Aditya+&+Janavi

=1ac= reading case ‘internet freedom economy and solvency case outweighs

Contention 1 – internet freedom
—NSA overbreadth —perception alone that the US is relying on XO12333 —driving global data localization – wrecks the internet —Eagleman —spills over to foreign policy generally —legitimacy impact end overview

The NSA’s PRISM program is being used to collect surveillance data from US companies – this overreach undermines US soft power and credibility on internet freedom
Wheeler, 14 - Marcy Wheeler is an independent journalist and PhD from the University of Michigan. She specializes in civil liberties, technology, and national security. (Marcy, "The Drama Ahead: Google versus America" 6/16, http://www.cato-unbound.org/2014/06/16/marcy-wheeler/drama-ahead-google-versus-america This leaves one central drama to play out, in which Google and other tech AND from doubling down on hard power bring the United States any greater security.

The perception that the NSA is using Executive Order 12333 to circumvent section 702 of the FISA Amendments Act is causing a backlash against US tech companies and driving global data localization
Eoyang, 14 - Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto) ("A Modest Proposal: FAA Exclusivity for Collection Involving U.S. Technology Companies" Lawfare, 11/24, http://www.lawfareblog.com/modest-proposal-faa-exclusivity-collection-involving-us-technology-companies Beyond 215 and FAA, media reports have suggested that there have been collection programs AND, the checks within FAA are stronger than those under 12333 acting alone.

That will collapse the global internet
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) The era of a global Internet may be passing. Governments across the world are AND surveillance, while at the same time increasing the risks of domestic surveillance.

A free internet is vital to combating every existential threat
Eagleman, 10 - American neuroscientist and writer at Baylor College of Medicine, where he directs the Laboratory for Perception and Action and the Initiative on Neuroscience and Law (David, "Six ways the internet will save civilization" Wired, 9/10, http://www.wired.co.uk/magazine/archive/2010/12/start/apocalypse-no Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. AND to suggest that the net may just be the technology that saves us.

Surveillance overreach spills over to gut overall US global legitimacy
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ Broader Foreign Policy Costs Beyond Internet Freedom, the NSA disclosures "have badly AND some cases, completely undermine—U.S. foreign policy goals.

Legitimacy key to global stability - prevents great power war
Fujimoto 12 (Kevin Fujimoto 12, Lt. Colonel, U.S. Army, January 11, 2012, "Preserving U.S. National Security Interests Through a Liberal World Construct," online: http://www.strategicstudiesinstitute.army.mil/index.cfm/articles/Preserving-US-National-Security-Interests-Liberal-World-Construct/2012/1/11) The emergence of peer competitors, not terrorism, presents the greatest long-term AND which threaten to serve as the principal catalysts of future global conflicts.11

The perception of NSA overreaching wrecks global trust in the US tech sector – that wrecks the US economy and competitiveness
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ "It is becoming clear that the post-9/11 surveillance apparatus AND companies hoping to chip away at U.S. tech competiveness.58

It has ripple effects that will destroy global economic growth
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) C. Economic Development Many governments believe that by forcing companies to localize data AND aggregating data across borders. We discuss the impacts on these trends below.

That causes World War 3
James, 14 - Professor of history at Princeton University’s Woodrow Wilson School who specializes in European economic history (Harold, "Debate: Is 2014, like 1914, a prelude to world war?" 7/3, http://www.theglobeandmail.com/globe-debate/read-and-vote-is-2014-like-1914-a-prelude-to-world-war/article19325504/) Some of the dynamics of the pre-1914 financial world are now re- AND temptation to roll the dice, even though the game may be fatal.

Plan:
The United States federal government should limit domestic surveillance of information in the custody of American companies exclusively to authority under section 702 of the FISA Amendments Act, subject to the additional use restrictions in Presidential Policy Directive 28.

The plan’s curtailment of surveillance of U.S. companies to exclusive section 702 authority is vital to restoring domestic and international trust in surveillance
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way ("Restoring Trust between U.S. Companies and Their Government on Surveillance Issues" 3/19, http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-on-surveillance-issues Fixing the Problem Means Changing the Existing Legal Framework Currently, the U. AND, they bring with them American values, including those of privacy protections.

Applying the restrictions of PPD-28 to section 702 eliminates all negative perceptions of overbreadth
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy & Technology (Greg, "COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA" 4/11) To address the problem of overbreadth in Section 702 collection, PCLOB should recommend that AND disclosure of communications content absent judicial review as a means of doing so.

Curtailing the use of surveillance on US-based servers to national security interests and increasing transparency regarding surveillance is vital to restoring trust and US credibility
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ The NSA mass surveillance programs described in the introduction, conducted domestically pursuant to USA AND a leadership role in the promotion of better international standards around surveillance practices.

=Case extensions=

NSA surveillance wrecks US cred in promoting Internet Freedom and spills over to larger foreign policy cred
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ Mandatory data localization proposals are just one of a number of ways that foreign governments AND disclosures will be felt for years in fields far beyond Internet policy.174

Wrecks overall internet freedom globally
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ The effects of the NSA disclosures on the Internet Freedom agenda go beyond the realm AND overall decline in U.S. soft power on free expression issues.

NSA overreach wrecks US smart power
Donahoe, 14 - Eileen Donahoe served as U.S. ambassador to the United Nations Human Rights Council. She is a visiting scholar at Stanford University's Freeman Spogli Institute for International Studies ("Why the NSA undermines national security" Reuters, 3/6, http://blogs.reuters.com/great-debate/2014/03/06/why-nsa-surveillance-undermines-national-security/ But this zero-sum framework ignores the significant damage that the NSA’s practices have AND to regain the global trust and credibility so central to our national security.

Mandatory data localization wrecks US internet company competitiveness and US internet freedom – also threatens the functioning of the internet itself
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ Some analysts have questioned whether data localization and protection proposals are politically motivated and if AND .S. economic interests, but also Internet Freedom around the world.

Data localization threatens internet freedom – creates a bordered internet
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ The NSA disclosures have prompted some foreign leaders to propose new policies for data localization AND, making it easier for governments to exert control over the Internet infrastructure.

Data localization rolls back global democracy
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) E. Freedom Information control is central to the survival of authoritarian regimes. AND consolidates power in governments by making available an infrastructure for surveillance and censorship.

Data localization wrecks cybersecurity
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) Closely related to the goal of avoiding foreign surveillance through data localization is the goal AND in Vancouver than one owned by IBM, a few miles further south.

Data localization increases the risk of surveillance
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) Fourth, far from making surveillance more difficult for a foreign government, localization requirements AND nation's citizens more easily. We call this the "Jackpot" problem.

Data localization doesn’t aid law enforcement
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) Equally important, it seems unlikely that data localization will prove an effective means to AND support government information gathering efforts than efforts to confine information within national borders.

Obama PPD doesn’t solve section 702 perception problems – it’s not applied to it
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy & Technology (Greg, "COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA" 4/11) The Presidential Policy Directive that President Obama issued on January 17, 2014 (PPD AND to Section 702 because it is not considered a bulk collection program.8

The Freedom Act doesn’t change section 702
Froomkin, 6/2/15 - Dan Froomkin is a reporter, columnist, and editor with a focus on coverage of U.S. politics and media. During a nearly three-decade long career in journalism, which started in local news, he has served as the senior Washington correspondent and bureau chief for The Huffington Post, as editor of WashingtonPost.com, and as deputy editor of NiemanWatchdog.org (Dan, "USA FREEDOM ACT: SMALL STEP FOR POST-SNOWDEN REFORM, GIANT LEAP FOR CONGRESS" The Intercept, https://firstlook.org/theintercept/2015/06/02/one-small-step-toward-post-snowden-surveillance-reform-one-giant-step-congress/ And while the Freedom Act contains a few other modest reform provisions‚ such as AND in any way limit the agency’s mass surveillance of non-American communications.

Loss of overseas markets wrecks tech competitiveness
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ The economic impact of NSA spying does not end with the American cloud computing industry AND prevent American companies from entering into new markets because of high compliance costs.

Wrecks the economy and industry reforms alone won’t solve
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ It is abundantly clear that the NSA surveillance programs are currently having a serious, AND technology market and do lasting damage to the U.S. economy.

The widespread perception that the NSA is acting beyond the established legislative framework is destroying the reputation of U.S. tech companies
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way ("Restoring Trust between U.S. Companies and Their Government on Surveillance Issues" 3/19, http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-on-surveillance-issues Allegations of intrusive U.S. government electronic surveillance activities have raised international outcry AND said, "the back door makes a mockery of the front door."

Failure to provide privacy protections to US persons wrecks US competitiveness
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) The difficulty, for Section 702 purposes, enters in regard to Kennedy's reliance on AND directly from the individual's status as a member of the political community). n453

Data localization is an independent internal link
Chandler and Le, 15 - * Director, California International Law Center, Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California, Davis; A.B., Harvard College; J.D., Yale Law School AND **Free Speech and Technology Fellow, California International Law Center; A.B., Yale College; J.D., University of California, Davis School of Law (Anupam and Uyen, "DATA NATIONALISM" 64 Emory L.J. 677, lexis) Cloud Computing. Data localization requirements will often prevent access to global cloud computing services AND data flow, but this will depend on the specifics of the law.

The plan restores US cred as a global leader on privacy by limiting the FAA
Edgar, 4/13/15 - visiting fellow at the Institute and adjunct professor of law at the Georgetown University Law Center (Timothy, "The Good News About Spying" https://www.foreignaffairs.com/articles/united-states/2015-04-13/good-news-about-spying NEXT STEPS Has surveillance reform gone far enough? Hardly. Obama has taken the first steps, but the government should take six more to enhance public confidence in surveillance programs. First, the intelligence community should do even more to increase transparency. IC on the Record is a good start, but it is mostly reactive, providing context to programs that Snowden had already leaked. The intelligence community should continue to release as much as it possibly can about surveillance programs without compromising sources and methods—even if they have not been leaked. Given Snowden’s widespread public acclaim, coming clean about such controversial intelligence programs is not just good government, but also provides the surest way to preserve vital intelligence capabilities. With greater transparency, intelligence agencies can stay one step ahead of future leakers and earn back the trust of a skeptical public. The United States should also pivot from its defensive position and take the lead on global privacy. The United States has an impressive array of privacy safeguards, and it has even imposed new ones that protect citizens of every country. Despite their weaknesses, these safeguards are still the strongest in the world. The U.S. government should not be shy about trumpeting them, and should urge other countries to follow its lead. It could begin by engaging with close allies, like the United Kingdom, Germany, and other European countries, urging them to increase transparency and judicial supervision of their own communications surveillance activities. The government also needs to finish the job on telephone records. The law that allows for bulk collection of telephone records is set to expire on June 1, 2015. Congress should act now to pass sensible reforms that would replace bulk collection with a privacy-preserving alternative. The only truly viable option remains the bill that died in November last year. Washington also needs to work with U.S. technology companies to reform PRISM and other surveillance programs that have been an embarrassment for U.S. companies. Congress should narrow the FISA Amendments Act of 2008 that authorizes PRISM. That law allows the government to obtain secret court orders targeting communications that include foreign participants of interest to the NSA with the compelled assistance of U.S. companies. Congress could start by limiting such orders to the same six specific serious security threats that are included in Obama’s policy directive for bulk signals intelligence collection.

