Whistleblower Counterplan
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Whistleblower Counterplan – Table of Contents
Summary.............................................................................................................................................. 2
Glossary............................................................................................................................................... 3
First Negative Constructive (1NC) Shell ........................................................................................... 4
Solvency Extensions
AT: No Solvency – Overbroad Surveillance .......................................................................................... 5
AT: No Solvency – Internal Threat Surveillance.................................................................................... 6
AT: Solvency Turn – Collapses Hegemony........................................................................................... 7
AT: Solvency Turn – Leaks Destroy Foreign Relations ......................................................................... 8
AT: Solvency Turn – Decreased Capabilities ........................................................................................ 9
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Whistleblower Counterplan
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Summary
The Whistleblower Counterplan explains an alternative proposal to solve some of the problems
highlighted in the NSA PRISM Surveillance Affirmative position. Specifically, the counterplan
suggests that the United States Federal Government should offer protection to whistleblowers who
leak classified data. This protection would only be put in place, however, if the data that was leaked
could show that the government, or a member of the government, was doing something illegal. By
protecting whistleblowers, the government could now be held accountable for any illegal surveillance,
guaranteeing the effectiveness of existing oversight. By extension, if current oversight were now
effective, then the Affirmative plan of further restricting government surveillance would become
unnecessary.
The rest of the evidence allows the Negative team to defend its counterplan against Affirmative
attacks. For example, the counterplan allows the government to continue doing the surveillance that
is necessary to defend the public, but it no longer allows government agencies to abuse their
intelligence capabilities with overly invasive attacks on privacy. The counterplan evidence also
explains how Congressional action could prevent the failures of exempting classified documents from
past whistleblower laws. Whistleblowers would provide a level of transparency about government
wrongdoing that would encourage the international community to believe that the U.S. was making
progress in its surveillance practices. This would allow the government to get out in front of the
fallout from any leaks, thus avoiding disproportionate public and media response. The evidence
concludes by emphasizing that the NSA exaggerates the impact of leaks on national security,
showing that whistleblowing doesn’t have to be a practice that puts the public in danger from
international powers.
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Whistleblower Counterplan
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Glossary
Angela Merkel – A German politician and a former research scientist who has been the leader of the
Christian Democratic Union since 2000 and the Chancellor of Germany since 2005. She is the first
woman to hold either office. It was revealed to the world in 2013 that the NSA had tapped her mobile
phone.
Chelsea Manning – known before 2013 as Bradley Edward Manning – is a United States Army
soldier who was convicted in July 2013 of violations of the Espionage Act and other offenses, after
disclosing to WikiLeaks nearly three-quarters of a million classified or unclassified but sensitive
military and diplomatic documents.
Disclosure – The action of making new or secret information known.
Edward Snowden – An American computer contractor who leaked classified information from the
NSA in 2013. The information revealed numerous global surveillance programs, many run by the
NSA with the cooperation of telecommunication companies and European governments. As of 2015,
he was living in an undisclosed location in Russia while seeking asylum elsewhere.
FAA – FISA Amendments Act of 2008 – an Act of Congress that amended the Foreign Intelligence
Surveillance Act. It has been used as the legal basis for mass surveillance programs disclosed by
Edward Snowden in 2014, including PRISM.
Human Rights Watch – An international non-governmental organization that conducts research and
advocacy on human rights.
NGO – Non-governmental Organization – An organization that is neither a part of a government nor a
conventional for-profit business.
SOR Act and STA Act – The Surveillance Order Reporting Act and Surveillance Transparency Act of
2013 – Two proposed pieces of legislation that seek to give companies more options for disclosing
when and how often they received national security-related requests and provided data to the
government.
Transparency – The right and the means to examine the process of decision-making.
Whistleblower – A person who exposes any kind of information or activity that is deemed illegal,
dishonest, or not correct within an organization that is either private or public.
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Whistleblower Counterplan
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1NC Shell (1/1)
Counterplan: The United States Federal Government should offer protection to all
whistleblowers who leak classified data, if and only if such leaks provide evidence of
wrongdoing.
1. The Counterplan has the following net benefits: ____________________________________.
2. The Counterplan solves – Expanding whistleblower protection makes existing oversight
effective.
