Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Data Erasure Counterplan Affirmative Answers – Table of Contents
Summary.............................................................................................................................................. 2
Glossary............................................................................................................................................... 3
Permutation
Permutation – Implement Rule 1........................................................................................................... 4
Solvency Answers
No Solvency – Privacy .......................................................................................................................... 5
No Solvency – Altitude Privacy ............................................................................................................. 6
No Solvency – Persistent Surveillance Circumvention .......................................................................... 7
No Solvency – Time Limit Circumvention.............................................................................................. 8
No Solvency – Curtilage Laws Circumvention ...................................................................................... 9
Solvency Turn – Separation of Powers ............................................................................................... 10
Solvency Turn – Separation of Powers ............................................................................................... 11
Solvency Turn – Racism ..................................................................................................................... 12
Solvency Turn – Dismantling Racism ................................................................................................. 13
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Summary
The Data Erasure Counterplan Affirmative position gives debaters two options on how to respond to
the Negative team’s advocacy for a counterplan.
The first option is to create a permutation of the plan and the benefits of the counterplan. This
particular permutation invokes Rule 1, which requires warrants in most situations, but would allow law
enforcement officials to be excused from acquiring a warrant in certain highly threatening, yet often
unpredictable, situations. The permutation is a tool used by the Affirmative team to acknowledge that
the issues of secondhand surveillance and security are valid, but that the original Affirmative plan
does not prevent other methods from being put in place that will solve those additional problems.
The second option is to reject the counterplan entirely by explaining why it doesn’t solve the problems
that it claims to solve. The Affirmative position claims that continuing to collect data without initial
restrictions still allows for a total surveillance state in which the public is not afforded any right to
privacy. It continues on by saying that certain elements of the counterplan that are meant to provide
privacy, actually fail to do so. This reasoning applies to all provisions including altitude, persistency
or recording, and time limits after recording has occurred. The second option also allows the
Affirmative team to claim that the counterplan has negative impacts where the Affirmative’s plan has
positive impacts. The Affirmative could claim that their plan further strengthens the balance of
powers between various branches of government. In contrast, the Affirmative would claim that the
counterplan prevents this balancing of power, and thus could solve perception issues, but not the
deep structural issues that contribute to racist policies by law enforcement.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Glossary
Curtail – Reduce in extent or quantity; impose a restriction on.
CCTV – Closed-circuit television. Surveillance cameras that record on a closed circuit, such that only
the people with access to the system can watch the footage.
Curtilage – An area of land attached to a house and forming one enclosure with it.
Data Retention – The storage of data gathered through surveillance operations.
Fourth Amendment – The part of the Bill of Rights that prohibits unreasonable searches and
seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
Jurisprudence – The theory or philosophy of law.
Rhetoric – Language designed to have a persuasive or impressive effect on its audience, but often
regarded as lacking in sincerity or meaningful content.
Ubiquitous – Present, appearing, or found everywhere.
Warrant (Search) – A legal document authorizing a police officer or other official to enter and search
a premises.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Permutation – Implement Rule 1
Permutation – Do the plan and counterplan by implementing Rule 1, which exempts situations
where a high risk of terrorist attack or imminent danger is present.
Yang, 2014
(Y. Douglas [JD Boston U]; BIG BROTHER'S GROWN WINGS: THE DOMESTIC PROLIFERATION
OF DRONE SURVEILLANCE AND THE LAW'S RESPONSE; 23 B.U. Pub. Int. L.J. 343)
a. Rule 1: Warrantless Drone Use Rule 1 embodies the desire of both federal and state
legislatures to exclude certain situations from the burden of a warrant requirement. n228
Common examples of non-law enforcement operations include, but are not limited to, land surveying,
n229 weather and climate observation and scientific research, n230 wildlife management and
protection, n231 and search and rescue missions. n232 In addition to Rule 1's exemption of non-law
enforcement uses of drones, Rule 1 also exempts situations where a high risk of terrorist attack or
imminent danger to life or property exists. This specific provision finds its inspiration in Virginia's
[*377] warrant exception that allows drone use for responses to Amber Alerts, n233 Senior Alerts,
n234 and search-and-rescue missions." n235 While the Fourth Amendment covers all government
intrusions of privacy, government activity that does not involve criminal investigation tends to involve
"a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of
crime." n236 Moreover, drones can be a potent tool to assist in searching for missing persons
and in police emergencies, much in the same way that police helicopters and aircraft currently
provide aerial support, albeit at a much higher cost and with less flexibility. n237 Rule 1 reflects
a desire by federal and state legislative proposals to exempt exigent circumstances from restrictions
on drone use. n238 Thus, where a law enforcement agency believes that a particular area, event, or
situation poses a high risk of attack by terrorists; or that there is an imminent and articulable threat to
a specific person's life or property, substantial legal obstacles should not hamper that agency. Rule
1's first paragraph is a compromise measure that allows the government to promptly respond
to urgent situations, while ensuring that the government, and particularly law enforcement
agencies, adhere to the privacy protections of the Rule by demonstrating that probable cause
of a high risk of terrorist attack existed or that an imminent danger to life or property existed
at the time and general location of the drone's operation. n239
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
No Solvency – Privacy
[___]
[___] The CP doesn’t solve the privacy harm.