FAA exclusivity on balance protects companies from reputational consequences
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way ("Restoring Trust between U.S. Companies and Their Government on Surveillance Issues" 3/19, http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-on-surveillance-issues Others have argued that the FAA shifts the burden of cooperation solely onto the company, which will suffer greater reputational harm as a more witting participant in affirmatively granting the government’s requests. However, companies have suffered reputational harm as a result of allegations of unwitting cooperation. Making the cooperation known, even if it’s secret, gives the companies the opportunity to account for it in their own planning.

Plan reverses incentives for companies to shift to foreign subsidiaries
Eoyang and Bishai, 15 - *Mieke Eoyang is the Director of the National Security Program at Third Way, a center-left think tank. She previously served as Defense Policy Advisor to Senator Edward M. Kennedy, and a subcommittee staff director on the House Permanent Select Committee on Intelligence, as well as as Chief of Staff to Rep. Anna Eshoo (D-Palo Alto); **Chrissy Bishai is a Fellow at Third Way ("Restoring Trust between U.S. Companies and Their Government on Surveillance Issues" 3/19, http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-on-surveillance-issues The move by certain U.S. companies to place subsidiaries in foreign ownership to resist requests by the U.S. government presents an interesting twist on this idea. In shifting the balance back to increased protections for U.S. companies, this legislation would change the incentives so that claiming U.S. law would have operational advantages in giving companies uniformity of law for all their data. This would also encourage the use of a single choice of law for all data governed by a company—that of the nationality of incorporation—rather than encouraging a choice of law patchwork to govern the data as it flows around the world.

=Off-case answers=

A US persons standard avoids the problems with geographic limits on the internet
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) To the extent that the interception of U.S. persons' communications constitutes a search or seizure within the meaning of the Fourth Amendment, it would appear that, at least at the front [*230] end, U.S. persons are entitled to protections. n456 The inspection and collection of content falls within the meaning of a search and seizure under the Fourth Amendment. Just as virtual entry into the United States should not matter for purposes of setting a threshold for application of the Fourth Amendment to aliens, use of global communications should not thereby divest U.S. persons of their constitutional protections. This approach is consistent with the geographic focus of the Courts in regard to the Fourth Amendment. It does not hinge constitutional protections on movement along global communications networks—itself an untenable proposition in light of how information flows over the Internet. If the courts, for instance, were to construct a rule that said that U.S. persons sending information outside the United States lose the protections of the Fourth Amendment in the privacy afforded those communications, it would be difficult to police. This rule assumes that individuals have control over whether their communications leave domestic bounds. They do not. The Internet is constructed to find the most efficient route between two ISP addresses. This means that even domestic communications may be routed internationally. Individuals have no control over how their messages are conveyed. At the back end, the government would have to be able to ascertain which messages originated within the United States and then left U.S. bounds. But the NSA claims that it does not have the appropriate technologies to make this call. As a result, the effect of this rule would essentially be to assume that every time a U.S. person communicates, she loses constitutional protections in the content of those communications. This would eviscerate the meaning of the Fourth Amendment. It would assume that U.S. persons have no reasonable expectation of privacy in their communications, regardless of whether they flow across international borders. The Supreme Court can avoid this conclusion by underscoring the status of the individual as Rehnquist articulated for the majority in Verdugo-Urquidez: emphasizing membership in the political community. Where established, the protection of the Fourth Amendment applies.

The NSA intercepts upstream data by tapping directly into US service providers
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) A follow-up article two days later printed another slide depicting both PRISM and "upstream" collection of communications on fiber cables and infrastructure ("[c]ollection directly from the servers of . . . U.S. Service Providers.") n8 Upstream interception allowed the NSA to acquire Internet communications "as they [*121] transit the 'internet backbone' facilities." n9 The NSA could collect all traffic crossing Internet cables—not just information targeted at specific Internet Protocol (IP) addresses or telephone number. The potential yield was substantial: in the first six months of 2011, the NSA acquired more than 13.25 million Internet transactions through its upstream collection. n10 The slide urged analysts to use both PRISM and upstream collection to obtain information. n11 Within days of the releases, the intelligence community acknowledged the existence of the programs. n12 In August 2013 the Director of National Intelligence, James Clapper, offered further confirmation, noting that PRISM had been in operation since Congress had passed the 2008 FISA Amendments Act. n13 He declassified eight documents, n14 and by the end of the month, he had announced that the intelligence community would release the total [*122] number of Section 702 orders issued, and targets thereby affected, on an annual basis. n15

NSA interpretation of the FAA means in practice PRISM targets domestic communications
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) FAA = 2008 FISA Amendments Act The Article next turns to statutory issues related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped FAA restrictions by adopting procedures that allow analysts to acquire information not just to or from, but also "about" targets. In its foreignness determination the agency assumes, absent evidence to the contrary, that the target is a non-U.S. person located outside domestic bounds. And weak standards mark the foreign intelligence purpose determination. Together, these elements allow for the broad collection of U.S. persons' international communications, even as they open the door to the interception of domestic communications. In regard to post-targeting analysis, the Article draws attention to the intelligence community's use of U.S. person information to query data obtained under Section 702, effectively bypassing protections Congress introduced to prevent reverse targeting. The Article further notes in relation to retention and dissemination that increasing consumer and industrial reliance on cryptography means that the NSA's retention of encrypted data may soon become the exception that swallows the rule. In its constitutional analysis, the Article finds certain practices instituted under Section 702 to fall outside acceptable Fourth Amendment bounds. Although lower courts had begun to recognize a domestic foreign intelligence exception to the warrant clause, in 1978 Congress introduced FISA to be the sole means via which domestic foreign intelligence electronic intercepts could be undertaken. Consistent with separation of powers doctrine, this shift carried constitutional meaning. Internationally, practice and precedent prior to the FAA turned on a foreign intelligence exception. But in 2008 Congress altered the status quo, introducing individualized judicial review into the process. Like FISA, the FAA carried constitutional import. [*124] If that were the end of the story, one could argue that the incidental collection of U.S. persons' information, as well as the interception of domestic conversations ought to be regarded in Justice Jackson's third category under Youngstown Sheet & Tube Co. v. Sawyer. n18 Renewal in 2012, however, points in the opposite direction. The NSA's actions, for purposes of the warrant clause, appear to be constitutionally sufficient insofar as foreign intelligence gathering to or from non-U.S. persons is concerned. The tipping point comes with regard to criminal prosecution. Absent a foreign intelligence purpose, there is no exception to the warrant requirement for the query of U.S. persons' international or domestic communications. Although a warrant is not required for foreign intelligence collection overseas, the interception of communications under Section 702 must still comport with the reasonableness requirements of the Fourth Amendment. A totality of the circumstances test, in which the significant governmental interest in national security is weighed against the potential intrusion into U.S. persons' privacy, applies. The incidental collection of large quantities of U.S. persons' international communications, the scanning of content for information "about" non-U.S. person targets, and the interception of non-relevant and entirely domestic communications in multi-communication transactions, as well as the query of data using U.S. person identifiers, fall outside the reasonableness component of the Fourth Amendment. The Article concludes by calling for renewed efforts to draw a line between foreign intelligence gathering and criminal law and to create higher protections for U.S. persons, to ensure that the United States can continue to collect critical information, while remaining consistent with the right to privacy embedded in the Fourth Amendment.

NSA overreach means it inevitably monitors domestic internet communications – rerouting, MCTs, and ‘about’ communications
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) Three points related to the volume and intrusiveness of the resulting surveillance deserve notice. First, to obtain "about" communications, because of how the Internet is constructed, the NSA must monitor large amounts of data. n180 That is, if the NSA may [*163] collect not just e-mail to or from the target's e-mail account (badguy@ISP.com), but, in addition, other communications happening to mention badguy@ISP.com that pass through the collection point, then the NSA is monitoring a significant amount of traffic. And the agency is not just considering envelope information (for example, messages in which the selector is sending, receiving, or copied on the communication) but the actual content of messages. n181 Second, wholly domestic conversations may become swept up in the surveillance simply by nature of how the Internet is constructed. Everything one does online involves packets of information. Every Web site, every e-mail, every transfer of documents takes the information involved and divides it up into small bundles. Limited in size, these packets contain information about the sender's IP address, the intended receiver's IP address, something that indicates how many packets the communication has been divvied up into, and what number in the chain is represented by the packet in question. n182 Packet switched networks ship this information to a common destination via the most expedient route—one that may, or may not, include the other packets of information contained in the message. If a roadblock or problem arises in the network, the packets can then be re-routed, to reach their final destination. Domestic messages may thus be routed through international servers, if that is the most efficient route to the final destination. What this means is that even if the NSA applies an IP filter to eliminate communications that appear to be within the United States, it may nevertheless monitor domestic conversations by nature of them being routed through foreign servers. In this manner, a student in Chicago may send an e-mail to a student in Boston [*164] that gets routed through a server in Canada. Through no intent or design of the individual in Chicago, the message becomes international and thus subject to NSA surveillance. Third, further collection of domestic conversations takes place through the NSA's intercept of what are called multi-communication transactions, or MCTs. It is important to distinguish here between a transaction and a communication. Some transactions have only single communications associated with them. These are referred to as SCTs. Other transactions contain multiple communications. If even one of the communications in an MCT falls within the NSA's surveillance, all of the communications bundled into the MCT are collected. The consequence is of significant import. FISC estimated in 2011 that somewhere between 300,000 and 400,000 MCTs were being collected annually on the basis of "about" communication—where the "active user" was not the target. So hundreds of thousands of communications were being collected that did not include the target as either the sender or the recipient of the communication. n183