Schneier, 2015
(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)
Columbia law professor David Pozen contends that democracies need to be leaky— leaks and
whistleblowing are themselves security mechanisms against an overreaching government. In his
view, leaks serve as a counterpoint to the trend of overclassification and, ultimately, as a way for
governments to win back the trust lost through excessive secrecy. Ethnographer Danah Boyd has
called whistleblowing the civil disobedience of the information age; it enables individuals to fight back
against abuse by the powerful. The NGO Human Rights Watch wrote that “those who disclose official
wrongdoing … perform an important service in a democratic society…” In this way of thinking,
whistleblowers provide another oversight mechanism. You can think of them as a random surprise
inspection. Just as we have laws to protect corporate whistleblowers, we need laws to protect
government whistleblowers. Once they are in place, we could create a framework and rules for
whistleblowing legally. This would not mean that anyone is free to leak government secrets by
claiming that he’s a whistleblower. It just means that conscience-driven disclosure of official
wrongdoing would be a valid defense that a leaker could use in court—juries would have to decide
whether it was justified—and that reporters would legally be able to keep their sources secret. The
clever thing about this is that it sidesteps the difficult problem of defining “whistleblower,” and allows
the courts to decide on a case-by-case basis whether someone’s actions qualify as such or not.
Someone like Snowden would be allowed to return to the US and make his case in court, which—as I
explained in Chapter 7— currently he cannot. Additionally, we need laws that protect journalists who
gain access to classified information. Public disclosure in itself is not espionage, and treating
journalism as a crime is extraordinarily harmful to democracy.
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AT: No Solvency – Overbroad Surveillance
[___]
[___] Congressional action to systematize whistleblowing can act as a check against abuses
without jeopardizing our intelligence capabilities.
Pozen, 2013
(Yale Law School, J.D., 2007 Oxford University, M.Sc., Comparative Social Policy (distinction), 2003
Yale College, B.A., Economics (summa cum laude), 2002, Columbia Law Professor, expert
surveillance legal analyst, (David, THE LEAKY LEVIATHAN: WHY THE GOVERNMENT
CONDEMNS AND CONDONES UNLAWFUL DISCLOSURES OF INFORMATION , SSRN)
The federal whistleblower statutes might be expected to comprise Congress’s longstanding failure to
confront the executive secrecy system must be understood in light of these institutional and member
level interests in leakiness. With some notable exceptions such as the bill vetoed by President Clinton
that would have strengthened the Espionage Act, 333 Congress has done little to address national
security leaks or the classification system that underlies them. A variety of committees have held
hearings on high-profile incidents, and the intelligence committees have recently mooted measures to
curb certain forms of planting and pleaking. But in general legislative action has been minimal for
decades. Of particular note, members have declined to make use of the protection afforded by the
Constitution’s Speech or Debate Clause334 to reveal, or threaten to reveal, executive branch
information without fear of criminal or civil liability.335 One might expect that a responsible legislature
would try to steer classified information leaks its way, so as to preserve legitimate secrecy while
providing an outside check on the executive.336 Congress has largely bypassed this approach, which
would force it to take greater responsibility over the revelations that emerge, and has instead
countenanced minimal enforcement against media leakers while directing all prospective
whistleblowers to their agency inspectors general in the first instance.337 Many members of
Congress seem quite content to be regular readers (and perhaps occasional purveyors) rather than
recipients of leaks. Systematic recourse to leaking emerges, once again, as the more efficient and
politically palatable alternative to systematic legal reform. Congress’s role in the ecosystem of
national security leaks is a large and complex subject. Certain congressional entities receive a steady
flow of classified information through official channels, supplemented by a side traffic in direct and
indirect unofficial disclosures. Agencies typically incur political risk if they try to limit this traffic by
clamping down on staffers’ communications with their oversight committees. Partisan motivations and
sincere good-governance sentiments sustain a perpetual interest on the Hill in leaks, along with a
ready-made rhetoric of crisis about their prevalence. The recent rise of a “commuter Congress,” in
which many members spend as little time as possible in Washington, may have helped strengthen
relationships between elite reporters and less peripatetic executive officials, shifting power to the
latter in the intragovernmental game of leaks.
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AT: No Solvency – Internal Threat Surveillance
[___]
[___] Existing whistleblower laws fail only because of the classified information exemption.
Congressional action would prevent that.
Pozen, 2013
(Yale Law School, J.D., 2007 Oxford University, M.Sc., Comparative Social Policy (distinction), 2003
Yale College, B.A., Economics (summa cum laude), 2002, Columbia Law Professor, expert
surveillance legal analyst, (David, THE LEAKY LEVIATHAN: WHY THE GOVERNMENT
CONDEMNS AND CONDONES UNLAWFUL DISCLOSURES OF INFORMATION)
The federal whistleblower statutes might be expected to comprise the last major piece of the legal
framework, except that in the national security context they play a marginal role. Several laws protect
executive branch employees who disclose information regarding alleged abuses to designated
agency officials or congressional committees under specified procedures.63 But these laws offer
significantly less succor when it comes to classified information, are widely seen as confusing and
user-unfriendly, and under no circumstances permit disclosures directly to the press.64 These laws
also do not ensure against revocation of one’s security clearance,65 which in the national security
and foreign policy fields generally means loss of one’s job. And though the point is contestable, the
laws are fairly read to provide “absolutely zero protection” for those who publicly reveal classified
information, even as a last resort, and even when the information reveals illegal government
conduct.66 The vast majority of leakers have no interest in reporting wrongdoing in any event.67
Consequently, the whistleblower statutes tend to be ignored in the debate over classified information
leaking, apart from occasional calls to revise them. It is telling that in Jack Goldsmith’s recent booklength study of mechanisms that publicize and constrain the executive’s national security activities,
these laws are never once mentioned.
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AT: Solvency Turn – Collapses Hegemony
[___]
[___] Surveillance transparency from leaks is key to preventing backlash over surveillance.
Schneier, 2015
(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. 12)
Transparency is vital to any open and free society. Open government laws and freedom of
information laws let citizens know what the government is doing, and enable them to carry out their
democratic duty to oversee its activities. Corporate disclosure laws perform similar functions in the
private sphere. Of course, both corporations and governments have some need for secrecy, but the
more they can be open, the more we can knowledgeably decide whether to trust them. Right now in
the US, we have strong open government and freedom of information laws, but far too much
information is exempted from them. For personal data, transparency is pretty straightforward: people
should be entitled to know what data is being collected about them, what data is being archived about
them, and how data about them is being used—and by whom. And in a world that combines an
international Internet with country-specific laws about surveillance and control, we need to know
where data about us is being stored. We are much more likely to be comfortable with surveillance at
any level if we know these things. Privacy policies should provide this information, instead of being so
long and deliberately obfuscating that they shed little light. We also need transparency in the
algorithms that judge us on the basis of our data, either by publishing the code or by explaining how
they work. Right now, we cannot judge the fairness of TSA algorithms that select some of us for
“special screening.” Nor can we judge the IRS’s algorithms that select some of us for auditing. It’s the
same with search engine algorithms that determine what Internet pages we see, predictive policing
algorithms that decide whom to bring in for questioning and what neighborhoods to patrol, or credit
score algorithms that determine who gets a mortgage. Some of this secrecy is necessary so people
don’t figure out how to game the system, but much of it is not. The EU Data Protection Directive
already requires disclosure of much of this information. It may seem as if I am contradicting myself.
On one hand, I am advocating for individual privacy over forced surveillance. On the other, I am
advocating for government and corporate transparency over institutional secrecy. The reason I say
yes to both lies in the existing power imbalance between people and institutions. Institutions naturally
wield more power than people. Institutional secrecy increases institutional power, and that power
differential grows. That’s inherently bad for personal liberty. Individual privacy increases individual
power, thereby reducing that power differential. That’s good for liberty. It’s exactly the same with
transparency and surveillance. Institutional transparency reduces the power imbalance, and that’s
good. Institutional surveillance of individuals increases the power imbalance, and that’s bad.
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AT: Solvency Turn – Leaks Destroy Foreign Relations
[___] Leaks are inevitable—the CP gets out in front of them. We can check abuses while still
controlling the fallout.
Schneier, 2015
(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. 12)
Governments and corporations routinely resist transparency laws of all kinds. But the world of
secrecy is changing. Privacy-law scholar Peter Swire writes about a declining half-life of secrets.
What he observed is that, in general, secrets get exposed sooner than they used to. Technology is
making secrets harder to keep, and the nature of the Internet makes secrets much harder to keep
long-term. The push of a “send” button can deliver gigabytes across the Internet in a trice. A single
thumb drive can hold more data every year. Both governments and organizations need to assume
that their secrets are more likely to be exposed, and sooner, than ever before. One of the effects of a
shrinking half-life for secrets is that their disclosure is more damaging. One of Snowden’s documents
indicated that the NSA spied on the cell phone of German chancellor Angela Merkel. The document is
undated, but it’s obviously from the last few years. If that document had become public 20 years from
now, the reaction in Germany would have been very different from the public uproar that occurred in
2013, when Merkel was still in office and the incident was current events rather than historical.
Cultural changes are also making secrets harder to keep. In the old days, guarding institutional
secrets was part of a lifelong culture. The intelligence community would recruit people early in their
careers and give them jobs for life. It was a private men’s club, one filled with code words and secret
knowledge. The corporate world, too, was filled with lifers. Those days are gone. Many jobs in
intelligence are now outsourced, and there is no job-for-life culture in the corporate world anymore.
Workforces are flexible, jobs are outsourced, and people are expendable. Moving from employer to
employer is now the norm. This means that secrets are shared with more people, and those people
care less about them. Recall that five million people in the US have a security clearance, and that a
majority of them are contractors rather than government employees. There is also a greater belief in
the value of openness, especially among younger people. Younger people are much more
comfortable with sharing personal information than their elders. They believe that information wants
to be free, and that security comes from public knowledge and debate. They have said very personal
things online, and have had embarrassing photographs of themselves posted on social networking
sites. They have been dumped by lovers in public online forums. They have overshared in the most
compromising ways—and they survived intact. It is a tougher sell convincing this crowd that
government secrecy trumps the public’s right to know. These technological and social trends are a
good thing. Whenever possible, we should strive for transparency.
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AT: Solvency Turn – Decreased Capabilities
[___]
[___] A New York Times incident proves that the NSA exaggerates the impact of leaks.
Currier, journalist with a focus on national security, foreign affairs, and human rights, 2015
(Cora Currier, “HOW THE NSA STARTED INVESTIGATING THE NEW YORK TIMES’
WARRANTLESS WIRETAPPING STORY”, The Intercept, 6/26/2015,
https://firstlook.org/theintercept/2015/06/26/nsa-started-investigating-new-york-times-originalwarrantless-wiretapping-story/)
Three days after the New York Times revealed that the U.S. government was secretly monitoring the
calls and emails of people inside the United States without court-approved warrants, the National
Security Agency issued a top-secret assessment of the damage done to intelligence efforts by the
story. The conclusion: the information could lead terrorists to try to evade detection. Yet the agency
gave no specific examples of investigations that had been jeopardized. The December 2005
bombshell story, by James Risen and Eric Lichtblau, set off a debate about the George W. Bush
administration’s expansion of spying powers after the 9/11 attacks, and also about the Times editors’
decision to delay its publication for a year. White House officials had warned the Times that revealing
the program would have grave consequences for national security. The NSA’s damage assessment
on the article — referred to as a “cryptologic insecurity” — is among the files provided by former NSA
contractor Edward Snowden. The memo recounts meetings in 2004 and 2005 in which administration
officials disclosed “certain details of the special program to select individuals from the New York
Times to dissuade them from publishing a story on the program at that time.” The memo gives a
general explanation of what terrorists might do in reaction to the information revealed. It was “likely”
that terrorists would stop using phones in favor of mail or courier, and use encryption and code
words. They could also plant false information, knowing the U.S. government was listening. But the
leaked program had not “been noted in adversary communications,” according to the memo. It gave
no specific examples of investigations or targets that had or might be impacted by the revelations.
“To this day we’ve never seen any evidence — despite all the claims they made to keep us from
publishing — that it did any tangible damage to national security. This is further confirmation of that,”
Lichtblau told The Intercept. “The reality was that the story told Americans what they didn’t know
about how the system was being stretched; it didn’t tell terrorists anything that they didn’t know, that
the U.S. was aggressively trying to gather their communications,” he said.
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