Celso, 2014
(Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT
UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461)
Despite a strong argument that UAS surveillance should not constitute a search as long as it shows
nothing more or different than what is revealed by naked-eye observation, n240 it is not clear that
courts would accept technological surveillance as an equivalent substitute for manned surveillance.
n241 In fact, in holding that the use of a camera to photograph an open industrial area is not a
search, the Supreme Court emphasized that commercial property does not have the same
heightened expectation of privacy as the home and stated that "the photographs here are not so
revealing of intimate details as to raise constitutional concerns." n242 However, given the
expectation of privacy in the home and the Supreme Court's assertion that "in the home ... all
details are intimate details," n243 it could be that any [*488] UAS surveillance taken through
skylights, windows, or open doors constitutes a search. n244 Finally, and most importantly, in
Kyllo, the Supreme Court may have opened the door to warrantless UAS surveillance of the home at
some point in the not-too-distant future. n245 In holding that the use of thermal imaging constitutes a
search, the Court provided an important caveat by stating that when the technology used is
available to the general public, it does not constitute a search. n246 Therefore, it appears that
the Court's bright-line rule drawn at the entrance to the home may have been written in "disappearing
ink." n247 To date, UAS are not in general public use. n248 That is about to change since certain
government agencies are allowed to operate them, the FAA is required to fully integrate them into
U.S. airspace by 2015, and their decreasing cost makes them more widely accessible. n249 Once the
use of UAS becomes commonplace, the government may be able to use them to photograph or scan
the interior of a home without a warrant, regardless of whether the information revealed could not
have otherwise been obtained without a physical intrusion. n250 Therefore, under the Supreme
Court's current jurisprudence, an expectation of privacy from unmanned aerial surveillance of
the home could become unreasonable, removing Fourth Amendment protections from the
place that has historically enjoyed the greatest protection. n251
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Data Erasure Counterplan Affirmative
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Varsity Division
No Solvency – Altitude Privacy
[___]
[___] Drones can resolve details as small as six inches from 20,000 feet. The 350 foot limit in
the counterplan would not solve for privacy.
Anthony, 2013
(“DARPA shows off 1.8-gigapixel surveillance drone, can spot a terrorist from 20,000 feet”; Extreme
Tech; January 28, 2013; http://www.extremetech.com/extreme/146909-darpa-shows-off-1-8gigapixel-surveillance-drone-can-spot-a-terrorist-from-20000-feet)
DARPA and the US Army have taken the wraps off ARGUS-IS, a 1.8-gigapixel video
surveillance platform that can resolve details as small as six inches from an altitude of 20,000
feet (6km). ARGUS is by far the highest-resolution surveillance platform in the world, and probably
the highest-resolution camera in the world, period. ARGUS, which would be attached to some kind of
unmanned UAV (such as the Predator) and flown at an altitude of around 20,000 feet, can observe an
area of 25 square kilometers (10sqmi) at any one time. If ARGUS was hovering over New York
City, it could observe half of Manhattan. Two ARGUS-equipped drones, and the US could keep
an eye on the entirety of Manhattan, 24/7. It is the definition of “observe” in this case that will blow
your mind, though. With an imaging unit that totals 1.8 billion pixels, ARGUS captures video (12 fps)
that is detailed enough to pick out birds flying through the sky, or a lost toddler wandering
around. These 1.8 gigapixels are provided via 368 smaller sensors, which DARPA/BAE says are just
5-megapixel smartphone camera sensors. These 368 sensors are focused on the ground via four
image-stabilized telescopic lenses.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
No Solvency – Persistent Surveillance Circumvention
[___]
[___] Definition of a persistent search is unclear, this condition could be abused.