PRISM allows reverse-targeting: targeting someone outside the United States to collect information about someone in the United States
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) B. Post-Targeting Analysis Section 702 makes it illegal to target someone outside the United States, where the purpose of the acquisition is to obtain information about a person known to be within domestic bounds. This practice, known as "reverse targeting," was central to Congressional debates. n308 Representative Langevin explained that the insertion of FISC would "ensure that the government's efforts are not aimed at targeting Americans, the so-called reverse targeting that we're all concerned about; and that if an American's communications is [sic] inadvertently intercepted, it is dealt with in a manner that guarantees legal protections." n309 Despite Congress' concern about reverse targeting, the NSA instituted and the FISC approved a rule change in October 2011 to make it possible to query the content of communications obtained under Section 702 using U.S. person names and identifiers for information obtained via PRISM and upstream telephony collection. n310 [*196] The relevant definition in the 2011 minimization procedures is largely consistent with its 2009 predecessor: Identification of a United States person means the name, unique title, address, or other personal identifier of a United States person in the context of activities conducted by that person or activities conducted by others that are related to that person. A reference to a product by brand name, or manufacturer's name or the use of a name in a descriptive sense, e.g., "Monroe Doctrine," is not an identification of a United States person. n311 The NSA may query data obtained under Section 702 by using the names, titles, or addresses of U.S. persons, or any other information that may be related to the individual and his or her activities. If the intelligence community would like to query the data based on, for instance, membership in the Council on Foreign Relations—on the grounds that such queries are likely to yield foreign intelligence information—it may now do so. In March 2014, the Director of National Intelligence, James Clapper, confirmed in a letter to Senator Ron Wyden that the [*197] NSA had queried Section 702 data "using U.S. person identifiers." n312 The following month, the NSA's Privacy and Civil Liberties Officer reiterated Clapper's statement. n313 Pressed during a June 2014 hearing for the number of queries using U.S. person identifiers, Clapper responded by noting that in 2013, the NSA approved 198 U.S. person identifiers for querying the content of Section 702 communications, even as it queried Section-702-acquired metadata approximately 9,500 times. n314 FISC has upheld the reading of the statute supporting use of U.S. person identifiers. n315 In its October 2011 opinion, the Court explained: The procedures previously approved by the Court effectively impose a wholesale bar on queries using United States-Person identifiers. The government has broadened Section 3(b)(5) to allow NSA to query the vast majority of its Section 702 collection using United States-Person identifiers, subject to approval pursuant to internal NSA procedures and oversight by the Department of Justice. Like all other NSA queries of the Section 702 collection, queries using United States-person identifiers would be limited to those reasonably likely to yield foreign intelligence information. n316 The Court did not find this problematic. Because the collection of the information centered on non-U.S. persons located outside the country, it would be less likely, in the aggregate, "to result in the acquisition of nonpublic information regarding nonconsenting United States persons." n317 [*198] As a practical matter, what this rule change means is that U.S. person information that is incidentally collected via Section 702 can now be mined using U.S. person information as part of the queries. This circumvents Congress's requirements in Sections 703 and 704 that prior to U.S. person information being obtained (and therefore prior to it being analyzed), the government be required to appear before a court to justify placing a U.S. person under surveillance.

Section 702 authorizes a broad bulk collection of data – inevitably includes collection from U.S. persons on a large scale
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) II. PROGRAMMATIC COLLECTION n143 Almost immediately after passage of the FAA, members of Congress, scholars, and others began criticizing Section 702 because [*154] of the potential for the government to use the authorities to engage in programmatic surveillance. n144 In 2009 prominent national security law Professor William Banks explained, "the FAA targets do not have to be suspected of being an agent of a foreign power or, for that matter, they do not have to be suspected of terrorism or any national security offense, so long as the collection of foreign intelligence is a significant purpose of the surveillance." n145 Surveillance could be directed at a person, organization, e-mail address, or even "an entire ISP or area code." n146 He noted, "the surveillance permitted under the FAA does not require that the Government identify a particular known facility where the intercepted communications occur." n147 These provisions represented a sea change from how FISA had previously worked (albeit introducing, for the first time, statutory restrictions in an area previously governed by Executive Order). U.S. persons' communications now could be incidentally collected under the statute, on a large scale, without many of the protections in traditional FISA. n148 Banks presciently pointed out the most likely way in which the new authorities would be used: Although details of the implementation of the program. . . are not known, a best guess is the Government uses a broad vacuum cleaner-like first stage of collection, focusing on transactional data, where wholesale interception occurs following the development and implementation of filtering criteria. Then the NSA engages in a more particularized collection of content after analyzing mined data. . . [A]ccidental or incidental acquisition of U.S. persons inside the United States [will] surely occur[], especially in light of the difficulty of ascertaining a target's location. n149 For Professor Banks, part of the problem was that the nature of international information flows meant that it would be impossible [*155] to tell if an individual is located overseas or within domestic bounds. n150

The NSA circumvents Section 702 by adopting a presumption that targets are non-U.S. persons and not determining whether they are located domestically
Donohue, 15 - Professor of Law, Georgetown University Law Center (Laura, "SECTION 702 AND THE COLLECTION OF INTERNATIONAL TELEPHONE AND INTERNET CONTENT" 38 Harv. J.L. & Pub. Pol'y 117, Winter, lexis) [*158] A. Targeting As aforementioned, Section 702 places four limitations on acquisition, each of which is meant to restrict the amount of information that can be obtained by the government. n166 The NSA has sidestepped these statutory restrictions in three important ways: first, it has adopted procedures that allow analysts to acquire information "about" selectors (that is, communications modes used by targets) or targets, and not merely communications to or from targets (or selectors employed by targets), or information held by targets themselves. Second, it has created a presumption of non-U.S. person status: That is, if an individual is not known to be a U.S. person (and thus exempted from Section 702 and treated either under Sections 703 and 704 or under traditional FISA, depending on the location), then the NSA assumes that the individual is a non-U.S. person. Third, the NSA has failed to adopt standards that would require it to ascertain whether a target is located within domestic bounds. Instead, the agency, having looked at the available evidence, absent evidence to the contrary, assumes that the target is located outside the United States. These interpretations work together to undermine Congress's addition of Sections 703 and 704, even as they open the door to more extensive collection of domestic communications. In 2008 Congress anticipated that U.S. person information would inadvertently be collected under Section 702. This is in part why it included minimization procedures, as well as limits on what could be collected. Most Members, however, do not appear to have contemplated broad, programmatic collection that would undermine protections introduced in Sections 702 and 703. n167 Those who did articulate this possibility voted against the bill. [*159] Even if Congress did not initially appreciate the potential for programmatic collection, however, certainly by 2012 the intelligence community had made enough information available to Congress for Members to make an informed decision. This does not mean that all Members were fully informed. But to the extent that Members selected not to access the material or to take a public stand on the matter, particularly in light of the legislature's reading of its authorities with regard to classification, fault lies with Congress. The Foreign Intelligence Surveillance Court failed to step into the gap. In 2011, FISC realized the implications of the NSA's interpretation of to, from or about (TFA) collection. However, in light of the seriousness of the NSA's aim (protecting national security), and the limitations imposed by the types of technologies being used, the Court read the statute in a manner that found the targeting procedures to be consistent with the statute. To the extent that NSA's TFA and assumptions regarding the target's foreignness undermine the law as it is written, the legislature failed to perform effective oversight. Congress similarly neglected to uphold the limit placed on the intelligence community to not knowingly collect domestic conversations. Instead, it relied on FISC to do so—a task that the Court failed to do. In a classified environment, when so much information is cloaked from public view, it becomes even more important for the government to ensure that the authorities as they are publicly presented are consistent with the manner in which they are being exercised.

PRISM allows the NSA to access the records of US domestic telecomm companies – also it eliminates a warrant requirement if people are ‘reasonably believed’ to be outside the USA
Greenwald, 13 – Glenn Greenwald is a fomer columnist on civil liberties and US national security issues for the Guardian. An ex-constitutional lawyer, he was until 2012 a contributing writer at Salon. (Glenn, "NSA Prism program taps in to user data of Apple, Google and others" The Guardian, 6/7, http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian. The NSA access is part of a previously undisclosed program called Prism, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says. The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims "collection directly from the servers" of major US service providers. Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied knowledge of any such program. In a statement, Google said: "Google cares deeply about the security of our users' data. We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government 'back door' into our systems, but Google does not have a back door for the government to access private user data." Several senior tech executives insisted that they had no knowledge of Prism or of any similar scheme. They said they would never have been involved in such a program. "If they are doing this, they are doing it without our knowledge," one said. An Apple spokesman said it had "never heard" of Prism. The NSA access was enabled by changes to US surveillance law introduced under President Bush and renewed under Obama in December 2012. The program facilitates extensive, in-depth surveillance on live communications and stored information. The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US. It also opens the possibility of communications made entirely within the US being collected without warrants. Disclosure of the Prism program follows a leak to the Guardian on Wednesday of a top-secret court order compelling telecoms provider Verizon to turn over the telephone records of millions of US customers. The participation of the internet companies in Prism will add to the debate, ignited by the Verizon revelation, about the scale of surveillance by the intelligence services. Unlike the collection of those call records, this surveillance can include the content of communications and not just the metadata. Some of the world's largest internet brands are claimed to be part of the information-sharing program since its introduction in 2007. Microsoft – which is currently running an advertising campaign with the slogan "Your privacy is our priority" – was the first, with collection beginning in December 2007. It was followed by Yahoo in 2008; Google, Facebook and PalTalk in 2009; YouTube in 2010; Skype and AOL in 2011; and finally Apple, which joined the program in 2012. The program is continuing to expand, with other providers due to come online. Collectively, the companies cover the vast majority of online email, search, video and communications networks. The document is recent, dating to April 2013. Such a leak is extremely rare in the history of the NSA, which prides itself on maintaining a high level of secrecy. The Prism program allows the NSA, the world's largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders. With this program, the NSA is able to reach directly into the servers of the participating companies and obtain both stored communications as well as perform real-time collection on targeted users. The presentation claims Prism was introduced to overcome what the NSA regarded as shortcomings of Fisa warrants in tracking suspected foreign terrorists. It noted that the US has a "home-field advantage" due to housing much of the internet's architecture. But the presentation claimed "Fisa constraints restricted our home-field advantage" because Fisa required individual warrants and confirmations that both the sender and receiver of a communication were outside the US. "Fisa was broken because it provided privacy protections to people who were not entitled to them," the presentation claimed. "It took a Fisa court order to collect on foreigners overseas who were communicating with other foreigners overseas simply because the government was collecting off a wire in the United States. There were too many email accounts to be practical to seek Fisas for all." The new measures introduced in the FAA redefines "electronic surveillance" to exclude anyone "reasonably believed" to be outside the USA – a technical change which reduces the bar to initiating surveillance. The act also gives the director of national intelligence and the attorney general power to permit obtaining intelligence information, and indemnifies internet companies against any actions arising as a result of co-operating with authorities' requests. In short, where previously the NSA needed individual authorisations, and confirmation that all parties were outside the USA, they now need only reasonable suspicion that one of the parties was outside the country at the time of the records were collected by the NSA. The document also shows the FBI acts as an intermediary between other agencies and the tech companies, and stresses its reliance on the participation of US internet firms, claiming "access is 100% dependent on ISP provisioning". In the document, the NSA hails the Prism program as "one of the most valuable, unique and productive accesses for NSA". It boasts of what it calls "strong growth" in its use of the Prism program to obtain communications. The document highlights the number of obtained communications increased in 2012 by 248% for Skype – leading the notes to remark there was "exponential growth in Skype reporting; looks like the word is getting out about our capability against Skype". There was also a 131% increase in requests for Facebook data, and 63% for Google. The NSA document indicates that it is planning to add Dropbox as a PRISM provider. The agency also seeks, in its words, to "expand collection services from existing providers". The revelations echo fears raised on the Senate floor last year during the expedited debate on the renewal of the FAA powers which underpin the PRISM program, which occurred just days before the act expired. Senator Christopher Coons of Delaware specifically warned that the secrecy surrounding the various surveillance programs meant there was no way to know if safeguards within the act were working. "The problem is: we here in the Senate and the citizens we represent don't know how well any of these safeguards actually work," he said. "The law doesn't forbid purely domestic information from being collected. We know that at least one Fisa court has ruled that the surveillance program violated the law. Why? Those who know can't say and average Americans can't know." Other senators also raised concerns. Senator Ron Wyden of Oregon attempted, without success, to find out any information on how many phone calls or emails had been intercepted under the program. When the law was enacted, defenders of the FAA argued that a significant check on abuse would be the NSA's inability to obtain electronic communications without the consent of the telecom and internet companies that control the data. But the Prism program renders that consent unnecessary, as it allows the agency to directly and unilaterally seize the communications off the companies' servers.

Upstream intercepts foreign data only as it enters domestic internet connections
Gellman, 14 – staff writer for the Washington Post; won 3 Pullitzer Prizes (Barton, Washington Post, "In NSA-intercepted data, those not targeted far outnumber the foreigners who are" 7/5, http://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322'story.html Taken together, the files offer an unprecedented vantage point on the changes wrought by Section 702 of the FISA amendments, which enabled the NSA to make freer use of methods that for 30 years had required probable cause and a warrant from a judge. One program, code-named PRISM, extracts content stored in user accounts at Yahoo, Microsoft, Facebook, Google and five other leading Internet companies. Another, known inside the NSA as Upstream, intercepts data on the move as it crosses the U.S. junctions of global voice and data networks. No government oversight body, including the Justice Department, the Foreign Intelligence Surveillance Court, intelligence committees in Congress or the president’s Privacy and Civil Liberties Oversight Board, has delved into a comparably large sample of what the NSA actually collects — not only from its targets but also from people who may cross a target’s path. Among the latter are medical records sent from one family member to another, résumés from job hunters and academic transcripts of schoolchildren. In one photo, a young girl in religious dress beams at a camera outside a mosque. Scores of pictures show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers. In some photos, men show off their physiques. In others, women model lingerie, leaning suggestively into a webcam or striking risque poses in shorts and bikini tops. "None of the hits that were received were relevant," two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. "No additional information," writes a civilian analyst. Another makes fun of a suspected kidnapper, newly arrived in Syria before the current civil war, who begs for employment as a janitor and makes wide-eyed observations about the state of undress displayed by women on local beaches. By law, the NSA may "target" only foreign nationals located overseas unless it obtains a warrant based on probable cause from a special surveillance court. For collection under PRISM and Upstream rules, analysts must state a reasonable belief that the target has information of value about a foreign government, a terrorist organization or the spread of nonconventional weapons. Most of the people caught up in those programs are not the targets and would not lawfully qualify as such. "Incidental collection" of third-party communications is inevitable in many forms of surveillance, but in other contexts the U.S. government works harder to limit and discard irrelevant data. In criminal wiretaps, for example, the FBI is supposed to stop listening to a call if a suspect’s wife or child is using the phone. There are many ways to be swept up incidentally in surveillance aimed at a valid foreign target. Some of those in the Snowden archive were monitored because they interacted directly with a target, but others had more-tenuous links. If a target entered an online chat room, the NSA collected the words and identities of every person who posted there, regardless of subject, as well as every person who simply "lurked," reading passively what other people wrote. "1 target, 38 others on there," one analyst wrote. She collected data on them all. In other cases, the NSA designated as its target the Internet protocol, or IP, address of a computer server used by hundreds of people. The NSA treats all content intercepted incidentally from third parties as permissible to retain, store, search and distribute to its government customers. Raj De, the agency’s general counsel, has testified that the NSA does not generally attempt to remove irrelevant personal content, because it is difficult for one analyst to know what might become relevant to another. The Obama administration declines to discuss the scale of incidental collection. The NSA, backed by Director of National Intelligence James R. Clapper Jr., has asserted that it is unable to make any estimate, even in classified form, of the number of Americans swept in. It is not obvious why the NSA could not offer at least a partial count, given that its analysts routinely pick out "U.S. persons" and mask their identities, in most cases, before distributing intelligence reports. If Snowden’s sample is representative, the population under scrutiny in the PRISM and Upstream programs is far larger than the government has suggested. In a June 26 "transparency report," the Office of the Director of National Intelligence disclosed that 89,138 people were targets of last year’s collection under FISA Section 702. At the 9-to-1 ratio of incidental collection in Snowden’s sample, the office’s figure would correspond to nearly 900,000 accounts, targeted or not, under surveillance.

The perception of NSA overreach destroys law enforcement cooperation – it’s a larger internal link to terrorism
Schulhofer, 13 – professor of law at NYU (Stephen, ""Making Sense of the NSA Metadata Collection Program (Part II)", 11/8, http://justsecurity.org/2985/making-sense-nsa-metadata-collection-program-part-ii/) Efforts like the NSA sweeps actually undermine the counterterrorism effort itself. The reason is that these types of programs generate profound mistrust of government in general and of law enforcement in particular. We have already seen dramatic examples in the way that the Snowden revelations of our spying on allies has angered European leaders and endangered our working relationships with them. Although this breach eventually will be healed, alienation and mistrust among ordinary citizens is equally important, and it will not be so easily remedied. That mistrust, in turn, has a strong chilling effect on the willingness of law-abiding, loyal citizens to cooperate in the counterterrorism effort – for example by working with officials in local counterterrorism programs or by alerting law enforcement to various kinds of suspicious behavior. This dynamic has been demonstrated in several decades of extensive law enforcement research, including research focused specifically on counterterrorism policies and their impact on Muslim communities in the West. In one study, for example, Muslim-Americans in New York City were 61% less likely to report potentially suspicious precursors of terrorism when they felt that counterterrorism policies were being unfairly set and implemented. (See Schulhofer, Tyler & Huq, American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. Crim. L. & Criminology 335, 364-74 (2011).) This last point underscores the most important, but least appreciated, "given" of the counterterrorism enterprise. Because the consequences of a terrorist attack could be so catastrophic, citizens and public officials alike tend to support strong law enforcement more readily than they do in ordinary times. The perception is that strong measures are acceptable because the top priority must be to reduce the risk of attack. And strong measures, whatever their drawbacks, at least seem to offer ways to reduce that risk. The central lesson of smart law enforcement, however, is that there are no risk-free choices. Strengthening the powers of the executive enhances some of our defenses against terrorism, but it weakens others – many of which, including community trust and cooperation, are absolutely essential to reducing the dangers of terrorism. Against this background, we must – for the sake of our democracy and even for the sake of our physical security – find ways to dissipate the cloud of mistrust that now hangs over NSA surveillance.

Mass surveillance causes information overload
Eddington, 15 - Patrick Eddington is a policy analyst in homeland security and civil liberties at the Cato Institute. He was formerly a senior policy advisor to Rep. Rush Holt (D-N.J.) and a military imagery analyst at the CIA’s National Photographic Interpretation Center ("No, Mass Surveillance Won't Stop Terrorist Attacks" Reason, 1/27, http://reason.com/archives/2015/01/27/mass-surveillance-and-terrorism#.ltrezi:U8Io No, mass surveillance does not prevent terrorist attacks. It’s worth remembering that the mass surveillance programs initiated by the U.S. government after the 9/11 attacks—the legal ones and the constitutionally-dubious ones—were premised on the belief that bin Laden’s hijacker-terrorists were able to pull off the attacks because of a failure to collect enough data. Yet in their subsequent reports on the attacks, the Congressional Joint Inquiry (2002) and the 9/11 Commission found exactly the opposite. The data to detect (and thus foil) the plots was in the U.S. government’s hands prior to the attacks; the failures were ones of sharing, analysis, and dissemination. That malady perfectly describes every intelligence failure from Pearl Harbor to the present day. The Office of the Director of National Intelligence (created by Congress in 2004) was supposed to be the answer to the "failure-to-connect-the-dots" problem. Ten years on, the problem remains, the IC bureaucracy is bigger than ever, and our government is continuing to rely on mass surveillance programs that have failed time and again to stop terrorists while simultaneously undermining the civil liberties and personal privacy of every American. The quest to "collect it all," to borrow a phrase from NSA Director Keith Alexander, only leads to the accumulation of masses of useless information, making it harder to find real threats and costing billions to store. A recent Guardian editorial noted that such mass-surveillance myopia is spreading among European political leaders as well, despite the fact that "terrorists, from 9/11 to the Woolwich jihadists and the neo-Nazi Anders Breivik, have almost always come to the authorities’ attention before murdering." Mass surveillance is not only destructive of our liberties, its continued use is a virtual guarantee of more lethal intelligence failures. And our continued will to disbelieve those facts is a mental dodge we engage in at our peril.

