FISA Court Af

1AC

Plan
The United States federal government should curtail its
domestic surveillance by authorizing an Office of the
Special Advocate to challenge domestic surveillance
requests in the Foreign Intelligence Surveillance Court.

Democracy Advantage
The current FISA court is a rubber stamp that enables
mass domestic surveillance this undermines democracy,
due process, and the rule of law
Ben ONeill, 2/22/2014, [lecturer at the University of New South Wales in
Australia], Mises Institute: Austrian Economics, Freedom, and Peace. FISA,
the NSA, and Americas Secret Court System, https://mises.org/library/fisansa-and-america%E2%80%99s-secret-court-system, mm
We begin our analysis of the legal machinations of the NSA by looking at the secret court system which
supposedly practices judicial oversight over the agency.

Surveillance Court

This Foreign Intelligence

(FISA Court1 or FISC) was created in 1978 as a result of recommendations of

was
purportedly created as an additional safeguard against unlawful
activity by US intelligence agencies, which had been found to have committed various
kinds of unlawful surveillance activities. The goal of the FISA court, as originally conceived,
was to place judicial oversight on the surveillance activities of the
NSA, by requiring the agency to obtain warrants from the court
before intercepting communications. This was to place the NSA under the same kind of
the Church Committee, composed after a series of intelligence scandals in the 1970s.2The court

legal constraints as regular police, with requirements for evidence being put before a court in order to
obtain a warrant for search. However, unlike the court system for regular police warrants, the judicial
system for the NSA is far more secretive. In order to give judicial scrutiny to preserve the secrecy of NSA
activities, the FISA court meets in secret with only government representatives present at its proceedings.
The hearings are closed to the public and the rulings of the judges are classified, and rarely released after

The judges in
the FISA court hear applications from a representative of the NSA, and ask
questions, allowing the agency to amend their applications to meet any shortcomings. Adversarial
argument from other parties is absent, since there are no other parties at the
the fact. (Some rulings have been partly declassified, but are still heavily redacted.)

hearing. Some of this is similar to the operation of public courts for regular police warrants, but there is a
great deal more secrecy, and a great deal more power granted to the government. One distinction
between the FISA Court, and regular public courts issuing warrants for police searches, is the type of
warrant system that is practiced under the FISA Court. For police searches it is generally the case that the
police will apply for a warrant to surveil a particular person, or a small group or people, and give some
evidence of probable cause for a search, i.e., the police must convince the court that there is reasonable
suspicion for surveillance on a case-by-case basis. Under the FISA Court the

warrants for the

NSA are much wider in scope. Many of the warrants authorize the collection of

communications data on a particular phone carrier, capturing the communications of millions of people
over sustained periods of time. Other warrants are procedure-based warrants which authorize a
proposed data-collection process, subject to various minimization procedures designed to confine the

These generally allow mass data-collection on a population ,

with application of the minimization procedures left to the NSA. As
with other law enforcement authorities, the record of the NSA in obtaining
warrants from the FISA court is imposing. In the 33,949 applications that were
resolved from 1979-2012, only 11 were rejected (0.0324%).3 (The rejection rate for
querying of data.

other wiretap applications in state and federal courts is similarly low.4Though originally designed merely to
issue secret warrants for surveillance, the powers of the FISA Court have expanded over time, with a large
expansion of power occurring in 2008, when the Bush administration retroactively immunized any
electronic communication service provider from any liability for their complicity in unlawful NSA

the powers of the

FISA Court have expanded to the point that it has undertaken quasiconstitutional proceedings, allegedly validating the surveillance
programs as being within the constitutional powers of the US
surveillance.5 In order to deal with a large number of warrant applications,

government. Even in this latter function, the hearings have been closed to the public and have been
conducted with only the government giving arguments to the court. Hence, the government has had free
rein to be the only party represented at hearings which have purported to determine its own legal powers

the FISC
has basically become a parallel Supreme Court, but one which
under the US Constitution. For this reason, one commentator has noted that, [i]n truth,

operates in almost total secrecy .6 The efect of this secret court

system has been to allow the NSA to build up 34 years of judicial
precedents in favor of its expansive powers, with a large body of purported
constitutional findings validating its own power. All of this has been conducted behind closed doors,
without the inconvenience of opposing argument from other parties. Perhaps unsurprisingly ,

this
secret court system has opened up opportunities for judicial capture
for the NSA. As noted by legal scholar Elizabeth Goitein, [l]ike any other group that meets in secret

behind closed doors with only one constituency appearing before them, theyre subject to capture and
bias.7 For former FISA court judge James Robertson, these remarks have rung true to such an extent that
he has publicly complained about the ex parte nature of the FISA court proceedings.8 According to this

[w]hat FISA does is not adjudication, but

approval. This works just fine when it deals with individual
applications for warrants, but the 2008 amendment has turned the
FISA court into an administrative agency making rules for others to follow.9 To
the extent that judicial capture has been resisted by the court, it has
nonetheless functioned as a compliant entity to the NSA , through the fact
former member of the court,

that any criticisms against the unlawful actions of the NSA have been kept secret, and have been without

When the Chief Judge of the FISA court

was alerted to a mass of systematic misrepresentations to the court
by the NSA, the consequence was a stern rebuke in a classified
any serious legal consequence to the agency.

memorandum that was not available to the public until years later.10 (In fact, the opinion was only
declassified due to public pressure as a result of the Snowden leaks. If not for these leaks it is likely that
the opinion would still remain classified today.) In March 2009, following breaches of the courts orders, the
Chief Judge found that the testimony of General Keith Alexander setting out the NSA interpretation of the
courts orders strained credulity by interpreting a part of the orders as effectively being optional.11 He
also found that [t]he minimization procedures proposed by the government in each successive application
and approved and adopted as binding by the orders of the [FISA Court] have been so frequently and
systematically violated that it can fairly be said that this critical element of the overall [metadata] regime
has never functioned effectively.12Despite lacking confidence that the NSA would comply with future
orders, the Chief Judge allowed the mass collection of metadata to continue, and allowed the government
to continue to apply for access to this data on a case-by-case basis, or for imminent threats, until such
time as they completed a review of their procedures. The NSA completed their review and the regular

Some
commentators have taken this judicial rebuke by the FISA court as
proof of the toughness of the court on the NSA, but in fact, it is
proof of their subservience to the agency. Despite finding that there had been
systematic misrepresentations to the court by the NSA, no action was taken against
officials who had given false statements to the court. There was no
operation of the mass-surveillance program was restored shortly afterward.

disciplinary action of any kind against personnel of the agency, and the rebuke of the court remained a
private classified document, only available to the agency being criticized. NSA officials who had
systematically misled the court were free to read this rebuke knowing that no consequence would follow
from it, since no member of the public could read about their actions. When the matter was later exposed
to the public (as a result of the Snowden leaks) the Chief Judge complained that his court ... is forced to

The surveillance
programs of the NSA continued, with ongoing approval by the court,
after a short period of technical review conducted by the NSA. Such toughness as this is
what passes for checks and balances within the system of secret
courts. The dubious nature of the FISA court is well-understood
within the wider judicial system, a fact which was clear in the Klayman preliminary
rely upon the accuracy of the information that is provided to the Court.13

judgment. The stark distinction between the secretive FISA court and the public court system was
recognized by Judge Leon when he observed that, ... no court has ever recognized a special need

sufficient to justify continuous, daily searches of virtually every American citizen without any particularized
suspicion. In effect, the government urges me to be the first non-FISC judge to sanction such a
dragnet.14It is notable here that Judge Leon felt that it was significant that he was the first non-FISC
judge to consider the matter, a tacit recognition that the judgments of the FISC cannot be regarded as true

surveillance programs
by a secret court violates the requirement for due process of law .
According to Barnett, [s]ecret judicial proceedings adjudicating the rights
of private parties, without any ability to participate or even read the
legal opinions of the judges, is the antithesis of the due process of
constitutional scrutiny. Legal scholar Randy Barnett has argued that

law . Though we refer to such an institution as a court system in the

positive-law sense, in truth, such a court lacks many of the characteristics of
a proper court. It is in fact more akin to bodies such as the English
Star Chamber, which conducted judicial hearings in secret, issuing
secret rulings afecting parties who were not represented in its
hearings.

The USA FREEDOM Act didnt sufficiently reform the FISA

Court it will still show massive deference to the
government for surveillance requests
Max Rosenthal, 6/12/2015, MotherJones, Governments secret
surveillance court may be about to get a little less secret,
http://www.motherjones.com/politics/2015/06/usa-freedom-act-fisa-courttransparency, mm

When the USA Freedom Act was passed last week, it was hailed as the first major limit on NSA
surveillance powers in decades. Less talked about was the law's mandate to open a secret intelligence
court to unprecedented scrutiny. The Foreign Intelligence Surveillance Court, often known as the FISA
court after the 1978 law that created it, rules on government requests for surveillance of foreigners. Its 11
federal judges, appointed by the chief justice of the Supreme Court, consider the requests one at a time on
a rotating basis. In closed proceedings, they have approved nearly every one of the surveillance orders
that have come before the court, and their rulings are classified. Privacy advocates say those secret
deliberations have created a black box that keeps the public from seeing both why the government makes
key surveillance decisions and how it justifies them. But the new law passed by Congress last week may
shed some new light on these matters. "The larger step that the USA Freedom Act accomplishes is that it is
bringing those things out to the public," says Mark Jaycox, a legislative analyst at the Electronic Frontier
Foundation, a digital privacy advocacy group. The new law mandates that FISA court rulings that create
"novel and significant" changes to surveillance law be declassifiedand it is up to the judges to determine
if the cases reach that thresholdthough only after review by the attorney general and the director of
national intelligence. While FISA court rulings have been leaked and occasionally declassified, the new law
marks the first time Congress has attempted to make the court's decisions available to the public. The law

requires the court to create an advisory panel of privacy experts, known as an

amicus panel. When a judge considers what she considers a "novel or significant" cases, she will
call on that panel to discuss civil liberties concerns the surveillance requests brings up. Judges can
also use the panel in other cases as they see fit. The USA Freedom [act] doesn't
lay out how the amicus panel will work in detail. But privacy advocates say its mere
also

existence will be an important step. "We know we will see the order and potentially that an amicus [a
privacy panel member] is going to be there arguing against it. Those things are huge to us," Jaycox says.
But while the USA Freedom Act calls for important FISA court rulings will be made public, there's no
guarantee they will be. For one, final say on declassification still rests with the executive branch rather
than the judges themselves. And while the judges' input on the cases will still be importantif not
finalsays Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for
Justice, they

have already shown a " sort of reflexive deference" to the

government . In fact, advocates say, judges have always had the powers
outlined in the new lawto bring in consultants or recommend declassifying their opinions.
"This is something the FISA court could have done all along, " says Amie

Stepanovich, the US policy manager for privacy advocacy group Access. "They always could have chosen
to be more transparent in their proceedings." Privacy advocates hope that having these pre-existing
powers now written into law means that judges will actually use them, but even that isn't for certain. "I

the transparency provisions are going to be efective for the judges

who are inclined to support them and are going to be inefective for
the judges who aren't," says Steve Vladeck, a professor at American University's Washington
College of Law. There are other procedural moves the government could
use to limit what information is made public. The court could simply
issue summaries of decisions that don't include their key parts, or the executive
branch could heavily redact them. "In theory, the executive branch could
comply with this part of the statute by redacting 99 percent everything
but one sentence, essentiallyof an opinion," Goitein says.
think

The FISA court structure is outdated it was never meant

to approve non-individualized, mass surveillance like
Section 215 and Section 702 this leads to unchecked
domestic surveillance and abuses by the intelligence
community only a public advocate can restore the
balance
Nadia Kayyali, 8/15/2014, Electronic Frontier Foundation, what you need
to know about the FISA court - and how it needs to change,
https://www.eff.org/deeplinks/2014/08/what-you-need-know-about-fisa-courtand-how-it-needs-change, mm

the FISC must change, three stand out. First, FISA has
become a drastically more complicated law than when it was originally passed in
1978, and the role of the FISC has accordingly grown far beyond the
bounds of what Congress envisioned. Second, because of those changes, the FISC has
Among the myriad reasons

created a huge body of secret policy and legal precedent. Finally, the courts reliance on the government
to provide all the necessary information needed to fairly make decisions is not sufficient, something that is
painfully obvious as one reads the FISC decisions themselves. Its also something EFF has recently
experienced in our NSA cases. The courts mandate has expanded exponentially since 1978, especially

Section 215 of the PATRIOT Act and Section 702

of the FISA Amendments Actboth of which were passed decades after the initial FISA
granted far broader spying authorities to the government than had
existed before, and the government has claimed the right to conduct
mass surveillance under these provisions. What Congress originally
authorized when creating the FISC, with the Church Committee hearings freshly in
mind, was an expedited system of approving individualized warrants
for foreign surveillance of specified individualsmuch like what regular
during the 90s. More recently,

magistrate judges do with warrants now, with safeguards built in for the national security context. That

When FISA was passed, it authorized individualized

warrants for surveillance. Now, the court is approving mass
bears repeating:

surveillance . This is key, because as current and former officials familiar with the courts
classified decisions told the New York Times in July of last year, the court is no longer
simply approving applications. It is regularly assessing broad
constitutional questions and establishing important judicial
precedents, with almost no public scrutiny," afecting millions of
innocent people. As former FISC judge James Robertson stated to the Privacy and Civil Liberties

Oversight Board, What

[the FISC] does is not adjudication, but approval.

This works just fine when it deals with individual applications for
warrants, but the 2008 (FISA) amendment has turned the FISA court
into an administrative agency making rules for others to follow . The
result of this expansion of the FISCs role is a body of secret law that, now that some has
come to light, has shocked most Americans. The most obvious example of this is, of course, section 215 of
the Patriot Act, where the courts interpretation of the word ['relevant,'] enabled the government . . . to
collect the phone records of the majority of Americans, including phone numbers people dialed and where
they were calling from, as part of a continuing investigation into international terrorism. The heightened

FISC decisions that have been made public are

full of descriptions of the NSA not fulfilling its duties and being very
slow to inform the court about it. Judge John Bates noted: The court is troubled that the
duty of candor is not enough.

governments revelations regarding the NSAs acquisition of Internet transactions mark the third instance
in less than three years in which the government has disclosed a substantial misrepresentation regarding
the scope of a major collection program, and noted repeated inaccurate statements made in the

requirements had been so frequently

and systematically violated that it can fairly be said that this critical
element of the overallregime has never functioned efectively.
Judges have consistently chastised the NSA for inaccurate statements,
misleading or incomplete filings and for having circumvented the spirit
of laws protecting Americans privacy. EFF had its own brush with this problem
governments submission, concluding that the

earlier this year, when we discovered that the government had not even informed the FISC of its duties to
preserve evidence. In March, after an emergency hearing, a federal court in San Francisco ordered the
government to preserve records of Section 215 call details collection. On that same day, the FISC issued its
own strongly worded order in which it mandated the government to make a filing explaining exactly why it
had failed to notify the FISC about relevant information regarding preservation orders in two related cases,
Jewel and Shubert. This failure had affected the courts earlier ruling mandating that certain information be
destroyed.

Its clear that the FISC simply cant rely on the government

to get the full picture. The FISA Court must change in at least two ways: it needs
a true advocate for privacy and civil liberties in the court and it must have
institutionalized, systematic publication of significant opinions. As former FISC Judge James Carr has

reform requires an advocate for targets of surveillance, as well

as for privacy and civil liberties. A special advocate for privacy would
move the court towards the adversarial model. It would end blind
reliance on the governments candor, which has been proven to be less candid than
the FISC itself would like. And a special advocate can bring technical expertise
that the FISC might otherwise not have and help spot legal issues
that might otherwise go unnoticed.
stated,

A privacy advocate will change the operational culture of

the FISA Court and intelligence agencies this prevents
widespread privacy invasions in the future
Margo Schlanger, Winter 2015, Democracy: A Journal of Ideas, Infiltrate
the NSA, http://www.democracyjournal.org/35/infiltrate-the-nsa.php?
page=all, mm

the FISA court and the public would be best served by a more
empowered public advocateone who is authorized to appear even
without invitation from the government or the court, and, still more importantly, who is
entitled to full access to information relevant to her duties. This
would no doubt alter the current one-party procedures before the FISA
In fact,

court and

potentially

disrupt the cozy relationship between FISA court

judges and the heads of the CIA, NSA, and FBI.

good.

But that would be all to the

The salutary efect might be to reinforce the FISA judges role as

arbiters of surveillance legality , not just referees ensuring

compliance with court orders. If designed properly, this variation of an Office of Goodness
could be essentially free from the ordinary threats to that kind of organizations influence and
commitment. After all, we are all already used to the existence of government-paid court opponents from
the criminal justice system. Unlike agencies, where staff must negotiate for a seat at decision-making
tables, most courts have firm procedural norms requiring access for all parties. If Congress applies these
norms to the FISA court, as it should, implementation will be very familiar. And there also seems far less
reason to worry about capture in this setting than inside of agencies. If anything, the problem here might
be too much single-minded commitment, a strict preference for civil liberties over securitybut of course
the court, which would remain the decider, is unlikely to become unduly single-minded. In his opinion for
the Supreme Court last term, holding that the Fourth Amendment forbids warrantless searches of cell
phones absent exigent circumstances, Chief Justice John Roberts poked some mild fun at internal
government processes as sufficient safeguards of constitutional rights. [T]he Founders did not fight a
revolution to gain the right to government agency protocols, he wrote. Easy for the chief justice to say. If
he thinks some additional protections for individual liberty would be useful, he can declare governmental
action unreasonable, and therefore unconstitutional under the Fourth Amendment. For the rest of us, our
views about policy are not so influential. In fact, in the secret world of the intelligence community, pro-civil
liberties views have received all too little respect, unless transformed by a court or Congress into

Congress can and should protect

Americans privacy and civil liberties by clamping down on bulk
surveillance, creating legal rules that can then be enforced by the courts and the intelligence
communitys large compliance bureaucracy. But Congress and the President should not be limited by
intelligence legalism. They should also follow the quite different strategy of
amplifying voices inside the surveillance state who will give
attention in internal deliberations and agency operations to civil
liberties and privacy interests. If civil liberties and privacy officials
inside the NSA, at the White House, and at the FISA court can walk the tightrope of
maintaining both influence and commitment, they might well make a
diferenceboth in debates we now know about and others that remain secret. And they may help
authoritative law. In this post-Snowden moment,

create documents useful for public oversight, too, flagging issues for congressional overseers and creating
reports subject to public disclosure. Intelligence legalism has proven unequal to the task of opposing the

We need to add civil libertarians inside the

surveillance state to nurture its civil liberties ecology . If that ecology
doesnt improve, the next big leak, in five or ten or 20 years, may reveal
invasions of Americans privacy that dwarf anything weve heard
collect everything mindset.

about so far .

Unchecked mass surveillance in the US undermines our

democratic model
Matt Sledge and Michael Calderone, 7/28/2014, The Huffington Post,
mass surveillance is corroding American Democracy, Human rights report
concludes, http://www.huffingtonpost.com/2014/07/28/mass-surveillancehuman-rights-watch-report_n_5625997.html, mm

Being a lawyer or a reporter increasingly means adopting the

paranoid tactics of a drug dealer, a joint Human Rights Watch and American Civil
Liberties Union report released Monday determined, with poisonous results for
democracy at home and abroad. In the wake of President Barack Obama's
prosecutions of national security leakers and the revelations of former National Security Agency

Snowden, journalists and attorneys have resorted to

encrypted emails, face-to-face meetings and cash over credit to
protect clients and sources. The end result has been a drying well of
voices willing to tell the truth about what the government is doing in
contractor Edward

our name, a justice system compromised by attorneys' inability to speak freely with their clients, and "a
terrible example" for countries such as India, Pakistan and Ethiopia. "The

US holds itself out

as a model of freedom and democracy, but its own surveillance
programs are threatening the values it claims to represent ," Alex Sinha,
a fellow at the two groups, said in a statement. "The US should genuinely confront the
fact that its massive surveillance programs are damaging many
critically important rights." The report follows in the footsteps of a November PEN survey of

mostly non-journalistic writers that found many are also fearful of what they put in an email or say over the
phone, leading them to avoid charged issues like the Middle East. The new report, meanwhile, comes as
even allies such as Germany are increasingly expressing anger over U.S. spying. Through interviews with
46 journalists, the report's authors concluded government sources are increasingly less willing to share
information in response to revelations about the expansive U.S. surveillance state and the Obama
administration's unprecedented use of the Espionage Act in targeting leaks to media outlets. Jonathan
Landay, a veteran reporter for the McClatchy newspaper chain and one of the few journalists who
challenged the Bush administration's claims during the runup to the Iraq War, said, "This is the worst I've
seen in terms of the government's efforts to control information." An October report from the Committee
to Protect Journalists highlighted the unprecedented measures the Obama administration, which famously
pledged to be the most transparent in history, has taken to prevent unsanctioned leaks. The New York
Times' Charlie Savage said in Monday's report that "it is not lost on us, or on our sources, that there have
been eight criminal cases against sources" during the Obama years, as opposed to just three under all
previous administrations. The New Yorker's Jane Mayer said she "can't count the number of people afraid of
the legal implications" of speaking to her. Journalists who cover particularly sensitive beats such as
national security, intelligence and justice, are increasingly using encrypted communications or buying
throwaway "burner" phones to try to speak with sources in a way that won't leave an obvious digital trail.
But several journalists acknowledged that these precautions aren't foolproof and the adoption of such
tradecraft can make sources even more skittish. In the report, The Intercept's Peter Maass recalled
unsuccessfully asking a source to physically mail information instead of doing so electronically. "I made
him aware of the danger of being connected to me," he said. "As a result, I lost that story." Despite all
these measures aimed at trying to leave less of a trail back to sources, the report found that "not a single
journalist we spoke with believed they could defeat the most focused efforts by the government to discern
their activities." Adam Goldman, a Pulitzer Prize-winning reporter at The Washington Post whose work was
the subject of three leak investigations while at The Associated Press, said that "if the government wants
to get you, they will." "What are we supposed to do? Use multiple burners? No email? Dead drops?"
Goldman asked. "You can't be a journalist and do your job that way." Lawyers -- particularly those in
criminal defense -- felt the same way. "I'll be damned if I have to start acting like a drug dealer in order to
protect my client's confidentiality," said attorney Tom Durkin. In interviews with dozens of attorneys, the
report found that many are changing their habits in ways similar to journalists. But the results are
potentially even more grave in an arena where the very right to a fair trial is at stake. When the U.S.
government can pore through emails or phone calls between lawyers and their clients at will, the playing
field at trials could be permanently tilted against defendants. Even corporate firms are far from safe, the
report notes, citing a February New York Times report based on Snowden documents that the U.S.
government was monitoring communications between an American law firm and its client, the government
of Indonesia. The Intercept reported earlier this month that the government has been spying on Muslim
American lawyers. Witnesses in addition to clients are at risk, said Maj. Jason Wright, an Army lawyer who
represents Guantanamo Bay detainees. The military commissions there have been plagued by fears of an
FBI investigation that has probed a defense team. "We are fearful that our communications with witnesses
abroad are monitored," Wright said. Reaching out to witnesses thus "might put people in harm's way."

Citing both international law and the Constitution, Human Rights

Watch and the ACLU said that Obama and Congress should take
steps to curb mass surveillance now. Congress could end bulk collection such as the

NSA's domestic call records program, although the report expressed caution about a weakened version of
a House bill meant to do that. Obama has the authority to rein in much of the surveillance targeted abroad
unilaterally by amending a 1981 Ronald Reagan executive order, the report noted. Government officials
told the human rights researchers that the safeguards in place protect both lawyers and journalists. They
also argued that the costs of surveillance are outweighed by the benefits to national security. Bob Deitz,
who was the NSA's top lawyer when the George W. Bush administration developed its warrantless
wiretapping program, put his view even more bluntly. National security journalists' sources, he argued,
should be worried. "Leaking is against the law. Good. I want criminals to be deterred," he said. "Does a
cop chill a burglar's inclination to burgle? Yes.'"

Global democracy is in retreat now a vibrant and robust

US model is key weaknesses at home empower the
growth of authoritarian regimes abroad
Larry Diamond, January 2015, [prof. at Stanford], Journal of Democracy,
26(1), facing up to the democratic recession,
http://cddrl.fsi.stanford.edu/sites/default/files/ld_jod_jan2015-1.pdf, mm

Perhaps the most worrisome dimension of the democratic recession

has been the decline of democratic efficacy, energy, and selfconfidence in the West, including the United States. There is a
growing sense, both domestically and internationally, that democracy in the
United States has not been functioning efectively enough to address the
major challenges of governance. The diminished pace of legislation, the vanishing ability of Congress to
pass a budget, and the 2013 shutdown of the federal government are only some of the indications of a
political system (and a broader body politic) that appears increasingly polarized and deadlocked. As a
result, both public approval of Congress and public trust in government are at historic lows. The evermounting cost of election campaigns, the surging role of nontransparent money in politics, and low rates
of voter participation are additional signs of democratic ill health. Internationally, promoting democracy
abroad scores close to the bottom of the publics foreign-policy priorities. And the international
perception is that democracy promotion has already receded as an actual priority of U.S. foreign policy.

The world takes note of all this. Authoritarian state media gleefully
publicize these travails of American democracy in order to discredit
democracy in general and immunize authoritarian rule against U.S.
pressure. Even in weak states, autocrats perceive that the pressure
is now of : They can pretty much do whatever they want to censor the media, crush the
opposition, and perpetuate their rule, and Europe and the United States will swallow it. Meek verbal
protests may ensue, but the aid will still flow and the dictators will still be welcome at the White House

It is hard to overstate how important the vitality and

self-confidence of U.S. democracy has been to the global expansion
of democracy during the third wave. While each democratizing country made its own
and the Elyse Palace.

transition, pressure and solidarity from the United State and Europe often generated a significant and
even crucial enabling environment that helped to tip finely balanced situations toward democratic

If this solidarity is
now greatly diminished, so will be the near-term global prospects
for reviving and sustaining democratic progress. Democracy has
been in a global recession for most of the last decade, and there is a
growing danger that the recession could deepen and tip over into
something much worse. Many more democracies could fail, not only in
change, and then in some cases gradually toward democratic consolidation.

poor countries of marginal strategic significance, but also in big swing states such as Indonesia and
Ukraine (again). There is little external recognition yet of the grim state of democracy in Turkey, and

Apathy
and inertia in Europe and the United States could significantly lower the
barriers to new democratic reversals and to authoritarian
entrenchments in many more states. Yet the picture is not entirely
bleak. We have not seen a third reverse wave. Globally, average levels of freedom have ebbed a
little bit, but not calamitously. Most important, there has not been significant erosion
in public support for democracy. In fact, what the Afrobarometer has consistently shown
there is no guarantee that democracy will return any time soon to Thailand or Bangladesh.

is a gapin some African countries, a chasmbetween the popular demand for democracy and the
supply of it provided by the regime. This is not based just on some shallow, vague notion that democracy
is a good thing. Many Africans understand the importance of political accountability, transparency, the
rule of law, and restraint of power, and they would like to see their governments manifest these virtues.
While the performance of democracy is failing to inspire, authoritarianism faces its own steep challenges.

There is hardly a dictatorship in the world that looks stable for the

long run. The only truly reliable source of regime stability is legitimacy, and the number of people in
the world who believe in the intrinsic legitimacy of any form of authoritarianism is rapidly diminishing.
Economic development, globalization, and the information revolution are undermining all forms of
authority and empowering individuals. Values are changing, and while we should not assume any
teleological path toward a global enlightenment, generally the movement is toward greater distrust of
authority and more desire for accountability, freedom, and political choice. In the coming two decades,
these trends will challenge the nature of rule in China, Vietnam, Iran, and the Arab states much more than
they will in India, not to mention Europe and the United States. Already, democratization is visible on the
horizon of Malaysias increasingly competitive electoral politics, and it will come in the next generation to
Singapore as well. The key imperative in the near term is to work to reform and consolidate the
democracies that have emerged during the third wavethe majority of which remain illiberal and

With more focused, committed, and

resourceful international engagement, it should be possible to help
democracy sink deeper and more enduring roots in countries such as Indonesia,
unstable, if they remain democratic at all.

the Philippines, South Africa, and Ghana. It is possible and urgently important to help stabilize the new
democracies in Ukraine and Tunisia (whose success could gradually generate significant diffusion effects
throughout the Arab world). It might be possible to nudge Thailand and Bangladesh back toward
electoral democracy, though ways must be found to temper the awful levels of party polarization in each
country. With time, the electoral authoritarian project in Turkey will discredit itself in the face of mounting
corruption and abuse of power, which are already growing quite serious. And the oil-based autocracies in
Iran and Venezuela will face increasingly severe crises of economic performance and political legitimacy.

It is vital that democrats in the established democracies not lose faith .

Democrats have the better set of ideas. Democracy may be receding somewhat in practice, but it is still
globally ascendant in peoples values and aspirations. This creates significant new opportunities for

If the current modest recession of democracy spirals

into a depression, it will be because those of us in the established
democratic growth.

democracies were our own worst enemies .

Democratic backsliding causes great power war

Gat 11, Professor at Tel Aviv University, Ezer Weizman Professor of National

Security at Tel Aviv University, Azar 2011, The Changing Character of War,
in The Changing Character of War, ed. Hew Strachan and Sibylle Scheipers, p.
30-32
Since 1945, the decline of major great power war has deepened further.
Nuclear weapons have concentrated the minds of all concerned wonderfully, but no less important have
been the institutionalization of free trade and the closely related process of rapid and sustained economic
growth throughout the capitalist world. The communist bloc did not participate in the system of free trade,
but at least initially it too experienced substantial growth, and, unlike Germany and Japan, it was always
sufficiently large and rich in natural resources to maintain an autarky of sorts. With the Soviet collapse and

the
prospect of a major war within the developed world seems to have become very
remote indeed. This is one of the main sources for the feeling that war has been transformed: its
with the integration of the former communist powers into the global capitalist economy,

geopolitical centre of gravity has shifted radically. The modernized, economically developed parts of the
world constitute a zone of peace. War now seems to be confined to the less-developed parts of the globe,
the worlds zone of war, where countries that have so far failed to embrace modernization and its
pacifying spin-off effects continue to be engaged in wars among themselves, as well as with developed

While the trend is very real, one wonders if the near

disappearance of armed conflict within the developed world is likely
to remain as stark as it has been since the collapse of communism. The post-Cold War
countries.

moment may turn out to be a fleeting one . The probability of major wars within the
developed world remains lowbecause of the factors already mentioned: increasing wealth, economic

the deep sense of change

prevailing since 1989 has been based on the far more radical notion that the
triumph of capitalism also spelled the irresistible ultimate victory of democracy; and that
in an affluent and democratic world, major conflict no longer needs
openness and interdependence, and nuclear deterrence. But

to be feared or seriously prepared for. This notion, however, is fast

eroding

with the return of capitalist non-democratic great powers that have been absent from the

international system since 1945. Above all, there is the formerly communist and fast industrializing
authoritarian-capitalist China, whose massive growth represents the greatest change in the global balance
of power. Russia, too, is retreating from its postcommunist liberalism and assuming an increasingly
authoritarian character. Authoritarian capitalism may be more viable than people tend to assume. 8 The
communist great powers failed even though they were potentially larger than the democracies, because
their economic systems failed them. By contrast, the capitalist authoritarian/totalitarian powers during the
first half of the twentieth century, Germany and Japan, particularly the former, were as efficient
economically as, and if anything more successful militarily than, their democratic counterparts. They were
defeated in war mainly because they were too small and ultimately succumbed to the exceptional
continental size of the United States (in alliance with the communist Soviet Union during the Second World
War). However, the new non-democratic powers are both large and capitalist. China in particular is the
largest player in the international system in terms of population and is showing spectacular economic
growth that within a generation or two is likely to make it a true non-democratic superpower. Although

the return of capitalist non-democratic great powers does not necessarily imply
open conflict or war, it might indicate that the democratic hegemony since the Soviet Unions
collapse could be short-lived and that a universal democratic peace may still be far
of. The new capitalist authoritarian powers are deeply integrated into the world economy. They partake

of the development-open-trade-capitalist cause of peace, but not of the liberal democratic cause. Thus, it
is crucially important that any protectionist turn in the system is avoided so as to prevent a grab for
markets and raw materials such as that which followed the disastrous slide into imperial protectionism and
conflict during the first part of the twentieth century. Of course, the openness of the world economy does
not depend exclusively on the democracies. In time, China itself might become more protectionist, as it
grows wealthier, its labour costs rise, and its current competitive edge diminishes. With the possible
exception of the sore Taiwan problem, China is likely to be less restless and revisionist than the territorially
confined Germany and Japan were. Russia, which is still reeling from having lost an empire, may be more
problematic. However, as China grows in power, it is likely to become more assertive, flex its muscles, and

The democratic
and non-democratic powers may coexist more or less peacefully, albeit warily, side
by side, armed because of mutual fear and suspicion, as a result of the so-called security
dilemma, and against worst-case scenarios . But there is also the
prospect of more antagonistic relations, accentuated ideological
rivalry, potential and actual conflict, intensified arms races, and
behave like a superpower, even if it does not become particularly aggressive.

even new cold wars, with spheres of influence and opposing

coalitions . Although great power relations will probably vary from those that prevailed during any of
the great twentieth-century conflicts, as conditions are never quite the same, they may vary less than
seemed likely only a short while ago.

Independently, unchecked surveillance massively erodes

privacy that is key to freedom and the value of life
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 172-74, mm
The point is not the hypocrisy of those who disparage the value of privacy while intensely safeguarding

privacy is shared by us all as

an essential, not ancillary, part of what it means to be human. We all instinctively
their own, although that is striking. It is that the desire for

understand that the private realm is where we can act, think, speak, write, experiment, and choose how to
be, away from the judgmental eyes of others.

Privacy is a core condition of being a

free person.

Perhaps the most famous formulation of what privacy means and why it is so
universally and supremely desired was offered by the US Supreme Court Justice Louis Brandeis in the 1928
case Olmstead v. U.S.: The

right to be left alone [is] the most

comprehensive of rights, and the right most valued by a free people. The value of privacy,
he wrote, is much broader in scope than mere civic freedoms. It is, he said, fundamental: The makers of
our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the
significance of mans spiritual nature, of his feelings and of his intellect. They knew that only a part of the

pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans
in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the
Government, the right to be left alone. Even before Brandeis was appointed to the Court, he was an
ardent proponent of the importance of privacy. Together with lawyer Samuel Warren, he wrote the seminal
1890 Harvard Law Review article The Right to Privacy, arguing that robbing someone of their privacy was
a crime of a deeply different nature than the theft of a material belonging. The principle which protects
personal writings and all other personal productions, not against theft and physical appropriation, but
against publication in any form, is in reality not the principle of private property, but that of an inviolate
personality.

Privacy is essential to human freedom and happiness

for

reasons that are rarely discussed but instinctively understood by most people, as evidenced by the lengths

people radically change their

behavior when they know they are being watched. They will strive to do that
to which they go to protect their own. To begin with,

which is expected of them. They want to avoid shame and condemnation. They do so by adhering tightly
to accepted social practices, by staying within imposed boundaries, avoiding action that might be seen as

The range of choices people consider when they believe that

is therefore far more limited than what they might do when
acting in a private realm. A denial of privacy operates to severely
restrict ones freedom of choice. Several years ago, I attended the bat mitzvah of my
deviant or abnormal.
others are watching

best friends daughter. During the ceremony, the rabbi emphasized that the central lesson for the girl to
learn was that she was always being watched and judged. He told her that God always knew what she
was doing, every choice, every action, and even every thought, no matter how private. You are never
alone, he said, which meant that she should always adhere to Gods will. The rabbis point was clear: if
you never evade the watchful eyes of a supreme authority, there is no choice but to follow the dictates
that authority imposes. You cannot even consider forging your own path beyond those rules: if you believe
you are always being watched and judged, you are not really a free individual. All oppressive authorities
political, religious, societal, parental rely on this vital truth, using it as a principal tool to enforce
orthodoxies, compel adherence, and quash dissent. It is in their interest to convey that nothing their

the
deprivation of privacy will crush any temptation to deviate from
rules and norms. What is lost when the private realm is abolished are
many of the attributes typically associated with quality of life . Most
subjects do will escape the knowledge of the authorities. Far more effectively than a police force,

people have experienced how privacy enables liberation form constraint. And weve all, conversely, had
the experience of engaging in private behavior when we thought we were alone dancing, confessing,
exploring sexual expression, sharing untested ideas only to feel shame at having been seen by others.
Only when we believe that nobody else is watching us do we feel free safe to truly experiment, to test
boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves. What
made the Internet so appealing was precisely that it afforded the ability to speak and act anonymously,

it is in the realm of privacy

where creativity, dissent, and challenges to orthodoxy germinate . A
society in which everyone knows they can be watched by the state
where the private realm is efectively eliminated is one in which
those attributes are lost, at both the societal and the individual level. Mass surveillance by
which is so vital to individual exploration. For that reason,

the state is therefore inherently repressive, even in the unlikely case that it is not abused by vindictive

Regardless of how
surveillance is used or abused, the limits on freedom are intrinsic to
officials to do things like gain private information about political opponents.

its existence .

Liberty is a D-rule alt causes dont matter the impact is

value of life and mass violence
Petro 74 (Sylvester Petro, professor of law at Wake Forest, Spring 1974,
Toledo Law Review, p. 480)

However, one may still insist on echoing Ernest Hemingway "I believe in only one thing: liberty." And it is
always well to bear in mind David Hume's observation: " It

is seldom that liberty of any kind

is lost all at once." Thus, it is unacceptable to say that the invasion of

one aspect of freedom is of no import because there have been

invasions of so many other aspects. That road leads to chaos,
tyranny, despotism, and the end of all human aspiration . Ask Solzhenstyn,
Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value and proper ordering principle for

every invasion of
freedom must be emphatically identified and resisted with undying
spirit.
any society aiming to maximize spiritual and material welfare, then

Internet Advantage
Mass domestic surveillance crushes open internet access,
tech competitiveness and cloud computing curtailing
surveillance leads to reshoring and restores faith in the
Internet
Matthew Taylor, 3/30/2014, The Guardian, NSA revelations changing how
businesses store sensitive data,
http://www.theguardian.com/technology/2014/mar/31/data-storage-nsarevelations-businesses-snowden, mm
The vast scale of online surveillance revealed by Edward Snowden is changing
how businesses store commercially sensitive data, with potentially
dramatic consequences for the future of the internet, according to a new
study. A survey of 1,000 business leaders from around the world has found that many are
questioning their reliance on "cloud computing" in favour of more
secure forms of data storage as the whistleblower's revelations continue to reverberate.
The moves by businesses mirror efforts by individual countries, such as Brazil and Germany, which are
encouraging regional online traffic to be routed locally rather than through the US, in

a move that

could have a big impact on US technology companies such as Facebook and

Google. Daniel Castro, a senior analyst at the Information Technology and Innovation Foundation, said the
study confirmed "anecdotal evidence that suggests

US tech firms are going to be hit

hard in the coming years by a global backlash against technology 'made in America'". "The
Snowden revelations have led to a paradigm shift in how IT decision-makers buy technology," he said.
"Now companies are not just competing on price and quality, they are also competing on geography.

This might be the final nail in the coffin for the vision of a global,
borderless internet ." Ian Brown, from the Oxford Internet Institute, said the survey revealed a
significant level of concern among business leaders: " We'll have to see over the next year how
much impact this type of reaction has on the bottom line of US tech
companies, but it will give them even more incentive to put pressure on the
Obama administration and US Congress for significant surveillance reform ." The
survey of 1,000 information and communications technology decision-makers from France, Germany, Hong

following the
Snowden revelations, almost 90% had changed the way they use the
cloud a storage service that allows data to be accessed from anywhere in the world but which is more
Kong, the UK and the US was carried out by NTT Communications. It found that,

susceptible to online surveillance. The study also found that almost a third of those questioned were
moving their company's data to locations where they "know it will be safe", and 16% said they had
delayed or cancelled their contracts with cloud service providers. Len Padilla, from NTT Communications
in Europe, said: "Our findings show that the NSA allegations have hardened ICT decision-makers' attitudes
towards cloud computing, whether it is modifying procurement policies, scrutinising potential suppliers or
taking a heightened interest in where their data is stored." The Guardian, and some of the world's other
major media organisations, began disclosing details of the extent and reach of mass surveillance
programmes run by Britain's eavesdropping centre, GCHQ, and its US equivalent, the National Security

US technology firms have repeatedly raised concerns

about the impact of the NSA revelations on their ability to operate
around the world, and earlier this month Facebook's founder, Mark Zuckerberg, and Eric Schmidt,
Agency, last year.

executive chairman of Google, met President Barack Obama to voice their concerns about the commercial
impact of government surveillance programmes. But Castro warned that it was not just the global firms
that are being affected in the US. "This

isn't something that just the big players

have to worry about, it's the start-ups and mid-size companies too

across the board this backlash is going to hurt their bottom line ."
And Brown said that pressure is now likely to be felt by the other governments as more businesses attempt
to protect their data. "As

the US limits its own mass surveillance

programmes, US firms will no doubt be asking pointed questions
about the continuing surveillance activities of European and other
governments," he said.

Open Internet access is key to the global economy

closed Internet collapses growth
McDowell, 12
(5/31, FCC Chair, Comm'r. McDowell's Congressional Testimony,
http://www.fcc.gov/document/commr-mcdowells-congressional-testimony-531-2012)
Every day headlines tell us about industrialized and developing nations alike that are awash in debt, facing

governments, including our own,

must also spur economic expansion. An
unfettered Internet ofers the brightest ray of hope for growth
during this dark time of economic uncertainty, not more regulation. Indeed, we
are at a crossroads for the Internets future. One path holds great
promise, while the other path is fraught with peril . The promise, of course, lies
flat growth curves, or worse, shrinking GDPs. Not only must
tighten their fiscal belts, but they

with keeping what works, namely maintaining a freedom-enhancing and open Internet while insulating it
from legacy regulations. The peril lies with changes that would ultimately sweep up Internet services into
decades-old ITU paradigms. If successful, these efforts would merely imprison the future in the regulatory
dungeon of the past.

The future of global growth and political freedom lies

with an unfettered Internet . Shortly after the Internet was privatized in 1995, a mere 16
million people were online worldwide.3 As of early 2012, approximately 2.3 billion people were using the
Net.4 Internet connectivity quickly evolved from being a novelty in industrialized countries to becoming an
essential tool for commerce and sometimes even basic survival in all nations, but especially in the
developing world. Such explosive growth was helped, not hindered, by a deregulatory construct.

