unipolar and the United States
is likely to remain the only superpower for some time. But on the middle chessboard, economic power
has already been multipolar for more than a decade, with the United States, Europe, Japan, and China as
the major players, and others gaining in importance.
The bottom chessboard is the realm of transnational relations that cross borders outside of government
control, and it includes non-state actors as diverse as bankers electronically transferring sums larger
than most national budgets at one extreme, and terrorists transferring weapons or hackers threatening
cyber-security at the other. It also includes new challenges like pandemics and climate change. On this
bottom board, power is widely dispersed, and it makes no sense to speak of unipolarity, multipolarity,
hegemony. The soft power to attract and organize cooperation will be essential for dealing with
transnational issues.
The problem for American power in the 21st century is that there are more and more things outside the
control of even the most powerful state. Although the United States does well on military measures,
there is increasingly more going on in the world that those measures fail to capture. For example,
international financial stability is vital to the prosperity of Americans, but the United States needs the
cooperation of others to ensure it. Global climate change too will affect the quality of life, but the
United States cannot manage the problem alone. And in a world where borders are becoming more
porous than ever to everything from drugs to infectious diseases to terrorism, America must help build
international coalitions and build institutions to address shared threats and challenges. In this sense,
power becomes a positive sum game. It is not enough to think in terms of power over others. One must
also think in terms of power to accomplish goals. On many transnational issues, empowering others can
help us to accomplish our own goals. In this world, networks and connectedness become an important
source of relevant power. The problem of American power is less one of decline, than realizing that even
the largest country cannot achieve its aims without the help of others.
Great power war impact
Legitimacy key to global stability - prevents great power war
Fujimoto 12 (Kevin Fujimoto 12, Lt. Colonel, U.S. Army, January 11, 2012, "Preserving U.S. National
Security Interests Through a Liberal World Construct," online:
http://www.strategicstudiesinstitute.army.mil/index.cfm/articles/Preserving-US-National-SecurityInterests-Liberal-World-Construct/2012/1/11)
The emergence of peer competitors, not terrorism, presents the greatest long-term threat to our
national security. Over the past decade, while the United States concentrated its geopolitical focus on
fighting two land wars in Iraq and Afghanistan, China has quietly begun implementing a strategy to
emerge as the dominant imperial power within Southeast Asia and the Indian Ocean. Within the next 2
decades, China will likely replace the United States as the Asia-Pacific regional hegemonic power, if not
replace us as the global superpower.1 Although China presents its rise as peaceful and non-hegemonic,
its construction of naval bases in neighboring countries and military expansion in the region contradict
that argument.
With a credible threat to its leading position in a unipolar global order, the United States should adopt a
grand strategy of “investment,” building legitimacy and capacity in the very institutions that will protect
our interests in a liberal global construct of the future when we are no longer the dominant imperial
power. Similar to the Clinton era's grand strategy of “enlargement,”2 investment supports a world order
predicated upon a system of basic rules and principles, however, it differs in that the United States
should concentrate on the institutions (i.e., United Nations, World Trade Organization, ASEAN, alliances,
etc.) that support a world order, as opposed to expanding democracy as a system of governance for
other sovereign nations.
Despite its claims of a benevolent expansion, China is already executing a strategy of expansion similar
to that of Imperial Japan's Manchukuo policy during the 1930s.3 This three-part strategy involves: “(i)
(providing) significant investments in economic infrastructure for extracting natural resources; (ii)
(conducting) military interventions (to) protect economic interests; and, (iii) . . . (annexing) via
installation of puppet governments.”4 China has already solidified its control over neighboring North
Korea and Burma, and has similarly begun more ambitious engagements in Africa and Central Asia
where it seeks to expand its frontier.5
Noted political scientist Samuel P. Huntington provides further analysis of the motives behind China's
imperial aspirations. He contends that “China (has) historically conceived itself as encompassing a “‘Sinic
Zone'. . . (with) two goals: to become the champion of Chinese culture . . . and to resume its historical
position, which it lost in the nineteenth century, as the hegemonic power in East Asia.”6 Furthermore,
China holds one quarter of the world's population, and rapid economic growth will increase its demand
for natural resources from outside its borders as its people seek a standard of living comparable to that
of Western civilization.
The rise of peer competitors has historically resulted in regional instability and one should compare “the
emergence of China to the rise of. . . Germany as the dominant power in Europe in the late nineteenth
century.”7 Furthermore, the rise of another peer competitor on the level of the Soviet Union of the Cold
War ultimately threatens U.S. global influence, challenging its concepts of human rights, liberalism, and
democracy; as well as its ability to co-opt other nations to accept them.8 This decline in influence, while
initially limited to the Asia-Pacific region, threatens to result in significant conflict if it ultimately leads to
a paradigm shift in the ideas and principles that govern the existing world order.
A grand strategy of investment to address the threat of China requires investing in institutions,
addressing ungoverned states, and building legitimacy through multilateralism. The United States must
build capacity in the existing institutions and alliances accepted globally as legitimate representative
bodies of the world's governments. For true legitimacy, the United States must support these
institutions, not only when convenient, in order to avoid the appearance of unilateralism, which would
ultimately undermine the very organizations upon whom it will rely when it is no longer the global
hegemon.
The United States must also address ungoverned states, not only as breeding grounds for terrorism, but
as conflicts that threaten to spread into regional instability, thereby drawing in superpowers with
competing interests. Huntington proposes that the greatest source of conflict will come from what he
defines as one “core” nation's involvement in a conflict between another core nation and a minor state
within its immediate sphere of influence.9 For example, regional instability in South Asia10 threatens to
involve combatants from the United States, India, China, and the surrounding nations. Appropriately,
the United States, as a global power, must apply all elements of its national power now to address the
problem of weak and failing states, which threaten to serve as the principal catalysts of future global
conflicts.11
Topicality
Counterplan answers
Replace 702 CP
AT: Replace 702 CP – terrorism link
Eliminating 702 wrecks terrorism investigations – individualized requirements
are too difficult to meet
Cordero, 15 - Director of National Security Studies, Georgetown University Law Center, Adjunct
Professor of Law (Carrie, “The Brennan Center Report on the FISA Court and Proposals for FISA Reform”
4/2, Lawfare, http://www.lawfareblog.com/brennan-center-report-fisa-court-and-proposals-fisa-reform
1. “End Programmatic Surveillance”…”or If Programmatic Surveillance Continues, Reform It”
One of the major criticisms of the government’s use of FISA to emerge in the recent debate is that the
Court has shifted from approving individual surveillance or search requests directed at a particular agent
of a foreign power or foreign power, to a practice of approving “programmatic” requests for collection
authority. The criticism is a repudiation of not only the bulk telephone metadata program, but also of
section 702 of FISA, which was added to the Act in 2008. Section 702 authorizes the Director of National
Intelligence and the Attorney General to issue directives to communications service providers under a
set of procedures and certifications that have been approved by FISC.
Referring to the collection authorized by Section 702 as “programmatic” can lead to misunderstanding.
Acquisition under section 702 is programmatic in the sense that the Court approves rules and
procedures by which the acquisition takes place. The Court does not, under section 702, make a
substantive finding about a particular target. It does not approve individual requests for collection.
Instead, the FISC approves the rules and procedures, and then intelligence community personnel abide
by a decision-making process in which there are actual intended targets of acquisition. In his February 4,
2015 remarks at Brookings, ODNI General Counsel Bob Litt described it this way:
“Contrary to some claims, this [section 702 collection] is not bulk collection; all of the collection is based
on identifiers, such as telephone numbers or email addresses, that we have reason to believe are being
used by non-U.S. persons abroad to communicate or receive foreign intelligence information.”
Regardless of the characterization, however, it is correct to say that section 702 allows the intelligence
community, not the Court, to make the substantive determination about what targets to collect against.
Those decisions are made consistent with intelligence community leadership and policymaker strategic
priorities, which Litt also discussed in his February 4th remarks. Targets are selected based on their
anticipated or demonstrated foreign intelligence value. And targeting decisions are subject to
continuous oversight by compliance, legal and civil liberties protection authorities internal to NSA, and
external at the Office of the Director of National Intelligence and the Department of Justice.
The question, then, is why was the change needed in 2008? And, if the Brennan Center’s
recommendation were accepted, what would be the alternatives? What follows is a shorthand answer
to the first question (which I previously addressed here): basically, the change was needed because the
pre-2008 definitions in FISA technically required that the government obtain a probable-cause based
order from the Court in order to collect the communications of Terrorist A in Afghanistan with Terrorist
B in Iraq. This was a problem for at least two reasons: one, as non-U.S. persons outside the United
States, Terrorist A and Terrorist B are not entitled to Constitutional protections; and two, the
bureaucratic manpower it took to supply and check facts, prepare applications and present these
matters to the Court were substantial. As a result, only a subset of targets who may have been worth
covering for foreign intelligence purposes were able to be covered.
This is an extremely condensed version of the justification for 702 and does not cover additional reasons
that 702 was sought. But, from my perspective, it is the bottom line, and one that cannot be overlooked
when suggestions are made to scale back 702 authority.
1ar – 702 stops terrorism
An individual court order requirement for U.S. persons effectively means it
would require a court order for any targeting of foreigners
Cordero, 15 - Director of National Security Studies, Georgetown University Law Center, Adjunct
Professor of Law (Carrie, “Focusing on 702: A Brief Reply to the Brennan Center’s Liza Goitein and Faiza
Patel” Lawfare, 4/10, http://www.lawfareblog.com/focusing-702-brief-reply-brennan-centers-lizagoitein-and-faiza-patel
Although Liza and Faiza say that they are not proposing a court order requirement when targeting a
foreigner overseas, replacing Section 702 “with a regime requiring an individual court order for the
interception of communications involving U.S. persons,” as they describe it, would likely do just that,
whether or not that is the intent of their proposal. I’ll highlight but one reason for now: as a practical
matter, the government cannot know, in advance, with whom a target will communicate . Any
communication from anywhere in the world could, potentially, “involve” a U.S. person or person in the
U.S. For example, a U.S. person or person in the U.S. could intentionally be sent an e-mail from a foreign
intelligence target overseas. Or, a U.S. person or person in the U.S. could be one of one several people
cc’d on an e-mail from a non-U.S. person overseas target. The variations on this theme are many. The
U.S. end might be of foreign intelligence value; it might not. The current set of approvals and procedures
under Section 702 would accommodate either situation, without resorting to submitting probable cause
based applications to the court to target a non-U.S. person foreign intelligence target who is outside the
United States.
Status Quo 702 standards are critical to effective counter terrorism strategies
Bennett 14*Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings
Institution (Wells, “Pre-Release PCLOB Report on Section 702 of FISA”, Lawfare, 07/01/14,
http://www.lawfareblog.com/pre-release-pclob-report-section-702-fisa)//GK
The Section 702 program has enabled the government to acquire a greater range of foreign intelligence
than it otherwise would have been able to obtain — and to do so quickly and effectively. Compared with the “traditional” FISA process
under Title I of the statute, Section 702 imposes significantly fewer limits on the government when it targets
foreigners located abroad, permitting greater flexibility and a dramatic increase in the number of people who can
realistically be targeted. The program has proven valuable in the government’s efforts to combat terrorism as well as in other areas of
foreign intelligence. Presently, over a quarter of the NSA’s reports concerning international terrorism include
information based in whole or in part on Section 702 collection, and this percentage has increased every year since the statute
was enacted. Monitoring terrorist networks under Section 702 has enabled the government to learn how they operate, and to understand their
priorities, strategies, and tactics. In addition, the
program has led the government to identify previously unknown
individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific
terrorist plots aimed at the United States and other countries.
Section 702 is critical to NSA counter-terrorism strategies
PCLOB 14 - independent, bipartisan agency within the executive branch established by the
Implementing Recommendations of the 9/11 Commission Act (“Report on the Surveillance Program
Operated Pursuant to Sec7on 702 of the Foreign Intelligence Surveillance Act”, 07/02/14,
https://www.pclob.gov/library/702-Report.pdf)//GK p.10
The Section 702 program has enabled the government to acquire a greater range of foreign intelligence
than it otherwise would have been able to obtain — and to do so quickly and effectively. Compared with the
“traditional” FISA process under Title I of the statute, Section 702 imposes significantly fewer limits on the
government when it targets foreigners located abroad, permitting greater flexibility and a dramatic increase
in the number of people who can realistically be targeted. The program has proven valuable in the government’s efforts to combat
terrorism as well as in other areas of foreign intelligence. Presently, over a quarter of the NSA’s reports concerning
international terrorism include information based in whole or in part on Section 702 collection, and this
percentage has increased every year since the statute was enacted. Monitoring terrorist networks under Section 702 has
enabled the government to learn how they operate, and to understand their priorities, strategies, and tactics. In
addition, the program has led the government to identify previously unknown individuals who are involved in
international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots
aimed at the United States and other countries.
Removing section 702 means probable cause requirements would be applied to
foreign investigations
Cordero, 15 - Director of National Security Studies, Georgetown University Law Center, Adjunct
Professor of Law (Carrie, “The Brennan Center Report on the FISA Court and Proposals for FISA Reform”
4/2, Lawfare, http://www.lawfareblog.com/brennan-center-report-fisa-court-and-proposals-fisa-reform
Which brings us to the second question I posed above—what are the alternatives if Section 702
authority, were, as the Brennan Center recommends, repealed? One option is to revert to the pre-2008
practice: obtaining Court approval based on probable cause for non-U.S. persons located outside the
United States. The operational result would be to forego collection on legitimate targets of foreign
intelligence collection, thereby potentially losing insight on important national security threats. Given
the challenging and complex national security picture the United States faces today, I would think that
most responsible leaders and policymakers would say, “no thanks” to that option.
A second option would be to conduct the acquisition, but without FISC supervision. This would be a
perverse outcome of the surveillance debate. It is also, probably, in the current environment, not
possible as a practical matter, because an additional reason 702 was needed was to be able to serve
lawful process, under a statutory framework, on communications service providers, in order to
effectuate the collection.
In light of these options: collect less information pertaining to important foreign intelligence targets, or,
collect it without statutory grounding (including Congressional oversight requirements) and judicial
supervision, the collection framework established under 702 looks pretty good.
Links to politics
Section 702 reform unpopular
Eddington 15 –a former CIA imagery analyst, a former lobbyist, private researcher, author, and
Congressional staffer (Patrick, Surveillance reform wars continue”, The Hill, 06/15/15,
http://thehill.com/blogs/congress-blog/homeland-security/244891-surveillance-reform-warscontinue)//GK
The annual Intelligence Authorization bill has become the latest battleground in the ongoing Surveillance Reform War. The bill’s inclusion of
language that would bar the relatively independent Privacy and Civil Liberties Oversight Board from investigating the links between the NSA’s
surveillance programs and covert actions prompted a barrage of amendments to the bill. While originally scheduled to meet Wednesday
afternoon to decide on whether to approve any of the amendments submitted, the GOP majority abruptly cancelled the Rules Committee
meeting, possibly partly in response to the controversy over the attempt to limit the PCLOB’s oversight activities. Another flashpoint is the
attempt by Rep. Thomas Massie (R-Ky.) and Rep. Zoe Lofgren (D-Calif.) to reprise their success last year in moving through the House a
provision that would prevent the government from conducting warrantless searches of American’s stored communications under Sec. 702 of
the FISA Amendments Act. That same amendment would bar the government from mandating that American tech companies build in
encryption back doors. A version was successfully attached to the Fiscal Year 2016 Defense Department appropriations bill yesterday by a vote
of 255 to 174, but the Intel Auth version would make the provisions permanent. The battle over Massie’s Intelligence Authorization bill
amendment within the GOP conference has become heated, with House Intelligence Committee staff circulating talking points claiming that
“The Massie amendment would seriously damage national security and provide little benefit to Americans’ civil liberties.” Left out of the GOP
HPSCI memo is the fact that no less a figure than Director of National Intelligence James Clapper admitted that
Sec. 702 had in
fact been used to conduct warrantless searches of the stored communications of Americans—in violation of
the Fourth Amendment’s probable cause, warrant-based requirement. House surveillance hawks have been on the losing
end of several recent legislative fights, including the passage of the USA Freedom Act and a Massie-led
amendment to the annual Justice Department funding bill prohibiting the use of government funds to undermine encryption standards.
But the USA Freedom Act’s changes to surveillance law were limited to the illegal telephone metadata
program, which the government is seeking to restart—and any appropriations-related reforms may not survive the
legislative process. The situation in the Senate remains decidedly less favorable to surveillance reform
advocates. In a surprise move, Senate Majority Leader Mitch McConnell (R-Ky.) elected to attach a highly controversial cyber security bill to
the annual National Defense Authorization Act. The so-called Cybersecurity Information Sharing Act is opposed by dozens of groups, who
blasted the bill in a March 2015 letter. McConnell’s gambit failed last week when the amendment was derailed by a procedural vote, his second
defeat in as many weeks in his attempt to expand the government’s surveillance authorities. Whether surveillance reformers will be able to
consolidate their House gains remains to be seen. One thing does seem certain. The Surveillance Wars are far from over.
Ex Post CP
AT: Ex Post CP
State secrets doctrine means it’s impossible to determine the basis of a FISA
warrant ex post
Harper 14, University of Chicago Law School, U.S. Department of Justice, Civil Division, (Nick, “FISA’s
Fuzzy Line between Domestic and International Terrorism”, University of Chicago Law Review;
Summer2014, Vol. 81 Issue 3)//AK
Unfortunately, the following cases cannot definitively prove whether FISA currently operates as the
enacting Congress intended. Such knowledge is shielded from the public by several procedural
requirements that kick in when the government decides to prosecute an alleged international terrorist
using evidence derived from FISA surveillance. These procedures make it possible for the government to
push FISA’s targeting language past its limits and make discovery of such abuse especially difficult. This
potential for abuse makes even an imperfect inquiry into the government’s compliance all the more
necessary.
First, the bases for the vast majority of FISA warrants are never reviewed after they receive FISC
approval because of FISA’s unique notice procedures. FISA requires the government to provide notice to
a target of surveillance only when the government seeks to use information “obtained or derived from”
FISA surveillance in an adversarial proceeding.101 The majority of FISA wiretaps never result in criminal
prosecution and are therefore never reviewed by a district court.102 Once the government does decide
to prosecute based on evidence derived from FISA surveillance, it invites scrutiny of its probable cause
finding by a district court judge. However, if the government expansively interprets FISA’s
internationality requirement, it can avoid such oversight when it never uncovers a subsequent
international connection—the cases most likely to receive the greatest ex post scrutiny—simply by
exercising its prosecutorial discretion.
Second, even when the government does prosecute based on FISA-derived evidence, the barriers to
discovery of FISA warrant applications make it difficult to ascertain the government’s basis for initiating
FISA surveillance. Once a defendant files a motion to disclose the FISA application, FISA permits the
government to submit an affidavit from the attorney general stating that “disclosure or an adversary
hearing would harm the national security of the United States.”103 Needless to say, the government
presents this affidavit in response to every motion to disclose or suppress.104 And once the government
submits that affidavit, the district court judge can require disclosure only when “such disclosure is
necessary to make an accurate determination of the legality of the surveillance.”105 At the time of this
writing, only one court has ever deemed it necessary to require disclosure of FISA application materials,
and then only because the defendant’s counsel had top secret security clearance.106 Moreover, that
court was later reversed by the Seventh Circuit.107
One major problem with this practice is that the facts that constitute probable cause are never made
public. This makes it very difficult for district court judges (and defendants) to evaluate whether the
government has established a sufficient international connection. Furthermore, because the
government almost never has to reveal FISA applications, it is difficult for the defendant to even argue
that probable cause did not exist because he does not know when the surveillance started.108 While
the district court judge does see the application, his or her estimation of probable cause could be
affected by hindsight bias in cases in which sufficient international links are exposed as a result of the
surveillance. This is especially likely to occur considering that only the government is given the
opportunity to present arguments to the judge with the full set of facts.
Perm do both – the FAA includes ex post review mechanisms that solve the link
Blum, 9 (Stephanie, “WHAT REALLY IS AT STAKE WITH THE FISA AMENDMENTS ACT OF 2008 AND IDEAS
FOR FUTURE SURVEILLANCE REFORM” 18 B.U. Pub. Int. L.J. 269, Spring, lexis)
If the Note's assertions are true, the FAA has one advantage over the traditional FISA in that the FAA
relies more on ex post mechanisms. For example, the FAA imposes reporting requirements to Congress
n253 and inspector general reviews, n254 rather than relying solely on ex ante warrants issued by a
secret court. While under the FAA the FISC issues ex ante certifications concerning the executive's
targeting and minimization procedures, these are programmatic reviews and not based on
individualized suspicion of suspects as is required by traditional FISA. Given the arguably limited
effectiveness of ex ante warrants issued by a secret court based on one-sided evidence, the FAA's
greater reliance on ex post review mechanisms could be viewed as a significant improvement over
traditional FISA. As Georgetown law professor Neal Katyal observed, "reporting requirements are
powerful devices" that promote external checks on excessive executive power. n255
In contrast, the high degree of judicial deference in ex ante review may simply result from quality
applications. Applications for traditional FISA warrants must survive considerable review by the
executive branch prior to submission to the FISC; hence, it can be presumed that some, if not many,
applications are not brought. As Alan Dershowitz notes, "although the FISA court has only rarely denied
requests for national security wiretaps, the very existence of this court and the requirement of sworn
justification serves as a check on the improper use of the powerful and intrusive technologies that are
permitted in national security cases." n256 Hence, there are two ways to look at ex ante review: one
could either argue that FISA "forces the executive to self-censor its requests," or that the judiciary is
"acting merely as a 'rubber stamp.'" n257 The reality is probably a little of both.
The FAA contains both ex ante and newly imposed ex post review mechanisms. While the ex ante review
under the FAA is not based on individualized determinations about suspects, but rather focuses on
programmatic reviews, because of its heavy ex post reporting mechanisms, it seems that the FAA
creates [*308] a balanced structure that may prevent executive branch abuse while still protecting the
nation from another terrorist attack.
