Con: Racism Contention Answers

Surveillance will not simply disappear if the NSA stops doing it. Other federal agencies engage in surveillance and would simply increase their own surveillance and Congressional support would be high. This is proven by two facts:

(a) Surveillance is politically popular

The Verge, May 14, 2020, https://www.theverge.com/2020/5/14/21257782/surveillance-bill-congress-senate-pass-usa-freedom-reauthorization-act

The USA Freedom Reauthorization Act lets law enforcement collect “tangible things” related to national security investigations without a warrant, requiring only approval from a secret court that has reportedly rubber-stamped many requests. It passed the House of Representatives earlier this year, but it stalled in the Senate during the start of the coronavirus pandemic. Today, senators approved it with 80 votes for and 16 votes against, according to The Hill. The House of Representatives will need to approve the amended version of the bill before sending it to the president’s desk.

(b) FBI engages in racist surveillance

ACLU, 2020, Mappimng the FBI: Uncovering Abusive Surveilance and Racial Profiling, https://www.aclu.org/issues/national-security/privacy-and-surveillance/mapping-fbi-0

The Federal Bureau of Investigation is collecting racial and ethnic information and “mapping” American communities around the country based on crude stereotypes about which groups commit different types of crimes. Nationwide, the FBI is gathering reports on innocent Americans’ so-called “suspicious activity” and sharing it with unknown numbers of federal, state and local government agencies.In response, the ACLU’s “Mapping the FBI” initiative seeks to expose misconduct, abuse of authority, and unconstitutional profiling and other violations of Americans’ rights and liberties across the country.As our nation’s predominant law enforcement agency, the FBI should be tracking true threats, not wasting resources and inappropriately mapping American communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion. Yet, in the decade since 9/11, long-standing safeguards on the FBI’s investigative and intelligence collection activities have been erased, allowing it to engage in racial and ethnic profiling and to initiate intrusive investigations with little or no suspicion of wrongdoing.

© FBI surveillance is worse. They can explicitly surveill based on race

Unegbu, Howard University JD candidate, 2013

[Cindy, 57 How. L.J. 433, “NOTE AND COMMENT: National Security Surveillance on the Basis of Race, Ethnicity, and Religion: A Constitutional Misstep” Lexis, accessed 7-6-15, TAP]

In addition to the procedural power given to the NCTC through its amended guidelines, the FBI has been given express surveillance procedural authority through the DIOG. 93Link to the text of the note The new rules were enacted to give agents more latitude as they search for indications of criminal and terrorist activity. 94Link to the text of the note The various FBI surveillance procedures that have been outlined include the ability to observe and collect any form of protected speech by citizens and those residing within the country’s jurisdiction. 95Link to the text of the note Furthermore, the FBI has the authority to use religion as a factor when determining whether an individual or group deserves greater scrutiny and monitoring. 96Link to the text of the note Race and ethnicity may be considered as a factor in its national security assessment, as long as it is not the dominant factor for focusing on a particular person. 97Link to the text of the note Another power that has been granted is the authority to retain personal information that has been collected on an individual, even if an assessment does not suggest that an individual is engaged in any wrongdoing. 98Link to the text of the note Perhaps the most daunting new permission that has been granted to the FBI is the ability to monitor domestic individuals and citizens without there being any presupposed suspicion of terrorist or criminal activity. 99Link to the text of the note The manual prohibits “racial profiling” in the national security assessments; however, it allows an assessor to monitor  [449]  “religious practitioners or religious facilities,” 100Link to the text of the note and to identify locations of concentrated ethnic communities. 101Link to the text of the note The FBI, in essence, has the authority to infiltrate lawful and peaceful places of worship, communities and businesses, and take race, religion and ethnicity into account when developing its threat analysis. 102Link to the text of the note The guidelines permitting the use of race, religion, or ethnicity to assess national security threats or criminal activity could result in the unconstitutional and prejudicial monitoring of individuals. 103Link to the text of the note