Developing nations stand to gain the most from the rapid pace of
deployment and adoption of Internet technologies brought forth by
an Internet free from intergovernmental regulation . By way of illustration, a

McKinsey report released in January examined the Nets effect on the developing world, or aspiring
countries.5 In 30 specific aspiring countries studied, including Malaysia, Mexico, Morocco, Nigeria, Turkey
and Vietnam,6 Internet penetration has grown 25 percent per year for the past five years, compared to
only five percent per year in developed nations.7 Obviously, broadband penetration is lower in aspiring
countries than in the developed world, but that is quickly changing thanks to mobile Internet access
technologies. Mobile subscriptions in developing countries have risen from 53 percent of the global market
in 2005 to 73 percent in 2010.8 In fact, Cisco estimates that the number of mobile-connected devices will
exceed the worlds population sometime this year.9 Increasingly, Internet users in these countries use only
mobile devices for their Internet access.10 This trend has resulted in developing countries growing their
global share of Internet users from 33 percent in 2005, to 52 percent in 2010, with a projected 61 percent
share by 2015.11 The 30 aspiring countries discussed earlier are home to one billion Internet users, half of

The efect that rapidly growing Internet connectivity

is having on aspiring countries economies is tremendous. The Net is
all global Internet users.

an economic growth accelerator . It contributed an average 1.9 percent of GDP growth in

aspiring countries for an estimated total of $366 billion in 2010.13 In some developing economies, Internet
connectivity has contributed up to 13 percent of GDP growth over the past five years.14 In six aspiring
countries alone, 1.9 million jobs were associated with the Internet.15 And in other countries, the Internet
creates 2.6 new jobs for each job it disrupts.16 I expect that we would all agree that these positive trends
must continue. The best path forward is the one that has served the global economy so well, that of a
multi-stakeholder governed Internet.

Collapse of global economic growth triggers multiple

scenarios for war and extinction
Auslin 09
(Michael, Resident Scholar American Enterprise Institute, and Desmond
Lachman Resident Fellow American Enterprise Institute, The Global
Economy Unravels, Forbes, 3-6, http://www.aei.org/article/100187)
The Great Depression showed
how social and global chaos followed hard on economic collapse . The
What do these trends mean in the short and medium term?

mere fact that parliaments across the globe, from America to Japan, are unable to make responsible,
economically sound recovery plans suggests that they do not know what to do and are simply hoping for
the least disruption. Equally worrisome is the adoption of more statist economic programs around the

The threat of instability is

a pressing concern. China, until last year the world's fastest growing economy, just reported
globe, and the concurrent decline of trust in free-market systems.

that 20 million migrant laborers lost their jobs. Even in the flush times of recent years, China faced upward

A sustained downturn poses grave and possibly

immediate threats to Chinese internal stability. The regime in Beijing may be
faced with a choice of repressing its own people or diverting their energies outward, leading to
conflict with China's neighbors. Russia, an oil state completely dependent on energy
sales, has had to put down riots in its Far East as well as in downtown Moscow. Vladimir Putin's rule
has been predicated on squeezing civil liberties while providing economic
largesse. If that devil's bargain falls apart, then wide-scale repression inside Russia, along
with a continuing threatening posture toward Russia's neighbors, is
likely. Even apparently stable societies face increasing risk and the threat of
internal or possibly external conflict. As Japan's exports have plummeted by nearly 50%, one-third
of 70,000 labor uprisings a year.

of the country's prefectures have passed emergency economic stabilization plans. Hundreds of thousands
of temporary employees hired during the first part of this decade are being laid off. Spain's unemployment
rate is expected to climb to nearly 20% by the end of 2010; Spanish unions are already protesting the lack
of jobs, and the specter of violence, as occurred in the 1980s, is haunting the country. Meanwhile, in
Greece, workers have already taken to the streets. Europe as a whole will face dangerously increasing
tensions between native citizens and immigrants, largely from poorer Muslim nations, who have increased
the labor pool in the past several decades. Spain has absorbed five million immigrants since 1999, while
nearly 9% of Germany's residents have foreign citizenship, including almost 2 million Turks. The

A prolonged global
downturn, let alone a collapse, would dramatically raise tensions
inside these countries. Couple that with possible protectionist
legislation in the United States, unresolved ethnic and territorial
disputes in all regions of the globe and a loss of confidence that
world leaders actually know what they are doing. The result may be
xenophobic labor strikes in the U.K. do not bode well for the rest of Europe.

a series of small explosions that coalesce into a big bang .

Tech competitiveness is key to primacy

Martino 7Senior Fellow at the Foreign Policy Research Institute
(Rocco, A Strategy for Success: Innovation Will Renew American Leadership,
Orbis, Volume 51, Issue 2, HW Wilson)
Much of the foreign policy discussion in the United States today is focused upon the dilemma posed by the
Iraq War and the threat posed by Islamist terrorism. These problems are, of course, both immediate and

America also faces other challenges to its physical

security and economic prosperity, and these are more long-term and probably more
profound. There is, first, the threat posed by our declining competitiveness
important. However,

in the global economy, a threat most obviously represented by such rising economic powers as
China and India.(FN1) There is, second, the threat posed by our increasing dependence on oil imports from
the Middle East. Moreover, these two threats are increasingly connected, as China and India themselves
are greatly increasing their demand for Middle East oil.(FN2) The United States of course faced great
challenges to its security and economy in the past, most obviously from Germany and Japan in the first half

Crucial to America's
ability to prevail over these past challenges was our technological and
industrial leadership, and especially our ability to continuously
of the twentieth century and from the Soviet Union in the second half.

recreate it. Indeed, the United States has been unique among great
powers in its ability to keep on creating and recreating new
technologies and new industries, generation after generation. Perpetual
innovation and technological leadership might even be said to be the
American way of maintaining primacy in world afairs . They are almost
certainly what America will have to pursue in order to prevail over the contemporary challenges involving
economic competitiveness and energy dependence. There is therefore an urgent need for America to
resume its historic emphasis on innovation. The United States needs a national strategy focused upon
developing new technologies and creating new industries. Every successful strategy must define an
objective or mission, determine a solution, and assemble the means of execution. In this case, the
objective is economic superiority; the solution is new industries which build upon the contemporary
revolution in information technology; and the means of execution will have to include a partnership of
industry, government, and people.

And hegemony is sustainable - Tech competitiveness is

the single most important factor
Drezner 1 - (Daniel, State Structure, Technological Leadership and the
Maintenance of Hegemony Review of International Studies, Vol. 27, No. 1
(Jan., 2001), pp. 3-25, JSTOR,
Cambridge University Press, http://www.jstor.org/stable/20079588.)
The importance of economic growth to state power is undisputed by
international relations scholars.1 The importance of technological innovation to economic growth is
similarly undisputed by economists.2 Logically,

technological leadership is a lynch

pin of great-power status in the world, a fact recognized by longcycle theorists.3 However, despite the obvious importance of innovation to power, and despite a
large literature on how the state should be organized to maximize the extraction of societal resources,
there has been very little written in international political economy on the state's role in fostering
technological leadership. The relationship between innovation and the nation-state has been discussed in
international relations, but the debates that touch on the subject mention it only in passing. In the late
seventies, there was a great deal of discussion about state 'strength' vis-?-vis society as a way of
determining foreign economic policies, including industrial policies.4 One of the implicit arguments in this
literature was that strong states would pursue more enlightened economic policies. However, the strong
state/weak state typology has been criticized as vague, and this literature has moved away from the study
of economic issues, focusing more on security policies.5 In this decade, proponents of globalization argue
that because information and capital are mobile, the location of innovation has been rendered
unimportant.6 While this notion has some popular appeal, the globalization thesis lacks theoretical or
empirical support. Theoretically, even in a world of perfect information and perfect capital mobility,
economists have shown that the location of technological innovation matters.7 Empirically, the claims of
globalization proponents have been far-fetched. Capital is not perfectly mobile, and increased economic
exchange does not lead to a seamless transfer of technology from one country to another.8 The location of

Long-cycle theorists have paid the most attention to

the link between techno logical innovation, economic growth, and
the rise and fall of hegemons.9 They argue that the past five hundred
innovation still matters.

years of the global political economy can be explained by the

waxing and waning of hegemonic powers. Countries acquire
hegemonic status because they are the first to develop a cluster of

technologies in leading sectors. These innovations generate spillover

efects to the rest of the lead economy, and then to the global
economy. Over time, these 'technological hegemons' fail to maintain the
rate of innovations, leading to a period of strife until a new hegemon
is found. While this literature has done an excellent job at describing the link between innovation,
economic growth, and global stability, it cannot explain why techno logical hegemons lose their lead over
time. This article argues that the governance structure of the nation-state is crucial to determining the
effectiveness of national innovation policies, and that a decen tralized state structure is a necessary (but
far from sufficient) condition for a nation state to maintain technological leadership. For countries at the
technological fron tier, a centralized state structure will lead to policies that retard innovation.10 A
centralized state can play a positive role for technological late-comers as a way to accelerate economic
growth.11 However, centralized decision-making at the frontier increases the chances for technological
leaders to decline over time. If a unitary, central actor is responsible for public investments into innovation,
the decisions will be biased towards status quo interest groups. Furthermore, centralized states face a
greater handicap in the natural tendency of governments to stick with policies even as their utility declines
over time. Centralized states are more likely to maintain flawed policies rather than engage in reform. This
problem is endemic to all levels of government, but errors by centralized states are felt across the entire
country and difficult to reverse. Decentralized states are more likely to create an environment that fosters
experimentation and rewards innovation. Errors by one region are not replicated across the country. It
should be stressed at the outset that there are myriad factors affecting the ability of nations to innovate.
Market factors such as industrial organization, the absolute size of the marketplace, entrepreneurial
culture, and factor endowments matter. The role o? fortuna should not be underestimated. A decentralized
state structure is hardly a sufficient condition for technological leadership. However, it is argued here that
in the modern era it is a necessary condition. Given that the relationship between the two has not been
discussed in the international political economy literature, this is not a minor point.12 If true, the
relationship between state structure and technological leadership has serious ramifications for theory and
policy. It suggests that the United States, a decentralized state, has the capability to maintain its
technological and economic primacy for the foreseeable future. This prediction stands in sharp contrast to
the forecasts of American decline made in the past two decades.13 It also suggests a tension that great
powers face in managing the international system. On the one hand, foreign policymakers need a robust
economy in order to advance their interests. On the other hand, in order to do this, governments must
weaken their autonomous decision-making power at the centre. In terms of policy, the argument presented
here suggests that the predicted rise of Asian economies to economic primacy is far from assured, and
that the role of the state in Asian economic development has a limited practicality. This article is divided
into five sections. The next section develops an explanation for why decentralized government structures
are a necessary condition for main taining a healthy pace of innovation at the technological frontier.
Centralized governments are more vulnerable to political pressures to distort innovation policies, and
centralized structures prevent other institutions from pursuing alternative policies. Section 3 provides a
case study of Great Britain's loss of technological hegemony in the chemicals sector to Germany in the late
nineteenth century. The British state erred in not supplying enough public goods to foster innovation; its
centralized structure compounded the error. Section 4 sketches the recent rivalry in information
technologies between Japan and the United States. Japan's errors in its technology policy are quite
different from those of the United Kingdom in the last century, but the causes and effects of the errant
policies are quite similar, due to the likeness in state structures. The final section summarizes and
concludes.

Primacy prevents escalation in multiple global hotspots

the impact is nuclear war and extinction
Metz, Army War College Strategic Studies Institute Director, 13
[Steven, 10/22/13, World Politics Review, A Receding Presence: The Military
Implications of American Retrenchment,
www.worldpoliticsreview.com/articles/13312/a-receding-presence-themilitary-implications-of-american-retrenchment

The Middle East/North Africa region, by

is a part of the world where American retrenchment or narrowing
U.S. military capabilities could have extensive adverse efects. While the region has a
So much for the regions of modest concern.
contrast,

number of nations with significant military capability, it does not have a functioning method for preserving
order without outside involvement. As U.S. power recedes, it could turn out that American involvement was
in fact a deterrent against Iran taking a more adventurous regional posture, for instance.

With the

United States gone, Tehran could become more aggressive,

propelling the Middle East toward division into hostile Shiite and Sunni blocs and encouraging the
spread of nuclear weapons. With fewer ties between regional armed forces and the United
States, there also could be a new round of military coups. States of the region could increase pressure on

with a risk of another

major war. One of the al-Qaida affiliates might seize control of a state or exercise outright control of
Israel, possibly leading to pre-emptive military strikes by the Israelis,

at least part of a collapsed state. Or China might see American withdrawal as an opportunity to play a
greater role in the region, particularly in the Persian Gulf. The United States has a number of security
objectives in the Middle East and North Africa: protecting world access to the region's petroleum, limiting
humanitarian disasters, preventing the proliferation of weapons of mass destruction, limiting the operating
space for al-Qaida and its affiliates, sustaining America's commitment to long-standing partners and
assuring Israel's security. Arguments that the U.S. can disengage from the region and recoup savings in
defense expenditures assume that petroleum exports would continue even in the event of domination of
the region by a hostile power like Iran or a competitor like China, state collapse or even the seizure of
power by extremists. Whoever exercises power in the region would need to sell oil. And the United States
is moving toward petroleum self-sufficiency or, at least, away from dependence on Middle Eastern oil. But
even if the United States could get along with diminished petroleum exports from the Middle East, many
other nations couldn't. The economic damage would cascade, inevitably affecting the United States.
Clearly disengagement from the Middle East and North Africa would entail significant risks for the United
States. It would be a roll of the strategic dice. South and Central Asia are a bit different, since large-scale
U.S. involvement there is a relatively recent phenomenon. This means that the regional security

South and
Central Asia also includes two vibrant, competitive and nuclear-armed powers
India and Chinaas well as one of the world's most fragile nuclear states, Pakistan. Writers like
architecture there is less dependent on the United States than that of some other regions.

Robert Kaplan argue that South Asia's importance will continue to grow, its future shaped by the
competition between China and India.

This makes America's security partnership

with India crucial. The key issue is whether India can continue to modernize its military to

balance China while addressing its immense domestic problems with infrastructure, education, income
inequality and ethnic and religious tensions. If it cannot, the United States might have to decide between
ceding domination of the region to China or spending what it takes to sustain an American military

the
region remains a cauldron of extremism and terrorism. America's future role
presence in the region. Central Asia is different. After a decade of U.S. military operations,

there is in doubt, as it looks like the United States will not be able to sustain a working security partnership
with Afghanistan and Pakistan in the future. At some point one or both of these states could collapse, with
extremist movements gaining control. There is little chance of another large-scale U.S. military
intervention to forestall state collapse, but Washington might feel compelled to act to secure Pakistan's
nuclear weapons if Islamabad loses control of them. The key decision for Washington might someday be
whether to tolerate extremist-dominated areas or states as long as they do not enable transnational
terrorism. Could the United States allow a Taliban state in parts of Afghanistan and Pakistan, for instance, if
it did not provide training areas and other support to al-Qaida? Most likely, the U.S. approach would be to
launch raids and long-distance attacks on discernible al-Qaida targets and hope that such a method best
balanced costs and risks. The Asia-Pacific region will remain the most important one to the United States
even in a time of receding American power. The United States retains deep economic interests in and
massive trade with Asia, and has been a central player in the region's security system for more than a
century. While instability or conflict there is less likely than in the Middle East and North Africa, if it
happened it would be much more dangerous because of the economic and military power of the states
likely to be involved. U.S. strategy in the Asia-Pacific has been described as a hub-and-spokes strategy
"with the United States as the hub, bilateral alliances as the spokes and multilateral institutions largely at
the margins." In particular, the bilateral "spokes" are U.S. security ties with key allies Australia, Japan and

The United States also has many other beneficial

security relationships in the region, including with Singapore, Thailand, Malaysia and
South Korea and, in a way, Taiwan.

the Philippines. America's major security objectives in the Asia-Pacific in recent years have been to
discourage Chinese provocation or destabilization as China rises in political, economic and military power,

and to prevent the world's most bizarre and unpredictable nuclear powerNorth Korea
from unleashing Armageddon through some sort of miscalculation .
Because the U.S. plays a more central role in the Asia-Pacific security framework
than in any other regional security arrangement, this is the region where disengagement or a recession of

Without an American
counterweight, China might become increasingly aggressive and
provocative. This could lead the other leading powers of the region close to Chinaparticularly
Japan, South Korea and Taiwanto abandon their historical antagonism toward one
American power would have the most far-reaching effect.

another and move toward some sort of de facto or even formal alliance. If China pushed them too hard, all
three

have the

technological

capability to develop and deploy nuclear weapons

quickly . The middle powers of the region, particularly those embroiled in disputes with China over the
resources of the South China Sea, would have to decide between acceding to Beijing's demands or aligning
themselves with the Japan-South Korea-Taiwan bloc.

Cloud computing key to climate modeling

Boyce, 10

[Eric, technical writer and user advocate for The Rackspace Cloud,
September 14, 2010 http://www.rackspacecloud.com/blog/2010/09/14/thefuture-of-cloud-computing-the-big-25-in-the-next-25/]
The promise of the cloud isnt just about gaming and the ability to safely store all those photos that you

Many of the most promising cloud-based

applications also require massive computational power. Searching a
wish you hadnt ever taken.

database of global DNA samples requires abundant, scalable processing power. Modeling protein folding is
another example of how compute resources will be used. Protein folding is linked to many diseases
including Alzheimers and cancer, and analyzing the folding process can lead to new treatments and cures,
but it requires enormous compute power. Projects like Folding@home are using distributed computing to

The cloud will ofer a larger, faster, more scalable

way to process data and thus benefit any heavy data manipulation
task. 6. Is it going to be hot tomorrow? Like protein folding modeling, climate simulation
and forecasting requires a large amount of data storage and
processing. Recently the German Climate Computing Center (DKRZ) installed a climate calculating
tackle these modeling tasks.

supercomputer that is capable of analyzing 60 petabytes of data (roughly 13 million DVDs) at over 158

this level of
computing power will be widely available and will exist on remote
hardware. Sophisticated climate models combined with never before
seen compute power will provide better predictions of climate
change and more rapid early warning systems.
teraflops (trillion calculations per second). In the next couple of decades,

Advanced climate modeling key to successful warming

adaptation strategies
Pope, 10
[ Vicky Pope is the head of climate science advice at the Met Office Hadley
Centre, How science will shape climate adaptation plans, 16 September
2010, http://www.guardian.co.uk/environment/cif-green/2010/sep/16/scienceclimate-change-adaptation]
the demand for information on how climate change
will afect our future outstrips the current capability of the science
and climate models. My view is that as scientists, we can provide useful information, but we
Some would argue that

need to be clear about its limitations and strive to improve information for the future. We need to be clear
about the uncertainties in our projections while still extracting useful information for practical decisionmaking. I have been involved in developing climate models for the last 15 years and despite their
limitations we are now able to assess the probability of different outcomes for the first time. That means

projections the UK climate

projections published in 2009 - are already forming the backbone of adaptation
decisions being made in the UK for 50 to 100 years ahead. A project commissioned by the
we can quantify the risk of these outcomes happening. These

Environment Agency to investigate the impact of climate change on the Thames estuary over the next 100
years concluded that current government predictions for sea level rise are realistic. A major outcome from
the scientific analysis was that the worst-case scenarios for high water levels can be significantly reduced -

from 4.2m to 2.7m because we are able to rule out the more extreme sea level rise. As a result, massive
investment in a tide-excluding estuary barrage is unlikely to be needed this century. This will be reviewed
as more information becomes available, taking a flexible approach to adaptation. The energy industry,
working with the Met Office, looked at the likely impact of climate change on its infrastructure. The project
found that very few changes in design standards are required, although it did highlight a number of issues.
For instance, transformers could suffer higher failure rates and efficiency of some types of thermal power
station could be markedly reduced because of increasing temperatures. A particular concern highlighted
by this report and reiterated in today's report from the Climate Change Committee - the independent body
that advises government on its climate targets - is that little is known about how winds will change in the
future - important because of the increasing role of wind power in the UK energy mix. Fortunately many
people, from private industry to government, recognise the value of even incomplete information to help

Demand for climate information is increasing,

More still needs to be done to
refine the climate projections and make them more usable and accessible. This is especially
true if we are to provide reliable projections for the next 10 to 30
years. The necessary science and modelling tools are being developed, and the first tentative results
make decisions about the future.

particularly relating to changes in the short to medium term.

are being produced. We need particularly to look at how we communicate complex and often conflicting
results. In order to explain complex science to a lay audience, scientists and journalists are prone to
progressively downplay the complexity. Conversely, in striving to adopt a more scientific approach and
include the full range of uncertainty, we often give sceptics an easy route to undermine the science. All too
often uncertainty in science offers a convenient excuse for delaying important decisions. However, in the
case of climate change there is overwhelming evidence that the climate is changing in part due to
human activities and that changes will accelerate if emissions continue unabated. In examining the
uncertainty in the science we must take care to not throw away what we do know. Science has established
that climate is changing. Scientists now need to press on in developing the emerging tools that will be
used to underpin sensible adaptation decisions which will determine our future.

Warming is inevitableonly adaptation can prevent

extinction
Romero, 8

[Purple, reporter for ABS-CBN news, 05/17/2008, Climate change and human
extinction--are you ready to be fossilized? http://www.abscbnnews.com/nation/05/16/08/climate-change-and-human-extinction-are-youready-be-fossilized
Climate change killed the dinosaurs. Will it kill us as well? Will we let it destroy the human
race? This was the grim, depressing message that hung in the background of the Climate Change Forum
hosted on Friday by the Philippine National Red Cross at the Manila Hotel. "Not one dinosaur is alive today.

Maybe someday it will be our fossils that another race will dig up in the
future, " said Roger Bracke of the International Federation of Red Cross and Red Crescent Societies,
underscoring his point that no less than extinction is faced by the human race ,
unless we are able to address global warming and climate change in this generation.
Bracke, however, countered the pessimistic mood of the day by saying that the human race still
has an opportunity to save itself. This more hopeful view was also presented by the four
other speakers in the forum. Bracke pointed out that all peoples of the world must be involved
in two types of response to the threat of climate change: mitigation and adaptation.
"Prevention" is no longer possible, according to Bracke and the other experts at the forum,
since climate change is already happening. Last chance The forum's speakers all noted
the increasing number and intensity of devastating typhoons --most recently
cyclone Nargis in Myanmar, which killed more than 100,000 people--as evidence that the world's
climatic and weather conditions are turning deadly because of climate
change. They also reminded the audience that deadly typhoons have also hit the Philippines recently,
particularly Milenyo and Reming, which left hundreds of thousands of Filipino families homeless. World
Wildlife Fund Climate and Energy Program head Naderev Sao said that " this generation the last

chance for the human race" to do something and ensure that humanity
stays alive in this planet. According to Sao, while most members of our generation will be dead
by the time the worst effects of climate change are felt, our children will be the ones to suffer. How will
Filipinos survive climate change? Well, first of all, they have to be made aware that climate change is a
problem that threatens their lives. The easiest way to do this as former Consultant for the Secretariats of

the UN Convention on Climate Change Dr. Pak Sum Low told abs-cbnews.com/Newsbreak is to
particularize the disasters that it could cause. Talking in the language of destruction, Pak and other experts
paint this portrait of a Philippines hit by climate change: increased typhoons in Visayas, drought in
Mindanao, destroyed agricultural areas in Pampanga, and higher incidence rates of dengue and malaria.
Saom said that as polar ice caps melt due to global warming, sea levels will rise, endangering coastal and
low-lying areas like Manila. He said Manila Bay would experience a sea level increase of 72 meters over 20
years. This means that from Pampanga to Nueva Ecija, farms and fishponds would be in danger of being
would be inundated in saltwater. Saom added that Albay, which has been marked as a vulnerable area to
typhoons, would be the top province at risk. Saom also pointed out that extreme weather conditions
arising from climate change, including typhoons and severe droughts, would have social, economic and
political consequences: Ruined farmlands and fishponds would hamper crop growth and reduce food
sources, typhoons would displace people, cause diseases, and limit actions in education and employment.
Thus, Sao said, while environmental protection should remain at the top of the agenda in fighting climate
change, solutions to the phenomenon "must also be economic, social, moral and political." Mitigation
Joyceline Goco, Climate Change Coordinator of the Environment Management Bureau of the Department of
Environment and Natural Resources, focused her lecture on the programs Philippine government is
implementing in order to mitigate the effects of climate change. Goco said that the Philippines is already a
signatory to global agreements calling for a reduction in the "greenhouse gasses"--mostly carbon dioxide,
chloroflourocarbons and methane--that are responsible for trapping heat inside the planet and raising
global temperatures. Goco said the DENR, which is tasked to oversee and activate the Clean Development
Mechanism, has registered projects which would reduce methane and carbon dioxide. These projects
include landfill and electricity generation initiatives. She also said that the government is also looking at
alternative fuel sources in order do reduce the country's dependence on the burning of fossil fuels--oil-which are known culprits behind global warming. Bracke however said that mitigation is not enough. "The
ongoing debate about mitigation of climate change effects is highly technical. It involves making
fundamental changes in the policies of governments, making costly changes in how industry operates. All
of this takes time and, frankly, we're not even sure if such mitigation efforts will be successful. In the
meantime, while the debate goes on, the effects of climate change are already happening to us."
Adaptation A few nations and communities have already begun adapting their

lifestyles to cope with the efects of climate change. In Bangladesh, farmers

have switched to raising ducks instead of chickens because the latter easily succumb to
weather disturbances and immediate effects, such as floods. In Norway, houses with elevated
foundations have been constructed to decrease displacement due to typhoons. In the
Philippines main body for fighting climate change, the Presidential Task Force on Climate Change, (PTFCC)
headed by Department on Energy Sec. Angelo Reyes, has identified emission reduction measures and has
looked into what fuel mix could be both environment and economic friendly. The Department of Health has
started work with the World Health Organization in strengthening its surveillance mechanisms for health
services. However, bringing information hatched from PTFCCs studies down to and crafting
an action plan for adaptation with the communities in the barangay level remains a
challenge. Bracke said that the Red Cross is already at the forefront of efforts to prepare for disasters
related to climate change. He pointed out that since the Red Cross was founded in 1919, it has already
been helping people beset by natural disasters. "The problems resulting from climate change are not new
to the Red Cross. The Red Cross has been facing those challenges for a long time. However, the frequency
and magnitude of those problems are unprecedented. This is why the Red Cross can no longer face these
problems alone," he said. Using a medieval analogy, Bracke said that the Red Cross can no longer be a
"knight in shining armor rescuing a damsel in distress" whenever disaster strikes. He said that disaster
preparedness in the face of climate change has to involve people at the grassroots level. "The role of the
Red Cross in the era of climate change will be less as a direct actor and increase as a trainor and guide to
other partners who will help us adapt to climate change and respond to disasters," said Bracke. PNRC
chairman and Senator Richard Gordon gave a picture of how the PNRC plans to take climate change
response to the grassroots level, through its project, dubbed "Red Cross 143". Gordon explained how Red
Cross 143 will train forty-four volunteers from each community at a barangay level. These volunteers will
have training in leading communities in disaster response. Red Cross 143 volunteers will rely on
information technology like cellular phones to alert the PNRC about disasters in their localities, mobilize
people for evacuation, and lead efforts to get health care, emergency supplies, rescue efforts, etc.

Solvency
A privacy advocate improves the structure and function of
the FISA court that curtails excessive and unnecessary
domestic surveillance
Jacob Sommer, Spring 2014, FISA Authority and Blanket Surveillance: A
Gatekeeper Without Opposition, American Bar Association, The Journal of the
Section of Litigation, 40(3),
http://www.americanbar.org/publications/litigation_journal/201314/spring/fisa_authority_and_blanket_surveillance_gatekeeper_without_opposi
tion.html, mm
FISAs history and current events demonstrate that we are at a point
in the cycle where it is again time to address the two basic questions: How do we
provide oversight of intelligence-gathering activities ? And when does this
oversight apply? FISA, from a textual perspective, provides the government with far-reaching authority for
surveillance and specific process for each type of surveillance it may want to conduct, but the public was
relatively unaware of how the government used that authority until Edward Snowden leaked classified
documents in late 2013 providing some detail on the NSAs use of surveillance activities. In response, the
government has begun declassifying a wealth of FISC decisions, letters to Congress, and other information
regarding the NSAs use of FISA authorities. A detailed analysis of these opinions could lead to a new
report as voluminous as the Church Committees reports, but even a high-level analysis provides some
context for moving forward. The recently released opinionssuch as Redacted, LEXIS 157706 (FISA Ct.
Oct. 3, 2011), and Redacted II, LEXIS 157706 (FISA Ct. Nov. 30, 2011)confirm what appeared to be the
case in In re Directives, that the FISC has adopted an exception to the warrant requirement for foreign
intelligence gatheringparticularly where the government seeks communications that are not wholly

despite finding that the NSA knowingly collected

wholly domestic communications that had nothing to do with foreign
intelligence, the FISC generally approved most of the governments
targeting and minimization procedures. On a bad set of facts for the government, the
domestic. In those cases,

FISC held that only a small part of the NSAs surveillance program was unconstitutional and only because
the NSA did not make enough of an effort to delete wrongly collected communicationsa problem the NSA
soon remedied. Redacted II, LEXIS 157705 (FISA Ct. Nov. 30, 2011). The window left open in Keith seems
to be closed. Similarly, the FISC has approved of the NSAs collect now, restrict searching later approach
to minimization. See In re Application of the F.B.I. for an Order Requiring the Production of Tangible Things

the FISC
has found no constitutional or statutory impediment to the
government over collecting dataso long as it does not intentionally collect wholly
from [Redacted], No. BR 13-109, LEXIS 134786 (FISA Ct. Sept. 13, 2013). In other words,

domestic communications and it has minimization procedures to restrict access. There is no indication that
the government has used its surveillance powers improperly (except in a limited number of circumstances

the FISC has not taken a robust view

of the Fourth Amendment. As was the case back in the late 1970s, the American public has
attributable to NSA employee misconduct), but

reacted to executive surveillance activitiessome of which are eerily similar to the NSAs use of

it may again
be time for Congress to take action. The problems remain quite similar to those
surveillance authority in the mid to late 1970s. And as was the case in the late 1970s,

Congress faced in 1978: provide oversight where there is none, or where it is inadequate, and make clear
when the government can, and cannot, use different types of FISA process. In late 2013, numerous
members of Congress began proposing bills to reform FISA and provide new protections. See Mark M.
Jaycox, Cheat Sheet to Congress NSA Spying Bills, Elec. Frontier Found. (Sept. 11, 2013),
www.eff.org/deep links/2013/08/effs-cheat-sheet. Given the heated nature of the current debate, it is likely
that the particular content of these bills will change daily, and summarizing their particularities is best left
to blogs. Still, the bills generally fall into two categories: increasing transparency and restructuring the
process. A few bills address bulk collection of records under section 215, but none takes a comprehensive
approach to changing the question of when FISA applies and when it does not.

system of checks and balances under the FAA is

The current

simply not enough. Its

not because of a lack of desire by the providers to defend their users. Unlike the telephone and telegraph

companies that did not act to end NSA spying in the Operation SHAMROCK era, providers today are taking
a much more active role in the process. Yahoo challenged the FISA process in 2008, interest groups have
filed actions seeking information about surveillance practices, and now providers have brought declaratory
judgment actions seeking to reveal more information about surveillance process they receive. One of the
pending bills, Senator Blumenthals FISA Court Reform Act of 2013, Senate Bill 1460 and Senate Bill
1467, provides an answer that, having had the experience of litigating before the FISC myself, I believe

bill provides for a new Office of the

Special Advocate, which introduces an adversary to the court. (This is
similar to the public privacy advocate that President Obama recently proposed.) The
could provide much needed improvements. That

act attempts to solve a basic problem with the current oversight procedures: There is no true adversarial
process for most of the legal issues that arise. The newly declassified opinions the director of national
intelligence has released make this abundantly clear. Setting aside the legal arguments, the procedural
history of the opinions indicates delays on the governments part, a lack of supervision after the court

a special
advocate ad litem for the public would ensure that novel legal arguments in
the FISA court would face a consistent, steady challenge no matter who the
provider is, thereby strengthening the FISA process by subjecting results
to checks and balances. Without such a process, the court and the
Department of Justice must work through difficult legal issues with no
balancing input. An advocate could participate in all cases involving a new
issues its orders, and a preference for secrecy over public disclosure at any cost. Appointing

statute or authority or a new interpretation or application of an existing authority. The special advocate
could choose the cases in which to be involved, or the court or a provider that receives process could
request its involvement where an opposition would be useful to test and evaluate the governments legal

The special advocates office could be established with

proper security safeguards to draft, store, and access classified
records more efficiently. It could also be required to report to the
public and Congress the number of cases it has argued and how often it has limited or pared back the
governments requests. It would provide a vital counterpoint for legislators
exercising their oversight duties. The special advocate would be
especially useful in cases in which the government demands access
to communications in a way that may have a profound efect on
people other than the target, such as when decryption may be involved or when a provider
arguments.

is asked to provide assistance in ways that are unlike traditional wiretaps. Providing for an advocate in
front of the court would also resolve several problems for companies and individuals faced with receiving
FISA process or having evidence gathered using that process used against them. The statutory process as
it stands now does not necessarily provide for complete transparency or a level playing field for the
provider. As the published decision in In re Directives makes clear, a phalanx of 11 government lawyers,
including the acting solicitor general of the United States, was involved in defending the statute. The
decision also shows that some of the documents relied on by the court of review were classified
procedures submitted as part of an ex parte appendix that remains sealed. 551 F.3d at 101314. If an
advocate were present in other matters before the FISC, the government and court would be more likely to

Public
access would also provide litigators with a much greater opportunity
to use those challenges in advising and defending their clients . The
FISCs decisions may or may not have been correct, depending on your view, but the secrecy
employed up to this point erodes the safeguards built into our adversarial
court system. The presence of an advocate would help to ensure that
the government cannot continue to keep new opinions classified,
unless it is truly in the interest of national security to do so. Revising
provide more public information on what challenges have and have not been successful.

FISA is no easy task, and analyzing and responding to the FISA process presents thorny questions. There is
one constant throughout the history of surveillance, as was the case in the Church Report and as is the

The government will use the

surveillance power it is given to its fullest . This article does not opine on when that
is and is not appropriate. Americas long history of surveillance and current events
demonstrate a need to revise the process and take a hard look at
whether courts have the tools to oversee executive branch
case today with news reports about NSA surveillance:

surveillance and when the executive branch should be allowed to use

foreign intelligence procedures. Introducing an advocate to test the
governments theories and surveillance in every caseeven the ones it
brings ex partewould go a long way toward ensuring that the American public is not shocked
again.

The FISA Court lacks technical expertise - results in bad

decisions by the court - a privacy advocate fills the gap
Elisabeth Goitein and Faiza Patel, 2015, Brennan Center for Justice,
what went wrong with the FISA court,
http://www.brennancenter.org/sites/default/files/analysis/What_Went_
%20Wrong_With_The_FISA_Court.pdf, mm

The adversarial system does more than assure the due process rights of the parties. It
ensures that all relevant facts and legal arguments are aired, which in
turn enables the tribunal to reach an accurate decision. FISA Court
judges are more likely to misinterpret the law if they hear only one
side of the case. As the Supreme Court stated in a different context: [T]he need for adversary
inquiry is increased by the complexity of the issues presented for adjudication. . . . Adversary proceedings
will not magically eliminate all error, but they will substantially reduce its incidence by guarding against
the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in
and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment

judges make mistakes;

that is why the federal judicial system has two levels of appeal. Indeed,
exclusionary rule demands.190 Of course, it is well understood that

the Supreme Court often waits for multiple lower courts to address an issue before taking it up. This
process of assessing, comparing, and honing decisions across jurisdictions and levels of review make it

In the FISA context,

there is no opportunity to appeal an erroneous grant of an
application, because the government is generally the only party.
Operating in their own echo chamber, and hearing from only one party, the
chances that FISA Court judges will misinterpret the law and perpetuate
that misinterpretation in subsequent decisions is high . When such misinterpretations involve
more likely that the judicial system as a whole will get to the right result.
however,

fundamental questions of constitutional law that affect all Americans, the error is anything but harmless.

A privacy advocate dramatically overhauls court decision

making this curtails surveillance practices even if there
isnt a substantial reduction in the number of government
surveillance requests
James Carr, 7/22/2013, (a senior federal judge fro the Northern District of
Ohio that served on the Foreign Intelligence Surveillance Court from 2002 to
2008),The New York Times, a better secret court,
http://www.nytimes.com/2013/07/23/opinion/a-better-secret-court.html, mm

James Robertson, a retired federal judge who served with me on the FISA court, recently called for greater
transparency of the courts proceedings. He has proposed the naming of an advocate, with highlevel security clearance, to argue against the governments filings. He suggested that the Privacy and Civil
Liberties Oversight Board, which oversees surveillance activities, could also provide a check. I
would go even further. In an ordinary criminal case, the adversarial process assures legal representation
of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in

Congress could, however, authorize the

FISA judges to appoint, from time to time, independent lawyers with
security clearances to serve pro bono publico for the publics good to
the conventional sense, represent the target.

challenge the government when an application for a FISA order

raises new legal issues. During my six years on the court, there were several occasions when
I and other judges faced issues none of us had encountered before. A staff of experienced lawyers assists

The low FISA

standard of probable cause not spinelessness or excessive deference to the government
explains why the court has so often granted the Justice
Departments requests. But rapid advances in technology have
outpaced the amendments to FISA, even the most recent ones, in 2008. Having
lawyers challenge novel legal assertions in these secret proceedings
would result in better judicial outcomes. Even if the government got
the court, but their help was not always enough given the complexity of the issues.

its way all or most of the time , the court would have more fully
developed its reasons for letting it do so. Of equal importance, the
appointed lawyer could appeal a decision in the governments favor
to the Foreign Intelligence Surveillance Court of Review and then
to the Supreme Court. No opportunity for such review exists today,
because only the government can appeal a FISA court ruling.

Extensions Solvency

Inherency/Solvency AT FREEDOM Act Solves

(Amicus Panel)
The court wont utilize an amicus panel past
opportunities prove
Elisabeth Goitein and Faiza Patel, 2015, Brennan Center for Justice,
what went wrong with the FISA court,
http://www.brennancenter.org/sites/default/files/analysis/What_Went_
%20Wrong_With_The_FISA_Court.pdf, mm
non-adversarial proceedings are a
bad way to make law. The shortcomings are starkly illustrated by the
FISA Courts approval of bulk collection. The question the court
considered in 2006 whether collecting the phone records of millions of admittedly innocent
Americans comports with the Constitution and the Patriot Act was one of first impression and
overriding legal importance. Yet all of the evidence and all of the briefs were submitted by
one party: the government. Despite the gravity of the issue, the FISA Court did
In addition to being constitutionally suspect, secret,

not exercise its authority to solicit participation by amici curiae

Instead, it granted the
governments request without even a written opinion (although one was
knowledgeable outside parties who serve as friends of the court.
produced after Edward Snowdens disclosures in 2013).189

FISA court judges wont utilize an Amicus panel

Vols 6/19
Dustin, June 19. SECRETIVE SURVEILLANCE COURT SKIPS TALKING TO
PRIVACY ADVOCATES
http://www.nextgov.com/cybersecurity/2015/06/secretive-surveillance-courtskips-talking-privacy-advocates/115864/, PB
The secretive court that oversees U.S. spying programs selected to not consult a
panel of privacy advocates in its first decision made since the enactment earlier this month
of major surveillance reform, according to an opinion declassified Friday. The Foreign
Intelligence Surveillance Court opted to forgo appointing a so-called
"amicus" of privacy advocates as it considered whether the USA
Freedom Act could reinstate spying provisions of the Patriot Act even

though they expired on June 1 amid an impasse in the Senate. The Court ruled that the Freedom Act's
languagewhich will restore the National Security Agency's bulk collection of U.S. call data for six months
before transitioning to a more limited programcould revive those lapsed provisions, but in assessing that

Judge Dennis Saylor concluded that the Court did not

first need confer with a privacy panel as proscribed under the reform
law. "The statute provides some limited guidance, in that it clearly contemplates that there will be
narrow legal question,

circumstances where an amicus curiae is unnecessary (that is, 'not appropriate')," Saylor wrote. "At a
minimum, it seems likely that those circumstances would include situations where the court concludes that
it does not need the assistance or advice of amicus curiae because the legal question is relatively simple,
or is capable of only a single reasonable or rational outcome ."

Saylor reasoned that in

decisions where the "outcome is sufficiently clear" and that
reasonable jurists would agree, the appointment of privacy panel is
not necessary by the Freedom Act. "This is such an instance," Saylor concluded. But some privacy

advocates were rankled by the Court's reasoning, and suggested Saylor was too relaxed in his discussion
regarding when privacy experts should be called on to weigh in on a decision. "Propriety in the spirit of the

USA Freedom Act is when the decision at hand were to have an impact on the rights of individuals, not
necessarily when the Court conjectures that a decision is self-evident," said Amie Stepanovich, U.S. policy
manager at Access, an international digital-rights organization. "It is the job of the amicus to raise issues
that may not be readily apparent on first blush, meaning that what first may appear to be a clear-cut
decision actually raises underlying questions. The Court must respect the presumption of the statute in
favor of appointing the amicus." Many civil-liberties organizations that supported the Freedom Act view its
creation of a privacy panel as one of the law's strongest and most important provisions. The FISA Court has
long been derided as a "rubber-stamp" for government surveillance ordersa criticism that has only grown
more pronounced in the two years since the Edward Snowden revelations began. Friday's declassified
opinion did not restore the NSA's controversial phone dragnet, but it set the stage for the Court to do so.
The Freedom Act will effectively end the mass-surveillance protocol, first exposed publicly by Snowden, but
only after a six-month transition period during which the NSA prepares to switch to a more limited
program. Under the new system, the NSA will be able to collect call metadata from phone companies only
on an as-needed, generally targeted basis after obtaining approval from the FISA Court. The decision notes
that the Justice Department applied for a new surveillance order on June 11 but "factual details of the
applications are classified, and not necessary to resolve the issue addressed in this opinion."

The Freedom Act appointed non-binding amicus advocates

to the court the FISC will ignore them
Lauren Williams, 5/15/2015, Think Progress, what you need to know
about the NSA reform bill passing through congress,
http://thinkprogress.org/justice/2015/05/15/3658934/need-know-nsa-reformbill-passing-congress/, mm

FISA can decide to not use a civil liberties advocate and hide
information by classifying it under state secrets. While summaries of notable
FISC hearings and decisions would be publicly available, the court could choose not to
use an advocate and decide not to reveal documents or information
if one was used. That basically keeps things the same , Greer said, and
allows the court to make decisions unchallenged. The EFF admits previous
versions of the bill were stronger on this issue, allowing the civilian
advocate to indiscriminately challenge FISC. But in the House bill,
the final decision to use an amicus is left to the court, however, that decision
is public record.

Only a special advocate resolves Article III problems with

the court an amicus panel will get ignored
Elisabeth Goitein and Faiza Patel, 2015, Brennan Center for Justice,
what went wrong with the FISA court,
http://www.brennancenter.org/sites/default/files/analysis/What_Went_
%20Wrong_With_The_FISA_Court.pdf, mm

Several existing reform proposals would address the lack of a party

opposing the government in FISA Court proceedings by establishing
a permanent public interest advocate (or slate of advocates) to represent the
interests of people afected by government surveillance .272 President
Obama and two former judges of the court publicly support the appointment of such an attorney,

An alternative approach would

allow the FISA Court to hear from certain individuals or interest groups as
amici curiae. 274 The court could call upon these outside representatives to weigh in on potential
privacy and civil liberties concerns raised by a government application.275 The latter approach
would not resolve the Article III problem, particularly if participation
commonly referred to as the Special Advocate.273

were left to the court to decide. The FISA Court already has
discretion to solicit or permit amicus participation, and with few
exceptions, has preferred to rely on the governments submissions
alone.276 Article III would be best served by strengthening the
special advocate concept to the greatest extent possible, including
by ensuring that special advocates are notified of cases pending
before the court, have the right to intervene in cases of their
choosing, and are given access to all materials relevant to the
controversy in which they are intervening.

