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Introduction & Advantages
Claiming authority from Section 215 of the Patriot Act, the government collects information cell phone records from nearly every American in case it wants to build relationships between phone calls and terrorism.
Casey McGovern, 2014 Fordham law professor, The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program, 82 Fordham L. Rev. 2399 (2014). Available at: http://ir.lawnet.fordham.edu/flr/vol82/iss5/15 DOA: 1-27-14
In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program. The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity.
Tens of millions of records are collected through this, at best, questionable interpretation of authority under Section 2015.
Glenn Greenwald, attorney & journalist who broke the NSA spying story, May 2014, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State, Kindle edition
The ruling I read on the plane to Hong Kong was amazing for several reasons. It ordered Verizon Business to turn over to the NSA “all call detail records” for “communications (i) between the United States and abroad; and (ii) wholly within the United States, including local telephone calls.” That meant the NSA was secretly and indiscriminately collecting the telephone records of tens of millions of Americans, at least. Virtually nobody had any idea that the Obama administration was doing any such thing. Now, with this ruling, I not only knew about it but had the secret court order as proof. Moreover, the court order specified that the bulk collection of American telephone records was authorized by Section 215 of the Patriot Act. Almost more than the ruling itself, this radical interpretation of the Patriot Act was especially shocking. What made the Patriot Act so controversial when it was enacted in the wake of the 9/ 11 attack was that Section 215 lowered the standard the government needed to meet in order to obtain “business records,” from “probable cause” to “relevance.” This meant that the Federal Bureau of Investigation, in order to obtain highly sensitive and invasive documents— such as medical histories, banking transactions, or phone records— needed to demonstrate only that those documents were “relevant” to a pending investigation. But nobody— not even the hawkish Republican House members who authored the Patriot Act back in 2001 or the most devoted civil liberties advocates who depicted the bill in the most menacing light— thought that the law empowered the US government to collect records on everyone, in bulk and indiscriminately. Yet that’s exactly what this secret FISA court order, open on my laptop as I flew to Hong Kong, had concluded when instructing Verizon to turn over to the NSA all phone records for all of its American customers. For two years Democratic senators Ron Wyden of Oregon and Mark Udall of New Mexico had been going around the country warning that Americans would be “stunned to learn” of the “secret interpretations of law” the Obama administration was using to vest itself with vast, unknown spying powers. But because these spying activities and “secret interpretations” were classified, the two senators, who were members of the Senate Intelligence Committee, had stopped short of disclosing to the public what they found so menacing, despite the legal shield of immunity granted to members of Congress by the Constitution to make such disclosures had they chosen to. Greenwald, Glenn (2014-05-13). No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Kindle Locations 499-502). Henry Holt and Co.. Kindle Edition.
Section 215 of the Patriot Act allows the government to collect “books, records, papers, documents, and other items” that are “relevant” to “an authorized investigation.
The National Security Agency (NSA) interprets this to mean that it can collect metadata on millions of people (Americans and foreigners) because argues that this information is considered “relevant” to an investigation.
What this means is that the NSA collects phone call records for many Americans.
Matthatias Schwartz, January 26, 2015, The New Yorker, “The Whole Haystack,” http://www.newyorker.com/magazine/2015/01/26/whole-haystack, DOA: 1-23-15
The metadata program remains the point of greatest apparent friction between the N.S.A. and the Constitution. It is carried out under Section 215 of the Patriot Act, which allows the government to collect “books, records, papers, documents, and other items” that are “relevant” to “an authorized investigation.” While debating the Patriot Act in 2001, Senator Russ Feingold worried about the government’s powers to collect “the personal records of anyone—perhaps someone who worked with, or lived next door to . . . the target of the investigation.” Snowden revealed that the N.S.A. goes much further. Metadata for every domestic phone call from Verizon and other carriers, hundreds of billions of records in all, are considered “relevant” under Section 215. The N.S.A. collects them on an “ongoing, daily basis.”
This information does not include the content of the calls, but it does include records of when all calls are made, to who they are made, and the duration of the calls. It must also have a legitimate reason to search the records.
