Section 702 Aff

1AC

Plan

The United States federal government should curtail its domestic surveillance by prohibiting federal agencies from searching the contents of communications of a United States person acquired under Section 702 of the FISA Amendments Act except when the government obtains a warrant based on probable cause to believe that the United States person is planning or is engaged in acts of international terrorism.

Advantage 1 – Democracy

The 2008 FISA Amendments Act locked in the Bush era warrantless NSA spying program – this has lead to mass surveillance of US persons

Glenn Greenwald, 6/18/2013, The Guardian, “FISA court oversight: a look inside a secret and empty process,” mm

Many of the reasons these claims are so misleading is demonstrated by the law itself. When the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US government would be barred from ever monitoring the electronic communications of Americans without first obtaining an individualized warrant from the Fisa court, which required evidence showing "probable cause" that the person to be surveilled was an agent of a foreign power or terrorist organization.¶ That was the law which George Bush, in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis in 2008, enacted a new, highly diluted Fisa law – the Fisa Amendments Act of 2008 (FAA) – that legalizedmuch of the Bush warrantless NSA program.¶ Under the FAA, which was just renewed last December for another five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed to listenin on the callsorread the emailsof Americans when they communicate with a foreign national whom the NSA has targeted for surveillance.¶ As a result, under the FAA, the NSA frequently eavesdrops on Americans' calls and reads their emails without any individualized warrants – exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009:¶ "The Fisa Amendments Act of 2008, effectively gives the President - now President Obama - the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . .¶ "New Fisa authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) – which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda."¶ As the FAA was being enacted in mid-2008, Professor Balkin explained that "Congress is now giving the President the authority to do much of what he was probably doing (illegally) before".¶ The ACLU's Deputy Legal Director, Jameel Jaffer, told me this week by email:¶ "On its face, the 2008 law gives the government authority to engage in surveillance directed at people outside the United States. In the course of conducting that surveillance, though, thegovernment inevitably sweeps up the communications of many Americans. The government often says that this surveillance of Americans' communications is 'incidental', which makes it sound like the NSA's surveillance of Americans' phone calls and emails is inadvertent and, even from the government's perspective, regrettable.¶ "But when Bush administration officials asked Congress for this new surveillance power, they said quite explicitly that Americans' communications were the communications of most interest to them. See, for example, Fisa for the 21st Century, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA's predecessor statute, that certain communications 'with one end in the United States" are the ones "that are most important to us').¶ The principal purpose of the 2008 law was to make it possible for the government to collect Americans' international communications - and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government's advocacy is meant to obscure this fact, but it's a crucial one: The government doesn't need to 'target' Americans in order to collect huge volumes of their communications."¶ That's why Democratic senators such as Ron Wyden and Mark Udall spent years asking the NSA: how many Americans are having their telephone calls listened to and emails read by you without individualized warrants? Unlike the current attempts to convince Americans that the answer is "none", the NSA repeatedly refused to provide any answers, claiming that providing an accurate number was beyond their current technological capabilities. Obviously, the answer is far from "none".¶ Contrary to the claims by NSA defenders that the surveillance being conducted is legal, the Obama DOJ has repeatedly thwarted any efforts to obtain judicial rulings on whether this law is consistent with the Fourth Amendment or otherwise legal. Every time a lawsuit is brought contesting the legality of intercepting Americans' communications without warrants, the Obama DOJ raises claims of secrecy, standing and immunity to prevent any such determination from being made.

Section 702 contains a loophole that allows the NSA to use “backdoor searches” to read the contents of American communications without a warrant

Alex Wilhelm, 6/30/2014, Tech Crunch, “FBI, CIA join NSA in “backdoor” searches on Americans,” mm