Ex post review alone fails – courts lack institutional expertise to review
surveillance risks
Harvard Law Review, 8 – no author cited, “SHIFTING THE FISA PARADIGM: PROTECTING CIVIL LIBERTIES
BY ELIMINATING EX ANTE JUDICIAL APPROVAL” http://cdn.harvardlawreview.org/wpcontent/uploads/pdfs/shifting_the_FISA_paradigm.pdf
2. Judicially Ordered Notice to Wrongfully Surveilled Persons. — Another approach would provide a
stronger statutory cause of action for improper surveillance, adding an ex post review function to the
FISC. Such a scheme would “provide compensation to individuals subject to the most grievous instances
of unlawful electronic surveillance” by giving the FISC power to “screen for these violations and
discretionarily notify an individual,” and then compensate him or her if appropriate.82 This approach is
commendable for attempting to remedy the lack of adversariality and the fact that improper
surveillance that occurs after a FISC order is issued — when either changed circumstances or invalid
governmental motives never come to light because the government does not attempt criminal
prosecution — may go unchecked.83 But the suggested remedy, to broaden notice by making a
“distinction . . . between disclosure that concretely threatens national security and disclosure that would
merely embarrass the government,” 84 seems unworkable. Such line drawing necessarily involves
crucial policy determinations that the courts are in a bad institutional position to make. Moreover, the
ability of the remedy to provide a check on the government seems at best dubious and could even be
viewed as permitting the government to purchase the ability to invade constitutional liberties.
Ex post is impossible to enforce and amounts to a rubber stamp
Berman, 14 - Visiting Assistant Professor of Law, Brooklyn Law School (Emily Berman, Regulating
Domestic Intelligence Collection, 71 Wash. & Lee L. Rev. 3,
http://scholarlycommons.law.wlu.edu/wlulr/vol71/iss1/5
The suggestion that the FISC approximate the role of traditional judicial review of agency decision
making to impose constraints on discretion will also fail to result in the preservation of civil liberties. As
an initial matter, it is unclear what the extent of the FISC’s review might be. Traditional judicial review of
administrative rules asks whether an agency’s action is consistent with the Constitution and its statutory
mandate or whether it is arbitrary or capricious.319 But when it comes to most intelligence-collection
rules, there is no constitutional or statutory standard against which a court could measure agency
compliance.320 One proposed solution to this baseline problem is to have the FISC review policy for
whether it is consistent with the intelligence agencies’ own stated objectives.321 Again, this proposal
fails to account for the fact that when the intelligence community is left to determine the rules of its
own conduct, concerns other than security will get short shrift. By asking intelligence agencies to
identify their own objectives and then subjecting their efforts to meet those objectives to judicial review
would replicate the current situation—where the constraints on agencies are limited to those that they
agree to place on themselves—but with the added legitimating feature of judicial imprimatur.
Another barrier to enlisting the FISC in intelligencecollection governance is that the intelligencecollection activities governed by the Guidelines extend beyond the scope of the FISC’s jurisdiction. The
FISC oversees electronic foreign intelligence surveillance and physical searches of premises connected
with foreign powers.322 It has no role in overseeing purely domestic surveillance of Americans absent
probable cause that those Americans are agents of a foreign power.323 The content of the Guidelines
and the activities they regulate—such as physical surveillance of Americans, infiltration of religious or
political groups, the use of informants, requests for internet history— rarely fall within the FISC’s
jurisdiction. Individuals who wish to challenge FBI activity—if they can establish standing—do not have
access to the FISC.324 Thus, it is unclear what role the FISC could play in reviewing many activities in
which the FBI engages.
The FISC, too, is likely to share the FBI and ODNI’s bias toward the security mission. Unless a recipient of
a FISC order challenges the legitimacy of that order, proceedings in the FISC are not subject to an
adversarial process.325 Instead, like magistrate judges considering whether to issue traditional search
warrants, FISC judges review unopposed government applications for surveillance orders.326 The FISC
thus receives only the Justice Department’s perspective—heavily informed by the FBI’s perspective—
about any given rule. This concern is compounded by the fact that even the judges themselves largely
hail from the law enforcement community—twelve of the fourteen judges who have served this year
are former prosecutors and one is a former state police director.327 Moreover, once selected by the
Chief Justice of the Supreme Court for FISC service, these judges are exposed to a constant stream of
government applications to engage in foreign intelligence collection detailing just how dangerous the
world can be and the important role that intelligence collection plays in combating those dangers.328
FISC involvement thus serves only to reinforce the pro-security perspective already embedded in the
development of domesticintelligence- collection policies.
Empirically true
Brand, 15 - Dean and Professor Emeritus and Chairman of the Center for Law and Global Justice,
University of San Francisco School of Law (Jeffrey, “Eavesdropping on Our Founding Fathers: How a
Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis” 6 Harv.
Nat'l Sec. J. 16 Harv. Nat'l Sec. J. 1, lexis)
That prediction also came to pass. In 2005, the New York Times revealed the Bush Administration's
Terrorist Surveillance Program (TSP) that authorized warrantless surveillance on a massive scale that
clearly violated the dictates of FISA and the Patriot Act. Initially, the Bush Administration argued that the
program was legal, citing the 9/11 attacks and national security emergencies. Ultimately, a simpler path
was taken: the Administration went to and received ex post facto approval from the FISA court. n189 A
moment of accountability--the Bush Administration's acknowledgement that it had engaged in illegal
surveillance--was side-stepped by simply seeking the approval of the court charged with monitoring the
illegal activity, thereby making the Executive Branch unaccountable yet again. n190
The structure of the FISA court--shrouded in secrecy and devoid of any opposition to the government's
position--also took its toll on the accountability of the Executive Branch to the Congress, a consequence
that also had been roundly predicted during the FISA debates. Senators Abourezk, Hart, and Mathias
candidly acknowledged throughout the debates over S. 3197, "In depth congressional oversight is a
crucial element of the safeguards which justify embarking on the [FISA] legislative scheme." n191
Representative Ertel hoped that [*47] FISA's congressional reporting requirements would serve that
end. n192
Secrecy makes meaningful ex post review impossible
Setty, 15 - Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western
New England University School of Law (Sudha, “Surveillance, Secrecy, and the Search for Meaningful
Accountability” 51 Stan. J Int'l L. 69, Winter, lexis)
The extent of congressional knowledge regarding the NSA Metadata Program is not fully known to the
public and has been the subject of significant debate. Nonetheless, even assuming that Congress was
sufficiently informed as to the potential reach of the PATRIOT Act with regard to surveillance n59 and,
therefore, that the statutory authority for the bulk data collection and storage was sound, the ability of
Congress to effect significant and meaningful ex post oversight appears to be severely limited .
Historically, congressional hearings and investigations have been a powerful tool to rein in executive
branch overreaching. n60 However, it seems that the extreme secrecy surrounding the NSA surveillance
programs undermined the efficacy of these oversight powers, to the point that they may have been
reduced to an ersatz form of accountability. One prominent example stems from a Senate oversight
hearing on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National
Intelligence James Clapper if the NSA was systematically gathering information on the communications
of millions of Americans. n61 Clapper denied this, yet subsequent revelations confirmed that the broad
scope of the data collection included metadata for telephonic communications, as well as content data
for emails, texts, and other such writings. n62 After public discussion of the discrepancy in his testimony,
Clapper commented that he gave the "least most untruthful" answer possible under the circumstances.
n63 Senator Wyden expressed disappointment and frustration that even while under oath at an
oversight hearing, Clapper misled the Senate. n64
The ability for congressional oversight is further hampered by a general lack of access to information
about the details of the NSA Metadata Program n65 and [*82] lack of ability to discuss publicly
whatever knowledge is shared with Congress. n66 In fact, it remains unclear whether senators, including
Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the lapses in NSA procedure until
after such information was leaked to news sources. n67 Further revelations indicate that administration
statements made to Congress even after the Snowden disclosures were not entirely accurate. n68 These
examples are not determinative, but taken together, they raise significant doubt to the extent of
accurate information regarding surveillance programs being made available to congressional oversight
committees, and whether the oversight committees can function as effective accountability measures
n69 without the benefit of illegally leaked information such as the Snowden disclosures.
FISC review only has a weak effect on executive deterrence
Setty, 15 - Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western
New England University School of Law (Sudha, “Surveillance, Secrecy, and the Search for Meaningful
Accountability” 51 Stan. J Int'l L. 69, Winter, lexis)
The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to matters of
foreign intelligence gathering; its judges are appointed in the sole discretion of the Chief Justice of the
United States Supreme Court; its proceedings are secret; its opinions are often secret or are published in
heavily [*83] redacted form; and its process is not adversarial as only government lawyers make
arguments defending the legality of the surveillance being contemplated. n70 Many of these differences
bring into doubt the legitimacy of the court, its ability to afford adequate due process regarding civil
liberties concerns, and its ability to uphold the rule of law in terms of government accountability.
Compounding this legitimacy deficit is the FISC's own loosening of the relevance standard under
Section 215 of the PATRIOT Act such that the FISC has found that bulk data collection without any
particularized threat or connection to terrorism is legally permissible. n71
Historically, the FISC has rejected NSA surveillance applications too infrequently to be considered a
substantial check on government overreach as an ex ante matter. n72 As an ex post matter, it is unclear
to what extent the FISC's work guarantees any meaningful accountability over NSA surveillance
activities. On the one hand, because the FISC lacks an adversarial process and has no independent
investigatory authority, the FISC only addresses ex post compliance problems when the government
itself brings the problem to the court's attention. n73 As such, FISC judges rely on the statements of the
government as to the government's own behavior and lack the authority to investigate the veracity of
the government's representations. n74 For example, in 2011, the FISC found one aspect of the
surveillance program - brought to its attention months after the program went into effect n75 - to be
unconstitutional. n76 Additionally, in one declassified opinion, the FISC critiques the NSA's sloppy overcollection of metadata of U.S. communications, and questions the efficacy of bulk data collection as a
national security measure. n77 At one point, the FISC sanctioned the NSA for overreaching in [*84]
saving all metadata and running daily metadata against an "alert list" of approximately 17,800 phone
numbers, only 10% of which had met FISC's legal standard for reasonable suspicion. n78 On such
occasions, the administration has modified problematic aspects of the surveillance and continued
forward without further impediment by the FISC. n79
On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice
of the FISC n80 indicates at least some internal policing of these programs. However, this is hardly an
effective substitute for external review and accountability mechanisms that would ensure that
consistent controls are in place. Further, the self-reporting of these compliance incidents does not in any
way allow for discourse over the larger structural questions surrounding the surveillance programs.
Finally, the ability of the FISC to act as an effective check on NSA overreaching is severely limited by the
secrecy and lack of information available to the FISC judges. Judge Reggie B. Walton, formerly the Chief
Judge of the FISC, lamented that "the FISC is forced to rely upon the accuracy of the information that is
provided to the Court ... . The FISC does not have the capacity to investigate issues of noncompliance ...
." n81 The ability of the NSA to not only gather and retain bulk metadata, but also to build in backdoor
access into data files despite private encryption efforts has been largely sanctioned by the FISC based on
NSA representations as to the seriousness of the security threats posed to the nation. n82 In an
environment in which there is a tremendous fear of being held responsible for any future terrorist
attack that might occur on U.S. soil, n83 and in which there is a [*85] information deficit for those
outside of the intelligence community, the FISC has consistently deferred to the NSA's assertions and
has not been able to act as an effective accountability mechanism.
Ex post fails – hindsight bias and secrecy
Morgan, 8 - Law Clerk to the Honorable Samuel H. Mays, Jr., United States District Court for the Western
District of Tennessee. J.D., 2007, New York University School of Law (Alexander, “A BROADENED VIEW
OF PRIVACY AS A CHECK AGAINST GOVERNMENT ACCESS TO E-MAIL IN THE UNITED STATES AND THE
UNITED KINGDOM” 40 N.Y.U. J. Int'l L. & Pol. 803, Spring, lexis)
Ex post judicial review is compromised by hindsight bias. n192 Strict reliance on ex post approaches
presupposes that judges charged with determining the sufficiency of original [*836] search
justifications are capable of ignoring potentially inculpatory evidence since uncovered. As with the
notion of a disinterested Home Secretary, this appears at odds with human nature. n193
The delay or outright denial of notice to search targets minimizes the efficacy of judicial review. Without
notice, "the majority of interferences with privacy will be undetected," and most will only learn that
they were surveillance targets if criminal charges follow. n194 By implication, the true extent of
surveillance (and any abuse) remains unknown. n195 Untimely notice also compromises the value of
judicial review because the court will be privy to the fruits of a search already conducted and thus
susceptible to hindsight bias. In the United Kingdom, the Home Secretary never gives notification, n196
and delayed notice is fast growing in the United States through the use of "sneak and peek" warrants.
n197 Gauging the scope of surveillance in the United Kingdom is further frustrated by non-responsive
Tribunal decisions which "simply state whether the determination is favourable ... thus, not necessarily
revealing [if] there has been any interception or its details." n198
[*837] Independent monitors such as the Interception of Communications Commissioner are prone to
hindsight bias and also suffer from distinct shortcomings due to their generalized function. Their general
charge allows them to uncover and address (through recommendations to Parliament) systemic defects
more easily, unlike courts, which are limited to case-by-case review. The converse is that monitors lack
authority to remedy any specific abuses they uncover. n199 Above all, commentators characterize
monitors as helpless because there are too many authorizations to oversee, such that "not all
authorisations are subject to scrutiny; only those selected at random." n200 In sum, the government's
power to withhold notice precludes targets from seeking judicial review, and the result is that many
authorizations are never held "to any form of independent scrutiny." n201
Standing doctrine makes judicial review impossible
Slobogin, 15 – Professor of Psychiatry and Director of Criminal Justice Program at Vanderbilt University
(Christopher, “Standing and Covert Surveillance”, Vanderbilt University Law School Public Law and Legal
Theory, 18 February 2015, Pepperdine Law Review, Forthcoming; Vanderbilt Public Law Research Paper
No. 15-5. , http://ssrn.com/abstract=2567070//gg
By all reports, covert government surveillance activities— surveillance programs meant to be kept secret
from the general public—have expanded tremendously in scope since September 11, 2001.1 Because
much of this surveillance is conducted without a warrant or probable cause, it may violate the Fourth
Amendment or some other constitutional provision.2 But to make that argument in court a litigant must
have standing, which according to the Supreme Court exists only when the challenger can make a
plausible claim of “injury” that is “concrete, particularized, and actual or imminent; fairly traceable to
the challenged action; and redressable by a favorable ruling.”3 Precisely because much modern-day
surveillance is covert, this demanding standing test may be impossible to meet.4 If so, unconstitutional
surveillance programs may be immune from judicial review .5
The NSA and FISA lack notice requirements creating an impossible standing
Slobogin, 15 – Professor of Psychiatry and Director of Criminal Justice Program at Vanderbilt University
(Christopher, “Standing and Covert Surveillance”, Vanderbilt University Law School Public Law and Legal
Theory, 18 February 2015, Pepperdine Law Review, Forthcoming; Vanderbilt Public Law Research Paper
No. 15-5. , http://ssrn.com/abstract=2567070//gg
Thanks to Edward Snowden, the federal government—up to and including President Obama—has been
forced to confirm that the National Security Agency is vacuuming up every phone number we text and
call, and is then subjecting this “metadata” to queries to determine which numbers link with known or
suspected terrorists.9 Press reports suggest that the NSA is also engaging in numerous other types of
“panvasive” surveillance (that is, surveillance that cuts across wide swaths of the population with no
particularized reason to suspect any given subject of terrorist activity or other wrongdoing).10 F.
Michael Maloof of WND has asserted that “[t]he National Security Agency already has access to all the
content of intercepted emails and phone calls, not just the ‘metadata’ such as who contacted who[m],
when and where.”11 Glenn Greenwald, the Guardian journalist who is Snowden’s main conduit to the
outside world, has described XKeyscore, “[a] top secret National Security Agency program” that
purportedly “allows analysts to search with no prior authorization through vast databases containing
emails, online chats and the browsing histories of millions of individuals.”12 Via a program code-named
“Optic Nerve,” the NSA and its British counterpart reportedly have been amassing webcam images of
millions of Yahoo users since at least 2008.
13 A newly disclosed malware program known as “Turbine” allegedly allows the NSA to hack into
computers, computer networks, and phone networks.14 Today Turbine affects thousands of people but
it is predicted to soon to reach “millions.”15 One calculation holds that the NSA “touches” roughly half
of all Internet communications and that, because 68% of those communications are spam, the agency
may have access to all meaningful communication on the Internet.16
Most of this surveillance takes place without any type of judicial authorization,17 or is authorized only
by the Foreign Intelligence Surveillance Court (FISC), which operates in secret.18 Although regulation of
these practices has recently ramped up, even today the decision about what to collect and what to
target and query is largely in the hands of executive agency officials.19 Thus, good arguments can be
made that much, if not all, of this surveillance is unconstitutional under the Fourth Amendment, the
First Amendment, separation of powers doctrine, or some combination thereof.20 But these arguments
may never be fully fleshed out in the courts because of the Supreme Court’s standing doctrine.
The Court’s recent decision in Clapper v. Amnesty International USA21 involved a challenge to section
702 of the Patriot Act, which allows the NSA to intercept communications of non-U.S. persons outside
the United States in the absence of individualized suspicion.22 Despite the plaintiffs’ showing that they
routinely made overseas calls to parties likely to be targeted under section 702, the Court denied them
standing, because they could not show that their calls were in fact intercepted and thus could not prove
that the injury they alleged due to the surveillance was either “actual” or “certainly impending.”
23 As the outcome in Clapper illustrates, because NSA surveillance is, by design, covert, the standing
requirement that plaintiffs allege a “concrete” injury can pose a serious obstacle to parties trying to
challenge it.24 The majority in Clapper nonetheless insisted that “our holding today by no means
insulates [section 702] from judicial review.”25 It noted that the Foreign Intelligence Surveillance Act
requires that the government give notice when it “intends to use or disclose [any] information obtained
or derived from [electronic surveillance]” in a criminal prosecution, and pointed out that, armed with
such notice, the defendant could mount a challenge to section 702.26
Unfortunately, the Court’s optimistic view of how the Foreign Intelligence Surveillance Act’s notice
requirement works was not accurate. First, for undetermined reasons, at the time Clapper was decided
the Department of Justice was not providing the required notice, despite Solicitor General Donald
Verilli’s assertion to the contrary during oral arguments in that case.27 Only in late 2013, apparently
after prodding from Verilli, did the DOJ reverse its policy and begin following the statute; even since
then, however, it is not clear that the DOJ has provided notice every time it is required to do so.28
Moreover, through a process known as “parallel construction,” the government has been known to
launder its surveillance results by surreptitiously providing them to investigators who, clued-in by the
covertly-obtained information, then pursue the investigation through more overt means.29 Thus, even
in connection with interceptions of the contents of electronic communications, standing may be hard to
come by.
More importantly for present purposes, no notice requirement analogous to the provision in section 702
exists in connection with other covert surveillance programs, in particular the metadata and PRISM
programs that collect phone and Internet information.3
Standing blocks judicial review even if the program is unconstitutional
Slobogin, 15 – Professor of Psychiatry and Director of Criminal Justice Program at Vanderbilt University
(Christopher, “Standing and Covert Surveillance”, Vanderbilt University Law School Public Law and Legal
Theory, 18 February 2015, Pepperdine Law Review, Forthcoming; Vanderbilt Public Law Research Paper
No. 15-5. , http://ssrn.com/abstract=2567070//gg
In sum, the federal government is engaged in widespread surveillance that, under current law as
construed by the Supreme Court, may not be challengeable as a practical matter. Programs that could
be blatantly unconstitutional might be allowed to continue unless and until the legislature or the
executive branch decides to shut them down.62 The Supreme Court has made clear that standing need
not be granted simply because unconstitutional government action may otherwise be immune from
judicial review.63 But any government practice that has occasioned as much controversy as the NSA’s
surveillance ought to be subject to such review if a plausible standing argument can be made. The next
two parts of this Article proffer such arguments.
AT: FISC public advocate
A FISA public advocate would just be ignored by the FISC
Slobogin, 15 – Professor of Psychiatry and Director of Criminal Justice Program at Vanderbilt University
(Christopher, “Standing and Covert Surveillance”, Vanderbilt University Law School Public Law and Legal
Theory, 18 February 2015, Pepperdine Law Review, Forthcoming; Vanderbilt Public Law Research Paper
No. 15-5. , http://ssrn.com/abstract=2567070//gg
Other possible mechanisms for challenging the metadata program and related programs are unlikely to
pick up the slack. Of course, as it has with communications interceptions, Congress could grant standing
(and require the predicate notice) to those criminal defendants who are aggrieved by metadata
surveillance.56 But because these programs are even more covert than the Section 702 warrant-based
interceptions involved in Clapper—and given the government’s penchant for engaging in “parallel
construction”57—the chances of such notice would probably be slim to none.58 Congress could also
create a special advocate in the Foreign Intelligence Surveillance Court to represent the interests of
those whose information is queried, a procedure endorsed by President Obama’s special commission
and included in the administration’s recently proposed legislation.59 But whether such an advocate’s
office could be counted on to overcome its governmental provenance and the nonchalance that can
come from proceeding in secret to develop into a vigorous advocate for individual constitutional claims
is at best unclear.60 Moreover, the advocate’s ability to appeal an adverse decision by the FISC is
tenuous.61
Footnote 60:
60 The history of similar internal oversight mechanisms does not inspire optimism in this regard. See
SIMON CHESTERMAN, ONE NATION UNDER SURVEILLANCE: A NEW SOCIAL CONTRACT TO DEFEND
FREEDOM WITHOUT SACRIFICING LIBERTY 80 (2011) (“Secrecy . . . . may facilitate cover-ups, block
investigators, or transform overseers into defenders. . . . [T]here are good reasons to be wary of any
structure that relies entirely on government actors.”).