Inherency/Solvency AT FISC Sufficient Now

Rubber Stamp
The court is a rubber stamp it grants nearly every
government request for surveillance
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 127-28, mm
the FISA court, which
grants almost every surveillance request that the NSA submits.
Further discrediting Obamas assurances is the subservient posture of

Defenders of the NSA frequently tout the FISA court process as evidence that the agency is under effective

court was set up not as a genuine check on the

governments power but as a cosmetic measure, providing just the appearance of reform to
oversight. However, the

placate public anger over surveillance abuses revealed in the 1970s. The uselessness of this institution as
a true check on surveillance abuses is obvious because the FISA court lacks virtually every
attribute of what our society generally understands as the minimal elements of a justice system. It

meets in complete secrecy; only one party the government is

permitted to attend the hearings and make its case; and the courts rulings are
automatically designated Top Secret. Tellingly, for years the FISA court was housed in the Department of
Justice, making clear its role as a part of the executive branch rather than as an independent judiciary

the court almost

never rejects specific NSA applications to target Americans with
surveillance. From its inception, FISA has been the ultimate rubber stamp.
In its first twenty-four years, from 1978 to 2002, the court rejected a
total of zero government applications while approving many thousands. In the
subsequent decade, through 2012, the court has rejected just eleven
government applications. In total, it has approved more than twenty
thousand requests.
exercising real oversight. The results have been exactly as one would expect:

FISA is a rubber stamp modern technology outstrips the

ability of the court to efectively monitor government
surveillance adding an adversary to the court is key
Bryce Denson, 11/26/2013, Oregon Live, FISA court, which approves FBI,
NSA surveillance, faces reform challenge from Oregon senators,
http://www.oregonlive.com/news/index.ssf/2013/11/fisa-court-oregon-nsasurveillance.html, mm

During the Cold War years of the 1970s, President Richard M. Nixon secretly approved orders for domestic
electronic surveillance of America's enemies. Bipartisan lawmakers drafted FISA to take decisions about
such snooping out of the Oval Office and put them into the hands of the three branches of government.
The American Civil Liberties Union blessed the legislation, while some constitutional scholars and civil

permits
the executive branch -- by way of the Justice Department -- to snoop on suspects
electronically or physically. The judicial branch staffs the court with U.S. district judges. The
legislative branch, through congressional committees, oversees its decisions. Congressional
leaders at the time assured Americans that the Justice Department wouldn't misuse FISA by going
after suspected criminals. They expected only a small number of operations to
be approved. But the court has approved more than 33,000
libertarians argued that Congress was creating a star chamber. The law enacted 35 years ago

surveillance orders, the bulk of them since 9/11, according to its unclassified
annual reports. From 1979 to 2012, the court turned down 11 requests.
Critics of the court call it a panel of rubber-stampers . Turley, the law school
professor, doesn't question the integrity of the court's judges. He takes aim at the wording of the law,
which in his opinion allows the government -- including the FBI, NSA, and CIA -- to target people for
surveillance without the basic probable cause standards afforded by the Constitution. "The statute does
not give the judge the authority to turn down applications when the criteria (for eavesdropping) are met,"
Turley says. "And those criteria are so low that they are always met." He recalls working as an intern at
the NSA during the Reagan administration, when he had occasion to go inside the court. "I was horrified
by what I saw," he says. "It was abundantly clear this was a Potemkin Village. ... One can only call this a
court if you abandon every substantive meaning of that term. This court has less authority than a standard
municipal traffic court. There is no serious review, because there's no substantive authority to question or
reject these applications." Those intimately familiar with the court's operations, including national security
lawyers past and present, say rejections of FISA applications are rare because they are so exhaustively
vetted before ever reaching a judge. For example, FBI agents and their division counsels pore through and
edit applications before passing them to lawyers in both the bureau's headquarters and a panel of Justice
Department lawyers. By law, topmost officials in the bureau and Justice Department must sign
certifications attesting to the evidence and the need to eavesdrop. The court's judges also rigorously
review applications. A recently declassified document shows the panel requires revisions to nearly one in
four applications before approval. The process is so exacting that FBI lawyers denied requests by
Minnesota agents in 2001 to obtain a FISA order that would allow them to search the laptop of Zacarias
Moussaoui. The al-Qaida figure is now serving life in prison for his role in the 9/11 conspiracy. The FBI has
investigated six criminal cases in Oregon since 9/11 with evidence obtained under FISA. Perhaps the most
sensational arrest occurred Nov. 26, 2010, when a Somali American teen, Mohamed Mohamud, attempted
to detonate what he thought was a massive fertilizer bomb at Portland's Pioneer Courthouse Square. The
bomb, which Mohamud armed to go off during the city's holiday tree lighting ceremony, was a harmless
fake secretly built by the FBI and introduced to Mohamud by undercover FBI agents posing as al-Qaida
terrorists. Prosecutors filed a notice after Mohamud's arrest to let the defense know agents used FISA to
collect evidence. (Much later, on Nov. 19, 2013, prosecutors filed another notice acknowledging the
investigation collected electronic intercepts from overseas.) The sting operation shocked city leaders. The
FBI's Joint Terrorism Task Force gave no previous notice about the case to then-Mayor Sam Adams, who
served as police commissioner, because the city wasn't a member of the multi-agency counterterrorism
team. Portland had dropped out of the task force in 2005, the first city in America to sever such ties.
Hinnen, a native Portlander, flew to the city on Valentine's Day 2011 to urge the City Council to rejoin the
JTTF. He was then serving as a senior lawyer in the Justice Department's National Security Division. Today,
Hinnen works for the Perkins Coie law firm in Seattle, where his chores include representing people
wrapped up in national security probes. While he now works on the other side of FISA, he strongly supports
the work of the court and the law that created it. "There are a number of safeguards in place already," he

additional safeguards that could be put into place." One

change advanced by members of Congress, he says, is turning the court's
operations into an adversarial proceeding. As it stands, government lawyers
says. "But there are
potential

submit applications to the court, where they are reviewed by legal staffers and passed to judges such as

the court does not

hear from anyone representing the privacy or civil liberty interests
of potential targets. Creating a panel of legal advocates with
security clearances could change that, Hinnen says. These lawyers could
ofer input about privacy and constitutional matters as judges
decide whether to grant or turn down a surveillance order. Wyden and
Merkley co-sponsored a bill by Sen. Richard Blumenthal, D-Conn., that would create an
executive-branch position -- Office of the Special Advocate -- to protect the
rights of targeted individuals. Wyden introduced a bill that would create an advocate
within the judicial branch. The senators hope such an advocate would provide the
court with a balanced view of issues, especially when its judges are
making significant legal interpretations. Wyden says he doesn't expect such an
Mosman, who served from 2001 to 2003 as the U.S. attorney for Oregon. But

advocate to get involved in routine applications. Until Snowden's leaks began to reveal the extent of NSA
data collection, the public knew little about the court's decisions. Now that terms like "telephony
metadata" have become part of the national lexicon, Wyden finds himself fielding questions from
constituents. Most are critical of the court Wyden calls the "most bizarre" in the land. "People have asked
me about the FISA court in the barber shop," he says. The senior senator from Oregon says the Patriot Act
sent the court's decisions off the tracks. The 2001 law changed a key tenet of FISA. Before its passage, the
government had to show that the purpose of its

FISA surveillance was to gather foreign-intelligence

information. After its passage, the government had only to show that a "significant purpose" was to collect
foreign intelligence. Wyden says the law is supposed to allow the government to collect records on U.S.

has
"morphed,"he says, into bulk phone data collection. Technology is partly to blame,
he says, because it once had limitations. "Now," he says, "the technology seems to be
able to do just about everything -- unbridled. So protections for the
liberties of our people become even more important ." Lewis & Clark Law
School professor Tung Yin says the NSA's technological reach may have
outstripped the current law's ability to protect privacy . But he questions
residents when they are relevant to terrorism or other national security matters. But it

whether the government's use of FISA to collect vast stores of emails and phone-call data harms innocent
residents. Under the law, the agency must get the court's permission to search for specific data. "If no
human is looking at it, is there a real privacy harm?" he asks. "I think one answer to that is, how much do
you trust the government?" Oregon's federal public defender, Steven T. Wax, has an answer. Wax is one
of more than a dozen lawyers to have argued FISA's constitutionality in Portland's U.S. District Court since
9/11. He says the law and its younger brother -- the Classified Information Procedures Act of 1980 -- have
made judges and government lawyers privy to secret files to the exclusion of defendants and their

FISA targets have no right under the law to know they were
subjected to surveillance unless they learn, as Wax's client Mohamud did, that they were
lawyers.

charged with crimes. The law prevented Wax from learning from the government or the court what
evidence the Justice Department provided to the surveillance court to spy on Mohamud. At a hearing in
the case, Wax told U.S. District Judge Garr M. King that prosecutors keep filing classified documents with
him, essentially telling the defense, "trust us" to which Wax says, "no, thank you."

Current FISC structure fails it doesnt adequately check

domestic surveillance
Ben ONeill, 2/22/2014, [lecturer at the University of New South Wales in
Australia], Mises Institute: Austrian Economics, Freedom, and Peace. FISA,
the NSA, and Americas Secret Court System, https://mises.org/library/fisansa-and-america%E2%80%99s-secret-court-system, mm
We begin our analysis of the legal machinations of the NSA by looking at the secret court system which
supposedly practices judicial oversight over the agency.

Surveillance Court

This Foreign Intelligence

(FISA Court1 or FISC) was created in 1978 as a result of recommendations of

was
purportedly created as an additional safeguard against unlawful
activity by US intelligence agencies, which had been found to have committed various
kinds of unlawful surveillance activities. The goal of the FISA court, as originally conceived,
was to place judicial oversight on the surveillance activities of the
NSA, by requiring the agency to obtain warrants from the court
before intercepting communications. This was to place the NSA under the same kind of
the Church Committee, composed after a series of intelligence scandals in the 1970s.2The court

legal constraints as regular police, with requirements for evidence being put before a court in order to
obtain a warrant for search. However, unlike the court system for regular police warrants, the judicial
system for the NSA is far more secretive. In order to give judicial scrutiny to preserve the secrecy of NSA
activities, the FISA court meets in secret with only government representatives present at its proceedings.
The hearings are closed to the public and the rulings of the judges are classified, and rarely released after

The judges in
the FISA court hear applications from a representative of the NSA, and ask
questions, allowing the agency to amend their applications to meet any shortcomings. Adversarial
argument from other parties is absent, since there are no other parties at the
the fact. (Some rulings have been partly declassified, but are still heavily redacted.)

hearing. Some of this is similar to the operation of public courts for regular police warrants, but there is a
great deal more secrecy, and a great deal more power granted to the government. One distinction
between the FISA Court, and regular public courts issuing warrants for police searches, is the type of
warrant system that is practiced under the FISA Court. For police searches it is generally the case that the
police will apply for a warrant to surveil a particular person, or a small group or people, and give some
evidence of probable cause for a search, i.e., the police must convince the court that there is reasonable
suspicion for surveillance on a case-by-case basis. Under the FISA Court the

warrants for the

NSA are much wider in scope. Many of the warrants authorize the collection of
communications data on a particular phone carrier, capturing the communications of millions of people
over sustained periods of time. Other warrants are procedure-based warrants which authorize a
proposed data-collection process, subject to various minimization procedures designed to confine the

These generally allow mass data-collection on a population ,

with application of the minimization procedures left to the NSA. As
with other law enforcement authorities, the record of the NSA in obtaining
warrants from the FISA court is imposing. In the 33,949 applications that were
resolved from 1979-2012, only 11 were rejected (0.0324%).3 (The rejection rate for
querying of data.

other wiretap applications in state and federal courts is similarly low.4Though originally designed merely to
issue secret warrants for surveillance, the powers of the FISA Court have expanded over time, with a large
expansion of power occurring in 2008, when the Bush administration retroactively immunized any
electronic communication service provider from any liability for their complicity in unlawful NSA

the powers of the

FISA Court have expanded to the point that it has undertaken quasiconstitutional proceedings, allegedly validating the surveillance
programs as being within the constitutional powers of the US
government. Even in this latter function, the hearings have been closed to the public and have been
surveillance.5 In order to deal with a large number of warrant applications,

conducted with only the government giving arguments to the court. Hence, the government has had free
rein to be the only party represented at hearings which have purported to determine its own legal powers

the FISC
has basically become a parallel Supreme Court, but one which
under the US Constitution. For this reason, one commentator has noted that, [i]n truth,

operates in almost total secrecy .6 The efect of this secret court

system has been to allow the NSA to build up 34 years of judicial
precedents in favor of its expansive powers, with a large body of purported
constitutional findings validating its own power. All of this has been conducted behind closed doors,
without the inconvenience of opposing argument from other parties. Perhaps unsurprisingly ,

this
secret court system has opened up opportunities for judicial capture
for the NSA. As noted by legal scholar Elizabeth Goitein, [l]ike any other group that meets in secret
behind closed doors with only one constituency appearing before them, theyre subject to capture and
bias.7 For former FISA court judge James Robertson, these remarks have rung true to such an extent that
he has publicly complained about the ex parte nature of the FISA court proceedings.8 According to this

[w]hat FISA does is not adjudication, but

approval. This works just fine when it deals with individual
applications for warrants, but the 2008 amendment has turned the
FISA court into an administrative agency making rules for others to follow.9 To
the extent that judicial capture has been resisted by the court, it has
nonetheless functioned as a compliant entity to the NSA , through the fact
former member of the court,

that any criticisms against the unlawful actions of the NSA have been kept secret, and have been without

When the Chief Judge of the FISA court

was alerted to a mass of systematic misrepresentations to the court
by the NSA, the consequence was a stern rebuke in a classified
any serious legal consequence to the agency.

memorandum that was not available to the public until years later.10 (In fact, the opinion was only
declassified due to public pressure as a result of the Snowden leaks. If not for these leaks it is likely that
the opinion would still remain classified today.) In March 2009, following breaches of the courts orders, the
Chief Judge found that the testimony of General Keith Alexander setting out the NSA interpretation of the
courts orders strained credulity by interpreting a part of the orders as effectively being optional.11 He
also found that [t]he minimization procedures proposed by the government in each successive application
and approved and adopted as binding by the orders of the [FISA Court] have been so frequently and
systematically violated that it can fairly be said that this critical element of the overall [metadata] regime
has never functioned effectively.12Despite lacking confidence that the NSA would comply with future
orders, the Chief Judge allowed the mass collection of metadata to continue, and allowed the government
to continue to apply for access to this data on a case-by-case basis, or for imminent threats, until such
time as they completed a review of their procedures. The NSA completed their review and the regular

Some
commentators have taken this judicial rebuke by the FISA court as
operation of the mass-surveillance program was restored shortly afterward.

proof of the toughness of the court on the NSA, but in fact, it is

proof of their subservience to the agency. Despite finding that there had been
systematic misrepresentations to the court by the NSA, no action was taken against
officials who had given false statements to the court. There was no
disciplinary action of any kind against personnel of the agency, and the rebuke of the court remained a
private classified document, only available to the agency being criticized. NSA officials who had
systematically misled the court were free to read this rebuke knowing that no consequence would follow
from it, since no member of the public could read about their actions. When the matter was later exposed
to the public (as a result of the Snowden leaks) the Chief Judge complained that his court ... is forced to

The surveillance
programs of the NSA continued, with ongoing approval by the court,
after a short period of technical review conducted by the NSA. Such toughness as this is
what passes for checks and balances within the system of secret
courts. The dubious nature of the FISA court is well-understood
within the wider judicial system, a fact which was clear in the Klayman preliminary
rely upon the accuracy of the information that is provided to the Court.13

judgment. The stark distinction between the secretive FISA court and the public court system was
recognized by Judge Leon when he observed that, ... no court has ever recognized a special need
sufficient to justify continuous, daily searches of virtually every American citizen without any particularized
suspicion. In effect, the government urges me to be the first non-FISC judge to sanction such a
dragnet.14It is notable here that Judge Leon felt that it was significant that he was the first non-FISC
judge to consider the matter, a tacit recognition that the judgments of the FISC cannot be regarded as true

surveillance programs
by a secret court violates the requirement for due process of law .
According to Barnett, [s]ecret judicial proceedings adjudicating the rights
of private parties, without any ability to participate or even read the
legal opinions of the judges, is the antithesis of the due process of
constitutional scrutiny. Legal scholar Randy Barnett has argued that

law . Though we refer to such an institution as a court system in the

such a court lacks many of the characteristics of
a proper court. It is in fact more akin to bodies such as the English
Star Chamber, which conducted judicial hearings in secret, issuing
secret rulings afecting parties who were not represented in its
hearings.
positive-law sense, in truth,

The non-adversarial structure of the court enables

unchecked mass surveillance, threatens the separation of
powers, and undermines the credibility of the judiciary
Douglas Lindner, 4/9/2015, New York University Journal of Legislation and
Public Policy Quorum, Revisiting the FISA Court Appointment Process,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592850, mm

The Foreign Intelligence Surveillance Court (FISC) and its Court of Review (FISCR)1 are the
principal arbiters of mass surveillance by the United States. These two
FISA courts are the only active Article III courts without full-time judges directly appointed by the
President.2 FISA judges serve part-time for fixed terms.3 The Chief Justice unilaterally chooses eleven
district judges for the FISC and three district or circuit judges for the FISCR,4 and designates presiding
judges for each.5 FISA judges are life-tenured on their respective generalist courts, but serve seven-year
terms on the FISA courts, after 8which the life-tenured Chief Justice replaces them.6 Putting aside the

the FISA courts are structurally

lacks democratic legitimacy, threatens the
separation of powers, undermines the ideological balance of the
judiciary, and asks too much of generalist judges. Congress should amend the
substantive controversies of surveillance law, I argue that
flawed. This appointment process

Foreign Intelligence Surveillance Act to create permanent FISA judgeships with Presidential appointment
and Senate confirmation. Life tenure under Article III means that the federal judiciary is not simply a

reflection of any one President or Senate. The current bench includes judges appointed by each of the
past ten Presidents.7 But FISA judges serve seven-year terms and the Chief Justices who appoint them
tend to serve longer, so each Chief Justice since the creation of the FISA courts in 1978 has had the
chance to fill every seat on the FISA bench.8 With the exception of Harlan Fiske Stone, every Chief Justice
in the past two centuries has served for over seven years.9 Thus, it is likely that the trend of all FISA

The FISA courts operate unlike

any other court. Their proceedings are classified. Their decisions are classified. Their opinions are
classified. All cases are heard ex parte, with only the government
represented. Despite the massive stakes and deeply technical issues
involved, these are specialized courts without specialized judges.
Counsel for the government argues for broad surveillance powers,
and designated district judges rotate the part-time duty of ruling on
those requests without ever hearing opposing arguments .10 Because
the case law is secret, judges have no prior exposure to FISA court
precedentthey have to learn it for the first time after they are selected. And judges normally serve
judges being chosen by a single individual will continue.

only one of every eleven weeks on the FISC, with the other ten at their home district courts.11

Executive branch lawyers work closely and informally with FISC staff attorneys on the
details of the governments requests, and they are almost never denied in the end.12
Perhaps because the governments requests are so frequently granted, the FISCR has only been
empaneled to hear two appeals in its thirtyseven year history.13 Likewise, the Supreme Court has never
heard a case originating in the FISA courts.14 The FISC is technically capable of meeting en banc, but it

Emerging technology and the FISA courts allow

Americas intelligence agencies to collect mountains of data on
rarely does so.15

millions of people that would normally require individualized search

warrants.16 For example, a leaked April 25, 2013 FISC order required Verizon Business Network

Services to continue giving the NSA all call records for all customers in the United States every day for
three months.17 In a heavily redacted, declassified opinion, a FISC judge allowed the government to
collect Internet metadata en massea level of sophisticated intrusion into the private lives of Americans
that was inconceivable even one generation ago.18 The Foreign Intelligence Surveillance Act was passed
in the wake of widespread surveillance abuses.19 Its authors were keenly aware that unchecked
surveillance was a threat to democracy, but they could not have imagined how easy, how pervasive, and

When Congress created the FISA courts

in 1978, the World Wide Web had not even been invented yet.20 As
the challenges of privacy and surveillance policy grow and evolve,
so must the institutions that grapple with them. The increasing
importance and complexity of these issues, as well as the advent of
mass collection authorizations, demand a full-time FISA court with
democratic legitimacy and constitutional footing befitting the
gravity of its decisions. This Essay focuses on concerns regarding the FISA courts
appointments and composition, but there are other problems demanding attention. Ex parte
proceedings, in which only pro-surveillance arguments are heard,
raise serious doubts about whether FISA courts give due
consideration to civil liberties. It should not be a judges duty to anticipate the contrary
how dangerous surveillance would become.

arguments of hypothetical adversaries. Impartial judges are only human and will inevitably be swayed by

The risk is particularly acute when

the one party presentthe governmenthas far greater expertise
than the judge and insists that its requests are vital to prevent the
next 9/11. Proposals have been put forth to appoint special
advocates, either from within the government or from a pool of cleared outside lawyers, to
argue for the publics privacy and against the government in the
FISA courts.21 These proposals would substantially increase the
hearing one side of an argument and not the other.

quality of judicial process and deliberation , and likely ensure a

more thoughtful and balanced body of FISC precedent . But improvements in

process and deliberation are not enough. The makeup of the FISA courts is critical because the stakes are
so high, the technology changes so rapidly, and the law is so open to interpretation. Reasonable citizens
and respected scholars disagree as to whether certain programs authorized by the FISC are vital to
national security or infringe upon the rights of hundreds of millions of peopleor both. The job of a FISA
judge is to secretly rule on the acceptable scope of a democratic governments dragnet snooping into its
citizens lives. The weight of that responsibility demands that the judges entrusted with it be appointed
through the regular constitutional process. Once chosen, they should focus their professional energy on
grappling with these issues, rather than doing so as a secondary responsibility of a generalist judge.

Inherency/Solvency AT FISC Sufficient Now

- Lacks Expertise
Ex parte proceedings undermine the credibility and
efectiveness of the court judges lack experience with
surveillance law this creates a judicial environment that
explicitly favors the government
Douglas Lindner, 4/9/2015, New York University Journal of Legislation and
Public Policy Quorum, Revisiting the FISA Court Appointment Process,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592850, mm
FISA judges lack that expertise. Surveillance law is complex ,
idiosyncratic, scientifically technical, and subject to quick developments as
technological capability rapidly evolves. But because the FISCs
extensive body of case law is mostly classified, a newly designated
FISA judge likely has less familiarity with FISC precedent than a new

generalist judge has about virtually any other area of law. No other court is composed of judges who were
totally ignorant of the underlying law until their appointment. Yet a hypothetical Court of International
Trade judge who knew nothing of trade law would have a much easier time getting up to speed than FISA

Secret law means no scholarship and no commentary by

other courts, so new FISA judges are without secondary sources or
persuasive authority to learn from. Appeals to the FISCR are extraordinarily rare, so
there is a dearth of higher court precedent for guidance. The secrecy and lack of
scholarship make for a steep learning curve, exacerbated by the fact
that FISA judges are not actually specializing. They spend ten of
every eleven weeks at their regular district courts.62 On top of all
that, FISA judges are expected to anticipate hypothetical arguments
that might be made by an absent advocate for privacy. Furthermore, because
judges do.

the only lawyers with experience in FISA court precedent are the rare few who have practiced before the
FISC, it is less likely that any particular generalist judge would have experience with FISA court case law

one-sided ex parte
proceedings mean that all current and former FISA court
practitionersall those who know the case lawhave worked exclusively on the
governments side. This creates a risk of groupthink from which
than with nearly any other significant body of law. Likewise,

judges are not immune . That risk is compounded by the intimate

working relationship between FISA court personnel and executive
branch attorneys63 and the alleged pro-surveillance bias among
Roberts appointees to the FISA courts.64 In the absence of an
adversary or any advocate for the rights of the public, it is the
judges responsibility to anticipate the arguments those absent
parties might make. Judicial deference must not be a function of
judicial ignorance .

The court lacks expertise a privacy advocate is key

Jennifer Hoelzer, 6/6/2013, The Huffington Post, what you should know
about the foreign intelligence surveillance court,

http://www.huffingtonpost.com/jennifer-hoelzer/what-you-should-knowabou_1_b_3399584.html, mm
I'm guessing you have to be a real pro at interpreting surveillance
law to be a judge on the FISA Court, right? [A:] Not exactly . FISC is
currently composed of eleven federal judges already serving on the bench. While these
judges are, no doubt, experts on civil and criminal law, because the federal court system
doesn't handle foreign intelligence surveillance cases, it is doubtful
that these judges would have a great deal of experience in these
matters. Moreover, while the original FISA law was pretty straight forward, the Patriot Act,
which passed in 2001 and the subsequent FISA Amendments Act of 2008 made
a lot of changes to the laws, which theses judges are now in charge
of interpreting.
[Q:] So,

Solvency Improves FISC Decision-making

Section 215 proves the FISA court makes mistakes a
privacy advocate is key to improve decision-making and
curtail domestic surveillance
Andrew Weissman, 6/12/2014, Just Security, The Foreign Intelligence
Surveillance Court: Is Reform Needed? http://justsecurity.org/11540/guestpost-foreign-intelligence-surveillance-court-reform-needed/, mm
A principal argument made by advocates for the status quo including by an
eminent former FISC presiding judge is that the process is working as evidenced by the

statistics. These statistics were laid out for first time by then-Judge Walton in his 7/29/13 letter to
Congress. In footnote 6, he noted a slightly lower rate of approval of FISA warrants than for Article III
criminal warrants, although both are over 99%. A high rate of approval in both settings is understandable
the government seeks to present that which will succeed, whether it is a search warrant, Title III wiretap,
or FISA electronic warrant. If you are in the government, you know the standard you must meet and you do

But is it
I dont think
so. First, the nature of the issues under consideration in national
security matters makes having another voice at the table of greater
need. In the national security context, the legal issues presented in a
government application can be far more complicated and have far greater
your best to meet it and you do not present the matter until you believe you have the goods.
entirely fair to view the two tracksnational security and criminalas comparable ?

consequences than in a routine criminal matter. The typical criminal warrant presents a quotidian factual
determination as to whether probable cause has been established; while similar factual issues arise in the
national security context in connection with individual warrant applications, complex, novel, and broad
legal issues are more likely to present themselves in the FISC (see, e.g., the 215 NSA metadata program).

given the stakes, the government may be more willing in the

national security context to push the envelope legally and get closer
to the line have chalk on its cleats thus presenting closer issues for decision.
Second, although the FISC is composed of excellent Article III judges, they are trained civil and
criminal lawyers, and do not come to the FISC as national security experts.
And

Indeed, given the part-time nature of the judges FISC duties, there is simply not the same level of on-the-

Lets use the NSA 215 program as an

illustration. It is now public that prior to the leaks, it was reauthorized by the FISC
over 30 times, by over a dozen different FISC judges (as the program came up for renewal every
90 days since its inception). No judge rejected the governments applications .
Prior to the leaks, there was no written opinion on the legality of the
program. There was, however, one thoughtful and detailed decision on a different program that raised
similar issues. Post leaks, we have two written FISC decisions upholding the program, but a split
among Article III judges who had the benefit of adversarial process as to its legality. Additionally, the
Presidents Privacy and Civil Liberties Oversight Board (PCLOB) an
independent executive agency, comprising serious and thoughtful people has found, in a detailed
report endorsed by a majority of its five members, that the NSA program was not
statutorily authorized. It too had the benefit of input from myriad sources prior to issuing its
findings. Of note, no FISC judge has yet to address the principal arguments
made by the PCLOB as to why it finds the program not consonant
with the 215 statute. That fact alone would suggest the need for an
institutionalized advocate or amicus in the FISC, so that the court for both substantive and
job training as exists in the Article III context.

procedural reasons can address the arguments by the PCLOB, even if they are ultimately not winning
arguments. This lack of written decisions prior to the leaks, and lack of decisions even after the leaks
addressing all the best counter-arguments, points to a third difference between the FISC and article III
criminal process. The former is rarely if ever subject to the adversarial process. Prior to the leaks, for

instance, not a single FISA application has been required to be disclosed to opposing counsel. By contrast,
criminal rules require disclosure of warrant applications to aggrieved parties. Thus, although not all
criminal matters end up in litigation, the specter of judicial review is palpable in a criminal investigation,
with its attendant adversarial review. The opposite is generally true in a national security investigation.

Without such adversarial input, it is unrealistic to expect the FISC to

come up on its own with all the arguments as to why a government
application may be legally wrong. Even if you reject, as I do, the notion that the FISC is a
rubber stamp or that the selection process for FISC judges accounts for its substantive decisions one
can still be in support of another voice being heard in the FISC. That voice would not just give the public
greater confidence in the process. That it would undoubtedly do and is no small advantage in favor of such

The reform would also be a means to better decision-making,

in an area where getting it right is of critical importance . As another
a reform.

illustration, after the Snowden leaks, the government has filed under seal repeated applications to
reauthorize the 215 program, and the court has also approved those applications, also under seal. The
governments applications and the courts decisions have been unsealed only after the fact. But given the
governments public acknowledgement of the 215 program, there is no reason at all that those
applications and the court decisions were sealed in their entirety and only belatedly unsealed. The
process can and should be more transparent, but right now there is no institutional player to raise those

to seek a special advocate is not to question the integrity or

provide the court with views that
can better efectuate our dual concerns for security and civil
liberties. It is easy to get lost in the minutiae of the Snowden traitor or hero debate, or even the
issues with the FISC. In sum,

acumen of the members of the FISC or the DOJ, but to

value of the NSA 215 program, and miss the opportunity for meaningful change. A structural reform to the
FISC and a modest one at that, since it imposes no costs on our national security mission is called for.

The time is ripe for an institutionalized special advocate .

A privacy advocate improves the courts decision-making

Drew Mitnick and Peter Micek, 1/24/2014, Access Now, structural
changes to surveillance court offer hope for new protections for non-US
users, https://www.accessnow.org/blog/2014/01/24/structural-changes-tosurveillance-court-offer-hope-for-new-protections-for, mm
FISCs shortcomings go beyond the lack of an adversarial process,
and include a frequent lack of understanding regarding the
technological realities at hand. US Judges arent required to have any specific expertise or
knowledge of technology, and theres no reason to think FISC judges are any exception. FISC judges
have no special technological background and they dedicate only a
portion of their time hearing FISC cases. Both PCLOB and the Presidents
Review group recognized the need for technical guidance . Their
suggestions varied -- ranging from hiring special masters to advise on technology issues, to using a PCLOB
technologist, and increasing the use of third-party attorneys either to provide amicus briefs or to directly
advise judges for significant opinions. Theres no reason the Court should be limited to one option. These

when privacy violations are at stake, especially

the authorizing judges need to understand the full
implications of their opinions. To ensure the best informed judicial
process and greatest protection of human rights, Access
recommends the creation of an Office of the Special Advocate with a
diversity of expertise and perspectives on staf, who could be tapped
as needed to provide technical guidance to the FISC and FISCR .
choices arent mutually exclusive and
violations on a global scale,

Solvency Reduces Surveillance/Balances the

Court
A privacy advocate would thoroughly challenged the
government in the FISC this would make it easier for the
court to turn down surveillance requests
Alliance for Justice, 2013, Justice in the Surveillance State,
http://www.afj.org/wp-content/uploads/2013/08/FISC-Report-8.1.13.pdf, mm

Many have proposed changes to the FISC enabling statute that would address this problem. Some have
suggested that an adversary party be created and housed in the PCLOB to argue opposite the federal
government.40 Others have suggested that litigators from outside the government be able to argue in
certain cases. Mike Davidson, former General Counsel to the Senate Select Committee on Intelligence,
suggested that a counterparty could argue applications of programmatic surveillance (explained in
Section B below), as opposed to individual applications, because of their more wide-ranging impact. 41
Judge James Carr, another former FISC judge, has argued that Congress should empower the FISC to
appoint an attorney when a particular case addresses new legal issues, though Judge Carr would still leave
the discretion to do so in the hands of the FISC judges themselves.42 In addition to their FISA Judge

Blumenthal, Tom Udall, and Wyden have also introduced the FISA
would, among other things, create an Office of the
Special Advocate to be stafed with lawyers with security clearances
who would have the authority to appeal FISC decisions and would allow
Selection Reform Act, Senators

Court Reform Act of 2013 which

interested parties to participate as amici.43 Former Department of Justice officials, including Jim Baker,
who frequently argued before the FISC when he served as Counsel for Intelligence Policy at the Justice
Department, have argued that many of these proposed solutions are not workable because of the
inherent security concerns. Baker argued that, in order for this public advocate to be effective, it would be
necessary for it to have access to classified documents and top-secret material.44 Professor Geoffrey
Stone would address this problem by ensuring that the counterparty be an independent government
lawyer with a security clearance.45 It is critical that our elected and appointed officials address these

Empowering judges to hear cases based on the argument of

only one side, let alone the side with the backing of the entire
national security apparatus, runs afoul of our adversarial system of
justice. Permitting a counterparty to appear would also force the
government official to marshal the best arguments it could make
when arguing for a particular surveillance target. It would help
separate the wheat from the chaf and enable the FISC judges to
problems.

more easily turn down applications when the government

overreaches. Although many of the panelists at the PCLOB hearing were skeptical of some of the
proposals to address this problem, PCLOB member James Dempsey pushed back against the notion that
nothing could be done. He noted in his closing remarks that the answer to these difficult questions cannot
be that no changes can be made.46 In fact, changes must be made. The notion of an adversarial
system of justice is merely an illusion when the government does not even permit an adversary to
appear.

Justice is best served when the best arguments each side can
profer are presented before a neutral arbiter.

The lack of an advocacy creates an unbalanced court that

favors the government a special advocate will reign in
surveillance authorizations
Alan Butler, Fall 2013, (Appellate Advocate Counsel, Electronic Privacy

Information Center), New England Law Review, 48 New En. L. Rev. 55,
Standing up to Clapper: How to Increase Transparency and Oversight of FISA
Surveillance, Lexis Nexis.

The recent revelations about the extent and nature of FISA surveillance have highlighted the important
and unreviewed body of constitutional and statutory law being developed by the FISC. n205 Unlike other

FISC reviews of applications submitted under Section 702 require

only
works when the judges hear both sides of the argument . In addition, the
Fourth Amendment issues and technical details of surveillance
tactics are very complex, and FISC judges cannot adequately
evaluate the various interests without in-depth briefing on both
sides. Any FISC reform should address this problem by providing for a
"Special Advocate" to the court, who would operate with a security
clearance and argue in opposition to the Department of Justice on
important legal questions regarding FISA and the Constitution . The
FISC is developing complex legal interpretations under a provision of the FAA
ex parte proceedings, the

extensive analysis and create precedent for the court. n206 But this [*89] lawmaking process

that requires the FISC to find that the "targeting and minimization procedures" adopted by the Government

these decisions
are necessarily complex and difficult to make in the abstract con-text of a
are "consistent with ... the fourth amend-ment to the Constitution ... ." n207 But

Section 702 application because Fourth Amendment analysis is necessarily fact-based. n208 In the

facts are developed through an adversarial process.

The government has an interest in arguing in favor of the
surveillance applications that it submits to the FISC; a Department of Justice
American judicial system,
n209

lawyer's role is not to present the judges with reasons why the application might be denied or modified.

There is currently no advocate on the other side of these complex

and novel issues judged by the FISC. And while recipients of FISA-authorized

surveillance orders and directives can file challenges under certain circumstances, n210 they cannot
review the classified opinions or government briefs and do not have the necessary opportunity or incentive
to develop fact-based constitutional arguments. The difficulty in having an adversarial process at the FISC
is that the materials presented by the government are highly classified. However, [*90] classified
proceedings have become more prevalent over the past ten years in the United States n211 as well as in
the United Kingdom. n212 The use of specially appointed, security-cleared attorneys to challenge
government legal arguments in national security cases has been in place for more than a decade in the
United Kingdom. n213 The use of such a "Special Advocate" would be appropriate in the FISA context
where FISC judges are asked to make novel and significant legal determinations regarding important

Two former FISC judges, n214 and other prominent legal

scholars, n215 have proposed adding such an adversarial position to
ensure that legal developments at the FISC do not sufer from
unbalanced advocacy. n216 Senator Blumenthal then introduced a comprehensive proposal
co-sponsored by fifteen other Senators, n217 which would create an Office of the [*91] Special
Advocate as an independent establishment within the executive branch. n218 That proposal has since
been incorporated into the USA FREEDOM Act. n219 This citizen's advocate would argue
against expansive government interpretations of national security
authorities while also increasing transparency and facilitating more
robust public reporting. Under the Blumenthal proposal, the Special Advocate
would review all FISA applications and filings and have the authority
to appeal or otherwise challenge rulings of the FISC. n220 The Special
constitutional rights.

Advocate would also have the authority to request declassification and publication of FISC opinions and
documents, or trigger mandato-ry disclosure whenever he or she files an appeal. n221 Additionally, the
Special Advocate would be responsible for filing a report with Congress every year, evaluating the

The
Special Advocate would promote transparency and reporting while
providing a much-needed balance to the constitutional and statutory
arguments made before the FISC.
effectiveness of the FISA process and suggesting any necessary legisla-tive changes. n222

Solvency Non-individualized Searches/Mass

Surveillance
***This requires the plan to be written to only allow for a
privacy advocate to argue against requests for nonindividualized domestic surveillance requests in front of
the FISC
Mandatory involvement of a privacy advocate in nonindividualized surveillance requests strikes the best
balance between privacy and security while preventing
runaway government surveillance
Stephen Vladeck, 2015, The case for a FISA Special Advocate, Texas
A&M Law Review, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2546388, mm
the participation of a special advocate
should be required only in cases in which the government is seeking
authorization for non-individualized surveillance , whether under
section 215, section 702, or any other current or future authorities
subject to FISC oversight. (Such a restriction could be accomplished by having the
Finally, and perhaps most significantly,

participation turn on any proceeding in which the FISC is not making an individualized probable cause
determination.) Whether or not he is correct that adversarial participation is unwise in classic FISA
cases, I largely agree with Judge Bates that it would be unnecessary in that context, just as it is
traditionally unnecessary in the context of ordinary warrant applications pursued in ordinary criminal

in cases in which the government is seeking more than an

individualized warrantin which the FISC is, in effect, reviewing
administrative action on a potentially mass scale, adversarial
presentation is especially appropriate (indeed, perhaps even constitutionally
cases.66 But

necessary), as Congress itself understood when it drafted section 215 and section 702. To be sure, Judge
Bates is certainly correct that the participation of the special advocate should not unduly interfere with
the governments ability to conduct lawful foreign intelligence surveillance activities, especially ex ante.
To that end, the special advocate might only be notified of a government application under the relevant
authorities once that application has been granted by FISC, at which time the appointed advocate would
have a fixed period of time within which to seek reconsideration of the underlying ruling. Among other
things, this approach would allow the government to act expeditiously when circumstances warrant (lest
an expressly legislated emergency exception otherwise swallow the rule), and would preserve the status
quo (in which authorization has been provided by the FISC) until and unless the special advocate
convinces the FISC judge, the FISCR, or the Supreme Court to vacate such authorization. And, of course, if
the special advocate prevails before either the FISC or FISCR, the government retains the option of
seeking a stay of the ruling in question to continue the underlying surveillance pending appeal.
Moreover, involving a special advocate only once an application has been granted eliminates the
potentially pointless participation of the advocate in the atypical but non-empty set of cases of nonindividualized surveillance in which the FISC rules against the governmentor, at least, requires
additional support from the government before granting the applicationon its own. Such an
accommodation would also likely vitiate Judge Batess concerns with respect to information-sharing
between the government and the special advocates, since such sharing would only come after there has
already been judicial intervention and approval. Thus, in appropriate cases, an order by a FISC judge
granting a government application would also identify the randomly selected member of the special
advocate pool to whom such a decisionand all relevant supporting materialswould be forwarded to
the special advocate. As the metadata program illustrates, many of the applications that would
otherwise trigger such review are nothing more than requests to re-authorize programs already approved
by the FISC under the same rationale. Thus, after a transitional period during which preexisting rulings
could all be revisited at least once, the special advocates participation could further be limited to cases
in which the government is either (1) seeking an initial authorization for a new program and/or recipient;
(2) seeking a reauthorization under materially different facts / technological capabilities; or (3) seeking a

Because of the modest number

of cases in which the special advocates would thereby participate, it
should follow, as provided in the Schiff bill, their participation in such cases
should be mandatory, and not up to the discretion of FISC judges. But
reauthorization under a materially different legal theory.

a protocol where FISC is separately empowered to invite the participation of a (again, randomly selected)
special advocate in any other case in which her participation is not already provided for would also make
sense. Finally, the special advocate should then be entitled to pursue declassificationor at least
publication of a redacted versionof any decisions produced in cases in which she participates. At the
very least, Congress could create a rebuttable presumption in favor of publication in such cases, in
contrast to current FISC Rule 62, which leaves publication to the discretion of individual judges. In all
then, this reasoning appears to most closely resemble some combination of the Schiff bill and the
final version of the Leahy bill, not because they envision the most modest role for a special advocate, but

best tailor that position to the specific cases in which it a

special advocate is most likely to be efective, and least likely to be
unduly burdensome to the government. Where the special
advocates are selected from a pre-cleared list of security-cleared
private lawyers, where they are specifically empowered to act on
behalf of clients with concrete interests in the underlying
surveillance, and where they are only involved in cases in which
surveillance is being authorized on a non-individualized scale
raising novel and material questions of law or fact, Congress will
have achieved the best possible fit between the need for meaningful
adverse presentation in the FISC and the actual means of achieving
it.
because they

A special advocate is best suited to handle nonindividualized cases this will balance privacy and
security concerns
Nathan Sales, 2014, I/S: A Journal of Law and Policy for the Information

Society, Domesticating programmatic surveillance: some thoughts on the

NSA controversy,
http://moritzlaw.osu.edu/students/groups/is/files/2014/08/12-Sales.pdf, mm
The need to add some sort of adversarial element to FISA has quickly
become conventional wisdom, having been embraced by both major NSA reform bills in
Congress (Feinstein-Chambliss103 and Leahy-Sensenbrenner),104 by the Presidents Review Group,105
and by President Obama himself.106 Indeed, at press time, Congress is poised to enact legislation that
generally would require the FISA court to appoint an adversarial special advocate in any case that
presents a novel or significant interpretation of the law, though some commentators object that this
mandate doesnt go far enough.107 This is not to suggest that the process for approving surveillance has
been entirely lacking in adversarialism. Adversarial review has been present, it just has taken place in the
executive branch rather than the FISA court. Surveillance applications typically undergo multiple layers
of internal review before presentation to the court, and that process can be exacting. The unit that
manages the review processthe Justice Departments Office of Intelligenceroutinely pushes back on
operators seeking permission to engage in surveillance.108 The office might insist that the application
include more facts to support the claim that a target is a spy or terrorist. Or it might demand a fuller
explanation of the expected national security gains. Or it might require stricter privacy rules governing
how collected information is to be used. Again, self-interest explains why.109 Attorneys from the Office of
Intelligence want to maintain their enviable record before the FISA court, and the credibility on which
that record depends, so they closely scrutinize the proposals that land on their desks. If they seem
unlikely to meet the courts approval, they are sent back for revision or rejected outright. This kind of
internal review is not a perfect substitute for a traditional adversarial hearing before a court, but it can

Nor is this to suggest that all FISA court

proceedings should contain an adversarial element. The bulk of the
courts work is reviewing individualized applications to monitor
achieve some of the same benefits.

specific targets, and the benefits of an adversarial process would be

relatively slight in this context. This is familiar terrain for federal
judges, who routinely approve individualized wiretaps ex parte in
regular criminal investigations.110 Moreover, cutting-edge legal and
policy issues are less likely to arise in the course of adjudicating a
request to tap a specific person, as these proceedings usually turn
on an essentially factual questioni.e., is there probable cause to believe the target is
an agent of a foreign power? Adversarial proceedings would be more helpful
where the court is asked to approve broad, overarching surveillance
programs like the metadata and PRISM initiatives. These
proceedings frequently will involve the balancing of basic values
like the need to preserve both national security and privacy and
civil liberties. In that respect the proceedings can be quasi-legislative
and thus would benefit from the presence of diverse viewpoints .

Solvency Restores Public Confidence

A privacy advocate restores public confidence in the FISC
that increases the legitimacy of the intelligence
community
Carol Costello and Adam Schif, 9/20/2013, [interview], CNN
Newsroom - Transcript: FISA Courts, https://votesmart.org/publicstatement/813069/cnn-newsroom-transcript-fisa-courts#.VY8-L-1Viko, mm
long as this court is secretive, Americans will
remain skeptical of it. I mean how will public interest advocates, as you
describe, help restore the faith? SCHIFF: Well, I think that's part of the challenge. Some of the
COSTELLO: I guess because as

courts were by necessity is going to have to remain secret. A lot of this involves very confidential classified
sources of information, sources that could be put at risk if it was a public process. At the same time, I

the public would have more confidence that the decisions were
being made properly if it knew that this court was hearing from both
sides, that there was someone who was well trained to articulate the
constitutional legal principles, that was there to represent the
privacy interests of the public. Some of the former FISA court judges
have now spoken out publicly saying that they believe that this would
be a step in the right direction to have that adversarial process so I
think it will help restore some of the public confidence in the court and
in the intelligence community's work.
think

A privacy advocate is needed to restore public confidence

in the court
Siobhan Gorman, Carol Lee, and Janet Hook, 8/9/2013, Wall Street

Journal, Obama proposes surveillance policy overhaul,

http://www.wsj.com/articles/SB1000142412788732452250457900265356434
8842, mm
The biggest change Mr. Obama proposed is restructuring the Foreign
Intelligence Surveillance Court to provide a privacy advocate. The
advocate would be a major change for a court in which the government currently
presents its case to a judge on the secret court to obtain approval. The only exchanges that
take place are between the judge and the government, which critics
say skews decision in the government's favor. The court almost always approves
the final government proposal. While the Obama administration had defended the current court structure,
administration officials said Friday that new

measures were needed to restore

public confidence in the court . Mr. Obama is also seeking revisions to the Patriot Act to
increase oversight and place more constraints on Section 215, which permits government seizure of
business records and is the basis for the collection of the phone records of most Americans. The specifics
of those changes are unclear.

Solvency - AT No Standing to Sue

Congress can modify prudential standing requirements to
grant a privacy advocate standing to sue in the FISA court
Andrew Nolan, Richard Thompson, and Vivian Chu, 3/21/2014,

Congressional Research Service, reform of the foreign intelligence

surveillance courts: introducing a public advocate,
http://www.fas.org:8080/sgp/crs/intel/R43260.pdf, mm
Given the potential difficulties with the FISA advocate having
standing in his own capacity to seek judicial relief from the FISC, it
could be argued that the advocate should invoke the rights of
absent third parties to obtain standing. Such an argument necessitates a discussion
regarding the law of third-party standing and representational standing. Standing-to-sue
involves both constitutional limitations on federal-court jurisdiction
and prudential limitations on its exercise.202 One of the prudential principles that
bears on the question of standing is that a party seeking judicial relief from a federal court cannot rest
his claim to relief on the legal rights or interests of third parties, rather than his own.203 The Supreme
Court has recognized a limited exception to this principle when the litigant has a close relation to the
third party, and some hindrance exists to the third partys ability to protect his or her own

Prudential standing requirements, unlike their Article III counterparts,

can, however, be modified or abrogated by Congress.205 Nonetheless, it is
assumed that Congress legislates against the background of [the
Courts] prudential standing doctrine, and, accordingly, the prudential
standing rulesincluding the rule against third-party standingapply unless
expressly negated in statute.206
interests.204

Standing doesnt matter the privacy advocate is not a

party to the case and is appointed to challenge the cases
Marty Lederman and Steve Vladeck, 11/4/2013, Just Security, The
Constitutionality of a FISA special advocate, http://justsecurity.org/2873/fisaspecial-advocate-constitution/, mm
The CRS Report also questions the standing of the special advocate
to participate before the FISA Court, but this, too, is a red herring. The
case in question is initiated by the government. If the legislation is properly drafted,
the special advocate would be merely a lawyer, not a party to the
caseor, perhaps, the attorney for third parties whose metadata or
communications are at issue. Accordingly, so long as the proceeding before the FISA Court
already satisfies Article III, then the statutory inclusion of an additional lawyer should raise no new Article
III concerns.

Solvency AT NSA Circumvention (Privacy

Advocate Specific)
The NSA wont try to circumvent a privacy advocate
Steve Inskeep and John Chris Inglis, 1/9/14, [interview, Inskeep is a

host at NPR and Inglis was formely the NSAs No. 2 individual beneath the
agencys director], NPR, NSA says it would welcome public advocate at FISA
Court, http://www.npr.org/templates/transcript/transcript.php?
storyId=261079074, mm
INSKEEP: You just mentioned other ways to do this program. Are you now, as an agency, considering those
other ways? Just leaving the information with the phone company, for example, and picking it up through a

We are
open to other limitations. I think... INSKEEP: So you are considering that? INGLIS: We are
considering that. But I think that we're not the policy agent that would decide whether or not
we would then embrace one of those other choices. We would be a component of
executing that choice. INSKEEP: If the president or Congress changed the program, Inglis
warrant from the foreign intelligence surveillance court, when you need it? INGLIS: Certainly.

contends, it still needs to be efficient. It also has to protect Americans' privacy, which the agency insists it
has always tried to do with the vast piles of records it collects. INGLIS: I think most Americans would be
surprised at how infrequently we actually look at that data. In all of 2012, there were less than 300
locations where we said what we had was reasonable, articulable suspicion - that's the legal standard
that's applied here - to query that database; less than 300 times. INSKEEP: Although it is interesting,
though, the President's Commission, when it investigated this issue and wrote about it, said that yes, 288
times - I think - in 2012, you went to the metadata for a particular phone number. But then you're allowed
to look at phone numbers that were called from that number... INGLIS: That's true. INSKEEP: ...and then
numbers that were called from those numbers. And they outlined a scenario where one data request might
cause you to look at a million phone numbers. INGLIS: It could. But in all of 2012, we actually looked at
6,000. INSKEEP: Six thousand numbers, is the number in 2012. INGLIS: Six thousand numbers is what we
actually then touched, all based upon the seeds that started with less than 300. INSKEEP: If it's not clear
by now, Chris Inglis lives in a world of numbers, at an agency filled with computer experts. Far more of
those numbers have become public than the agency ever intended. Last summer, Edward Snowden
disclosed an internal agency audit. Analysts just at NSA headquarters committed about 2,700 violations of
the rules in a single year. Inglis has suggested only 711 violations were of real concern. And many of them
were typos - entering the wrong phone number, say, in search of another, He says that represents a tiny
percentage of his analysts' work. Those numbers got us thinking, though, about just how vast the agency
surveillance operations really are. INGLIS: The accuracy rate at NSA is 99.99984 percent - which is a
pretty good record. INSKEEP: I was fascinated by that math; that 711 errors in a year means that
99.99984 percent of the time, you're right. And so I started doing the math and reversed it; tried to figure
out well, how many communications are they monitoring, then? And when I did the math, I concluded that
that means that you're monitoring - I wrote down - 44,437,500 communications in a year. You're nodding that's about the scale of your activities. INGLIS: That's what that math would lead you to. But actually, it's
not that simple. So let's say I'm interested in a particular terrorist. That individual might have dozens;
might have, across a given year, hundreds of selectors. I'd kind of pick up and drop telephones - you know,
like it's fast food. INSKEEP: And the agency may look at each communication many times. In this way,
Inglis suggests, the NSA is not monitoring so many individual people, though he never denied analyzing

The agency faces pressure now to accept

reforms. The special court that issues warrants to monitor Americans operates in secret, and that
presidential commission called for a public advocate to operate
within the court as a kind of defense lawyer. Chris Inglis told us, quote,
" We would welcome that ."
tens of millions of communications.

Solvency AT NSA Circumvention

NSA wont circumvent Congress will threaten to cut its
funding that forces compliance
Timm 14 (Trevor, columnist and director of the Freedom of the Press Foundation,

Congress wants NSA reform after all. Obama and the Senate need to pass it, The Guardian,
06/20/2014, http://www.theguardian.com/commentisfree/2014/jun/20/congress-obama-nsareform-obama-senate) GS

Late Thursday night, in a surprising rebuke to the NSA's lawyers and

the White House after they co-opted and secretly re-wrote the USA Freedom Act and got it
passed an overwhelming majority of the House of Representatives
voted to strip the agency of its powers to search Americans' emails
without a warrant, to prohibit the NSA or CIA from pressuring tech
companies to install so-called "back doors" in their commercial
hardware and software, and to bar NSA from sabotaging common
encryption standards set by the government. What a difference the last year has
made, you might say. Look what a little transparency can do! But the House's support of these new fixes,
by a count of 293 to 123 and a huge bipartisan majority in the House, just put the pressure back on for the

the Senate can join the House in passing these

defense budget amendments, or more likely, will now be pressured to
plug in real privacy protections to America's new snooping
legislation before it comes up for a vote. This all puts the White House in an even
rest of the summer of 2014:

more awkward position. Does President Obama threaten a veto of the defense bill to stop this? (The White
House could always, you know, ban the bulk collection of your data right this second.) Yes, all of these
problems were exposed in some fashion by the Snowden revelations: A year ago, it was still classified that
NSA was searching for the American people's data in its database of "foreign" data. President Obama said
in response that NSA email and internet spying "doesn't apply to people living in the United States" but
the back-door loophole showed that it did. And the spy community's campaign for weaker encryption
standards was largely in the shadows as well, Snowden files exposed it all. The public got mad, and now
the House has overwhelmingly rejected those programs with legal and technical fixes, including Rep Alan
Grayson's overlooked amendment to disband NSA's covert encryption sabotage campaign at Nist, the
little-known government agency with a lot of power over encryption standards. (By the way, Grayson's
throwing the first Congressional Crypto Party next week.) Of course, the victory is far from permanent and
could be undone rather quickly. The FBI not the NSA is usually the agency that tries to strong-arm
companies into placing back doors in technology, and you can expect intelligence agencies to try to undo
the new provision against spending money on searching for US persons in secret, with a little help from
Congressional intelligence committees. Still, the real hurdle remains in the Senate, where these
strengthened provisions will still have to be adopted and passed on to Obama's desk if they have any
chance of having an affect. That is still a long shot, but

the pressure's not going away.

The NSA will comply with the law it isnt a rogue agency
Shane, 15
Peter, A.B., Harvard, Social Studies, 1974, J.D., Yale Law School, 1977. Heis an internationally recognized
scholar in administrative law, with a specialty in separation of powers law and has co-authored leading
casebooks on each subject. He has served on the faculty at the University Of Iowa College Of Law and was
dean at the University Of Pittsburgh School Of Law. Getting From May We? to Should We? at the NSA
(http://adlaw.jotwell.com/getting-from-may-we-to-should-we-at-the-nsa/)CMeeker 6/25/15

Margo Schlangers article, Intelligence Legalism and the National

Security Agencys Civil Liberties Gap, is an important contribution to
both administrative and national security law. She explains in
illuminating detail how the NSA, the hub of so much controversial
electronic surveillance activity, is not a rogue enterprise, but deeply
enmeshed in and committed to a complex regime of legal
compliance. The question she poses is why so elaborate a compliance system is seemingly

ineffective in advancing civil liberties values more robustly. Her argument is thematically related to an
earlier and equally thoughtful paper, Offices of Goodness: Influence Without Authority in Federal Agencies
(reviewed here), which likewise explored the difficulties for administrative agencies in honoring
overarching values that are relevant to their programs, but which may appear as orthogonal to a particular
agencys specific primary objectives. (Think about the Department of Transportation promoting park land
conservation or the Army Corps of Engineers protecting endangered species.)

Multiple organizations ensure the NSA maintains

compliance
Schlanger, 15

Margo Schlanger is a Professor of Law at the University of Michigan Law

School, and the founder and director of the Civil Rights Litigation
Clearinghouse. Intelligence Legalism and the National Security Agency's Civil
Liberties Gap, (http://harvardnsj.org/wpcontent/uploads/2015/02/Schlanger.pdf)CMeeker 6/25/15
Alex Joel, the offices director since its start up, explains that his approach is consciously tied to legal

Its been attractive to me to run the office as a law shop ,

because we [government personnel] of course have to follow the law. We
requirements:

have traditionally defined privacy and civil liberties rights with reference to the law (including executive
orders). Its important to emphasize that

this is not optional , that this is what the law

requires.217 It is not that Joel takes no position at ODNI and in interagency discussions on policy matters;
in fact he states that I try to say, just like the President recently said, Just because we can do something,
doesnt mean we necessarily should.218 But Joel sees persuading colleagues about what ought to
happen as harder than telling them what is required to happen,219 and while no doubt he and others on

it is evident that with respect to the

NSA, the offices focus is primarily compliance. For example, one of the Section
his staff give advice on the should question,

702 semiannual compliance reviews has been released in a form that allows evaluation of its content.
Finalized in August 2013, it does not read very differently from the NSAs own released or leaked
compliance work. Both deal with the precise requirements of the targeting and minimization rules and the
situations in which errors have occurred. In fact, Joel has sought out detailees from DOJ NSD to serve as
his offices designated staff for Section 702 compliance.220 Moreover, the offices public statements have

the staf from these DOD,

ODNI, and White House overseeing offices all conceptualize their
role as ensuring that the NSAs activities comply with the rules
system that exists. At least as far as one can observe from the written record so far released,
all been defenses of IC policies and practices.221 In short,

none take their role to be assessing whether the rules are appropriate, or whether conduct that is
compliant with the rules might nonetheless be ill advised.

Solvency - AT Unconstitutional (Appointments

Clause)
A privacy advocate does not violate the appointments
clause
Marty Lederman and Steve Vladeck, 11/4/2013, Just Security, The
Constitutionality of a FISA special advocate, http://justsecurity.org/2873/fisaspecial-advocate-constitution/, mm
The CRS Report begins with an extended analysis of purported Appointments Clause issues surrounding
the special advocate, including whether she would be a principal officer (who could therefore only be
appointed by the President with the advice and consent of the Senate), or an inferior officer (who could
be appointed by the President, by the head of a Department or by a court). The CRS Report appears to
assume that the special advocate would not be appointed in a manner allowed under the Appointments
Clause. That assumption may well be mistaken, depending on the bill in question. More fundamentally,
however, the CRS Reports analysis depends upon a fundamental, mistaken assumption that the special

the
advocate would not necessarily be someone appointed to a position
of employment within the federal governmentshe could instead be
someone assigned on a case-by-case basis to file briefs before the
FISC, or a federal contractor, in which case she would not be an
officer subject to the Appointments Clause. (See subsections II-B-1-a and II-B-1c of this OLC memo.) In any event, even if the legislation provided that the
advocate were to be appointed to a position of employment in the
federal government, she would not exercise significant government
authority pursuant to federal law, and thus would not be an officer
for Appointments Clause purposes. (See subsection I-B-1-b of that 1996 OLC memo.)
The role of the advocate would be solely to present legal arguments
to the FISC, as an attorney does when appointed as an amicus by the
Supreme Court to represent an undefended position in a case before
the Court. (See Martys discussion of the Courts practice.) Nothing the advocate would do would
advocate would be an officer of the United States in the first place. But she would not. For one thing,

have any binding effect upon any entity. (And even if the particular legislation in question provided that
the special counsel was to be a representative of third parties affected by the proposed order (such as
the U.S. persons whose metadata were collected under section 215, or the U.S. persons whose
communications are collected in a section 702 surveillance), that would not give the special advocate the
power to exercise significant governmental authority.) The CRS Report reaches the contrary conclusion by
referring to the Supreme Courts holding in Buckley v. Valeo that Federal Election Commissioners were
officers, in part because they were assigned the authority to bring suit against private parties, on behalf of
the federal government, to compel compliance with federal election laws. See 424 U.S. at 138. But the
special advocate would have no such authority. She would not be empowered to commence a lawsuit to
compel compliance with federal law, let alone to do so on behalf of the government; instead, she would
merely be allowed to participate as an attorney in cases already filed in the FISC by the government itself.
Accordingly,

legislation providing for a special advocate would not raise

any Appointments Clause issue.

Solvency AT Unconstitutional (Article III)

A special advocate will not raise Article III concerns if
anything, it brings the FISA court more in line with Article
III
Marty Lederman and Steve Vladeck, 11/4/2013, Just Security, The
Constitutionality of a FISA special advocate, http://justsecurity.org/2873/fisaspecial-advocate-constitution/, mm
The heart of the CRS Report curiously focuses on an issue that is not really
related to the question of whether a special advocate would be
constitutionalnamely, whether the FISC process itself complies with
Article III. Article IIIs limitation of the federal judicial function to Cases or Controversies generally
requires that federal courts adjudicate only concrete disputes between parties with adverse interests.

FISC proceedings, of course, are almost always ex parte and

nonadversarialthey consist, in essence, of an Article III judge determining ex ante whether a
proposed executive branch operation would be lawful. Thats not the sort of thing
Article III courts are generally empowered to do. The CRS Report is therefore
correct that this basic characteristic of FISA raises a significant constitutional question. Indeed, in
testimony before Congress in connection with consideration of the original FISA, future circuit (and FISA
Court of Review) judge Laurence Silberman argued that the ex parte nature of FISA proceedings was
inconsistent with Article III. OLC Assistant Attorney General John Harmon opined to the contrary in those
hearings, noting that the FISA approval process was in many respects analogous to the traditional function
of courts adjudicating the lawfulness of proposed search warrantsan historical exception to the
requirement of adversary proceedings for Article III courts, premised on the theory that such warrant
proceedings are ancillary to possible future criminal (or civil) proceedings in Article III courts in which the
validity of the warrant might be subject to full adversarial scrutiny. Lower courts subsequently agreed with
OLC that the FISA process did not transgress Article III. To be sure, more recent amendments to FISA have
placed considerable pressure on the warrant analogy that supported the Harmon OLC analysis. Unlike in
the original FISA, for example, production orders under section 215 and certifications under section 702
dont so closely resemble traditional warrants, and are far less likely to be subject to subsequent
adversarial challenge. They thus raise a more difficult Article III adverseness question. (The ACLUs original
litigation challenging Section 702 raised that question directlysee pages 49-51 of this briefbut it was
left unresolved when the Court held in Clapper that the ACLU lacked standing.) On the other hand, both
authorities include express authorizations for the recipient (of 215 orders or 702 directives) to contest
cases initiated by the governmentthus, perhaps, providing for the requisite Article III adverseness in the

regardless of the ultimate merits of this Article

III question, the important point for present purposes is that the creation of
a special advocate could hardly be said to raise it. Indeed, were hardpressed to see why the additional participation of another lawyer, in
order to present to the court a position adverse to the government,
would exacerbate any Article III concerns about the lack of
adverseness. To the contrary.
event the warrant analogy is unavailing. But

Solvency AT Plan vagueness

The exact phrasing of the privacy advocate in the plan
doesnt matter it still fixes the courts adversary
problem
Stephen Vladeck, 2015, The case for a FISA Special Advocate, Texas
A&M Law Review, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2546388, mmm
To that end, while some of these reforms would alter the process for appointment of FISC (and FISCR)
judges; the transparency and public access to decisions by the FISC; or the interpretive rules FISC judges

common theme of the

proposals to emerge from all three bodies is an increase in the opportunities for
adversarial litigation before the FISC and FISCR to ensure that , even
behind closed doors, the governments legal position is debated vigorously .
Whether called a special, public, public interest, or
constitutional advocate, the core idea is the samethat a securitycleared lawyer should have the opportunity to challenge the
governments factual and legal case before the FISC.
should follow in reviewing government surveillance applications, a

Mechanics - Explanation of How the Privacy

Advocate Functions
This is how the privacy advocate would function:
Stephen Vladeck, 2015, The case for a FISA Special Advocate, Texas
A&M Law Review, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2546388, mm

The most far-ranging of these proposals is the USA FREEDOM Act, a bill introduced by Senator Leahy and

Office of the
Special Advocate within the judicial branch. The Special Advocate herself would be
selected by the Chief Justice of the United States from a list of at least five
Congressman Sensenbrenner, the original version of which would have created an

candidates proposed by the PCLOB whom the PCLOB believe will be zealous and effective advocates in

The Special Advocate would serve a renewable

three-year term, and may only be removed for cause. Substantively, [t]he Special
Advocate shall vigorously advocate before the [FISC] or the [FISCR],
as appropriate, in support of legal interpretations that protect individual
privacy and civil liberties. To that end, the Special Advocate is entitled to
the production of any documents or other material necessary to
carry out the duties [of the Special Advocate], including all government
applications to the FISC. She may also entertain requests for participation
from any recipient of a FISC order. She is then entitled to seek leave
to participate in proceedings before the FISCand is invested with
standing if such leave is granted. The Special Advocate may
move the Court to reconsider any decision made after the enactment of the bill,
and must so petition within 30 days after the availability of all relevant materials. Finally, the
original version of the USA FREEDOM Act would also vest in the Special
Advocate the authority to appeal a denial of leave to participate, or,
in cases in which participation is granted, an adverse decision by the FISC. Review
defense of civil liberties.

by the FISCR of any FISC decision appealed by the Special Advocate is mandatory, unless it would be

And the
Special Advocate is further empowered to appeal adverse decisions
by the FISCR to the Supreme Court. The Special Advocate may also
petition the FISC or FISCR to order the disclosure of a decision
containing classified information or a summary containing
unclassified information. The Special Advocate must report annually
to Congress regarding the activities of the office, the efectiveness
of the authorizing title, and suggestions for improving the
functioning of the office.
apparent to all reasonable jurists that such decision is dictated by statute or by precedent.

Misc. Case Mechanics

Other Plan Ideas

The United States federal government should create an
Office of the Special Advocate to challenge domestic
surveillance requests in the Foreign Intelligence
Surveillance Court.
The United States federal government should curtail its
domestic surveillance by requiring the Foreign
Intelligence Surveillance Court adhere to an adversarial
model.
The United States federal government should curtail its
domestic surveillance by requiring the presence of a
Special Advocate during Foreign Intelligence
Surveillance Court hearings involving non-individualized
surveillance requests.
The United States federal government should curtail its
domestic surveillance by authorizing an Office of the
Special Advocate to challenge non-individualized,
programmatic domestic surveillance requests in the
Foreign Intelligence Surveillance Court.
(This plan only allows the privacy advocate to challenge mass surveillance
requests).

FISA Section 702 AT FREEDOM Act

The Freedom act didnt reform section 702
Fred Kaplan, 6/8/2015, Slate, The NSA debate we should be having,
http://www.slate.com/articles/news_and_politics/war_stories/2015/06/the_nati
onal_security_agency_s_surveillance_and_the_usa_freedom_act_the.single.ht
ml, mm
PRISMauthorized under Section 702 of the Foreign
the NSA track foreign terrorists and adversaries by
intercepting their Internet traffic as it zips through U.S.based servers. (Because of the nature of
A separate program called

Intelligence Surveillance Actlets

the technology, about 80 percent of the worlds Internet traffic passes through U.S. servers at some point.)
PRISM was another highly classified NSA program that Snowden uncovered. The Washington Post and the
Guardian made it the subject of their Day 2 Snowden stories (right after the revelations about telephone

Yet PRISM isnt touched at all by the USA Freedom Act, nor does
PRISM data-mining
is a much bigger program than telephone metadata ever was, and
its potentially more intrusive, since its hard to know whether, at
first glance, an IP address belongs to an American or a foreigner .
metadata).

any serious politician propose overhauling it. This is the case, even though

FISA - Section 702 Warrantless Surveillance

Section 702 allows for the warrantless surveillance of US
citizens
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 126-27, mm

When NSA revelations first came out, the US government tried to

defend its actions by saying that, unlike foreign nationals, American citizens
are protected from warrantless NSA surveillance. On June 18, 2013, President
Obama told Charlie Rose: What I can say unequivocally is that if you are a U.S. person, the NSA cannot
listen to your telephone callsby law and by rule, and unless theygo to court, and obtain a warrant, and
seek probable cause, the same way its always been. The GOP chairman of the House Intelligence
Committee, Mike Rogers, similarly told CNN that the NSA is not listening to Americans phone calls. If it
did, it is illegal. It is breaking the law. This was a rather odd line of defense: in effect, it told the rest of the
world that the NSA does assault the privacy of non-Americans. Privacy protections, apparently are only for
American citizens. This message prompted such international outrage that even Facebook CEO Mark
Zuckerberg, not exactly known for his vehement defense of privacy, complained that the US government
blew it in its response to the NSA scandal by jeopardizing the interests of international Internet
companies: The government said dont worry, were not spying on any Americans. Wonderful, thats really
helpful for companies trying to work with people around the world. Thanks for going out there and being
clear. I think that was really bad. Aside from being a strange strategy,

the claim is also patently

false. In fact, contrary to the repeated denials of President Obama and his top officials, the NSA
continuously intercepts the communications of American citizens ,
without any individual probable cause warrants to justify such
surveillance. Thats because the 2008 FISA law, as noted earlier, allows the NSA
without an individual warrant to monitor the content of any
Americans communications as long as those communications are
exchanged with a targeted foreign national. The NSA labels this incidental

collection, as though its some sort of minor accident that the agency has been spying on Americans. But

The
government often says that this surveillance of Americans communications is
incidental, which makes it sound like the NSAs surveillance of Americans phone calls and emails
this implication is deceitful. As Jameel Jaffer, the deputy legal director of the ACLU, explained:

is inadvertent and, even form the governments perspective, regrettable. But when the Bush
administration officials asked Congress for this new surveillance power, they said quite explicitly that
Americans communications were the communications of most interest to them. Se, for example, FISA for
the 21st century, Hearing Before the S. Comm. On the Judiciary, 109 th Cong. (2006) (statement of Michael
Hayden), that certain communications with one end in the United States are the ones that are most

The principal purpose of the 2008 law was to make it

possible for the government to collect Americans international
communications and to collect those communications without reference to whether any party to
important to us.

those communications was doing anything illegal. And a lot of the governments advocacy is meant to

The government doesnt need to target

Americans in order to collect huge volumes of their communication s.
Yale Law School professor Jack Balkin concurred that the FISA law of 2008 effectively gave the
president the authority to run a program similar in efect to the
warrantless surveillance program that had been secretly implemented by George Bush.
These programs may inevitably include many phone calls involving
Americans, who may have absolutely no connection to terrorism or
to Al Qaeda.
obscure this fact, but its a crucial one:

The FISA Amendments Act allows for warrantless

surveillance on US persons
Glenn Greenwald, 6/18/2013, The Guardian, FISA court oversight: a look
inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversightprocess-secrecy, mm
Many of the reasons these claims are so misleading is demonstrated by the law itself. When the original
Fisa law was enacted in 1978, its primary purpose was to ensure that the US government would be barred
from ever monitoring the electronic communications of Americans without first obtaining an individualized
warrant from the Fisa court, which required evidence showing "probable cause" that the person to be
surveilled was an agent of a foreign power or terrorist organization. That was the law which George Bush,
in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans
without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a

the Fisa Amendments Act

of 2008 (FAA) that legalized much of the Bush warrantless NSA
program. Under the FAA, which was just renewed last December for another five years, n o
warrants are needed for the NSA to eavesdrop on a wide array of calls, emails
and online chats involving US citizens. Individualized warrants are required only when the target of the
surveillance is a US person or the call is entirely domestic. But even under the law, no
individualized warrant is needed to listen in on the calls or read the
emails of Americans when they communicate with a foreign national
whom the NSA has targeted for surveillance. As a result, under the FAA, the NSA frequently
eavesdrops on Americans' calls and reads their emails without any
individualized warrants exactly that which NSA defenders, including Obama, are trying to
bipartisan basis in 2008, enacted a new, highly diluted Fisa law

make Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009:
"The Fisa Amendments Act of 2008, effectively gives the President - now President Obama - the authority
to run surveillance programs similar in effect to the warrantless surveillance program [secretly
implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized

Some programs may be 'vacuum cleaner'

programs that listen to a great many different calls (and read a great many e-mails) without
any requirement of a warrant directed at a particular person as long as no US person is
targets in all surveillance programs.

directly targeted as the object of the program. . . . "New Fisa authorizes the creation of surveillance
programs directed against foreign persons (or rather, against persons believed to be outside the United
States) which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal
activity. These programs may inevitably include many phone calls involving Americans, who may have
absolutely no connection to terrorism or to Al Qaeda." As the FAA was being enacted in mid-2008,
Professor Balkin explained that "Congress is now giving the President the authority to do much of what he
was probably doing (illegally) before". The ACLU's Deputy Legal Director, Jameel Jaffer, told me this week

the 2008 law gives the government authority to

engage in surveillance directed at people outside the United States.
In the course of conducting that surveillance, though, the government inevitably
sweeps up the communications of many Americans. The government often
by email: "On its face,

says that this surveillance of Americans' communications is 'incidental', which makes it sound like the
NSA's surveillance of Americans' phone calls and emails is inadvertent and, even from the government's
perspective, regrettable. "But when Bush administration officials asked Congress for this new surveillance
power, they said quite explicitly that Americans' communications were the communications of most
interest to them. See, for example, Fisa for the 21st Century, Hearing Before the S. Comm. on the Judiciary,
109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA's
predecessor statute, that certain communications 'with one end in the United States" are the ones "that
are most important to us'). The principal purpose of the 2008 law was to make it possible for the
government to collect Americans' international communications - and to collect those communications
without reference to whether any party to those communications was doing anything illegal. And a lot of
the government's advocacy is meant to obscure this fact, but it's a crucial one: The government doesn't
need to 'target' Americans in order to collect huge volumes of their communications." That's why
Democratic senators such as Ron Wyden and Mark Udall spent years asking the NSA: how many Americans
are having their telephone calls listened to and emails read by you without individualized warrants? Unlike
the current attempts to convince Americans that the answer is "none", the NSA repeatedly refused to
provide any answers, claiming that providing an accurate number was beyond their current technological

capabilities. Obviously, the answer is far from "none". Contrary to the claims by NSA defenders that the
surveillance being conducted is legal, the Obama DOJ has repeatedly thwarted any efforts to obtain judicial
rulings on whether this law is consistent with the Fourth Amendment or otherwise legal. Every time a
lawsuit is brought contesting the legality of intercepting Americans' communications without warrants, the
Obama DOJ raises claims of secrecy, standing and immunity to prevent any such determination from being
made.

FISA Section 702 Targets Americans

Section 702 allows for a substantial amount of American
content collection
Jennifer Granick, 1/30/2014, Just Security, Reforming the Section 702

Dragnet (part 1), http://justsecurity.org/6574/reforming-section-702-dragnet1/, mm

Capturing Americans one-end-foreign communications is part and
parcel of section 702. So, how many American messages does the NSA collect under this legal
authority? According to a newly declassified 2011 FISA court opinion by
Judge John Bates, the NSA obtained approximately 250 million
communications under section 702 that year. Most of those
messages, 91%, came from service providers like Google, Yahoo! and
Microsoft, via PRISM. The remainder are vacuumed of the fiber optic
backbone of the Internetupstream collection. When conducting
upstream collection, NSAs systems dont always pull single
messages; rather, they regularly capture what the agency, with characteristic opacity,
refers to as Internet transactions. An Internet transaction may be comprised of a single
message an SCT, in NSA-speak. But Internet transactions often contain multiple messages the agency
refers to this bundle of messages as an MCT. If only one message in an MCT is responsive to the NSAs
targeting terms, the NSA devices nonetheless pull the entire package of messages into the NSA databases.
Further, MCTs can contain messages that have nothing to do with foreigners or foreign intelligence.

NSAs internal auditing, done at Judge Bates version of gunpoint, put the number of
improperly collected wholly domestic American messages at
approximately 56,000 that year.

Section 702 overwhelming targets Americans 90% of

intercepted communications are not from the intended
target
Sue Halpern, 7/15/2014, New York Review of Books, NSA Surveillance:
What the Government Cant See,
http://www.nybooks.com/blogs/nyrblog/2014/jul/15/nsa-surveillance-whatgovernment-cant-see/, mm

When official documents are released on the eve of a national holiday, there is a good chance they will
attract little notice. This almost happened with a July 2 report on a national security law known as

Section 702, which allows warrantless surveillance of people who do not have US
citizenship. Bland and bureaucratic, the 150-page report, issued by the bipartisan Privacy and Civil
Liberties Oversight Board, mostly found that the surveillance program was working as it was supposed to,
and thus seemed certain to disappear from view before the July Fourth fireworks on the National Mall were

The Washington Post published an explosive article by Barton Gellman and

used data from
the Snowden cache to examine the actual surveillance enabled by
Section 702. The main gist of the Post investigation was this: a law
ostensibly governing surveillance of foreigners was being used by
the intelligence community to monitor a substantial number of
Americans themselves. After analyzing more than one hundred
thousand intercepted emails, chats, text messages, and the like, Gellman and his
colleagues found that about 90 percent of people whose
over. But on July 5,

his colleagues Julie Tate and Ashkan Soltani, four months in the making, which

communications were intercepted by the government were not the

intended target, that many of those unintended targets were
American citizens residing on American soil, and that many of the
documents scooped up were personal correspondencebaby pictures, love
letters, messages between attorneys and their clients.

90% of the content swept up by Section 702 is not about

the intended target
Barton Gellman, Julie Tate and Ashkan Soltani, 7/5/2014, The
Washington Post, In NSA-intercepted data, those not targeted far outnumber
the foreigners who are http://www.washingtonpost.com/world/nationalsecurity/in-nsa-intercepted-data-those-not-targeted-far-outnumber-theforeigners-who-are/2014/07/05/8139adf8-045a-11e4-85724b1b969b6322_story.html, mm
Ordinary Internet users, American and non-American alike, far
outnumber legally targeted foreigners in the communications
intercepted by the National Security Agency from U.S. digital networks, according
to a four-month investigation by The Washington Post. Nine of 10 account holders found
in a large cache of intercepted conversations, which former NSA contractor
Edward Snowden provided in full to The Post, were not the intended surveillance
targets but were caught in a net the agency had cast for somebody else. Many of them
were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained

names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents.
NSA analysts masked, or minimized, more than 65,000 such references to protect Americans privacy,
but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly
linked to U.S. citizens or U.S.residents. The surveillance files highlight a policy dilemma that has been
aired only abstractly in public. There are discoveries of considerable intelligence value in the intercepted
messages and collateral harm to privacy on a scale that the Obama administration has not been willing
to address. Among the most valuable contents which The Post will not describe in detail, to avoid
interfering with ongoing operations are fresh revelations about a secret overseas nuclear project,
double-dealing by an ostensible ally, a military calamity that befell an unfriendly power, and the identities
of aggressive intruders into U.S. computer networks. Months of tracking communications across more
than 50 alias accounts, the files show, led directly to the 2011 capture in Abbottabad of Muhammad Tahir
Shahzad, a Pakistan-based bomb builder, and Umar Patek, a suspect in a 2002 terrorist bombing on the
Indonesian island of Bali. At the request of CIA officials, The Post is withholding other examples that
officials said would compromise ongoing operations. Many other files, described as useless by the
analysts but nonetheless retained, have a startlingly intimate, even voyeuristic quality. They tell stories of
love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions,
financial anxieties and disappointed hopes. The daily lives of more than 10,000 account holders who were
not targeted are catalogued and recorded nevertheless. In order to allow time for analysis and outside
reporting, neither Snowden nor The Post has disclosed until now that he obtained and shared the content
of intercepted communications. The cache Snowden provided came from domestic NSA operations under
the broad authority granted by Congress in 2008 with amendments to the Foreign Intelligence Surveillance
Act. FISA content is generally stored in closely controlled data repositories, and for more than a year,
senior government officials have depicted it as beyond Snowdens reach. The Post reviewed roughly
160,000 intercepted e-mail and instant-message conversations, some of them hundreds of pages long, and
7,900 documents taken from more than 11,000 online accounts. The material spans President Obamas

Taken
together, the files ofer 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, codenamed 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
first term, from 2009 to 2012, a period of exponential growth for the NSAs domestic collection.

the move as it crosses the U.S. junctions of global voice and data
networks.

FISA Section 702 Target

Americans/Manipulate Program/AT Only
Targets Non-US Persons
The NSA can easily manipulate the definition of non-US
person to target Americans
Sue Halpern, 7/15/2014, New York Review of Books, NSA Surveillance:
What the Government Cant See,
http://www.nybooks.com/blogs/nyrblog/2014/jul/15/nsa-surveillance-whatgovernment-cant-see/, mm

while many Americans accidentally get caught up in the wide nets

tossed out by NSA operatives into chat rooms and Facebook groups, the reporters
also found that it is quite easy for the NSA to manipulate Section
702 when it wants to monitor American citizens without first getting
a warrant. It does so by using loose criteria to define non-US
persons. Americans who converse in a foreign language have been
classified as non-US persons under Section 702, for example, as have
Americans who use of-shore proxy servers (that appear to place their computer in
Yet

a foreign country, a practice often used by people in one country who would like to watch television in

The implication here is that when

the NSA wants to target American citizens without a warrant,
Section 702 enables it to find a way.
another, or want to bypass government firewalls).

FISA Section 702 Insufficient Oversight

Section 702 lacks oversight no governmental body has
investigated the collection of American data
Sue Halpern, 7/15/2014, New York Review of Books, NSA Surveillance:
What the Government Cant See,
http://www.nybooks.com/blogs/nyrblog/2014/jul/15/nsa-surveillance-whatgovernment-cant-see/, mm

Washington Post
reporters
examined roughly 160,000 intercepted e-mail and instant-message
conversations, some of them hundreds of pages long, and 7,900 documents taken from more than
11,000 online accounts supplied by Snowden, as well as consulting with national security
officials; the government report relied solely on what it vaguely described as information related to
the Section 702 program supplied by the intelligence community. According to
the Post reporters, No government oversight body, including the
Justice Department, the Foreign Intelligence Surveillance Court,
intelligence committees in Congress or the presidents Privacy and
Civil Liberties Oversight Board, has delved into a comparably large
sample of what the NSA actually collectsnot only from its targets
but also from people who may cross a targets path.
The stark contrast between the findings of the Privacy Board and those of The

demonstrates, yet again, the value of independent investigative reporting. The Post

Current FISA procedures are insufficient to check the use

of Section 702
Glenn Greenwald, 6/18/2013, The Guardian, FISA court oversight: a look
inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversightprocess-secrecy, mm
The supposed safeguard under the FAA is that the NSA annually
submits a document setting forth its general procedures for how it decides
on whom it can eavesdrop without a warrant. The Fisa court then approves those
general procedures. And then the NSA is empowered to issue
"directives" to telephone and internet companies to obtain the communications for whomever the
NSA decides with no external (i.e. outside the executive branch) oversight complies with

the guidelines it submitted to the court. In his interview with the president last night, Charlie Rose asked
Obama about the oversight he claims exists: "Should this be transparent in some way?" Obama's answer:
"It is transparent. That's why we set up the Fisa Court." But as Politico's Josh Gerstein noted about that
exchange: Obama was "referring to the Foreign Intelligence Surveillance Court which carries out its work
almost entirely in secret." Indeed, that court's orders are among the most closely held secrets in the US
government. That Obama, when asked about transparency, has to cite a court that operates in complete
secrecy demonstrates how little actual transparency there is to any this. The way to bring actual
transparency to this process it to examine the relevant Top Secret Fisa court documents. Those documents
demonstrate that this entire process is a fig leaf, "oversight" in name only. It offers no real safeguards.

no court monitors what the NSA is actually doing when it

claims to comply with the court-approved procedures. Once the Fisa
court puts its approval stamp on the NSA's procedures, there is no
external judicial check on which targets end up being selected by the NSA analysts for
That's because

eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting
a US citizen or the communications are purely domestic.

When it is time for the NSA to

obtain Fisa court approval, the agency does not tell the court whose
calls and emails it intends to intercept. It instead merely provides the general
guidelines which it claims are used by its analysts to determine which individuals they can target, and the

The court endorses a

one-paragraph form order stating that the NSA's process "'contains all the required
Fisa court judge then issues a simple order approving those guidelines.

elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment
'are consistent with the requirements of [50 U.S.C. 1881a(e)] and with the fourth amendment to the
Constitution of the United States'". As but one typical example, the Guardian has obtained an August 19,
2010, Fisa court approval from Judge John Bates which does nothing more than recite the statutory
language in approving the NSA's guidelines. Once the NSA has this court approval, it can then target
anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to

The Fisa court plays no role

whatsoever in reviewing whether the procedures it approved are
actually complied with when the NSA starts eavesdropping on calls
and reading people's emails. The guidelines submitted by the NSA to the Fisa court
them the emails, chats and calls of those they target.

demonstrate how much discretion the agency has in choosing who will be targeted. Those guidelines also
make clear that, contrary to the repeated assurances from government officials and media figures ,

the

communications of American citizens are without any

individualized warrant included in what is surveilled . The specific
guidelines submitted by the NSA to the Fisa court in July 2009 marked Top Secret and signed by Attorney
General Eric Holder state that "NSA determines whether a person is a non-United States person
reasonably believed to be outside the United States in light of the totality of the circumstances based on
the information available with respect to that person, including information concerning the
communications facility or facilities used by that person." It includes information that the NSA analyst uses
to make this determination including IP addresses, statements made by the potential target, and other
information in the NSA databases. The decision to begin listening to someone's phone calls or read their

There is no outside
scrutiny, and certainly no Fisa court involvement. As the NSA itself explained in
emails is made exclusively by NSA analysts and their "line supervisors".

its guidelines submitted to the Fisa court: "Analysts who request tasking will document in the tasking
database a citation or citations to the information that led them to reasonably believe that a targeted
person is located outside the United States. Before tasking is approved, the database entry for that tasking
will be reviewed in order to verify that the database entry contains the necessary citations."

FISA Section 702 Backdoor Searches

Section 702 allows for bulk collection and analysis of
domestic communications without a warrant
Alex Wilhelm and Cat Zakrzewski, 7/6/2014, Tech Crunch, why

section 702 reform matters, http://techcrunch.com/2014/07/06/why-section702-reform-matters/, mm

under the legal purview of Section 702 of the Foreign Intelligence Surveillance Act
the NSA regularly collects albeit in a roundabout fashion, and likely not one as
robust and complete as it would like data and communications of United States
citizens that it hangs onto even if it has no immediate merit relating to national security. The Post did
In short
(FISA),

not go into too much detail on the valuable information the sweeps returned for national security
reasons, but noted the searches provided the government with information about a secret overseas
nuclear project and the identities of cyber hackers attacking U.S. networks. But the sweeps also provided
the government agency with detailed information about the lives of more than 10,000 people who were
not necessarily being targeted by the NSA. The Post report described the files, determined as useless but
nonetheless retained as running the gamut from illicit sexual liaisons to financial anxieties. Pictures,
including mothers kissing their infants and women modeling lingerie, were picked up in the broad

the NSA is unafraid to use its authority to

search its pooled data that it collects directly from technology companies and by tapping
the core fiber cables of the Internet with selectors that relate to United
States persons. The Post report is damning in detailing the painful laxity that appears to pervade
searches. As we have recently seen,

our national intelligence apparatus. In one example, it cites an analyst who inferred that every member of
the chat friend list of a known foreigner to be foreign as well, a view so broad as to be almost ridiculous.

Section 702 authority is often used when

traditional warrants expire: In an ordinary FISA surveillance
application, the judge grants a warrant and requires a fresh review
of probable cause and the content of collected surveillance every 90 days. When
renewal fails, NSA and allied analysts sometimes switch to the more
lenient standards of PRISM and Upstream. These selectors were previously under FISA
The report also indicates that

warrant but the warrants have expired, one analyst writes, requesting that surveillance resume under the

This matters as there has

been action in the United States Congress to ban using so-called backdoor searches on
United States persons. A backdoor search under Section 702 is when stored
data is queried using search terms to find the communications of
Americans. The NSA, under Section 702, cannot go out and try to
collect the communications of a known United States person, but it
can search what it picks up incidentally. Given the NSAs own admitted broad
looser standards of Section 702. The request was granted.

use of Section 702, and that the FBI and CIA also use similar methods, and especially that the NSAs
incredibly broad interpretation of what it can collect under the rule, the amount of data and
communications in its databases stemming from United States persons must be massive. And it has the

The NSA and the executive

branch do not view backdoor searches as outside the letter, or spirit, of the
law, according to their recent comments appended to the data released concerning the use of such
authority to query that information without securing a warrant.

authority. Before the Posts report this weekend, the Privacy and Civil Liberties Oversight Board (PCLOB)
released a report that generally upheld the 702 program. However no government oversight body, not
even PCLOB, had delved into as large of a sample as the one the Post dissected. Even before these privacy
violations were revealed, privacy advocacy groups like the Electronic Frontier Foundation were denouncing

One quick way to kill something is to cut of its oxygen. And

if you want to kill a part of government, stifle its cash flow. If the Senate
can follow the House into removing funding for Section 702 searches for United
States persons, it would be meaningful reform.
the report.

Backdoor searches are abused thousands of times a year

Alex Wilhelm, 6/30/2014, Tech Crunch, FBI, CIA join NSA in backdoor
searches on Americans, http://techcrunch.com/2014/06/30/fbi-cia-join-nsain-backdoor-searches-on-americans/, mm
Thousands of Americans were targets of so-called backdoor
warrantless surveillance by the NSA and other intelligence agencies last year,

according to a letter sent to Senator Ron Wyden. The missive, written by the Office of the Director of
National Intelligence (ODNI) to the Senator in response to a question posed earlier this month, is
plainspoken. The Office also stated that the searches in question are not based on an exploited legal
loophole. The House recently voted to curtail such searches by defunding them. Section 702 of the
Foreign Intelligence Surveillance Act allows the government to collect information on foreign targets that
are, to use its own language, reasonably believed to be outside of the U.S. at the time of collection. It
cant target United States persons by law, and it isnt allowed to reverse-target picking a foreign target

The
information collected under Section 702 authority may include the
communications of Americans picked up in the process of collecting
data on foreign targets. The stored information can then be queried
by the NSA, and its intelligence brethren, using search terms to find
the communications of Americans. Hence the term backdoor. How
with the hopes of picking up the communications of someone thought to be in the United States.

many Americans are caught up in the mix? According to the letter, the NSA used such queries to search
the communications content of 198 U.S. persons in 2013. It also made around 9,500 metadata queries for
the communications of U.S. persons in the period. The number of people impacted by the meta-data
searches isnt clear. The CIA made 1,900 queries of Section 702-sourced information using specific U.S.
person identifiers in 2013. Ominously, the FBI also has access to some of the pooled data, but doesnt
count how often that it queries it using U.S. person identifiers. Senator Wyden isnt pleased with the data.
In a statement, he indicated that [w]hen the FBI says it conducts a substantial number of searches and it
has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate
oversight. Scale is also something to keep in mind. The ODNI states in its letter that collection under
Section 702 is not bulk collection, but is targeted collection based on specific identifiers. Senator Wyden
disagrees (Emphasis: TechCrunch): While intelligence officials have often argued that it is impossible to
estimate how many Americans communications are getting swept up by the government under Section

the Foreign Intelligence Surveillance Court has noted that the

NSA acquires more than two hundred and fifty million Internet
702,

communications every year using Section 702, so even if US

communications make up a small fraction of that total, the number
of U.S. communications being collected is potentially quite large . In
short, using a law named the Foreign Intelligence Surveillance Act,
the NSA and the CIA and the FBI are able to search and read the
content of the communications of Americans. Brilliant.

Backdoor searches allow the NSA to analyze a substantial

amount of content about US persons
Elizabeth Goitein, 11/14/2013, Boston Review, The NSAs backdoor
search loophole, http://bostonreview.net/blog/elizabeth-goitein-nsabackdoor-search-loophole-freedom-act, mm

programmatic surveillance under

section 702 sweeps up all international communications to, from, or
about the target. This includes communications coming into or out of
the United States. Granted, the NSA may capture these calls and e-mails only
Even though the target must be a non-citizen,

if it intends to acquire foreign intelligence information. But the

FAA defines this term so broadlyit encompasses any information relevant to the foreign
affairs of the United States that it would in theory permit the capture of
almost all communications between Americans and their friends ,
relatives, or business associates overseas. The NSA refers to this as incidental collection, but there is
nothing incidental about it. As officials made clear during the debates leading up to the enactment of

Americans
communications also may be collected by accident referred to by the NSA as
section 702, communications involving Americans were the most important to us.

inadvertent collection, to distinguish it from the incidental collection that happens by design. Under
section 702, there is no need for the government to specifyor even knowthe identity of the person
whose communications are being intercepted. The government must employ court-approved targeting
procedures, which are supposed to ensure that the target is reasonably believed to be a foreigner
overseas. As a result of Edward Snowdens leaks, however, we now know that these procedures allow the
NSA to presume that the target is a foreigner overseas as long as it has no specific information to the
contrary. Reports also indicate that the NSA, in sifting through Internet traffic, employs search terms that
are designed to achieve 51% confidence in the targets foreignnessjust slightly better odds than a coin

Between inadvertent and incidental collection, it is likely

that Americans communications comprise a significant portion of
toss.

the 250 million Internet transactions

(and undisclosed number of telephone

conversations) intercepted each year without a warrant or showing of probable

cause. At first blush, this may seem to fly in the face of the Fourth Amendment. The law, however,

Under section 702, the NSA must adopt

minimization procedures that are reasonably designed . . . to minimize the
acquisition and retention, and prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons. Information about
provides an apparent safeguard.

Americans may be kept and shared only under narrow circumstancesfor instance, if the information is
evidence of a crime or is necessary to understand foreign intelligence information. The full statutory logic
thus unfolds as follows: In a programmatic effort to collect intelligence about foreign nationals, the
warrantless acquisition of information about U.S. persons may be inevitablebut it should be kept to a
minimum. Moreover, when such warrantless acquisition does occur, the information that relates to U.S.
persons generally should be segregated out and destroyed or masked unless it falls under certain

Enter the backdoor search loophole. In 2011, the

NSA persuaded the Foreign Intelligence Surveillance Court to
approve a new set of minimization procedures under which the
government may use U.S. person identifiersincluding telephone numbers or email accounts known to belong to Americansto search the section 702 database for,
and read, communications of or about those individuals. (The previous
delineated exceptions.

minimization requirements had expressly prohibited this practice.) The government may intentionally
search for this information even though it would have been illegal, under section 702s reverse targeting
prohibition, for the government to have such intent at the time of collection. And the government may use
U.S. person identifiers to search the raw, unminimized data setwhich means, effectively, that
minimization never takes place for those individuals.

FISA Section 702 Legal Basis for PRISM

Section 702 is the legal basis for PRISM
Jennifer Granick, 1/30/2014, Just Security, Reforming the Section 702
Dragnet (part 1), http://justsecurity.org/6574/reforming-section-702-dragnet1/, mm
The consensus is clear that spying on innocent Americans section 215 of the Patriot Act is flatly illegal. The
Center for Democracy and Technology said it, Christopher Sprigman and I said it, Laura Donohue said it,
Judge Richard Leon said it, the Privacy and Civil Liberties Oversight Board (PCLOB) said it, Sprigman and I
said it again. So far, less attention has been paid to the legalityand wisdomof mass surveillance under

Section 702 is the

statutory authority for the PRISM program, which involves
warrantless collection of communications contents via targeting
non-U.S. individuals or entities reasonably believed to be located
abroad. The USA Freedom Act would strengthen and impose additional
restrictions on section 702 surveillance, but would not end the
dragnet. Meanwhile, a report from the New America Foundation recently took a serious look at the
section 702 of the FISA Amendments Act (FAA), codified at 50 USC 1881a.

efficacy of 702 in counterterrorism. Researchers concluded that section 702 is less valuable than people
may have assumed, finding that section 702 collection played a role in only 4.4 percent of examined
terrorism cases. In a few months, PCLOB plans to issue a report on section 702 collection.

FISA Section 702 AT Minimization

Procedures
Minimization procedures are not consistently used and
even intentionally ignored
Sue Halpern, 7/15/2014, New York Review of Books, NSA Surveillance:
What the Government Cant See,
http://www.nybooks.com/blogs/nyrblog/2014/jul/15/nsa-surveillance-whatgovernment-cant-see/, mm
And with different sources came vastly different conclusions. As the Post article pointed out, unintended or

once those extraneous communications were in the system, they

were fair game, and not only for the NSA, but for the FBI , which could hold
onto them for future reference. According to Gellman and his team, 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 agencys general counsel, has testified that the NSA does not generally
attempt to remove irrelevant personal content, because it is difficult for one
not,

analyst to know what might become relevant to another. As the Privacy Board report explains,

personal identifiers are supposed to be minimized , but the Post

journalists found that in many cases, minimization fails to act as an
efective shield of anonymity . NSA analysts masked, or
minimized, more than 65,000 such references to protect
Americans privacy, they wrote, but the Post found nearly 900
additional e-mail addresses, unmasked in the files, that could be
strongly linked to US citizens or US residents.

Minimization procedures do not prevent mass warrantless

surveillance
Glenn Greenwald, 6/18/2013, The Guardian, FISA court oversight: a look
inside a secret and empty process,
http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversightprocess-secrecy, mm
Obama and other NSA defenders have repeatedly claimed that "nobody" is listening to Americans'

There is no doubt that

the communications intercepted by the NSA under this warrantless
scheme set forth in FAA's section 702 include those of US citizens . Indeed, as part of
the Fisa court approval process, the NSA submits a separate document, also signed by Holder, which
telephone calls without first obtaining warrants. This is simply false.
some of

describes how communications of US persons are collected and what is done with them. One typical
example is a document submitted by the NSA in July 2009. In its first paragraph, it

purports to set

forth "minimization procedures" that "apply to the acquisition, retention, use,

and dissemination of non-publicly available information concerning unconsenting United States
persons that is acquired by targeting non-United States persons reasonably believed to be located
outside the United States in accordance with section 702 of the Foreign Intelligence Surveillance Act of
1978, as amended." That document provides that "communications of or concerning United States
persons that may be related to the authorized purpose of the acquisition may be forwarded to analytic
personnel responsible for producing intelligence information from the collected data ."

It also
states that "such communications or information" - those from US

citizens - "may be retained and disseminated" if it meets the

guidelines set forth in the NSA's procedures. Those guidelines specifically
address what the NSA does with what it calls "domestic communications", defined as "communications in
which the sender and all intended recipients are reasonably believed to be located in the United States at

The NSA expressly claims the right to store and even

disseminate such domestic communication if: (1) "it is reasonably believed to
the time of acquisition".

contain significant foreign intelligence information"; (2) "the communication does not contain foreign
intelligence information but is reasonably believed to contain evidence of a crime that has been, is being,
or is about to be committed"; or (3) "the communication is reasonably believed to contain technical data
base information, as defined in Section 2(i), or information necessary to understand or assess a

Although it refuses to say how many

Americans have their communications intercepted without warrants,
there can be no question that the NSA does this. That's precisely
why they have created elaborate procedures for what they do when
they end up collecting Americans' communications without warrants .
communications security vulnerability."

FISA Section 702 AT Justified (Obamas

Privacy Board Report/PCLOB)
The Privacy Boards endorsement of Section 702 is legally
and factually wrong it ignores how the program actually
operates
Cindy Cohn, 7/1/2014, Electronic Frontier Foundation, Flawed oversight
board report endorses general warrants,
https://www.eff.org/deeplinks/2014/07/flawed-oversight-board-reportendorses-general-warrants

The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed
and factually incomplete report late Tuesday that endorses Section 702
surveillance. Hiding behind the complexity of the technology, it gives short shrift to the very
serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also
deferred considering whether the surveillance infringed the privacy of many millions more foreigners

The board skips over the essential privacy problem with the
702 upstream program: that the government has access to or is
acquiring nearly all communications that travel over the Internet. The
board focuses only on the governments methods for searching and
filtering out unwanted information. This ignores the fact that the
government is collecting and searching through the content of
millions of emails, social networking posts, and other Internet communications, steps
abroad.

that occur before the PCLOB analysis starts. This content collection is the centerpiece of EFFs Jewel v. NSA

The boards constitutional

analysis is also flawed. The Fourth Amendment requires a warrant for
searching the content of communication. Under Section 702, the
government searches through content without a warrant. Nevertheless,
case, a lawsuit battling government spying filed back in 2008.

PCLOBs analysis incorrectly assumes that no warrant is required. The report simply says that it takes no
position on an exception to the warrant requirement when the government seeks foreign intelligence. The

PCLOB findings rely heavily on the

existence of government procedures. But, as Chief Justice Roberts recently noted: "the
Supreme Court has never found this exception.

Founders did not fight a revolution to gain the right to government agency protocols." Justice Roberts
thoughts are on point when it comes to NSA spyingmass collection is a general warrant that cannot be

The PCLOB's proposed reforms for Section

702 are an anemic set of recommendations that will do little to stop
excessive surveillance. For example, rather than rein in government communications
cured by governments procedures.

searches, the PCLOB simply asks the NSA to study the issue. The PCLOB report provides the public with

the legal analysis is

incorrect and the report fails to ofer efective reforms . The government's
much needed information about how the 702 program works. But

collection and search of Americans' communications without a warrant or individually approved court order
is barred by the Constitution and must be stopped. We look forward to continuing such arguments in Jewel
v. NSA, our ongoing case against the NSA's mass spying programs.

FISA Section 702 - Solvency Close Backdoor

Requiring a warrant to search American content
communication closes the backdoor loophole
Geoffrey Stone, 7/3/14, The Daily Beast, Its time to shut the NSAs

backdoor used to spy on Americans,

http://www.thedailybeast.com/articles/2014/07/03/it-s-time-to-shut-the-nsa-sbackdoor-used-to-spy-on-americans.html, mm
When the NSA uses section 702 to collect the
communications of suspected foreign terrorists outside the United States, it
will sometimes inadvertently pick up the communications of
American citizens. This might happen is one of two ways. First, even though the NSA has
Heres the problem:

reasonable grounds to believe that the target is a non-American, it will sometimes be wrong. On
occasion, the target will in fact turn out to be an American citizen. But that persons emails, phone calls,
etc. will now be contained in the NSAs database. Second, even if the target is, in fact, a non-American, the
target will sometimes be emailing or calling an American citizen. In that situation, the American citizens
communications with the target will be incidentally picked up by the NSA, and they too will wind up in the
NSAs database. Assuming that the NSAs collection of these communications is authorized by section 702
and is both lawful and constitutional with respect to persons who are not American citizens, what rights, if
any, do American citizens have in the privacy of their communications when those communications have
incidentally been intercepted and collected by the NSA? This raises the issue of so-called backdoor
searches. That is, once the NSA has these communications in its database, can it then lawfully search the
database for the communications of American citizens? The defenders of backdoor searches maintain
that, because the initial interception and collection of the communication was lawful, the government is
free to use the information obtained against anyone. This is, indeed, the general approach to searches in
the United States. For example, if the government lawfully (with probable cause and a warrant) reads Xs
emails or wiretaps Xs phone calls, and it learns from Xs emails or phone calls that Y is engaged in illegal
activity, it can legally use that information against Y, even though the government had no legal
justification to intercept Ys communications. Because the interceptions were themselves lawful, the
general rule is that the government can use the lawfully obtained information against anyone, including Y.
The defenders of backdoor searches argue that the same rule should apply in the section 702 situation.
Last fall, I served on a five-member Review Group that was charged by the president with
making recommendations about reforming the nations foreign intelligence programs. [Our report is here:

recommended that the law should be

changed as follows: The government may not search the contents of
communications acquired under section 702 in an efort to identify
communications of particular United States persons, except when
the government obtains a warrant based on probable cause to
believe that the United States person is planning or is engaged in
acts of international terrorism. In effect, the Review Group
recommended that backdoor searches for communications involving
American citizens should be prohibited unless the government has
probable cause and a warrant. This is essentially what the recently enacted House
(PDF)] After reviewing this issue, we

amendment endorsed. The Review Group concluded that the situation under section 702 is
distinguishable from the situation when the government lawfully intercepts a communication when it has
probable cause and a warrant. This is so because, in the section 702 situation, the government is not
required to have either probable cause or a warrant to intercept the communication. Because section 702
was not intended to enable the government to intercept the communications of American citizens,
because our recommended reform would leave the government free to use section 702 to obtain the types
of information it was designed and intended to acquirethe communications of non-U.S. citizens, and
because the recommended reform would substantially reduce the temptation the government might
otherwise have to use section 702 impermissibly in an effort intentionally to intercept the communications
of American citizens, we concluded that this reform was both wise and essential. Now that the House of
Representatives has agreed, it is time for the Senate and the president to move forward to make this
recommendation a reality.

This change would be an important step forward in our

nations efort to strike the right balance between liberty and

security in a changing world.

Extensions Democracy Adv

Privacy Link Non-adversarial Model

A non-adversarial model will always favor surveillance
over privacy
Douglas Lindner, 4/9/2015, New York University Journal of Legislation and
Public Policy Quorum, Revisiting the FISA Court Appointment Process,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592850, mm

Judicial ideology and viewpoint are of greater concern for the FISC
than for other trial-level courts. The issues are novel, they evolve quickly, and
they are immensely controversial. FISA court proceedings are ex
parte with only the government represented. No matter how noble
or non-ideological FISA judges may be, the circumstances
systemically prejudice them in favor of surveillance, rather than
privacy. 47 That problem is exacerbated by the empirically evident
selection of judges whose ideology and experience indicate
predisposition for the governments side of Fourth Amendment
issues.48 As with any other trial court, one judge typically presides over each case. But the last time
Congress amended the FISA court statute, it permitted the FISC to hear issues en banc, so there really is
potential for judges to get together and vote on tough questions the way divided appellate courts do.49

FISC decisions are nearly always final in fact. The FISCR has
only ever heard two cases, and the Supreme Court has never once
reviewed a case originating in the FISC.50
Moreover,

Privacy Link Metadata Collection

Metadata surveillance dramatically undermines privacy
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 133-34, mm
The US government has insisted that much of the surveillance revealed in the Snowden archive involves
the collection of metadata, not content, trying to imply that this kind of spying is not intrusive or at
least not the same degree as intercepting content. Dianne Feinstein has explicitly argued in USA Today
that the metadata collection of all Americans telephone records is not surveillance at all because it
does not collect the content of any communication. These disingenuous arguments obscure the fact that

metadata surveillance can be at least as intrusive as content

interception, and often even more so. When the government knows
everyone you call and everyone who calls you, plus the exact length
of all those phone conversations; when it can list every single one of your email
correspondents and every location from where your emails were sent , it can create a
remarkably comprehensive picture of your life, your associations, and your
activities, including some of your most intimate and private informatio n.
In an affidavit filed by the ACLU challenging the legality of the NSAs metadata collection program,

metadata
surveillance can be especially revealing: Consider the following hypothetical
Princeton computer science and public affairs professor Edward Felten explained why

example: A young woman calls her gynecologist; then immediately calls her mother; then a man who,
during the past few months, she had repeatedly spoken to on the telephone after 11 pm; followed by a call
to a family planning center that also offers abortions. A likely storyline emerges that would not be as
evident by examining the record of a single telephone call. Even for a single phone call, the metadata can
be more informative than the calls content. Listening in on a woman calling an abortion clinic might reveal
nothing more than someone confirming an appointment with a generic-sounding establishment (East Side
Clinic or Dr. Joness office). But the metadata would show far more than that: it would reveal the identity
of those who were called. The same is true of calls to a dating service, a gay and lesbian center, a drug
addiction clinic, an HIV specialist, or a suicide hotline. Metadata would likewise unmask a conversation
between a human rights activist and an informant in a repressive regime, or a confidential source calling a
journalist to reveal high-level wrongdoing. And if you frequently call someone late at night who is not your

it will record not only all the

people with whom you communicate and how often, but also all the
people with whom your friends and associates communicate,
creating a comprehensive picture of your network of contacts .
spouse, the metadata will reveal that, too. Whats more,

Privacy Internal Link - Slippery Slope

Government surveillance is a slippery slope that erodes
privacy
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 199-200, mm

The relevant point here is not merely that many partisan loyalists are unprincipled hypocrites with no real
convictions other than a quest for power, although that is certainly true. More important is what such
statements reveal about the nature of how one regards state surveillance. As with so many injustices,

people are willing to dismiss fear of government overreach when

they believe that those who happen to be in control are benevolent and
trustworthy. They consider surveillance dangerous or worth caring about
only when they perceive that they themselves are threatened by it.
Radical expansions of power are often introduced in this way , by
persuading people that they afect just a specific, discrete group.

Governments have long convinced populations to turn a blind eye to oppressive conduct by leading
citizens to believe, rightly or wrongly, that only certain marginalized people are targeted, and everyone
else can acquiesce to or even support that oppression without fear that it will be applied to them.

Leaving aside obvious moral shortcomings of this position we do

not dismiss racism because it is directed at a minority , or shrug off hunger
on the grounds that we enjoy a plentiful supply of food it is almost always misguided on
pragmatic grounds. The indiference or support of those who think
themselves exempt invariably allows for the misuse of power to
spread far beyond its original application, until the abuse becomes
impossible to control as it inevitably will. There are too many examples to count,
but perhaps the most recent and potent one is the exploitation of the Patriot Act. A near unanimous
Congress approved a massive increase in surveillance and detention powers after 9/11, convinced by the
argument that doing so would detect and prevent future attacks.

Privacy Brink - Tipping Point

The US is at a tipping point continued mass surveillance
will push the US into a totalitarian abyss
John Suarez, 10/18/2013, Pam Am Post, The US surveillance state and
the totalitarian tipping point, http://panampost.com/johnsuarez/2013/10/18/the-us-surveillance-state-and-the-totalitarian-tippingpoint/, mm

In the 20th century, the United States reached levels of wealth for more people than had ever been seen in
human history. However, those in power whittled away at the nations basic freedoms, slowly and over
generations. Complaints were few because material prosperity endured. Today, massive and

Freedom continues to be
whittled away at, but more US Americans are awakening to this hard truth, because material
prosperity for many is evaporating. One area that they view with growing alarm is the emergence
of the United States of America as a surveillance state , since, along with a
militarized police force, it is the infrastructure of totalitarianism .+ This is the second
unsustainable debts are maintaining the US standard of living.

in a series of reflections seeking to understand these negative trends in the United States. The first essay
analyzed the role of the US Supreme Court in particular, its decisions that undermined private property
rights and forced taxpayers to cooperate with evil. I concluded with the controversial proposition that the
present system in the United States is post-constitutional.+ For generations, US Americans believed that
the first, third, fourth, and ninth amendments found in the Bill of Rights protected the privacy of citizens of
the United States that only a small number engaged in criminal conduct would be subjected to

the
arrival of new technologies provided the state with the means to
circumvent these constitutional provisions. In the state of Florida, for example,
surveillance, following a court order permitting such activity by the authorities.+ However,

automated systems are replacing toll operators, and they either process your information via your Sun
Pass or by photographing your license plate and sending you the bill. According to the pre-paid toll
program privacy policy, information concerning a SunPass account is provided only when required to
comply with a subpoena or court order.+ In other words, they are compiling and storing information on
your whereabouts.+ Affirming this reality, the American Civil Liberties Union stated on July 18, 2013, that
Police around the United States are recording the license plates of passing drivers and storing the
information for years with little privacy protection. The information potentially allows authorities to track
the movements of everyone who drives a car.+ However, the Electronic Frontier Foundation makes clear
that the federal and state governments are monitoring not only US Americans physical movement, but

The government is mass collecting

phone metadata of all US customers under the guise of the Patriot
Act. Moreover, the media reports confirm that the government is collecting and
analyzing the content of communications of foreigners talking to
persons inside the United States, as well as collecting collecting [sic] much more,
also their telephone and e-mail communications.+

without a probable cause warrant. Finally, the media reports confirm the upstream collection off of the

The Edward Snowden revelations

expose a national government that is systematically monitoring and
recording the communications of the entire US American people all
of the time, and beyond. From the Wall Street Journal:+ The National Security
Agency which possesses only limited legal authority to spy on U.S. citizens has built a
surveillance network that covers more Americans Internet
communications than officials have publicly disclosed, current and former
officials say. The system has the capacity to reach roughly 75% of all U.S.
Internet traffic in the hunt for foreign intelligence, including a wide array of communications by
fiberoptic cables that Mr. Klein first revealed in 2006.

foreigners and Americans. In some cases, it retains the written content of emails sent between citizens
within the U.S. and also filters domestic phone calls made with Internet technology . . . What is equally
disturbing is that private companies are complicit in the behavior when not engaging in their own
monitoring of internet communications although, to be fair, their will is not always on the side of the
spying. (See the video below.) Further, even though the immense and illegal surveillance apparatus is out

in the open now, we see no remorse from the instigators and the elected officials responsible. Rather, they
are doubling down, and their apologists are right there with them. Unfortunately, there is no plan; there is
no conspiracy. This expansion and centralization of power has continued under both Republicans and
Democrats in the United States and would most likely continue under a third party. Centralized power has
become an end unto itself, and as the late Czech president Vaclav Havel observed:+ Once the claims of
central power have been placed above law and morality, once the exercise of that power is divested of
public control, and once the institutional guarantees of political plurality and civil rights have been made a
mockery of, or simply abolished, there is no reason to respect any other limitations. The expansion of
central power does not stop at the frontier between the public and the private, but instead, arbitrarily
pushes back that border until it is shamelessly intervening in areas that once were private.

The

United States is reaching a tipping point that leads into a

totalitarian abyss

and the crackdown on privacy whistleblowers is one of many ominous signs

regarding where this centralization of power is heading.+

Privacy Impact Privacy > Terrorism

Privacy outweighs the infinitesimal risk of terrorism
their impact scenario is based on hype and fearmongering
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 205-208, mm

What is perhaps most remarkable about the bottomless exploitation of th e

threat of terrorism
is that is so plainly exaggerated. The risk of any American dying in a
terrorist attack is infinitesimal, considerably less than the chance of being struck by
lightning. John Mueller, an Ohio State University professor who has written extensively about the
balance between threat and expenditures in fighting terrorism, explained in 2012: The
number of people worldwide who are killed by Muslim-type
terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. Its basically the
same number of people who die drowning in the bathtub each year. More
American citizens have undoubtedly died overseas from traffic accidents or intestinal illnesses, the

The idea that we should

dismantle the core protections of our political system to erect a
ubiquitous surveillance state for the sake of this risk is the height of irrationality.
news agency McClatchy reported, than from terrorism.

Yet exaggeration of the threat is repeated over and over. Shortly before the 2012 Olympics in London,
controversy erupted over a supposed lack of security. The company contracted to provide security had
failed to appoint the number of guards required by its contract, and shrill voices from around the globe
insisted that the games were therefore vulnerable to a terrorist attack. After the trouble-free Olympics,
Stephen Walt noted in Foreign Policy that the outcry was driven, as usual, by severe exaggeration of the

Mueller and Mark G. Stewart in International Security for which

analyzed fifty cases of purported Islamic terrorist plots
against the United States, only to conclude that virtually all of the
perpetrators were incompetent, ineffective, unintelligent, idiotic, ignorant, unorganized,
misguided, muddled, amateurish, dopey, unrealistic, moronic, irrational, and foolish. Mueller and
Stewart quoted from Glenn Carle, former deputy national intelligence officer for transnational threats,
who said, We must see jihadists for the small, lethal, disjointed and miserable opponents that they are,
and they noted that al-Qaedas capabilities are far inferior to its desires .
The problem, through, is that there are far too many power factions with
a vested interest in the fear of terrorism: the government , seeking
justification for its actions; the surveillance and weapons industries, drowning in
threat. He cited an essay by John
the authors had

public funding; and the permanent power factions in Washington, committed to setting their priorities
without real challenge. Stephen Walt made this point: Mueller and Stewart estimate that expenditures on
domestic homeland security (i.e. not counting the wars in Iraq and Afghanistan) have increased by more
than $1 trillion since 9/11, even though the annual risk of dying in a domestic terrorist attack is about 1 in
3.5 million. Using conservative assumptions and conventional risk-assessment methodology, they estimate
that for these expenditures to be cost-effective they would have had to deter, prevent, foil or protect
against 333 very large attacks that would otherwise have been successful every year. Finally, they worry
that this exaggerated sense of danger has now been internalized: even when politicians and terrorism

As the fear
of terrorism has been manipulated, the proven dangers of allowing
the state to operate a massive secret surveillance system have been
seriously understated. Even if the threat of terrorism were at the
level claimed by the government, that would still not justify the
NSAs surveillance programs. Values other than physical safety are
at least as if not more important. This recognition was embedded in US political culture
from the nations inception, and is no less crucial for other countries. Nations and individuals
constantly make choices that place the values of privacy and, implicitly,
experts arent hyping the danger, the public still sees the threat as large and imminent.

freedom above

other objectives, such as physical safety. Indeed, the very purpose of the
Fourth Amendment in the US Constitution is to prohibit certain police actions, even though they might
reduce crime. If the police were able to barge into any home without a warrant, murderers, rapists, and
kidnappers might be more easily apprehended. If the state were permitted to place monitors in our homes,
crime would probably fall significantly (this is certainly true of house burglaries, yet most people would
recoil in revulsion at the prospect). If the FBI were permitted to listen to our conversations and seize our
communications, a wide array of crime could conceivably be prevented and solved. But the Constitution
was written to prevent such suspicionless invasions by the state. By drawing the line at such actions, we
knowingly allow for the probability of greater criminality. Yet we draw that line anyway, exposing ourselves
to a higher degree of danger, because pursuing absolute physical safety has never been our single
overarching societal priority. Above even our physical well-being, a central value is keeping the state out of

the private realm our persons, houses, papers, and effects, as the Fourth Amendment puts it.
We do so precisely because that realm is the crucible of so many of the attributes
typically associated with the quality of life creativity, exploration, intimacy.
Forgoing privacy in a quest for absolute safety is as harmful to a
healthy psyche and life of an individual as it is to a healthy political
culture. For the individual, safety first means a life of paralysis and fear , never
entering a car or an airplane, never engaging in an activity that entails risk, never weighing quality of life

Fearmongering is a favored tactic

by authorities precisely because fear so persuasively rationalizes an
expansion of power and curtailment of rights. Since the beginning of the War on
over quantity, and paying any price to avoid danger.

Terror, Americans have frequently been told that they must relinquish their core political rights if they are
to have any hope of avoiding catastrophe. From Senate Intelligence chair Pat Roberts, for example: I am a
strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil
liberties if you are dead. And GOP senator John Cornyn, who ran for reelection in Texas with a video of
himself as a tough guy in a cowboy hat, issued a cowardly paean to the benefit of giving up rights: None
of your civil liberties matter much after youre dead. Talk radio host Rush Limbaugh piled on, displaying
historical ignorance by asking his large audience: When is the last time you heard a president declare war
on the basis that we gotta go protect our civil liberties? I cant think of oneOur civil liberties are worthless
if we are dead! If you are dead and pushing up daisies, if youre sucking dirt inside a casket, do you know

a country that venerates

physical safety above all other values will ultimately give up its
liberty and sanction any power seized by authority in exchange for
the promise, no matter how illusory, of total security. However, absolute safety is
itself chimeric, pursued but never obtained. The pursuit degrades
those who engaged in it as well as any nation that comes to be
defined by it.
what your civil liberties are worth?? Zilch, zero, nada. A population,

Privacy Impact Civic Engagement

Mass surveillance creates a chilling efect that
undermines civic engagement and political activism
Mark Lerner, 8/5/2014, [Lerner is the director of The Constitutional

Alliance], American Policy Center, The chilling effect of domestic spying,

http://americanpolicy.org/2014/08/05/the-chilling-effect-of-domestic-spying/,
mm
the Snowden revelations have revealed to a large
degree the domestic surveillance taking place, the public knows more about what
OUR government is doing. The bad news is the chilling efect creating a
surveillance state has on a representative form of government . The
The good news is now that

chilling effect can be simply defined as the way in which people alter or modify their behavior to conform
to political and social norms as a result of knowing or believing they are being observed. The observation
can be from physical surveillance, telephone meta data being collected, emails being intercepted and
read, search engine requests being maintained, text messages being read and stored, financial
transactions being monitored and much more. This paper will examine the chilling effect and provide some
empirical data (links within this article) to show

the chilling efect is real . Denial is no longer

an option. For years, even decades it has been reported by people inside and outside our government that
agencies and departments within our federal government have been spying on citizens and further
collecting data (Personal Identifiable Information) associated with the domestic spying taking place. Many
of us who discussed the spying taking place were called conspiracy theorists, tin foil hat wearers, or black
helicopter paranoid people: Today we are called realists. The Snowden revelations are unique because of
the depth and scope of the revelations and because Snowden had the official documents to back up his
assertions. Previously people including former NSA analysts such as William Binney, Thomas Drake, Russell
Tice and Kirk Wiebe had come forward asserting that our government was spying on citizens. Too many in
the government, the media, and the public dismissed the allegations of these men because it was easy
to do so rather than believe the worst about our government, or actually having to do something about
domestic spying. To be fair the NSA has not been the only ones accused of domestic spying. The FBI, DHS,
and the CIA have also been proven to having done their own domestic spying; in the case of the FBI going
back over seventy years. I support the need for our intelligence community, law enforcement, and our
military. Unfortunately in much the same way the Stockholm Syndrome results in a person who has been
kidnapped falling victim to the goals and aspirations of the kidnappers, the rank and file of those
responsible for protecting us and our freedom have fallen victim to corrupt leadership in our intelligence
and law enforcement communities. The culture of corruption is just as infectious as any chemical or
biological weapon of mass destruction. Congress has its share of the blame for the domestic spying that
has and even to this day is taking place. After all it is congress that has the responsibility of oversight over
agencies and departments of the federal government. All too often congress has failed to do what it has
been tasked with doing; performing oversight. In fact, not too long ago congress gave retroactive immunity
to telecom companies for the roles telecom companies played in illegally collecting information for the NSA
at the request of former President Bush. When it comes down to it, there is plenty of blame to go around.
Some are guilty: All are responsible including the public for not demanding better of our elected and
appointed officials. Whether a Democrat or Republican occupied the White House or regardless of which
party controlled the Senate and/or the House of Representatives, domestic spying took place and is still
taking place. Domestic spying is not a Right or Left issue. Domestic spying is an equal opportunity
offender. Typically I would provide dozens of links in an article to substantiate what I am writing. In the
case of the chilling effect I am only going to provide three links. The three links provide undeniable
evidence that the chilling effect is real and how the chilling effect is affecting our country
http://gigaom.com/2013/08/20/through-a- prism-darkly-fear-of-nsa-surveillance-is- having-a-chilling-effecton-the-open-web/ and https://www.commondreams.org/ headline/2013/11/12-5 and finally http://
papers.ssrn.com/sol3/papers.cfm? abstract_id=2412564 The bottom line is the chilling effect is not some

The chilling efect is quantifiable based on empirical

data. People were polled and research has been done. The public including
psycho mumble jumble.

lawmakers, young people, journalists and other writers have all too various degrees become subject to

Political scientists, attorneys, law professors,

psychologists, sociologists have all weighed in on the chilling efect . I
the chilling effect.

have read dozens of papers and other material accounting for thousands of pages about the Chilling
Effect. Depending on who is doing the research and the writing,

it is fair and reasonable to

assert that as much as 50% of people or more alter their behavior

to conform to political and social norms as a direct result of the
surveillance state that has been created in the United States. Up to 33%
of journalists and other writers have admitted to changing what they write or say, or seriously considered

What does all

this mean to activists who are attempting to get the general
public engaged in a whole host of issues from Common Core, Real
ID, smart meters, immigration, national debt, healthcare, foreign
policy and yes, even including domestic surveillance among other
issues? What it means is the chilling efect will make it much more
difficult to engage the general public much less educate and
motivate the general public to take a stand and have their voices
heard.
changing what they write or say because they believe they are being watched.

Privacy Impact Dehum

Loss of privacy causes dehumanization
Lynch 13Michael P. Lynch is a professor of philosophy at the University of Connecticut and the
author of In Praise of Reason and Truth as One and Many. Privacy and the Threat to the Self JUNE 22,
2013 http://opinionator.blogs.nytimes.com/2013/06/22/privacy-and-the-threat-to-the-self/?_r=0 A.G.

In the wake of continuing revelations of government spying programs and the

recent Supreme Court ruling on DNA collection both of which push the generally
accepted boundaries against state intrusion on the person the issue of privacy is foremost
on the public mind. The frequent mantra, heard from both media commentators and government
officials, is that we face a trade-off between safety and convenience on one hand and privacy on the

The connection between loss of

privacy and dehumanization is a well-known and ancient fact . This way of framing
other. We just need, we are told, to find the right balance.

the issue makes sense if you understand privacy solely as a political or legal concept. And its political
importance is certainly part of what makes privacy so important: what is private is what is yours alone to
control, without interference from others or the state. But the concept of privacy also matters for another,
deeper reason. It is intimately connected to what it is to be an autonomous person. What makes your
thoughts your thoughts? One answer is that you have what philosophers sometimes call privileged

access to them. This means at least two things. First, you access them in a way
I cant. Even if I could walk a mile in your shoes, I cant know what you feel in
the same way you can: you see it from the inside so to speak. Second, you
can, at least sometimes, control what I know about your thoughts. You can
hide your true feelings from me, or let me have the key to your heart. The idea
that the mind is essentially private is a central element of the Cartesian concept of the self a concept
that has been largely abandoned, for a variety of reasons. Descartes not only held that my thoughts were
private, he took them to be transparent all thoughts were conscious. Freud cured us of that. Descartes
also thought that the only way to account for my special access to my thoughts was to take thoughts to be
made out of a different sort of stuff than my body to take our minds, in short, to be non-physical, distinct
from the brain. Contemporary neuroscience and psychology have convinced many of us otherwise. But

there is something profoundly right

about the connection between privacy and the self , something that recent events
should cause us to appreciate. What is right about it, in my view, is that to be an autonomous
person is to be capable of having privileged access (in the two senses defined above)
to information about your psychological profile your hopes, dreams, beliefs
and fears. A capacity for privacy is a necessary condition of autonomous
personhood. To get a sense of what I mean, imagine that I could telepathically read all your conscious
and unconscious thoughts and feelings I could know about them in as much detail as
you know about them yourself and further, that you could not, in any way, control my
access. You dont, in other words, share your thoughts with me; I take them. The power I would
have over you would of course be immense. Not only could you not hide from me, I would
while Descartess overall view has been rightly rejected,

know instantly a great amount about how the outside world affects you, what scares you, what makes you

I could not only know what you think, I could to

a large extent control what you do. That is the political worry about the loss
of privacy: it threatens a loss of freedom. And the worry, of course, is not merely
theoretical. Targeted ad programs, like Googles, which track your Internet
searches for the purpose of sending you ads that reflect your interests can
create deeply complex psychological profiles especially when one conducts
searches for emotional or personal advice information: Am I gay? What is
terrorism? What is atheism? If the government or some entity should request the identity of the
act in the ways you do. And that means

person making these searches for national security purposes, wed be on the way to having a real-world

the loss of privacy doesnt just threaten political

freedom. Return for a moment to our thought experiment where I telepathically know all your thoughts
whether you like it or not From my perspective, the perspective of the knower your existence as
version of our thought experiment. But

a distinct person would begin to shrink . Our relationship would be so lopsided that there
might cease to be, at least to me, anything subjective about you. As I learn what reactions you
will have to stimuli, why you do what you do, you will become like any other
object to be manipulated. You would be, as we say, dehumanized The connection
between a loss of privacy and dehumanization is of course, a well-known and ancient fact, and one for

It is employed the world over in

every prison and detention camp. It is at the root of interrogation techniques that begin by
which we dont need to appeal to science fiction to illustrate.

stripping a person literally and figuratively of everything they own. Our thought experiment merely shows
us the logical endgame. Prisoners might hide their resentment, or bravely resist torture (at least for a time)
but when we lose the very capacity to have privileged access to our psychological information the
capacity for self-knowledge, so to speak, we literally lose our selves. In making the connection between
autonomous personhood and the privacy of thought in this way, we neednt rely on a Cartesian view of the
mind. The connection isnt metaphysical. It is a presupposition of understanding and communicating with
one another. Mutual communication as opposed to, say, eavesdropping is about sharing. When
communicating freely in this way, we see one another as subjects, as persons whose thoughts are our own
thoughts to which we have privileged access and are attempting to communicate. This assumption
might be mistaken in particular cases of course. But it is hard to make sense of mutual, open
communication without it. This is not a fact that requires us to think that the mind is non-physical. But it
does tell us that our concept of psychological privacy and one centrally important notion of personhood
that of an autonomous person are deeply linked. John Locke, who thought about all these ideas,
described personhood in general as a forensic concept. By this, he meant that it was an idea with a legal
purpose and it is. We use it to decide who can be held responsible, and who has rights that the state
should not violate. But the concept of an autonomous person has an additional role. It matters because it

So while
privacy, too, is a legal concept, its roots are deeply intertwined with the
purposes and point of the more basic concept of having a self . And that in turn
is the idea we use when we think of ourselves as just that as developed adult selves.

raises all sorts of questions worth asking. Some of these are philosophical and psychological: including the

think
about how our technologies are themselves changing our ways of thinking
about the self. However we resolve these issues, we would do well to keep the connections between
limits of, and underlying explanation for, the privacy of the mental. But others should get us to

self, personhood and privacy in mind as we chew over the recent revelations about governmental access
to Big Data. The underlying issue is not simply a matter of balancing convenience and liberty. To the extent
we risk the loss of privacy we risk, in a very real sense, the loss of our very status as subjective,
autonomous persons.