Mass surveillance makes it less likely to detect terrorism – overload,
Tufekci, 15 - Zeynep Tufekci is an assistant professor at the University of North Carolina ("Terror and the limits of mass surveillance" Financial Times, 2/3, http://blogs.ft.com/the-exchange/2015/02/03/zeynep-tufekci-terror-and-the-limits-of-mass-surveillance/ But the assertion that big data is "what it’s all about" when it comes to predicting rare events is not supported by what we know about how these methods work, and more importantly, don’t work. Analytics on massive datasets can be powerful in analysing and identifying broad patterns, or events that occur regularly and frequently, but are singularly unsuited to finding unpredictable, erratic, and rare needles in huge haystacks. In fact, the bigger the haystack — the more massive the scale and the wider the scope of the surveillance — the less suited these methods are to finding such exceptional events, and the more they may serve to direct resources and attention away from appropriate tools and methods. After Rigby was killed, GCHQ, Britain’s intelligence service, was criticised by many for failing to stop his killers, Michael Adebolajo and Michael Adebowale. A lengthy parliamentary inquiry was conducted, resulting in a 192-page report that lists all the ways in which Adebolajo and Adebowale had brushes with data surveillance, but were not flagged as two men who were about to kill a soldier on a London street. GCHQ defended itself by saying that some of the crucial online exchanges had taken place on a platform, believed to be Facebook, which had not alerted the agency about these men, or the nature of their postings. The men apparently had numerous exchanges that were extremist in nature, and their accounts were suspended repeatedly by the platform for violating its terms of service. "If only Facebook had turned over more data," the thinking goes. But that is misleading, and makes sense only with the benefit of hindsight. Seeking larger volumes of data, such as asking Facebook to alert intelligence agencies every time that it detects a post containing violence, would deluge the agencies with multiple false leads that would lead to a data quagmire, rather than clues to impending crimes. For big data analytics to work, there needs to be a reliable connection between the signal (posting of violent content) and the event (killing someone). Otherwise, the signal is worse than useless. Millions of Facebook’s billion-plus users post violent content every day, ranging from routinised movie violence to atrocious violent rhetoric. Turning over the data from all such occurrences would merely flood the agencies with "false positives" — erroneous indications for events that actually will not happen. Such data overload is not without cost, as it takes time and effort to sift through these millions of strands of hay to confirm that they are, indeed, not needles — especially when we don’t even know what needles look like. All that the investigators would have would be a lot of open leads with no resolution, taking away resources from any real investigation. Besides, account suspensions carried out by platforms like Facebook’s are haphazard, semi-automated and unreliable indicators. The flagging system misses a lot more violent content than it flags, and it often flags content as inappropriate even when it is not, and suffers from many biases. Relying on such a haphazard system is not a reasonable path at all. So is all the hype around big data analytics unjustified? Yes and no. There are appropriate use cases for which massive datasets are intensely useful, and perform much better than any alternative we can imagine using conventional methods. Successful examples include using Google searches to figure out drug interactions that would be too complex and too numerous to analyse one clinical trial at a time, or using social media to detect national-level swings in our mood (we are indeed happier on Fridays than on Mondays). In contrast, consider the "lone wolf" attacker who took hostages at, of all things, a "Lindt Chocolat Café" in Sydney. Chocolate shops are not regular targets of political violence, and random, crazed men attacking them is not a pattern on which we can base further identification. Yes, the Sydney attacker claimed jihadi ideology and brought a black flag with Islamic writing on it, but given the rarity of such events, it’s not always possible to separate the jihadi rhetoric from issues of mental health — every era’s mentally ill are affected by the cultural patterns around them. This isn’t a job for big data analytics. (The fact that the gunman was on bail facing various charges and was known for sending hate letters to the families of Australian soldiers killed overseas suggests it was a job for traditional policing). When confronted with their failures in predicting those rare acts of domestic terrorism, here’s what GCHQ, and indeed the NSA, should have said instead of asking for increased surveillance capabilities: stop asking us to collect more and more data to perform an impossible task. This glut of data is making our job harder, not easier, and the expectation that there will never be such incidents, ever, is not realistic. Attention should instead be focused on the causal chain that led the Kouachi brothers on their path. It seems that the French-born duo had an alienated, turbulent youth, and then spent years in French prisons, where they were transformed from confused and incompetent wannabe jihadis to hardliners who were both committed and a lot more capable of carrying out complex violence acts than when they entered the prison. Understanding such paths will almost certainly be more productive for preventing such events, and will also spare all of us from another real danger: governments that know too much about their citizens, and a misguided belief in what big data can do to find needles in too-large haystacks.

Significant surveillance reform now disproves the link
Edgar, 4/13/15 - visiting fellow at the Institute and adjunct professor of law at the Georgetown University Law Center (Timothy, "The Good News About Spying" https://www.foreignaffairs.com/articles/united-states/2015-04-13/good-news-about-spying Despite high hopes for a fresh start on civil liberties, during his first term in office, Obama ratified and even expanded the surveillance programs that began under former President George W. Bush. After NSA contractor Edward Snowden began revealing the agency’s spying programs to The Guardian in 2013, however, Obama responded with a clear change of direction. Without great fanfare, his administration has made changes that open up the practices of the United States intelligence community and protect privacy in the United States and beyond. The last year and a half has been the most significant period of reform for national security surveillance since Senator Frank Church led the charge against domestic spying in the late 1970s. In 2013, at Obama’s direction, the Office of the Director of National Intelligence (ODNI) established a website for the intelligence community, IC on the Record, where previously secret documents are posted for all to see. These are not decades-old files about Cold War spying, but recent slides used at recent NSA training sessions, accounts of illegal wiretapping after the 9/11 attacks, and what had been highly classified opinions issued by the Foreign Intelligence Surveillance Court about ongoing surveillance programs. Although many assume that all public knowledge of NSA spying programs came from Snowden’s leaks, many of the revelations in fact came from IC on the Record, including mistakes that led to the unconstitutional collection of U.S. citizens’ emails. Documents released though this portal total more than 4,500 pages—surpassing even the 3,710 pages collected and leaked by Snowden. The Obama administration has instituted other mechanisms, such as an annual surveillance transparency report, that will continue to provide fodder for journalists, privacy activists, and researchers. The transparency reforms may seem trivial to some. From the perspective of an intelligence community steeped in the need to protect sources and methods, however, they are deeply unsettling. At a Brown University forum, ODNI Civil Liberties Protection Officer Alexander Joel said, "The intelligence community is not designed and built for transparency. Our culture is around finding our adversaries’ secrets and keeping our own secrets secret." Accordingly, until only a few years ago, the intelligence community resisted making even the most basic information public. The number of FISA court opinions released to the public between 1978 and 2013 can be counted on one hand. Beyond more transparency, Obama has also changed the rules for surveillance of foreigners. Until last year, privacy rules applied only to "U.S. persons." But in January 2014, Obama issued Presidential Policy Directive 28 (PPD-28), ordering intelligence agencies to write detailed rules assuring that privacy protections would apply regardless of nationality. These rules, which came out in January 2015, mark the first set of guidelines for intelligence agencies ordered by a U.S. president—or any world leader—that explicitly protect foreign citizens’ personal information in the course of intelligence operations. Under the directive, the NSA can keep personal information in its databases for no more than five years. It must delete personal information from the intelligence reports it provides its customers unless that person’s identity is necessary to understand foreign intelligence—a basic rule once reserved only for Americans. The new rules also include restrictions on bulk collection of signals intelligence worldwide—the practice critics call "mass surveillance." The NSA’s bulk collection programs may no longer be used for uncovering all types of diplomatic secrets, but will now be limited to six specific categories of serious national security threats. Finally, agencies are no longer allowed simply to "collect it all." Under PPD-28, the NSA and other agencies may collect signals intelligence only after weighing the benefits against the risks to privacy or civil liberties, and they must now consider the privacy of everyone, not just U.S. citizens. This is the first time any U.S. government official will be able to cite a written presidential directive to object to an intelligence program on the basis that the intelligence it produces is not worth the costs to privacy of innocent foreign citizens.

No data proves surveillance reduces terrorism risks
Kehl, 14 – Policy Analyst at New America’s Open Technology Institute (Danielle, "Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity" July, https://www.newamerica.org/oti/surveillance-costs-the-nsas-impact-on-the-economy-internet-freedom-cybersecurity/ So far, the purported benefits of the programs remain unsubstantiated. While intelligence officials and representatives of the Obama Administration have defended the merits of the NSA programs,18 they have offered little hard evidence to prove their value. To the contrary, initial analyses of the NSA’s bulk records collection program suggest that its benefits are dubious at best, particularly compared to the program’s vast breadth. A January 2014 study from the New America Foundation’s International Security Program, for example, concluded that "the government’s claims about the role that NSA ‘bulk’ surveillance of phone and email communications records has had in keeping the United States safe from terrorism… are overblown and even misleading."19 Similarly, in its review of the telephone records collection program under Section 215 of the USA PATRIOT Act, the Privacy and Civil Liberties Oversight Board (PCLOB) could not identify a single instance in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.20 The President’s Review Group concurred, emphasizing that "there is always a possibility that acquisition of more information—whether in the US or abroad—might ultimately prove helpful. But that abstract possibility does not, by itself, provide a sufficient justification for acquiring more information."21 Although the PCLOB did find in a separate report that "the information the [Section 702] program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence,"22 it provided no details and did not weigh those purported benefits against the various costs of the surveillance. Furthermore, its conclusions were undermined just days later when The Washington Post revealed that nine out of ten of the Internet users swept up in the NSA’s Section 702 surveillance are not legally targeted foreigners.23