A FISC public advocate fails – won’t solve cred and the state secrets privilege
allows circumvention
Cetina 14– John Marshall Law School (Daniel, “Balancing Security and Privacy in 21st century America: A
Framework for FISA Court Reform”, John Marshall Law Review, Summer 2014,
http://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/jmlr47&type=Text&id=1540
)//DBI
2. Limitations
These good-faith proposals suffer from numerous flaws. Regarding the first proposal, the ideological
composition of the FISA Court and the judiciary's historic deference to the executive in matters of
foreign affairs113 - especially as applied to domestic defense 114 - suggest that a privacy advocate
would become a token figure without any influence. There is also the critical question of what role a
public advocate would actually assume. Indeed, a "permanently constituted advocate seeking injunctive
relief based on a violation of law in the interest of the general public might be viewed as engaging in a
government function ," but "a private party appointed temporarily to litigate on behalf of the public
might not be considered" a government agent. 115 This distinction could create Appointment Clause
issues.116 Also, the federal government may attempt to circumvent this agent by relying on the state
secrets privilege.117
Likewise, the second proposal suffers from problems. First, the FISA Court judges are appointed from
existing federal districts;118 hence, Congress has already confirmed them. But since the FISA Court is
not a traditional Article III court, 119 what role - if any - the Senate could have in potential confirmations
is unclear at best. Second, requiring a supermajority consensus on FISA Court decisions is a manifestly
unwise decision considering Congress's - and the country's - increasingly polarized nature. 120 Indeed,
absent a supermajority by the sitting president's party, it is highly unlikely Congress could reach such a
substantial threshold consensus on FISA Court surveillance decisions.121 The polarization argument
applies with equal force to the senatorial confrmation suggestion; such hypothetical confirmation
proceedings would arguably be even more rancorous and partisan than regular federal judgeship
confirmations 122 given the controversial nature of the FISA Court and the parties' mutual
obstreperousness. 123
In short, although the two highlighted proposals present promising prospects, their deficiencies
severely blunt their effectiveness . And while some of the proposed remedies may mitigate the
established system's problems from a practical perspective, more is needed to realize true reform. The
FISA Court, along with lower federal courts considering individual surveillance challenges, requires an
articulable substantive remedy that will fairly protect both security interests and privacy interests while
also providing judicial stability and a semblance of decisional uniformity.
Special advocate doesn’t solve and undermines FISA
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast
majority of FISA matters, which involve the application of a probable cause or other factual standard to
case-specific facts and typically implicate the privacy interests of few persons other than the specific
target. Given the nature of FISA proceedings, the participation of an advocate would neither create a
truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate
would be unable to communicate with the target or conduct an independent investigation. Advocate
involvement in run-of-the-mill FISA matters would substantially hamper the work of the Courts without
providing any commensurate benefit in terms of privacy protection or otherwise; indeed, such pervasive
participation could actually undermine the Courts' ability to receive complete and accurate
information on the matters before them.
In those matters in which an outside voice could be helpful, it is critical that the participation of an
advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to
their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a
standing advocate with independent authority to intervene at will could actually be
counterproductive.
Counterplan decimates federal court effectiveness
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
The adoption of many of the measures discussed herein would impose substantial new responsibilities
on the FISC and ultimately the Court of Review. For the Courts to meet such new responsibilities
effectively and with the dispatch often required by national security imperatives, they would need to
receive commensurate augmentation of resources. Depending on what exactly is enacted, the
augmentation may require increased legal or administrative staff , additional judges or devotion of
more of the current judges' time to the work of the Courts, appointment of magistrate judges to work
on the FISC, and enhanced secure spaces and communications facilities. The provision of some of these
resources could well come at the expense of the work of judges in their home districts and circuits,
thereby negatively affecting the operations of their respective federal courts .
We also wish to stress, however, that even significantly increasing resources will not guarantee that all
proposed changes will be successful. Giving new responsibilities to the Courts, while also establishing
more elaborate procedures for the Courts to follow, may actually detract from their ability to identify
and resolve the issues that are most critical to national security and privacy interests. Thoughtful
assessment of the advantages and disadvantages of proposed changes is therefore crucial.
Special advocate fails and increases terror threat
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
In our view, some proposals that have been made - especially those that would create a full-time
independent advocate to oppose a wide range of government applications before the Courts - present
substantial difficulties that would not be resolved by simply increasing the Courts' resources. We
anticipate that this form of advocate participation would not only be cumbersome and resourceintensive , but also would impair the FISC's ability to receive relevant information , thereby degrading
the quality of its decisionmaking. We turn first to this question.
Special advocate fails and causes delay – can’t represent clients or evaluate
facts
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
Recent public debate has focused on matters such as NSA's bulk collection of call detail records under
Section 501 of FISA, codified at 50 U.S.C. § 1861, and the government's acquisition of information
pursuant to Section 702 of FISA , codified at 50 U.S.C. § 1881a. Such matters, however, comprise only a
small portion of the FISC's workload, measured either by number of cases or allocation of time. In all but
a small number of matters, the FISC's role is to apply a probable cause or other factual standard to
target-specific sets of facts and to assess whether the government's proposed minimization procedures
are adequate under the particular circumstances. The authorizations sought in the large majority of
cases do not implicate the privacy interests of many U.S. persons because the collections at issue are
narrowly targeted at particular individuals or entities that have been found to satisfy the applicable legal
standards. Nor, except in a small handful of cases, do such matters present novel or complex legal or
technical issues. Accordingly, as the President's Review Group on Intelligence and Communications
Technologies ("Review Group") has recognized, most FISA cases are similar to law enforcement
applications for search warrants and Title III wiretaps, which also are considered ex parte. Providing for
an advocate in the large majority of cases, then, would be superfluous and would create the unusual
situation in our judicial system of affording , at this stage of the proceedings, greater procedural
protections for suspected foreign agents and international terrorists than for ordinary U.S. citizens in
criminal investigations.
To be sure, genuinely adversarial processes, such as criminal or civil trials, provide an excellent means of
testing a party's factual contentions. But introducing an advocate into the FISA process would not
produce that result. Advocates of the type put forward in various proposals to change FISA would not
actually represent a proposed target of surveillance or any other particular client . For operational
security reasons, such an advocate would not be able to conduct an independent factual investigation ,
e.g., by interviewing the target or the target's associates. An advocate therefore would be of little, if
any, assistance in evaluating the facts of particular cases which, as noted above, is the heart of the
FISC's consideration in the large majority of cases.
Indeed, we are concerned that proposals to create a full-time advocate with the discretion to
participate, or seek leave to participate, in any or all cases would impair rather than improve the FISC's
ability to receive information and rule on applications in an effective and timely manner . Enhanced
resources would help the FISC overcome these impairments, but only to a limited extent. In order to
explain the reasons for these concerns, it is helpful to summarize how the FISC operates.
Advocates fails – delay and crushes effectiveness
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
Introducing an advocate into a substantial number of FISC proceedings would likely slow down and
complicate the Court's information-gathering and consideration of these fact- intensive cases. Under
current FISC rules and practice, in non-emergency cases the government is required to submit proposed
applications to the FISC within seven days of when it seeks to have the final application ruled upon. In
order for an independent advocate to have a meaningful opportunity to review an application, decide
whether he wishes to participate in its consideration, and prepare and submit views to the FISC, and for
the FISC to consider the advocate's submission together with the application, the government would
have to submit a proposed application substantially earlier than the present seven-day period. That
requirement would likely conflict with the government's interest and the public's interest to obtain
expedited consideration of an application or of successive applications when necessary to respond to a
rapidly evolving threat. Moreover, even relatively routine national security investigations often involve
changing facts, such that proposed applications would frequently require change or supplementation.
This process of keeping the FISC and the advocate apprised of changing circumstances over a longer
period of time would be cumbersome and time-consuming .
This prolonged period of consideration in routine cases would also complicate the assignment of
matters to FISC judges because such proceedings would likely extend beyond a judge's normal duty
week. The more cases in which an advocate is involved, the more likely it would be that the Court would
have to modify its current practice of having each FISC judge sit for one week at a time. A different
approach, requiring a judge to engage with FISC matters for longer periods, is likely to require more time
away from judges' home districts, to the detriment of their regular district court work.
The difficulties of such a process would be exacerbated by the need to interact on equal terms with the
applicant and the advocate. In order for the FISC to abide by the procedural and ethical requirements
that apply in adversarial proceedings, and for the advocate to appear on equal footing with the
applicant, the FISC would have to ensure that the advocate was involved in all such interactions in any
case in which the advocate may participate (or, if the advocate must seek leave to participate from the
FISC, perhaps only in those cases where such a request is pending or has been granted). We expect that
the logistical challenges of administering such a three-way process for more than a handful of cases
would be considerable. And even if it were appropriate under the terms of a specific enactment to limit
the involvement of the advocate in such interactions to cases where the advocate has sought or
received leave to participate, the FISC may well need to ensure that the advocate, upon entering a
matter, becomes fully apprised of any interactions that have already occurred.
Special advocate decimates FISA and FISC effectiveness
Bates 14 – United States District Judge for the United States District Court for the District of Columbia,
B.A. from Wesleyan University, J.D. from the University of Maryland School of Law (John, Comments of
the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, 1/10/14,
http://www.judiciary.senate.gov/imo/media/doc/011413RecordSub-Grassley.pdf)//JJ
As a practical matter, a full-time advocate empowered to seek reconsideration in the FISC and to appeal
decisions to the Court of Review would significantly impact the operations of both Courts . An
increased number of reconsideration requests would pose scheduling and logistical challenges in the
FISC's current mode of operations. FISC judges frequently rule on cases toward the end of their duty
week, so in many cases it is highly unlikely that an advocate's request for reconsideration would even
be filed before a sitting judge from a district outside of the District of Columbia area returned to his or
her district. As a result, judges would need to arrange their regular district court schedules to allow for
an additional, return trip to Washington in the event a request for reconsideration were filed. If requests
for reconsideration became sufficiently common, the FISC would likely need to reexamine its current
one-week rotation schedule. Either approach would negatively affect judges' ability to perform their
district court duties.
Oversight CPs
AT: Congressional FISC appointments
Congressional FISC appointments won’t change the FISC
Cetina 14– John Marshall Law School (Daniel, “Balancing Security and Privacy in 21st century America: A
Framework for FISA Court Reform”, John Marshall Law Review, Summer 2014,
http://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/jmlr47&type=Text&id=1540
)//DBI
Likewise, the second proposal suffers from problems. First, the FISA Court judges are appointed from
existing federal districts;118 hence, Congress has already confirmed them. But since the FISA Court is
not a traditional Article III court, 119 what role - if any - the Senate could have in potential confirmations
is unclear at best. Second, requiring a supermajority consensus on FISA Court decisions is a manifestly
unwise decision considering Congress's - and the country's - increasingly polarized nature . 120 Indeed,
absent a supermajority by the sitting president's party, it is highly unlikely Congress could reach such a
substantial threshold consensus on FISA Court surveillance decisions.121 The polarization argument
applies with equal force to the senatorial confrmation suggestion; such hypothetical confirmation
proceedings would arguably be even more rancorous and partisan than regular federal judgeship
confirmations 122 given the controversial nature of the FISA Court and the parties' mutual
obstreperousness. 123
In short, although the two highlighted proposals present promising prospects, their deficiencies
severely blunt their effectiveness . And while some of the proposed remedies may mitigate the
established system's problems from a practical perspective, more is needed to realize true reform. The
FISA Court, along with lower federal courts considering individual surveillance challenges, requires an
articulable substantive remedy that will fairly protect both security interests and privacy interests while
also providing judicial stability and a semblance of decisional uniformity.
AT: Whistleblowers CP
Surveillance disclosures pushed U.S. intelligence capabilities and credibility to
the brink – they collapse hegemony
Mukasey 14 – former U.S. Attorney General, judge for the Southern District of New York, B.A. from
Columbia, LL.B. from Yale (Michael, SAFE AND SURVEILLED: FORMER U.S. ATTORNEY GENERAL MICHAEL
B. MUKASEY ON THE NSA, WIRETAPPING, AND PRISM, National Security Law Journal, 3/25/14,
https://www.nslj.org/wp-content/uploads/3_NatlSecLJ_196-209_Mukasey.pdf)//JJ
What damage has been done to our national security by Snowden’s disclosure? Well, the Defense
Intelligence Agency has prepared a report for the House permanent subcommittee that’s classified, but
what is already clear is that although press reports have focused on NSA foreign intelligence collection,
much of the information that Snowden stole actually relates to current U.S. military operations, and in
the words of [House Permanent Select Committee on Intelligence] Chairman Mike Rogers, is likely to
have “ lethal consequences for our troops in the field.” According to the Ranking Member to the
Committee Dutch Ruppersberger, we have already seen terrorists changing their methods because of
Snowden’s leaks. The operations affected ranged beyond terrorism, into cybercrime, narcotics, and
human trafficking. A program in Latin America that helped rescue women in that part of the world from
human trafficking rings had to be abandoned because documents relating to it were leaked and the
identity of informants was compromised. Vital operations for all four of our military services have been
affected. The exposures as to foreign intelligence operations are potentially devastating . They include,
for example, an NSA report of self-assessment in fifty aspects of counterterrorism that reveals gaps in
our knowledge about the security of Pakistani nuclear material when it’s being transported; of the
capabilities of China’s next generation of fighter aircraft (that includes secrets that were stolen from our
own F35 planes back in 2007); of what plans Russian leaders might have to deal with destabilizing
events, such as large protests or terrorists incidents. The capabilities he has disclosed, thus far, include
how NSA intercepts e-mails, phone calls, and radio transmissions of Taliban fighters in Pakistan; the fact
that NSA is watching the security of Pakistan’s nuclear weapons; that NSA is capable of measuring the
loyalty of CIA recruits in Pakistan; [and] how NSA hacks into telephones in Honk Kong and the rest of
China. Just last weekend, The New York Times carried another leak from the Snowden trove, a story that
describes how NSA has tried— apparently successfully—to penetrate a Chinese manufacturer of
electronic equipment, including communications equipment, [of] Huawei, so that it could monitor what
purchasers of that equipment, including foreign governments, do with it. Right in the body of that story
was the revelation that the Times had withheld certain technical details from the story at the request of
the Obama administration, but nonetheless the Chinese government and Huawei are now on notice of
the effort and can set about taking steps to guard against it.
You want to imagine the nature of the damage that he has done? Think of someone disclosing the
acoustic signature of a nuclear submarine. That’s among the most closely guarded of secrets that we
have, because if it is disclosed, it makes that submarine—an investment of literally billions of dollars—
useless . That is the nature of what he has done to a lot our intelligence capabilities.
It is, of course, no accident that Snowden has wound up in Russia, whose geopolitical goals are
consistent with weakening U.S. intelligence. Russia itself is technologically and economically and
militarily a basket case, but undermining the capabilities of the United States can’t help [but even] the
playing field. The distortion in allocating resources is another byproduct of these disclosures. As you can
imagine, if a single disclosure is made, all possible sources of damage have to be considered and
mitigated to the extent possible. If means and methods are disclosed, adjustments have to be made. If
human assets are disclosed, steps have to be taken to get them and others with whom they may have a
relationship to safety. Two disclosures complicate the problem still further. When you have millions of
documents with varied disclosures, the problem of building a protective wall around what can be
salvaged in each case is one that could absorb virtually the entire resources of even the best- resourced
agency. And, of course, resources devoted to damage control are not then available for the active
protection of our national security. But that’s just the damage within our own intelligence community.
Relationships between the United States and Europe, between European nations themselves, are
undermined because confidence is undermined —and I’m not speaking of the Angela Merkel cellphone
problem. In fact, for years it had been an open secret in the intelligence community [that] Angela
Merkel used a conventional cell phone that could be overheard, and we were by no means the only
country that overheard it. The French were quite active in that regard. Besides, even if we were the only
country, if you’re dealing with a country like Germany that’s been champing at the bit trying to avoid
sanctions on Iran for years, you would certainly want to know what the leaders of that country is saying
in her less-guarded moments.
Rather, what I’m talking about is simply how seriously we can be taken by even our friends. If we can’t
keep secrets secure from somebody like Snowden, how willing do you think foreign intelligence agencies
will be to share information with us? Because the United States is a leader in the gathering of
intelligence , the result is to paralyze western intelligence capabilities and our self-defense . Snowden
and his public handlers . . . have sold the public in general, and some conservatives in particular, on the
idea that what they have disclosed is that the United States Government is secretly spying on all of its
citizens, on their communications, and indeed on all aspects of their lives—of any electronic interaction,
whether through e-mail, banking, telephone calls, card transactions, you name it. They portray Snowden
as romantic and idealistic rather than self-absorbed and traitorous—as someone who more closely
resembles Robin Hood or Paul Revere than Alger Hiss or Benedict Arnold. And the popular press, which
has an ongoing interest in being able to continue to get stories from the Snowden trough, has gone
along with the message in the way it reports information, which guarantees continued access.
What this has produced is kind of an odd coalition of the extreme left, which suspects and opposes any
intelligence-gathering programs [as] an actual or potential infringement of civil liberties, and the
libertarian right, which suspects any branch of government and delights in conjuring up images of Big
Brother so that the narrative of a spying and intrusive government comes very natural to them. As a
result, we saw in the last Congress that almost half of the House of Representatives voted to defund
the programs that I described, led by a coalition of libertarian Republicans and left-wing Democrats.
AT: Executive oversight CP
Internal oversight fails—only a credible perception of oversight solves
Rotenberg, EPIC President and Executive Director, 6-16-15 [Electronic privacy information
center, non-profit research and educational organization established in 1994 to focus
public attention on emerging privacy and civil liberties issues.12 We work with a distinguished panel of
advisors in the fields of law, technology and public policy., COMMENTS OF THE ELECTRONIC PRIVACY
INFORMATION CENTER, file:///C:/Users/Jonah/Downloads/EPIC-12333-PCLOB-Comments-FINAL.pdf]
Schloss2
EO 12333 requires the Intelligence Community to report to the President’s Intelligence Oversight Board (IOB), in a
manner consistent with EO 13462, intelligence activities that the Intelligence Community has reason to believe may be unlawful or
contrary to an executive order or presidential directive.188 Further, the National Security Act of 1947 requires that
Congress be kept “fully and currently informed” about “significant” intelligence activities.189 However, because EO 12333 activities
receive little oversight, the intelligence agencies are left to determine for themselves what “fully and
currently informed” means and thus what information it must share with Congress. So while there exists
a mechanism for oversight, the level of deference given to agencies to determine if they are acting
within the lawful bounds of their authority renders the oversight meaningless. “There’s no clear
definition,” said House Intelligence Committee member Adam Schiff, D-Calif., who discussed whether the NSA had briefed the committee
on its monitoring of German Chancellor Angela Merkel’s cellphone. “We need to have a bigger discussion of what our mutual understanding is
of what we want to be informed of.”190 Simply put, in order to determine whether civil liberties violations have in fact occurred under the
authority of EO 12333, significantly more information is required.191
Even Senator Diane Feinstein, the Chairwoman of the Senate Select Committee on Intelligence who has traditionally defended the
government's use of surveillance authorities, has said that her committee “has not
been able to sufficiently oversee the
programs run under EO 12333.”192 On a related issue, Reggie B. Walton, the FISA Court’s presiding judge, recently wrote that he
recognizes the “potential benefit of better informing the public” about secret surveillance activities.193 And lastly, most saliently stated by
President Obama, “for our intelligence community to be effective over the long haul, we must maintain the trust of the American people, and
people around the world.”194 In July of 2014, EPIC urged PCLOB to review the surveillance activities conducted under EO 12333.195 EPIC
explained how self-regulation
has proven to be ineffective in limiting surveillance overreach.196 While EO
12333 requires a court order to target a United States Person, mass surveillance the NSA conducts
overseas inevitably captures United States Person information.197 And then once captured, all information can
be used and shared without any order from a judge or oversight from Congress.198 Because EO “12333 does not
fall within the purview of the Foreign Intelligence Surveillance Court . . . no neutral arbiter reviews 12333 surveillance for compliance with the
Fourth Amendment.”199 As EPIC previously explained, “[t]he
minimal oversight in place does not even give the
appearance of the checks and balances provided by judicial or congressional oversight. Congress has
admitted to very little oversight of the activities under 12333.200
EPIC testified before Congress in 2012 on transparency and oversight concerns pertaining to the FISA Amendments. EPIC addressed both why
increased transparency is necessary for adequate oversight, and the need for increased oversight
authority.201 A key component to both facets of EPIC’s argument is the need for improved reporting on the activities
conducted under FISA, or analogously, EO 12333. EPIC’s President Marc Rotenberg stated in his testimony, “We might
disagree over whether the federal government engages in too much or too little electronic surveillance, but the annual report of the
Administrative Basis provides a basis to evaluate the effectiveness of wiretap authority, to measure its cost, to even determine the percentage
of communications captured that are relevant to an investigation. These reporting requirements ensure that law enforcement resources are
appropriately and efficiently used while safeguarding important constitutional privacy interests.”
AT: Judicial oversight CP
The state secrets privilege prevents the Supreme Court from ruling against the
government in surveillance cases
Cetina 14– John Marshall Law School (Daniel, “Balancing Security and Privacy in 21st century America: A
Framework for FISA Court Reform”, John Marshall Law Review, Summer 2014,
http://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/jmlr47&type=Text&id=1540
)//DBI
Interestingly - and most problematically - there is not a seminal line of cases involving governmental
surveillance akin to, for example, First Amendment jurisprudence52 or civil rights jurisprudence, 5 3
both of which developed in relatively linear fashions. 54 The dearth of major surveillance cases may be
due to the veritable schizophrenia of salient legislation, which developed sporadically over several
decades. 55
Close examination of certain cases involving federal surveillance yields no discernable formula, test, or
framework to apply in future surveillance controversies. However, two common trends emerge in
surveillance cases: relying56 on the state secrets privilege57 and, relatedly, dismissing for nonjusticiability, 58 specifically lack of standing.59
The state secrets privilege frequently emerges in modern surveillance cases like Hepting v. AT&T.60
When the government is permitted to assert the state secrets privilege6' in the context of surveillance
cases, the privilege allows the government to withhold information regarding the very security
apparatuses and surveillance tactics from which plaintiffs seek relief .62 This withholding leaves
plaintiffs with the paradoxical task of demonstrating injuries that are, due in large part to the state
secrets privilege, incapable of being proven in court.6 3
This is where the justiciability problem arises . 64 Courts often determine that plaintiffs fail to assert
cognizable injuries. For example, in Laird v. Tatum,65 the Court reasoned that the plaintiffs fear of
future harm stemming from governmental surveillance was too attenuated66 and therefore
inappropriate for judicial rectification. 67
Courts cannot hold the government accountable for illegal surveillance now—
multiple cases prove
Greene 14 - John Marshall Law School, B.S. in Political Science (Michael, “Where Has Privacy Gone? How
Surveillance Programs Threaten Expectations Of Privacy”, The John Marshall Journal of Information
Technology & Privacy Law, Summer 2014,
http://heinonline.org/HOL/Page?handle=hein.journals/jmjcila30&div=36&g_sent=1&collection=journals
)//DBI
Suppose you are a member of an unpopular religious organization that has domestic U.S. offices and
international affiliates. You may understand that because of your religion others may be suspicious of
you, or that others do not trust you. If you were to discover that all of your communications had been
wiretapped, stored, and cataloged, and all of these documents and wiretaps and logs were mistakenly
delivered to your home, you would be able to sue the government for unreasonable search and
seizure.1 Unfortunately, that was not the case when, in 2012, the Ninth Circuit Court of Appeals in
California vacated the judgment in Al-Haramain Islamic Foundation, Inc. v. Obama,2 and dismissed the
case when the government invoked the “sovereign immunity” 3 and “state secrets” 4 privileges to
cover up a warrantless wiretap.5 Although the Islamic charity in Al-Haramain had received documents
and logs that outlined the warrantless wiretap of their organization, they were unable to sue the
government and ensure protection from overzealous and unconstitutional search and seizure.6
Unfortunately, the realization of Al-Haramain is not that government agencies possess the technology to
conduct such sweeping surveillance, but that even when they are caught and a plaintiff satisfies all
requirements to seek a relief, the government can protect itself from such lawsuits by invoking broad
protections like “sovereign immunity” or authorizations from intelligence gathering programs.7 AlHaramain is the first lawsuit that addressed recent changes in the authorization of national intelligence
gathering programs. Despite national attention given to this case, intelligence programs operated
unimpeded to absorb and catalog information and communications transmitted through the United
States.
It is fundamental that private citizens have the ability to challenge the constitutionality of policies and
laws that have been enacted and carried out by its representative government. In recent years, and
even months, there has been a deluge of information that has shed light on the abilities of national
intelligence agencies to gather information and records of the communications made by U.S. citizens.
Through information leaks by former workers, it has become known that millions of Americans have
been targeted by intelligence agencies with unprecedented access.8 These agencies have used pressure
on communication and service providers to give direct access to secure private communications with
impunity. With every new information leak, there is a growing distrust and want for change, but so far
plaintiffs do not have the legal ability to challenge these programs.
Clapper v. Amnesty International USA9 was the most recent law- suit addressing national intelligence
programs but it met equally challenging results.10 Clapper was dismissed by the Supreme Court of the
United States for a lack of showing that the plaintiff was injured by warrantless wiretaps.11 Clapper did
not address the important question of whether or not warrantless wiretaps are constitutional.12 The
dismissal created a Catch-22, criticizing secret government programs requires the very information
that the government refuses to disclose. 13 Now that these secret government programs have been
exposed through leaked classified documents, courts cannot be as dismissive without ad- dressing what
so many of these legal battles have been challenging.
Withholding info from defendants is unconstitutional and avoids challenges to
surveillance programs
Greene 14 - John Marshall Law School, B.S. in Political Science (Michael, “Where Has Privacy Gone? How
Surveillance Programs Threaten Expectations Of Privacy”, The John Marshall Journal of Information
Technology & Privacy Law, Summer 2014,
http://heinonline.org/HOL/Page?handle=hein.journals/jmjcila30&div=36&g_sent=1&collection=journals
)//DBI
While proponents for maintaining the current FISA programs have focused on the necessity of national
security, this rationale places the government in a difficult position. If FISA programs have used
information collected through a warrantless wiretap to convict a defendant, the government has yet to
disclose to the defendant that he was in fact monitored, which is a violation of Section 1881a.123 The
inability for a criminal defendant to defend evidence that has been obtained through these programs
violates the defendant’s constitutional right to confront accusers.124 This proves that the abilities for
U.S. citizens to challenge the constitutionality of the FAA of 2008, by Justice Alito’s standard,125 can
never be satisfied and that the FISA surveillance programs have violated constitutional protection of
unreasonable search and seizure under the Fourth Amendment. However, if the government does not
acknowledge the use of information obtained through these warrantless wiretapping programs, there is
no proof that it ”has worked” to stop future terrorist attacks.126
Following the standard created by Justice Alito in Clapper, a plaintiff must prove that an injury in fact is
directly traceable to a surveillance program conducted under Section 1881a.127 This requires that a
plaintiff either shows that the government had no other possible way of obtaining the information on
the target without using warrantless wire- taps or he has direct evidence of being wiretapped without
warrant. This is an impossible standard for plaintiffs to reach because it is a continually moving goal. It
allows for warrantless surveillance to be conducted whenever other alternative surveillance may be
possible. The difference is the breadth and oversight with more traditional routes of gathering
information that often requires a warrant, other than the programs set up in Section 1881a. Plaintiffs
will also have to show that they are actively targeted by the warrantless wiretap programs. Reading
Alito’s decision, plaintiffs are unable to prove an injury in fact based upon the apprehension of possible
surveillance or through collateral surveillance. This restricts plaintiffs’ abilities to challenge the FISA
programs because it narrowly reads Section 1881a “intentional targeting” parameters.128 Plaintiffs will
be hard-pressed to establish an intentional targeting from a collateral targeting when they have contacts
with foreigners. This is primarily a cataloging or descriptor of how surveillance has been conducted, and
skirts the protections for U.S. citizens. Without meeting both of these standards, U.S. persons are unable
to challenge FISA programs.
AT: Transparency CP
Transparency reforms fail – the problem is the surveillance itself is overbroad
Greene 14 - John Marshall Law School, B.S. in Political Science (Michael, “Where Has Privacy Gone? How
Surveillance Programs Threaten Expectations Of Privacy”, The John Marshall Journal of Information
Technology & Privacy Law, Summer 2014,
http://heinonline.org/HOL/Page?handle=hein.journals/jmjcila30&div=36&g_sent=1&collection=journals
)//DBI
SOR= Surveillance Order Reporting Act, STA= Surveillance Transparency Act of 2013
Next, analyzing the SOR Act and STA Act, the focus of these Acts are to push for a more immediate
resolution to some of the concerns that U.S. persons have regarding private companies turning over
their private information to government surveillance programs. However, these legislative pushes run
far shorter than the proposed legislation under the aforementioned ISOR Act. Currently, companies can
only report on the amount of data requests.156 While these requests can be reported in blocks of
1,000, a single request could encompass millions of users.157 The SOR and STA Acts would focus on
refining the language used in the FAA of 2008 to allow private companies to give more detailed reports
regarding the frequency and amount of user data that has been requested under FISC court orders.
All of the above being considered, the SOR and STA Acts are more likely to be passed in Congress and
moving onto the next stage of the legislation process, due to the substantial lobbying of the technology
industry and that these acts will not alter any significant parts of the FAA of 2008. Lobbying by several
large technology companies has increased support in the legislation that would give the companies
more ability to inform their customers and future users about information requests.158 These
companies hope that more transparency will alleviate customer’s concerns about information security.
Endorsement by technology companies also provides more persuasive support to the SOR and ACT Acts
by showcasing the private sector backing of these acts. However, both the SOR and STA Acts still fall
short of offering a substantive solution to the problems of implementing FISA programs because they
do not halt or change any of the policies currently used to collect information .
Standing CP
AT: Standing CP
Standing isn’t enough – clear legislative rules are vital to providing guidance for
courts
Seamon 8 – Professor, University of Idaho College of Law (Richard, “Domestic Surveillance for
International Terrorists: Presidential Power and Fourth Amendment Limits”, Hastings Constitutional Law
Quarterly, Spring 2008, http://www.hastingsconlawquarterly.org/archives/V35/I3/seamon.pdf)//DBI
Legislative rules enforcing the Fourth Amendment can facilitate judicial enforcement not only by
requiring prior judicial authorization for executive surveillance, but also by prescribing substantive
standards for the surveillance. Indeed, FISA prescribes an exhaustively considered standard for
surveillance. 20 0 Legislatively prescribed standards for surveillance can benefit from the legislature's
ability to gather information relevant to balancing government interests in surveillance against
individual privacy interests.20 1 Furthermore, legislatures may be able to make more clear standards
than the courts . Clear rules, in turn, help officials obey the law and give the public notice of what
privacy intrusions are authorized. 2 In addition, the public may better accept surveillance rules made by
their elective representatives than rules made by unelected federal judges.2 °3 Legislative rules can be
revised if they become unacceptable to the public. 0 4 Moreover, legislation can create remedies that
courts alone cannot -such as statutory restrictions on the use of information derived from
surveillance20 5 and sanctions for violations of those restrictions, including criminal sanctions,206 For
those reasons, courts have good reason to give significant weight to legislation that enforces Fourth
Amendment limits on surveillance.20 7
Standing isn’t enough – plaintiffs won’t be able to show they’ve been targeted
Greene 14 - John Marshall Law School, B.S. in Political Science (Michael, “Where Has Privacy Gone? How
Surveillance Programs Threaten Expectations Of Privacy”, The John Marshall Journal of Information
Technology & Privacy Law, Summer 2014,
http://heinonline.org/HOL/Page?handle=hein.journals/jmjcila30&div=36&g_sent=1&collection=journals
)//DBI
ISOR= Intelligence Oversight and Surveillance Reform Act
Analyzing ISOR first, the focus of this act is mainly on reforming the duties of the FISC court, as well as
creating a new form of “judicial constraint.”148 The shortcoming of ISOR is the significant changes to
the FAA of 2008 that are required for it to be implemented.149 The bulk of ISOR seeks to reform the
FISC court by implementing a “Constitutional Advocate to argue against the government when the FISC
is considering significant legal and constitutional questions.”150 This would require the creation of a
new pseudo regulatory agency tailored specifically to the FISC court. Creating this regulatory agency
would create several issues including budget and authority, specifically which branch of the federal
government would the agency be under. ISOR would also declassify significant FISC opinions, which
contain specific interpretations of the law or the Constitution and permit constitutional challenges for
law-abiding Americans who have been professionally impacted by the U.S. government’s collection of
communications.151 Although this would provide a framework for constitutional challenges by private
citizens, this does not address the inabilities for plaintiffs to prove that they were in fact targeted by
NSA surveillance programs.
Minimization procedures are also a significant part of ISOR’s attempt at regaining control over how
surveillance is conducted. ISOR would focus on reasserting the minimization procedures that have been
subverted by the FAA of 2008. The hope under the original FISA scheme was that a judge would act
upon his own volition to minimize the possibility of a U.S. citizen being directly targeted by surveillance
programs.152 However, minimization techniques have been impeded through the assured anonymity
that current FISC court judges have and the FAA of 2008’s elimination of the FISC judge’s power to
challenge the factual predicates of the government’s application.153
Disadvantage answers
Presidential powers
AT: Presidential powers DA
No link – exigent circumstances allows emergency presidential action
Seamon 8 – Professor, University of Idaho College of Law (Richard, “Domestic Surveillance for
International Terrorists: Presidential Power and Fourth Amendment Limits”, Hastings Constitutional Law
Quarterly, Spring 2008, http://www.hastingsconlawquarterly.org/archives/V35/I3/seamon.pdf)//DBI
The hypothetical surveillance order described above, covering all cell phone calls to and from the
doomed Flight 93, falls not only within the intrinsic limits of the President's powers under Article II but
also within the extrinsic limits imposed by the Fourth Amendment. Ordinarily, the Fourth Amendment
requires the government to get a warrant before electronically intercepting phone calls or reading their
mail (presumably including their e-mail). 146 In addition, the Fourth Amendment ordinarily requires a
particularized showing that the monitoring of each phone user is likely to reveal evidence of crime. 147
The traditional Fourth Amendment requirements of a warrant and an individualized showing of
probable cause for a search do not, however, apply to our Flight 93 scenario. The exigent circumstances
doctrine of Fourth Amendment law justifies immediate, warrantless surveillance of all cell phone users
on board the flight.148 Moreover, although the exigent circumstances doctrine normally requires a
particularized showing of probable cause of criminal activity, 149 that showing is unnecessary when
"special needs, beyond the normal need for law enforcement," make the probable cause requirement
impracticable. 50
The Flight 93 scenario thus illustrates the linkage between the President's congressionally irreducible,
intrinsic power under Article II to respond to genuine national security emergencies and extrinsic limits
on that power imposed by the Fourth Amendment. In a "genuine emergency," the President can take
immediate action reasonably necessary to protect national security- even if the action violates
statutory restrictions -and, if the President's action entails a search or seizure (as does Presidentially
authorized electronic surveillance), exigent circumstances in the "special needs" context of national
security will often excuse ordinary Fourth Amendment requirements. In short, the President's power
reasonably to respond to a genuine national security emergency not only is irreducible by Congress but
also satisfies the Fourth Amendment-even if the response entails warrantless, suspicionless searches
and seizures-as long as that response is reasonably justified by the emergency. 51
The perception of protection alone prevents a larger backlash against
presidential power
Small, 8 - United States Air Force Academy (Matthew, “His Eyes are Watching You: Domestic
Surveillance, Civil Liberties and Executive Power during Times of National Crisis”
http://cspc.nonprofitsoapbox.com/storage/documents/Fellows2008/Small.pdf
In fact, reasonable arguments can be made that there is no clearly formed public mandate demanding
the consideration of an American citizen’s right to privacy as important, if not more so, than national
security. There exists only a concern of abridgement of their right, but this concern does not equate to
motivating factor for government constraint. Studies show that from 1974 to 1983 Americans perceived
little impact of privacy invasion, in its rare instances, on their lives (Katz and Tassone 1990, 125).
Simultaneously, however, Americans did not, and still do not,17 favor wiretaps regardless of the
presence of warrants (Katz and Tassone 1990, 130-131). Despite this, it appears that the public realizes
the necessity of the power of the president to abridge certain rights in order to ensure national security.
The public voices its concern but stops far short of forcing the government to restrain itself. Legislatures
listen to the “broad climate of opinion” (Gandy Jr. 2003, 285) and that climate allows President Bush to
act as he did.18 Like Abraham Lincoln, President Bush realized inadequacy within the government
institutions tasked with keeping America safe through the collection of information on internal threats.
In order to effectively combat terrorism, the NSA needed the ability to expand operations within the US.
President Bush, in the manner of his Civil War predecessor, expanded his power to better equip the NSA
to handle the threat. Court cases and legislation concerning wiretapping and intrusive domestic
surveillance techniques only establish guidelines to give degrees of protection, but more importantly
the perception of protection .19 This still leaves the president with the room to maneuver within these
guidelines to maintain national security at the expense of complete civil liberty.
Justice Black’s dissensions shed more light on this paradox that even though the courts deemed
warrantless wiretaps an invasion of privacy, they still continue. There remains those of the persuasion
that wiretapping is a viable information gathering tool and admissible in court with or without an
accompanying warrant because the Forth Amendment is not a protection of privacy. In American
history, domestic surveillance, later to include electronic surveillance, proved necessary to enforce those
laws passed by Congress that quelled rebellion and silenced dissidents. Presently, the USA Patriot Act
and other similar legislation requires an increase in domestic electronic surveillance in order to combat
terrorism; so in the interest of adhering to the letter and the spirit of the law, President Bush must
expand the use of domestic electronic surveillance.
President Bush took the precedent set by his predecessors and acted accordingly when the United
States plummeted into turmoil. What is important now is for the president to realize when his power
has reached its limit. The crux of the problem lies in justifying the remainder of a threat to American
citizens. While the attacks of 9/11 still linger within the American psyche and legislation supports
executive action, this task is less daunting. American citizens can stand some breaches in privacy but
those breaches must not be permanent. Popular sentiment and legislation may currently favor
expanded presidential power but President Bush, or any subsequent president, would be remiss in
assuming that it will remain as such for the duration of the struggle against international terrorism. The
fickle nature of public and Congressional support in the domestic intelligence realm thus requires a
great deal of prudence on the part of the president.
There are some indicators, albeit vague ones, of when domestic surveillance policy should yield to
citizens’ right to privacy. Following the progression witnessed during the Cold War it would be
reasonable to expect that opposition to presidential power would first come in the form of Supreme
Court rulings striking down certain powers as unconstitutional followed by public opinion more heavily
favoring the right to privacy and finally, legislation codifying judicial rulings in accordance with public
opinion. Court cases challenging the president’s power under the USA Patriot Act have already surfaced.
Both the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have
already filed formal complaints against the executive branch. The CCR, in particular, directly attacked
the president’s power to conduct electronic surveillance without a court order as criminal under the
provisions of FISA. Similarly, the Electronic Frontier Foundation sued AT&T for violating free speech and
the right to privacy by aiding the NSA. Although the president has fought these allegations, fighting most
vehemently in the AT&T case, none of the cases reached the Supreme Court. The legal actions
precipitated neither legislative response nor changes in executive policy. If, however, the populous feels
so compelled as to bring the matter before the Supreme Court, the president risks losing the policy
initiative as one or more unfavorable rulings may force Congress to act on behalf of the right to privacy.
The president must take care to ensure that domestic surveillance policies are commensurate with the
actual national security threat.
Although the war has no foreseeable end, the president’s actions must have one. That end must be in
concert with Congress and must demonstrate to the American people that the security of the US, and by
default their own freedom, is better because of it. If not, the president risks losing all legitimacy and
having his power constrained to the point where neither he nor the agencies below him can effectively
protect the nation.
Terrorism answers
Overload turn
Narrowing targeting key to more effective surveillance- solves overload and
resource overstretch
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 13)//AK
Electronic surveillance is a valuable tool for both law enforcement and intelligence gathering, and one
we should continue to use. The problem is electronic surveillance on the entire population, especially
mass surveillance conducted outside of a narrow court order. As we saw in Chapter 11, it doesn’t make
us any safer. In fact, it makes us less safe by diverting resources and attention from things that actually
do make us safer. The solution is to limit data collection and return to targeted—and only targeted —
surveillance. Cybersecurity and information law researcher Axel Arnbak said about government
surveillance, “The front door governed by law; the backdoor governed by game theory.”
What he meant is that the targeted surveillance process is subject to probable cause, warrants, limits in
scope, and other laws designed to protect our security and privacy. Mass surveillance is subject to an
organization’s cold analyses of what it can collect and how likely it is to get away with it. When we give
the NSA the ability to conduct mass surveillance by evading the warrant process, we allow NSA staff to
think more in terms of what’s possible than in terms of what’s legal. We let them grow arrogant and
greedy, and we pay the price.
Bulk surveillance turns the traditional investigative process on its head. Under a normal sequence of
operations, law enforcement has reason to suspect an individual, and applies for a warrant to surveil
that person. Bulk surveillance allows law enforcement to surveil everyone—to develop grounds for
suspicion. This is expressly prohibited by the US Constitution, and with good reason. That’s why a 2014
UN report concluded that mass surveillance threatens international law.
We need legislation that compels intelligence agencies and law enforcement to target their surveillance:
both new legislation and new enforcement of existing legislation. That combination will give law
enforcement only the information it needs, and prevent abuse. The US Supreme Court took a baby step
in this direction in 2013 when it required police officers to obtain a warrant before attaching a GPS
tracking device to a suspect’s car, and another in 2014 when it required police officers to obtain a
warrant before searching the cell phones of people they stopped or arrested.
Mass surveillance makes it less likely to detect terrorism – overload
Tufekci, 15 - Zeynep Tufekci is an assistant professor at the University of North Carolina (“Terror and the
limits of mass surveillance” Financial Times, 2/3, http://blogs.ft.com/the-exchange/2015/02/03/zeyneptufekci-terror-and-the-limits-of-mass-surveillance/
But the assertion that big data is “what it’s all about” when it comes to predicting rare events is not
supported by what we know about how these methods work, and more importantly, don’t work.
Analytics on massive datasets can be powerful in analysing and identifying broad patterns, or events
that occur regularly and frequently, but are singularly unsuited to finding unpredictable, erratic, and rare
needles in huge haystacks. In fact, the bigger the haystack — the more massive the scale and the wider
the scope of the surveillance — the less suited these methods are to finding such exceptional events,
and the more they may serve to direct resources and attention away from appropriate tools and
methods.
After Rigby was killed, GCHQ, Britain’s intelligence service, was criticised by many for failing to stop his
killers, Michael Adebolajo and Michael Adebowale. A lengthy parliamentary inquiry was conducted,
resulting in a 192-page report that lists all the ways in which Adebolajo and Adebowale had brushes with
data surveillance, but were not flagged as two men who were about to kill a soldier on a London street.
GCHQ defended itself by saying that some of the crucial online exchanges had taken place on a platform,
believed to be Facebook, which had not alerted the agency about these men, or the nature of their
postings. The men apparently had numerous exchanges that were extremist in nature, and their
accounts were suspended repeatedly by the platform for violating its terms of service.
“If only Facebook had turned over more data,” the thinking goes.
But that is misleading, and makes sense only with the benefit of hindsight. Seeking larger volumes of
data, such as asking Facebook to alert intelligence agencies every time that it detects a post containing
violence, would deluge the agencies with multiple false leads that would lead to a data quagmire,
rather than clues to impending crimes.
For big data analytics to work, there needs to be a reliable connection between the signal (posting of
violent content) and the event (killing someone). Otherwise, the signal is worse than useless. Millions of
Facebook’s billion-plus users post violent content every day, ranging from routinised movie violence to
atrocious violent rhetoric. Turning over the data from all such occurrences would merely flood the
agencies with “false positives” — erroneous indications for events that actually will not happen. Such
data overload is not without cost, as it takes time and effort to sift through these millions of strands of
hay to confirm that they are, indeed, not needles — especially when we don’t even know what needles
look like. All that the investigators would have would be a lot of open leads with no resolution, taking
away resources from any real investigation. Besides, account suspensions carried out by platforms like
Facebook’s are haphazard, semi-automated and unreliable indicators. The flagging system misses a lot
more violent content than it flags, and it often flags content as inappropriate even when it is not, and
suffers from many biases. Relying on such a haphazard system is not a reasonable path at all.
So is all the hype around big data analytics unjustified? Yes and no. There are appropriate use cases for
which massive datasets are intensely useful, and perform much better than any alternative we can
imagine using conventional methods. Successful examples include using Google searches to figure out
drug interactions that would be too complex and too numerous to analyse one clinical trial at a time, or
using social media to detect national-level swings in our mood (we are indeed happier on Fridays than
on Mondays).
In contrast, consider the “lone wolf” attacker who took hostages at, of all things, a “Lindt Chocolat Café”
in Sydney. Chocolate shops are not regular targets of political violence, and random, crazed men
attacking them is not a pattern on which we can base further identification. Yes, the Sydney attacker
claimed jihadi ideology and brought a black flag with Islamic writing on it, but given the rarity of such
events, it’s not always possible to separate the jihadi rhetoric from issues of mental health — every era’s
mentally ill are affected by the cultural patterns around them. This isn’t a job for big data analytics. (The
fact that the gunman was on bail facing various charges and was known for sending hate letters to the
families of Australian soldiers killed overseas suggests it was a job for traditional policing).
When confronted with their failures in predicting those rare acts of domestic terrorism, here’s what
GCHQ, and indeed the NSA, should have said instead of asking for increased surveillance capabilities:
stop asking us to collect more and more data to perform an impossible task. This glut of data is making
our job harder, not easier, and the expectation that there will never be such incidents, ever, is not
realistic.
Attention should instead be focused on the causal chain that led the Kouachi brothers on their path. It
seems that the French-born duo had an alienated, turbulent youth, and then spent years in French
prisons, where they were transformed from confused and incompetent wannabe jihadis to hardliners
who were both committed and a lot more capable of carrying out complex violence acts than when they
entered the prison. Understanding such paths will almost certainly be more productive for preventing
such events, and will also spare all of us from another real danger: governments that know too much
about their citizens, and a misguided belief in what big data can do to find needles in too-large
haystacks.
Prefer the overload turn – former NSA analysts confirm it
Alhogbani, 15 – J.D. Candidate, The Catholic University of America, Columbus School of Law
(Abdulmajeed, “GOING DARK: SCRATCHING THE SURFACE OF GOVERNMENT SURVEILLANCE” 474
COMMLAW CONSPECTUS [Vol. 23)
Adrienne Kinne, a former analyst at the NSA, exposed the fact that she and her co-workers had been
spying on U.S. soldiers’ phone calls.279 During her tenure at NSA, she was listening in on “everyday,
average, ordinary Americans who happened to be in the Middle East, in our area of intercept and
happened to be making these phone calls on satellite phones.”280 The phone calls were intimate and
NSA employees “routinely shared salacious or tantalizing phone calls that had been intercepted, alerting
office mates to certain time codes of ‘cuts’ that were available on each operator’s computer.”281 These
are but a few of the known abuses that have occurred and should serve as a warning to supporters of
the NSA’s surveillance practices.
The bulk collection program is doing more harm than good, because “[b]y casting the net so wide and
continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack
bigger and it’s harder to find that piece of information that might actually be useful to somebody.”282
Kinne admits that she wasted a significant amount of time listening to innocent Americans, instead of
looking for terrorists in the huge net cast by the NSA’s surveillance program.283
Mass surveillance causes information overload
Eddington, 15 - Patrick Eddington is a policy analyst in homeland security and civil liberties at the Cato
Institute. He was formerly a senior policy advisor to Rep. Rush Holt (D-N.J.) and a military imagery
analyst at the CIA’s National Photographic Interpretation Center (“No, Mass Surveillance Won't Stop
Terrorist Attacks” Reason, 1/27, http://reason.com/archives/2015/01/27/mass-surveillance-andterrorism#.ltrezi:U8Io
No, mass surveillance does not prevent terrorist attacks.
It’s worth remembering that the mass surveillance programs initiated by the U.S. government after the
9/11 attacks—the legal ones and the constitutionally-dubious ones—were premised on the belief that
bin Laden’s hijacker-terrorists were able to pull off the attacks because of a failure to collect enough
data. Yet in their subsequent reports on the attacks, the Congressional Joint Inquiry (2002) and the 9/11
Commission found exactly the opposite. The data to detect (and thus foil) the plots was in the U.S.
government’s hands prior to the attacks; the failures were ones of sharing, analysis, and dissemination.
That malady perfectly describes every intelligence failure from Pearl Harbor to the present day.
The Office of the Director of National Intelligence (created by Congress in 2004) was supposed to be the
answer to the "failure-to-connect-the-dots" problem. Ten years on, the problem remains, the IC
bureaucracy is bigger than ever, and our government is continuing to rely on mass surveillance
programs that have failed time and again to stop terrorists while simultaneously undermining the civil
liberties and personal privacy of every American. The quest to "collect it all," to borrow a phrase from
NSA Director Keith Alexander, only leads to the accumulation of masses of useless information, making
it harder to find real threats and costing billions to store.
A recent Guardian editorial noted that such mass-surveillance myopia is spreading among European
political leaders as well, despite the fact that "terrorists, from 9/11 to the Woolwich jihadists and the
neo-Nazi Anders Breivik, have almost always come to the authorities’ attention before murdering."
Mass surveillance is not only destructive of our liberties, its continued use is a virtual guarantee of
more lethal intelligence failures . And our continued will to disbelieve those facts is a mental dodge we
engage in at our peril.
NSA surveillance fails to prevent terrorism threats- data mining fails- lack of
accuracy, too many false alarms, and data overload
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 11)//AK
The NSA repeatedly uses a connect-the-dots metaphor to justify its surveillance activities. Again and
again—after 9/11, after the Underwear Bomber, after the Boston Marathon bombings—government is
criticized for not connecting the dots. However, this is a terribly misleading metaphor. Connecting the
dots in a coloring book is easy, because they’re all numbered and visible. In real life, the dots can only be
recognized after the fact.
That doesn’t stop us from demanding to know why the authorities couldn’t connect the dots. The
warning signs left by the Fort Hood shooter, the Boston Marathon bombers, and the Isla Vista shooter
look obvious in hindsight. Nassim Taleb, an expert on risk engineering, calls this tendency the “narrative
fallacy.” Humans are natural storytellers, and the world of stories is much more tidy, predictable, and
coherent than reality. Millions of people behave strangely enough to attract the FBI’s notice, and almost
all of them are harmless. The TSA’s no-fly list has over 20,000 people on it. The Terrorist Identities
Datamart Environment, also known as the watch list, has 680,000, 40% of whom have “no recognized
terrorist group affiliation.”
Data mining is offered as the technique that will enable us to connect those dots. But while corporations
are successfully mining our personal data in order to target advertising, detect financial fraud, and
perform other tasks, three critical issues make data mining an inappropriate tool for finding terrorists.
The first, and most important, issue is error rates. For advertising, data mining can be successful even
with a large error rate, but finding terrorists requires a much higher degree of accuracy than datamining systems can possibly provide.
Data mining works best when you’re searching for a well-defined profile, when there are a reasonable
number of events per year, and when the cost of false alarms is low. Detecting credit card fraud is one
of data mining’s security success stories: all credit card companies mine their transaction databases for
spending patterns that indicate a stolen card. There are over a billion active credit cards in circulation in
the United States, and nearly 8% of those are fraudulently used each year. Many credit card thefts share
a pattern —purchases in locations not normally frequented by the cardholder, and purchases of travel,
luxury goods, and easily fenced items—and in many cases data-mining systems can minimize the losses
by preventing fraudulent transactions. The only cost of a false alarm is a phone call to the cardholder
asking her to verify a couple of her purchases.
Similarly, the IRS uses data mining to identify tax evaders, the police use it to predict crime hot spots,
and banks use it to predict loan defaults. These applications have had mixed success, based on the data
and the application, but they’re all within the scope of what data mining can accomplish.
Terrorist plots are different, mostly because whereas fraud is common, terrorist attacks are very rare.
This means that even highly accurate terrorism prediction systems will be so flooded with false alarms
that they will be useless.
The reason lies in the mathematics of detection. All detection systems have errors, and system designers
can tune them to minimize either false positives or false negatives. In a terrorist-detection system, a
false positive occurs when the system mistakenly identifies something harmless as a threat. A false
negative occurs when the system misses an actual attack. Depending on how you “tune” your detection
system, you can increase the number of false positives to assure you are less likely to miss an attack, or
you can reduce the number of false positives at the expense of missing attacks.
Because terrorist attacks are so rare, false positives completely overwhelm the system, no matter how
well you tune. And I mean completely: millions of people will be falsely accused for every real terrorist
plot the system finds, if it ever finds any. We might be able to deal with all of the innocents being
flagged by the system if the cost of false positives were minor. Think about the full-body scanners at
airports. Those alert all the time when scanning people. But a TSA officer can easily check for a false
alarm with a simple pat-down. This doesn’t work for a more general data-based terrorismdetection
system. Each alert requires a lengthy investigation to determine whether it’s real or not. That takes time
and money, and prevents intelligence officers from doing other productive work. Or, more pithily, when
you’re watching everything, you’re not seeing anything.
The US intelligence community also likens finding a terrorist plot to looking for a needle in a haystack.
And, as former NSA director General Keith Alexander said, “you need the haystack to find the needle.”
That statement perfectly illustrates the problem with mass surveillance and bulk collection. When
you’re looking for the needle, the last thing you want to do is pile lots more hay on it. More specifically,
there is no scientific rationale for believing that adding irrelevant data about innocent people makes it
easier to find a terrorist attack, and lots of evidence that it does not. You might be adding slightly more
signal, but you’re also adding much more noise. And despite the NSA’s “collect it all” mentality, its own
documents bear this out. The military intelligence community even talks about the problem of “drinking
from a fire hose”: having so much irrelevant data that it’s impossible to find the important bits.
We saw this problem with the NSA’s eavesdropping program: the false positives overwhelmed the
system. In the years after 9/11, the NSA passed to the FBI thousands of tips per month; every one of
them turned out to be a false alarm. The cost was enormous, and ended up frustrating the FBI agents
who were obligated to investigate all the tips. We also saw this with the Suspicious Activity Reports—or
SAR—database: tens of thousands of reports, and no actual results. And all the telephone metadata the
NSA collected led to just one success: the conviction of a taxi driver who sent $8,500 to a Somali group
that posed no direct threat to the US—and that was probably trumped up so the NSA would have better
talking points in front of Congress.
The second problem with using data-mining techniques to try to uncover terrorist plots is that each
attack is unique. Who would have guessed that two pressure-cooker bombs would be delivered to the
Boston Marathon finish line in backpacks by a Boston college kid and his older brother? Each rare
individual who carries out a terrorist attack will have a disproportionate impact on the criteria used to
decide who’s a likely terrorist, leading to ineffective detection strategies.
The third problem is that the people the NSA is trying to find are wily, and they’re trying to avoid
detection. In the world of personalized marketing, the typical surveillance subject isn’t trying to hide his
activities. That is not true in a police or national security context. An adversarial relationship makes the
problem much harder, and means that most commercial big data analysis tools just don’t work. A
commercial tool can simply ignore people trying to hide and assume benign behavior on the part of
everyone else. Government data-mining techniques can’t do that, because those are the very people
they’re looking for.
Adversaries vary in the sophistication of their ability to avoid surveillance. Most criminals and
terrorists—and political dissidents, sad to say—are pretty unsavvy and make lots of mistakes. But that’s
no justification for data mining; targeted surveillance could potentially identify them just as well. The
question is whether mass surveillance performs sufficiently better than targeted surveillance to justify
its extremely high costs. Several analyses of all the NSA’s efforts indicate that it does not.
The three problems listed above cannot be fixed. Data mining is simply the wrong tool for this job, which
means that all the mass surveillance required to feed it cannot be justified. When he was NSA director,
General Keith Alexander argued that ubiquitous surveillance would have enabled the NSA to prevent
9/11. That seems unlikely. He wasn’t able to prevent the Boston Marathon bombings in 2013, even
though one of the bombers was on the terrorist watch list and both had sloppy social media trails—and
this was after a dozen post-9/11 years of honing techniques. The NSA collected data on the Tsarnaevs
before the bombing, but hadn’t realized that it was more important than the data they collected on
millions of other people.
NSA surveillance fails - limitations of information processing
Barnhizer 13 - Professor Emeritus, Cleveland-Marshall College of Law (David, “Through a PRISM Darkly: Surveillance and Speech
Suppression in the “Post-Democracy Electronic State””, working paper, September 2013, p.56//DM)
It is within such a context I argue that even taking the good intentions of the creators of the NSA’s
surveillance programs at face value they are of very limited utility in practice. In part that is due to the
limits of human ability to process information, recognize its nuances and implications, convert even
accurate interpretations to forms capable of informing others, and convincing them of its significance
and the need to identify actions in real time that can eliminate or mitigate the threat.
There is a substantial degree of irony in the tragic fact that the two New York City bombings that were
attempted failed due to poor technical workmanship, not intelligence activity. The arrest of the bomber
in Washington state who was planning to attack LAX with explosives occurred largely by accidental
discovery at the border. The recent Boston Marathon bombing was not detected beforehand even
though there were clear indicators that indicated a potential threat. The Fort Hood murder by a serving
Army Major, Nidal Hasan, occurred even though he had exchanged e-mails with Anwar al-Awlaki and
had already made statements indicating a degree of radicalization.
As these examples suggest, “Who are we kidding” with the idea of a total information government data
gathering, interpretation and action network that is going to keep us secure against threats? We can
certainly do the data gathering and snooping on everyone and everything. We can “collect”. We can
“store”. We can do some interpretation. But bottom line is that a system that fails to understand the
limitations and vagaries of total data, the inadequacies of human interpretations and information
sharing, and the numerous blockages, delays and distortions of the policy makers that have to approve
action is a “social cancer” rather than a solution.
Cooperation turn
The perception of NSA overreach destroys law enforcement cooperation – it’s a
larger internal link to terrorism
Schulhofer, 13 – professor of law at NYU (Stephen, ““Making Sense of the NSA Metadata Collection
Program (Part II)”, 11/8, http://justsecurity.org/2985/making-sense-nsa-metadata-collection-programpart-ii/)
Efforts like the NSA sweeps actually undermine the counterterrorism effort itself. The reason is that
these types of programs generate profound mistrust of government in general and of law enforcement
in particular. We have already seen dramatic examples in the way that the Snowden revelations of our
spying on allies has angered European leaders and endangered our working relationships with them.
Although this breach eventually will be healed, alienation and mistrust among ordinary citizens is
equally important, and it will not be so easily remedied. That mistrust, in turn, has a strong chilling effect
on the willingness of law-abiding, loyal citizens to cooperate in the counterterrorism effort – for
example by working with officials in local counterterrorism programs or by alerting law enforcement to
various kinds of suspicious behavior. This dynamic has been demonstrated in several decades of
extensive law enforcement research, including research focused specifically on counterterrorism policies
and their impact on Muslim communities in the West. In one study, for example, Muslim-Americans in
New York City were 61% less likely to report potentially suspicious precursors of terrorism when they
felt that counterterrorism policies were being unfairly set and implemented. (See Schulhofer, Tyler &
Huq, American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative,
101 J. Crim. L. & Criminology 335, 364-74 (2011).)
This last point underscores the most important, but least appreciated, “given” of the counterterrorism
enterprise. Because the consequences of a terrorist attack could be so catastrophic, citizens and public
officials alike tend to support strong law enforcement more readily than they do in ordinary times. The
perception is that strong measures are acceptable because the top priority must be to reduce the risk of
attack. And strong measures, whatever their drawbacks, at least seem to offer ways to reduce that risk.
The central lesson of smart law enforcement, however, is that there are no risk-free choices.
Strengthening the powers of the executive enhances some of our defenses against terrorism, but it
weakens others – many of which, including community trust and cooperation, are absolutely essential to
reducing the dangers of terrorism.
Against this background, we must – for the sake of our democracy and even for the sake of our physical
security – find ways to dissipate the cloud of mistrust that now hangs over NSA surveillance.
Information sharing among conventional law enforcement solves – not bulk
data collection
Bergen et al, 14 – a Professor of Practice at Arizona State University and a fellow at Fordham
University's Center on National Security (Peter Bergen, David Sterman, Emily Schneider, and Bailey
Cahall, “Do NSA's Bulk Surveillance Programs Stop Terrorists?”, New America Foundation, 1/13/2014,
https://static.newamerica.org/attachments/1311-do-nsas-bulk-surveillance-programs-stopterrorists/IS_NSA_surveillance.pdf)//MBB
Finally, the overall problem for U.S. counterterrorism officials is not that they need vaster amounts of
information from the bulk surveillance programs, but that they don’t sufficiently understand or widely
share the information they already possess that was derived from conventional law enforcement and
intelligence techniques. This was true for two of the 9/11 hijackers who were known to be in the United
States before the attacks on New York and Washington, as well as with the case of Chicago resident
David Coleman Headley, who helped plan the 2008 terrorist attacks in Mumbai, and it is the unfortunate
pattern we have also seen in several other significant terrorism cases.
No link – US companies
Snowden leaks mean terrorists won’t use US companies
Young 14– President and General Counsel of Ronin Analytics, LLC. and former NSA senior leader (Mark,
“National Insecurity: The Impacts of Illegal Disclosures of Classified Information”, I/S: A Journal of Law
and Policy for the Information Society, 2014,
http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Young-Article.pdf)//DBI
Terror Groups. It is likely that terrorist groups will change how they conceive, plan, and execute terrorist
attacks as a result of the classified intelligence information now exposed to the public. Terrorist groups
continuously adjust their methodologies for attacking their targets58, but the recent disclosures provide
a roadmap for terror groups to avoid detection.
A similar example of how terrorist groups adjust their planning and communication techniques in
response to the disclosure of classified information is found in the 9/11 Commission Report. Referring to
a 1998 Washington Times story disclosing that Osama Bin Laden communicated via a satellite phone,
the Commission noted that al Qaeda's senior leadership “had stopped using a particular means of
communication almost immediately after a leak to The Washington Times. This made it much more
difficult for the National Security Agency to intercept his conversations.”59 Despite the controversy
surrounding this story, it makes logical sense that terror groups will not use technologies reportedly
monitored by those who seek to disrupt their plans.
Similar changes in terror group practices as reported by the New York Times can be anticipated with the
Snowden disclosures. The details of how intelligence targets will alter their practices are speculative
given the obscurity of terrorist methodologies, but a few points are clear.
If the reports are true and NSA can exploit60 the “worldwide use of nine U.S.-based Internet service
providers, including Google, Yahoo, Skype and YouTube,” then it is reasonable to assume that terrorist
groups using these technologies or services will discontinue use of these services. According to the
New York Times, the Snowden disclosures resulted in jihadists posting Arabic news articles about [NSA’s
capabilities] ... and recommended fellow jihadists to be very cautious, not to give their real phone
number and other such information when registering for a website.” 61 Similar posts recommending
jihadists use “privacy-protecting email systems like The Onion Router, to hide their computer’s IP
address, and to use encrypted links to access jihadi forums”62 provide direct evidence that the recent
disclosures will change how terrorists plan and conduct their attacks.
Another example concerns alleged NSA access to Skype. Purchased by Microsoft in 2011, Skype claims
to employ standard encryption to protect users from hackers and criminals.63 Documents published by
the Guardian suggest that NSA may have had access to Skype servers.64 Despite this suggested access,
others claim that Skype calls made to other Skype customers were untraceable because of Skype
corporate location. “Skype is located in Luxembourg (outside of the United States), and...[encryption]
keys used by Skype cannot be turned over to the FBI because Skype does not hold the keys themselves.
The key is only known by the computers using the program to connect with each other, and Internet
communication is inherently hard to trace because of how packets can be routed.”65
As early as 2011, reports described how terrorist use of Skype was hindering law enforcement in India.
According to the Times of India, “Terrorist organizations targeting India have moved their
communications significantly to Internet and other possible innovative means, denying Indian
intelligence agencies any major breakthrough yet in their post-Mumbai blasts investigations.” 66
Kashmiri terrorists are reportedly using smart phones and Skype according to a senior Indian Army
officer. Terrorists, like the general population, migrate to technologies that enhance communications.
The popularity and proliferation of Skype supports the hypothesis that international terror groups have
used Skype.
Regardless of the validity of the reports of NSA access to Skype servers or the inability of access to Skype
communications, the new attention to alleged Skype vulnerabilities will encourage illicit users to move
to other technologies. By exposing real or imagined capabilities of the U.S. Intelligence Community,
potential state and non-state targets of electronic surveillance are better equipped to avoid surveillance
by avoiding specific technologies and technical services.
One such service is the Society for Worldwide Interbank Financial Telecommunications (SWIFT) network.
SWIFT, a member-owned cooperative, enables the standardized exchange of proprietary financial data
such as payments, securities, and bank commodity trades.67 Financial transactions, such as those
facilitated by SWIFT, are a direct concern to counterterrorism officials. The 9/11 Commission noted,
“Vigorous efforts to track terrorist financing must remain front and center in U.S. counterterrorism
efforts. The government has recognized that information about terrorist money helps us understand
their network, search them out, and disrupt their operations.”68
In support of this understanding, an intergovernmental policymaking group established to address
money laundering issues in 1989 expanded its mission to include “identifying sources and methods of
terrorist financing and adopted nine special recommendations on terrorist financing to track terrorists’
funds.”69 The Financial Action Task Force on Money Laundering, comprising 36 member countries,
develops and promotes “policies to combat money laundering and terrorist financing.”
Because terror financing became a priority well before September 11, 2001 the European Union and
U.S. began to permit US agencies “limited access to bank data transferred through the SWIFT network.”