Democracy UQ Authoritarianism Increasing

Now
We are in the midst of a democratic recession
authoritarianism is spreading
Larry Diamond, January 2015, [prof. at Stanford], Journal of Democracy,
26(1), facing up to the democratic recession,
http://cddrl.fsi.stanford.edu/sites/default/files/ld_jod_jan2015-1.pdf, mm
The world has been in a mild but protracted democratic recession since
about 2006. Beyond the lack of improvement or modest erosion of global levels of democracy and
freedom, there have been several other causes for concern. First, there has been a
significant and, in fact, accelerating rate of democratic breakdown.
Second, the quality or stability of democracy has been declining in a
number of large and strategically important emerging-market
countries, which I call swing states. Third, authoritarianism has been
deepening, including in big and strategically important countries. And
fourth, the established democracies, beginning with the United States,
increasingly seem to be performing poorly and to lack the will and
self-confidence to promote democracy efectively abroad. I explore each of
these in turn.

Global authoritarianism is increasing now

Larry Luxner, 4/22/2015, Atlantic Council, Authoritarianism stages a
comeback, http://www.atlanticcouncil.org/blogs/newatlanticist/authoritarianism-stages-a-comeback, mm

dictators seem to be gaining

the upper hand these daysoutsmarting the most determined prodemocracy activists with a clever mix of 21st-century technology
and old-fashioned repression. Why this is happening, and what we can do about it, is the
subject of an insightful new book that covers the A-to-Z of dictatorship around the globe: Is
Authoritarianism Staging a Comeback? The answer is a resounding
yes, according to half a dozen scholars who gathered April 21 at the Atlantic Council to discuss the book
From Azerbaijans Ilham Aliyev to Zimbabwes Robert Mugabe,

and its implications. The panel included the volumes two editors, Mathew Burrows and Maria J. Stephan,
The success rate
of civil disobedience has declined to a rate not seen since the 1950s .

who together lead the Atlantic Councils Future of Authoritarianism project.

Its worrisome, said Stephan, a Senior Policy Fellow at the United States Institute of Peace (USIP).
Theres

an element of authoritarian resilience around the world .

Global authoritarianism is increasing now halting the

spread of liberal ideals like privacy is key to sustaining
the containment of democracy
Christopher Walker, 6/13/2014, (Walker is an executive director of the

International Forum for Democratic Studies at the National Endowment for

Democracy), The Washington Post, Authoritarian regimes are changing how

the world defines democracy,

http://www.washingtonpost.com/opinions/christopher-walker-authoritarianregimes-are-changing-how-the-world-definesdemocracy/2014/06/12/d1328e3a-f0ee-11e3-bf76-447a5df6411f_story.html,
mm
In 1947, George Kennans X-Article argued for a policy of containment to combat the spread of Soviet
influence. That policy would become the basic strategy of the United States throughout the Cold War.

todays leading authoritarian

regimes are turning containment on its head, using massive
resources and coordinated political eforts to chip away at the rulesbased institutions that have served as the glue for the post-Cold War liberal order, while checking
the reform ambitions of aspiring democracies and reshaping the way the world
thinks about democracy. Call it the democracy containment
doctrine. Russias destabilization of Ukraine, where Moscow has annexed Crimea and provoked a
More than six decades later, in an underappreciated twist,

debilitating separatist rebellion in the eastern part of that country, has dominated the news recently. But
this action should be seen for what it is: a Kremlin containment effort to prevent Ukrainians from achieving

The
Ukraine example is just one small part of a vast containment
ambition led by the regimes in Moscow, Beijing, Riyadh and Tehran ,
which may disagree on many things but share an interest in limiting the spread of democracy. The
strategy has evolved in three key areas. The first concerns
institutions. Seeing regional and international rules-based bodies as a threat to regime interests,
a democratically accountable government that would threaten Russias corrupt authoritarian system.

authoritarians have focused their efforts on hobbling key institutions democracy and human rights
mechanisms. Russia, in cooperation with other authoritarian regimes in Eurasia, has undermined the
human rights dimensions of the Council of Europe and the Organisation for Security and Cooperation in
Europe, especially the latters election-monitoring and media-freedom functions. Venezuela plays a

Within the United

Nations, an authoritarian fraternity led by Security Council members China and Russia
routinely blocks democracy-friendly measures on a range of issues. Iran, along
similarly harmful role with regard to the Organization of American States.

with China and Russia, is pursuing greater control of the Internet in intergovernmental bodies worldwide.
As the authoritarians whittle away at democratic standards, they have created their own clubs, such as the
Shanghai Cooperation Organization (SCO) and the Eurasian Customs Union, that mimic their liberal
counterparts but whose aim is to institutionalize authoritarian norms. Through a treaty arrangement with
SCO members, China has challenged the norm against refoulement the return of persecuted individuals
to the hands of their persecutors by using a designation of terrorist as the basis for repatriation. China
has persuaded non-SCO countries such as Cambodia and Malaysia to cooperate with this new standard.
More broadly, authoritarian regimes work with each other to monitor activists and oppositionists and block
their movement, for instance through international watchlists and blacklists that are generated within

The second sphere relates to

the containment of both young democracies and middle-performing countries with
reform ambitions whose democratic success would pose a threat to authoritarian regimes. In
the context of the SCO and the Gulf Cooperation Council.

addition to Ukraine, Russia pursues a disruptive policy toward democratic hopefuls Georgia and Moldova.
The Baltic states, although NATO and European Union members, nevertheless are targets of Kremlinbacked political efforts and media campaigns that aim to raise doubts about the integrity of their young
democracies. China is taking measures to slowly squeeze the democracy out of Hong Kong. Saudi Arabias
political and security commitment to Bahrains government has served to contain its smaller neighbors

The third sphere of containment is in the realm of ideas.

These regimes may not be ideological in the Cold War sense, but they understand the
importance of ideas, which explains a good deal about why they
work so hard to try to prevent the emergence of alternative ones
within their own systems. With time, they have fine-tuned
arguments that share the goal of creating an anti-American, antidemocracy narrative. This matters because the best-resourced regimes especially China
democracy movement.

and Russia have built formidable traditional and new media outlets that enable them to project such
messages into the global marketplace. This prowess is especially apparent in the developing world, where
a new battle of ideas is underway. China has an enormous media presence in sub-Saharan Africa and has

rapidly gained a foothold there. Its multibillion-dollar international CCTV has programs in Arabic, French,
Russian and Spanish, and the state news agency Xinhua is expanding worldwide. Russias RT, in addition to
its virulently anti-Western English programming, broadcasts its jaundiced view of the world around the
clock in Spanish and Arabic. While the authoritarians claim that their massive international broadcasting
ventures are needed to offer an unfiltered view of their countries, it is telling that these state-led media
conglomerates devote so much of their programing to assailing the West and the idea of democracy. We
can infer from this that the emerging authoritarian doctrine reflects the need for leaders in Moscow, Beijing
and elsewhere to contain what they fear and do not possess: democratic accountability and legitimacy.

Given the stakes for the liberal order, the democratic world will need
to develop a serious long game sooner rather than later to respond to the
growing challenge presented by the migration of the authoritarians illiberal norms beyond their
borders.

Global authoritarianism is consolidating now but the

transition could be derailed by a democratic resurgence
Democracy Digest, 7/3/2014, Are the authoritarians winning?
http://demdigest.net/blog/authoritarians-winning/, mm

the advance of democratic

constitutionalism has stopped, the Harvard Kennedy Schools Michael Ignatieff asserts:
For the first time since the end of the cold war,

In the 1930s travelers returned from Mussolinis Italy, Stalins Russia, and Hitlers Germany praising the
hearty sense of common purpose they saw there, compared to which their own democracies seemed
weak, inefficient, and pusillanimous. Democracies today are in the middle of a similar period of envy and

Authoritarian competitors are aglow with arrogant

confidence. In the 1930s, Westerners went to Russia to admire Stalins Moscow subway stations;
despondency.

today they go to China to take the bullet train from Beijing to Shanghai, and just as in the 1930s, they
return wondering why autocracies can build high-speed railroad lines seemingly overnight, while
democracies can take forty years to decide they cannot even begin.

The Francis Fukuyama

momentwhen in 1989 Westerners were told that liberal democracy was the final form toward which
all political striving was directednow looks like a quaint artifact of a vanished unipolar

moment. The conflict between authoritarianism and democracy is not a new cold war, we are told,
because the new authoritarians lack an expansionary ideology like communism, he writes for the New
York Review of Books. This is not true. Communism may be over as an economic system, but as a model
of state domination it is very much alive in the Peoples Republic of China and in Putins police state, he
notes: Nor does this new authoritarianism lack an economic strategy. Its goal is a familiar form of
modernization that secures the benefits of global integration without sacrificing political and ideological
control over its populations. Its economic model is price-fixing state capitalism and its legal system is rule
by (often corrupt) fiat in place of the rule of law. Its ethics rejects moral universalism in favor of a claim
that the Chinese and Russian civilizations are self-contained moral worlds. Persecution of gays, therefore, is
not some passing excess, but is intrinsic to their vision of themselves as bulwarks against Western
individualism. Russias and Chinas strategic visions may draw on different historical experiences, but the
messages they take from their histories are similar. Both dwell on the humiliations they have received at
the hands of the West. Both explicitly refuse to accept liberal democracy as a model. Both insist that their
twentieth-century experience of revolution and civil war necessitates centralized rule with an iron fist. The
Chinese and Russian variants of authoritarian modernization draw upon different resources, and they
remain geostrategic competitors, one rising, the other trying to halt its decline, but both see good reasons
to align their interests for the medium term. This commonality of interest is strikingthey vote together on
the Security Council, persecute their own dissidents, and jointly stick up for exterminatory dictatorship in
Syria. In their shared resentment toward the American world order, they have spoken as one since the day
the Americans bombed the Chinese embassy in Belgrade in 1999. The

new authoritarians
ofer the elites of Africa and Eurasia an alternate route to modern
development: growth without democracy and progress without freedom, notes Ignatieff. This is
the siren song some African, Latin American, and Asian political elites, especially the kleptocrats, want to
hear. U.S. no longer vanguard of democracy President Obamas recent address at West Point suggests
that he is listening to a new doctrine of restraint, he writes, one which captures a sense, among

America no longer has the power to shape the international

no longer can imagine itself as the vanguard
democracy of an advancing global order of democracies. The Economists
conservatives and progressives alike, that
order as it once did. In particular, it

John Micklethwait and Adrian Wooldridge urge Western democrats to learn from their authoritarian
competitors, says Ignatieff: The fact that Singapore and Shanghai are better governed than Detroit or Los

Angeles is hardly news. The issue is whether authoritarian governance is sustainable in the face of
demands by the middle class to be treated like citizens, and whether such governance is capable of
dealing with radical shocks like a long-term economic slowdown of the kind currently predicted for China.

The authoritarian archipelago is arrogant but it is brittle: it must

control everything, or soon it controls nothing. The saving grace of democracy is
its adaptability. It depends for its vitality on discontent. Discontent leads to peaceful regime change, and
as regimes change, free societies can discard failed alternatives.

Democracy Link PRISM/Section 702

Specifically, Section 702 and PRISM amount to a
turnkey that can bring about totalitarianism overnight
the current FISA Court cant adequately safeguard against
abuses
Kim Dotcom, 6/13/2013, The Guardian, PRISM: concerns over
government tyranny are legitimate,
http://www.theguardian.com/commentisfree/2013/jun/13/prism-utah-datacenter-surveillance, mm

Some proponents of Prism assert that it is an essential tool against terrorism. They claim that only data
belonging to foreigners (that is, non-US residents) is retained, and that content is not reviewed as a matter of course, only

point out that a search warrant is still

required from a secret court set up under the US. The Foreign Intelligence Surveillance Act (FISA)
algorithmically analysed for suspicious patterns. They

may be spun up so that content accumulated over years of daily internet spooling may be extracted and analysed,

Those safeguards have limited value. According to

the FISA court received 1,789 applications for
authority to conduct electronic surveillance in 2012, but not one
application was denied. We cannot debate whether the FISA court is a rubber stamp, because its
laying bare a suspects entire virtual life.
congressional reporting,

proceedings are secret. Further, any assurance to US citizens that the NSA will not gather and archive their data is
suspect. The Five Eyes alliance between the intelligence agencies of the US, Australia, Canada, New Zealand and the UK
effectively permits those governments to circumvent the prohibition against gathering data on their own citizens by
sharing information across the Five Eyes intelligence community. The UK for example can spy on Americans and make that
information available to the US government on its massive spy cloud one that the NSA operates and the Five Eyes

Prior to 9/11, the operative presumption in developed nations

favoured privacy, but the security narrative has since reversed the
presumption, eroding our privacy rights in favour of government control over our personal
information. However, government is an instrument sometimes a crude one susceptible to
abuse, as demonstrated by recent admissions that the US Internal Revenue Service has targeted specific groups
share.

based on ideology. When we empower the state, we empower those that hold sway over the state, and the state is subject
to influence from a multitude of quarters. I have personally been a victim of such abuses. The US government has
indicted me, shut down my cloud storage company Megaupload and seized all of my assets because it claims I was
complicit in copyright infringement by some of the people who used the Megaupload service. I have emphasised that I am
being prosecuted not because the charges against me have some sound basis in US copyright law, but because the US
justice department has been instrumentalised by certain private interests that have a financial stake in neutralising my
business. That trend represents a danger not just to me, but to all of us. Recent polls in the US suggest that the public is
not much preoccupied with the fact that our data is being retained, so long as our own political party is in control of the

The point we should derive from

Snowdens revelations a point originally expressed in March 2013 by William Binney, a
former senior NSA crypto-mathematician is that the NSAs Utah
Data Center will amount to a turnkey system that, in the wrong
hands, could transform the country into a totalitarian state virtually
government. That kind of fickle comfort is small-minded.

overnight . Every person who values personal freedom, human rights and the rule of law must recoil against such
a possibility, regardless of their political preference. Others take a more cavalier approach, such as former Google CEO
Eric Schmidt in 2009: If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the

the prospect of an Orwellian

society outweighs whatever security benefits we derive from Prism or
Five Eyes. Viewed through the long lens of human history, concerns over government tyranny
are always legitimate. It is those concerns that underpin the constitutions of most developed countries,
first place. We should heed warnings from Snowden because

and inform international principles of human rights and the rule of law. Prism and its related practices should be
discontinued immediately, and the Utah Data Center should be leased to cloud storage companies with encryption
capabilities.

Democracy Link Future Presidents

And unchecked domestic surveillance programs ensure
future presidents will rollback democracy
Timothy Lee, 6/6/2013, The Washington Post, Everything you need to

know about the NSAs phone records scandal,

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/06/everythingyou-need-to-know-about-the-nsa-scandal/, mm
civil libertarians say that the privacy of communications plays a
crucial role in a free and democratic society. Last month's AP scandal is a good
But

illustration of the problem. Routine government monitoring of who was talking to reporters is likely to deter
whistleblowers from talking to the media for fear of losing their jobs, or worse. That makes it harder for

In the hands of
an unscrupulous future president, mass surveillance could be turned
into a powerful weapon against democratic government . For example,
the voters to learn about government misconduct, making misconduct more likely.

having the calling records of every member of Congress would likely reveal which members kept
mistresses, which could be used to blackmail members of Congress into supporting a future president's
agenda. Calling records could also provide valuable political intelligence, such as how frequently members
of Congress were talking to various interest groups. This sounds speculative and a little paranoid.

There are real

historical examples of surveillance powers being abused . The most
famous are the revelations that led to Richard Nixon's resignation in
1974. But abuses also occurred under his predecessors . For example,
Government officials wouldn't actually do that sort of thing, would they?

between 1963 and 1965, the FBI bugged at least 14 hotel rooms of Martin Luther King, Jr., seeking
"information concerning King's personal activities" to "discredit him." The FBI then sent King a letter
threatening to release personally embarrassing recordings to the public. King interpreted it as "an effort to
induce him to commit suicide." He was harassed by the FBI until his death in 1968. We have no evidence
that the NSA has engaged in such conduct, but the revelations of King's harassment didn't come out until

civil libertarians argue that no matter how ethical

the current administration might be, it's only a matter of time before
a less law-abiding administration comes to power.
years after the fact. And

Democracy Impact Demo Peace Theory

Strong democracy maintains global peacethe best
research proves

Cortright 13, David Cortright is the director of Policy Studies at the Kroc
Institute for Peace Studies at the University of Notre Dame, Chair of the Board
of Directors of the Fourth Freedom Forum, and author of 17 books, Kristen
Wall is a Researcher and Analyst at the Kroc Institute, Conor Seyle is
Associate Director of One Earth Future, Governance, Democracy, and Peace
How State Capacity and Regime Type Influence the Prospects of War and
Peace, http://oneearthfuture.org/sites/oneearthfuture.org/files//documents/pu
blications/Cortright-Seyle-Wall-Paper.pdf
Drawing from the empirical literature , this paper identifies two underlying
pathways through which state governance systems help to build peace.
These are: State capacity. If states lack the ability to execute their policy
goals or to maintain security and public order in the face of potentially
violent groups, armed conflict is more likely . State capacity refers to two
significant aspects: security capacity and social capacity. Security capacity
includes the ability to control territory and resist armed incursion from
other states and nonstate actors. Social capacity includes the ability to
provide social services and public goods. Institutional quality. Research
suggests that not all governance systems are equally efective or capable of
supporting peace. Governance systems are seen
as more credible and legitimate , and are better at supporting peace ,
when they are characterized by inclusiveness, representativeness,
transparency, and accountability. In particular, systems allowing citizens to

voice concerns, participate politically, and hold elected leaders accountable

are more stable and better able to avoid armed conflict. Both dimensions
state capacity and qualityare crucial to the prevention of armed
conflict and are the focus of part one of this paper. Part two of the paper
focuses on democracy as the most common way of
structuring state government to allow for inclusive systems while
maintaining state capacity. The twoparts summarize important research
findings on the features of governance that are most strongly
associated with prospects for peace. Our analysis, based on an extensive
review of empirical literature, seeks to identify the specific dimensions of
governance that are most strongly associated with peace. We show
evidence of a direct link between peace and a states capacity
to both exert control over its territory and provide a full range of
social services through efective governance institutions. We apply a

governance framework to examine three major factors associated with the

outbreak of warborder disputes, ethnic conflict, and dependence on
commodity exportsand emphasize the importance of inclusive and
representative governance structures for the prevention of armed conflict.

Overwhelming empirical evidence supports the

democratic peace theory
McFaul, prof of political science @ Stanford and special assistant to Obama,
2010
(Michael, Advancing democracy abroad: why we should and how we can)

The second concern about democracies being more prone war is also
exaggerated. Democracies do not go to war with each other. More
precisely, Bruce Russett, one of the closest observers of this
phenomenon, writes, First, democratically organized political systems
in general operate under restraints that make them more peaceful in
their relations with other democracies. . . . Second, in the modern
international system, democracies are less likely to use lethal violence toward
other democracies than toward autocratically governed states or than
autocratically governed states are toward each other. Furthermore, there are
no clearcut cases of sovereign stable democracies waging war with each
other in the modern international system. Reflecting on a vast academic
literature on the causes of war, Jack Levy concluded that the
democratic peace theory is " the closest thing we have to empirical
law in the study of international relations ."107 Democracies are not
pacifist regimes when dealing with autocracies. But democracies are peaceful
when interacting with other democracies.!

Democracy Solvency Mass Surveillance

Curbing bulk collection is specifically key to preventing
backsliding
Donahue 14 (Eileen,- visiting scholar at Stanford University's Freeman Spogli Institute

for International Studies, former U.S. ambassador to the United Nations Human Rights Council
Why the NSA undermines national security)

The U.S. model of mass surveillance will be followed by others and could
unintentionally invert the democratic relationship between citizens and their governments. Under the
cover of preventing terrorism, authoritarian governments may now
increase surveillance of political opponents. Governments that collect and
monitor digital information to intimidate or squelch political opposition and dissent can more
justifiably claim they are acting with legitimacy. For human rights
defenders and democracy activists worldwide, the potential
consequences of the widespread use by governments of mass
surveillance techniques are dark and clear.

Domestic surveillance sets a global precedent --- reform is

key
Deibert 13 (6-12 Ronald,- professor of political science at the University of Toronto,

where he is director of the Canada Centre for Global Security Studies and the Citizen Lab at the
Munk School of Global Affairs Why NSA spying scares the world)

Many of the countries in the Southern Hemisphere are failed or fragile states;
many of them are authoritarian or autocratic regimes. No doubt the elites in those
regimes will use the excuse of security to adopt more stringent state
controls over the Internet in their jurisdictions and support local versions of
popular social media companies over which they can exact their own nationalized controls -- a trend that
began prior to the NSA revelations but which now has additional rhetorical support. In the age of Big Data,

the revelations about NSA's intelligence-gathering programs

touched many nerves. The issue of surveillance won't go away, and Americans will
need to figure out the appropriate safeguards for liberty in their democracy. It's
an important debate, but one that doesn't include us "foreigners" that now make up the vast majority of

Americans would do well to consider the international

implications of their domestic policies before they come home to bite them.
the Internet users.

Democracy Solvency Strengthen FISC

Current levels of mass surveillance undermine our
democratic system strengthening the FISA court is key
Angela Watercutter, 10/14/13, Wired, How much surveillance can

democracy withstand? http://www.wired.com/2013/10/a-necessary-evil-whatit-takes-for-democracy-to-survive-surveillance/, mm

The current level of general surveillance in society is incompatible with
human rights. To recover our freedom and restore democracy, we
must reduce surveillance to the point where it is possible for whistleblowers of all kinds to
talk with journalists without being spotted. To do this reliably, we must reduce the surveillance capacity of
the systems we use. Using free/libre software, as Ive advocated for 30 years, is the first step in taking
control of our digital lives. We cant trust non-free software; the NSA uses and even creates security
weaknesses in non-free software so as to invade our own computers and routers. Free software gives us
control of our own computers, but that wont protect our privacy once we set foot on the internet.

Bipartisan legislation to curtail the domestic surveillance powers

in the U.S. is being drawn up, but it relies on limiting the governments use of our virtual
dossiers. That wont suffice to protect whistleblowers if catching the whistleblower is grounds for access

sufficient to identify him or her. We need to go further. Thanks to Edward Snowdens

disclosures, we know that the current level of general surveillance in society is incompatible with human
rights. The repeated harassment and prosecution of dissidents, sources, and journalists provides
confirmation. We need to reduce the level of general surveillance, but how far? Where exactly is the
maximum tolerable level of surveillance, beyond which it becomes oppressive? That happens when
surveillance interferes with the functioning of democracy: when whistleblowers (such as Snowden) are
likely to be caught. If whistleblowers dont dare reveal crimes and lies, we lose the last shred of effective
control over our government and institutions. Thats why surveillance that enables the state to find out
who has talked with a reporter is too much surveillance too much for democracy to endure. An
unnamed U.S. government official ominously told journalists in 2011 that the U.S. would not subpoena
reporters because We know who youre talking to. Sometimes journalists phone call records are
subpoenad to find this out, but Snowden has shown us that in effect they subpoena all the phone call
records of everyone in the U.S., all the time. Opposition and dissident activities need to keep secrets from
states that are willing to play dirty tricks on them. The ACLU has demonstrated the U.S. governments
systematic practice of infiltrating peaceful dissident groups on the pretext that there might be terrorists
among them. The point at which surveillance is too much is the point at which the state can find who

When people recognize that the

level of general surveillance is too high, the first response is to
propose limits on access to the accumulated data . That sounds nice,
but it wont fix the problem, not even slightly, even supposing that the government obeys
the rules. ( The NSA has misled the FISA court, which said it was unable
spoke to a known journalist or a known dissident.

to efectively hold the NSA accountable .) Suspicion of a crime will be grounds for
access, so once a whistleblower is accused of espionage, finding the spy will provide an excuse to
access the accumulated material. The states surveillance staff will misuse the data for personal reasons
too. Some NSA agents used U.S. surveillance systems to track their lovers past, present, or wished-for
in a practice called LoveINT. The NSA says it has caught and punished this a few times; we dont know
how many other times it wasnt caught. But these events shouldnt surprise us, because police have long
used their access to drivers license records to track down someone attractive, a practice known as
running a plate for a date. Surveillance data will always be used for other purposes, even if this is
prohibited. Once the data has been accumulated and the state has the possibility of access to it, it may
misuse that data in dreadful ways. Total surveillance plus vague law provides an opening for a massive
fishing expedition against any desired target. To make journalism and democracy safe, we must limit the
accumulation of data that is easily accessible to the state.

Democracy Solvency US Engagement/Model

Key
Strong US democracy is crucial to prevent global democratic
backsliding

Kagan 15 (Robert, Senior Fellow, Foreign Policy, Project on International

Order and Security, January 2015, "Is Democracy in Decline? The Weight of
Geopolitics" Brookings Institution)
www.brookings.edu/research/articles/2015/01/democracy-in-decline-weightof-geopolitics-kagan
We live in a time when democratic nations are in retreat in
the realm of geopolitics, and when democracy itself is also in retreat. The latter
phenomenon has been well documented by Freedom House , which has
These are relevant questions again.

recorded declines in freedom in the world for nine straight years. At the level of geopolitics, the shifting
tectonic plates have yet to produce a seismic rearrangement of power, but rumblings are audible. The
United States has been in a state of retrenchment since President Barack Obama took office in 2009. The
democratic nations of Europe, which some might have expected to pick up the slack, have instead turned
inward and all but abandoned earlier dreams of reshaping the international system in their image. As for
such rising democracies as Brazil, India, Turkey, and South Africa, they are neither rising as fast as once
anticipated nor yet behaving as democracies in world affairs. Their focus remains narrow and regional.
Their national identities remain shaped by postcolonial and nonaligned sensibilitiesby old but carefully
nursed resentmentswhich lead them, for instance, to shield rather than condemn autocratic Russias
invasion of democratic Ukraine, or, in the case of Brazil, to prefer the company of Venezuelan dictators to

energy in the
international system, it comes from the great-power autocracies,
China and Russia , and from would-be theocrats pursuing their dream of a new
caliphate in the Middle East. For all their many problems and weaknesses, it is still these
autocracies and these aspiring religious totalitarians that push forward
while the democracies draw back, that act while the democracies react, and that seem
that of North American democratic presidents. Meanwhile, insofar as there is

increasingly unleashed while the democracies feel increasingly constrained. It should not be surprising that

one of the side efects of these circumstances has been the weakening
and in some cases collapse of democracy in those places where it was
newest and weakest. Geopolitical shifts among the reigning great powers, often but not always
the result of wars, can have significant effects on the domestic politics of the smaller and weaker nations

Global democratizing trends have been stopped and

reversed before. Consider the interwar years. In 1920, when the
number of democracies in the world had doubled in the aftermath of
the First World War, contemporaries such as the British historian James Bryce
believed that they were witnessing a natural trend, due to a
general law of social progress.[1] Yet almost immediately the new
democracies in Estonia, Latvia, Lithuania, and Poland began to fall.
of the world.

Europes democratic great powers, France and Britain, were suffering the effects of the recent devastating
war, while the one rich and healthy democratic power, the United States, had retreated to the safety of its
distant shores. In the vacuum came Mussolinis rise to power in Italy in 1922, the crumbling of Germanys
Weimar Republic, and the broader triumph of European fascism. Greek democracy fell in 1936. Spanish
democracy fell to Franco that same year. Military coups overthrew democratic governments in Portugal,
Brazil, Uruguay, and Argentina. Japans shaky democracy succumbed to military rule and then to a form of
fascism. Across three continents, fragile democracies gave way to authoritarian forces exploiting the
vulnerabilities of the democratic system, while other democracies fell prey to the worldwide economic
depression. There was a ripple effect, toothe success of fascism in one country strengthened similar
movements elsewhere, sometimes directly. Spanish fascists received military assistance from the fascist
regimes in Germany and Italy. The result was that by 1939 the democratic gains of the previous forty years
had been wiped out. The period after the First World War showed not only that democratic gains could be

it was
not just that democracies had been overthrown. The very idea of
democracy had been discredited, as John A. Hobson observed.[2] Democracys aura
reversed, but that democracy need not always triumph even in the competition of ideas. For

of inevitability vanished as great numbers of people rejected the idea that it was a better form of
government. Human beings, after all, do not yearn only for freedom, autonomy, individuality, and
recognition. Especially in times of difficulty, they yearn also for comfort, security, order, and, importantly, a
sense of belonging to something larger than themselves, something that submerges autonomy and
individualityall of which autocracies can sometimes provide, or at least appear to provide, better than
democracies. In the 1920s and 1930s, the fascist governments looked stronger, more energetic and
efficient, and more capable of providing reassurance in troubled times. They appealed effectively to
nationalist, ethnic, and tribal sentiments. The many weaknesses of Germanys Weimar democracy,
inadequately supported by the democratic great powers, and of the fragile and short-lived democracies of
Italy and Spain made their people susceptible to the appeals of the Nazis, Mussolini, and Franco, just as the
weaknesses of Russian democracy in the 1990s made a more authoritarian government under Vladimir
Putin attractive to many Russians. People tend to follow winners, and between the wars the democraticcapitalist countries looked weak and in retreat compared with the apparently vigorous fascist regimes and

It took a second world war and another military victory

by the Allied democracies (plus the Soviet Union) to reverse the trend again. The
with Stalins Soviet Union.

United States imposed democracy by force and through prolonged occupations in West Germany, Italy,
Japan, Austria, and South Korea. With the victory of the democracies and the discrediting of fascism
chiefly on the battlefieldmany other countries followed suit. Greece and Turkey both moved in a
democratic direction, as did Brazil, Argentina, Peru, Ecuador, Venezuela, and Colombia. Some of the new
nations born as Europe shed its colonies also experimented with democratic government, the most
prominent example being India. By 1950, the number of democracies had grown to between twenty and
thirty, and they governed close to 40 percent of the worlds population. Was this the victory of an idea or
the victory of arms? Was it the product of an inevitable human evolution or, as Samuel P. Huntington later
observed, of historically discrete events?[3] We would prefer to believe the former, but evidence

it turned out that even the great wave of democracy

following World War II was not irreversible. Another reverse wave
hit from the late 1950s through the early 1970s. Peru, Brazil, Argentina, Bolivia,
suggests the latter, for

Chile, Uruguay, Ecuador, South Korea, the Philippines, Pakistan, Indonesia, and Greece all fell back under
authoritarian rule. In Africa, Nigeria was the most prominent of the newly decolonized nations where
democracy failed. By 1975, more than three-dozen governments around the world had been installed by
military coups.[4] Few spoke of democracys inevitability in the 1970s or even in the early 1980s. As late
as 1984, Huntington himself believed that the limits of democratic development in the world had been
reached, noting the unreceptivity to democracy of several major cultural traditions, as well as the

But then,
came the third wave. From the mid-1970s through the
early 1990s, the number of democracies in the world rose to an
astonishing 120, representing well over half the worlds population.
What explained the prolonged success of democratization over the
last quarter of the twentieth century? It could not have been merely the steady rise of
substantial power of antidemocratic governments (particularly the Soviet Union).[5]
unexpectedly,

the global economy and the general yearning for freedom, autonomy, and recognition. Neither economic
growth nor human yearnings had prevented the democratic reversals of the 1960s and early 1970s. Until
the third wave, many nations around the world careened back and forth between democracy and
authoritarianism in a cyclical, almost predictable manner. What was most notable about the third wave
was that this cyclical alternation between democracy and autocracy was interrupted. Nations moved into a
democratic phase and stayed there. But why? The International Climate Improves The answer is related to
the configuration of power and ideas in the world. The international climate from the mid-1970s onward
was simply more hospitable to democracies and more challenging to autocratic governments than had
been the case in past eras. In his study, Huntington emphasized the change, following the Second Vatican
Council, in the Catholic Churchs doctrine regarding order and revolution, which tended to weaken the
legitimacy of authoritarian governments in Catholic countries. The growing success and attractiveness of
the European Community (EC), meanwhile, had an impact on the internal policies of nations such as
Portugal, Greece, and Spain, <<card continues>> <<card continues>> which sought the economic
benefits of membership in the EC and therefore felt pressure to conform to its democratic norms. These
norms increasingly became international norms. But they did not appear out of nowhere or as the result of
some natural evolution of the human species. As Huntington noted,

The pervasiveness of

democratic norms rested in large part on the commitment to those

norms of the most powerful country in the world .[6] The U nited S tates, in

played a critical role in making the explosion of democracy

possible. This was not because U.S. policy makers consistently promoted democracy around the world.
fact,

They did not. At various times throughout the Cold War, U.S. policy often supported dictatorships as part of
the battle against communism or simply out of indifference. It even permitted or was complicit in the
overthrow of democratic regimes deemed unreliablethose of Mohammad Mossadegh in Iran in 1953,
Jacobo Arbenz in Guatemala in 1954, and Salvador Allende in Chile in 1973. At times, U.S. foreign policy
was almost hostile to democracy. President Richard Nixon regarded it as not necessarily the best form of
government for people in Asia, Africa, and Latin America.[7] Nor, when the United States did support
democracy, was it purely out of fealty to principle. Often it was for strategic reasons. Officials in President
Ronald Reagans administration came to believe that democratic governments might actually be better
than autocracies at fending off communist insurgencies, for instance. And often it was popular local
demands that compelled the United States to make a choice that it would otherwise have preferred to
avoid, between supporting an unpopular and possibly faltering dictatorship and getting on the side of the
people. Reagan would have preferred to support the dictatorship of Ferdinand Marcos in the 1980s had he
not been confronted by the moral challenge of Filipino people power. Rarely if ever did the United States
seek a change of regime primarily out of devotion to democratic principles. Beginning in the mid-1970s,
however, the general inclination of the United States did begin to shift toward a more critical view of
dictatorship. The U.S. Congress, led by human-rights advocates, began to condition or cut off U.S. aid to
authoritarian allies, which weakened their hold on power. In the Helsinki Accords of 1975, a reference to
human-rights issues drew greater attention to the cause of dissidents and other opponents of dictatorship
in the Eastern bloc. President Jimmy Carter focused attention on the human-rights abuses of the Soviet
Union as well as of right-wing governments in Latin America and elsewhere. The U.S. governments
international information services, including the Voice of America and Radio Free Europe/Radio Liberty, put
greater emphasis on democracy and human rights in their programming. The Reagan administration, after
first trying to roll back Carters human-rights agenda, eventually embraced it and made the promotion of
democracy part of its stated (if not always its actual) policy. Even during this period, U.S. policy was far
from consistent. Many allied dictatorships, especially in the Middle East, were not only tolerated but
actively supported with U.S. economic and military aid. But the net effect of the shift in U.S. policy, joined
with the efforts of Europe, was significant. The third wave began in 1974 in Portugal, where the Carnation
Revolution put an end to a half-century of dictatorship. As Larry Diamond notes, this revolution did not just
happen. The United States and the European democracies played a key role, making a heavy investment .
. . in support of the democratic parties.[8] Over the next decade and a half, the United States used a
variety of tools, including direct military intervention, to aid democratic transitions and prevent the
undermining of existing fragile democracies all across the globe. In 1978, Carter threatened military action
in the Dominican Republic when long-serving president Joaqun Balaguer refused to give up power after
losing an election. In 1983, Reagans invasion of Grenada restored a democratic government after a
military coup. In 1986, the United States threatened military action to prevent Marcos from forcibly
annulling an election that he had lost. In 1989, President George H.W. Bush invaded Panama to help install
democracy after military strongman Manuel Noriega had annulled his nations elections. Throughout this
period, too, the United States used its influence to block military coups in Honduras, Bolivia, El Salvador,
Peru, and South Korea. Elsewhere it urged presidents not to try staying in office beyond constitutional
limits. Huntington estimated that over the course of about a decade and a half, U.S. support had been
critical to democratization in the Dominican Republic, Grenada, El Salvador, Guatemala, Honduras,
Uruguay, Peru, Ecuador, Panama, and the Philippines and was a contributing factor to democratization in
Portugal, Chile, Poland, Korea, Bolivia, and Taiwan.[9] Many developments both global and local helped to
produce the democratizing trend of the late 1970s and the 1980s, and there might have been a
democratic wave even if the United States had not been so influential. The question is whether the wave
would have been as large and as lasting. The stable zones of democracy in Europe and Japan proved to be
powerful magnets. The liberal free-market and free-trade system increasingly outperformed the stagnating
economies of the socialist bloc, especially at the dawn of the information revolution. The greater activism
of the United States, together with that of other successful democracies, helped to build a broad, if not
universal, consensus that was more sympathetic to democratic forms of government and less sympathetic

Diamond and others have noted how important it was

that these global democratic norms came to be reflected in
regional and international institutions and agreements as never
before.[10] Those norms had an impact on the internal political
processes of countries, making it harder for authoritarians to
weather political and economic storms and easier for democratic
movements to gain legitimacy. But norms are transient as well. In the 1930s,
the trendsetting nations were fascist dictatorships. In the 1950s and
1960s, variants of socialism were in vogue. But from the 1970s until
recently, the U nited S tates and a handful of other democratic powers set the fashion
to authoritarian forms.

trend . They pushedsome might even say imposeddemocratic principles and embedded them in

international institutions and agreements. Equally important was the role that the United States played in

Perhaps the most

significant U.S. contribution was simply to prevent military coups
against fledgling democratic governments. In a sense, the United States was
preventing backsliding away from democracy where it had barely taken root.

interfering in what might have been a natural cycle, preventing nations that ordinarily would have been
due for an authoritarian phase from following the usual pattern.

It was not that the U nited

S tates was exporting democracy everywhere. More often, it played

the role of catcher in the ryepreventing young democracies
from falling of the clif in places such as the Philippines, Colombia, and Panama. This
helped to give the third wave unprecedented breadth and durability. Finally, there was the collapse of the
Soviet Union and with it the fall of Central and Eastern Europes communist regimes and their replacement
by democracies. What role the United States played in hastening the Soviet downfall may be in dispute,
but surely it played some part, both by containing the Soviet empire militarily and by outperforming it
economically and technologically. And at the heart of the struggle were the peoples of the former Warsaw
Pact countries themselves. They had long yearned to achieve the liberation of their respective nations from
the Soviet Union, which also meant liberation from communism. These peoples wanted to join the rest of
Europe, which offered an economic and social model that was even more attractive than that of the United
States. That Central and East Europeans uniformly chose democratic forms of government, however, was
not simply the fruit of aspirations for freedom or comfort. It also reflected the desires of these peoples to
place themselves under the U.S. security umbrella. The strategic, the economic, the political, and the
ideological were thus inseparable. Those nations that wanted to be part of NATO, and later of the European
Union, knew that they would stand no chance of admission without democratic credentials. These
democratic transitions, which turned the third wave into a democratic tsunami, need not have occurred
had the world been configured differently. That a democratic, united, and prosperous Western Europe was
even there to exert a powerful magnetic pull on its eastern neighbors was due to U.S. actions after World
War II. The Lost Future of 1848 Contrast the fate of democratic movements in the late twentieth century
with that of the liberal revolutions that swept Europe in 1848. Beginning in France, the Springtime of the
Peoples, as it was known, included liberal reformers and constitutionalists, nationalists, and
representatives of the rising middle class as well as radical workers and socialists. In a matter of weeks,
they toppled kings and princes and shook thrones in France, Poland, Austria, and Romania, as well as the
Italian peninsula and the German principalities. In the end, however, the liberal movements failed, partly
because they lacked cohesion, but also because the autocratic powers forcibly crushed them. The Prussian
army helped to defeat liberal movements in the German lands, while the Russian czar sent his troops into
Romania and Hungary. Tens of thousands of protesters were killed in the streets of Europe. The sword
proved mightier than the pen. It mattered that the more liberal powers, Britain and France, adopted a
neutral posture throughout the liberal ferment, even though Frances own revolution had sparked and
inspired the pan-European movement. The British monarchy and aristocracy were afraid of radicalism at
home. Both France and Britain were more concerned with preserving peace among the great powers than
with providing assistance to fellow liberals. The preservation of the European balance among the five great
powers benefited the forces of counterrevolution everywhere, and the Springtime of the Peoples was
suppressed.[11] As a result, for several decades the forces of reaction in Europe were strengthened
against the forces of liberalism. Scholars have speculated about how differently Europe and the world
might have evolved had the liberal revolutions of 1848 succeeded: How might German history have
unfolded had national unification been achieved under a liberal parliamentary system rather than under
the leadership of Otto von Bismarck? The Iron Chancellor unified the nation not through elections and
debates, but through military victories won by the great power of the conservative Prussian army under
the Hohenzollern dynasty. As the historian A.J.P. Taylor observed, history reached a turning point in 1848,
but Germany failed to turn.[12] Might Germans have learned a different lesson from the one that
Bismarck taughtnamely, that the great questions of the age are not decided by speeches and majority
decisions . . . but by blood and iron?[13] Yet the international system of the day was not configured in
such a way as to encourage liberal and democratic change. The European balance of power in the midnineteenth century did not favor democracy, <<card continues>> and so it is not surprising that
democracy failed to triumph anywhere.[14] We can also speculate about how differently todays world
might have evolved without the U.S. role in shaping an international environment favorable to democracy,
and how it might evolve should the United States find itself no longer strong enough to play that role.
Democratic transitions are not inevitable, even where the conditions may be ripe. Nations may enter a
transition zoneeconomically, socially, and politicallywhere the probability of moving in a democratic
direction increases or decreases. But foreign influences, usually exerted by the reigning great powers,
often determine which direction change takes. Strong authoritarian powers willing to support conservative
forces against liberal movements can undo what might otherwise have been a natural evolution to
democracy, just as powerful democratic nations can help liberal forces that, left to their own devices,
might otherwise fail. In the 1980s as in the 1840s, liberal movements arose for their own reasons in
different countries, but their success or failure was influenced by the balance of power at the international
level. In the era of U.S. predominance, the balance was generally favorable to democracy, which helps to
explain why the liberal revolutions of that later era succeeded. Had the United States not been so

powerful, there would have been fewer transitions to democracy, and those that occurred might have been
short-lived. It might have meant a shallower and more easily reversed third wave.[15] Democracy,
Autocracy, and Power What about today? With the democratic superpower curtailing its global influence,
regional powers are setting the tone in their respective regions. Not surprisingly, dictatorships are more
common in the environs of Russia, along the borders of China (North Korea, Burma, and Thailand), and in
the Middle East, where long dictatorial traditions have so far mostly withstood the challenge of popular
uprisings. But even in regions where democracies remain strong, authoritarians have been able to make a
determined stand while their democratic neighbors passively stand by. Thus Hungarys leaders, in the
heart of an indifferent Europe, proclaim their love of illiberalism and crack down on press and political
freedoms while the rest of the European Union, supposedly a club for democracies only, looks away. In
South America, democracy is engaged in a contest with dictatorship, but an indifferent Brazil looks on,
thinking only of trade and of North American imperialism. Meanwhile in Central America, next door to an
indifferent Mexico, democracy collapses under the weight of drugs and crime and the resurgence of the
caudillos. Yet it may be unfair to blame regional powers for not doing what they have never done. Insofar
as the shift in the geopolitical equation has affected the fate of democracies worldwide, it is probably the

If that
superpower does not change its course, we are likely to see
democracy around the world rolled back further . There is nothing
change in the democratic superpowers behavior that bears most of the responsibility.

inevitable about democracy . The liberal world order we have been

living in these past decades was not bequeathed by the Laws of Nature
and of Natures God. It is not the endpoint of human progress.
There are those who would prefer a world order diferent from the
liberal one. Until now, however, they have not been able to have
their way, but not because their ideas of governance are impossible
to enact. Who is to say that Putinism in Russia or Chinas particular brand of authoritarianism will not

survive as far into the future as European democracy, which, after all, is less than a century old on most of
the continent? Autocracy in Russia and China has certainly been around longer than any Western

it is autocracy, not democracy, that has been the norm in

human historyonly in recent decades have the democracies, led by
the U nited S tates, had the power to shape the world. Skeptics of U.S. democracy
democracy. Indeed,

promotion have long argued that many of the places where the democratic experiment has been tried
over the past few decades are not a natural fit for that form of government, and that the United States has
tried to plant democracy in some very infertile soils. Given that democratic governments have taken deep
root in widely varying circumstances, from impoverished India to Confucian East Asia to Islamic
Indonesia, we ought to have some modesty about asserting where the soil is right or not right for

prospects for democracy have been much

better under the protection of a liberal world order, supported and defended by a
democratic superpower or by a collection of democratic great powers. Today, as always,
democracy is a fragile flower. It requires constant support, constant
tending, and the plucking of weeds and fencing-of of the jungle that
threaten it both from within and without. In the absence of such
eforts, the jungle and the weeds may sooner or later come back to
democracy. Yet it should be clear that the

reclaim the land.

Extensions - Internet Adv

Internet Freedom UQ/Link Mass Surveillance

Unchecked domestic surveillance undermines our
promotion of an international Internet freedom agenda
Clarke, Richard A. et al. (2013, December 12). Liberty and Security in a
Changing World. The Presidents Review Group on Intelligence and
Communications Technologies. Retrieved on April 14, 2015 from
https://www.whitehouse.gov/sites/default/files/docs/2013-1212_rg_final_report.pdf, mm

US Internet freedom policy seeks to preserve and expand the

Internet as an open, global space for free expression, for organizing and interaction, and for
commerce. In recent years, the United States has highlighted Internet
freedom as an important goal of US policy, including by pushing successfully in
2012 for the first United Nations resolution that confirms that human rights in the Internet realm must be
protected with the same commitment as in the real world. The US has worked with the Dutch Foreign
Ministry to establish the Freedom Online Coalition, currently a group of 21 governments from five regions
committed to coordinating diplomatic efforts to advance Internet freedom. This Coalition has sought to
broaden support for an approach based on universal human rights and the inclusive, multi-stakeholder

A central theme of US Internet freedom policy

has been protection against intrusive surveillance and repression.
The US Government has consistently spoken out against the arrest and
persecution of bloggers and online activists in countries such as Azerbaijan, China,
Cuba, Egypt, Ethiopia, Iran, Russia, Saudi Arabia, Thailand,
Venezuela, and Vietnam. President Obama and Secretaries of State have publicly criticized
model of Internet governance.

restrictive Internet legislation designed to force companies to collaborate in censorship and pervasive
surveillance of their users in order to chill expression and facilitate persecution. Since 2008, the
Department of State and the United States Agency for International Development have invested over
$100 million in programs to enable human rights activists and bloggers to exercise their human rights
freely and safely online, including by distribution of strong encryption and other anti-censorship tools.

Revelations about US surveillance have threatened to undermine

the US Internet freedom agenda. Countries that were previously
criticized by the United States for excessive surveillance have
accused the US of hypocrisy. In our view, these allegations lack force. US surveillance is
subject to oversight by the multiple authorities shown in Appendix C, and the First Amendment
protections under the US Constitution are an effective bulwark against censorship and political repression.
Nonetheless, the reports about US surveillance have clearly made it more difficult to explain the key
differences in international fora. As we have emphasized at several points in this Report,

public

trust is exceedingly important .

The Snowden disclosures undermined our Internet

freedom agenda reforming surveillance is key to
regaining credibility
Richard Fontaine, September 2014, Center for a New American Security,

Bringing Liberty Online: Reenergizing the Internet Freedom Agenda in a PostSnowden Era, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf, mm
The 2013 revelations of mass surveillance by the U.S. government
transformed the global debate about Internet freedom. Where once

Washington routinely chided foreign governments and their corporate

the
tables have turned. Edward Snowden, a former National Security Agency (NSA) contractor,
collaborators for engaging in online censorship, monitoring and other forms of Internet repression,

leaked thousands of documents revealing Americas most secret electronic surveillance programs,

unleashing a tidal wave of criticism and charges of hypocrisy, many

directed at some of the very U.S. officials who have championed online freedom. Americas
Internet freedom agenda the effort to preserve and extend the free flow of information
online hangs in the balance .1 Already a contested space, the Internet after the
Snowden revelations has become even more politically charged, with deep
international divisions about its governance and heated battles over
its use as a tool of political change. With 2.8 billion Internet users today, and several
billion more expected over the next decade, the contest over online freedom grows
more important by the day.2 As an ever-greater proportion of human activity is mediated
through Internet-based technologies, the extent of online rights and restrictions takes on an increasingly

Despite the many complications

arising from the Snowden disclosures, America still needs a
comprehensive Internet freedom strategy, one that tilts the balance in favor of
vital role in political, economic and social life.3

those who would use the Internet to advance tolerance and free expression, and away from those who

It will need to pursue this strategy

while drawing a sharp distinction between surveillance for national
security purposes (in which all governments engage) and monitoring as a means
of political repression (which democracies oppose). This is not an easy task, but it is an
important one. More than a year after the first Snowden revelations emerged, now is the time
would employ it for repression or violence.4

to reenergize the Internet freedom agenda .

Internet Freedom UQ (Cred Low)

The Snowden disclosures tank our open Internet
credibility
Richard Fontaine, September 2014, Center for a New American Security,

Bringing Liberty Online: Reenergizing the Internet Freedom Agenda in a PostSnowden Era, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf, mm
The dramatic revelations about NSA spying that began to emerge in June 2013
provoked a storm of international reaction.17 Political leaders expressed outrage
at American surveillance practices and threatened a raft of retaliatory measures. President Dilma
Rousseff of Brazil cancelled a planned state visit to the United States and the Brazilian government later
organized an international meeting (NetMundial) to discuss the future of Internet governance.18 German
Chancellor Angela Merkel was deeply affronted by the alleged monitoring of her personal cellphone.
Chinese and other officials charged America with blatant hypocrisy. The fallout affected the private
sector as well; where previously the focus of many observers had been on the aid given by U.S.
companies to foreign governments engaged in Internet repression, the gaze shifted to the role American

Countries that had been

the target of American reproaches rebuked the U.S. government for
what they saw as hypocrisy. The United Nations and other international venues became
corporations play wittingly or not in enabling U.S. surveillance.

platforms for international criticism of the United States. Germany and Brazil together sponsored a
resolution adopted by the U.N. General Assembly in late 2013 backing a right to privacy in the digital
age.19 In June 2014, the U.N. High Commissioner for Human Rights issued a report that endorsed digital
privacy as a human right and criticized mass surveillance as a dangerous habit rather than an
exceptional measure.20 Some European officials began to question the existing Internet governance
model itself. In a statement, the European Commission said, Recent revelations of large-scale
surveillance have called into question the stewardship of the US when it comes to Internet Governance.
So given the US-centric model of Internet Governance currently in place, it is necessary to broker a
smooth transition to a more global model.21 Nongovernmental groups that might otherwise be
partners with the U.S. government in promoting Internet freedom reacted sharply as well. Reporters
Without Borders, for instance, listed the NSA as an Enemy of the Internet in its 2014 report on entities
engaged in online repression. Drawing no distinction between surveillance aimed at protecting national
security and surveillance intended to suppress free expression and political dissent, the organization
declared the NSA no better than [its] Chinese, Russian, Iranian or Bahraini counterparts.22 Mass
surveillance methods used by democracies like the United States, it added, are all the more intolerable
as they are already being used by authoritarian countries such as Iran, China, Turkmenistan, Saudi
Arabia and Bahrain to justify their own violations of freedom of information.23 Tim Berners-Lee, the
inventor of the World Wide Web, said, Mass

surveillance is the most immediate

threat to the open Internet and the most insidious because we cant
see it.24 The Electronic Frontier Foundation asserted that mass surveillance is inherently a
disproportionate measure that violates human rights,25 and officials with Human Rights Watch
observed that the surveillance scandal would render it more difficult for the U.S. government to press for
better corporate practices and for companies to resist overly broad surveillance mandates. Now, its
chief researcher said, the

vision and credibility of the U.S. and its allies on

Internet freedom is in tatters. 26

Internet censorship is increasing the US must revitalize

its Internet freedom agenda
Richard Fontaine, September 2014, Center for a New American Security,

Bringing Liberty Online: Reenergizing the Internet Freedom Agenda in a PostSnowden Era, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf, mm

The scrambled Internet freedom narrative and its complicated

consequences are discouraging, not least because the need for an
active online freedom agenda has never been more pressing. It is today
estimated that roughly half of Internet users worldwide experience online
censorship in some form.41 Freedom House observes a deterioration in global Internet freedom
over the three consecutive years it has issued reports; its 2013 volume notes that Internet freedom

Broad surveillance, new

legislation controlling online content and the arrest of Internet
users are all on the increase; over the course of a single year, some 24 countries passed
declined in more than half of the 60 countries it assessed.

new laws or regulations that threaten online freedom of speech.42 A glance at the past 12 months
reveals a disturbing trend. In Turkey, for example, after its high court overturned a ban on Twitter, the
government began demanding that the company quickly implement orders to block specific users.
Ankara also blocked YouTube after a surreptitious recording of the countrys foreign minister surfaced,
and it has dramatically increased its takedown requests to both Twitter and Google.43

Russia has

begun directly censoring the Internet

with a growing blacklist of websites, and under

a new law its government can block websites that encourage people to participate in unauthorized
protests.44 Chinese social media censorship has become so pervasive that
it constitutes, according to one study, the largest selective suppression of human communication in the

China has also begun assisting foreign countries,

including Iran and Zambia, in their eforts to monitor and censor the
Internet.46 Vietnam has enacted a new law making it illegal to distribute digital content that
history of the world.45

opposes the government.47 Venezuela has blocked access to certain websites and limited Internet

A robust, energetic American Internet freedom

agenda is most needed at the very moment that that agenda has
come under the greatest attack.
access in parts of the country.48

Internet Freedom UQ (Internet Balkanization)

The Snowden disclosures are driving the balkanization of
the Internet
Richard Fontaine, September 2014, Center for a New American Security,

Bringing Liberty Online: Reenergizing the Internet Freedom Agenda in a PostSnowden Era, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf, mm
The reactions to the Snowden disclosures threatened to go beyond
verbal denunciations, diplomatic protests and critical press. The most serious
commercial fallout came in the rising support for data localization
requirements. Russia in July 2014 approved legislation that requires data operators to store the
personal data of its citizens within the countrys borders.27 Indonesia, Brazil and Vietnam have also
called for their citizens data held by companies such as Facebook to be stored domestically.28 Data
localization has been debated in the European Parliament and elsewhere on the continent as well.29

Apart from the chilling efect on innovation and the loss of business
to America companies, Internet freedom itself could become a
casualty of such mandates. If a users data must be held within the borders of a repressive
country, its government will have new opportunities to censor, monitor and disrupt online information

Such moves, combined with increasing questions about the multistakeholder approach to
give rise to
concerns about the potential Balkanization of the Internet, in which a
flows.

Internet governance (and possible support for a governmentdriven approach), together

constellation of national-level systems could take the place of the current global online infrastructure. As
former NSA general counsel Stewart Baker warned, The

Snowden disclosures are

being used to renationalize the Internet and roll back changes that
have weakened government control of information.30

Internet Freedom Link Hypocrisy

Unchecked domestic surveillance undermines our soft
power and Internet freedom agenda hypocrisy
empowers authoritarian governments
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm
The effects of the NSA disclosures on the Internet Freedom agenda go beyond the realm of Internet
governance.

The loss of the United States as a model on Internet

Freedom issues has made it harder for local civil society groups
around the worldincluding the groups that the State Departments Internet Freedom
programs typically support203to advocate for Internet Freedom within their
own governments.204 The Committee to Protect Journalists, for example, reports that in
Pakistan, where freedom of expression is largely perceived as a Western notion, the Snowden
revelations have had a damaging effect. The deeply polarized narrative has become starker as the
corridors of power push back on attempts to curb government surveillance.205 For some of these
groups, in fact, even the appearance of collaboration with or support from the U.S. government can
diminish credibility, making it harder for them to achieve local goals that align with U.S. foreign policy
interests.206 The gap in trust is particularly significant for individuals and organizations that receive
funding from the U.S. government for free expression activities or circumvention tools. Technology
supported by or exported from the United States is, in some cases, inherently suspect due to the
revelations about the NSAs surveillance dragnet and the agencys attempts to covertly influence

revelations of what the NSA has been doing in

are eroding the moral high ground that the United States
has often relied upon when putting public pressure on authoritarian
countries like China, Russia, and Iran to change their behavior. In
product development. Moreover,
the past decade

2014, Reporters Without Borders added the United States to its Enemies of the Internet list for the
first time, explicitly linking the inclusion to NSA surveillance. The main player in [the United States]

the highly secretive National Security Agency (NSA) which, in the light
has come to symbolize the abuses by the worlds
intelligence agencies, noted the 2014 report.207 The damaged perception of
the United States 208 as a leader on Internet Freedom and its
diminished ability to legitimately criticize other countries for
censorship and surveillance opens the door for foreign leaders to
justifyand even expand their own eforts.209 For example, the Egyptian
vast surveillance operation is
of Snowdens revelations,

government recently announced plans to monitor social media for potential terrorist activity, prompting
backlash from a number of advocates for free expression and privacy.210 When a spokesman for the
Egyptian Interior Ministry, Abdel Fatah Uthman, appeared on television to explain the policy, one
justification that he offered in response to privacy concerns was that the US listens in to phone calls,

This type of rhetoric makes it

difficult for the U.S. to efectively criticize such a policy. Similarly, Indias
and supervises anyone who could threaten its national security.211

comparatively mild response to allegations of NSA surveillance have been seen by some critics as a
reflection of Indias own aspirations in the world of surveillance, a further indication that U.S. spying
may now make it easier for foreign governments to quietly defend their own behavior.212 It is even more
difficult for the United States to credibly indict Chinese hackers for breaking into U.S. government and

These
challenges reflect an overall decline in U.S. soft power on free
expression issues.
commercial targets without fear of retribution in light of the NSA revelations.213

Internet Freedom Solvency

The plan revitalizes the Internet freedom agenda for three
reasons clarifies legitimate forms of surveillance,
increases agency deliberation, and makes the process
public
Richard Fontaine, September 2014, Center for a New American Security,
Bringing Liberty Online: Reenergizing the Internet Freedom Agenda in a PostSnowden Era, http://www.cnas.org/sites/default/files/publicationspdf/CNAS_BringingLibertyOnline_Fontaine.pdf, mm
it is vitally important that
the United States be actively involved in promoting online freedom.
Precisely because the Internet is today such a contested space,

Americas Internet freedom efforts accord with the countrys longstanding tradition of promoting human
rights, including freedoms of expression, association and assembly. And it represents a bet: that access
to an open Internet can foster elements of democracy in autocratic states by empowering those who are
pressing for liberal change at home. While the outcome of that bet remains uncertain, there should be no

Reenergizing the Internet

freedom agenda begins with acknowledging that the United States
must promote that agenda even as it continues to engage in
electronic surveillance aimed at protecting national security. The
U.S. government will simply have to endure some significant amount of continuing criticism and
opposition. At the same time, it should continue to draw a sharp distinction
between surveillance for national security purposes (in which all
governments engage) and monitoring as a means of political repression (which
democracies oppose). To those who see no distinction between American surveillance
and that of autocracies, government officials should point out that key legal
doubt about which side the United States has chosen.

guarantees matter : the U.S. Constitutions first amendment protects against censorship and
political repression at home, while in autocratic systems such safeguards are nonexistent or not
enforceable.49 As the United States continues its significant efforts, described above, to further the

there are additional steps it should take to refocus

and reenergize the efort: CALL ON FOREIGN GOVERNMENTS TO EMBRACE SURVEILLANCE
Internet freedom agenda,

PRINCIPLES While an international convention regulating electronic spying is nearly inconceivable, the
principles already articulated by U.S. government officials represent an important effort to distinguish
between American surveillance and the efforts of repressive governments. Given the active surveillance
programs of democracies and autocracies alike, the United States should call on other governments to
embrace similar principles, or to explain why they are unwilling to do so. ENSURE THAT THE U.S.
GOVERNMENT CONDUCTS COMPREHENSIVE COST/BENEFIT ANALYSES OF SURVEILLANCE DECISIONS It is

decisions made in the intelligence community about

surveillance can have profound implications for the Internet
freedom agenda as executed by other agencies. Government officials should
ensure that all costs including the costs if clandestine efforts are discovered are
considered when making surveillance decisions, with input from all
relevant stakeholders. Given the linkages between surveillance and Internet freedom, a
more unified interagency deliberation process is required. ENHANCE THE
TRANSPARENCY OF U.S. GOVERNMENT DATA REQUESTS The United States should
provide more publicly accessible information on its requests for
user data, whether via requests to U.S. or multinational companies, or abroad through mutual legal
assistance treaties. Making more hard information available about the true
scope of U.S. government data requests may help reduce the degree
of political distrust that currently prevails.
now clear that

Internet Freedom Key to Economy

Internet balkanization collapses Internet freedom and
tanks global economic growth US leadership is key
Weinstein 11/12/14

Mark Weinstein, award-winning author, and the founder of MeWe, one of the
world's foremost privacy advocates, Mark has served as a Steering
Committee Member of National Strategy for Trusted Identities in Cyberspace
(NSTIC), and has been named Privacy by Design Ambassador by the
Information and Privacy Commissioner of Ontario, Huffington Post, November
12, 2014, Obama Heroically Wages Internet War, But Misses World Wide Web
Target, http://www.huffingtonpost.com/mark-weinstein/obama-heroicallywages-in_b_6137324.html
I have a greater fear -- a rudderless World Wide Web and captain-less ICANN.
That's why eight months ago I preached for Net Neutrality and for the United States to push such an
agenda through as stewards of ICANN. I was overjoyed on Monday to see Obama support half of my wish
list when he released an emphatic video statement throwing his administration's full support behind Net
Neutrality and asking the FCC to implement strict rules to give weight to such an agenda. Way to go, Mr.
President! Yet there's more to do here. What's interesting about Monday's statement is for all its good, it
turns the discussion away from a global perspective to a domestic one. Obama's speech focuses on a free
and open Internet within our borders that doesn't speed up or slow down content delivery based on the
whims of broadband companies. Take that Netflix with your big ideas of Internet favoritism. At the same

Imagine
if every country had its own Internet. The World Wide Web
would become anything but, leading to an economic and individual
time, is this a first step of a philosophy or a final one? I hope the former but fear the latter.
for a second

rights disaster that would complicate commerce and freedom

around the world. In 1997, Bill Clinton helped create ICANN within his Green Paper proposal for
privatizing the domain name system (DNS). In that regard, our impartiality and creation of checks and
balances built into the system have led to a rather impressive run, one that has averted partisan politics

losing such a
leadership role is a mistake for the United States and the principles of Net
and lobbyists and helped keep the Internet as a free platform. I think that our

Neutrality. Yet in the spirit of compromise, I commend Obama for taking a stand within our borders. Now he
needs to take the next step. The hope I have is that whatever new governance structure emerges for
ICANN in 2015 turns into a United Nations of Internet protection where the entire world has access to a free
Internet. However, if the new structure cannot guarantee Net Neutrality, then I believe the U.S.

The risk is too great and

the ramifications too frightening to idly stand by and allow any other
conclusion.
government should revoke its decision to relinquish leadership.

Internet Freedom AT Decline Doesnt Cause

War
Best studies prove growth solves conflict
Jedidiah Royal 10, Director of Cooperative Threat Reduction at the U.S.

Department of Defense, Economic Integration, Economic Signalling And The

Problem Of Economic Crises, in Economics of War and Peace: Economic,
Legal and Political Perspectives, ed. Goldsmith and Brauer, p. 213-215
Second, on a dyadic level. Copeland's (1996. 2000) theory of trade expectations suggests
that 'future expectation of trade' is a significant variable in understanding economic conditions and
security behaviour of states. He argues that interdependent states are likely to gain pacific benefits from

if the
expectations of future trade decline, particularly for difficult to replace items such as
energy resources, the likelihood for conflict increases , as states will be inclined to use
force to gain access to those resources. Crises could potentially be the trigger for
decreased trade expectations either on its own or because it
triggers protectionist moves by interdependent states.4 Third, others have
trade so long as they have an optimistic view of future trade relations. However,

considered the link between economic decline and external armed conflict at a national level.

Blomberg and Hess (2002) find a strong correlation between internal

conflict and external conflict, particularly during periods of economic
downturn. They write, The linkages between internal and external conflict and prosperity are strong
and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn returns the

the presence of a recession lends to amplify the extent

to which international and external conflicts self-rein force each
other. (Blombcrj! & Hess. 2002. p. 89) Economic decline has also been linked with an increase in the
favour. Moreover,

likelihood of terrorism (Blomberg. Hess. & Weerapana, 2004). which has the capacity to spill across borders
and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government.
"Diversionary

theory" suggests that, when facing unpopularity

arising from economic decline, sitting governments have increased
incentives to fabricate external military conflicts to create a 'rally
around the flag' efect. Wang (1996), DeRouen (1995), and Blombcrg. Mess, and Thacker
(2006) find supporting evidence showing that economic decline and use of force are at least indirectly
correlated. Gelpi (1997), Miller (1999). and Kisangani and Pickering (2009) suggest that the tendency
towards diversionary tactics are greater for democratic states than autocratic states, due to the fact that
democratic leaders are generally more susceptible to being removed from office due to lack of domestic

DeRouen (2000) has provided evidence showing that periods of

weak economic performance in the United States, and thus weak Presidential
popularity, are statistically linked to an increase in the use of force .
support.

Cloud Computing UQ/Link Mass Surveillance

The US is the leader in cloud computing now but
unchecked mass surveillance will collapse market growth
in the US that causes us to cede tech leadership to other
countries
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm

Trust in American businesses has taken a significant hit since the initial
reports on the PRISM program suggested that the NSA was directly tapping into the servers of
nine U.S. companies to obtain customer data for national security investigations.28 The Washington
Posts original story on the program provoked an uproar in the media and prompted the CEOs of several
major companies to deny knowledge of or participation in the program.29 The exact nature of the
requests made through the PRISM program was later clarified,30 but the public attention on the

relationship between American companies and the NSA still created

a significant trust gap, especially in industries where users entrust
companies to store sensitive personal and commercial data. Last years
national security leaks have also had a commercial and financial impact on American technology
companies that have provided these records, noted Representative Bob Goodlatte, a prominent
Republican leader and Chairman of the House Judiciary Committee, in May 2014. They have
experienced backlash from both American and foreign consumers and have had their competitive
standing in the global marketplace damaged.31 Given heightened concerns about the NSAs ability to

it is no surprise that American companies

ofering cloud computing and webhosting services are among those
experiencing the most acute economic fallout from NSA surveillance.
access data stored by U.S. companies,

Within just a few weeks of the first disclosures, reports began to emerge that American cloud computing
companies like Dropbox and Amazon Web Services were starting to lose business to overseas
competitors.32 The CEO of Artmotion, one of Switzerlands largest offshore hosting providers, reported in
July 2013 that his company had seen a 45 percent jump in revenue since the first leaks,33 an early sign
that the countrys perceived neutrality and strong data and privacy protections34 could potentially be

Foreign companies are clearly poised

to benefit from growing fears about the security ramifications of
keeping data in the United States. In a survey of 300 British and Canadian businesses
turned into a serious competitive advantage.35

released by PEER 1 in January 2014,36 25 percent of respondents indicated that they were moving data

An overwhelming number of the

companies surveyed indicated that security and data privacy were
their top concerns, with 81 percent stating that they want to know exactly where their data is
outside of the U.S. as a result of the NSA revelations.

being hosted. Seventy percent were even willing to sacrifice performance in order to ensure that their
data was protected.37 It appears that little consideration was given over the past decade to the potential
economic repercussions if the NSAs secret programs were revealed.38 This failure was acutely
demonstrated by the Obama Administrations initial focus on reassuring the public that its programs
primarily affect non-Americans, even though non-Americans are also heavy users of American
companies products. Facebook CEO Mark Zuckerberg put a fine point on the issue, saying that the
government blew it in its response to the scandal. He noted sarcastically: The government response
was, Oh dont worry, were not spying on any Americans. Oh, wonderful: thats really helpful to
companies [like Facebook] trying to serve people around the world, and thats really going to inspire
confidence in American internet companies.39 As Zuckerbergs comments reflect, certain parts of the
American technology industry are particularly vulnerable to international backlash since growth is

the U.S. cloud computing industry

has grown from an estimated $46 billion in 2008 to $150 billion in 2014, with nearly 50
percent of worldwide cloud-computing revenues coming from the
U.S.40 R Street Institutes January 2014 policy study concluded that in the next few years,
heavily dependent on foreign markets. For example,

new products and services that rely on cloud computing will become
increasingly pervasive. Cloud computing is also the root of
development for the emerging generation of Web-based applications
home security, outpatient care, mobile payment, distance learning, efficient energy use and driverless

it is a research area where the

United States is an undisputed leader.41 This trajectory may be
dramatically altered, however, as a consequence of the NSAs
cars, writes R Streets Steven Titch in the study. And

surveillance programs . Economic forecasts after the Snowden leaks

have predicted significant, ongoing losses for the cloud-computing
industry in the next few years. An August 2013 study by the Information Technology and

Innovation Foundation (ITIF) estimated that revelations about the NSAs PRISM program could cost the
American cloud computing industry $22 to $35 billion over the next three years.42 On the low end, the
ITIF projection suggests that U.S. cloud computing providers would lose 10 percent of the foreign market
share to European or Asian competitors, totaling in about $21.5 billion in losses; on the high-end, the $35

Because the
cloud computing industry is undergoing rapid growth right nowa
billion figure represents about 20 percent of the companies foreign market share.

2012 Gartner study predicted global spending on cloud computing would increase by 100 percent from
2012 to 2016, compared to a 3 percent overall growth rate in the tech industry as a whole43

vendors in this sector are particularly vulnerable to shifts in the

market. Failing to recruit new customers or losing a competitive
advantage due to exploitation by rival companies in other countries
can quickly lead to a dwindling market share. The ITIF study further notes that

the percentage lost to foreign competitors could go higher if foreign governments enact protectionist
trade barriers that effectively cut out U.S. providers, citing early calls from German data protection
authorities to suspend the U.S.-EU Safe Harbor program (which will be discussed at length in the next
section).44 As the R Street Policy Study highlights, Ironically, the NSA turned the competitive edge U.S.
companies have in cloud computing into a liability, especially in Europe.45 In a follow up to the ITIF
study, Forrester Research analyst James Staten argued that the think tanks estimates were low,
suggesting that the actual figure could be as high as $180 billion over three years.46 Staten highlighted
two additional impacts not considered in the ITIF study. The first is that U.S. customersnot just foreign
companieswould also avoid US cloud providers, especially for international and overseas business. The
ITIF study predicted that American companies would retain their domestic market share, but Staten
argued that the economic blowback from the revelations would be felt at home, too. You dont have to
be a French company, for example, to be worried about the US government snooping in the data about
your French clients, he wrote.47 Moreover, the analysis highlighted a second and far more costly
impact: that foreign cloud providers, too, would lose as much as 20 percent of overseas and domestic
business because of similar spying programs conducted by other governments. Indeed, the NSA
disclosures have prompted a fundamental re-examination of the role of intelligence services in
conducting coordinated cross-border surveillance, according to a November 2013 report by Privacy
International on the Five Eyes intelligence partnership between the United States, the United

the surveillance
landscape around the world becomes more clear, it could have a
serious negative impact on all hosting and outsourcing services,
Kingdom, Canada, Australia, and New Zealand.48 Staten predicts that as

resulting in a 25 percent decline in the overall IT services market, or about $180 billion in losses.49
Recent reports suggest that things are, in fact, moving in the direction that analysts like Castro and
Staten suggested.50 A survey of 1,000 [Information and Communications Technology (ICT)] decisionmakers from France, Germany, Hong Kong, the UK, and the USA in February and March 2014 found that
the disclosures have had a direct impact on how companies around the world think about ICT and cloud
computing in particular.51 According to the data from NTT Communications, 88 percent of decisionmakers are changing their purchasing behavior when it comes to the cloud, with the vast majority
indicating that the location of the data is very important. The results do not bode well for recruitment of
new customers, either62 percent of those currently not storing data in the cloud indicated that the
revelations have since prevented them from moving their ICT systems there. And finally, 82 percent
suggested that they agree with proposals made by German Chancellor Angela Merkel in February 2014
to have separate data networks for Europe, which will be discussed in further detail in Part III of this
report. Providing direct evidence of this trend, Servint, a Virginia-based webhosting company, reported in
June 2014 that international clients have declined by as much as half, dropping from approximately 60

With faith in U.S.

companies on the decline, foreign companies are stepping in to
take advantage of shifting public perceptions. As Georg Mascolo and Ben Scott
percent of its business to 30 percent since the leaks began.52

predicted in a joint paper published by the Wilson Center and the New America Foundation in October
2013, Major commercial actors on both continents are preparing offensive and defensive strategies to
battle in the market for a competitive advantage drawn from Snowdens revelations.53 For example,
Runbox, a small Norwegian company that offers secure email service, reported a 34 percent jump in
customers since June 2013.54 Runbox markets itself as a safer email and webhosting provider for both
individual and commercial customers, promising that it will never disclose any user data unauthorized,
track your usage, or display any advertisements.55 Since the NSA revelations, the company has touted
its privacy-centric design and the fact that its servers are located in Norway as a competitive advantage.
Being firmly located in Norway, the Runbox email service is governed by strict privacy regulations and is
a safe alternative to American email services as well as cloud-based services that move data across
borders and jurisdictions, company representatives wrote on its blog in early 2014.56 F-Secure, a Finnish
cloud storage company, similarly emphasizes the fact that its roots [are] in Finland, where privacy is a

Presenting products and services as NSA-proof or

safer alternatives to American-made goods is an increasingly
viable strategy for foreign companies hoping to chip away at U.S.
tech competiveness.58
fiercely guarded value.57

Cloud Computing Link PRISM/Section 702

PRISM kills cloud computing it is a kiss of death
Jonny Evans, 6/10/2013, Computerworld, why prism kills the cloud,
http://www.computerworld.com/article/2473687/cloud-computing/why-prismkills-the-cloud.html, mm
The migration from desktop computing to the cloud is on every tech
firm's playlist this season, with Apple [AAPL] expected to deliver improvements to its iCloud
service later today -- but recent revelations regarding the US government's PRISM
surveillance technology could be the kiss of death to these future tech
promises. (You may also wish to read this more recent report). Think about it: In order for
cloud computing solutions to be seen as viable alternatives to more
traditional desktop solutions users -- personal and business users alike -- need to
be 100 percent certain their data is secure. It is unlikely too many
people want their privacy curtailed in exchange for convenience -and reports claiming the US can pretty much tap into a user's
personal data and information from any PRISM-enabled system
installed in locations worldwide undermines expectation of secure
data in the cloud.

PRISM crushes the transition to the cloud

Jonny Evans, 6/10/2013, Computerworld, why prism kills the cloud,
http://www.computerworld.com/article/2473687/cloud-computing/why-prismkills-the-cloud.html, mm
The cloud has been compromised. In order for these services to
become the main foundation of the Post-PC future, users are utterly
justified in demanding binding commitments to security from service
providers. If such a commitment cannot be made, then business
users may as well publish every slice of their confidential data to a
public blog. That's even before they consider that if the US is engaged in such surveillance, others

are probably engaged in it, too. It is surely time for an internationally binding Bill of Digital Rights in which
privacy is enshrined. However, even if there were such a Bill, would governments respect the spirit of it? In

By its very existence, PRISM

encapsulates almost every argument against placing your trust in
cloud services. A shame for all users and a likely tragedy for Apple as it attempts to bring its users
the words of Alan Moore, "Who watches the watchmen?"

into the iCloud this evening at WWDC.

Cloud Computing Impact Disease Spread

Cloud computing key to genome sequencing and disease
spread
Chansanchai 15 (Athima, Cloud computing contributes to individually tailored medical
treatments of the future, Microsoft News, Feb 2, 2015, Accessed April 8, 2015,
http://news.microsoft.com/features/cloud-computing-contributes-to-individually-tailored-medicaltreatments-of-the-future/)//AD

in a decade or less it could be

real science. To get to the point where technology can give people
access to their genetic profiles, cloud computing plays a pivotal role.
By putting resources to analyze genomes in the cloud, researchers
can do their work from a variety of devices, collaborate with each
other more easily and save time and money. Just a few years ago, sequencing a human
genome, for example, used to cost $95 million. Now, its $1,000. And by 2020, it may be a matter of pennies. Computing
makes it possible to run simulations faster, which leads to more
efficient lab work that could produce scientific breakthroughs. Feng and his
team at Virginia Tech have developed tools to help other researchers and clinicians
in their quests to find cures for cancer, lupus and other diseases.
For now, this level of personalized medicine is science fiction. But Feng thinks that

Disease causes extinction

Steinbruner 98 Senior Fellow at Brookings Institution [John D., Biological
weapons: A plague upon all houses, Foreign Policy, Dec 22
It s a considerable comfort and undoubtedly a key to our survival that, so far, the main lines of defense against this threat
have not depended on explicit policies or organized efforts. In the long course of evolution, the human body has
developed physical barriers and a biochemical immune system whose sophistication and effectiveness exceed anything
we could design or as yet even fully understand. But evolution is a sword that cuts both ways:

New diseases emerge, while old diseases mutate and adapt. Throughout history,
there have been epidemics during which human immunity has broken down on an
epic scale. An infectious agent believed to have been the plague bacterium killed an estimated 20 million people
over a four-year period in the fourteenth century, including nearly one-quarter of Western Europe's population at the
time. Since its recognized appearance in 1981, some 20 variations of the mv virus have infected an estimated 29.4
million worldwide, with 1.5 million people currently dying of AIDS each year. Malaria, tuberculosis, and cholera--once
thought to be under control--are now making a comeback. As we enter the twenty-first century,

changing

conditions have enhanced the potential for widespread contagion. The rapid growth rate of
the total world population, the unprecedented freedom of movement across international borders, and scientific advances
that expand the capability for the deliberate manipulation of pathogens are all cause for worry that the problem might be
greater in the future than it has ever been in the past. The threat of infectious pathogens is not just

an issue of public health, but a fundamental security problem for the

species as a whole .

Cloud Computing Warming Impact

Adaptation Solves Conflict
Adaptation solves global wars
Werz and Conley 12 - Senior Fellow @American Progress where his

work as member of the National Security Team focuses on the nexus of

climate change, migration, and security and emerging democracies &
Research Associate for National Security and International Policy @ the
Center for American Progress [Michael Werz & Laura Conley, Climate
Change, Migration, and Conflict: Addressing complex crisis scenarios in the
21st Century, Center for American Progress, January 2012]
The costs and consequences of climate change on our world will define the 21st
century. Even if nations across our planet were to take immediate steps to rein in
carbon emissionsan unlikely prospect a warmer climate is inevitable . As the
U.N. Intergovernmental Panel on Climate Change, or IPCC, noted in 2007, human-created
warming of the climate system is unequivocal, as is now evident from
observations of increases in global average air and ocean temperatures, widespread
melting of snow and ice and rising global average sea level.1 As these ill effects progress they will have
serious implications for U.S. national security interests as well as global stabilityextending from the
sustainability of coastal military installations to the stability of nations that lack the resources, good
governance, and resiliency needed to respond to the many adverse consequences of climate change. And

as these effects accelerate, the stress will impact human migration and
conflict around the world. It is difficult to fully understand the detailed causes of migration and
economic and political instability, but the growing evidence of links between climate
change, migration, and conflict raise plenty of reasons for concern. This is why its
time to start thinking about new and comprehensive answers to multifaceted crisis scenarios brought on or
worsened by global climate change. As Achim Steiner, executive director of the U.N. Environment Program,
argues, The question we must continuously ask ourselves in the face of scientific complexity and
uncertainty, but also growing evidence of climate change, is at what point precaution, common sense or

In the coming decades climate change will

increasingly threaten humanitys shared interests and collective security in many parts of
prudent risk management demands action.2

the world, disproportionately affecting the globes least developed countries. Climate change will pose
challenging social, political, and strategic questions for the many different multinational, regional, national,
and nonprofit organizations dedicated to improving the human condition worldwide. Organizations as
different as Amnesty International, the U.S. Agency for International Development, the World Bank, the
International Rescue Committee, and the World Health Organization will all have to tackle directly the
myriad effects of climate change. Climate change also poses distinct challenges to U.S. national security.

Recent intelligence reports and war games , including some conducted by the U.S.
Department of Defense, conclude that over the next two or three decades, vulnerable regions
(particularly sub-Saharan Africa, the Middle East, South and Southeast Asia ) will
face the prospect of food shortages, water crises, and catastrophic flooding
driven by climate change. These developments could demand U.S., European,
and international humanitarian relief or military responses , often the delivery vehicle for
aid in crisis situations. This report provides the foundation and overview for a series of papers focusing on
the particular challenges posed by the cumulative effects of climate change, migration, and conflict in
some of our worlds most complex environments. In the papers following this report, we plan to outline the
effects of this nexus in northwest Africa, in India and Bangladesh, in the Andean region of South America,
and in China. In this paper we detail that nexus across our planet and offer wide ranging recommendations
about how the United States, its allies in the global community, and the community at large can deal with
the coming climate-driven crises with comprehensive sustainable security solutions encompassing national
security, diplomacy, and economic, social, and environmental development. Here, we briefly summarize
our arguments and our conclusions. The nexus The Arab Spring can be at least partly credited to climate

change. Rising food prices and efforts by authoritarian regimes to crush political protests were linked first
to food and then to political repressiontwo important motivators in the Arab makeover this past year. To
be sure, longstanding economic and social distress and lack of opportunity for so many Arab youth in the
Middle East and across North Africa only needed a spark to ignite revolutions across the region. But
environmental degradation and the movement of people from rural areas to already overcrowded cities
alongside rising food prices enabled the cumulative effects of long-term economic and political failures to
sweep across borders with remarkable agility. It does not require much foresight to acknowledge that other
effects of climate change will add to the pressure in the decades to come. In particular the cumulative
overlays of climate change with human migration driven by environmental crises, political conflict caused
by this migration, and competition for more scarce resources will add new dimensions of complexity to
existing and future crisis scenarios. It is thus critical to understand how governments plan to answer and
prioritize these new threats from climate change, migration, and conflict. Climate change Climate change

No matter what steps the global community

takes to mitigate carbon emissions, a warmer climate is inevitable . The effects are
alone poses a daunting challenge.

already being felt today and will intensify as climate change worsens. All of the worlds regions and nations
will experience some of the effects of this transformational challenge. Heres just one case in point: African
states are likely to be the most vulnerable to multiple stresses, with up to 250 million people projected to
suffer from water and food insecurity and, in low-lying areas, a rising sea level.3 As little as 1 percent of
Africas land is located in low-lying coastal zones but this land supports 12 percent of its urban
population.4 Furthermore, a majority of people in Africa live in lower altitudesincluding the Sahel, the
area just south of the Saharawhere the worst effects of water scarcity, hotter temperatures, and longer
dry seasons are expected to occur.5 These developments may well be exacerbated by the lack of state
and regional capacity to manage the effects of climate change. These same dynamics haunt many nations
in Asia and the Americas, too, and the implications for developed countries such as the United States and

In
the 21st century the world could see substantial numbers of climate migrants
much of Europe will be profound. Migration Migration adds another layer of complexity to the scenario.

people displaced by either the slow or sudden onset of the effects of climate change. The United Nations
recent Human Development Report stated that, worldwide, there are already an estimated 700 million
internal migrantsthose leaving their homes within their own countriesa number that includes people
whose migration isrelated to climate change and environmental factors. Overall migration across national
borders is already at approximately 214 million people worldwide,6 with estimates of up to 20 million
displaced in 2008 alone because of a rising sea level, desertification, and flooding.7 One expert, Oli Brown
of the International Institute for Sustainable Development, predicts a tenfold increase in the current
number of internally displaced persons and international refugees by 2050.8 It is important to
acknowledge that there is no consensus on this estimate. In fact there is major disagreement among
experts about how to identify climate as a causal factor in internal and international migration. But even
though the root causes of human mobility are not always easy to decipher, the policy challenges posed by
that movement are real. A 2009 report by the International Organization for Migration produced in
cooperation with the United Nations University and the Climate Change, Environment and Migration

cites numbers that range from 200 million to 1 billion migrants from
climate change alone, by 2050,9 arguing that environmental drivers of migration are often
Alliance

coupled with economic, social and developmental factors that can accelerate and to a certain extent mask
the impact of climate change. The report also notes that migration can result from different
environmental factors, among them gradual environmental degradation (including desertification, soil and
coastal erosion) and natural disasters (such as earthquakes, floods or tropical storms).10 (See box on

climate change is
expected to aggravate many existing migratory pressures around the world. Indeed
associated extreme weather events resulting in drought, floods, and disease are
projected to increase the number of sudden humanitarian crises and
page 15 for a more detailed definition of climate migrants.) Clearly, then,

disasters in areas least able to cope, such as those already mired in poverty or prone to
conflict.11 Conflict This final layer is the most unpredictable, both within nations and transnationally, and
will force the United States and the international community to confront climate and migration challenges
within an increasingly unstructured local or regional security environment. In contrast to the great power
conflicts and the associated proxy wars that marked most of the 20th century, the immediate post- Cold
War decades witnessed a diffusion of national security interests and threats. U.S. national security policy is
increasingly integrating thinking about nonstate actors and nontraditional sources of conflict and
instability, for example in the fight against Al Qaeda and its affiliated groups. Climate change is among
these newly visible issues sparking conflict. But because the direct link between conflict and climate
change is unclear, awareness of the indirect links has yet to lead to substantial and sustained action to
address its security implications. Still

conflict

the potential for the changing climate to induce

or exacerbate existing instability in some of the worlds most vulnerable regions

is now

recognized in national security circles

in the United States, although research gaps still

exists in many places. The climate-conflict nexus was highlighted with particular effect by the current U.S.

Center for Naval

Analysis, which termed climate change a threat multiplier , indicating that it can
exacerbate existing stresses and insecurity.12 The Pentagons latest Quadrennial Defense Review also
recognized climate change as an accelerant of instability or conflict, highlighting
administrations security-planning reviews over the past two years, as well as the

the operational challenges that will confront U.S. and partner militaries amid a rising sea level, growing
extreme weather events, and other anticipated effects of climate change.13 The U.S. Department of
Defense has even voiced concern for American military installations that may be threatened by a rising
sea level.14 There is also well-developed international analysis on these points. The United Kingdoms
2010 Defense Review, for example, referenced the security aspects of climate change as an evolving
challenge for militaries and policymakers. Additionally, in 2010, the Nigerian government referred to
climate change as the greatest environmental and humanitarian challenge facing the country this
century, demonstrating that climate change is no longer seen as solely scientific or environmental, but
increasingly as a social and political issue cutting across all aspects of human development.15 As these
three threadsclimate change, migration, and conflictinteract more intensely, the consequences will be
far-reaching and occasionally counterintuitive. It is impossible to predict the outcome of the Arab Spring
movement, for example, but the blossoming of democracy in some countries and the demand for it in
others is partly an unexpected result of the consequences of climate change on global food prices. On the
other hand, the interplay of these factors will drive complex crisis situations in which domestic policy,
international policy, humanitarian assistance, and security converge in new ways. Areas of concern

Several

regional

hotspots

frequently

come up in the

international

debate on climate

change, migration, and conflict. Climate migrants in northwest Africa , for example, are
causing communities across the region to respond in different ways, often to the detriment of regional and

Political and social instability in the region plays into

the hands of organizations such as Al Qaeda in the Islamic Maghreb. And recent
international security concerns.

developments in Libya, especially the large number of weapons looted from depots after strongman
Moammar Qaddafis regime fell which still remain unaccounted forare a threat to stability across North
Africa. Effective solutions need not address all of these issues simultaneously but must recognize the
layers of relationships among them. And these solutions must also recognize that these variables will not
always intersect in predictable ways. While some migrants may flee floodplains, for example, others may

Bangladesh , already
well known for its disastrous floods, faces rising waters in the future due to climate-driven
glacial meltdowns in neighboring India. The effects can hardly be over. In December 2008 the
National Defense University in Washington, D.C., ran an exercise that explored the impact of a
flood that sent hundreds of thousands of refugees into neighboring India. The result: the
exercise predicted a new wave of migration would touch off religious conflicts ,
migrate to them in search of greater opportunities in coastal urban areas.16

spread of contagious diseases , and cause vast damage to infrastructure.