The Christian Science Monitor, July 22, 2013, How will Obama defend secret NSA program in court? Letter offers clue.; The ACLU is challenging the NSA’s secret data-collection program in court. The Obama administration responded with a letter making its case for why the program is constitutional and necessary, http://www.csmonitor.com/USA/Justice/2013/0722/How-will-Obama-defend-secret-NSA-program-in-court-Letter-offers-clue
The Justice Department disagrees with those assessments. The letter, by David Jones, an assistant US attorney, argues that the program’s checks and balances are adequate. For example, the government may not eavesdrop on anyone’s phone calls or record anything participants say. All it can do is collect phone numbers making and receiving certain calls, as well as the date, time, and duration of each call – the so called “metadata.” Even then, the letter continues, “the Government is prohibited … from indiscriminately sifting through the data. The data-base may only be queried for intelligence purposes by NSA analysts where there is a reasonable, articulable suspicion (“RAS”), based on specific facts.” If the government wants to take a closer look, any data gleaned must be associated with people or phone numbers already identified and approved by the secret Foreign Intelligence Surveillance Court. In 2012, the letter revealed, the court approved fewer than 300 “query terms” that would allow intelligence analysts to pursue a phone call further. These protocols are overseen by the Justice Department and intelligence officials, and congressional intelligence committees are briefed regularly. “Thus, the program has been approved and is rigorously overseen by all three branches of the Government.” For these reasons, the program ” is fully consistent with the Fourth Amendment,” states the letter. “Most fundamentally, the program does not involve ‘searches’ of plaintiffs’ persons or effects, because the collection of … metadata from the business records of a third-party telephone service provider, without collecting the contents of plaintiffs’ communications, implicates no ‘legitimate expectation of privacy’ that is protected by the Constitution.”
The government defends the constitutionality of the program with the claim that people do not have a right to privacy in data that they voluntarily overturn to a third party and that is not content (meta data as opposed to data). The government compares the data that they collect to the one’s address on an envelope or one’s phone number, neither of which are private.
Yohn Yoo, Summer 2014, Emanuel S. Heller Professor of Law, University of California, Berkeley Law School; Visiting Scholar, American Enterprise Institute, Harvard Journal of Law & Public Policy, THE LEGALITY OF THE NATIONAL SECURITY AGENCY’S BULK DATA SURVEILLANCE PROGRAMS, http://moritzlaw.osu.edu/students/groups/is/files/2013/11/Yoo1.pdf, DOA: 1-1-15, p. 916
- Metadata Collection and Third-Party Doctrine
Even if Congress and the President have sufficient statutory authority to carry out the NSA programs, they may still violate the Constitution. A government decision may satisfy the structural provisions of the Constitution–such as the separation of powers and federalism–yet still run afoul of the Bill of Rights. This part measures the two NSA programs against the primary individual right at stake: the Fourth Amendment’s protection against unreasonable searches and seizures. It concludes that both the telephone metadata and the foreign e-mail collection programs, as currently described by the Obama administration, do not violate the Fourth Amendment. The NSA’s first program, which collects metadata on domestic phone calls, poses the fewest constitutional difficulties. Under existing judicial doctrine, individuals have Fourth Amendment rights in the content of communications, but not in their addressing information. Privacy does not extend to the writing on the outside of envelopes deposited in the mail because the sender has voluntarily revealed the addresses to the post office for delivery. An identical principle applies to telecommunications. In Smith v. Maryland, the Supreme Court found calling information, such as the phone number dialed, beyond Fourth Amendment protection because the consumer had voluntarily turned over the information to a third party — namely, the phone company — for connection and billing purposes. Under the rubric of Katz v. United States, no one can have an expectation of privacy in records that they have handed over to someone else. In recent cases, however, the Court has turned a skeptical eye toward new search technologies. In Kyllo v. United States, for example, the Court held that thermal imaging of homes qualified as a search under the Fourth Amendment, even though the police used the imaging device from a public street. In United States v. Jones, the Court found that the Fourth Amendment required a warrant for the installation of a global positioning service tracker on a car. These cases turn on the means by which the government conducts a search in a place protected by the Fourth Amendment. In Kyllo, the Court believed that thermal imaging verged on a physical search of a home, while Jones involved physical intrusion into a private car. Neither holding calls into doubt the loss of Fourth Amendment rights when an individual voluntarily hands over information to a third party. In other words, the information sought by the NSA programs would require a warrant to be searched if it remained within the home or personal computing devices. As a result, the Constitution does not require a warrant for a pen register because no electronic interception or surveillance of the content of the calls has occurred. Meanwhile, the data collected is potentially of enormous use in frustrating al Qaeda plots. If U.S. agents are pointed to members of an al Qaeda sleeper cell by a domestic phone number found in a captured al Qaeda leader’s cell phone, call pattern analysis would allow the NSA quickly to determine the extent of the network and its activities. The NSA, for example, could track the sleeper cell as it periodically changed phone numbers. This could give a quick, initial, database-generated glimpse of the possible size and activity level of the cell in an environment where time is of the essence. A critic might respond that there is a difference between a pen register that captures the phone numbers called by a single person and a database that captures all of the phone numbers called by everyone in the United States. The Supreme Court, however, has never held that obtaining billing records would somehow violate privacy merely because of a large number of such records.