Thousands of Americans were targets of so-called “backdoor” warrantless surveillance by the NSA and other intelligence agencies last year, according to a letter sent to Senator Ron Wyden.¶ The missive, written by the Office of the Director of National Intelligence (ODNI) to the Senator in response to a question posed earlier this month, is plainspoken. The Office also stated that the searches in question are not based on an exploited legal “loophole.”¶ The House recently voted to curtail such searches by defunding them.¶ Section 702 of the Foreign Intelligence Surveillance Act allows the government to collect information on foreign targets that are, to use its own language, “reasonably believed to be outside of the U.S. at the time of collection.” It can’t target United States persons by law, and it isn’t allowed to reverse-target — picking a foreign target with the hopes of picking up the communications of someone thought to be in the United States.¶The information collected under Section 702 authority may include the communications of Americans picked up in the process of collecting data on foreign targets. The stored information can then be queried by the NSA, and its intelligence brethren, using search terms to find the communications of Americans.Hence the term “backdoor.”¶How many Americans are caught up in the mix? According to the letter, the NSA used such queries to search the communications content of 198 U.S. persons in 2013. It also made around 9,500 metadata queries for the communications of U.S. persons in the period. The number of people impacted by the meta-data searches isn’t clear.¶ The CIA made 1,900 queries of Section 702-sourced information “using specific U.S. person identifiers” in 2013.¶ Ominously, the FBI also has access to some of the pooled data, but doesn’t count how often that it queries it using U.S. person identifiers.¶ Senator Wyden isn’t pleased with the data. In a statement, he indicated that “[w]hen the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight.”¶ Scale is also something to keep in mind. The ODNI states in its letter that “collection under Section 702 is not bulk collection, but is targeted collection based on specific identifiers.” Senator Wyden disagrees (Emphasis: TechCrunch):¶ While intelligence officials have often argued that it is impossible to estimate how many Americans’ communications are getting swept up by the government under Section 702, the Foreign Intelligence Surveillance Court has noted that the NSA acquires more than two hundred and fifty million Internet communications every year using Section 702, so even if US communications make up a small fraction of that total, the number of U.S. communications being collected is potentially quite large.¶In short, using a law named the Foreign Intelligence Surveillance Act, the NSA and the CIA and the FBI are able to search and read the content of the communications of Americans. Brilliant.

Specifically, Section 702 and PRISM amount to a “turnkey” that can bring about totalitarianism overnight

Kim Dotcom, 6/13/2013, The Guardian, “PRISM: concerns over government tyranny are legitimate,” mm

Some proponents of Prism assert that it is an essential tool against terrorism. They claim that only data belonging to foreigners (that is, non-US residents) is retained, and that content is not reviewed as a matter of course, only algorithmically analysed for suspicious patterns. They point out that a search warrant is still required from a secret court set up under the US. The Foreign Intelligence Surveillance Act (FISA) may be spun up so that content – accumulated over years of daily internet spooling – may be extracted and analysed, laying bare a suspect’s entire virtual life.¶Those safeguards have limited value. According to congressional reporting, the FISA court received 1,789 applications for authority to conduct electronic surveillance in 2012, but not one application was denied. We cannot debate whether the FISA court is a rubber stamp, because its proceedings are secret. Further, any assurance to US citizens that the NSA will not gather and archive their data is suspect. The “Five Eyes” alliance between the intelligence agencies of the US, Australia, Canada, New Zealand and the UK effectively permits those governments to circumvent the prohibition against gathering data on their own citizens by sharing information across the Five Eyes intelligence community. The UK for example can spy on Americans and make that information available to the US government on its massive spy cloud – one that the NSA operates and the Five Eyes share.¶Prior to 9/11, the operative presumption in developed nations favoured privacy, but the security narrative has since reversed the presumption, eroding our privacy rights in favour of government control over our personal information. However, governmentis an instrument – sometimes a crude one – susceptible to abuse, as demonstrated by recent admissions that the US Internal Revenue Service has targeted specific groups based on ideology. When we empower the state, we empower those that hold sway over the state, and the state is subject to influence from a multitude of quarters.¶ I have personally been a victim of such abuses. The US government has indicted me, shut down my cloud storage company Megaupload and seized all of my assets because it claims I was complicit in copyright infringement by some of the people who used the Megaupload service. I have emphasised that I am being prosecuted not because the charges against me have some sound basis in US copyright law, but because the US justice department has been instrumentalised by certain private interests that have a financial stake in neutralising my business. That trend represents a danger not just to me, but to all of us.¶ Recent polls in the US suggest that the public is not much preoccupied with the fact that our data is being retained, so long as our own political party is in control of the government. That kind of fickle comfort is small-minded. The point we should derive from Snowden’s revelations – a point originally expressed in March 2013 by William Binney, a former senior NSA crypto-mathematician – is that the NSA’s Utah Data Center will amount to a “turnkey” system that, in the wrong hands, could transform the country into a totalitarian state virtually overnight. Every person who values personal freedom, human rights and the rule of law must recoil against such a possibility, regardless of their political preference. Others take a more cavalier approach, such as former Google CEO Eric Schmidt in 2009: “If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.”¶We should heed warnings from Snowden because the prospect of an Orwellian society outweighs whatever security benefits we derive from Prism or Five Eyes. Viewed through the long lens of human history, concerns over government tyranny are always legitimate. It is those concerns that underpin the constitutions of most developed countries, and inform international principles of human rights and the rule of law. Prism and its related practices should be discontinued immediately, and the Utah Data Center should be leased to cloud storage companies with encryption capabilities.