The agreement supported the US Terrorist Finance Tracking Program established after the September
11 attacks.70 Recent disclosures have focused attention on the data reportedly accessed by NSA.
In response to this arrangement being made public, the European Union has threatened to “suspend or
even terminate the crucial EU-US Terrorist Finance Tracking Programme.”71 The national security
impact of this disclosure is the potential loss of an apparently valued source of financial intelligence.72
The importance of terrorist financing is self-evident. If, pursuant to an international agreement, NSA had
access to international money transfers, it is reasonable to believe that U.S. intelligence community was
well positioned to interdict the planning and execution of violent actions against the U.S. of her allies. If
financial transfers are moved as a result of the illicit disclosures of collection of networks such as SWIFT,
then U.S. understanding and ability to prevent terrorist actions is significantly degraded.
Snowden’s disclosures have already changed terror group’s practices making it more difficult for U.S.
intelligence agencies to provide warnings about terror groups’ plans and intentions. The loss of insight
into these targets diminishes U.S. security, but also prevents the U.S. from sharing information with its
allies and partners, diminishing U.S. global influence. The net effect of Snowden’s disclosures is to
increase terrorist consciousness of their own vulnerabilities. Their response has been immediate and
may have a dangerous cumulative effect.73
No link – surveillance can’t solve
No data proves surveillance reduces terrorism risks
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, “Surveillance Costs: The
NSA’s Impact on the Economy, Internet Freedom & Cybersecurity” July,
https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internetfreedom-cybersecurity/
So far, the purported benefits of the programs remain unsubstantiated. While intelligence officials and
representatives of the Obama Administration have defended the merits of the NSA programs,18 they
have offered little hard evidence to prove their value. To the contrary, initial analyses of the NSA’s bulk
records collection program suggest that its benefits are dubious at best, particularly compared to the
program’s vast breadth. A January 2014 study from the New America Foundation’s International
Security Program, for example, concluded that “the government’s claims about the role that NSA ‘bulk’
surveillance of phone and email communications records has had in keeping the United States safe from
terrorism… are overblown and even misleading.”19 Similarly, in its review of the telephone records
collection program under Section 215 of the USA PATRIOT Act, the Privacy and Civil Liberties Oversight
Board (PCLOB) could not identify a single instance in which the telephone records program made a
concrete difference in the outcome of a counterterrorism investigation.20 The President’s Review Group
concurred, emphasizing that “there is always a possibility that acquisition of more information—
whether in the US or abroad—might ultimately prove helpful. But that abstract possibility does not, by
itself, provide a sufficient justification for acquiring more information.”21 Although the PCLOB did find in
a separate report that “the information the [Section 702] program collects has been valuable and
effective in protecting the nation’s security and producing useful foreign intelligence,”22 it provided no
details and did not weigh those purported benefits against the various costs of the surveillance.
Furthermore, its conclusions were undermined just days later when The Washington Post revealed that
nine out of ten of the Internet users swept up in the NSA’s Section 702 surveillance are not legally
targeted foreigners.23
The disad’s understanding of terrorism is flawed – no one single program
contributes to the entirety of effective counter-terror
Sanchez 15* Washington, D.C.–based writer, policy analyst, and journalist who covers the intersection
of privacy, technology, and politics (Julian, “GOVERNMENT DISCRETION IN THE AGE OF BULK DATA
COLLECTION: AN INADEQUATE LIMITATION?”, Federalist Edition Volume 2 p.27-29)//GK
On the flip side, when talking about our security interests, we should be much more precise in the way we
talk about “balancing” them against privacy.26 Typically the way these “balancing” arguments proceed is that we have, on the
one side, the particular invasion at issue under a particular program—the collection of telephone records or the collection of
international communications—and on the other side, the full weight of the entire national security interest in
preventing catastrophic terrorist attacks.27 This is not a serious way to do cost-benefit analysis. If every
particularized invasion is always weighed against the full interest in pre-venting a nuclear bomb from going off
in New York, privacy will lose on every occasion.28 A more helpful way to frame the policy question would be
something like this: If the annualized risk for an American of dying in a terror attack is 1 in 3.5 million,29 does a
particular program—let’s say the bulk collection of telephone records— reduce that risk at the margin, compared with
more targeted collection of telephone records, by enough to justify that invasion? Is it a reduction from 1 in 3.5
million to 1 in 4 million or 1 in 3.51 million? That would be a more useful discussion to have, in large part because when we look back
at the track record of the programs we have seen disclosed over the past decade, they often do not live up to their
initial billing. In the aftermath of that initial New York Times story about the warrantless wiretap component of the larger
STELLARWIND program—authorized by President Bush31—Dick Cheney (among others) said that this was a program that
had doubtlessly saved thousands of lives and averted numerous catastrophic terror attacks.32 About five years later, the
inspectors general of the intelligence community looked into it and found that the intelligence officials they spoke to
were hard pressed to identify concrete intelligence successes attributable to the program.33 In other
anonymous interviews, many officials connected to that program suggested that it did not produce any really unique
intelligence, and that the success stories cited publicly on behalf of this program involved people who were already
under surveillance by traditional methods, targeted by the warrants that the FBI had applied for and secured.34
AT: Delay link
Zero data supports a delay link
Alhogbani, 15 – J.D. Candidate, The Catholic University of America, Columbus School of Law
(Abdulmajeed, “GOING DARK: SCRATCHING THE SURFACE OF GOVERNMENT SURVEILLANCE” 474
COMMLAW CONSPECTUS [Vol. 23)
The legislation in question was enacted in response to 9/11.229 Section 215 “enables the Government
to quickly analyze past connections and chains of communication, and increases the NSA’s ability to
rapidly detect persons affiliated with the identified foreign terrorist organizations.”230 The government
acknowledges that other methods are available, but claim that they are complex and time-consuming,
and might jeopardize the NSA’s counter-terrorism efforts.231 According to General Keith Alexander, the
former NSA director, surveillance gathered pursuant to section 215 has thwarted fifty potential terrorist
attacks since September 11, 2001, including at least ten on American soil.232 Yet the government has
not offered a single case “in which NSA’s bulk metadata collection actually stopped an imminent attack,
or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” 233
It is difficult to accept the NSA’s assertion that the time-sensitive nature of the counterterrorism
program is a compelling enough reason to intrude on the citizenry’s privacy rights. Less intrusive
methods that require a heightened level of scrutiny, which may be slightly more time-consuming, must
be set in place. The first step is transparency, so the American people and elected officials know the
extent of the NSA’s surveillance practices. The second step is for legislators and courts to recognize that
the NSA’s rationale is unreasonable. Finally, legislators need to amend the regulations governing NSA
surveillance.
FISA emergency provision would apply if delay threatened an ongoing
investigation
Patel and Goitein, 15 – *co-director of the Liberty and National Security Program at the Brennan Center
for Justice AND ** co-directs the Brennan Center for Justice’s Liberty and National Security Program
(Faiza and Liza, “Fixing the FISA Court by Fixing FISA: A Response to Carrie Cordero” 4/8, Lawfare,
http://www.lawfareblog.com/fixing-fisa-court-fixing-fisa-response-carrie-cordero
If programmatic surveillance ends (as we recommend), there is still no reason to fear that time-sensitive
investigations will be jeopardized by the participation of a Special Advocate. There is already a generous
provision for emergencies in FISA, which allows the government to begin surveillance before even
submitting an application to the FISA Court and to continue that surveillance pending the court’s ruling.
The Justice Department need only certify that there’s an emergency situation and that the surveillance
meets the necessary legal criteria. This provision would not be disturbed under our proposal.
AT: Data retention link
Data retention undermines terrorism investigations – compromises speed, risks
leaks
Rotenberg, EPIC President and Executive Director, 6-16-15 [Electronic privacy information
center, non-profit research and educational organization established in 1994 to focus
public attention on emerging privacy and civil liberties issues.12 We work with a distinguished panel of
advisors in the fields of law, technology and public policy., COMMENTS OF THE ELECTRONIC PRIVACY
INFORMATION CENTER, file:///C:/Users/Jonah/Downloads/EPIC-12333-PCLOB-Comments-FINAL.pdf]
Schloss2
This need for increased minimization and data security is especially acute in light of the federal
government’s inability to protect sensitive personal information. Just this month, the Office of Personnel
Management announced a massive data breach in the federal government’s employee database that
resulted exposure of sensitive personal information for 4 million government employees.141 Such
failures in the protection of its own employees create serious concerns about the protection of US
Persons information being retained under surveillance programs.
Finally, agencies should ensure the prompt deletion—once discovered—of any 12333-intercepted
communication in which (a) a United States person is a participant, or (b) information is revealed about
a United States person, unless it is directly relevant to a specific, authorized national security/terrorism
investigation or is necessary to prevent serious harm to others.
The President’s Review Group on Intelligence and Communication Technologies recommended that “if
the communication either includes a United States person as a participant or reveals information about
a United States person: (1) any information about that United States person should be purged upon
detection unless it either has foreign intelligence value or is necessary to prevent serious harm to
others.”142 Furthermore, “broad data retention requirements impose not only expensive technical
compliance burdens, but also may jeopardize the speed and accuracy of investigations.”143
These recommendations will ensure that agencies are protecting Americans data under EO 12333 from
unnecessary retention and aligning the program with the requirements under the Privacy Act.
AT: Bulk data links
Bulk surveillance doesn’t help – only used in 4.4% of scenarios
Bergen et al, 14 – a Professor of Practice at Arizona State University and a fellow at Fordham
University's Center on National Security (Peter Bergen, David Sterman, Emily Schneider, and Bailey
Cahall, “Do NSA's Bulk Surveillance Programs Stop Terrorists?”, New America Foundation, 1/13/2014,
https://static.newamerica.org/attachments/1311-do-nsas-bulk-surveillance-programs-stopterrorists/IS_NSA_surveillance.pdf)//MBB
On June 5, 2013, the Guardian broke the first story in what would become a flood of revelations
regarding the extent and nature of the NSA’s surveillance programs.1 Facing an uproar over the threat
such programs posed to privacy, the Obama administration scrambled to defend them as legal and
essential to U.S. national security and counterterrorism. Two weeks after the first leaks by former NSA
contractor Edward Snowden were published, President Obama defended the NSA surveillance programs
during a visit to Berlin, saying: “We know of at least 50 threats that have been averted because of this
information not just in the United States, but, in some cases, threats here in Germany. So lives have
been saved.”2 Gen. Keith Alexander, the director of the NSA, testified before Congress that: “the
information gathered from these programs provided the U.S. government with critical leads to help
prevent over 50 potential terrorist events in more than 20 countries around the world.”3 Rep. Mike
Rogers (R- Mich.), chairman of the House Permanent Select Committee on Intelligence, said on the
House floor in July that “54 times [the NSA programs] stopped and thwarted terrorist attacks both here
and in Europe – saving real lives.”4
However, our review of the government’s claims about the role that NSA “bulk” surveillance of phone
and email communications records has had in keeping the United States safe from terrorism shows that
these claims are overblown and even misleading.* An in-depth analysis of 225 individuals recruited by
al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States
with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use
of informants, tips from local communities, and targeted intelligence operations, provided the initial
impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance
programs to these cases was minimal. Indeed, the controversial bulk collection of American telephone
metadata, which includes the telephone numbers that originate and receive calls, as well as the time
and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, appears to
have played an identifiable role in, at most, 1.8 percent of these cases. NSA programs involving the
surveillance of non-U.S. persons outside of the United States under Section 702 of the FISA
Amendments Act played a role in 4.4 percent of the terrorism cases we examined, and NSA surveillance
under an unidentified authority played a role in 1.3 percent of the cases we examined. Regular FISA
warrants not issued in connection with Section 215 or Section 702, which are the traditional means for
investigating foreign persons, were used in at least 48 (21 percent) of the cases we looked at, although
it’s unclear whether these warrants played an initiating role or were used at a later point in the
investigation. (Click on the link to go to a database of all 225 individuals, complete with additional
details about them and the government’s investigations of these cases:
http://natsec.newamerica.net/nsa/analysis).
Bulk data collection doesn’t prevent terrorism – no data supports and already
existing intelligence is sufficient
Bergen et al, 14 – a Professor of Practice at Arizona State University and a fellow at Fordham
University's Center on National Security (Peter Bergen, David Sterman, Emily Schneider, and Bailey
Cahall, “Do NSA's Bulk Surveillance Programs Stop Terrorists?”, New America Foundation, 1/13/2014,
https://static.newamerica.org/attachments/1311-do-nsas-bulk-surveillance-programs-stopterrorists/IS_NSA_surveillance.pdf)//MBB
D. The administration has repeatedly exaggerated the role of NSA bulk surveillance programs in
preventing terrorism and is misleading the public when it says that 9/11 could have been prevented by
such programs when, in fact, better information-sharing about already existing intelligence would have
been far more effective in preventing 9/11.
Members of Congress, senior government officials, and NSA officials have justified the programs with
statements about how many terrorist events the surveillance programs have foiled – citing a total of 54
“events” around the globe, of which 13 were in the United States – and have warned of the risk of a
future 9/11-like attack if the programs were curtailed. As mentioned above, President Obama defended
the NSA surveillance programs during a visit to Berlin in June, saying: “We know of at least 50 threats
that have been averted because of this information not just in the United States, but, in some cases,
threats here in Germany. So lives have been saved.”39 Gen. Alexander testified before Congress that:
“the information gathered from these programs provided the U.S. government with critical leads to help
prevent over 50 potential terrorist events in more than 20 countries around the world.”40 Rep. Mike
Rogers, chairman of the House Permanent Select Committee on Intelligence, said on the chamber floor
in July that NSA programs “stopped and thwarted terrorist attacks both here and in Europe – saving real
lives” a total of 54 times.41
The government’s defense has demonstrated a lack of precision regarding the exact nature of the
threats in the terrorism cases the government has claimed were prevented by NSA surveillance. Were
they real attacks that were thwarted? Serious plots that were still somewhere in the planning stages?
Plots that were concerning, but never really operational? Or did they involve some sort of terrorismsupport activity, such as fundraising? President Obama has called them “threats,” Gen. Alexander called
them “events” and then later used the term “activities,” while Rep. Rogers and one of Gen. Alexander’s
slides at the 2013 Black Hat conference referred to them as “attacks.”42
Sen. Leahy brought attention to this disconnect at a Senate Judiciary Committee hearing in July 2013,
saying he had been shown a classified list of “terrorist events” detected through surveillance which did
not show that “dozens or even several terrorist plots” had been thwarted by the collection of American
telephone metadata under Section 215.43 Sen. Leahy asked Gen. Alexander: “Would you agree that the
54 cases that keep getting cited by the administration were not all plots, and of the 54, only 13 had
some nexus to the U.S.?” and Gen. Alexander’s reply was a simple “Yes.”44 On this key point, beyond his
one-word answer, the NSA director did not elaborate while under oath.
Leading reporters have sometimes simply parroted the government claims that more than 50 attacks
have been averted. Bob Schieffer of CBS News, for instance, said on “Face the Nation” on July 28: “Fiftysix terror plots here and abroad have been thwarted by the NASA [sic] program. So what’s wrong with it,
then, if it’s managed to stop 56 terrorist attacks? That sounds like a pretty good record.”45 This
misrepresentation in the media most likely stems from confusion about what this oft-cited 54 number
really refers to – terrorist activity such as fundraising, plots that were really only notional, or actual
averted attacks. Despite the government’s narrative that NSA surveillance of some kind prevented 13
domestic “events” or “attacks” in the United States, of the eight cases we have identified as possibly
involving the NSA, including the three the government has not claimed, only one can be said to involve
an operational al-Qaeda plot to conduct an attack within the United States, three were notional plots,
and one involved an attack plan in Europe. And in three of the plots we identified as possibly having
been prevented by the NSA – Moalin, Muhtorov and Jumaev, and Warsame – the defendants were
committing or allegedly committing crimes of support for a terrorist group, rather than plotting terrorist
attacks.
The administration has also deliberately tried to present the issue as one of preventing future 9/11s,
taking advantage of the emotional resonances of that day. However, our review suggests that this
rhetorical framing does not in any way accurately reflect the character of the plots that might be cited to
justify the NSA programs. NSA talking points acquired by Al Jazeera through a Freedom of Information
Act request, for example, demonstrate that the administration considered the 9/11 attacks a key point
in its defense of the NSA programs. The talking points included statements such as, “NSA AND ITS
PARTNERS MUST MAKE SURE WE CONNECT THE DOTS SO THAT THE NATION IS NEVER ATTACKED AGAIN
LIKE IT WAS ON 9/11.”46 Spokespeople were also encouraged to use “SOUND BITES THAT RESONATE,”
specifically, “I MUCH PREFER TO BE HERE TODAY EXPLAINING THESE PROGRAMS, THAN EXPLAINING
ANOTHER 9/11 EVENT THAT WE WERE NOT ABLE TO PREVENT.”47
Administration officials have adhered to the talking points’ advice to utilize the 9/11 attacks to defend
the program. During a House intelligence committee hearing on June 18, 2013, Gen. Alexander invoked
9/11 using language very close to that in the talking points, stating, “Let me start by saying that I would
much rather be here today debating this point than trying to explain how we failed to prevent another
9/11.”48 Indeed, the need to prevent a future 9/11 functions as the central framing for the
administration’s case. In an October 29, 2013, House intelligence committee hearing on the NSA
programs featuring Gen. Alexander and Director of National Intelligence James Clapper, the 9/11 attacks
were mentioned 14 times.49
On December 27, 2013, in a federal court ruling that the NSA’s bulk collection of American telephone
records is lawful, U.S. District Judge William H. Pauley III of New York cited Gen. Alexander’s June 18
testimony and quoted him, saying, “We couldn't connect the dots because we didn’t have the dots.”50
But is it really the case that the U.S. intelligence community didn’t have the “dots” in the lead-up to
9/11?51 Hardly. In fact, the intelligence community provided repeated strategic warnings in the summer
of 9/11 that al- Qaeda was planning large-scale attacks on American interests. Here is a representative
sampling of the CIA threat reporting that was distributed to Bush administration officials during the
spring and summer of 2001, according to the 9/11 Commission Report:
Imminent,” June 23.
The failure to respond adequately to these warnings was a policy failure by the Bush administration,
not an intelligence failure by the U.S. intelligence community.
Targeted surveillance and information-sharing stop terrorism – bulk data
collection is irrelevant
Bergen et al, 14 – a Professor of Practice at Arizona State University and a fellow at Fordham
University's Center on National Security (Peter Bergen, David Sterman, Emily Schneider, and Bailey
Cahall, “Do NSA's Bulk Surveillance Programs Stop Terrorists?”, New America Foundation, 1/13/2014,
https://static.newamerica.org/attachments/1311-do-nsas-bulk-surveillance-programs-stopterrorists/IS_NSA_surveillance.pdf)//MBB
These multiple missed opportunities challenge the administration’s claims that the NSA’s bulk
surveillance program could have prevented the 9/11 attacks. The key problem was one of informationsharing, not lack of information. If information-sharing had been functioning, Mihdhar would likely have
been caught regardless of the collection of telephone metadata, and if information- sharing was not
functioning, it is unclear why collecting more information would have changed the result. Even if
Mihdhar’s phone calls from San Diego to Yemen is considered a moment for preventing the 9/11
attacks, it is likely that more targeted surveillance of that phone number rather than bulk collection of
metadata would have been sufficient. Communications to and from the house in Yemen were already
being intercepted by the NSA as a result of investigations into the 1998 U.S. embassy bombings in Africa
and the USS Cole bombing in 2000. According to U.S. officials quoted by Josh Meyer, a leading national
security reporter at the Los Angeles Times, the information from the calls could have been shared
through a FISA warrant under the authorities the NSA had even before 9/11.63 The United States
government could and should have been alerted to Mihdhar’s phone calls even without the expanded
authority to collect the telephone metadata of all Americans under Section 215.
Indeed, Richard Clarke, the national coordinator for security, infrastructure protection, and
counterterrorism from 1998 to 2001, has explained that the Justice Department “could have asked the
FISA Court for a warrant to all phone companies to show all calls from the U.S. which went to the Yemen
number. As far as I know, they did not do so. They could have.”64 Clarke played down the need for bulk
collection in such a scenario, continuing, “My understanding is that they did not need the current All
Calls Data Base FISA warrant to get the information they needed. Since they had one end of the calls
(the Yemen number), all they had to do was ask for any call connecting to it.”65 (Clarke was one of the
five members of the White House review group that President Obama established in August 2013 to
review the U.S. government’s surveillance activities and which issued its report on December 18, 2013).
The overall problem for U.S. counterterrorism officials is not that they need the information from the
bulk collection of phone data, but that they don’t sufficiently understand or widely share the
information they already possess that is derived from conventional law enforcement and intelligence
techniques. This was true of the two 9/11 hijackers living in San Diego and it is also the unfortunate
pattern we have seen in several other significant terrorism cases:
Mumbai that killed 166 people. Yet, following the 9/11 attacks, U.S. authorities received plausible tips
regarding Headley’s associations with militant groups at least five times from his family members,
friends, and acquaintances.66 These multiple tips were never followed up in an effective fashion.
al Hasan, a U.S. Army psychiatrist, killed 13 people at Fort Hood, Texas, in 2009. Before the
attack, U.S. intelligence agencies had intercepted multiple emails between Maj. Hasan and Anwar alAwlaki, a U.S.- born cleric living in Yemen who was notorious for his ties to militants. The emails included
a discussion of the permissibility in Islam of killing U.S. soldiers. Counterterrorism investigators didn’t
follow up on these emails, believing that they were somehow consistent with Maj. Hasan’s job as a
military psychiatrist.67
in 2009, several months after returning from a stay in Yemen. As a result of that trip, Bledsoe was under
investigation by the FBI. Yet, he was still able to buy the weapons for his deadly attack when he was
back in the United States.68
Christmas Day 2009 with an “underwear bomb.” Fortunately, the bomb failed to explode. Yet, a few
weeks before the botched attack, Abdulmutallab’s father contacted the U.S. Embassy in Nigeria with
concerns that his son had become radicalized and might be planning something.69 This information
wasn’t further investigated.