Olivito, 2013
(Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to
Informational Privacy Ohio State Law Journal; 2013;
http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf)
Although the Katz reasonable expectation of privacy test remains valid, a five-Justice majority of the
Court returned to a physical, trespass-based analysis to determine the existence of a search in a
recent GPS tracking case.128 In United States v. Jones, government agents attached a GPS tracking
device to the defendant’s vehicle while the vehicle was in a public parking lot.129 The agents
replaced the batteries in the device while the vehicle was parked in a different public parking lot, and
the government subsequently obtained information from the device for twenty-eight days.130
Although the Court unanimously agreed that the government committed a search in Jones, the
Justices split sharply as to the underlying test. A five-Justice majority of the Court held that the
government’s installation of a GPS tracking device on the defendant’s vehicle constituted a search in
violation of the Fourth Amendment because the government’s actions amounted to a trespass under
common law.131 In a four-vote concurrence, Justice Alito found a search through the application of
the Katz reasonable expectation of privacy test.132 Justice Alito suggested that society does not
expect law enforcement to engage in the type of long-term surveillance entailed by a GPS monitor for
most offenses.133 Lastly, Justice Sotomayor contended that the government committed a
search in two ways: through a physical trespass; and through the compilation and
aggregation of data collected over an extended period of time.134 Under Justice Sotomayor’s
mosaic approach, although people might expect the government to observe some of their
public movements, people do not expect the government to record and compile all of their
movements.135 The majority opinion in Jones would provide almost no protection against drone
surveillance, as drones can engage in surveillance without making physical contact with the
subject.136 Either of the concurring opinions could safeguard against long-term drone
surveillance.137 However, under either Justice Alito’s or Justice Sotomayor’s approach, the level of
protection against long-term surveillance is far from clear. Neither of the concurring opinions
clearly demarcates when long-term surveillance would constitute a search. Additionally, the
privacy protections available under both approaches remain tied to the reasonable expectation of
privacy test, such that an individual’s expectation that he will not be subject to extended surveillance
will become unreasonable as the government utilizes domestic drones more frequently.138 The
Supreme Court’s Fourth Amendment jurisprudence related to aerial surveillance, advanced
technology, and extended monitoring all carry the limitation that an expectation of privacy be
“reasonable.”139 As applied by the Court, the reasonableness requirement narrows the area where
an individual can expect to remain free from drone surveillance to the home, particularly, those areas
of the home that are not visible to the public.140
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
No Solvency – Time Limit Circumvention
[___]
[___] It would be easy for law enforcement to circumvent time limits.
Celso, 2014
(Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT
UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461)
A. The Inability of the Katz Test to Address UAS Surveillance While the Supreme Court's decision in
Jones could be interpreted as an effort to bolster privacy protections in public places, it will not affect
UAS surveillance which involves no trespass. n276 If a challenge [*492] to prolonged UAS
surveillance were to occur, the Court would have to either provide an arbitrarily determined length of
time during which UAS surveillance could pass constitutional muster, n277 or hold that the Fourth
Amendment is not implicated. n278 Any time limit on warrantless UAS surveillance established
by the Court would be based on an analysis of a reasonable expectation of privacy. n279 Some
members of the Court, including Justice Sotomayor n280 and Justice Alito, n281 may support time
limit rules as evidenced by their concerns that long-term tracking may interfere with privacy
expectations. Even if the Court were to establish such a time limit, it would not be difficult for
law enforcement to circumvent it. n282 However, there are more fundamental problems with the
Katz test than practical concerns with its implementation. n283 [*493] The Katz reasonable
expectation of privacy test has been criticized for its circular nature. n284 As long as UAS
surveillance remains sufficiently rare, an individual's expectation of privacy is considered reasonable
and it is protected from government intrusion by the Fourth Amendment. n285 Once UAS flights
become routine, the expectation of privacy is no longer reasonable and its protection is
removed. n286 The result becomes a "paradoxical situation in which law enforcement
overreach is legitimized once it becomes routinized." n287 This could happen as early as 2015
when UAS can be fully integrated into U.S. airspace. n288
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Data Erasure Counterplan Affirmative
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No Solvency – Curtilage Laws Circumvention
[___]
[___] Curtilage limits fail too – court action on warrants is key.