Critics of the program contend that given the volume of meta data that the government collects that it could reasonably infer a lot of private information about a person based on the pattern of calls that are made.
Joseph Mornin, 2014 JD Candidate, Berkeley Law, Berkeley Technology Law Journal, NSA Metadata collection and the Fourth Amendment, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2042&context=btlj DOA: 2-26-14
In some cases, it reveals more than the content of the conversations. For instance, suppose that: A woman calls her gynecologist; then immediately calls her mother; then a man who, during the past few months, she had repeatedly spoken to on the telephone after 11pm, followed by a call to a family planning center that also offers abortions. A likely storyline emerges that would not be as evident by examining the record of a single call.
Access to these records also undermines privacy and democracy by reversing the presumption of innocence, blurring the line between private actors and law enforcement, and supporting the overreach of intelligence agencies.
- reverses the presumption of innocence
- blurs the line between private actors and law enforcement
- means intelligence overreach
Joel R. Reidenberg, Summer 2014, Microsoft Visiting Professor of Information Technology Policy, Princeton University; Stanley D. and Nikki Waxberg Chair and Professor of Law, Fordham University School of Law, Wake Forest Law Review, THE DATA SURVEILLANCE STATE IN THE UNITED STATES AND EUROPE, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2349269, DOA: 1-25-15, p. 605-6
III. The Privacy Turning Point
The existence of retained traffic data, the reliance on uncertain access rules, the recourse to an elusive proportionality, the dependence on private actors, and the privileges accorded to national security collectively place privacy and values in democracy at a turning point. In the aggregate, these elements increase the transparency of citizens’ online lives and reduce the sphere of privacy that citizens can enjoy. This transparency is destructive of many fundamental democratic values. First, the transparency reverses the presumption of innocence. The presumption is central to the philosophy underlying the warrant requirement in the Fourth Amendment and the principle that citizens are innocent until proven guilty in the Fifth and Fourteenth Amendments. In Europe, the presumption of innocence is also a fundamental tenent of the Charter of Fundamental Rights of the European Union: “Everyone who has been charged shall be presumed innocent until proved guilty according to law.” Yet, data that are collected and retained without any individualized cause or suspicion by private actors for subsequent access by public authorities contravenes the basic constitutional philosophies. If law generally requires collection and retention, the rationale is that all individuals in the data set are suspect. Similarly, if broad access is afforded to data sets that were created for commercial purposes, the core philosophy is that all individuals in the data set are suspect. These practices transform the presumption of innocence into a presumption of suspicion counter to the core constitutional philosophies Second, the forced transparency diffuses the monopoly of the state on law enforcement. Law enforcement, investigation, and intelligence activities are blurred when communications service providers must retain and make available client and user data. Function creep assures that this diffusion of resources for law enforcement to the private sector will lead to increasing demands and an expansion of the scope of enforcement activity to encompass private matters and not just public safety and security. Third, the transparency from private data mining and publicly mandated surveillance (i.e., forced data retention) diminishes the zone of individual freedom. Where data retention is neither sharply limited nor combined with strong, clear access controls, the ability of citizens to make decisions about their personal information and their ability to decide when and how to disclose their thoughts, beliefs, and activities, are impaired. Finally, the transparency of personal information through the national security exceptions assures troubling intelligence gathering from inevitable overreaching. Without a means for effective oversight, the privileges afforded to intelligence operations blur government information gathering into generic, ambient state surveillance. Nondemocratic regimes strive for this level of knowledge of their citizenry’s activities.
Critics of the program respond to the claim that people voluntarily turn the data to third parties.
Olivier Sylvain, 2014, Associate Professor, Fordham University School of Law, Summer Wake Forest Law Review, FAILING EXPECTATIONS: FOURTH AMENDMENT DOCTRINE IN THE ERA OF TOTAL SURVEILLANCE, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2473101, DOA: 1-24-15, p. 489-90
Indeed, despite their misgivings, participation and upload rates at the top social networking sites and applications continue to grow. For example, over 1.2 billion users log in to their Facebook accounts at least every month. That is around one-third greater than the number of user accounts Facebook had just a year before. Of these, about 700 million are active daily users. users upload an average of more than 350 million photos every day, with a huge fraction of these pictures coming from smartphone cameras. Meanwhile, about 500 million people have active Twitter accounts from which they post nearly fifty-eight million tweets and photos every day. If these popular Internet-based applications are any indication of how willing users are to publicize their personal information, we can assume that, no matter how uneasy they may be about disclosing so much, users are still willing to do it.
But they really has no choice in the matter, as living in the modern world requires completing mundane tasks such as using a cell phone and browsing the Internet. There are not really voluntary activities.
Monu Bedi, December 2014, Assistant Professor, DePaul University College of Law, Boston University Law Review, December, Social Networks, Government Surveillance, and the Fourth Amendment Mosaic Theory, http://www.bu.edu/bulawreview/files/2014/12/BEDI.pdf p. 1836-7
It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Justice Sotomayor’s point certainly has intuitive appeal given the pervasiveness of these practices.
It is the case that the government can only gain access to the data if it is relevant to an investigation, but the Foreign Intelligence Surveillance Act court has only rejected two such requests.
Joel R. Reidenberg, Summer 2014, Microsoft Visiting Professor of Information Technology Policy, Princeton University; Stanley D. and Nikki Waxberg Chair and Professor of Law, Fordham University School of Law, Wake Forest Law Review, THE DATA SURVEILLANCE STATE IN THE UNITED STATES AND EUROPE, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2349269, DOA: 1-25-15,
Similarly, amendments to FISA contained in section 215 of the PATRIOT Act permit public authorities to obtain business records from the private sector if they are relevant to an authorized investigation. Like the section 702 FISA order, a PATRIOT Act order, known as a “National Security Letter,” is also secret and is accompanied by a gag order prohibiting the recipient from disclosing the existence of the National Security Letter. The order can even be issued without any judicial oversight. According to the Electronic Information Privacy Center, in the last five years the FISA court has only rejected two access requests out of 8,591 made by the government.
Others argue that there is no unique privacy violation by the government because the data has already been turned over to private actors, but those private actors cannot put you in prison and even kill you.
The Drum, May 14, 2014, http://www.thedrum.com/news/2014/05/15/many-more-nsa-revelations-come-glenn-greenwald-tells-al-jazeera-snowden-very-happy-0
The NSA revelations have touched off a heated debate in the U.S. about privacy, security and whether the U.S. government was overstepping its bounds in sacrificing the former in favour of the latter. Greenwald said that the main difference is that the government “can put you into prison,” “can take your property” and can even “kill you.” He said this is why “the Bill of Rights and the Constitution limits what the government can do, because we’ve always looked at government and state power as particularly and uniquely threatening.”
Others argue that the program is legitimate because it is consistent with Smith v. Maryland, which upheld the idea that people do not have an expectation of privacy in communication records. Beyond whether or not this case was correctly decided, Affirmative teams can argue that while there may be no expectation of privacy in phone records collected over a three day program there is an expectation of privacy in records collected over a long period of time that reveals all sorts of sensitive and intimate information about people.
Hanni Fakhoury, January 23, 2015, Electronic Frontier Foundation, “The Many Problems with the DEA’s Bulk Phone Records Collection Program,” https://www.eff.org/deeplinks/2015/01/many-problems-deas-bulk-phone-records-collection-program DOA: 1-24-15
As we’ve argued in our cases challenging bulk collection of phone records and Internet communications, this blanket collection violates the Fourth Amendment’s prohibition against unreasonable searches and seizures. And as we’ve repeatedly argued, people do have a reasonable and legitimate expectation of privacy in these communication records. When the US Supreme Court ruled in Smith v. Maryland 35 years ago that there was no expectation of privacy in phone records collected on a single phone number over three days, it certainly was not contemplating the bulk collection of communication records over an extended period of time that reveal all sorts of sensitive and intimate information about people.
While there are certainly two sides to the debate, Affirmative teams can make a strong case that the Section 215 program violates privacy and lays the groundwork for authoritarianism.
The downloadable case also has evidence about role of the surveillance program in sustaining an ideology of securitization.
Terrorism Disadvantage Links
There is considerable debate about whether or not the program has prevented the attacks.
Some claim that the program has disrupted a number of terror attacks.
Sean M. Joyce, Deputy Director, Federal Bureau of Investigation (FBI), July 31, 2013, Hearing of the Senate Judiciary Committee Subject: “Strengthening Privacy Rights and National Security: Oversight of FISA (Foreign Intelligence Surveillance Act) Surveillance Programs” https://www.hsdl.org/?view&did=741931
(First joined the Department of Justice in 1979. He served for 13 years in the Criminal Division, later becoming the deputy chief of the division’s public integrity section, went in private practice, sworn in as deputy attorney general on January 3rd, 2011)
SEN. GRASSLEY: OK.
Mr. Joyce, one part of the balance that we have to strike, protecting privacy of Americans — the other part, national security. Thankfully, until the Boston bombing, we had prevented large-scale terrorist attacks on American soil. I have a few questions about how valuable the role of Section 215 and 702 programs have played in predicting (sic) our national security. Two questions, and then I’ll have to stop and go to our colleagues. Can you describe any specific situations where Section 215 and Section 702 authorities helped disrupt a terrorist attack or identify individuals planning to attack, the number of times? And then secondly, if you didn’t have the authority to collect phone records in bulk the way that they are now under Section 215, how would you have affected those investigations?
JOYCE: So to your first question, Senator, as far as a specific example of when we have utilized both of these programs is the one I had first mentioned, the first al-Qaida-directed plot since 9/11, in September of 2009, when Najibullah Zazi and others conspired plot to bomb the New York subway system. We initially found out about Zazi through an NSA 702 coverage, and he was actually talking to an al-Qaida courier who was — he was asking for his help to perfect an explosives recipe. So but for that, we would not have known about the plot. We followed that up with legal process and then had FISA coverage on him and others as we fully investigated the plot. Business records 215 was also involved, as I had previously mentioned, where we also through legal process were submitting legal process for telephone numbers and other email addresses, other selectors. But NSA also provided another number we are unaware of of a co-conspirator, Adis Medunjanin. So that is an instance where a very serious plot to attack America on U.S. soil that we used both these programs.
But I say, as Chairman Leahy mentioned, there is a difference in the utility of the programs. But what I say to you is that each and every program and tool is valuable. There were gaps prior to 9/11. And what we have collectively tried to do, the members of the committee, other members of the other oversight committees, the executive branch and the intelligence community, is we have tried to close those gaps and close those seams. And the business record 215 is one of those programs that we have closed those seams. So I respectfully say to the chairman that the utility of that specific program initially is not as valuable. I say you are right. But what I say is it plays a crucial role in closing the gaps and seams that we fought hard to gain after the 9/11 attacks.
Others make a strong case that it hasn’t been important to disrupting any attacks and that claims that it has are exaggerations.
Glenn Greenwald, attorney & journalist who broke the NSA spying story, May 2014, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State, Kindle edition
Surveillance cheerleaders essentially offer only one argument in defense of mass surveillance: it is only carried out to stop terrorism and keep people safe. Indeed, invoking an external threat is a historical tactic of choice to keep the population submissive to government powers. The US government has heralded the danger of terrorism for more than a decade to justify a host of radical acts, from renditions and torture to assassinations and the invasion of Iraq. Ever since the 9/ 11 attack, US officials reflexively produce the word “terrorism.” It is far more of a slogan and tactic than an actual argument or persuasive justification for action. And in the case of surveillance, overwhelming evidence shows how dubious a justification it is. To begin with, much of the data collection conducted by the NSA has manifestly nothing to do with terrorism or national security. Intercepting the communications of the Brazilian oil giant Petrobras or spying on negotiation sessions at an economic summit or targeting the democratically elected leaders of allied states or collecting all Americans’ communications records has no relationship to terrorism. Given the actual surveillance the NSA does, stopping terror is clearly a pretext. Moreover, the argument that mass surveillance has prevented terror plots —a claim made by President Obama and a range of national security figures— has been proved false. As the Washington Post noted in December 2013, in an article headlined “Officials’ Defenses of NSA Phone Program May Be Unraveling ,” a federal judge declared the phone metadata collection program “almost certainly” unconstitutional, in the process saying that the Justice Department failed to “cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.” That same month, Obama’s hand-picked advisory panel (composed of, among others, a former CIA deputy director and a former White House aide, and convened to study the NSA program through access to classified information) concluded that the metadata program “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional [court] orders.” Quoting the Post again: “In congressional testimony, [Keith] Alexander has credited the program with helping to detect dozens of plots both in the United States and overseas” but the advisory panel’s report “cut deeply into the credibility of those claims.” Additionally, as Democratic senators Ron Wyden, Mark Udall, and Martin Heinrich— all members of the Intelligence Committee— baldly stated in the New York Times, the mass collection of telephone records has not enhanced Americans’ protection from the threat of terrorism. The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization. A study by the centrist New America Foundation testing the veracity of official justifications for the bulk metadata collection concurred that the program “has had no discernible impact on preventing acts of terrorism.” Instead, as the Washington Post noted , in most cases where plots were disrupted the study found that “traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.” The record is indeed quite poor. The collect-it-all system did nothing to detect, let alone disrupt, the 2012 Boston Marathon bombing. It did not detect the attempted Christmas-day bombing of a jetliner over Detroit, or the plan to blow up Times Square, or the plot to attack the New York City subway system— all of which were stopped by alert bystanders or traditional police powers. It certainly did nothing to stop the string of mass shootings from Aurora to Newtown. Major international attacks from London to Mumbai to Madrid proceeded without detection, despite involving at least dozens of operatives. And despite exploitative claims from the NSA, bulk surveillance would not have given the intelligence services better tools to prevent the attack on 9/ 11.
There are also some offensive reasons as to why the program may undermine counterterror efforts.
First, Section 215 slows investigators down by eating up resources and generating useless leads.
Matthatias Schwartz, January 23, 2015, The New Yorker, “Who Can Control NSA Surveillance?” The New Yorker, DOA: 1-23-15, http://www.newyorker.com/news/news-desk/can-control-n-s-surveillance DOA: 1-26-14
There isn’t much evidence to suggest that Section 215 helps catch the most dangerous terrorists, like those who committed the attacks in Paris two weeks ago. It may even slow investigators down, by eating up resources and generating extraneous leads. (I wrote about Section 215’s track record in this week’s magazine.)
Second, widespread business records surveillance undermines cooperation with industry that is needed to prevent terrorism,
Washington Post, 10-10, 13, http://www.washingtonpost.com/world/national-security/nsa-tries-to-regain-industrys-trust-to-work-cooperatively-against-cyber-threats/2013/10/09/93015af0-2561-11e3-b3e9-d97fb087acd6_story.html
A drop in Americans’ trust in the government is making the difficult task of public-private cooperation against cyber-threats even more difficult.¶ And that has officials such as Gen. Keith B. Alexander, director of the National Security Agency, scrambling to shore up confidence in his agency, whose image has taken a beating in the wake of leaks about its surveillance programs by former NSA contractor Edward Snowden.¶ A t public hearings and in speeches, Alexander, who also heads the U.S. Cyber Command, is warning that cyberattacks on such critical and technology-dependent industries as energy, finance and transportation can be prevented only if those industries work with the government. But companies are wary of partnering with an agency that has been revealed to be conducting far-reaching domestic data collection in the name of thwarting terrorism.¶ “Industry is critical to resolving our problems” in cybersecurity, Alexander said at the Billington Cybersecurity Summit last month at the National Press Club.¶ Toward that end, he said, Congress needs to pass “cyber-legislation” to encourage private companies to share data on cyber-threats. A bipartisan bill the House passed in April would provide immunity from civil lawsuits or criminal prosecution to companies that give the Department of Homeland Security network data that might contain evidence of such threats. DHS would pass the data on to relevant agencies, such as the NSA.¶ Alexander said the protected data would be limited to technical material indicating vulnerabilities in systems and hackers’ tracks. “We’re not talking about sharing our private information,” he assured the summit audience.¶ But there is wide recognition within and outside the government that the Snowden leaks, which began in June, have created a deficit of trust. “It was tough enough to [pass the bill] when the waters were calm,”Michael V. Hayden, Alexander’s predecessor as NSA director, said last week at The Washington Post’s Cyber Summit. “Now [proponents are] trying to do it in whitewater rapids, and it’s not going to happen.”¶ Even before the Snowden revelations, the White House threatened to veto the bill on grounds it lacked adequate safeguards for Americans’ privacy, among other things. Now, experts say, it is increasingly unlikely that the House version will emerge from the Senate.¶ “I don’t think anybody thinks it’s realistic to put the NSA in the middle of domestic cybersecurity at this point,” said Michelle Richardson, legislative counsel at the American Civil Liberties Union.¶ One of the most consequential Snowden leaks was a classified court order whose publication forced the government to acknowledge that the NSA had obtained secret court permission in 2006 to gather the phone records of virtually all Americans — billions of calls — to search for clues to terrorist plots. Another leak detailed how nine Internet companies — including Yahoo, Google and Microsoft — cooperated, under court order, with the NSA to collect e-mails and other digital data from lawful foreign targets.
There are some different proposals for addressing the issue created by the NSA’s interpretation of Section 215. The Privacy and Civil Liberties Oversight Board recommends eliminating it entirely.
Privacy and Civil Liberties Oversight Board, January 23, 2014, Report on the Telephone Records Program, https://www.eff.org/files/2014/01/23/final_report_1-23-14.pdf DOA: 9-1-14
Since 2006, the government has argued before the FISA court that Section 215 of the Patriot Act provides a legal basis for the NSA’s bulk telephone records program. The FISA court has agreed and has authorized the program. In the wake of public disclosure of the program in June 2013, the government has further defended its statutory legitimacy in litigation and in a publicly issued white paper. Having independently examined this statutory question, the Board disagrees with the conclusions of the government and the FISA court. The Board believes that the following analysis is the most comprehensive analysis to date of Section 215 as it relates to the NSA’s bulk telephone records program. We find that there are multiple and cumulative reasons for concluding that Section 215 does not authorize the NSA’s ongoing daily collection of telephone calling records concerning virtually every American. To be clear, the Board believes that this program has been operated in good faith to vigorously pursue the government’s counterterrorism mission and appreciates the government’s efforts to bring the program under the oversight of the FISA court. However, the Board concludes that Section 215 does not provide an adequate legal basis to support this program. Because the program is not statutorily authorized, it must be ended. Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description. First, the telephone records acquired under this program have no connection to any specific FBI investigation at the time the government obtains them. Instead, they are collected in advance to be searched later for records that do have such a connection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation without redefining that word in a manner that is circular, unlimited in scope, and out of step with precedent from analogous legal contexts involving the production of records. Third, instead of compelling telephone companies to turn over records already in their possession, the program operates by placing those companies under a continuing obligation to furnish newly generated calling records on a daily basis. This is an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole, because it circumvents another provision that governs (and limits) the prospective collection of the same type of information. Fourth, the statute permits only the FBI to obtain items for use in its own investigations. It does not authorize the NSA to collect anything. In addition, the Board concludes that the NSA’s program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances — which do not include orders issued under Section 215.
Although I think it is certainly winnable for the Affirmative, there is a topicality debate related to this Affirmative.
The argument is based on one of the primary defensive arguments to the case – that some of the surveillance is on foreign actors and not on US citizens – foreign call records, so the case does not deal with “domestic” surveillance.
While the basic gyst of that defensive argument is true, it is also the case that the surveillance is of systems that are in the United States.
James Harper, atty, CATO, 2013, Brief of Amicus Curaie in Support of Petitioner, http://object.cato.org/sites/cato.org/files/pubs/pdf/tsac_cato_institute_13-58.pdf DOA: 1-27-15
This case presents the Court with the challenge and opportunity to correct serious statutory and constitutional error that daily deprives millions of law-abiding Americans of their rightful privacy. An order issued under the Foreign Intelligence Surveillance Act requires telecommunications company Verizon on “ongoing daily basis” to give the National Security Agency information on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries.
And in the case of Section 215 authority, it is meta data from Americans that is collected. From our first Greenwald card in this essay:
The ruling I read on the plane to Hong Kong was amazing for several reasons. It ordered Verizon Business to turn over to the NSA “all call detail records” for “communications (i) between the United States and abroad; and (ii) wholly within the United States, including local telephone calls.”
So while there is a topicality argument to be had, I do think it is a topical case.
The NSA’s interpretation of Section 215 authority has led to the development of an expansive call records program that literally brings the call records of at least tens of millions of Americans under government surveillance. This surveillance is arguably disruptive of privacy and supports authoritarian government.
The case to outright eliminate this interpretation of Section 215 authority is strong, and there are many solvency advocates. There are also, however, strong links and answers to the terrorism disadvantage — setting up debates core debates over privacy v. terrorism, the two core topic issues.
As the summer and season progress, we’ll see how strong this case continues to be, but given that it engages the central issues of the topic, it is a great case with which to begin some early season debates.