Current counter-terrorism fails – lack of human intelligence outweighs
Eddington, 15 - Patrick G. Eggerton worked as a military imagery analyst at the CIA. He is policy analyst in homeland security and civil liberties at Cato Institute. (Patrick, "US wants to hack your phone because it doesn’t have real spies it needs" Reuters, http://blogs.reuters.com/great-debate/2015/02/23/the-fbi-was-for-encryption-before-it-was-against-it/ The best way to disrupt any organized criminal element is to get inside of it physically. But the U.S. government’s counterterrorism policies have made that next to impossible. The FBI, for example, targets the very Arab-American and Muslim-American communities it needs to work with if it hopes to find and neutralize home-grown violent extremists, including promulgating new rules on profiling that allow for the potential mapping of Arab- or Muslim-American communities. The Justice Department’s refusal to investigate the New York Police Department’s mass surveillance and questionable informant-recruitment tactics among immigrants in the Arab- and Muslim-American communities has only made matters worse. Overseas, the Cold War style of spying — relying on U.S. embassies as bases from which CIA and other U.S. government intelligence personnel operate — is increasingly difficult in the areas of the Middle East and southwest Asia undergoing often violent political change. Steinbach testified about this before the House Homeland Security Committee earlier this month. "The concern is in Syria," he explained, "the lack of our footprint on the ground in Syria — that the databases won’t have the information we need." Notice his reference to technology "databases" rather than the importance of the human element. The U.S. intelligence community’s emphasis should be on the spy on the ground who actually gathers critical information and makes any penetration of a terrorist organization possible. This problem is true for Yemen as well, as a recent Washington Post story highlighted: The spy agency has pulled dozens of operatives, analysts and other staffers from Yemen as part of a broader extraction of roughly 200 Americans who had been based at the embassy in Sana, officials said. Among those removed were senior officers who worked closely with Yemen’s intelligence and security services to target al-Qaeda operatives and disrupt terrorism plots often aimed at the United States. The CIA’s failure to field agents under nonofficial cover, or to recruit enough reliable local informants on the ground who could communicate securely with CIA handlers outside Yemen, is symptomatic of the agency’s failure to break with its reliance on embassy-based operations throughout that part of the world. Compromising encryption technology will do nothing to solve the intelligence community’s human-intelligence deficit. This is a problem the agency must address if it is ever going to be successful in finding and neutralizing terrorist cells overseas. It boils down to the fact that the FBI and the U.S. intelligence community have failed to adapt their intelligence-collection practices and operations to meet the challenges of the "new world disorder" in which we live. As former CIA officer Philip Giraldi has noted: [I]ntelligence agencies that were created to oppose and penetrate other nation-state adversaries are not necessarily well equipped to go after terrorists, particularly when those groups are ethnically cohesive or recruited through family and tribal vetting, and able to operate in a low-tech fashion to negate the advantages that advanced technologies provide. The CIA has repeatedly attempted — occasionally at high cost — to penetrate militant organizations like al Qaeda and Islamic State. Nonetheless, Washington’s overall counterterrorism bias in funding and manpower has been toward using the most sophisticated technology available as the key means of battling a relatively low-tech enemy. The FBI’s new anti-encryption campaign is just the latest phase in the government’s attempt to deny Islamic State and related groups the ability to shield their communications. If these militant groups were traditional nation-states with their own dedicated communications channels, we’d all be cheering on the FBI’s efforts. But the Internet has become the primary means for global, real-time communications for individuals, nonprofits, businesses and governments. So it should not be treated as just another intelligence target, which is certainly the FBI’s and Natural Security Agency’s current mindset. Using the legislative process to force companies to make defective electronic devices with exploitable communications channels in the hope that they will catch a tiny number of potential or actual terrorists is a self-defeating strategy. If implemented, the FBI’s proposal would only make all Americans more vulnerable to malicious actors online and do nothing to stop the next terrorist attack.

The government greatly exaggerates PRISM’s ability to stop terrorism
Sanchez, 13 – senior fellow on technology, privacy and national security and intelligence surveillance at Cato (Julian, "Epstein on NSA (Again) Part I: PRISM & the FISA Amendments Act" 6/28, http://www.cato.org/blog/epstein-nsa-again-part-i-prism-fisa-amendments-act Finally, Epstein and Loyola rather uncritically repeat the claim that the PRISM program surveillance pursuant to FAA authorities "is responsible for foiling about 40 of the 50 terrorist plots which the administration recently disclosed to Congress in classified briefings." If we scrutinize the government’s claims a bit more closely, we see that in fact NSA Director Keith Alexander claimed that PRISM intercepts had "contributed" to the disruption of 40 of 50 terrorist "events," mostly overseas, and judged this contribution to have been "critical" in 50 percent of these cases. When we examine some of the specific "events" government officials have discussed, however, it becomes clear that not all of these are "plots" at all—many seem to have involved funding or other forms of "material support" for radical groups, though in at least one such case the government appears to have claimed a "plot" to bomb the New York Stock Exchange where none really existed. (FBI Deputy Sean Joyce further told Congress that the "plot" must have been serious given that a jury convicted the plotters. But federal prosecutors themselves emphasized that the men "had not been involved in an active plot" and there was no jury trial: they were charged with "material support" and pled guilty.) Presumably at least some of these "events" did involve actual planned attacks, but knowing that PRISM surveillance was "critical" to disrupting half of them doesn’t in itself tell us much. The question is whether the same surveillance could have been conducted in these cases using authorities that existed before the FISA Amendments Act, or under narrower amendments to FISA. Since the bulk of these "events" appear to have been overseas, the traditional authority to intercept purely foreign communications without a warrant would seem to have sufficed, or at most required a legal tweak to accommodate stored data on U.S. servers used by foreigners to communicate with other foreigners. There is no evidence to suggest that the actually controversial part of the FAA—the revocation of the warrant requirement for interception of U.S.-to-foreign wire communications—made a necessary contribution in these cases. Indeed, as national security expert Peter Bergen has documented, the public record in the overwhelming majority of terror plots we know about shows that they were "uncovered by traditional law enforcement methods, such as the use of informants, reliance on community tips about suspicious activity and other standard policing practices." There is certainly such a thing as too much skepticism about government. But when officials make vague allusions to vital, secret successes in an effort to justify their own broad powers, there is also such a thing as too much credulity. So much for PRISM and the FISA Amendments Act. I’ll discuss what Epstein and Loyola say about the NSA’s metadata dragnet in a separate post.

Soft power solves all global problems – including terrorism
Stanley, 7 (Elizabeth Stanley, Ass Prof @ Georgetown, 7 "International Perceptions of US Nuclear Policy" Sandia Report, http://www.prod.sandia.gov/cgi-bin/techlib/access-control.pl/2007/070903.pdf) How important is soft power, anyway? Given its vast conventional military power, does the United States even need soft power? Some analysts argue that US military predominance is both possible and desirable over the long term, and thus soft power is not important. But a growing consensus disagrees. These analysts argue that soft power is critical for four reasons. First, soft power is invaluable for keeping potential adversaries from gaining international support, for "winning the peace" in Afghanistan and Iraq, and for convincing moderates to refrain from supporting extremist terrorist groups. Second, soft power helps influence neutral and developing states to support US global leadership. Third, soft power is also important for convincing allies and partners to share the international security burden.14 Finally, and perhaps most importantly, given the increasing interdependence and globalization of the world system, soft power is critical for addressing most security threats the United States faces today. Most global security threats are impossible to be countered by a single state alone. Terrorism, weapons of mass destruction (WMD) proliferation, failed and failing states, conflicts over access to resources, are not confined to any one state. In addition, disease, demographic shifts, environmental degradation and global warming will have negative security implications as well.15 All of these potential threats share four traits: (1) they are best addressed proactively, rather than after they develop into full-blown crises; (2) they require multi-lateral approaches, often under the umbrella of an international institution; (3) they are not candidates for a quick fix, but rather require multi-year, or multi-decade solutions; and, (4) they are "wicked" problems. Given these four traits, soft power is critical for helping to secure the international, multi-lateral cooperation that will be necessary to address such threats effectively.

The perception of protection alone prevents a larger backlash against presidential power
Small, 8 - United States Air Force Academy (Matthew, "His Eyes are Watching You: Domestic Surveillance, Civil Liberties and Executive Power during Times of National Crisis" http://cspc.nonprofitsoapbox.com/storage/documents/Fellows2008/Small.pdf In fact, reasonable arguments can be made that there is no clearly formed public mandate demanding the consideration of an American citizen’s right to privacy as important, if not more so, than national security. There exists only a concern of abridgement of their right, but this concern does not equate to motivating factor for government constraint. Studies show that from 1974 to 1983 Americans perceived little impact of privacy invasion, in its rare instances, on their lives (Katz and Tassone 1990, 125). Simultaneously, however, Americans did not, and still do not,17 favor wiretaps regardless of the presence of warrants (Katz and Tassone 1990, 130-131). Despite this, it appears that the public realizes the necessity of the power of the president to abridge certain rights in order to ensure national security. The public voices its concern but stops far short of forcing the government to restrain itself. Legislatures listen to the "broad climate of opinion" (Gandy Jr. 2003, 285) and that climate allows President Bush to act as he did.18 Like Abraham Lincoln, President Bush realized inadequacy within the government institutions tasked with keeping America safe through the collection of information on internal threats. In order to effectively combat terrorism, the NSA needed the ability to expand operations within the US. President Bush, in the manner of his Civil War predecessor, expanded his power to better equip the NSA to handle the threat. Court cases and legislation concerning wiretapping and intrusive domestic surveillance techniques only establish guidelines to give degrees of protection, but more importantly the perception of protection.19 This still leaves the president with the room to maneuver within these guidelines to maintain national security at the expense of complete civil liberty. Justice Black’s dissensions shed more light on this paradox that even though the courts deemed warrantless wiretaps an invasion of privacy, they still continue. There remains those of the persuasion that wiretapping is a viable information gathering tool and admissible in court with or without an accompanying warrant because the Forth Amendment is not a protection of privacy. In American history, domestic surveillance, later to include electronic surveillance, proved necessary to enforce those laws passed by Congress that quelled rebellion and silenced dissidents. Presently, the USA Patriot Act and other similar legislation requires an increase in domestic electronic surveillance in order to combat terrorism; so in the interest of adhering to the letter and the spirit of the law, President Bush must expand the use of domestic electronic surveillance. President Bush took the precedent set by his predecessors and acted accordingly when the United States plummeted into turmoil. What is important now is for the president to realize when his power has reached its limit. The crux of the problem lies in justifying the remainder of a threat to American citizens. While the attacks of 9/11 still linger within the American psyche and legislation supports executive action, this task is less daunting. American citizens can stand some breaches in privacy but those breaches must not be permanent. Popular sentiment and legislation may currently favor expanded presidential power but President Bush, or any subsequent president, would be remiss in assuming that it will remain as such for the duration of the struggle against international terrorism. The fickle nature of public and Congressional support in the domestic intelligence realm thus requires a great deal of prudence on the part of the president. There are some indicators, albeit vague ones, of when domestic surveillance policy should yield to citizens’ right to privacy. Following the progression witnessed during the Cold War it would be reasonable to expect that opposition to presidential power would first come in the form of Supreme Court rulings striking down certain powers as unconstitutional followed by public opinion more heavily favoring the right to privacy and finally, legislation codifying judicial rulings in accordance with public opinion. Court cases challenging the president’s power under the USA Patriot Act have already surfaced. Both the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have already filed formal complaints against the executive branch. The CCR, in particular, directly attacked the president’s power to conduct electronic surveillance without a court order as criminal under the provisions of FISA. Similarly, the Electronic Frontier Foundation sued AT&T for violating free speech and the right to privacy by aiding the NSA. Although the president has fought these allegations, fighting most vehemently in the AT&T case, none of the cases reached the Supreme Court. The legal actions precipitated neither legislative response nor changes in executive policy. If, however, the populous feels so compelled as to bring the matter before the Supreme Court, the president risks losing the policy initiative as one or more unfavorable rulings may force Congress to act on behalf of the right to privacy. The president must take care to ensure that domestic surveillance policies are commensurate with the actual national security threat. Although the war has no foreseeable end, the president’s actions must have one. That end must be in concert with Congress and must demonstrate to the American people that the security of the US, and by default their own freedom, is better because of it. If not, the president risks losing all legitimacy and having his power constrained to the point where neither he nor the agencies below him can effectively protect the nation.