And unchecked mass surveillance in the US undermines our democratic model

Matt Sledge and Michael Calderone, 7/28/2014, The Huffington Post, “mass surveillance is corroding American Democracy, Human rights report concludes,” mm

Being a lawyer or a reporter increasingly means adopting the paranoid tactics of a drug dealer, a joint Human Rights Watch and American Civil Liberties Union report released Monday determined, with poisonous results for democracy at home and abroad.¶In the wake of President Barack Obama's prosecutions of national security leakers and the revelations of former National Security Agency contractor Edward Snowden, journalists and attorneys have resorted to encrypted emails, face-to-face meetings and cash over credit to protect clients and sources.¶The end result has been a drying well of voices willing to tell the truth about what the government is doing in our name, a justice system compromised by attorneys' inability to speak freely with their clients, and "a terrible example" for countries such as India, Pakistan and Ethiopia.¶ "The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent," Alex Sinha, a fellow at the two groups, said in a statement. "The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights."¶ The report follows in the footsteps of a November PEN survey of mostly non-journalistic writers that found many are also fearful of what they put in an email or say over the phone, leading them to avoid charged issues like the Middle East. The new report, meanwhile, comes as even allies such as Germany are increasingly expressing anger over U.S. spying.¶ Through interviews with 46 journalists, the report's authors concluded government sources are increasingly less willing to share information in response to revelations about the expansive U.S. surveillance state and the Obama administration's unprecedented use of the Espionage Act in targeting leaks to media outlets.¶ Jonathan Landay, a veteran reporter for the McClatchy newspaper chain and one of the few journalists who challenged the Bush administration's claims during the runup to the Iraq War, said, "This is the worst I've seen in terms of the government's efforts to control information."¶ An October report from the Committee to Protect Journalists highlighted the unprecedented measures the Obama administration, which famously pledged to be the most transparent in history, has taken to prevent unsanctioned leaks.¶ The New York Times' Charlie Savage said in Monday's report that "it is not lost on us, or on our sources, that there have been eight criminal cases against sources" during the Obama years, as opposed to just three under all previous administrations. The New Yorker's Jane Mayer said she "can't count the number of people afraid of the legal implications" of speaking to her.¶ Journalists who cover particularly sensitive beats such as national security, intelligence and justice, are increasingly using encrypted communications or buying throwaway "burner" phones to try to speak with sources in a way that won't leave an obvious digital trail. But several journalists acknowledged that these precautions aren't foolproof and the adoption of such tradecraft can make sources even more skittish.¶ In the report, The Intercept's Peter Maass recalled unsuccessfully asking a source to physically mail information instead of doing so electronically. "I made him aware of the danger of being connected to me," he said. "As a result, I lost that story."¶Despite all these measures aimed at trying to leave less of a trail back to sources, the report found that "not a single journalist we spoke with believed they could defeat the most focused efforts by the government to discern their activities."¶ Adam Goldman, a Pulitzer Prize-winning reporter at The Washington Post whose work was the subject of three leak investigations while at The Associated Press, said that "if the government wants to get you, they will."¶ "What are we supposed to do? Use multiple burners? No email? Dead drops?" Goldman asked. "You can't be a journalist and do your job that way."¶ Lawyers -- particularly those in criminal defense -- felt the same way. "I'll be damned if I have to start acting like a drug dealer in order to protect my client's confidentiality," said attorney Tom Durkin.¶ In interviews with dozens of attorneys, the report found that many are changing their habits in ways similar to journalists. But the results are potentially even more grave in an arena where the very right to a fair trial is at stake.¶ When the U.S. government can pore through emails or phone calls between lawyers and their clients at will, the playing field at trials could be permanently tilted against defendants. Even corporate firms are far from safe, the report notes, citing a February New York Times report based on Snowden documents that the U.S. government was monitoring communications between an American law firm and its client, the government of Indonesia. The Intercept reported earlier this month that the government has been spying on Muslim American lawyers.¶ Witnesses in addition to clients are at risk, said Maj. Jason Wright, an Army lawyer who represents Guantanamo Bay detainees. The military commissions there have been plagued by fears of an FBI investigation that has probed a defense team.¶ "We are fearful that our communications with witnesses abroad are monitored," Wright said. Reaching out to witnesses thus "might put people in harm's way."¶Citing both international law and the Constitution, Human Rights Watch and the ACLU said that Obama and Congress should take steps to curb mass surveillance now. Congress could end bulk collection such as the NSA's domestic call records program, although the report expressed caution about a weakened version of a House bill meant to do that. Obama has the authority to rein in much of the surveillance targeted abroad unilaterally by amending a 1981 Ronald Reagan executive order, the report noted.¶ Government officials told the human rights researchers that the safeguards in place protect both lawyers and journalists. They also argued that the costs of surveillance are outweighed by the benefits to national security.¶ Bob Deitz, who was the NSA's top lawyer when the George W. Bush administration developed its warrantless wiretapping program, put his view even more bluntly. National security journalists' sources, he argued, should be worried.¶ "Leaking is against the law. Good. I want criminals to be deterred," he said. "Does a cop chill a burglar's inclination to burgle? Yes.'"