baylor_briefs_2015.pdf - BAYLOR BRIEFS 2015 SUBSTANTIALLY...

This preview shows page 1 out of 150 pages.

Unformatted text preview: BAYLOR BRIEFS 2015 SUBSTANTIALLY CURTAILING THE UNITED STATES FEDERAL GOVERNMENT’S DOMESTIC SURVEILLANCE by RICH EDWARDS RYAN GALLOWAY SUBSTANTIALLY CURTAILING THE UNITED STATES FEDERAL GOVERNMENT’S DOMESTIC SURVEILLANCE EDITORS Rich Edwards, Ph.D. Professor of Communication Studies, Baylor University Ryan Galloway, Ph.D. Associate Professor of Communication Studies, Samford University BAYLOR BRIEFS P.O. BOX 20243 WACO, TEXAS 76702 Phone: (254) 848-5959 Fax: (254) 848-4473 On the Web: Email: [email protected] © 2015 TABLE OF CONTENTS CONCEPTUAL FRAMEWORK FOR ANALYSIS …………………………....….…...... 1 AFFIRMATIVE CASES AND BRIEFS NSA Surveillance: Making FISA Supervision Meaningful ....................................................... The Transportation Security Administration: Time to Get Serious About Privatization ……... Big Data: Keeping “Third Parties” From Becoming the Government’s Party ........................... Muslim Surveillance: Pervasive Racial Profiling ....................................................................... Bulk Data Collection: Big Brother Wants It All ........................................................................ Immigration Surveillance: Turning Off the Lamp Beside the Golden Door ............................. Drones: Controlling the Government’s Eye in the Sky ............................................................. Cyber Attacks: Closing the Back Door ...................................................................................... Cellphone Tracking: Protecting Geolocational Privacy ............................................................. Familial DNA Testing: Keeping CODIS Honest ....................................................................... Other Thoughts: The American Community Survey ................................................................. 5 9 13 18 21 24 27 30 33 36 38 NEGATIVE ANSWERS TO CASE ARGUMENTS The Terrorist Threat Is Significant .............................................................................................. Changing FISA Court Procedures Is a Poor Solution …………………………………………. The Transportation Security Administration (TSA) Performs Its Job Well ............................... Government Access to Big Data Should Not Be a Major Concern ............................................ Direct Surveillance in Muslim Communities Is Essential .......................................................... The NSA’s Bulk Collection of Data Is Justified ........................................................................ Immigration Enforcement: Enforce the Law .............................................................................. Drone Surveillance: Not a Problem ............................................................................................ Cyber Security: Federal Monitoring Is Essential ....................................................................... GPS Location Data: Helping Law Enforcement Do Its Job ...................................................... DNA Databases: Exonerating the Innocent While Convicting the Guilty ................................. The American Community Survey: Accurate Data Is a Good Thing ......................................... 39 41 42 43 45 48 49 50 51 53 54 55 NEGATIVE DISADVANTAGE BRIEFS Presidential Powers Disadvantage ……………......................................................................... Cyber-Security Disadvantage .................................................................................................... Iran Politics Disadvantage ......................................................................................................... Sousveillance Disadvantage: Surveillance Protects Liberty …………………………………… Terrorism Disadvantage …...……….……................................................................................. China Disadvantage ………...………………............................................................................ 56 59 62 65 68 71 INDEX TO EVIDENCE ……………………………..……………………………………. 73 EVIDENCE ……………………………………………………….……………………...... 79 BAYLOR BRIEFS 1 CONCEPTUAL FRAMEWORK FOR ANALYSIS Resolved: The United States federal government should substantially curtail its domestic surveillance. The center of this resolution will feature a discussion of whether it is wise to limit the surveillance powers of the National Security Agency (NSA). But numerous other federal government agencies are involved in surveillance; the list of such agencies would likely include the Federal Bureau of Investigation (FBI), the Transportation Security Administration (TSA), the Drug Enforcement Administration (DEA), Immigration and Customs Enforcement (ICE), the U.S. Census Bureau, the Bureau of Indian Affairs, Housing and Urban Development (HUD), Health and Human Services (HHS), the Federal Aviation Administration, the Centers for Disease Control (CDC), the Internal Revenue Service (IRS), the U.S. Department of the Treasury, and the Food and Drug Administration (FDA). Since a long list of federal agencies are involved in some sort of surveillance, the national policy topic in 2015-16 promises to be broad. Much of the current interest in federal government surveillance arose following the June 2013 release of information by NSA contractor, Edward Snowden. The sweeping nature of federal surveillance was described by Snowden as follows: “While they may be intending to target someone associated with a foreign government or someone they suspect of terrorism, they are collecting your communications to do so. Any analyst at any time can target anyone. Any selector, anywhere. Whether these communications may be picked up depends on the range of the sensor networks and the authorities an analyst is empowered with. Not all analysts have the ability to target everybody. But I, sitting at my desk, certainly had the authority to wiretap anyone, from you, to your accountant, to a federal judge, and even the president, if I had a personal email [address]” (The Snowden Files, 2014, p. 204). In the period since 2013, Snowden, from his point of self-imposed exile in Russia, has released a steady stream of examples of NSA abuses. According to his claims, the NSA can listen to the phone calls of foreign leaders (such as German Chancellor, Angela Merkel), tap directly into the databases of major Internet companies such as Google and Yahoo, intercept and store billions of email and phone messages every day, and inserted backdoors into every major Internet encryption system. According to Snowden, the NSA has essentially succeeded in the elimination of privacy in any electronic communication, worldwide. While government and industry officials dispute some of the claims made by Snowden, it appears to be the case that NSA surveillance is much more comprehensive than previously realized. In order to understand the politics of surveillance in America, debaters should explore the history surrounding two major events: (1) the burglary of the Watergate Hotel on June 17, 1972, and (2) the terrorist attacks on September 11, 2001. The investigation of the Watergate burglary disclosed that President Richard Nixon had been using some of the intelligence services at his disposal to gather information on his political opponents – he and his associates were conducting surveillance on the members of an “enemies list.” In 1975, a congressional committee headed by Idaho Senator Frank Church discovered that this practice was not unique to the Nixon administration. The findings of the Church Committee were summarized by Jameel Jaffer, Deputy Legal Director of the ACLU: The [Church] committee discovered that, over the course of four decades, the intelligence agencies had “violated specific statutory prohibitions,” “infringed the constitutional rights of American citizens,” and “intentionally disregarded” legal limitations on surveillance in the name of “national security.” Of particular concern to the committee was that the agencies had “pursued a ‘vacuum cleaner’ approach to intelligence collection,” in some cases intercepting Americans’ communications under the pretext of targeting foreigners. To better protect Americans’ privacy, the committee recommended that all surveillance of communications “to, from, or about an American without his consent” be subject to a judicial warrant procedure. In 1978, largely in response to the Church Report, Congress enacted FISA [the Foreign Intelligence Surveillance Act] to regulate government surveillance conducted for foreign intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”) and empowered it to grant or deny government applications for surveillance orders in certain foreign intelligence investigations. (2014, ). The Church Committee found that long-time FBI Director, J. Edgar Hoover, had directed the collection of dossiers on a broad collection of American politicians and opinion leaders. Intensely personal information had been collected on Martin Luther King, Jr., John F. Kennedy, Native American leaders, and almost every prominent member of Congress. While one might assume that it would be appropriate to perform background checks on persons seeking public office, the Church Committee investigation established that the FBI dossiers had darker purposes associated with the accumulation of power. The key purpose for the passage of the Foreign Intelligence Surveillance Act in 1978 was to correct the abuses that the Church Committee had uncovered. FISA would erect a wall of separation between domestic and foreign intelligence collection. Everyone recognized the need for intelligence agencies to collect information about the intentions and capabilities of foreign governments and their agents. Federal government code-breakers had played a major role in winning World War II; the breaking of the Nazi “Enigma” code and the ability to decipher Japanese military orders had