© And the other agencies can just buy it. They don’t need  the NSA to collect it

Sue Udry, 11-30, 20, Selling Out the Fourth Amendment, https://rightsanddissent.org/news/selling-out-the-fourth-amendment/

US law enforcement and military agencies have been buying their way around the Fourth Amendment using loopholes in federal privacy laws to access vast troves of our personal data.  As we all know, private companies like Facebook, Google, and Verizon, collect an almost limitless amount of information about us — where we are, what we like, what we do, how we feel. While government agencies are not allowed to buy that information directly from these consumer facing entities, once that information gets sold to data brokers (companies like Venntel, Locate X, X-Mode, Clearview AI and hundreds most of us have never heard of), it’s perfectly legal for ICE, the FBI, the CIA and the military to purchase any and all of it. Essentially, it’s data laundering, allowing the government to access information that would normally require a court order. According to Senator Ron Wyden (D-OR), “I think we’ve really reached the point where you have so much data floating around that governments can essentially buy their way around the Fourth Amendment.” Just a few ways our government is getting its hands on our most personal data without a warrant:  Hundreds of police and government agencies have purchased access to a facial recognition service run by Clearview AI, allowing them to search through billions of photos Clearview downloaded from Facebook, LinkedIn, Twitter and YouTube. In June, we learned that the IRS was purchasing cell phone location data to “track and identify potential criminal suspects.” In July, we learned that Customs and Border Patrol “purchased access to a commercial database that allows the agency to look up the historical location of vehicles nationwide without a warrant,” to search “license plates of interest”. CBP itself noted that “The only way to opt out of such surveillance is to avoid the impacted area, which may pose significant hardships and be generally unrealistic.” In August, we learned that CBP “paid nearly half a million dollars to a company that sells a product based on location data harvested from ordinary apps installed on peoples’ phones”. Two weeks ago, we learned that the “U.S. military is buying the granular movement data of people around the world, harvested from innocuous-seeming apps.”  Those apps included a Muslim prayer app, a Muslim dating site, and others.  Related: DRAD executive director, Sue Udry, on Muslim Network TV  It’s time for Congress to close this gaping loophole. Senator Wyden is promising to do that, aiming to introduce The Fourth Amendment Is Not For Sale Act this week. According to Wyden, “basically, it would outline a plan to ban the government from buying information that would otherwise require a court order or a warrant.”

(d) This turns all rights arguments because the FBI doesn’t even follow its own procedures

CBS News, March 21, 2020,
https://www.cbsnews.com/news/fbi-fisa-application-carter-page-problems-watchdog/, Problems in FBI surveillance applications went beyond Carter Page, Justice Department watchdog finds

The Justice Department’s internal watchdog found widespread problems with surveillance applications submitted by the FBI to the government’s national security court, indicating issues with the bureau’s FISA warrants extended beyond those targeting former Trump campaign aide Carter Page. The deficiencies, drawn from surveillance applications between October 2014 and September 2019, a period which included the tenure of both former FBI Director James Comey and current FBI Director Christopher Wray, were detailed in a new audit conducted by Michael Horowitz, the Justice Department inspector general, and made public Tuesday.  The audit focused on the so-called Woods Procedures, which were instituted by the FBI in 2001 after several problems were identified with the stated purpose of minimizing errors by maintaining a file of the underlying evidence. FBI case agents requesting FISA applications are required to maintain a Woods File. “We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the ‘scrupulously accurate’ standard for FISA applications,” Horowitz wrote in a memo to FBI Director Christopher Wray. The audit of the FBI’s surveillance process was initiated in the wake of Horowitz’s investigation into the bureau’s Russia probe known as “Crossfire Hurricane” and its handling of four applications targeting Page submitted under the Foreign Intelligence Surveillance Act (FISA). In that investigation, the results of which were released in December, the inspector general found the initial surveillance application submitted to the FISA court and three renewal applications contained 17 “inaccuracies and omissions.”The new audit, which assessed the FBI’s underlying records to support surveillance applications relating to U.S. persons, said of the Page warrants, “we identified fundamental and serious errors in the agents’ conduct of the FBI’s factual accuracy review procedures (‘Woods Procedures’) with regard to all four FISA applications.” Horowitz underscored the finding that errors, which appeared in the first application, were repeated in the subsequent renewals, writing, “We further found that the FBI had failed to follow its policies for re-verifying factual assertions made in the initial FISA application that were also included in the three FISA renewal applications.”