AT: PRISM link
The government greatly exaggerates PRISM’s ability to stop terrorism
Sanchez, 13 – senior fellow on technology, privacy and national security and intelligence surveillance at
Cato (Julian, “Epstein on NSA (Again) Part I: PRISM & the FISA Amendments Act” 6/28,
http://www.cato.org/blog/epstein-nsa-again-part-i-prism-fisa-amendments-act
Finally, Epstein and Loyola rather uncritically repeat the claim that the PRISM program surveillance
pursuant to FAA authorities “is responsible for foiling about 40 of the 50 terrorist plots which the
administration recently disclosed to Congress in classified briefings.” If we scrutinize the government’s
claims a bit more closely, we see that in fact NSA Director Keith Alexander claimed that PRISM intercepts
had “contributed” to the disruption of 40 of 50 terrorist “events,” mostly overseas, and judged this
contribution to have been “critical” in 50 percent of these cases.
When we examine some of the specific “events” government officials have discussed, however, it
becomes clear that not all of these are “plots” at all—many seem to have involved funding or other
forms of “material support” for radical groups, though in at least one such case the government appears
to have claimed a “plot” to bomb the New York Stock Exchange where none really existed. (FBI Deputy
Sean Joyce further told Congress that the “plot” must have been serious given that a jury convicted the
plotters. But federal prosecutors themselves emphasized that the men “had not been involved in an
active plot” and there was no jury trial: they were charged with “material support” and pled guilty.)
Presumably at least some of these “events” did involve actual planned attacks, but knowing that PRISM
surveillance was “critical” to disrupting half of them doesn’t in itself tell us much. The question is
whether the same surveillance could have been conducted in these cases using authorities that existed
before the FISA Amendments Act, or under narrower amendments to FISA. Since the bulk of these
“events” appear to have been overseas, the traditional authority to intercept purely foreign
communications without a warrant would seem to have sufficed, or at most required a legal tweak to
accommodate stored data on U.S. servers used by foreigners to communicate with other foreigners.
There is no evidence to suggest that the actually controversial part of the FAA—the revocation of the
warrant requirement for interception of U.S.-to-foreign wire communications—made a necessary
contribution in these cases. Indeed, as national security expert Peter Bergen has documented, the public
record in the overwhelming majority of terror plots we know about shows that they were “uncovered by
traditional law enforcement methods, such as the use of informants, reliance on community tips about
suspicious activity and other standard policing practices.”
There is certainly such a thing as too much skepticism about government. But when officials make vague
allusions to vital, secret successes in an effort to justify their own broad powers, there is also such a
thing as too much credulity.
So much for PRISM and the FISA Amendments Act. I’ll discuss what Epstein and Loyola say about the
NSA’s metadata dragnet in a separate post.
Impact inevitable – CT fails
US counterterrorism efforts are ineffective now—Snowden leaks prove
Young 14– President and General Counsel of Ronin Analytics, LLC. and former NSA senior leader (Mark,
“National Insecurity: The Impacts of Illegal Disclosures of Classified Information”, I/S: A Journal of Law
and Policy for the Information Society, 2014,
http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Young-Article.pdf)//DBI
Regardless of one’s sympathy for Snowden’s conclusion, the scope and scale of the material he has
revealed will continue to have a significant impact on United States national security. There are four
areas where his actions will diminish national security. First, the disclosure of the programs,
relationships, and operations will facilitate operational changes in the behavior of adversarial groups
such as al-Qaida and Hamas.12It will become more difficult, more expensive, and more time consuming
to collect and analyze information on terrorist groups, foreign governments, and foreign militaries.
Second, the disclosures will complicate U.S. foreign relations that directly contribute to U.S. security
interests. Cooperation between U.S. and foreign intelligence organizations is critical to the security of
the U.S.13 Other countries are perpetually concerned about disclosing sensitive information collected by
their intelligence services at great expense and effort. Snowden has now exacerbated these concerns
and weakened traditionally strong American assurances that information provided to the U.S. will be
well protected with little risk of embarrassment or compromise to the providing country. It will become
more difficult to cooperate with these partners when there is a stream of evidence that shows that the
United States cannot keep a secret.
Third, Snowden’s actions have impaired cooperation between the United States government and the
U.S. private sector. It was already challenging to share information between the U.S. public and private
sectors14, but the exposure of alleged relationships – whether voluntary or pursuant to a court order between companies such as Verizon, Google, and Facebook has made corporate entities recoil from the
government in fear of a diminished reputation or decline in stock value.
Finally, despite Snowden’s claimed objective of exposing an “architecture of oppression,”15 his violation
of law, regulation, and oath has eroded the confidence of the American public he was hoping to inform.
In our representative democracy, this loss of public confidence will quickly transform into fewer
resources for the very departments and agencies that safeguard America. Less authority and more
oversight are sure to follow. It is understandable, but the reduction in funding, authority and the
increase in oversight are the type of emotionally satisfying reactions that will undermine U.S. national
security.
Current counter-terrorism fails – lack of human intelligence outweighs
Eddington, 15 - Patrick G. Eggerton worked as a military imagery analyst at the CIA. He is policy analyst
in homeland security and civil liberties at Cato Institute. (Patrick, “US wants to hack your phone because
it doesn’t have real spies it needs” Reuters, http://blogs.reuters.com/great-debate/2015/02/23/the-fbiwas-for-encryption-before-it-was-against-it/
The best way to disrupt any organized criminal element is to get inside of it physically. But the U.S.
government’s counterterrorism policies have made that next to impossible.
The FBI, for example, targets the very Arab-American and Muslim-American communities it needs to
work with if it hopes to find and neutralize home-grown violent extremists, including promulgating new
rules on profiling that allow for the potential mapping of Arab- or Muslim-American communities. The
Justice Department’s refusal to investigate the New York Police Department’s mass surveillance and
questionable informant-recruitment tactics among immigrants in the Arab- and Muslim-American
communities has only made matters worse.
Overseas, the Cold War style of spying — relying on U.S. embassies as bases from which CIA and other
U.S. government intelligence personnel operate — is increasingly difficult in the areas of the Middle East
and southwest Asia undergoing often violent political change.
Steinbach testified about this before the House Homeland Security Committee earlier this month. “The
concern is in Syria,” he explained, “the lack of our footprint on the ground in Syria — that the databases
won’t have the information we need.”
Notice his reference to technology “databases” rather than the importance of the human element. The
U.S. intelligence community’s emphasis should be on the spy on the ground who actually gathers critical
information and makes any penetration of a terrorist organization possible.
This problem is true for Yemen as well, as a recent Washington Post story highlighted:
The spy agency has pulled dozens of operatives, analysts and other staffers from Yemen as part of a
broader extraction of roughly 200 Americans who had been based at the embassy in Sana, officials said.
Among those removed were senior officers who worked closely with Yemen’s intelligence and security
services to target al-Qaeda operatives and disrupt terrorism plots often aimed at the United States.
The CIA’s failure to field agents under nonofficial cover, or to recruit enough reliable local informants on
the ground who could communicate securely with CIA handlers outside Yemen, is symptomatic of the
agency’s failure to break with its reliance on embassy-based operations throughout that part of the
world. Compromising encryption technology will do nothing to solve the intelligence community’s
human-intelligence deficit. This is a problem the agency must address if it is ever going to be successful
in finding and neutralizing terrorist cells overseas.
It boils down to the fact that the FBI and the U.S. intelligence community have failed to adapt their
intelligence-collection practices and operations to meet the challenges of the “new world disorder” in
which we live. As former CIA officer Philip Giraldi has noted:
[I]ntelligence agencies that were created to oppose and penetrate other nation-state adversaries are
not necessarily well equipped to go after terrorists, particularly when those groups are ethnically
cohesive or recruited through family and tribal vetting, and able to operate in a low-tech fashion to
negate the advantages that advanced technologies provide.
The CIA has repeatedly attempted — occasionally at high cost — to penetrate militant organizations like
al Qaeda and Islamic State. Nonetheless, Washington’s overall counterterrorism bias in funding and
manpower has been toward using the most sophisticated technology available as the key means of
battling a relatively low-tech enemy.
The FBI’s new anti-encryption campaign is just the latest phase in the government’s attempt to deny
Islamic State and related groups the ability to shield their communications. If these militant groups were
traditional nation-states with their own dedicated communications channels, we’d all be cheering on the
FBI’s efforts. But the Internet has become the primary means for global, real-time communications for
individuals, nonprofits, businesses and governments. So it should not be treated as just another
intelligence target, which is certainly the FBI’s and Natural Security Agency’s current mindset.
Using the legislative process to force companies to make defective electronic devices with exploitable
communications channels in the hope that they will catch a tiny number of potential or actual terrorists
is a self-defeating strategy. If implemented, the FBI’s proposal would only make all Americans more
vulnerable to malicious actors online and do nothing to stop the next terrorist attack.
Politics DA
Link Uniqueness
Link non –unique – Section 702 reform coming now, either triggers the link or
disproves it
Shackford 15 – Associate editor of Reason (Shawn, “House Votes to Slam Some Surveillance ‘Back Doors’
Shut”, Reason, 6/12/15, http://reason.com/blog/2015/06/12/house-votes-to-slam-some-surveillanceba)//GK
When Rep. Zoe Lofgren (D-Calif.) broke with some of her privacy-focused peers in Congress to vote in favor of the USA Freedom Act, she told
Reason (and others) that this would not be the end of her efforts to restrain unwarranted domestic surveillance by the federal government. She
said she voted for the Freedom Act because—despite its limitations—it was an improvement over the status quo. She was
nevertheless
committed to continue improving that status quo further. Yesterday afternoon she made good on that pledge,
working with Rep. Thomas Massie (R-Ky.) to again pass an amendment placing further restrictions on federal
surveillance against Americans. Congress passed, 255-174, an amendment to a defense appropriations bill that defunds any efforts
by the National Security Agency (NSA) to bypass any warrant requirements for gathering data and correspondence produced by Americans by
trying to collect it from overseas sources. Because of
the nature of the Internet, information passing from person to
person, even domestically, may end up digitally travelling through foreign countries during the
communication process or being stored in foreign countries. Federal snoops have been using the fact that private
information outside the United States doesn't get the same legal protection that it does within the United States to
try to get easier access. This tactic has been used not under the just-expired Section 215 of the PATRIOT Act, but under
Section 702 of the FISA Amendments Act and was not affected by the new data collection restrictions of the USA Freedom Act.
Massie and Lofgren both released statements about their success in trying to stop this form of "backdoor"
surveillance: "The USA Freedom Act is not the last word on surveillance reform," said Rep. Massie. "Backdoor surveillance authorized
under Section 702 of the FISA Amendments Act is arguably worse than the bulk collection of records illegally collected under Section 215 of the
Patriot Act. This amendment is a much needed next step as Congress continues to rein in the surveillance state and reassert the Fourth
Amendment."
Link non-unique – FISA defunding bill thumps the link
Sacks 15 *co –editor of the District Sentinel (Sam “NSA BACKDOOR SEARCHES WOULD END IF HOUSE
AMENDMENT SURVIVES”, The//Intercept, 6/12/15,
https://firstlook.org/theintercept/2015/06/12/house-hopes-provision-close-surveillance-loophole-willsurvive-time/)//GK
The House passed legislation Thursday that would prevent the NSA from spying on American citizens
whose data was incidentally collected during foreign dragnets, marking the second year in a row that the lower chamber has
put the kibosh on backdoor domestic spying. Sponsored by Reps. Thomas Massie, R-Ky., and Zoe Lofgren, D-Calif., the
amendment to the Department of Defense spending bill was approved in a 255-174 vote across party lines. The bipartisan
duo succeeded in passing a similar anti-surveillance amendment during last year’s appropriations process, only to
watch as leadership stripped it out while crafting a final omnibus spending bill last December. Massie said he
hopes the restrictive language will have a better chance of surviving this time around. “If the surveillance-related legislation in
the House and the Senate over the last two weeks is any indication, there’s still an appetite in Congress to
reform the NSA,” he told The Intercept.
No Link
No link – tech giants will use sustained lobbying to push the plan – they hold the
success of their industry at stake
The Economic Times 13 (“US tech giants like Google, Microsoft launch campaign for NSA reforms”, The
Economic Times, 12/09/13, http://articles.economictimes.indiatimes.com/2013-1209/news/44989266_1_internet-surveillance-google-ceo-larry-page-government-surveillance)//GK
WASHINGTON: Setting aside their differences, eight top US technology companies including Google, Facebook and Microsoft,
have joined hands to press the Obama administration and the Congress to reform the secretive National Security Agency.
The agency is in controversy following the leak of classified documents by fugitive CIA operative Edward
Snowden, revealing that it indulged in massive telephone and internet surveillance both inside and outside the
US, at times sneaking into people's private communications, compromising the security settings of these technology
giants. "This summer's revelations highlighted the urgent need to reform government surveillance practices worldwide," the firms wrote in
an open letter to the US President and members of the Congress in national print advertisements today. Apple, Facebook, Google,
Microsoft, Twitter, Yahoo, AOL and LinkedIn wrote the letter calling for a global reform of state-led
spying. "The balance in many countries has tipped too far in favour of the state and away from the rights of the individual -- rights that are
enshrined in our Constitution. This undermines the freedoms we all cherish. It's time for a change," the letter said. As such, technology
giants urged the US to take the lead and make reforms that ensure that government surveillance efforts are
clearly restricted by law, proportionate to the risks, transparent and subject to independent oversight. "We are focused on
keeping user's data secure -- deploying the latest encryption technology to prevent unauthorised surveillance on our networks and
by pushing back on government requests to ensure that they are legal and reasonable in scope," the letter
said. It said US surveillance programs shouldn't keep American tech companies from operating internationally, including in countries that
oppose US access to their citizens' data. "People won't use technology they don't trust," said Microsoft's Brad Smith. "Governments have put
this trust at risk, and governments need to help restore it." "Protecting
the privacy of our users is incredibly important to
Yahoo. Recent revelations about government surveillance activities have shaken the trust of our users, and it is time for the US to act to
restore the confidence of citizens around the world," said Yahoo CEO Marissa Mayer. "The security of users' data is critical,
which is why we've invested so much in encryption and fight for transparency around government requests for
information," said Google CEO Larry Page.
Surveillance reform has bipartisan support
Vladeck 13 - Co-Editor-in-Chief of Just Security, professor of law at American University Washington
College of Law, senior editor of the Journal of National Security Law & Policy (Steve Vladeck, “The
Coming Political Realignment?”, Just Security, 9/29/2013, http://justsecurity.org/1332/coming-politicalrealignment/)//MBB
If so, then the question becomes what happens next… I’ve written before about the phenomenon I
labeled “libertarian hijacking”–when “libertarians form a short-term coalition with progressive
Democrats on national security issues, only to pack up and basically go home once they have extracted
concessions that don’t actually resolve the real issues.” That’s certainly one way to understand the
NDAA mishigas from December 2011, and the Stand-with-Rand filibuster from earlier this year. But
surveillance is different in one critical respect: it’s an area where the central goals of liberals and
libertarians, i.e., to impose greater limits on the government’s ability to collect (and query) information
on those inside the United States, are largely aligned–at least at this moment.
And so unlike in the drone and detention contexts, which lend themselves to differentiation based upon
the citizenship of the targets and the location of the strike/capture/detention, it’s entirely possible that
meaningful reform of the government’s surveillance authorities sufficient to mollify libertarians will also
satisfy at least many progressives in Congress. Thus, as Congress considers NSA/FISA reform proposals, it
might not be enough for the two camps to simply put additional teeth into the judicial review
undertaken by the FISA Court; there may well be sufficient support from the two wings to also impose
tighter constraints on the NSA’s authorities themselves, whether vis-a-vis collection or use.
Even if all of this happens (as the tentative, only-if-there’s-a-budget nature of this Friday’s PCLOB
hearing on the NSA underscores, we’d have to have a functioning government before we can have a
meaningful conversation about NSA reform), it could quite easily be a surveillance-specific result–in
which the “wing nuts” succeed in pushing for greater reforms of the government’s surveillance powers
than we might otherwise have expected, but then are unable to agree when confronted with other
issues, such as life after the AUMF, military commissions after al Bahlul, and so on. After all, at the end
of the day, liberals and libertarians will never see eye-to-eye on any number of national security-related
policy questions–especially those in which citizenship, territoriality, and/or international law play a
significant role.
But insofar as surveillance provides the means pursuant to which national security politics becomes
more than simply hawks vs. doves, executive power vs. legislative power, and Democrats vs.
Republicans, it might stimulate a larger and broader realignment of our discourse when it comes to how
to balance national security with civil liberties–and one that might have lots of unpredictable
consequences going forward.
Critique answers
AT: Dissent alternative
Surveillance creates a chilling effect on society- wrecks dissent and social change
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 7)//AK
Surveillance has a potentially enormous chilling effect on society. US Supreme Court Justice Sonia
Sotomayor recognized this in her concurring opinion in a 2012 case about the FBI’s installing a GPS
tracker in someone’s car. Her comments were much broader: “Awareness that the Government may be
watching chills associational and expressive freedoms. And the Government’s unrestrained power to
assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS
monitoring—by making available at a relatively low cost such a substantial quantity of intimate
information about any person whom the Government, in its unfettered discretion, chooses to track—
may ‘alter the relationship between citizen and government in a way that is inimical to democratic
society.’ ”
Columbia University law professor Eben Moglen wrote that “omnipresent invasive listening creates fear.
And that fear is the enemy of reasoned, ordered liberty.” Surveillance is a tactic of intimidation.
In the US, we already see the beginnings of this chilling effect. According to a Human Rights Watch
report, journalists covering stories on the intelligence community, national security, and law
enforcement have been significantly hampered by government surveillance. Sources are less likely to
contact them, and they themselves are worried about being prosecuted. Human Rights Watch concludes
that stories in the national interest that need to be reported don’t get reported, and that the public is
less informed as a result. That’s the chilling effect right there.
Lawyers working on cases where there is some intelligence interest—foreign government clients, drugs,
terrorism—are also affected. Like journalists, they worry that their conversations are monitored and
that discussions with their clients will find their way into the prosecution’s hands.
Post-9/11 surveillance has caused writers to self-censor. They avoid writing about and researching
certain subjects; they’re careful about communicating with sources, colleagues, or friends abroad. A
Pew Research Center study conducted just after the first Snowden articles were published found that
people didn’t want to talk about the NSA online. A broader Harris poll found that nearly half of
Americans have changed what they research, talk about, and write about because of NSA surveillance.
Surveillance has chilled Internet use by Muslim Americans, and by groups like environmentalists, gunrights activists, drug policy advocates, and human rights workers. After the Snowden revelations of
2013, people across the world were less likely to search personally sensitive terms on Google.
A 2014 report from the UN High Commissioner on Human Rights noted, “Even the mere possibility of
communications information being captured creates an interference with privacy, with a potential
chilling effect on rights, including those to free expression and association.”
This isn’t paranoia. In 2012, French president Nicolas Sarkozy said in a campaign speech, “Anyone who
regularly consults internet sites which promote terror or hatred or violence will be sentenced to prison.”
This fear of scrutiny isn’t just about the present; it’s about the past as well. Politicians already live in a
world where the opposition follows them around constantly with cameras, hoping to record something
that can be taken out of context. Everything they’ve said and done in the past is pored through and
judged in the present, with an exactitude far greater than was imaginable only a few years ago. Imagine
this being normal for every job applicant.
Of course, surveillance doesn’t affect everyone equally. Some of us are unconcerned about government
surveillance, and therefore not affected at all. Others of us, especially those of us in religious, social,
ethnic, and economic groups that are out of favor with the ruling elite, will be affected more.
Jeremy Bentham’s key observation in conceiving his panopticon was that people become conformist and
compliant when they believe they are being observed. The panopticon is an architecture of social
control. Think of how you act when a police car is driving next to you, or how an entire country acts
when state agents are listening to phone calls. When we know everything is being recorded, we are less
likely to speak freely and act individually. When we are constantly under the threat of judgment,
criticism, and correction for our actions, we become fearful that—either now or in the uncertain
future— data we leave behind will be brought back to implicate us, by whatever authority has then
become focused upon our once-private and innocent acts. In response, we do nothing out of the
ordinary. We lose our individuality, and society stagnates. We don’t question or challenge power. We
become obedient and submissive. We’re less free.
INHIBITING DISSENT AND SOCIAL CHANGE
These chilling effects are especially damaging to political discourse. There is value in dissent. And,
perversely, there can be value in lawbreaking. These are both ways we improve as a society. Ubiquitous
mass surveillance is the enemy of democracy, liberty, freedom, and progress.
Defending this assertion involves a subtle argument—something I wrote about in my previous book Liars
and Outliers—but it’s vitally important to society. Think about it this way. Across the US, states are on
the verge of reversing decades-old laws about homosexual relationships and marijuana use. If the old
laws could have been perfectly enforced through surveillance, society would never have reached the
point where the majority of citizens thought those things were okay. There has to be a period where
they are still illegal yet increasingly tolerated, so that people can look around and say, “You know, that
wasn’t so bad.” Yes, the process takes decades, but it’s a process that can’t happen without
lawbreaking. Frank Zappa said something similar in 1971: “Without deviation from the norm, progress is
not possible.”
The perfect enforcement that comes with ubiquitous government surveillance chills this process. We
need imperfect security—systems that free people to try new things, much the way off-the-record
brainstorming sessions loosen inhibitions and foster creativity. If we don’t have that, we can’t slowly
move from a thing’s being illegal and not okay, to illegal and not sure, to illegal and probably okay, and
finally to legal.
This is an important point. Freedoms we now take for granted were often at one time viewed as
threatening or even criminal by the past power structure. Those changes might never have happened if
the authorities had been able to achieve social control through surveillance.
This is one of the main reasons all of us should care about the emerging architecture of surveillance,
even if we are not personally chilled by its existence. We suffer the effects because people around us
will be less likely to proclaim new political or social ideas, or act out of the ordinary. If J. Edgar Hoover’s
surveillance of Martin Luther King Jr. had been successful in silencing him, it would have affected far
more people than King and his family.
Of course, many things that are illegal will rightly remain illegal forever: theft, murder, and so on. Taken
to the extreme, though, perfect enforcement could have unforeseen repercussions. What does it mean
for society if the police can track your car 24/7, and then mail you a bill at the end of the month
itemizing every time you sped, ran a red light, made an illegal left turn, or followed the car in front of
you too closely? Or if your township can use aerial surveillance to automatically fine you for failing to
mow your lawn or shovel your walk regularly? Our legal systems are largely based on human judgment.
And while there are risks associated with biased and prejudiced judgments, there are also risks
associated with replacing that judgment with algorithmic efficiency. Ubiquitous surveillance could lead
to the kind of society depicted in the 2002 Tom Cruise movie Minority Report, where people can
become the subject of police investigations before they commit a crime. Already law enforcement
agencies make use of predictive analytic tools to identify suspects and direct investigations. It’s a short
step from there to the world of Big Brother and thoughtcrime.
This notion of making certain crimes impossible to get away with is new—a potential result of all this
new technology—and it’s something we need to think about carefully before we implement it. As law
professor Yochai Benkler said, “Imperfection is a core dimension of freedom.”
Surveillance secrecy crushes surveillance dissent- transparency is a prerequisite
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 7)//AK
Secrecy generally shrouds government surveillance, and it poses a danger to a free and open society.
In the US, this has manifested itself in several ways. First, the government has greatly expanded what
can be considered secret. One of the truisms of national security is that secrecy is necessary in matters
of intelligence, foreign policy, and defense. If the government made certain things public—troop
movements, weapons capabilities, negotiating positions—the enemy would alter its behavior to its own
advantage. This notion of military secrecy has been true for millennia, but recently has changed
dramatically. I’m using the US as an example here. In World War I, we were concerned about the
secrecy of specific facts, like the location of military units and the precise plans of a battle. In World War
II, we extended that secrecy to both large-scale operations and entire areas of knowledge. Not only was
our program to build an atomic bomb secret; the entire science of nuclear weaponry was secret. After
9/11, we generalized further, and now almost anything can be a secret.
The result is that US government secrecy has exploded. No one knows the exact number—it’s secret, of
course—but reasonable estimates are that hundreds of billions of pages of government documents are
classified in the US each year. At the same time, the number of people with security clearances has
similarly mushroomed. As of October 2012, almost 5 million people in the US had security clearances
(1.4 million at the topsecret level), a 50% increase since 1999.
Pretty much all the details of NSA surveillance are classified, lest they tip off the bad guys. (I’ll return to
that argument in Chapter 13.) Pre-Snowden, you weren’t allowed to read the Presidential Policy
Directives that authorized much of NSA surveillance. You weren’t even allowed to read the court orders
that authorized this surveillance. It was all classified, and it still would be if the release of the Snowden
documents hadn’t resulted in a bunch of government declassifications.
The NSA and the military aren’t the only organizations increasing their levels of secrecy. Local law
enforcement is starting to similarly cloak its own surveillance actions. For example, police requests for
cell phone surveillance are routinely sealed by the courts that authorize them. (The UK police won’t
even admit that they use the technology.) There are many more examples of this.
This kind of secrecy weakens the checks and balances we have in place to oversee surveillance and,
more broadly, to see that we are all treated fairly by our laws. Since the terrorist attacks of 9/11, FBI and
NSA National Security Letters demanding surveillance information from various companies have
regularly come with gag orders attached. Those who receive such a letter are prohibited from talking,
even in general terms, about it. That makes it much harder to fight the letters in court.
Governments are also hiding behind corporate nondisclosure agreements. That’s the reason the FBI and
local police give for not revealing the details of their StingRay cell phone surveillance system. That’s why
local police departments refuse to divulge details of the commercially developed predictive policing
algorithms they use to deploy officers. The second way government secrecy has manifested itself is that
it is being exerted to an extreme degree. The US has a complex legal framework for classification that is
increasingly being ignored. The executive branch abuses its state secrets privilege to keep information
out of public view. The executive branch keeps secrets from Congress. The NSA keeps secrets from those
who oversee its operations—including Congress. Certain members of Congress keep secrets from the
rest of Congress. Secret courts keep their own secrets, and even the Supreme Court is increasingly
keeping documents secret. In Washington, knowledge is currency, and the intelligence community is
hoarding it. The third manifestation of government secrecy is that government has dealt very severely
with those who expose its secrets: whistleblowers. President Obama has been exceptionally zealous in
prosecuting individuals who have disclosed wrongdoing by government agencies. Since his election in
2008, he has pursued prosecutions against eight people for leaking classified information to the press.
There had been only three previous prosecutions since the Espionage Act was passed in 1917.
Intelligence-related whistleblowing is not a legal defense in the US; the Espionage Act prohibits the
defendant from explaining why he leaked classified information. Daniel Ellsberg, the first person
prosecuted under the law, in 1971, was barred from explaining his actions in court. Former NSA senior
executive Thomas Drake, an NSA whistleblower who was prosecuted in 2011, was forbidden to say the
words “whistleblowing” and “overclassification” in his trial. Chelsea Manning was prohibited from using
a similar defense.
Edward Snowden claims he’s a whistleblower. Many people, including me, agree; others don’t. Secretary
of State John Kerry insisted that Snowden should “come back here and stand in our system of justice
and make his case,” and former secretary of state Hillary Clinton proclaimed, “If he wishes to return
knowing he would be held accountable and also able to present a defense, that is his decision to make.”
Both comments are examples of misleading political smoke-blowing. Current law does not permit
Snowden to make his case.
Inasmuch as government surveillance requires secrecy, people lose the power to debate and vote on
what their government is doing in their name, or tell their elected officials what they think should be
done. It’s easy to forget, in the seemingly endless stream of headlines about the NSA and its surveillance
programs, that none of it would be known to the public at all if Snowden hadn’t, at great personal cost
and risk, exposed what the agency is doing.
Mere suspicion of government surveillance shuts down dissent – a formal
warrant requirement solves
Heymann, 15 [Philip B, former Deputy Attorney General in the Clinton administration and currently a
law professor at Harvard Law School, AN ESSAY ON DOMESTIC SURVEILLANCE,
file:///C:/Users/Jonah/Downloads/Lawfare-Philip-Heymann-SURVEILLANCE-for-publ-10-May-2015.pdf]
Schloss4
The presence of fear, even unreasonable fear, has important effects on the confident and free social and
political life on which democracy depends. Fear of discovery alone could easily affect with whom I
associate, for example, or what use I make of psychiatrists or drugs. The fear is far deeper and more
lasting if a warrant from a judge is not required . Internal agency processes are not an adequate
substitute. The deep suspicions that are valuable in an agency charged with preventing terrorism or
preventing crime have a dark side; they will infect its judgment of when there is a genuine need to see
the required information. Important consequences turn on the citizens’ trust that data the government
has acquired will not be used without there being a “real” need for its use. Much of the population
would not trust any such assurance by the NSA or the FBI alone.
Perceptions of government prying do matter. Whether a dramatic growth in the capacity for, and fruits
of, government surveillance would be experienced as harmful to individual freedom, civil society and
democratic institutions depend on more than how the information would, in fact, be used. Fear also
depends on what other potential uses citizens would suspect; the exercise of individual liberty and
autonomy additionally depend on what citizens suspect might happen with that information and the
precautionary steps – curtailment of entirely lawful activities, for example – citizens might take.
Attitudes toward government and one’s freedoms also depend upon a number of broader contextual
factors: the extent of the perceived danger sought to be prevented; the current level of suspicion or
trust in the government; the history and culture of privacy in the society; and much else. Some few
would argue that the loss of privacy might not be a concern at all. After all, most people do not harbor a
crime or a scandal that they must hide behind claims to privacy; their lives are too proper for that. But
those voices are a small minority; for most people, the value of privacy is to protect the possibility of
association and, particularly, intimacy with others, irrespective of whether one has anything to hide in
the way of crime or scandal. One fact is clear. The fear and the prospect of rapidly expanding
government surveillance in the United States are plainly there on the near horizon. The children of the
Snowden age take it for granted that they are being monitored and they fear the social effects of that
monitoring.
Government censorship increasing – surveillance makes it possible
Schneier, 15, fellow at the Berkman Center for Internet and Society at Harvard Law School, a program
fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic
Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the
Chief Technology Officer at Resilient Systems, Inc (Bruce, Data and Goliath: the Hidden Battles to Collect
Your Data and Control Your World, Ch. 7)//AK
Freedom also depends on the free circulation of ideas. Government censorship, often enabled by
surveillance, stifles them both.
China protects its citizens from the “dangers” of outside news and opinions on the Internet by
something called the Golden Shield or, more commonly, the Great Firewall of China. It’s a massive
project that took eight years and cost $700 million to build, and its job is to censor the Internet. The goal
is less to banish harmful ideas or squelch speech, and more to prevent effective organization. The
firewall works pretty well; those with technical savvy can evade it, but it blocks the majority of China’s
population from finding all sorts of things, from information about the Dalai Lama to many Western
search sites.
There’s more government censorship on the Internet today than ever before. And it’s not just politics.
Countries censor websites because of their sexual nature, the religious views they espouse, their hosting
of gambling platforms, and their promotion of drug use or illegal activity. The citizens of most Middle
Eastern countries live under pervasive censorship. France, Germany, and Austria censor neo-Nazi
content, including online auctions of Nazi memorabilia; other countries censor sites that incite violence.
Vietnam’s “Decree 72” prohibits people from discussing current affairs online. Many countries censor
content that infringes on copyright. The UK censors pornography by default, although you can still opt
out of the censorship. In 2010, the US censored WikiLeaks. Most censorship is enforced by surveillance,
which leads to self-censorship. If people know the government is watching everything they say, they are
less likely to read or speak about forbidden topics. This is the point behind a 2014 Russian law requiring
bloggers to register with the government. This is why the Great Firewall of China works so well as a
censorship tool: it’s not merely the technical capabilities of the firewall, but the threat that people trying
to evade it will be discovered and reported by their fellow citizens. Those who do the reporting don’t
even necessarily agree with the government; they might face penalties of their own if they do not
report. Internet companies in China often censor their users beyond what is officially required.
And the more severe the consequences of getting caught, the more excessively people self-censor.
AT: Legalism K
Perm solves – combining legalism with policy intervention solves despite the
risk of the link
Schlanger 15 [Margo, Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse., Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,
file:///C:/Users/Jonah/Downloads/Intelligence%20Legalism%20and%20the%20National%20Security%20
Agency-s%20Civil%20Li%20(2).pdf] Schloss3
The reforms proposed and announced nearly all cluster into one or more of eight categories:
• Deepen surveillance legalism and skepticism towards bulk or wholesale data collection, by eliminating
it, or in the alternative by imposing more court oversight, tighter government access to surveillance
results, more-individuated showings of need.335
• Increase public disclosure.336
• Raise the level of governmental review for a variety of sensitive decisions.337
• Treat foreigners abroad more like (but not just like) U.S. persons.338
• Shrink the NSA’s ambit and perhaps even demilitarize it somewhat.339
• Support global internet openness and security.340
• Improve personnel and network security.341
• Create/strengthen governmental offices and procedures directed at privacy and civil liberties.342
Much of the reform action is, and should be, devoted to substantive interventions. Congress should
itself ask the “should” question, and can insist on, for example, tighter rules governing bulk collection,
requiring more-individuated justifications for data acquisition, analysis, and use. Or to rephrase the
point using the familiar vocabulary of rules and standards,343 Congress, and the President, can design
and promulgate new rules to serve the overarching standard—that liberty should be prioritized where it
carries no, or acceptable, cost to security—and these rules can then be enforced by a compliance
regime.
But what about implementation of the underlying standard itself: the idea that liberty should be
prioritized where it carries no, or acceptable, cost to security? I argued in Part III that surveillance
secrecy and the very significant changes over time mean that some opportunities to further that
standard are likely to remain untouched by the Constitution, statutes, and executive order. So while I
am far from opposed to additional statutory and regulatory-type rules , there remains an additional
opportunity to further individual liberty and privacy with less legalistic, more standard-like
interventions. This opportunity is the thrust of the last category of reforms, which propose to
institutionalize within the Executive branch, the question of “should” rather than “can”:
• The President announced in August 2013 that the NSA would “put in place a full-time civil liberties and
privacy officer.”344 The job announcement went up in September,345 and as already described, the
new NSA Civil Liberties and Privacy Officer, Rebecca Richards, began work in January.346
• The President’s Review Group also recommended “the creation of a privacy and civil liberties policy
official located both in the National Security Staff and the Office of Management and Budget.”347 The
President has agreed; this is included in PPD- 28,348 and several White House staffers are now assigned
to this role, including one each at the Office of Management and Budget, National Security Council staff,
and the Office of Science and Technology Policy. 349
• The President’s Review Group delved further into the type of work product that would promote
consideration of privacy and civil liberties, recommending that the government use Privacy and Civil
Liberties Impact Assessments for “big data and datamining programs directed at communications,” in
order to ensure that such efforts are statistically reliable, cost-effective, and protective of privacy and
civil liberties. 350 NSA’s new Civil Liberties and Privacy Office is working through how to conduct
assessments along these lines.351
• The President’s Review Group also recommended that “program reviews” be instituted, external to
the IC elements in question, “to assess and respond to emerging privacy and civil liberties issues”; these
might be done by the PCLOB or some other way.352 The USA Freedom Act, the leading reform bill—
which though it died in the Senate, will likely be the starting point for any congressional intervention in
2015—would have required the Intelligence Community Inspector General to do a similar kind of
review.353
• A reform proposal endorsed by nearly everyone354 (with some cavil by former FISA presiding Judge
John Bates355) is to adjust FISA proceedings by introducing some kind of public advocate with a
systematic role. In the President’s Review Group formulation: create a “Public Interest Advocate to
represent privacy and civil liberties interests” in the FISA Court, allowing the Court to invite
participation, but also allowing the Advocate to “intervene on her own initiative.” 356 The President
agreed, “calling on Congress to authorize the establishment of a panel of advocates from outside
government to provide an independent voice in significant cases before the Foreign Intelligence
Surveillance Court.”357 This was included in the Senate version of the USA Freedom Act.358
• The PCLOB, in its report on 702 surveillance, urged the government to “develop a comprehensive
methodology for assessing the efficacy and relative value of counterterrorism programs,” in order to
effectively weigh the interests of the government in conducting a program against the intrusions on
privacy and civil liberties that it may cause.”359
Each of these proposals would designate either an office, person, or process to prioritize privacy and
civil liberties—values that, as we have seen, otherwise lack advocates within the NSA’s governance
structure. So might they really change anything at the NSA? I next look at three new/proposed offices.
I have suggested that rights discourse tends to sweep under the rug the messiness of civil liberties
protections—the policy issues that lie at the core of civil liberties interests. That messiness will be
apparent in what follows; there are no magic bullets here. But a measure can be useful even if messy or
compromised. It is possible that that none of the offices described below will accomplish very much. It
seems to me, however, that soft administrative measures are useful tools in the civil liberties toolkit,
well worth trying by a principal—whether that principal is the President or the Congress—who wants to
give more priority to civil liberties but lacks the institutional capacity to do so directly and repeatedly
over time. Each of these three offices might represent civil liberties interests more systematically than
current arrangements, and might advocate for more liberty protective government protocols and
programs. It is worth emphasizing, too, that measures such as these might have not just cumulative but
also mutually reinforcing effects, creating a civil liberties cadre with security clearances, who might
assist each other in a variety of ways.360 In addition to promoting civil liberties/privacy interstitially,
offices like these assist other more authoritative rulemakers to understand the civil liberties implications
of their choices. For example, they can help Congress in its otherwise very difficult oversight task,
flagging issues that need more congressional attention.361 And in several different ways, they may
increase public access to otherwise secret matters, which in turn increases pressure on those
authoritative rulemakers: They generate reports—both public and private—which can be used by
Congress and the public.362 And they build relationships with non-governmental organizations that
promote increased official disclosure. My argument is not that offices like these are a cure-all for
achieving optimal policy, but that they may be a useful part of a complicated ecology.
Perm is the best option despite legalism
Schlanger 15 [Margo, Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse., Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,
file:///C:/Users/Jonah/Downloads/Intelligence%20Legalism%20and%20the%20National%20Security%20
Agency-s%20Civil%20Li%20(2).pdf] Schloss3
Conclusion
The development of intelligence legalism has been a major and salutary change in American governance
over the past 35 years. Informed by recent unprecedented disclosures, this Article has traced the
institutional arrangements that constitute the NSA’s compliance ecology. Rights enunciation and
compliance serve crucial rule-of-law values, and also sometimes further civil liberties. And yet they are
insufficient to ensure appropriate civil liberties policy.
In his opinion for the Court last term, holding that the Fourth Amendment forbids warrantless searches
of cell phones, absent exigent circumstances, Chief Justice Roberts poked some mild fun at internal
government processes as sufficient safeguards of constitutional rights. “[T]he Founders did not fight a
revolution to gain the right to government agency protocols,” he wrote. But he continued, and I agree,
that such protocols are nonetheless “[p]robably a good idea .”410 In this post-Snowden moment,
Congress can and should protect Americans’ privacy and civil liberties by clamping down on bulk
surveillance, creating legal rules that can then be enforced by the courts and the intelligence
community’s large compliance bureaucracy. But Congress and the President should not be limited by
intelligence legalism. They should also follow the quite different strategy of amplifying voices inside the
surveillance state who will give attention in internal deliberations and agency operations to civil
liberties and privacy interests. But institutional design is important; civil liberties offices need deliberate
and careful arrangements to safeguard their influence and commitment. If civil liberties and privacy
officials inside the NSA, at the White House, and at the FISA Court can walk the tightrope of maintaining
both influence and commitment, they might well make a difference—both in debates we now know
about and others that remain secret. And they may help create a document trail useful for public
oversight, too.
Intelligence legalism has proven unequal to the task of opposing the “collect everything” mindset. We
need to add libertarian officials inside the surveillance state to nurture its civil liberties ecology. If that
ecology doesn’t improve, the next big leak, in five or ten or twenty years, may reveal invasions of
Americans’ privacy that dwarf anything we have heard about so far.
AT: Legalism K – PPD-28
PPD28 is essential to overcoming pure intelligence legalism – it changes policy
design to favor liberties first
Schlanger 15 [Margo, Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse., Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,
file:///C:/Users/Jonah/Downloads/Intelligence%20Legalism%20and%20the%20National%20Security%20
Agency-s%20Civil%20Li%20(2).pdf] Schloss3
PPD-28’s new language related to “purpose” is limited in its bite (like any sole purpose requirement). It
is, however, susceptible to implementation under a compliance framework. One can imagine a
compliance regime that requires documentation and audit of the purpose of SIGINT collection, or of the
use of information collected in bulk, to ensure that those purposes are not “suppressing or burdening
criticism or dissent,” or “disadvantaging persons based on their ethnicity, race, gender, sexual
orientation, or religion.” But the other language quoted above reveals a very different, supplemental,
approach. Making “privacy and civil liberties . . . integral considerations in the planning of U.S. signals
intelligence activities,” and ensuring that “[s]ignals intelligence activities . . . [are] as tailored as feasible”
are not compliance tasks; they are policy tasks. PPD-28, like several other recent reform proposals, is
thus adding to the existing intelligence legalism regime a distinct concept of non-legalistic internal
bureaucratic measures—a liberty protective infrastructure that can put civil liberties concerns into the
policy mix, asking the “should” question. This is a new development. Previously, the compliance mindset
within the Executive branch has failed to encourage—and even discouraged—policy-based
consideration of civil liberties, for reasons I now explore.
Changing policy alters intelligence legalism – the NSA will move beyond just
compliance
Schlanger 15 [Margo, Professor of Law at the University of Michigan Law School, and the founder and
director of the Civil Rights Litigation Clearinghouse., Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,
file:///C:/Users/Jonah/Downloads/Intelligence%20Legalism%20and%20the%20National%20Security%20
Agency-s%20Civil%20Li%20(2).pdf] Schloss3
Intelligence legalism brings lawyers’ rule-of-law commitment into the realm of national security and
surveillance, where secrecy molds its impact in a number of important ways. I see intelligence legalism’s
three crucial and simultaneous features as: imposition of substantive rules given the status of law
rather than policy , limited court enforcement of those rules, and empowerment of lawyers. All three
were in evidence in the 2004 drama. Yet it is no coincidence that that incident did not catalyze a civil
liberties advance. In fact, this Article’s core argument is that intelligence legalism, though useful, gives
systematically insufficient weight to individual liberty. Legalism legitimates liberty-infringing programs.
And its relentless focus on rights and compliance and law (with a definition of law that includes
regulation, executive orders, court orders, etc.) has obscured the absence of what should be an
additional focus on interests, or balancing, or policy. That additional focus is necessary, I argue, for
optimal policy, which I take to be the safeguarding of liberty where there is no cost, or acceptable cost,
to security.
The 2004 hospital-bed confrontation arose out of what has grown to be a large surveillance compliance
apparatus, currently staffed by hundreds of people in both the executive and judicial branches. This
infrastructure implements and enforces a complex system of rules, not flawlessly but—at least in recent
years—with real attention and care.11 Where an authoritative lawgiver has announced rights or rightsprotecting procedures, the compliance apparatus works, to real, though not perfect effect, to effectuate
those rights and to follow those procedures. Of course errors, small and large, occur. Even if perfect
compliance could be achieved, however, it is too paltry a goal. A good oversight system needs its
institutions not just to support and enforce compliance but to design good rules. But as will become
evident, the offices that make up the compliance system of the National Security Agency (NSA) are
nearly entirely compliance offices, not policy offices; they work to improve compliance with existing
rules, but not to consider the pros and cons of more individually-protective rules and try to increase
privacy or civil liberties where the cost of doing so is acceptable. The NSA and the Intelligence
Community (IC) more generally have thought of civil liberties and privacy only in compliance terms. That
is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for can over
should is part and parcel, I argue, of intelligence legalism. More is needed. Additional attention should
be directed both within the NSA and by its overseers to the basic policy issues, weighing the security
gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a
panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.