Celso, 2014
(Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE FOURTH AMENDMENT:
ADOPTING A REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT
UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT SYSTEMS; 43 U. Balt. L. Rev. 461)
Critical to a court's analysis would be how it evaluates UAS surveillance in light of the
emphasis on aerial surveillance taking place in navigable airspace and the routine nature of
private and commercial flights. n218 Because the FAA is currently establishing navigable airspace
for UAS, private and commercial usage of UAS is [*485] restricted and flights are rare. n219 In the
absence of routine flights, it is reasonable to conclude that UAS surveillance of the curtilage of a
home is currently a search within the meaning of the Fourth Amendment. n220 That analysis is likely
to change in 2015 and beyond, when UAS are expected to become commonplace in U.S. airspace.
n221 Under Supreme Court jurisprudence, it is likely a search if the government uses UAS
surveillance to expose areas within the curtilage which an individual has concealed from aerial
observation. n222 Because the area is not exposed, and curtilage enjoys similar protection as the
interior of the home, an expectation of privacy should be recognized as reasonable. n223 For
example, if an individual planted trees in his backyard to conceal his actions from aerial observation,
it would likely be a search if police used laser radar affixed to a UAS frame to see through the foliage.
Ultimately, any Fourth Amendment protection of the curtilage from warrantless UAS
surveillance is likely expiring. n224 Once UAS are generally available to the public and their
flights become routine in public airspace, an expectation of privacy from UAS surveillance will
no longer be reasonable. n225 At that point the litigated issue will likely become whether the
technology employed by a particular UAS is in general public use or not. n226 Many of the
technologies, such as digital cameras, are already in general public use, and it may not be long
before others join them. n227 The curtilage of the home may then be vulnerable to UAS
surveillance without any Fourth Amendment protections.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Solvency Turn – Separation of Powers
[___] Warrants revitalize the separation of powers, which would be prevented by the CP.
Reynolds, 2014
(Glenn Harlan [prof of law @ U of Tennessee]; NSA spying undermines separation of powers:
Column; www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillance-congresscolumn/5340281/)
Most of the worry about the National Security Agency's bulk interception of telephone calls, e-mail
and the like has centered around threats to privacy. And, in fact, the evidence suggests that if you've
got a particularly steamy phone- or Skype-sex session going on, it just might wind up being shared by
voyeuristic NSA analysts. But most Americans figure, probably rightly, that the NSA isn't likely to be
interested in their stuff. (Anyone who hacks my e-mail is automatically punished, by having to read it.)
There is, however, a class of people who can't take that disinterest for granted: members of Congress
and the judiciary. What they have to say is likely to be pretty interesting to anyone with a political ax
to grind. And the ability of the executive branch to snoop on the phone calls of people in the other
branches isn't just a threat to privacy, but a threat to the separation of powers and the Constitution.
As the Framers conceived it, our system of government is divided into three branches -- the
executive, legislative and judicial -- each of which is designed to serve as a check on the others. If the
president gets out of control, Congress can defund his efforts, or impeach him, and the judiciary can
declare his acts unconstitutional. If Congress passes unconstitutional laws, the president can veto
them, or refuse to enforce them, and the judiciary, again, can declare them invalid. If the judiciary
gets carried away, the president can appoint new judges, and Congress can change the laws, or
even impeach. But if the federal government has broad domestic-spying powers, and if those
are controlled by the executive branch without significant oversight, then the president has
the power to snoop on political enemies, getting an advantage in countering their plans, and
gathering material that can be used to blackmail or destroy them. With such power in the
executive, the traditional role of the other branches as checks would be seriously undermined, and
our system of government would veer toward what James Madison in The Federalist No. 47 called
"the very definition of tyranny," that is, "the accumulation of all powers, legislative, executive, and
judiciary, in the same hands." That such widespread spying power exists, of course, doesn't prove
that it has actually been abused. But the temptation to make use of such a power for self-serving
political ends is likely to be very great. And, given the secrecy surrounding such programs, outsiders
might never know. In fact, given the compartmentalization that goes on in the intelligence world,
almost everyone at the NSA might be acting properly, completely unaware that one small section is
devoted to gather political intelligence. We can hope, of course, that such abuses would leak out, but
they might not. Rather than counting on leakers to protect us, we need strong structural
controls that don't depend on people being heroically honest or unusually immune to political
temptation, two characteristics not in oversupply among our political class. That means that the
government shouldn't be able to spy on Americans without a warrant — a warrant that comes
from a different branch of government, and requires probable cause. The government should
also have to keep a clear record of who was spied on, and why, and of exactly who had access to the
information once it was gathered. We need the kind of extensive audit trails for access to information
that, as the Edward Snowden experience clearly illustrates, don't currently exist.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Solvency Turn – Separation of Powers
[___]
[___] Strong separation of powers are essential for US global leadership.