clearly demonstrated the importance of intelligence services. Also, the U.S. was highly engaged in the Cold War in the 1970s; the threat of nuclear war with Russia or China was ever-present. But the revelations uncovered by the Church Committee led Congress to declare that the awesome power of U.S. intelligence agencies must never again be used for domestic surveillance in the absence of a specific search warrant. But a different attitude emerged after the terrorist attacks of September 11, 2001. The reaction to the massive loss of life, the destruction of iconic centers of commerce in New York City, and the attack on the Pentagon, created a watershed moment in our history. The 9/11 Commission was specifically created to find out why U.S. intelligence agencies had been unable to “connect the dots” between al-Qaeda and 19 hijackers who had been living in the United States for months in preparation for the attacks. The narrative that began to emerge was that intelligence agencies failed to provide a warning because of FISA’s “wall of separation” between foreign and domestic intelligence. The Central Intelligence Agency 2 BAYLOR BRIEFS (CIA), the National Security Agency (NSA) and the Defense Intelligence Agency (DIA) were unable to pass information back-and-forth to the Federal Bureau of Investigation (FBI) because of a legislative barrier created in the Foreign Intelligence Surveillance Act (FISA). The foreign intelligence agencies were not allowed to share what they knew about al-Qaeda and the FBI was not allowed to share information about the strange flight school training activities of several Saudi nationals living in the United States. Lothar Determann, professor of law at the University of California at Berkeley, described how “the wall” enabled the 9/11 attacks: The wall was specifically cited as one factor that hindered the FBI’s ability to prevent the September 11 attacks. In the months leading up to the attacks, FBI criminal investigators and intelligence agents were focused on a number of the same targets. In August of 2001, intelligence agents were aware that three suspected terrorists – two of whom ultimately participated in the September 11 attacks – had entered the United States. Intelligence operatives opened an intelligence investigation but did not share surveillance information with criminal investigators for fear of violating the wall procedures. The FBI’s criminal investigation went unresolved and just one month later the September 11 terrorist attacks were carried out. (Hastings Constitutional Law Quarterly, 2014, p. 19) The events of 9/11 convinced Congress and the American people that intelligence agencies must be better able to gather information and to share it with one another. Barely one month after the terrorist attacks, Congress amended FISA by passing the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). One of the explicit purposes of the PATRIOT Act was to amend FISA so as to make it easier to monitor the terrorist activities of persons living in the United States. Section 215 of the PATRIOT Act, also called the “business records” provision, allows intelligence agencies to inspect “any tangible thing” so long as they certify to the FISC that the items are needed “to protect against international terrorism or clandestine intelligence activities.” The NSA has used Section 215 powers to engage in what is called “bulk collection” and storage of the telephone metadata records. G. Michael Fenner, professor of law at Creighton University School of Law, reports that the NSA maintains a massive database containing the metadata from the telephone and cellphone communications of almost all Americans, involving the addition of about 5 billion new records every day (Montana Lawyer, 2014, p. 15). While metadata does not include the content of messages, it does reveal such information as the numbers called, times of the calls, duration of the messages and location of both parties at the time of the calls. Courts have ruled that Section 215 gives the NSA sufficient power to collect and store all telephone and cellphone metadata, though it can only send a query to the database after seeking permission from the FISC. Section 215 is set to expire on June 1, 2015 but the Obama administration is urging Congress to extend it. Since controversies relating to Section 215 powers are at the heart of the 2015-16 policy resolution, debaters will need to stay well informed about Congressional actions over the course of the debate season. John Rutherford, founder of the Rutherford Institute, argues that Section 215 of the PATRIOT Act violates basic Constitutional protections: The NSA’s Section 215 collection program entails an invasion of privacy far beyond what the Founding Fathers could have imagined. As the President’s own Privacy and Civil Liberties Oversight Board noted, the bulk collection of telephone metadata can reveal intimate details about a person’s life, especially when combined with other information and subjected to sophisticated computer analysis. While the NSA emphasizes that it does not listen to actual conversations, the circumstances of a particular call, revealed by the metadata, can be highly suggestive of the content of a phone call. (The Founding Fathers and the Fourth Amendment’s Historic Protections Against Government Surveillance, 2014, p. 29) Section 505 of the PATRIOT Act provides for the use of something called “National Security Letters” (NSLs). This gives intelligence agencies the power to serve businesses with formal demands to provide access to customer records. Unlike the provisions in Section 215, the government is not required to show probable cause or request a warrant for the issuance of NSLs. Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union, summarizes the privacy intrusions posed by National Security Letters: The ACLU has a number of serious concerns with the national security letter (NSL) statutes. In this testimony, we focus on only two. The first is that the NSL statutes allow executive agencies (usually the FBI) to obtain records about people who are not known or even suspected to have done anything wrong. They allow the government to collect information, sometimes very sensitive information, not just about suspected terrorists and spies but about innocent people as well. The second concern is that the NSL statutes allow government agencies (again, usually the FBI) to prohibit NSL recipients from disclosing that the government sought or obtained information from them. This authority to impose non-disclosure orders – gag orders – is not subject to meaningful judicial review. (Strengthening Privacy Rights and National Security, 2013, pp. 77-78) Another controversial provision of the PATRIOT Act is Section 702. On its face this provision seems to deal exclusively with foreign rather than domestic intelligence. It authorizes surveillance programs targeted persons “reasonably believed to be located outside the United States.” But intelligence agencies cite Section 702 as legal authority for collecting the actual content of emails and instant messages in a database called PRISM. While this database may be targeting non-U.S. persons, it reportedly sweeps up massive amounts of information on ordinary Americans. Danielle Kehl, a policy analyst with the Open Technology Institute, described her concerns about PRISM: Over the course of the past year, the world has learned that this bulk collection program was just one small part of the NSA’s massive surveillance apparatus. Just a day after the first leak, The Washington Post ran a story about PRISM, the NSA’s “downstream” collection program authorized under Section BAYLOR BRIEFS 3 702 of the Foreign Intelligence Surveillance Act (FISA). Under the PRISM program, the NSA compels major tech companies like Google, Yahoo, Microsoft, Facebook and Twitter to turn over the contents of communications stored on company servers that have been sent or received by targets that the NSA reasonably believes are outside of the United States. While few details are known about the programs the NSA operates under Section 702, and several of the details regarding the PRISM program are a subject of debate, a declassified 2011 Foreign Intelligence Surveillance Court opinion revealed that the NSA collects more than 250,000,000 Internet communications annually using Section 702 and that “the vast majority of these communications are obtained from Internet service providers” through the PRISM program. (Security Costs, 2014, p. 4) The question at the center of debate on the domestic surveillance resolution is whether it is possible to prevent another serious terrorist attack while still preserving essential civil liberties. George Orwell, author of 1984, warned of a dystopian future where citizens would have to live with the assumption that their every thought would be detected and their every sound overheard. Glenn Greenwald, the journalist who assisted Edward Snowden in exposing the extent of NSA surveillance, noted the comparison to Orwell: “Invoking George Orwell’s 1984 is something of a cliché, but the echoes of the world about which he warned in the NSA’s surveillance state are unmistakable: both rely on the existence of a technological system with the capacity to monitor every citizen’s actions and words” (Edward Snowden, the NSA, and the U.S. Surveillance State, 2014, p. 174). Heidi Boghosian, former director of the National Lawyer’s Guild, is the author of the 2013 book, Spying on Democracy: Government Surveillance, Corporate Power and Public Resistance. She warns that extensive surveillance powers tend toward totalitarian control: “Whether you are the head of the Central Intelligence Agency arranging a secret sexual encounter or an ordinary citizen shopping at Target, your interactions with others are under a staggeringly comprehensive network that tracks where you go, how long you stay...
View Full Document

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture