2015 NDI 6WS Circumvention

Answers

Circumvention UQ
Obama is aware of need to reform surveillance programs
the plan is enough to get him to comply
Volz 15 (Dustin Volz, a staff correspondent for National Journal covering tech
policy, Government Privacy Board to Obama: Shut Down NSA Mass Spying Now,
The National Journal, January 30th, 2015,
http://www.nationaljournal.com/tech/government-privacy-board-to-obama-shutdown-nsa-mass-spying-now-20150130//MS)
January 30, 2015 An executive-branch privacy watchdog is renewing its call for President Obama to unilaterally end
the National Security Agency's domestic phone records dragnet amid growing uncertainty over Congress's

The bipartisan Privacy and Civil Liberties

Oversight Board issued a progress report Thursday charting the administration's
efforts to comply with recommendations it made exactly a year ago to overhaul the
NSA's surveillance apparatus. That stern review last January also deemed the bulk collection of U.S. call
willingness to reform government surveillance.

data illegal and ineffective at countering terrorist plots conclusions that prompted the board to urge its
dissolution. While acknowledging that the intelligence community has made some important steps toward
increased transparency and ensuring American data is subject to more stringent privacy protections, the board said

"Most
recommendations directed at the administration are still in the process of being
implemented or have only been accepted in principle, without substantial progress
yet made toward their implementation," the board wrote. "The administration has not followed
Obama has rejected its request to turn off the NSA's bulk collection of phone metadata.

the board's recommendation by unilaterally ending the telephone records program, which it could do at any time."

Obama has shown no interest in turning off the program one of the government's
most controversial secret spy powers revealed by former NSA contractor Edward
Snowdenwithout first obtaining congressional approval . A legislative push to end it was
blocked by Senate Republicans in November, as the USA Freedom Act fell two votes short of the 60-vote threshold
needed to advance. Democratic Sen. Patrick Leahy and others have vowed to reintroduce the bill this term, but the
clock is ticking. On June 1, core provisions of the post-9/11 USA Patriot Act are due to sunset, including Section 215,

David Medine, the privacy

board's chairman, said Congress made a "good-faith effort" to reform Section 215.
But if lawmakers are unable to pass a bill, he added, that should not deter the
administration from ending the program, especially given that the GOP-dominated Senate may try to
which grants the intelligence community its legal basis for bulk collection.

push a clean reauthorization of the Patriot Act. "We've gone through a year, and the program is still running,"
Medine said. "Congress may renew the whole provision. What we're effectively saying is, that shouldn't decide how
the administration should handle the 215 program." The board's new assessment arrives ahead of a separate report
expected in the coming weeks from the Office of the Director of National Intelligence, which the White House said
will contain new information about post-Snowden changes made to its mass surveillance programs. In his State of
the Union address, Obama referenced that report, which some sources expect could be released as soon as early

"While some have moved on from the debates over our surveillance
programs, I have not," Obama said during his speech. "As promised, our intelligence
agencies have worked hard, with the recommendations of privacy advocates, to
increase transparency and build more safeguards against potential abuse. " But the
White House has been notably quiet on surveillance reform since the Freedom Act
crumbled in the Senate last November, as Republicans mounted late-stage opposition amid fears that
next week.

the bill could undermine national security. That silence has rankled some privacy advocates, who have expressed
concern that the administration is pushing a cybersecurity proposal that could dump even larger hauls of personal
data at the NSA. Many groups have said they will not support any information-sharing legislation until surveillance

The privacy board on Thursday also said the intelligence community

had made substantial progress on adhering to recommendations it issued in a
reform is enacted.

separate report six months ago on Section 702 of the Foreign Intelligence
Surveillance Act. In stark contrast to its 215 report, the board concluded the
surveillance of foreign Internet communications legal and effective though further
Snowden revelations after the report called into question some of its central findings and raised the possibility that
the NSA was not being entirely forthcoming about the program.

Obama is on the side of privacy advocatesthe plan is a way to

match rhetoric with actions
Gallagher 13 (Ryan Gallagher, journalist who reports on surveillance, security,
and civil liberties, Is Obama Coming Back From the Dark Side on Privacy?, Slate,
May 23, 2013,
http://www.slate.com/blogs/future_tense/2013/05/23/obama_claims_new_commitme
nt_to_privacy_in_speech_at_national_defense_university.html//MS)
his remarks briefly
touched on a couple of important issues involving privacy and surveillance . He
seemingly acknowledged that his administration has come down too often on the
side of secrecy over transparency, and of excessive security over liberty. In the speech,
delivered at the National Defense University in Washington, D.C., Obama appeared to directly support
the FBIs contentious proposal for enhanced Internet snooping powers. He said that
it was necessary to review the authorities of law enforcement , so we can intercept
new types of communication. He added, however, that it would be necessary at the same
time to build in privacy protections to prevent abuse" in an apparent attempt to
quell civil liberties advocates fears about the scope of the authorities powers. Later,
President Obamas Thursday speech has been widely billed as a drones address, but

Obama indirectly addressed the recent revelations about the Justice Departments spying on journalists as part of

that he was troubled by the possibility

that leak investigations may chill the investigative journalism that holds
government accountable and that journalists should not be at legal risk for doing
their jobs." He went on to acknowledge that expanded surveillance in the
aftermath of 9/11 had raised difficult questions about the balance we strike
between our interests in security and our values of privacy , adding that some
counter-terror tactics compromised our basic values. Obama seemed to try to
return to the values he had claimed to champion prior to his coming to power and
his speech was certainly long overdue. Back in 2006, before becoming president,
Obama strongly criticized the Bush administrations so-called warrantless
wiretapping program as accountable to no one and no law and blasted Bush for
what he viewed as unbounded authority without any checks or balances . But just a
aggressive leak probes. He took a swipe at the DoJ, saying

few years later, these same criticisms have been repeatedly leveled at Obama due to his own administrations use
(and occasional threats of using) state secrets privilege on surveillance and drone strikes .

On Thursday the
president tried to show that he is listening to his critics. His challenge now will be to
match his words with meaningful action.

No CircumventionNSA
No circumvention to external constraintsall NSA activities rely on
positive legal authorizationsprefer the statements of the NSAs actual
legal counselor
De 13 [Rajesh De, General Counsel, National Security Agency Georgetown Law
School, February 27, 2013. Speech to a meeting of big data experts.
https://www.nsa.gov/public_info/_files/speeches_testimonies/GC_Georgetown.pdf//jw
eideman]
First, all

intelligence activities of NSA must be properly authorized pursuant to the law

and must be conducted in accordance with the law. Though this statement may
sound simple, it is quite powerful. NSA only operates under positive authorityif the
law does not affirmatively authorize NSA to take an action, the Agency cannot do it.
Moreover, NSA must conduct authorized activities in accordance with applicable
legal constraintsincluding those embodied in the Constitution, federal statutes, Executive
Orders and other Presidential directives, as well as relevant regulations and guidance
that may limit NSA's exercise of its authorities. How NSA conducts its activities is just as important as whether it
may do so, and NSA must be able to affirmatively point to the source of its authority for any activity. As noted
earlier, NSA is a foreign intelligence agency. Executive

Order 12333 defines foreign intelligence

as "information relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, foreign persons, or
international terrorists." This language largely mirrors that which Congress adopted in the National Security
Act of 1947. FISA contains a more intricate definition of foreign intelligence information for the specific purposes of
that statutory scheme, but all support the same overall conclusionNSA's mission is neither open-ended, nor is it
discretionary. NSA may only collect signals intelligence for a foreign purpose. Second, NSA does not independently
set its foreign intelligence collection requirements. NSA's collection is driven by the requirements of U.S.

For
example, NSA's collection priorities are approved by the President every six months
as part of the National Intelligence Priorities Framework. In accordance with those
priorities, U.S. policymakers, agencies, and the military submit their specific
intelligence requirements to NSA through a formal National SIGINT Requirements
Process. This process is an important policy means by which the ocean of big data is
further refined for NSA's collection efforts.
policymakers and warfighters, as established through the Executive Branch and funded by Congress.

Public perception and intricate internal checks prevent NSA

circumvention
Ackerman 15 (Spencer Ackerman, National security editor for Guardian US. A former
senior writer for Wired, he won the 2012 National Magazine Award for Digital
ReportingFears NSA will seek to undermine surveillance reform, June 1, 2015,
http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congresssecret-law//MS)

Americans were rightly outraged when they learned that US intelligence agencies
relied on secret law to monitor millions of law-abiding US citizens. The American
people are now on high alert for new secret interpretations of the law, and
intelligence agencies and the Justice Department would do well to keep that lesson
in mind. The USA Freedom Act is supposed to prevent what Wyden calls secret
law. It contains a provision requiring congressional notification in the event of a

novel legal interpretation presented to the secret Fisa court overseeing surveillance .
Yet in recent memory, the US government permitted the NSA to circumvent the Fisa court entirely. Not a single Fisa
court judge was aware of Stellar Wind, the NSAs post-9/11 constellation of bulk surveillance programs, from 2001
to 2004. Energetic legal tactics followed to fit the programs under existing legal authorities after internal
controversy or outright exposure. When the continuation of a bulk domestic internet metadata collection program
risked the mass resignation of Justice Department officials in 2004, an internal NSA draft history records that
attorneys found a different legal rationale that essentially gave NSA the same authority to collect bulk internet
metadata that it had. After a New York Times story in 2005 revealed the existence of the bulk domestic phone
records program, attorneys for the US Justice Department and NSA argued, with the blessing of the Fisa court, that
Section 215 of the Patriot Act authorized it all along precisely the contention that the second circuit court of

Despite that recent history, veteran intelligence attorneys reacted

with scorn to the idea that NSA lawyers will undermine surveillance reform. Robert
Litt, the senior lawyer for director of national intelligence, James Clapper, said
during a public appearance last month that creating a banned bulk surveillance
program was not going to happen. The whole notion that NSA is just evilly
determined to read the law in a fashion contrary to its intent is bullshit, of the sort
that the Guardian and the left but I repeat myself have fallen in love with. The
interpretation of 215 that supported the bulk collection program was creative but
not beyond reason, and it was upheld by many judges, said the former NSA
general counsel Stewart Baker, referring to Section 215 of the Patriot Act. This is the
appeals rejected in May.

section that permits US law enforcement and surveillance agencies to collect business records and expired at
midnight, almost two years after the whistleblower Edward Snowden revealed to the Guardian that the Patriot Act
was secretly being used to justify the collection of phone records from millions of Americans. With one exception,

the judges that upheld the interpretation sat on the non-adversarial Fisa court, a
body that approves nearly all government surveillance requests and modifies about
a quarter of them substantially. The exception was reversed by the second circuit
court of appeals. Baker, speaking before the Senate voted, predicted: I dont think
anyone at NSA is going to invest in looking for ways to defy congressional intent if
USA Freedom is adopted.

No CircumventionCourts Check
The Supreme Court can effectively force compliance with the
rule of law
Wu 6 [Edieth, Associate Dean and Professor, Thurgood Marshall School of Law.
2006. DOMESTIC SPYING AND WHY AMERICA SHOULD AVOID THE SLIPPERY SLOPE
Review of Law and Social Justice.
http://weblaw.usc.edu/why/students/orgs/rlsj/assets/docs/Wu_Final.pdf//jweideman]
Americans expect their government, especially the
president, to respect the rule of law. That is, they expect all branches of government
judiciary, executive, and legislativeto act as checks and balances. The judiciary
branch, specifically the Supreme Court, is emphatically the arm of government with
the province and duty to say what the law is.60 And in the context of executive
power, the Court has long since made clear that a state of war is not a blank check
for the President.61 For example, the Supreme Court was recently asked to use
[the Padilla] case to define the extent of presidential power over U.S. citizens who
are detained on American soil on suspicion of terrorism.62 The Court exercised its
authority to end [the] unusual stalemate between the executive and judiciary
branches by ordering Padillas transfer from military to civilian custody .63 FISA, of
course, specifically permits an undeniably larger role for the judiciary when U.S. persons,
Although not an enumerated constitutional right,

such as Padilla, are or may be concerned.64 In such a case, courts limit executive discretion by approv[ing] surveillance of U.S.
persons [only if] the Government can show that [the target] knowingly engaged in clandestine intelligence activities which involve
or may involve a [criminal] violation . . . or knowingly commits, prepares to commit, or aids in the preparation or commission of,

In addition to directly limiting executive discretion, the

judiciary is in a unique position to indirectly elicit executive compliance with the
established rule of law by raising public consciousness of an issue . Throughout
history, the judiciary has raised public consciousness by vociferously adhering to
the rule of law, thereby forcing the executive into de facto compliance.66
acts of sabotage or terrorism.65

FISC is not a rubber stamp-modifies over a quarter of requests

Leonnig 2013, American investigative journalist and a Washington Post staff
writer, Secret court says it is no rubber stamp; led to changes in U.S. spying
requests, http://www.washingtonpost.com/politics/secret-court-says-it-is-norubber-stamp-led-to-changes-in-us-spying-requests/2013/10/15/d52936b0-35a511e3-80c6-7e6dd8d22d8f_story.html
A secret surveillance court that has been criticized for approving the vast majority
of the governments applications to spy on suspected terrorists and other targets
reported Tuesday that the government had revamped roughly one-fourth of its
requests in the face of court questions and demands. The chief judge of the Foreign
Intelligence Surveillance Court, Reggie Walton, told members of Congress in a letter
that the courts internal records show that more than 24 percent of government
requests for recent warrants had substantive modifications in the wake of court
review. The disclosure of the new figure is intended to rebut critics who assert that
the court provides a rubber stamp when the Justice Department seeks authority to

monitor, track and eavesdrop on potential terrorists. The court faced new scrutiny
following revelations this summer that the National Security Agency was secretly
keeping the records of millions of Americans telephone calls, among other
communications data. The court, often called the FISA court after the 1979 law that
created it, has typically approved more than 99 percent of government warrant
requests. It has turned down no government warrants in the last four years and
denied just 10 applications of the 34,000 submitted in its history. Walton decided
this summer that the court would begin keeping its own tally of how Justice
Department warrant applications for electronic surveillance fared and would track
for the first time when the government withdrew or resubmitted those applications
with changes. During the three month period from July 1, 2013 through September
30, 2013, we have observed that 24.4% of matters submitted ultimately involved
substantive changes to the information provided by the government or to the
authorities granted as a result of Court inquiry or action, Walton wrote in his letter
to Sens. Patrick J. Leahy (Vt.) and Charles E. Grassley (Iowa), the chairman and
ranking Republican, respectively, of the Senate Judiciary Committee. The letter was
dated Friday but posted to the courts Web site Tuesday. Walton wrote that he
believed the sample period was illustrative of the way the court generally works and
that the court has always believed the 99 percent approval statistic failed to capture
its back-and-forth with the government over its requests. The court, which operates
in secret and whose opinions are typically shielded from public view, faced criticism
after The Washington Post and the Guardian reported that it had secretly approved
a far-reaching effort to collect Americans phone records. NSA programs are not
subject to the typical court review, but U.S. officials have argued that the programs
are legal and still subject to rigorous judicial oversight. In recent weeks, a series of
declassified opinions from members of the FISA court have revealed the court as a
tough taskmaster when it believed the government ran afoul of court rules. In a
recently released opinion from 2009, Walton scolded the government for repeated
violations of court orders and falsely assuring the court it was following required
steps to protect Americans privacy. Privacy procedures have been so frequently
and systemically violated that it can fairly be said that this critical element of the
overall [phone records] regime has never fully functioned effectively, Walton wrote.
He added that the explanation of the misunderstanding of the courts order by Gen.
Keith Alexander, the NSAs director, strains credulity.

No CircumventionTransparency
Transparency and restrictions solve circumvention.
Richards 13 Neil M. Richards, Professor of Law, Washington University School
of Law, peer-reviewed at Harvard Law Review Symposium on Privacy and
Technology, 2013 (The Dangers of Surveillance, Harvard Law Review, 2012,
Available Online at: http://heinonline.org/HOL/Page?
handle=hein.journals/hlr126&div=89&g_sent=1&collection=journals, Accessed: 8-22015)
The illegitimacy of secret surveillance also lies at the heart of information-privacy
law, which remains guided by the "Fair Information Practices" drafted by the U.S.
Department of Health, Education, and Welfare in 1973.127 The Code of Fair
Information Practices recommended by the Department has continued to influence
information privacy law throughout the world,128 and the first of its five principles
is the commitment that "there must be no personal-data recordkeeping systems
whose very existence is secret."1 2 9 Requiring the existence of domesticsurveillance programs to be disclosed solves a practical problem that has bedeviled
courts trying to assess legal challenges to secret surveillance programs. How can
plaintiffs prove injury if the government is not required to admit whether
surveillance exists in the first place? A prohibition on secret surveillance programs
solves this problem. When government programs are public - when we have no
secret surveillance - courts will be able to assess their legality in the open. The NSA
wiretapping program was hard to challenge because its details were shrouded in
secrecy, denials, and unassessable invocations of national security interests.13 0 At
the same time, its shadowy nature created an even greater threat to intellectual
privacy in particular because no one knew if her telephone calls were being listened
to or not. Requiring disclosure of the existence and capabilities of domesticsurveillance programs to the general public makes them amenable to judicial and
public scrutiny to ensure their compatibility with the rule of law. At the same time,
the prohibition on secret surveillance systems does not require the government to
notify individual targets of surveillance that they are being watched. But
fundamentally, surveillance requires legal process and the involvement of the
judiciary to ensure that surveillance is targeted, justified, and no more extensive
than is necessary.