NBC News, December 10, 2019, https://www.nbcnews.com/politics/justice-department/ig-report-shows-way-fbi-gets-warrants-spy-americans-mess-n1098666

For years, civil liberties activists have been warning that the process for obtaining secret warrants to spy on Americans under the Foreign Intelligence Surveillance Act was dangerously flawed, in part because it is one-sided. The government tells judges behind closed doors why the spying is justified, and there is nobody in the room representing the target to question that evidence.

€ And it’s worse because there are blurred lines of accountability for FBI surveillance

ACLU, More About FBI Syping, https://www.aclu.org/other/more-about-fbi-spying, MORE ABOUT FBI SPYING

The FBI has a long history of abusing its national security surveillance powers. The potential for abuse is once again great, particularly given that the lines between criminal investigations and foreign intelligence operations have been blurred or erased since 9/11

(D) These turns don’t take out our Con Contention because (1) Our link to terrorism is specific to the NSA and (2) The FBI stinks at counterterrorism

Adam Garland, September 21, 2016, https://www.nytimes.com/2016/09/22/us/fbi-terror-ahmad-khan-rahami.html

The F.B.I. is the government agency in charge of investigating terrorism. But the bureau has been criticized for failing to thwart a series of terrorist attacks in recent years in Boston; Orlando, Fla.; Garland, Tex.; and now New York.

(E) Relying more on the FBI increases terrorism because they place informants in Muslim communities, which alienates those communities and increases terrorism. It also wastes resources better spent on combatting terrorism

Shah, 14 — legislative counsel at the ACLU’s Washington legislative office (7/21/2014, Naureen, “The FBI’s counterterrorism sting operations are counterproductive; Feds sow mistrust and target the poor, desperate and mentally ill,” http://america.aljazeera.com/opinions/2014/7/fbi-sting-operationscounterterrorismadeldaoud.html, JMP)

As a report released today by Human Rights Watch and Columbia Law School’s Human Rights Institute documents, the FBI’s tactics in some terrorism sting cases are not only abusive but counterproductive. They instill fear of law enforcement instead of mutual trust. And they potentially divert FBI resources from actual terrorism threats Sting operations are nothing new, but the FBI is using significantly more aggressive tactics in American Muslim communities than it has in others. It is deploying informants and undercover FBI agents to mosques and community centers around the country in what sometimes appear to be virtual fishing expeditions. In some cases, the FBI has instructed informants to strike up conversations about jihad with anyone who will listen These investigations appear to pick off the lowest-hanging fruit, including the mentally ill and the poor, who are vulnerable to manipulation. In one case, the subject of “The Newburgh Sting,” an HBO documentary premiering this week, an informant promised a 45-year-old African-American man $250,000 to participate in a fake attack. After losing his job at Walmart, the man accepted the offer For every terrorism bust the FBI claims based on such tactics, there is a cost Deploying informants and conducting surveillance without reasonable suspicion has sent chills through many American Muslim communities. Some parents with whom we spoke feared the FBI might recruit their teenage kids to become informants on their communities. Others said they feared that strangers in their mosques and community centers could be undercover FBI agents or infiltrators, hunting for youth to entrap in fake terrorist plots.