Ikenberry, 2001
(Professor at Georgetown University – G. John, National Interest, Spring 2001, Lexis)
First, America's mature political institutions organized around the rule of law have made it a relatively
predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and
security policy is made reduces surprises and allows other states to build long-term, mutually
beneficial relations. The governmental separation of powers creates a shared decision-making
system that opens up the process and reduces the ability of any one leader to make abrupt or
aggressive moves toward other states. An active press and competitive party system also provide
a service to outside states by generating information about U.S. policy and determining its
seriousness of purpose. The messiness of a democracy can, indeed, frustrate American diplomats
and confuse foreign observers. But over the long term, democratic institutions produce more
consistent and credible policies - policies that do not reflect the capricious and idiosyncratic
whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors.
It is more likely to attract investors if it can demonstrate that it operates according to accepted
accounting and fiduciary principles. The rule of law and the institutions of policymaking in a
democracy are the political equivalent of corporate transparency and accountability. Sharp
shifts in policy must ultimately be vetted within the policy process and pass muster by an array of
investigatory and decision-making bodies. Because it is a constitutional, rule-based democracy,
outside states are more willing to work with the United States-or, to return to the corporate
metaphor, to invest in ongoing partnerships.
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Solvency Turn – Racism
[___]
[___] The plan reverses racist trends, while the counterplan fails to do so.
Bernd, 2015
(Candice; Proposed Rules Regulating Domestic Drone Use Lack Police Warrant Requirement; Feb
24; www.truth-out.org/news/item/29250-proposed-rules-regulating-domestic-drone-use-lack-policewarrant-requirement)
"You're not just talking about the physical border, you're talking about an area that encompasses
many major cities that have large minority populations, and the idea that these drones can be flown
with little or no privacy protections really mean that, people, just by virtue of living in that region are
somehow accepting that they have a right to less privacy," she said. African-American
communities could well feel the disproportionate impacts of the integrated use of domestic
drones and other surveillance in the coming years, as technologies such as StingRay are already
being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs.
The drug war has long negatively impacted communities of color, based on racialized drug
policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug
crimes are people of color, despite similar rates of drug use among whites and people of color. These
already-existing racial disparities in intrusive policing tactics and deployment of surveillance
technologies are one of the primary reasons civil liberties experts are saying the government
often gets it backward when thinking about privacy issues: deploying intrusive technologies first,
and coming up with privacy policies governing their use afterward (when they may already be
violating many people's civil rights). "What we see with StingRays is the same phenomenon that
we're seeing with [UAS], where federal agencies are using them," Guliani said. "State and local
agencies are using them. There's federal dollars that are going to buy them, and we're kind of having
the privacy debate after the fact with very little information."
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Data Erasure Counterplan Affirmative
RIUDL
Varsity Division
Solvency Turn – Dismantling Racism
[___]
[___] The plan requires warrant checks that help dismantle racism, no judicial oversight in
counterplan requires law enforcement implementation and can lead to cultural racism.
Barndt, 1991
(Joseph R. Barndt co-director of Ministry Working to Dismantle Racism "Dismantling Racism" p. 155)
To study racism is to study walls. We have looked at barriers and fences, restraints and limitations,
ghettos and prisons. The prison of racism confines us all, people of color and white people
alike. It shackles the victimizer as well as the victim. The walls forcibly keep people of color and
white people separate from each other; in our separate prisons we are all prevented from achieving
the human potential God intends for us. The limitations imposed on people of color by poverty,
subservience, and powerlessness are cruel, inhuman, and unjust; the effects of uncontrolled
power, privilege, and greed, which are the marks of our white prison, will inevitably destroy us as well.
But we have also seen that the walls of racism can be dismantled. We are not condemned to
an inexorable fate, but are offered the vision and the possibility of freedom. Brick by brick,
stone by stone, the prison of individual, institutional, and cultural racism can be destroyed.
You and I are urgently called to join the efforts of those who know it is time to teardown, once and for
all, the walls of racism. The danger point of self-destruction seems to be drawing even more near.
The results of centuries of national and worldwide conquest and colonialism, of military buildups and
violent aggression, of overconsumption and environmental destruction may be reaching a point of no
return. A small and predominantly white minority of the global population derives its power and
privilege from the sufferings of vast majority of peoples of all color. For the sake of the world and
ourselves, we dare not allow it to continue.
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