Perm do both – the FAA includes ex post review mechanisms that solve the link
Blum, 9 (Stephanie, "WHAT REALLY IS AT STAKE WITH THE FISA AMENDMENTS ACT OF 2008 AND IDEAS FOR FUTURE SURVEILLANCE REFORM" 18 B.U. Pub. Int. L.J. 269, Spring, lexis) If the Note's assertions are true, the FAA has one advantage over the traditional FISA in that the FAA relies more on ex post mechanisms. For example, the FAA imposes reporting requirements to Congress n253 and inspector general reviews, n254 rather than relying solely on ex ante warrants issued by a secret court. While under the FAA the FISC issues ex ante certifications concerning the executive's targeting and minimization procedures, these are programmatic reviews and not based on individualized suspicion of suspects as is required by traditional FISA. Given the arguably limited effectiveness of ex ante warrants issued by a secret court based on one-sided evidence, the FAA's greater reliance on ex post review mechanisms could be viewed as a significant improvement over traditional FISA. As Georgetown law professor Neal Katyal observed, "reporting requirements are powerful devices" that promote external checks on excessive executive power. n255 In contrast, the high degree of judicial deference in ex ante review may simply result from quality applications. Applications for traditional FISA warrants must survive considerable review by the executive branch prior to submission to the FISC; hence, it can be presumed that some, if not many, applications are not brought. As Alan Dershowitz notes, "although the FISA court has only rarely denied requests for national security wiretaps, the very existence of this court and the requirement of sworn justification serves as a check on the improper use of the powerful and intrusive technologies that are permitted in national security cases." n256 Hence, there are two ways to look at ex ante review: one could either argue that FISA "forces the executive to self-censor its requests," or that the judiciary is "acting merely as a 'rubber stamp.'" n257 The reality is probably a little of both. The FAA contains both ex ante and newly imposed ex post review mechanisms. While the ex ante review under the FAA is not based on individualized determinations about suspects, but rather focuses on programmatic reviews, because of its heavy ex post reporting mechanisms, it seems that the FAA creates [*308] a balanced structure that may prevent executive branch abuse while still protecting the nation from another terrorist attack.

Ex post review alone fails – courts lack institutional expertise to review surveillance risks
Harvard Law Review, 8 – no author cited, "SHIFTING THE FISA PARADIGM: PROTECTING CIVIL LIBERTIES BY ELIMINATING EX ANTE JUDICIAL APPROVAL" http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/shifting'the'FISA'paradigm.pdf 2. Judicially Ordered Notice to Wrongfully Surveilled Persons. — Another approach would provide a stronger statutory cause of action for improper surveillance, adding an ex post review function to the FISC. Such a scheme would "provide compensation to individuals subject to the most grievous instances of unlawful electronic surveillance" by giving the FISC power to "screen for these violations and discretionarily notify an individual," and then compensate him or her if appropriate.82 This approach is commendable for attempting to remedy the lack of adversariality and the fact that improper surveillance that occurs after a FISC order is issued — when either changed circumstances or invalid governmental motives never come to light because the government does not attempt criminal prosecution — may go unchecked.83 But the suggested remedy, to broaden notice by making a "distinction . . . between disclosure that concretely threatens national security and disclosure that would merely embarrass the government," 84 seems unworkable. Such line drawing necessarily involves crucial policy determinations that the courts are in a bad institutional position to make. Moreover, the ability of the remedy to provide a check on the government seems at best dubious and could even be viewed as permitting the government to purchase the ability to invade constitutional liberties.

Ex post is impossible to enforce and amounts to a rubber stamp
Berman, 14 - Visiting Assistant Professor of Law, Brooklyn Law School (Emily Berman, Regulating Domestic Intelligence Collection, 71 Wash. & Lee L. Rev. 3, http://scholarlycommons.law.wlu.edu/wlulr/vol71/iss1/5 The suggestion that the FISC approximate the role of traditional judicial review of agency decision making to impose constraints on discretion will also fail to result in the preservation of civil liberties. As an initial matter, it is unclear what the extent of the FISC’s review might be. Traditional judicial review of administrative rules asks whether an agency’s action is consistent with the Constitution and its statutory mandate or whether it is arbitrary or capricious.319 But when it comes to most intelligence-collection rules, there is no constitutional or statutory standard against which a court could measure agency compliance.320 One proposed solution to this baseline problem is to have the FISC review policy for whether it is consistent with the intelligence agencies’ own stated objectives.321 Again, this proposal fails to account for the fact that when the intelligence community is left to determine the rules of its own conduct, concerns other than security will get short shrift. By asking intelligence agencies to identify their own objectives and then subjecting their efforts to meet those objectives to judicial review would replicate the current situation—where the constraints on agencies are limited to those that they agree to place on themselves—but with the added legitimating feature of judicial imprimatur. Another barrier to enlisting the FISC in intelligencecollection governance is that the intelligence-collection activities governed by the Guidelines extend beyond the scope of the FISC’s jurisdiction. The FISC oversees electronic foreign intelligence surveillance and physical searches of premises connected with foreign powers.322 It has no role in overseeing purely domestic surveillance of Americans absent probable cause that those Americans are agents of a foreign power.323 The content of the Guidelines and the activities they regulate—such as physical surveillance of Americans, infiltration of religious or political groups, the use of informants, requests for internet history— rarely fall within the FISC’s jurisdiction. Individuals who wish to challenge FBI activity—if they can establish standing—do not have access to the FISC.324 Thus, it is unclear what role the FISC could play in reviewing many activities in which the FBI engages. The FISC, too, is likely to share the FBI and ODNI’s bias toward the security mission. Unless a recipient of a FISC order challenges the legitimacy of that order, proceedings in the FISC are not subject to an adversarial process.325 Instead, like magistrate judges considering whether to issue traditional search warrants, FISC judges review unopposed government applications for surveillance orders.326 The FISC thus receives only the Justice Department’s perspective—heavily informed by the FBI’s perspective—about any given rule. This concern is compounded by the fact that even the judges themselves largely hail from the law enforcement community—twelve of the fourteen judges who have served this year are former prosecutors and one is a former state police director.327 Moreover, once selected by the Chief Justice of the Supreme Court for FISC service, these judges are exposed to a constant stream of government applications to engage in foreign intelligence collection detailing just how dangerous the world can be and the important role that intelligence collection plays in combating those dangers.328 FISC involvement thus serves only to reinforce the pro-security perspective already embedded in the development of domesticintelligence- collection policies.

Empirically true
Brand, 15 - Dean and Professor Emeritus and Chairman of the Center for Law and Global Justice, University of San Francisco School of Law (Jeffrey, "Eavesdropping on Our Founding Fathers: How a Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis" 6 Harv. Nat'l Sec. J. 16 Harv. Nat'l Sec. J. 1, lexis) That prediction also came to pass. In 2005, the New York Times revealed the Bush Administration's Terrorist Surveillance Program (TSP) that authorized warrantless surveillance on a massive scale that clearly violated the dictates of FISA and the Patriot Act. Initially, the Bush Administration argued that the program was legal, citing the 9/11 attacks and national security emergencies. Ultimately, a simpler path was taken: the Administration went to and received ex post facto approval from the FISA court. n189 A moment of accountability—the Bush Administration's acknowledgement that it had engaged in illegal surveillance—was side-stepped by simply seeking the approval of the court charged with monitoring the illegal activity, thereby making the Executive Branch unaccountable yet again. n190 The structure of the FISA court—shrouded in secrecy and devoid of any opposition to the government's position—also took its toll on the accountability of the Executive Branch to the Congress, a consequence that also had been roundly predicted during the FISA debates. Senators Abourezk, Hart, and Mathias candidly acknowledged throughout the debates over S. 3197, "In depth congressional oversight is a crucial element of the safeguards which justify embarking on the [FISA] legislative scheme." n191 Representative Ertel hoped that [*47] FISA's congressional reporting requirements would serve that end. n192

Secrecy makes meaningful ex post review impossible
Setty, 15 - Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law (Sudha, "Surveillance, Secrecy, and the Search for Meaningful Accountability" 51 Stan. J Int'l L. 69, Winter, lexis) The extent of congressional knowledge regarding the NSA Metadata Program is not fully known to the public and has been the subject of significant debate. Nonetheless, even assuming that Congress was sufficiently informed as to the potential reach of the PATRIOT Act with regard to surveillance n59 and, therefore, that the statutory authority for the bulk data collection and storage was sound, the ability of Congress to effect significant and meaningful ex post oversight appears to be severely limited. Historically, congressional hearings and investigations have been a powerful tool to rein in executive branch overreaching. n60 However, it seems that the extreme secrecy surrounding the NSA surveillance programs undermined the efficacy of these oversight powers, to the point that they may have been reduced to an ersatz form of accountability. One prominent example stems from a Senate oversight hearing on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if the NSA was systematically gathering information on the communications of millions of Americans. n61 Clapper denied this, yet subsequent revelations confirmed that the broad scope of the data collection included metadata for telephonic communications, as well as content data for emails, texts, and other such writings. n62 After public discussion of the discrepancy in his testimony, Clapper commented that he gave the "least most untruthful" answer possible under the circumstances. n63 Senator Wyden expressed disappointment and frustration that even while under oath at an oversight hearing, Clapper misled the Senate. n64 The ability for congressional oversight is further hampered by a general lack of access to information about the details of the NSA Metadata Program n65 and [*82] lack of ability to discuss publicly whatever knowledge is shared with Congress. n66 In fact, it remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the lapses in NSA procedure until after such information was leaked to news sources. n67 Further revelations indicate that administration statements made to Congress even after the Snowden disclosures were not entirely accurate. n68 These examples are not determinative, but taken together, they raise significant doubt to the extent of accurate information regarding surveillance programs being made available to congressional oversight committees, and whether the oversight committees can function as effective accountability measures n69 without the benefit of illegally leaked information such as the Snowden disclosures.