This kind of fear — in any context and no matter its actual merit — is a recipe for bad policing, since distrust of law enforcement can deter citizens from reporting a crime tip or fully cooperating in bona fide crime investigations The government has racked up hundreds of convictions based on terrorism stings. Multiple studies have found that nearly half of federal terrorism convictions since the 9/11 attacks resulted from informant-based cases. Some may be lawful and justifiable, yet almost 30 percent of these convictions were sting operations in which the informant played an active role in the underlying plot. In too many cases, the government, often acting through informants, developed the fake terrorism plot, persuaded and sometimes pressured the targeted individuals to participate and provided the resources to carry it out. The FBI’s wisdom in pursuing these cases, rather than investigating threats and individuals who were actually operational, is questionable at best Similarly questionable is the government’s expansive surveillance and collection of information about all Americans, including American Muslims, which we continue to learn about through revelations from National Security Agency whistleblower Edward Snowden. Rather than helping FBI analysts connect the dots, the flood of data is impairing the FBI’s ability to properly assess and respond to threat information it receives. While we can’t expect the FBI to prevent every terrorist attack, recent ones like the Boston Marathon bombing show the need for a sober re-evaluation of the agency’s methods.

(F) This turns the whole Pro case – MASSIVE FBI surveillance

ACLU, 2020, https://www.aclu.org/other/more-about-fbi-spying, MORE ABOUT FBI SPYING

Use of Race and Ethnicity. An internal FBI guide to implementing the new AG Guidelines, called the Domestic Investigations and Operations Guide (DIOG), contains startling revelations about how the FBI is using race and ethnicity in conducting assessments and investigations. First, the DIOG says that investigative and intelligence collection activities must not be based “solely on race.” But the Department of Justice’s 2003 Guidance on the Use of Race in Federal Law Enforcement, which is binding on the FBI, says race can’t be used “to any degree” absent a specific subject description. There is a huge difference between using race as a factor and using race as the sole factor Moreover, the DIOG then goes on to describe the authorized uses of race and ethnicity for FBI agents, which include “Collecting and analyzing” racial and ethnic community demographics. The FBI, according to the document, is authorized to “identify locations of concentrated ethnic communities in the Field Office’s domain, if these locations will reasonably aid in the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence analysis… Similarly, the locations of ethnically-oriented businesses and other facilities may be collected…” (DIOG page 32) “Geo-mapping” of racial and ethnic demographics. “As a general rule, if information about community demographics may be collected it may be ‘mapped.'” (DIOG page 33 Collecting “specific and relevant” racial and ethnic behavior. Though the DIOG prohibits “the collection of cultural and behavioral information about an ethnic community that bears no relationship to a valid investigative or analytical need,” it allows FBI agents to consider “focused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community,” as well as “behavioral and cultural information about ethnic or racial communities” that may be exploited by criminals or terrorists “who hide within those communities.” (DIOG page 33-34).

It is hard to imagine how any U.S. law enforcement agency would consider collecting and mapping racial and ethnic community demographics an appropriate use of its resources (or, for that matter, consistent with its obligation to not only follow but enforce U.S. civil rights laws). In fact, in 2007 the Los Angeles Police Department abandoned a similar plan to map LA’s Muslim community in the face of public outrage. The FBI hotly contested a 2007 report from Congressional Quarterly’s Jeff Stein that the FBI had tracked San Francisco falafel sales to try and find Iranian terrorists, but the DIOG certainly confirms that the FBI considers ethnic behavior and ethnic-oriented businesses fair targets for surveillance (and Stein stood by his story).Data Mining. The FBI is sweeping up incredible amounts of information about innocent Americans through unchecked data collection and data mining programs. According to documents obtained by Wired magazine in 2009, an arm of the FBI called the National Security Branch Analysis Center (NSAC) has collected 1.5 billion records from public and private sources in a massive data mining operation. The records collected by the FBI include financial records from corporate databases, such as hotel and rental car company transactions; millions of “suspicious activity reports” from financial institutions; millions of records from commercial data aggregators; a multitude of law enforcement and non-law enforcement government databases; and public information gleaned from telephone books and news articles. The NSAC records include data from the FBI’s Investigative Data Warehouse, which was identified in a Department of Justice Inspector General reports as the depository for information collected by the FBI through National Security Letters (NSLs) and illegal exigent letters. The FBI has also established a new database called eGuardian to collect and share suspicious activity reports with the federal intelligence agencies, the Department of Homeland Security, fusion centers, the military and state and local law enforcement.