No CircumventionPublic Opinion
Public opinion holds the courts in check and shoulders the line between privacy and
security even after the plan.
Kugler and Strahilevitz 15 Matthew B. Kugler, Law Clerk to the
Honorable Richard Posner, U.S. Court of Appeals, Seventh Circuit, D University of
Chicago Law School, 2015; PhD in Psychology, Princeton University, and Lior Jacob
Strahilevitz, Sidley Austin Professor of Law, University of Chicago, 2015
(Surveillance Duration Doesnt Affect Privacy Expectations: An Empirical Test of the
Mosaic Theory, Supreme Court Review July 10 th, Available Online at:
http://ssrn.com/abstract=2629373 or http://dx.doi.org/10.2139/ssrn.2629373,
Accessed: 8-2-2015)
We feel that focusing Katz prong 1 on an empirical question is not only elegant but
also normatively desirable.79 The Fourth Amendment is designed to safeguard
individuals against governmental overreach. When there is a sharp divide between
what the courts describe as the Fourth Amendments scope and what the people
actually expect the Fourth Amendments scope to be, various problems arise. Law
abiding people may take excessive precautions to protect their information, keeping
it not only from the states agents but also from third parties who could put the
information to productive uses.80 Or citizens might make inordinate investments in
learning the contours of Fourth Amendment law, time and money that could be
better spent elsewhere. Disconnects between actual law and perceived law may
also provide police officers and prosecutors with undue leverage over citizens.
Although figuring out whether various possible interpretations of the Fourth
Amendment enhance social welfare is a tricky business, we think there is a strong
case to be made that misalignment between the law and social expectations is
detrimental for both efficiency and fairness-related reasons. So even though an
empirical vision of reasonable expectations of privacy likely isnt what Justice
Harlan had in mind when he penned his Katz concurrence,81 there are good reasons
why citizens actual beliefs have become more doctrinally salient in the years that
followed We have an alternative ready for those readers who find themselves
unpersuaded by the above claim. Our more modest weak form claim is merely
that public opinion data is highly relevant to rigorous judicial decisionmaking within
a Kerrian multi-factor model. Under this approach, courts can apply neither the
probabilistic model nor the policy model in a satisfactory way without knowing what
the public actually expects and regards as intrusive. Assessing the publics actual
beliefs via surveys is an appealing way to gauge the perceived probabilities that the
defendants acts run the risk of disclosure of sensitive facts and perceived
intrusiveness responses provide meaningful, readily-available data about the
welfare effects of any given policing strategy. It might even help courts understand
what types of information are more or less sensitive, aiding in adjudication
regarding the private facts model of Fourth Amendment jurisprudence as well.
Thus, even if the courts retained their current grab bag array of methodologies,
rigorous analysis of survey results would have substantial value. Under this
approach, when the American public expects privacy in a particular setting, courts

could presume that a reasonable expectation of privacy exists under the Fourth
Amendment, but this presumption could be rebutted by strong normative
counterarguments.

No CircumventionCongress
FAA repeal solvescongress can overcome past gridlock
Anderson 14 [Tyler C, J.D Candidate, Harvard Law School, Class of 2014. 2014.
Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the
Foreign Intelligence Surveillance Act http://harvardlpr.com/wpcontent/uploads/2014/08/HLP202.pdf//jweideman]

Intelligence surveillance, as governed by the Foreign Intelligence Surveillance

Amendments Act, is in need of reform. Congress passed the original Foreign
Intelligence Surveillance Act in order to help American intelligence agencies conduct
surveillance in a pre-internet, pre-cellphone era, wanting to give the executive
branch broad power to spy on non-U.S. citizens abroad, while protecting to the fullest extent possible
the privacy of U.S. persons within the United States. In the years following September 11, 2001,
Congress enacted the Foreign Intelligence Surveillance Amendments Act in order to
grant executive branch agencies broader surveillance power than the agencies had
under the original FISA. First, the FAA established a uniform process for seeking
judicial authorization of electronic surveillance . Second, the FAA created a broad
category of intelligence surveillance that would not be subject to ex-ante judicial
scrutiny and would only be granted limited ex-post judicial review. The nearconsensus on the issue is that the FAA overly delegates broad surveillance authority
to intelligence agencies and minimizes the level of judicial and congressional
oversight exercised over these agencies. Moreover, outside the executive branch, there is no substantial
political coalition opposing FISA reform efforts. Instead, the current system is largely a product of
congressional gridlock and inertia. Despite such inaction, these problems cannot be ignored.
Congress should amend the FAA to reduce the scope of surveillance authority
granted to intelligence agencies. Congress should do this by more precisely defining
the conduct that would warrant intelligence surveillance targeting. Additionally,
Congress should expand the oversight of intelligence surveillance by both Congress
and the courts to ensure that the government does not exceed the authority
granted under the FAA.

No CircumventionSSRA
SSRA makes 12333 ineffective- warrant required for
surveillance
Marthews 2015, national chair of Restore the Fourth, which opposes mass
government surveillance, Go Big or Go Home: Pass the New Surveillance State
Repeal Act , http://restorethe4th.com/blog/go-big-or-go-home-pass-the-newsurveillance-state-repeal-act/
The SSRA: repeals the PATRIOT Act; repeals the FISA Amendments Act; requires the
destruction of information gathered under that Act; reforms the Foreign Intelligence
Surveillance Court; bans law enforcement back doors into our hardware and
software; requires annual audits of intelligence community practices; protects
intelligence community whistleblowers; and requires a probable cause warrant for
information on US persons gathered under Executive Order 12333 For the first time,
meaningfully limits collection under Executive Order 12333, requiring (for US persons) a
valid warrant based on probable cause. In short, this is a blockbuster bill. If passed, it
would undo much of the enormous damage done to the Bill of Rights after the
September 11 attacks. It would return us to a path we should never have left, where we
investigate Americans only when we have reason to. At the same time, we believe it will
increase our actual security. We have been trying too much to control our own citizens
and the world by surveilling them into sullen and resentful silence; we make a desolation,
and call it peace. If instead we practice justice, promote peace, and let people pursue their
ideas and aspirations freely, we will be far more secure in the long run.

AT: No Rule of Law/foreign partners

They respect the rule of lawprefer stated policies over speculation
They wont ask foreign partners to do it for them
Alexander 14 [Keith, General in the army and Director of the NSA. Letter to
American Bar Association March, 10 2014,
http://www.americanbar.org/content/dam/aba/images/abanews/nsa_response_03102
014.pdf//jweideman]
Thank you very much for your letter of February 20, 2014, regarding the importance
of preserving and respecting the attorney -client privilege . We greatly appreciate the
work of the American Bar Association (ABA) and the organizations mission of
defending liberty and delivering justice. At a time when certain aspects of the
reporting and commentary about the National Security Agency (NSA) shed more
heat than light on important matters of security, liberty, and privacy worthy of
meaningful public discussion, we also appreciate the thoughtful and constructive
approach of your inquiry. NSA is firmly committed to the rule of law and the bedrock
legal principle of attomey- client privilege, which as you noted , is one of the oldest
recognized privileges for confidential communications. We absolutely agree that the attomey-client privilege
deserves the strong protections afforded by our legal system, and that it is vital that proper policies and practices
arc in place to prevent its erosion. Although it is not possible to address press reports about any specific alleged
intelligence activitiesand thus to point out the absence of critical factual information in any such reportswe
appreciate the opportunity to clarify our current policies and practices and to work with the ABA to ensure that the
public has confidence that our intelligence institutions respect the role of privileged communications. Let me be
absolutely clear: NSA

has afforded, and will continue to afford, appropriate protection to

privileged attomey-client communications acquired during its lawful foreign
intelligence mission in accordance with privacy procedures required by Congress ,
approved by the Attorney General, and, as appropriate, reviewed by the Foreign
Intelligence Surveillance Court. Moreover, NSA cannot and does not ask its foreign
partners to conduct any intelligence activity that it would be prohibited from
conducting itself in accordance with U.S. law . This broad principle applies to all of
our signals intelligence activities, including any activities that could implicate
potentially privileged communications. Let me be absolutely clear: NSA has afforded, and will
continue to afford, appropriate protection to privileged attomey-client communications acquired during its lawful
foreign intelligence mission in accordance with privacy procedures required by Congress, approved by the Attorney
General, and, as appropriate, reviewed by the Foreign Intelligence Surveillance Court. Moreover, NSA cannot and
does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting
itself in accordancc with U.S. law. This broad principle applies to all of our signals intelligence activities, including

NSA conducts signals

intelligence activities in accordance with Executive Order (EO) 12333 and the
Foreign Intelligence Surveillance Act (FISA), as appropriate. As you are aware, under
FISA the Agency may not target any unconsenting U.S. person anywhere in the
world under circumstances in which the U.S. person would enjoy a reasonable
expectation of privacy without an individualized determination of probable cause by
a federal judge (absent certain limited exceptions, such as an emergency) that the
target is a foreign power or an agent of a foreign power. The term U.S. person could include
any activities that could implicate potentially privileged communications.

an individual, company, or other organization such as a U.S. law firm. Moreover, FISA states that [n]o otherwise
privileged communication obtained in accordance with, or in violation of, the provisions of this Act shall lose its
privileged character. 50 U.S.C. 1806(a). Finally, FISA also provides that [n]o information acquired from electronic
surveillance pursuant to this title may be used or disclosed by Federal officers or employees except for lawful
purposes. Id. We appreciate that [t]he ABA understands the critical role that NSA plays in gathering intelligence

information and protecting our national security. As the ABA acknowledges, during the course of these activities,
it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise
obtained by the agency. Given the inevitability of incidental collection of U.S. person information during the course
of NSAs lawful foreign intelligence missionto include potentially privileged informationthe issue is how to
provide appropriate protections for any such information when it may be acquired. Accordingly, EO 12333 and FISA
require compliance with procedures designed to protect the privacy of U.S. persons, which would include U.S. law
firms. These

privacy procedures must be approved by the Attorney General and, when

appropriate, by the Foreign Intelligence Surveillance Court.

AT: Private Sector/Outsourcing

Outsourcing to the private sector now data sharing, new
technologies, and invested government interested in private
data provide incentives.
Richards 13 Neil M. Richards, Professor of Law, Washington University School
of Law, peer-reviewed at Harvard Law Review Symposium on Privacy and
Technology, 2013 (The Dangers of Surveillance, Harvard Law Review, 2012,
Available Online at: http://heinonline.org/HOL/Page?
handle=hein.journals/hlr126&div=89&g_sent=1&collection=journals, Accessed: 8-22015)
It might seem curious to think of information gathering by private entities as
surveillance. Notions of surveillance have traditionally been concerned with the
watchful gaze of government actors like police and prison officials rather than
companies and individuals. But in a postmodern age of liquid surveillance, the two
phenomena are deeply intertwined. Government and nongovernment surveillance
support each other in a complex manner that is often impossible to disentangle. At
the outset, the technologies of surveillance software, RFID chips, GPS trackers,
cameras, and other cheap sensors are being used almost interchangeably by
government and nongovernment watchers.32 Private industry is also marketing new
surveillance technologies to the state. Though it sounds perhaps like a plot from a
paranoid science fiction novel, the Guardian reports that the Disney Corporation has
been developing facial recognition technologies for its theme parks and selling the
technology to the U.S. military.33 Nor do the fruits of surveillance respect the
public/private divide. Since the September 11 attacks, governments have been
eager to acquire the massive consumer and Internet-activity databases that private
businesses have compiled for security and other purposes, either by subpoena34 or
outright purchase.35 Information can also flow in the other direction; the U.S.
government recently admitted that it was giving information to insurance
companies that it had collected from automated license-plate readers at border
crossings.36 Similarly, while government regulation might be one way to limit or
shape the growth of the data industry in socially beneficial ways, governments
also have an interest in making privately collected data amenable to
public-sector surveillance. In the United States, for example, the Communications
Assistance for Law Enforcement Act of 199437 requires telecommunications
providers to build their networks in ways that make government surveillance and
interception of electronic communications possible.38 A European analogue, the EC
Data Retention Directive Regulations of 2009, requires Internet service providers to
retain details of all Internet access, email, and Internet telephony by users for
twelve months, so that they can be made available to government investigators for
cases of antiterrorism, intellectual property, child protection, or for other
purposes.39 This surveillant symbiosis between companies and governments
means that no analysis of surveillance can be strictly limited to just the government
or the market in isolation. Surveillance must instead be understood in its
aggregated and complex social context.

Existing statutory law checks private sector surveillance.

Richards 13 Neil M. Richards, Professor of Law, Washington University School
of Law, peer-reviewed at Harvard Law Review Symposium on Privacy and
Technology, 2013 (The Dangers of Surveillance, Harvard Law Review, 2012,
Available Online at: http://heinonline.org/HOL/Page?
handle=hein.journals/hlr126&div=89&g_sent=1&collection=journals, Accessed: 8-22015)
For private-sector surveillance, additional statutory procedures are necessary to
ensure that intellectual records are handled with greater care by the entities that
hold them. We already have piecemeal protections for intellectual privacy against
private-sector surveillance, which could serve as useful models for the extension of
intellectual-privacy protection more broadly. 13 For example, the ECPA prohibition
against warrantless wiretapping applies to private actors as well. 3 5 The Act makes
private acts of wiretapping illegal, providing severe criminal and civil liability - up to
five years in prison1 3 6 and fines or tort liability of $io,ooo for each violation of the
Act."'3 Other good models for intellectual-privacy protection in the private sector
include the confidentiality obligations placed on video-rental companies by the
Video Privacy Protection Act of 1988,'11 on librarians by the vast number of libraryrecords confidentiality laws, and on print and electronic booksellers in California
under its Reader Privacy Act.'

AT: Gradualism
No broader movement toward anti-surveillancethere are only
small, fragmented attempts to protest surveillance policies in
the status quo.
Huey 10 Laura Huey, Assistant Professor of Sociology at the University of
Western Ontario, 2010 (A SOCIAL MOVEMENT FOR PRIVACY/AGAINST
SURVEILLANCE? SOME DIFFICULTIES IN ENGENDERING MASS RESISTANCE IN A LAND
OF TWITTER AND TWEETS, Case W. Res. J. Int'l L., 2010, Available Online at:
http://heinonline.org/HOL/Page?
handle=hein.journals/cwrint42&div=39&g_sent=1&collection=journals, Accessed:
8-1-2015)
I am hardly alone in my assessment of the state of what can only be termed, at
present, the anti-surveillance/pro-privacy non-movement. In a recent book on the
politics of surveillance and visibility, Kevin Haggerty and Richard Ericson make no
reference to a wider social movement in this field; rather, in surveying the
landscape, they find surveillance to be a political battlefield on which individual
stakeholder groups-both pro and con-attempt to influence particular configurations
of surveillance. 3 In relation to those stakeholders on the anti-surveillance/proprivacy side of the equation, Colin Bennett makes the point more explicitly, stating,
"[t]he privacy advocacy network has never been regarded as a 'social movement'
either by those within it, or by those observing from the outside.' A Similarly, while
David Lyon is of the view that privacy advocacy networks are "undoubtedly
influential," he suggests that they fail to "count as a fully fledged 'social
movement'." 5 Such views are echoed by Brian Martin, who also notes that "concern
about invasions of privacy has not led to a mass movement against surveillance., 6
To be clear, the views expressed by Haggerty, Ericson, Bennett, and Lyon in the
previous paragraph are not universally held. In a recent study of resistance in the
U.K. to the National Identity Scheme, Brian Martin, Rosamunde van Brakel, and
Daniel Bernhard state that there is a "growing antisurveillance movement that is
emerging in response to expanding surveillance programmes [sic] in that country."7
However, the only work I could find that suggests the existence of an antisurveillance/pro-privacy movement in North America is that of Andrew Clement and
Christie Hurrell.8 In support of their contention that there is, indeed, a "privacy
movement," these authors point to the work of a number of national advocacy
organizations that they see as effective in highlighting privacy and surveillance issues within the media.9 In response to Clement and Hurrell's characterization of the
network of privacy advocates as a "movement," I find myself echoing Bennett: "To
date, notwithstanding recent successful campaigns against specific practices,
nobody would contend that the greater salience of the issue is attributable to the
rise of a broader 'pro-privacy' or 'antisurveillance' politics. It is still generally an
elitist issue within government, business, and civil society."'' 0 Bennett's point is
easily supported by reference to the fact that we have yet to see any form of mass
mobilization on the issue of privacy or surveillance generally. Indeed, Clement and
Hurrell make a similar observation when they note "the great difficulty that the

advocacy organizations have in mobilizing public support around anything other

than dramatic public 'scandals."' 1 As of this time of writing, in the field of
privacy/antisurveillance activism what we have is a network of privacy advocates
that remains "somewhat fragmented with a relatively small, and geographically
biased, core.'

Momentum for surveillance is low movements are extremely

difficult and fragmented and privacy issues divide coalitions.
Huey 10 Laura Huey, Assistant Professor of Sociology at the University of
Western Ontario, 2010 (A SOCIAL MOVEMENT FOR PRIVACY/AGAINST
SURVEILLANCE? SOME DIFFICULTIES IN ENGENDERING MASS RESISTANCE IN A LAND
OF TWITTER AND TWEETS, Case W. Res. J. Int'l L., 2010, Available Online at:
http://heinonline.org/HOL/Page?
handle=hein.journals/cwrint42&div=39&g_sent=1&collection=journals, Accessed:
8-1-2015)
The matter of how to frame the social harm to be tackled raises not only a concern
in relation to setting the scope too narrow, but it also tosses up the equally
legitimate concern that the scope may be set too wide, or the problem framed in
such a way that it appears too amorphous to generate the belief that anything can
be done at all. Again, participants join a movement because they believe that their
actions-in a collective sense-will increase the likelihood of a positive outcome.33 In
relation to both the concepts of privacy and surveillance and the issues each
generates, what we frequently face is a hydra-headed complex of interlocking
problems that can appear without end and/or simply too large to be successfully
tackled. In other words, the focus of, for example, an anti-surveillance movement
will necessarily be on the "surveillance assemblage"--that is, the cumulative
processes and effects of "multiple, unstable" regimes that lack "discernible
boundaries or responsible governmental departments" crisscrossing, as they do, the
public-private divide.34 As Haggerty and Ericson note, In the face of multiple
connections across myriad technologies and practices, struggles against particular
manifestations of surveillance, as important as they might be, are akin to efforts
to keep the ocean's tide back with a broom-a frantic focus on a particular
unpalatable technology or practice while the general tide of surveillance
washes over us all . 35 Conceptually, privacy is of little help either. Its "diffuseness
and multidimensionality" render privacy "one of those issues that is a mile wide and
an inch thick," thus it is not the type of public issue that easily lends itself to
fostering "deep and abiding commitments, 36 as, say, anti-smoking or animal rights
do. In short, issue advocates seeking to spawn a larger social movement in this field
will have to grapple with the rather thorny question of how to set boundaries on the
size and scope of the problem so as to avoid pessimism and confusion over the
possibilities of effecting change.

The Freedom Act killed momentum the bill was too weak to
win over the privacy movement but strong enough to satisfy
the public.
Greer 14 Evan Greer, campaign director at Fight for the Future, 2014 (How
the USA Freedom Act failed on all fronts, The Guardian, November 19 th, Available
Online at: http://www.theguardian.com/media-network/2014/nov/19/how-usafreedom-act-failed-on-all-fronts, Accessed: 8-1-2015)
The USA Freedom Act failed because it was a weak reform bill that didnt accomplish
enough good to excite a grassroots base that would fight for it and ensure victory.
You dont have to be a political junkie or a policy wonk to know that getting a good
law passed in this US Congress is nigh on impossible. The victories we have won for
internet freedom and other causes have been hard fought, and have always
required a mass movement of active and engaged people working together toward
a common goal.
In the months after Edward Snowden exposed the extent of our governments
surveillance apparatus, a powerful movement grew with a clear demand: end mass
government surveillance; privacy is a human right.
Millions of people took action online; thousands more protested in Washington DC,
and at demonstrations around the world. My inbox was flooded with questions from
Fight for the Future members asking me how they could best join the fight to end
the spying.
On 5 June, the anniversary of the first news story based on Snowdens
whistleblowing, we organised Reset the Net, a direct action campaign to encrypt as
much of the web as possible, making mass surveillance more difficult and
expensive. Tens of thousands of websites participated, including the most popular
sites on the web, and the campaign reached millions of people. The momentum was
palpable.
But this week, as the USA Freedom Act headed to a vote, no websites displayed
banners, no one rallied in the streets, and the only emails I got from my members
were to warn me about a rumour that Harry Reid intended to attach a provision from
the Stop Online Piracy Act (SOPA) as an amendment to the bill.
The fact is, while many privacy organisations gave qualified support for the USA
Freedom Act, and had well reasoned explanations why, the general public was not
impressed. The bill was weak to begin with. It only targeted a small portion of the
types of surveillance we know the NSA and other agencies are conducting. And it
had been so badly watered down since its introduction that, for an internet public
whose trust had been violated in the worst way, common sense told people not to
trust it.

Impact DPersonnel Impact

Government surveillance of the FBI checks the impact and alt
causes to minority targeting.
Reilly 15 Ryan J. Reilly, reporter on Justice Department and the Supreme Court,
2015 (FBI Director: 'Lazy' Racial Biases May Affect Law Enforcement, The
Huffington Post, February 12th, Available Online at:
http://www.huffingtonpost.com/2015/02/12/james-comey-fbi-race-lawenforcement_n_6671030.html, Accessed: 8-2-2015)
The FBI director also said that the federal government needed to to a better job
tracking the number of deaths caused by law enforcement. Comey said his
staff had been unable to determine the number of people shot by the police in the
protests in Ferguson, Missouri, that followed the death of Michael Brown in August.
Having more information about what is happening in law enforcement across the
country, Comey said, is the first step towards addressing the problems.
The speech by Comey -- a white Republican who served in the George W. Bush
administration and donated to the presidential campaigns of John McCain and Mitt
Romney -- did not immediately inspire the type of political backlash that Attorney
General Eric Holder and President Barack Obama have sometimes faced when they
have spoken on the contentious issues of race and law enforcement.
Comey also spoke about the need to diversify the ranks of his own agency, saying
that the FBI was currently "overwhelmingly white and male." He added that one of
his proudest moments as FBI director so far was sending agents to Ferguson to
investigate Brown's death, saying it was a "priceless gift" that the agents were
trusted by members of the community.

Impact DAuthoritarianism
Autocracy over issues such as national security is
inevitable-its embedded in the systemtheir evidence.
Glennon 14 Michael J. Glennon, professor of international law at Tufts
Universitys Fletcher School of Law and Diplomacy, Legal Counsel to the Senate
Foreign Relations Committee (1977-1980), Fulbright Distinguished Professor of
International and Constitutional Law, Vytautus Magnus University School of Law,
Kaunas, Lithuania (1998); a Fellow at the Woodrow Wilson International Center for
Scholars in Washington D.C. (2001-2002); Thomas Hawkins Johnson Visiting Scholar
at the United States Military Academy, West Point (2005); Director of Studies at the
Hague Academy of International Law (2006); and professeur invit at the University
of Paris II (Panthon-Assas) from 2006 to 2012., consultant to congressional
committees, the U.S. State Department, and the International Atomic Energy
Agency, member of the American Law Institute, the Council on Foreign Relations,
and the Board of Editors of the American Journal of International Law, 2014
( Torturing the Rule of Law, The National Interest, Vol 134, November/December,
Available Online at: http://nationalinterest.org/files/digital-edition/%5Buser-lastlogin-raw%5D/134%20Digital%20Edition.pdf, Accessed: 8-1-2015)
Sixty years later, sitting atop its national-security institutions, an intragovernmental
network that has descended from what Truman created now manages the real work
of protecting the nations security. Its members are smart, hard- working, publicspirited officials, careerists as well as in-and-outers. They exercise their authority
not because of some vast, nefarious conspiracy, but rather as the result of
structural incentives embedded deeply within the American political
system . They define security primarily in military terms and tend to consider
military options before political, diplomatic or law-enforcement alternatives for an
understandable reason: relative to other governmental agencies, the American
military is extremely proficient and widely respected. They share the premise of
Madeleine Albrights famous question to Colin Powell: Whats the point of having
this superb military . . . if we cant use it? They also favor existing policies over
new, different ones, in part because senior officialstheir bosseswere their
authors. In economic terms, their programs are sticky downmuch more difficult
to end than to expand or to continue. This basic dynamic, well known to
organizational behaviorists, represents the principal reason that U.S. nationalsecurity policy has changed so little from the George W. Bush to the Obama
administration. As a candidate for president, Obama repeatedly, forcefully and
eloquently promised fundamental change in that policy. It never happened. U.S.
policies on rendition, covert operations, cyberwar, military detention without trial or
counsel, drone strikes, nsa surveillance, whistle-blower prosecutions,
nonprosecution of waterboarders, reliance on the state-secrets privilege and a
variety of other national-security issues all have remained largely the same. The
explanation lies not simply in the huge number of holdovers in high-level policymaking positions; the reality is that structural incentives have given these policies
a life of their ownallowing them to run on autopilot, as Secretary of State John

Kerry described one nsa program, largely immune from constitutional and electoral
restraints.

Alt causes to authoritarianism the growing bureaucracy,

greater centralization of government, and public opiniontheir
author.
Glennon 14 Michael J. Glennon, professor of international law at Tufts
Universitys Fletcher School of Law and Diplomacy, Legal Counsel to the Senate
Foreign Relations Committee (1977-1980), Fulbright Distinguished Professor of
International and Constitutional Law, Vytautus Magnus University School of Law,
Kaunas, Lithuania (1998); a Fellow at the Woodrow Wilson International Center for
Scholars in Washington D.C. (2001-2002); Thomas Hawkins Johnson Visiting Scholar
at the United States Military Academy, West Point (2005); Director of Studies at the
Hague Academy of International Law (2006); and professeur invit at the University
of Paris II (Panthon-Assas) from 2006 to 2012., consultant to congressional
committees, the U.S. State Department, and the International Atomic Energy
Agency, member of the American Law Institute, the Council on Foreign Relations,
and the Board of Editors of the American Journal of International Law, 2014
( Torturing the Rule of Law, The National Interest, Vol 134, November/December,
Available Online at: http://nationalinterest.org/files/digital-edition/%5Buser-lastlogin-raw%5D/134%20Digital%20Edition.pdf, Accessed: 8-1-2015)
As it did in the early days of Britains monarchy, power in the United States lay
initially in one set of institutions the presidency, Congress and the courts. These
are Americas dignified institutions. Later, however, a second institution emerged
to safeguard the nations security. This, Americas efficient institution (actually,
more a network than an institution), consists of the several hundred executive
officials who sit atop the military, intelligence, diplomatic and law-enforcement
departments and agencies that have as their mission the protection of Americas
security. Large segments of the public continue to believe that Americas
constitutionally established, dignified institutions are the locus of governmental
power . That belief allows both sets of institutions to maintain public
support and legitimacy. Enough exceptions exist to sustain that illusion. But
when it comes to defining and protecting national security, the publics impression
is mistaken. Americas efficient institution makes most of the key decisions
concerning national security, removed from public view and from the electoral and
constitutional restrictions that check Americas dignified institutions. The United
States has, in short, moved beyond a mere imperial presidency to a bifurcated
systema structure of double governmentin which even the president now
exercises little substantive control over the general direction of U.S. nationalsecurity policy. Whereas Britains dual institutions evolved toward a concealed
republic, Americas have evolved in the opposite direction, toward greater
centralization, less accountability and emergent autocracy.

Surveillance Bad
Surveillance has empirically been used as an inroad to abuse.
American Civil Liberties Union, ND, https://www.aclu.org/whats-wrongpublic-video-surveillance
One problem with creating such a powerful surveillance system is that experience
tells us it will inevitably be abused. There are five ways that surveillance-camera
systems are likely to be misused: Criminal abuse Surveillance systems present law
enforcement "bad apples" with a tempting opportunity for criminal misuse. In 1997,
for example, a top-ranking police official in Washington, DC was caught using police
databases to gather information on patrons of a gay club. By looking up the license
plate numbers of cars parked at the club and researching the backgrounds of the
vehicles' owners, he tried to blackmail patrons who were married. Imagine what
someone like that could do with a citywide spy-camera system. Institutional abuse
Sometimes, bad policies are set at the top, and an entire law enforcement agency is
turned toward abusive ends. That is especially prone to happen in periods of social
turmoil and intense conflict over government policies. During the Civil Rights
movement and the Vietnam War, for example, the FBI - as well as many individual
police departments around the nation - conducted illegal operations to spy upon
and harass political activists who were challenging racial segregation and the
Vietnam War. This concern is especially justified since we are in some respects
enduring a similar period of conflict today. Abuse for personal purposes Powerful
surveillance tools also create temptations to abuse them for personal purposes. An
investigation by the Detroit Free Press, for example, showed that a database
available to Michigan law enforcement was used by officers to help their friends or
themselves stalk women, threaten motorists after traffic altercations, and track
estranged spouses.

Mass surveillance enables agencies to overstep the line of

privacy and intrude.
Gellman 2013, an American journalist and bestselling author known for his
Pulitzer Prize-winning reports on the September 11 attacks, on Dick Cheney's
powerful vice presidency and on the global surveillance disclosure, NSA broke
privacy rules thousands of times per year, audit finds
https://www.washingtonpost.com/world/national-security/nsa-broke-privacy-rulesthousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f49ddc7417125_story.html
The National Security Agency has broken privacy rules or overstepped its legal
authority thousands of times each year since Congress granted the agency broad
new powers in 2008, according to an internal audit and other top-secret documents.
Most of the infractions involve unauthorized surveillance of Americans or foreign
intelligence targets in the United States, both of which are restricted by statute and
executive order. They range from significant violations of law to typographical errors
that resulted in unintended interception of U.S. e-mails and telephone calls. The

documents, provided earlier this summer to The Washington Post by former NSA
contractor Edward Snowden, include a level of detail and analysis that is not
routinely shared with Congress or the special court that oversees surveillance. In
one of the documents, agency personnel are instructed to remove details and
substitute more generic language in reports to the Justice Department and the
Office of the Director of National Intelligence. In one instance, the NSA decided that
it need not report the unintended surveillance of Americans. A notable example in
2008 was the interception of a large number of calls placed from Washington
when a programming error confused the U.S. area code 202 for 20, the international
dialing code for Egypt, according to a quality assurance review that was not
distributed to the NSAs oversight staff. In another case, the Foreign Intelligence
Surveillance Court, which has authority over some NSA operations, did not learn
about a new collection method until it had been in operation for many months. The
court ruled it unconstitutional.