FISC review only has a weak effect on executive deterrence
Setty, 15 - Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law (Sudha, "Surveillance, Secrecy, and the Search for Meaningful Accountability" 51 Stan. J Int'l L. 69, Winter, lexis) The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to matters of foreign intelligence gathering; its judges are appointed in the sole discretion of the Chief Justice of the United States Supreme Court; its proceedings are secret; its opinions are often secret or are published in heavily [*83] redacted form; and its process is not adversarial as only government lawyers make arguments defending the legality of the surveillance being contemplated. n70 Many of these differences bring into doubt the legitimacy of the court, its ability to afford adequate due process regarding civil liberties concerns, and its ability to uphold the rule of law in terms of government accountability. Compounding this legitimacy deficit is the FISC's own loosening of the relevance standard under Section 215 of the PATRIOT Act such that the FISC has found that bulk data collection without any particularized threat or connection to terrorism is legally permissible. n71 Historically, the FISC has rejected NSA surveillance applications too infrequently to be considered a substantial check on government overreach as an ex ante matter. n72 As an ex post matter, it is unclear to what extent the FISC's work guarantees any meaningful accountability over NSA surveillance activities. On the one hand, because the FISC lacks an adversarial process and has no independent investigatory authority, the FISC only addresses ex post compliance problems when the government itself brings the problem to the court's attention. n73 As such, FISC judges rely on the statements of the government as to the government's own behavior and lack the authority to investigate the veracity of the government's representations. n74 For example, in 2011, the FISC found one aspect of the surveillance program - brought to its attention months after the program went into effect n75 - to be unconstitutional. n76 Additionally, in one declassified opinion, the FISC critiques the NSA's sloppy over-collection of metadata of U.S. communications, and questions the efficacy of bulk data collection as a national security measure. n77 At one point, the FISC sanctioned the NSA for overreaching in [*84] saving all metadata and running daily metadata against an "alert list" of approximately 17,800 phone numbers, only 10% of which had met FISC's legal standard for reasonable suspicion. n78 On such occasions, the administration has modified problematic aspects of the surveillance and continued forward without further impediment by the FISC. n79 On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISC n80 indicates at least some internal policing of these programs. However, this is hardly an effective substitute for external review and accountability mechanisms that would ensure that consistent controls are in place. Further, the self-reporting of these compliance incidents does not in any way allow for discourse over the larger structural questions surrounding the surveillance programs. Finally, the ability of the FISC to act as an effective check on NSA overreaching is severely limited by the secrecy and lack of information available to the FISC judges. Judge Reggie B. Walton, formerly the Chief Judge of the FISC, lamented that "the FISC is forced to rely upon the accuracy of the information that is provided to the Court ... . The FISC does not have the capacity to investigate issues of noncompliance ... ." n81 The ability of the NSA to not only gather and retain bulk metadata, but also to build in backdoor access into data files despite private encryption efforts has been largely sanctioned by the FISC based on NSA representations as to the seriousness of the security threats posed to the nation. n82 In an environment in which there is a tremendous fear of being held responsible for any future terrorist attack that might occur on U.S. soil, n83 and in which there is a [*85] information deficit for those outside of the intelligence community, the FISC has consistently deferred to the NSA's assertions and has not been able to act as an effective accountability mechanism.

Ex post fails – hindsight bias and secrecy
Morgan, 8 - Law Clerk to the Honorable Samuel H. Mays, Jr., United States District Court for the Western District of Tennessee. J.D., 2007, New York University School of Law (Alexander, "A BROADENED VIEW OF PRIVACY AS A CHECK AGAINST GOVERNMENT ACCESS TO E-MAIL IN THE UNITED STATES AND THE UNITED KINGDOM" 40 N.Y.U. J. Int'l L. & Pol. 803, Spring, lexis) Ex post judicial review is compromised by hindsight bias. n192 Strict reliance on ex post approaches presupposes that judges charged with determining the sufficiency of original [*836] search justifications are capable of ignoring potentially inculpatory evidence since uncovered. As with the notion of a disinterested Home Secretary, this appears at odds with human nature. n193 The delay or outright denial of notice to search targets minimizes the efficacy of judicial review. Without notice, "the majority of interferences with privacy will be undetected," and most will only learn that they were surveillance targets if criminal charges follow. n194 By implication, the true extent of surveillance (and any abuse) remains unknown. n195 Untimely notice also compromises the value of judicial review because the court will be privy to the fruits of a search already conducted and thus susceptible to hindsight bias. In the United Kingdom, the Home Secretary never gives notification, n196 and delayed notice is fast growing in the United States through the use of "sneak and peek" warrants. n197 Gauging the scope of surveillance in the United Kingdom is further frustrated by non-responsive Tribunal decisions which "simply state whether the determination is favourable ... thus, not necessarily revealing [if] there has been any interception or its details." n198 [*837] Independent monitors such as the Interception of Communications Commissioner are prone to hindsight bias and also suffer from distinct shortcomings due to their generalized function. Their general charge allows them to uncover and address (through recommendations to Parliament) systemic defects more easily, unlike courts, which are limited to case-by-case review. The converse is that monitors lack authority to remedy any specific abuses they uncover. n199 Above all, commentators characterize monitors as helpless because there are too many authorizations to oversee, such that "not all authorisations are subject to scrutiny; only those selected at random." n200 In sum, the government's power to withhold notice precludes targets from seeking judicial review, and the result is that many authorizations are never held "to any form of independent scrutiny." n201

Section 702 is overbroad – can’t solve reputational costs without curtailing surveilance
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy & Technology (Greg, "COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA" 4/11) Section 702 permits the government to compel communications service providers to assist with intelligence surveillance that targets non-U.S. persons (persons other than U.S. citizens and lawful permanent residents) reasonably believed to be abroad. Though it is defended as a necessary counterterrorism and national security power, Section 702 broadly authorizes collection, retention, and use of communications content unnecessary for national security and unrelated to counterterrorism. The overbroad use of Section 702 infringes upon the privacy rights of both U.S. persons, and of non-U.S. persons abroad, has already caused some damage to the American tech industry globally, and could cause much more.3

Section 702 monitors any foreign target regardless of national security interest – creates an enormous perception of abuse
Nojeim, 14 - Director, Project on Freedom, Security & Technology at the Center for Democracy & Technology (Greg, "COMMENTS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD REGARDING REFORMS TO SURVEILLANCE CONDUCTED PURSUANT TO SECTION 702 OF FISA" 4/11) The FISA provisions that govern intelligence surveillance of targets in the U.S. permit the government to engage in electronic surveillance to collect "foreign intelligence information." For purposes of surveillance that targets a non-U.S. person, it is defined broadly as: (1) information that relates to the ability of the U.S. to protect against a hostile attack, espionage, sabotage or international terrorism or proliferation of weapons of mass destruction; or (2) information with respect to a foreign territory or foreign power (a foreign government, political party, or entity controlled by a foreign government, or a foreign terrorist organization) that relates to the security of the U.S. or to the conduct of U.S. foreign affairs.4 When the government applies to the Foreign Intelligence Surveillance Court (FISC) for permission to conduct surveillance of targets in the U.S., it must certify that a significant purpose of the surveillance it will conduct is to collect foreign intelligence information.5 Because "foreign intelligence information" is defined so broadly, and because the FISC never actually rules on whether the significant purpose test is met, the purpose limitation that governs FISA surveillance of targets in the U.S. is easily met. FISA surveillance in the U.S. is instead effectively constrained by an additional requirement: the requirement that the government prove to the FISC that there is probable cause to believe the target of surveillance is a terrorist, spy, or other agent of a foreign power. Thus, Congress effectively constrained FISA surveillance of targets in the U.S. by permitting that surveillance to target only a narrow class of persons and entities. For surveillance of people reasonably believed to be outside the U.S., Section 702 adopts the broad purpose requirement, but couples it with a broad class of surveillance targets. Section 702 is not constrained by the requirement that the target be an agent of a foreign power. Instead, the target need only be a non-U.S. person reasonably believed to be abroad. Effectively, Congress borrowed the broad purpose for FISA intelligence surveillance (collect "foreign intelligence information") and applied it to surveillance abroad without limiting the class of potential targets to "agents of a foreign power." This has prompted concern globally that surveillance under Section 702 is broadly directed at individuals not suspected of wrongdoing, and could include targeting based at least in part on political activities. A peaceful protest at a U.S. base in Germany or a demonstration against rising food prices in India "relate to" U.S. foreign policy; non-U.S. persons involved in those protests could be monitored under Section 702. A 2012 cloud computing report to the European Parliament included a finding that under Section 702, it is lawful in the U.S. to conduct purely political surveillance on non-U.S. persons’ data stored by U.S. cloud companies.6 Such actions raise serious human rights concerns. Further, fear of the mere possibly that this overbroad surveillance is occurring has significantly damaged the U.S. tech industry abroad.