India itself is not in a position to absorb climate-induced pressures never mind
encourage the

foreign climate migrants. The country will contribute 22 percent of global population growth and have
close to 1.6 billion inhabitants by 2050, causing demographic developments that are sure to spark waves
of internal migration across the country. Then theres the

Andean region

of South America, where

melting glaciers

and snowcaps will drive climate, migration, and security concerns. The average rate
of glacial melting has doubled over the past few years, according to the World Glacier Monitoring
Service.17 Besides Peru, which faces the gravest consequences in Latin America, a number of other
Andean countries will be massively affected, including Bolivia, Ecuador, and Colombia. This development

will put water security, agricultural production, and power

generation at risk all factors that could prompt people to leave their homes and migrate. The
IPCC report argues that the region is especially vulnerable because of its fragile
ecosystem.18 Finally, China is now in its fourth decade of ever-growing internal migration, some of it
driven in recent years by environmental change. Today, across its vast territory, China continues
to experience the full spectrum of climate change related consequences that have
the potential to continue to encourage such migration. The Center for a New American
Security recently found that the consequences of climate change and continued internal

migration in China include

water stress; increased droughts, flooding, or other severe

events; increased coastal erosion and saltwater inundation; glacial melt in the Himala as that could affect
hundreds of millions;

and shifting agricultural zones all of which will affect

food supplies. 19 Pg. 1-7

Cloud Computing Warming Impact AT Slow

Warming
Warming trends are accelerating
Plumer 6/14/13, (Brad Plumer is a reporter at the Washington Post writing
about domestic policy, particularly energy and environmental issues, hes
quoting Alexander Otto, a Research Fellow in Climate Decisions at the
Environmental Change Institute at the University of Oxford and has a Masters
in Physics and a phD in economics, Global warming appears to have slowed
lately. Thats no reason to celebrate., [
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/14/globalwarming-appears-to-have-slowed-lately-thats-no-reason-to-celebrate/ ] ,
//hss-RJ)
A few things stand out. First, the planet has grown considerably warmer since
mid-century, by more than half a degree Celsius. Second, even if the overall

trend is upward, there's a fair bit of variation year to year. Some of that, as we can see, has to do with El
Nio and La Nia cycles, which can shift heat into and out of the ocean. There's a third aspect of this chart,
however, that's getting a barrage of attention lately. The

past decade has clearly been

the warmest decade on record. But the rate of warming in the last
15 years has been slower than it was in the 20 years before that.
And that's despite the fact that greenhouse gases are piling up in
the atmosphere at a record pace. So what should we make of this
recent "slowdown" in global warming? Is it just a random blip the
sort of natural variation we've seen before and will likely see again?
Or does it tell us anything interesting about climate change? Here are
are a couple of big points to consider: 1) Global warming is still very much with us.
The recent slowdown in temperature rise has left climatologists a bit
puzzled, but it certainly doesn't disprove global warming. The
evidence on the efects of greenhouse gases, after all, stretches
back more than a century. Scientists know that carbon dioxide is a greenhouse gas that
traps heat on Earth. And it's simple to see that humans are putting more carbon dioxide into the
atmosphere by burning fossil fuels. Researchers at NASA, meanwhile, have found that more solar energy is
now entering Earth than is escaping back out into space. Basic physics suggests that this "energy
imbalance" should, over time, heat up the planet. The mystery, then, is why all that extra energy hasn't
translated into even higher surface temperatures in recent years. Where is the extra heat going? Clearly

oceans are responsible for

the recent warming slowdown. The oceans are vast and have long
absorbed more than 90 percent of the extra energy that greenhouse
gases trap on Earth. So it's possible that they've somehow been
absorbing even more of that heat lately, and hence slowing the rise
of temperatures on the surface. Recent work by Magdalena Balmaseda, Kevin Trenberth,
something else must be at play here... 2) One theory is that the

and Erland Klln has suggested that the warming of the oceans has accelerated in the past 15 years

If the
oceans are indeed the reason for the pause, that's not comforting
news, since that extra heat should eventually rise to the Earths
surface in the years ahead, leading to much hotter temperatures. That
and that the "missing heat" may be lurking in the deep layers, 700 meters below the surface:

said, it's not entirely clear why the oceans have been grabbing a bigger share of the heat lately. It's also
not certain when, exactly, that heat will return to the surface. Climate models still have trouble capturing
the precise mechanisms by which the oceans transfer heat to the surface over short time scales. Which
brings us to our third part... 3)

Even if you place a lot of weight on the recent

slowdown, it doesn't change projections of future warming too

dramatically . Here's a question we can ask. What if the recent

slowdown in surface temperatures isn't just a blip, but is actually an
extremely important fact about the world? How much should it shift
our view of climate change? And the answer turns out to be: A little
bit. That's the issue Alexander Otto and his co-authors explored in a
recent paper published in Nature Geoscience. They focused on data from the last
decade to come up with new estimates of the "transient climate response," or what will happen in the very

What
Otto and his colleagues found is that, if you look at data from the
last decade and extrapolate from there, we can expect the Earth to
warm an extra 0.9C to 2C in the short term whenever the amount
of carbon dioxide in the atmosphere doubles. By contrast, earlier climate models
short term every time we double the amount of carbon dioxide in the atmosphere. Still here. (AP)

had put that range at between 1C to 2.5C. (Note: These are lower numbers than estimates of "climate
sensitivity," which measures how the Earth would keep heating up thereafter, as the oceans and ice sheets
reach equilibrium.) That's slightly better news, but

the broad picture hasn't change all

that much . As Otto told me: "Even if we give a lot of weight to what weve seen over the last
decade, youre not getting rid of the problem." And here's how Myles Allen, a co-author, put it: "Taken at
face value, our new findings mean that the changes we had previously expected between now and 2050

In a phone interview, Otto also made

another point: The temperature trends over the past decade aren't
the only data scientists have to work with. When he and his coauthors recalculated the Earth's transient climate response using
data from the last 40 years, his results (0.7C to 2.5C) lined up
more closely with earlier models. (See here for Otto's explanation of the paper.) What's
might take until 2065 to materialize instead."

more, scientists have a variety of other ways to estimate longer-term climate sensitivity, including data
from prehistoric periods, measures of the Earth's response to volcanic eruptions, and physical models. As
NASA's Gavin Schmidt explains, different approaches tend to given different answers, some higher, and

We're still on pace to blow past that

2C climate target. Intricate arguments about climate sensitivity
often bypass a crucial point. Humanity is on pace to do a lot more
than simply double the amount of carbon in the atmosphere by the
end of the century (compared with pre-industrial levels). Doubling
means going up to 560 parts per million. Were currently at about
400 ppm and rising fast. "Even if you adjust the transient climate
response downwards, if we keep emitting at the pace we are now,
we're going to go significantly past the 2C climate target," Otto
says. "There's no reason for complacency here."
some lower. But they're all worth considering. 4)

Cloud Computing AT Overhyped

Cloud computing isnt hype industry trends prove
James Bourne, 2/26/2015, Cloudtech, the hype around cloud computing
has been justified, say enterprises, http://www.cloudcomputingnews.net/news/2015/feb/26/hype-around-cloud-computing-has-been-justifiedsay-enterprises/, mm
85% of respondents in a Tata Communications survey say that

cloud computing had lived

up to industry hype

in their experience, with 23% saying cloud had exceeded their

expectations. Increased productivity was the most popular benefit according to 69% of those polled, with
better access to data (65%) and reductions in costs (63%) also highly cited. 83% of respondents admitted

The report added to the

plethora of research confirming cloud computing was being widely
used in the enterprise. 97% of respondents overall said their organisation had already adopted cloud,
they experienced benefits they werent expecting to see.

with only 1% saying it wasnt an important part of their infrastructure. Private remains the most popular
use case 50% of respondents said they had deployed private cloud for between one and three years
while hybrid is certainly on the rise, with one in 10 deploying within the last year. Almost two third (65%)
of respondents said using the cloud had led to increased speed of access to technology, while a similar
number (67%) experienced reduced delivery times to clients and partners. Yet this doesnt explain the full
story. More than half (57%) of respondents admit they have migrated data back in-house from the cloud.
Not surprisingly, its security and data protection theyre concerned about. Of the application structure in
organisations polled, only two in five (39%) apps are ready to move to the cloud and as a result
companies are primarily relying on private cloud. However 94% said their organisations would be more
partial to using hybrid cloud is the connections within publicly-used internet structure could be made more
predictable. This

independent research shows that the cloud has exited

the hype cycle and entered the real adoption phase for businesses
globally, said Julie Woods-Moss, CMO at Tata Communications. It is now a strategic
investment and a competitive diferentiator.

Cloud Computing AT Hurts the Environment

The cloud has a net-positive impact on the environment
our evidence is supported by comprehensive research
studies
Michael Skok, 1/3/2014, The Washington Post, five myths about the
cloud, http://www.washingtonpost.com/opinions/five-myths-about-thecloud/2014/01/03/dd826052-7191-11e3-8b3f-b1666705ca3b_story.html, mm
5. The cloud is bad for the environment.

This myth has been perpetuated by

Greenpeace campaigns and stories such as the New York Times cloud factories series, which

stated that the foundation of the information industry is sharply at odds with its image of sleek efficiency
and environmental friendliness. Theres no question that data centers consume huge amounts of energy.

when businesses move from on-site facilities to consolidated

cloud data centers, it saves energy and cuts pollution just as relying on
But

power companies is better for the environment than if everyone had to run their own generator. In one

researchers at Lawrence Berkeley National Laboratory

and Northwestern University estimated that if all U.S. companies
shifted e-mail, spreadsheets and customer management to the cloud, they would
shrink their computing energy footprints by 87 percent . And a 2010
report from Pike Research predicted that cloud computing could cut
global data-center energy use by more than a third by 2020. The
major cloud service providers are also trying to be greener . For instance,
simulation last year,

Apple announced last spring that it had achieved 100 percent renewable energy at all its data centers.
Google is coming up with ways to cut energy demand and cool its data centers more efficiently. And
Facebook has a Swedish data center that is cooled by Arctic air and powered by hydroelectric sources.

we can expect cloud providers to reduce their

environmental impact even further.
Going forward,

Tech Competitiveness Link Mass

Surveillance
Mass surveillance crushes our tech competitiveness only
curtailing surveillance can solve
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm
It is abundantly clear that the NSA surveillance programs are
currently having a serious, negative impact on the U.S. economy
and threatening the future competitiveness of American technology
companies. Not only are U.S. companies losing overseas sales and
getting dropped from contracts with foreign companies and
governmentsthey are also watching their competitive advantage
in fast-growing industries like cloud computing and webhosting disappear, opening
the door for foreign companies who claim to offer more secure alternative products to poach their
business. Industry efforts to increase transparency and accountability as well as concrete steps to

U.S.
companies cannot solve this problem alone. Its not blowing over, said Microsoft
promote better security by adopting encryption and other best practices are positive signs, but

General Counsel Brad Smith at a recent conference. In June of 2014, it is clear it is getting worse, not

Without meaningful government reform and better

oversight, concerns about the breadth of NSA surveillance could
lead to permanent shifts in the global technology market and do
better.98

lasting damage to the U.S. economy.

Unchecked mass surveillance undermines tech

competitiveness
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm
It

is becoming clear that the post-9/11 surveillance apparatus may

be at cross-purposes with our high-tech economic growth, declared Third
Ways Mieke Eoyang and Gabriel Horowitz in December 2013. The economic
consequences [of the recent revelations] could be staggering. 25 A TIME magazine
headline projected that NSA Spying Could Cost U.S. Tech Giants Billions,
predicting losses based on the increased scrutiny that economic titans like Google, Microsoft, Facebook,

The NSAs actions pose a

serious threat to the current value and future stability of the
information technology industry, which has been a key driver of
and Yahoo have faced both at home and abroad since last June.26

economic growth and productivity in the United States in the past

decade.27 In this section, we examine how emerging evidence about the NSAs extensive
surveillance apparatus has already hurt and will likely continue to

hurt the American tech sector in a number of ways, from dwindling

U.S. market share in industries like cloud computing and webhosting
to dropping tech sales overseas. The impact of individual users turning away from
American companies in favor of foreign alternatives is a concern. However, the major losses will likely
result from diminishing confidence in U.S. companies as trustworthy choices for foreign government
procurement of products and services and changing behavior in the business-to-business market.

Tech Competitiveness UQ/Link/Solvency

Tech competitiveness is high now but NSA revelations
have sent a signal that will crush our comparative
advantage only reform solves
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm
recent developments may temper short-term concerns, they could also
set the stage for more troubling changes in the long run. Until
recently, most foreign countries have accepted the fact that the
U.S. has a comparative advantage in the technology industry that is
extremely difficult to challenge. In a number of cases, however, the threat of
NSA surveillance may be the catalyst that forces countries to invest
heavily in markets that they would otherwise have left to the U.S.,
Moreover, while the

including cloud computing and data storagea shift that will be worth huge amounts of money over
time.146 There is some risk at the moment that the short-term logistical challenges of requiring data
localization or turning away from U.S. companies will create a false sense of security among U.S.

the United States will

squander massive economic value in the long term if it fails to
address issues raised by NSA surveillance.
policymakers and business leaders, obscuring the fact that

Tech Competitiveness Heg Sustainable

(Comparative Adv/Tech)
Heg is sustainable maintain comparative advantage in
tech is key
Karl 6/23/14 (David J. Karl is president of the Asia Strategy Initiative, an analysis and

advisory firm, and senior director of Geoskope, an intelligence company focused on emerging
markets, June 23rd, 2014, The Greatest Challenge to U.S. National Security: A Weak
Economy, http://nationalinterest.org/feature/the-greatest-challenge-us-national-security-weakeconomy-10720?page=2

President Obama pushed back

against claims that Americas global leadership is in terminal
decline. Hes right to do so, since many of these claims are
exaggerated and take little account of the significant problems that
are starting to weigh down Chinas economic trajectory , including
signs of a gigantic credit bubble that has sparked talk that the
country is approaching its own Lehman moment. Its also true that
the prophets of American decline ignore key factors , like
demographic advantages and the capacity for technological
innovations, which reinforce U.S. strategic power.
In his recent foreign-policy address at West Point,

Tech Competitiveness Heg Sustainable (AT

Cost)
Cost does not make heg unsustainable, we can stay
engaged despite future cuts plus balancing isnt any
cheaper
Stephen Brooks, John Ikenberry and William Wohlforth, Jan/Feb
2013, Foreign Affairs, (Brooks is a professor at Darmouth, Ikenberry is a
professor at Princeton and Wohlforth is a professor at Dartmouth), "Lean
forward: in defense of american engagement," 92.1, Proquest
advocates of retrenchment consider the United States' assertive global
posture simply too expensive. The international relations scholar Christopher Layne, for
example, has warned of the country's "ballooning budget deficits" and argued that "its
Many

strategic commitments exceed the resources available to support them." Calculating the savings of
switching grand strategies, however, is not so simple, because it depends on the expenditures the current
strategy demands and the amount required for its replacement-numbers that are hard to pin down. If the
United States revoked all its security guarantees, brought home all its troops, shrank every branch of the
military, and slashed its nuclear arsenal, it would save around $900 billion over ten years, according to

advocates of
retrenchment endorse such a radical reduction; instead, most call for "restraint," an
"ofshore balancing" strategy, or an "over the horizon" military posture. The savings these
Benjamin Friedman and Justin Logan of the Cato Institute. But few

approaches would yield are less clear, since they depend on which security commitments Washington
would abandon outright and how much it would cost to keep the remaining ones. If retrenchment simply
meant shipping foreign-based U.S. forces back to the United States, then the

savings would be

modest at best, since the countries hosting U.S. forces usually cover a large portion of the basing
costs. And if it meant maintaining a major expeditionary capacity, then any savings would again be small,
since the Pentagon would still have to pay for the expensive weaponry and equipment required for

the price of continued

engagement, is also in flux. Although the fat defense budgets of the past decade make an
easy target for advocates of retrenchment, such high levels of spending aren't needed
to maintain an engaged global posture. Spending skyrocketed after 9/11, but it has
projecting power abroad. The other side of the cost equation,

already begun to fall back to earth as the United States winds down its two costly wars and trims its base

Defense Department was planning

for cuts of just under $500 billion over the next five years, which it maintains will not
level of nonwar spending. As of the fall of 2012, the

compromise national security. These reductions would lower military spending to a little less than three
percent of gdp by 2017, from its current level of 4.5 percent.

The Pentagon could save

even more with no ill efects by reforming its procurement practices and compensation
policies. Even without major budget cuts, however, the country can aford the
costs of its ambitious grand strategy. The significant increases in military spending
proposed by Mitt Romney, the Republican candidate, during the 2012 presidential campaign would still
have kept military spending below its current share of gdp, since spending on the wars in Afghanistan and
Iraq would still have gone down and Romney's proposed nonwar spending levels would not have kept pace
with economic growth. Small wonder, then, that the case for pulling back rests more on the nonmonetary
costs that the current strategy supposedly incurs.

Tech Competitiveness Heg Impact

Hegemonic decline causes global war unstable
multipolarity, Chinese aggression, and conflict escalation
empirical evidence
Khalilzad, Former UN Ambassador, 11
[Zalmay, February 8, 2011, National Review, The Economy and National
Security, http://www.nationalreview.com/articles/259024/economy-andnational-security-zalmay-khalilzad,
If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when

The closing of the gap between the United

States and its rivals could intensify geopolitical competition among
major powers, increase incentives for local powers to play major
powers against one another, and undercut our will to preclude or
respond to international crises because of the higher risk of
escalation. The stakes are high. In modern history, the longest period
of peace among the great powers has been the era of U.S.
leadership. By contrast, multi-polar systems have been unstable, with their
competitive dynamics resulting in frequent crises and major wars among the great powers. Failures
of multi-polar international systems produced both world wars.
American retrenchment could have devastating consequences. Without an American
security blanket, regional powers could rearm in an attempt to
balance against emerging threats. Under this scenario, there would be a
heightened possibility of arms races, miscalculation, or other crises
spiraling into all-out conflict. Alternatively, in seeking to accommodate the stronger
a new international order will emerge.

powers, weaker powers may shift their geopolitical posture away from the United States. Either way,

hostile states would be emboldened to make aggressive moves in

their regions. As rival powers rise, Asia in particular is likely to emerge as a
zone of great-power competition. Beijings economic rise has enabled a dramatic military
buildup focused on acquisitions of naval, cruise, and ballistic missiles, long-range stealth aircraft, and antisatellite capabilities. Chinas strategic modernization is aimed, ultimately, at denying the United States

Even as cooperative economic ties in the

region have grown, Chinas expansive territorial claims and
provocative statements and actions following crises in Korea and
incidents at sea have roiled its relations with South Korea, Japan, India, and
Southeast Asian states. Still, the United States is the most significant barrier
facing Chinese hegemony and aggression.
access to the seas around China.

Tech Competitiveness Heg Good AT Doesnt

Prevent War
Hegemony is necessary to prevent inevitable great-power
competition that escalates---Fettweis is also wrong
because the US didnt cut back in the 1990s---a large
status gap is necessary
Wohlforth 11 William C, Daniel Webster Professor at Dartmouth College,
where he teaches in the Department of Government and is the editor-in-chief
of Security Studies, International Relations Theory and the Consequences of
Unipolarity, Cambridge University Press, p. 65-66
evidence suggests that narrow and asymmetrical
capabilities gaps foster status competition even among states relatively
Conclusion The

confident of their basic territorial security for the reasons identified in social identity theory and theories of
status competition.

Broad patterns of evidence are consistent with this

expectation, suggesting that unipolarity shapes strategies of identity
maintenance in ways that dampen status conflict. The implication is that unipolarity
helps explain low levels of military competition and conflict among
major powers after 1991 and that a return to bipolarity or
multipolarity would increase the likelihood of such conflict . This has been
a preliminary exercise. The evidence for the hypotheses explored here is hardly conclusive, but it is
sufficiently suggestive to warrant further refinement and testing, all the more so given the importance of
the question at stake. If status matters in the way the theory discussed here suggests, then the
widespread view that the rise of a peer competitor and the shift back to a bipolar or multipolar structure
present readily surmountable policy challenges is suspect. Most scholars agree with Jacek Kugler and
Douglas Lemke's argument: "[Sjhould a satisfied state undergo a power transition and catch up with
dominant power, there is little or no expectation of war.*81 Given that today's rising powers have every
material reason to like the status quo, many observers are optimistic that the rise of peer competitors can
he readily managed by fashioning an order that accommodates their material interests. Yet it is far harder

While diplomatic eforts to

manage status competition seem easy under unipolarity, theory and
evidence suggest that it could present much greater challenges as
the system moves back to bipolarity or multipolarity . When status is seen as a
to manage competition for status than for most material things.

positional good, efforts to craft negotiated bargains about status contests face long odds. And this

The
route back to bipolarity or multipolarity is thus fraught with danger.
With two or more plausible claimants to primacy, positional competition and the potential for major
positionality problem is particularly acute concerning the very issue unipolarity solves: primacy.

power war could once again form the backdrop of world politics .

Broad empirical analysis demonstrates our argument--heg is necessary to solve peace and its absence causes
war
Wohlforth 8 William, Daniel Webster Professor of Government in the
Dartmouth College Department of Government, October, World Politics,
Unipolarity, Status Competition, and Great Power War,

www.polisci.wisc.edu/Uploads/Documents/IRC/Wohlforth
(2009).pdf)
Despite increasingly compelling findings concerning the importance of status seeking in human behavior,

empirical studies of
the relationship between both systemic and dyadic capabilities
distributions and war have continued to cumulate. If the relationships implied
research on its connection to war waned some three decades ago.38 Yet

by the status theory run afoul of well-established patterns or general historical findings, then there is little

status
competition is unlikely to cause great power military conflict in
unipolar systems. If status competition is an important contributory cause of great power war,
then, ceteris paribus, unipolar systems should be markedly less war-prone
than bipolar or multipolar systems. And this appears to be the case. As Daniel Geller
notes in a review of the empirical literature: "The only polar structure
that appears to influence conflict probability is unipolarity ."39 In addition,
a larger number of studies at the dyadic level support the related
expectation that narrow capabilities gaps and ambiguous or
unstable capabilities hierarchies increase the probability of war .40
These studies are based entirely on post-sixteenth-century European
history, and most are limited to the post-1815 period covered by the
standard data sets. Though the systems coded as unipolar, near-unipolar, and hegemonic are all
reason to continue investigating them. The clearest empirical implication of the theory is that

marked by a high concentration of capabilities in a single state, these studies operationalize unipolarity in
a variety of ways, often very differently from the definition adopted here. An ongoing collaborative project
looking at ancient interstate systems over the course of two thousand years suggests that historical
systems that come closest to the definition of unipolarity used here exhibit precisely the behavioral
properties implied by the theory. 41 As David C. Kang's research shows, the East Asian system between
1300 and 1900 was an unusually stratified unipolar structure, with an economic and militarily dominant
China interacting with a small number of geographically proximate, clearly weaker East Asian states.42
Status politics existed, but actors were channeled by elaborate cultural understandings and interstate
practices into clearly recognized ranks. Warfare was exceedingly rare, and the major outbreaks occurred
precisely when the theory would predict: when China's capabilities waned, reducing the clarity of the
underlying material hierarchy and increasing status dissonance for lesser powers. Much more research is
needed, but initial exploration of other arguably unipolar systems-for example, Rome, Assyria, the Amarna
system-appears consistent with the hypothesis.43 Status Competition and Causal Mechanisms Both theory
and evidence demonstrate convincingly that competition for status is a driver of human behavior, and
social identity theory and related literatures suggest the conditions under which it might come to the fore
in great power relations. Both the systemic and dyadic findings presented in large-N studies are broadly
consistent with the theory, but they are also consistent with power transition and other rationalist theories
of hegemonic war.

Add-On Cybersecurity

2AC Cybersecurity Add-On

Unchecked mass surveillance undermines cyber security
Danielle Kehl et al., 2014, New Americas Open Technology Institute,
Surveillance Costs: The NSAs Impact on the Economy, Internet Freedom &
Cybersecurity,
https://www.newamerica.org/downloads/Surveilance_Costs_Final.pdf, mm
We have previously focused on the economic and political repercussions of the NSA disclosures both in
the United States and abroad. In this section, we consider the impact on the Internet itself and the ways

the NSA has both weakened overall trust in the network and directly harmed the
security of the Internet. Certainly, the actions of the NSA have created a serious trust and
in which

credibility problem for the United States and its Internet industry. All of this denying and lying results in
us not trusting anything the NSA says, anything the president says about the NSA, or anything
companies say about their involvement with the NSA, wrote security expert Bruce Schneier in
September 2013.225 However, beyond undermining faith in American government and business, a
variety of the NSAs efforts have undermined trust in the security of the Internet itself. When Internet
users transmit or store their information using the Internet, they believeat least to a certain degree
that the information will be protected from unwanted third-party access. Indeed, the continued growth of
the Internet as both an economic engine and an as avenue for private communication and free

as the scope of the NSAs surveillance

dragnet and its negative impact on cybersecurity comes into greater
focus, that trust in the Internet is eroding.226 Trust is essential for a healthy
expression relies on that trust. Yet,

functioning society. As economist Joseph Stiglitz explains, Trust is what makes contracts, plans and
everyday transactions possible; it facilitates the democratic process, from voting to law creation, and is
necessary for social stability.227 Individuals rely on online systems and services for a growing number
of sensitive activities, including online banking and social services, and they must be able to trust that
the data they are transmitting is safe. In particular, trust and authentication are essential components of
the protocols and standards engineers develop to create a safer and more secure Internet, including
encryption.228 The NSAs work to undermine the tools and standards that help ensure cybersecurity
especially its work to thwart encryptionalso undermines trust in the safety of the overall network.
Moreover, it reduces trust in the United States itself, which many now perceive as a nation that exploits
vulnerabilities in the interest of its own security.220 This loss of trust can have a chilling effect on the
behavior of Internet users worldwide.230 Unfortunately, as we detail below, the growing loss of trust in
the security of Internet as a result of the latest disclosures is largely warranted. Based on the news

it appears that the Internet is far less secure than

people thought a direct result of the NSAs actions . These actions
can be traced to a core contradiction in NSAs two key missions:
information assuranceprotecting Americas and Americans sensitive dataand
signals intelligencespying on telephone and electronic communications for foreign
stories of the past year,

intelligence purposes. In the Internet era, these two missions of the NSA are in obvious tension. The
widespread adoption of encryption technology to secure Internet communications is considered one of
the largest threats to the NSAs ability to carry out the goals of its signals intelligence mission. As the
National Journal explained, strong Internet security actually makes the NSAs job harder.231 In the
1990s, the NSA lost the public policy battle to mandate that U.S. technology companies adopt a
technology called the Clipper Chip that would give the government the ability to decrypt private
communications,232 and since then strong encryption technology has become a bedrock technology
when it comes to the security of the Internet. The NSA lost that early battle against encryption,
sometimes called the Crypto War,233 not only due to vocal opposition from privacy and civil liberties
stakeholders, but also because the private sector convinced policymakers that subverting the security of
American communications technology products would undermine the U.S. technology industry and the
growth of the Internet economy as a whole.234 However, as an explosive New York Times story first

the NSA has apparently continued to fight the

Crypto War in secret, clandestinely inserting backdoors into secure products and working
to weaken key encryption standards.235 For the past decade, N.S.A. has led an
aggressive, multipronged efort to break widely used Internet
encryption technologies, said a 2010 memo from the Government Communications
revealed in September 2013,

Headquarters (GCHQ), the NSAs British counterpart. Cryptanalytic capabilities are now coming online.

Vast amounts of encrypted Internet data which have up till now been discarded are now

Given the amount of information the NSA is collecting, it

is not surprising that the agency would also take aggressive steps
to improve its ability to read that information. According to the black budget
exploitable.236

released by The Washington Post in August 2013, 21 percent of the intelligence budget (roughly $11
billion) goes toward the Consolidated Cryptologic Program, with a staff of 35,000 in the NSA and the
armed forces surveillance and code breaking units.237 The resources devoted to signals intercepts are

the agency has

employed a variety of methods to achieve this goal far beyond
simple code-breakingmethods that directly undermine U.S.
extraordinary, wrote Barton Gellman and Greg Miller.238 However,

cybersecurity , not just against the NSA, but also against foreign governments,
organized crime, and other malicious actors. In this section, we consider four
different ways that the NSA has damaged cybersecurity in pursuit of its signals intelligence goals: (1) by
deliberately engineering weaknesses into widely-used encryption standards; (2) by inserting surveillance
backdoors in widely-used software and hardware products; (3) by stockpiling information about security
vulnerabilities for its own use rather than disclosing those vulnerabilities so that they can be remedied;
and (4) by engaging in a wide variety of offensive hacking techniques to compromise the integrity of
computer systems and networks around the world, including impersonating the web sites of major
American companies like Facebook and LinkedIn.

Cyberinsecurity risks mass systems disruptions this

causes instability and escalating conflicts that causes
extinction
Adhikari 09 (Richard,- leading journalist on advanced-IP issues for

several major publications, including The Wall Street Journal Civilization's

High Stakes Cyber-Struggle: Q&A With Gen. Wesley Clark (ret.))
The conflicts in the Middle East and Afghanistan, to name the most prominent, are
taking their toll on human life and limb. However, the escalating
cyberconflict among nations is far more dangerous, argues retired general Wesley
Clark, who spoke with TechNewsWorld in an exclusive interview. That cyberconflict will take
a far greater toll on the world, contends Clark, who last led the NATO forces to end the
ethnic cleansing in Albania. There is a pressing need for new institutions to cope with the ongoing conflict,
in his view. Clark is a member of the boards of several organizations. He has a degree in philosophy,
politics and economics from Oxford University and a master's degree in military science from the U.S.
Army's Command and General Staff College.
Background: In November 2008, the Center for Strategic
and International Studies, a Washington-based bipartisan think tank, presented recommendations on
national security to the then-incoming Obama administration. These called for an overhaul of the existing
national cybersecurity organization. Since then, the state of national cybersecurity has appeared chaotic.
In August, White House cybersecurity adviser Melissa Hathaway resigned for reasons that echoed the
departure in 2004 of Amit Yoran, who then held essentially the same post. In an exclusive interview earlier
this year, Yoran told TechNewsWorld that national cybersecurity was still a mess. TechNewsWorld: Security
experts warn that nations are preparing for a new cyberwar. Is our government doing enough to protect
our national cyber-infrastructure? Or is it in the process of protecting the cyber-infrastructure? Gen.
Wesley K. Clark: I think we're in the process of trying to get it protected, but unlike conventional security
considerations, where one can easily see an attack and take the appropriate response, the cyberstruggle is
a daily, ongoing affair.

It's a matter of thousands of probes a day, in and out,

against systems that belong to obvious targets like the United States Department of
Defense; not-so-obvious targets like banks and energy companies; and
individual consumers or taxpayers. It's ongoing, it's undeclared, it's often unreported,
and it's very much an ongoing concern at all levels -- business, commerce and individual privacy.
TechNewsWorld: The national security infrastructure has repeatedly been reported to be sorely lacking. Is
the government moving fast enough? Does it need to do more? Clark: It does need to do more. It's in the
process of doing more, and there's a tremendous amount of public and private sector effort going into
cybersecurity right now. Whether it's going to be adequate or not is not the issue. There are many
approaches to this problem that are mainly based on software, but software is vulnerable. When you open
up to communicate with the Web, when you bring in data and programs from another source, when you
bring in applications -- all that entails huge risks. It's dealing with those risks and trying to gain the rewards

of doing so that make it such a difficult proposition. Online banking was a novelty 20 years ago. Now,
everything happens on the Internet. People pay their bills, they do business, they do their work with
customers. People don't fax documents any more if they don't have to -- they do webinars and briefings.
All of this exposes the opportunity for mischief. You don't know the source of the mischief. You don't know
whether it's individuals trying to solve a difficult technical challenge on their own or if they're connected to
governments, or if they're cells attached to governments -- and it's very difficult to pin down ... incoming
probes to a source. TechNewsWorld: While it's generally agreed that

the next war may be a

cyberwar , much of our infrastructure is either hooked up to the

Internet or in the process of being hooked up to the Internet. Electricity companies, for example, are
agitating for the use of smart meters. That being the case, and with hackers increasing the frequency and
sophistication of their attacks, does the increasing pace of hooking everything up to the Internet pose a
real security threat? Clark: We're going into completely digitized medical records, which could lead to a
huge invasion of privacy. It could also lead to things like blackmail and is physically dangerous
because people can tamper with records of vital signs, or can alter prescriptions. There's no telling just
what could be done. Companies could lose their supply chain management, lose their accounting records,
lose their customer lists. Trying to rebuild this on paper when we've all been interconnected on the Internet

years of economic decline. We are, as a civilization, quite

vulnerable to disruption, and this security problem doesn't just affect one nation but the
will cause

whole global economic infrastructure. You can't conceive of the threats from the point of view of a
traditional war. Cyber-efforts are ongoing today; we're in a cyber-struggle today. We don't know who the

the stakes are: continued economic

vitality and, ultimately, global civilization.
adversaries are in many cases, but we know what

Cybersecurity - Solvency
Surveillance reform is essential for broader cyber security
initiatives
Gorman 14 (Siobhan,- NSA Chief: Spy Concerns Are Pre-Empting Cybersecurity Fixes)
the U.S.
government will have to address surveillance concerns before
Congress can turn to bolstering cyberdefenses. Gen. Keith Alexander's
The departing director of the National Security Agency acknowledged Tuesday that

comments, which began with a defense of NSA's surveillance programs, showed the degree to which his
top prioritycybersecurityhas been overshadowed by the disclosures
from former NSA contractor Edward Snowden. Speaking at a cybersecurity conference at Georgetown
University in one of his final public appearances before retiring this month, Gen. Alexander said he realized

Congress had to handle "the media leaks first" before moving on to

cybersecurity legislation. He said White House officials were meeting
Tuesday to discuss options to address concerns about NSA's program
that collects millions of Americans' phone records and he anticipated decisions in the
coming weeks. President Barack Obama has asked for a report on options by March 28. " If we make
the right steps with the media leaks," he said, "it will make the cyber legislation
easier." Last week, Gen. Alexander told Congress that the restructuring of the
phone-records program could provide a model for managing
cybersecurity-data sharing. On Tuesday, he amped up his case for giving NSA and other
federal agencies a greater role in helping U.S. companies protect themselves from cyberattacks. " We
have some tremendous capabilities in our government that we ought
to share," he said. "If a bank is attacked by another nation state, our government should not say:
Good luck with that."

Cybersecurity Impacts Laundry List

Cybersecurity protects critical infrastructure --- the
impact is hege, the economy, food prices, energy shocks,
and chemical industry
Sebastian 09 (Rohan,- research for the office of Virginia Senator Mark
Warner CS Computer Science from UVA, 6-24 The Federal Governments
Role in Preserving Cybersecurity for Critical Infrastructure)

The intersection of critical infrastructure and cyberspace has presented many challenges to policymakers.

Critical infrastructure includes areas like the water and food supply,
telecommunications, nuclear power, transportation, banking, and
energy---areas crucial to the functioning of society. Eighty percent of this critical
infrastructure is owned by the private sector. The continual delegation of control of critical infrastructure to
cyberspace without regard to security has posed many vulnerabilities that malicious actors could exploit.
To address these vulnerabilities, policymakers can utilize three options: strengthening partnerships
between the public and private sectors, installing a White House official to deal solely with cyber security
issues, and encouraging collaboration between critical infrastructure operators for coordinating best
practices and crisis management. In conclusion, this analysis recommends that the federal government
follow a course incorporating all three options because the effects could be mutually reinforcing. A long
term solution to cybersecurity must take note of the private sectors insight to be successful; a national
dialogue on the importance of cyber security needs to take its cue from the White House; in the
meanwhile, proprietors of critical infrastructure should ensure that they can reduce the damage caused by
disasters or attacks by establishing clear lines of communication. [End of Abstact Start of Intro]
Critical Infrastructure Government and the private sector have reaped digital networkings benefits by
using computer networks to control vital parts of critical infrastructure from cyberspace. However, remote

access to critical infrastructure from cyberspace has placed these

systems at risk of destruction by other countries, malicious actors,
or terrorists. This analysis proposes three options that the federal government can implement:

strengthening partnerships between the public and private sectors, integrating resources under a White
House official, and increasing collaboration between levels of critical infrastructure. After scrutinizing these
options under the criteria of political feasibility, industry acceptance, and efficacy, this analysis

Critical
infrastructure includes areas such as transportation, water supplies,
public health, telecommunications, energy, banking and finance,
emergency and information services, nuclear facilities, food
supplies, and defense and chemical industries (Moteff & Parfomak, 2004).
recommends that the federal government pursue a combination of all three policy options.

According to the Department of Homeland Securitys National Strategy for Homeland Security, critical
infrastructure consists of assets, systems, and networks, whether physical or virtual, so vital to the United
States that their incapacitation or destruction would have a debilitating effect on security, national
economic security, public health or safety, or any combination thereof (Homeland Security Council, 2007).
Figure 1 illustrates the myriad of infrastructures and their interdependencies with one another. Simply put,

critical infrastructures comprise the foundation for the modern

economy and national security, so the federal government shares responsibility for
protecting them. However, the government rests in a precarious position because the private
sector owns about eighty percent of critical infrastructure (Forest, 2006, p. 78). Furthermore,
about eighty percent of all American commerce occurs on privately owned telecommunications networks,
primarily the Internet (Theohary, 2009, p. 20).

Even the most valuable national defense

systems rely on privately owned telecommunications networks (National
Security Agency, 2009). As digital networking proliferates through society, builders will delegate control of
more and more parts of critical infrastructure to the realm of cyberspace. In fact, every piece of software
added to a system expands the attack surface accessible to external actors (Welander, 2009, p. 42).
Therefore, cybersecurity is necessary to safeguard this infrastructure. The Need for Cybersecurity
Proprietors often control critical infrastructure from cyberspace. According to the National Security
Presidential Directive 54 and Homeland Security Presidential Directive 23 issued by the George W. Bush
Administration, cyberspace consists of the interdependent network of information technology
infrastructures, and includes the Internet, telecommunications networks, computer systems, and

embedded processors and controllers in critical industries (as cited in National Cyber Security Center,
2009, p. 11). The intersection of critical infrastructure and cyberspace means that policymakers should
strive to establish security while retaining a relatively open cyberspace. Several government officials have

the catastrophic efects of compromised cybersecurity. Paul

a cataclysm
in which government agencies would fail to coordinate after a cyber attack
and would subsequently collapse (Epstein, 2009). Mike McConnell, a former director of both
emphasized

Kurtz, an advisor on President Obamas transition team, warned of a cyber Katrina,

the National Security Agency and National Intelligence, declared that if the September 11th, 2001,
hijackers had launched a focused attack on an American bank, the economic ramifications would have
been of an order of magnitude greater than the destruction of the World Trade Center (Harris, 2008).
Former cyber security advisor Richard Clarke, who served in the Clinton and Bush Administrations,
asserted that the primary target for a terrorists cyber attack would be the economy whereas casualties
and chaos would be secondary (as cited in Rollins & Wilson, 2007, p. 3). In fact, Director of National

cyber attacks against financial sectors and

physical infrastructure could severely impact the national
economy and disturb energy sources like oil and electricity for an
Intelligence Dennis Blair stated that

indefinite period (Annual Threat Assessment, 2009). Beyond threatening the private sector, intruders have
been specifically targeting the federal governments information technology infrastructure. A report by the
International Business Machines Corporation revealed that of the 237 million security attacks carried out in
the first half of 2005, more than twenty-two percent, the highest percentage against any given group,
aimed for government agencies (Fitzgerald, 2006, p. 57). Between 2008 and March 2009, the number of
attacks against federal computer networks swelled about forty percent (Smith, 2009). The Department of

the American militarys

Achilles heel (Defense Science Board, 2008). Though these assorted officials would concur on
Defense dubbed the militarys electronic information infrastructure

the gravity of cybersecurity, they might dissent on the correct policy solution. As the White Houses
Cyberspace Policy Review pointed out, cyberspace policy envelops the following: security of and
operations in cyberspace,,the full range of threat reduction, vulnerability reduction, deterrence,
international engagement, incident response, resiliency, and recovery policies and activities, including
computer network operations, information assurance, law enforcement, diplomacy, military, and
intelligence missions as they relate to the security and stability of the global information and
communications infrastructure (National Cyber Security Center, 2009, p. 5). This analysis will lay out three
policy options to address these issues. Strengthening Partnerships between the Public and Private Sectors

the private sector since it

owns about eighty percent of the nations critical infrastructure .
Any kind of long term solution to cybersecurity threats must consider

Legislators cannot expect a law ignoring the private sectors input to succeed because businesss efforts
will ultimately determine effective cybersecurity policies. Thus, the government can continue encouraging
the deepening of relationships with the private sector. Advocating a redefinition of governments
relationship to the software business, General James Cartwright stated that government should treat
cyber security as a weapon system (Rutherford, 2008). A paradigm shift to Gen. Cartwrights mindset
would be favorable for government and business because the public sector widely uses private sector
products. The Department of Defense, in particular, uses Commercial-Off-the-Shelf products since these
packages are cheaper and more innovative than a government established standard. Communication
between government and the private sector would be helpful for alleviating situations involving systemic
software threats. For example, the Microsoft Windows operating system runs on ninety-five percent of
personal computers worldwide, so hackers often exploit its vulnerabilities. In 2003, the Blaster worm
infected some 400,000 host PCs in a single day. Microsoft responded by permitting several governments
across the world to take a peek at the precious Windows source code for input and disclosure (Taylor,
2003). Thus, government benefitted by receiving insight into the potential problems the Blaster worm
posed; business benefitted by receiving the governments assistance with this problem. A number of
forums already exist to serve as models for more formal mechanisms of public-private communication.
Microsoft created a Security Response Center that works with the Department of Defense to secure its
products (Information Technology in the 21st Century Battlespace, 2003). Learning from Carnegie Mellon
Universitys public-private alliance model, the Department of Homeland Security in 2003 founded the
United States-Computer Emergency Readiness Team, a group of government and industry experts
compiling software vulnerabilities (Barnes, 2004, p. 327). Similarly, the Protected Critical Infrastructure
Information Program in the Department of Homeland Security represents the federal governments first
ever mechanism to collect and analyze data from private companies without fear of releasing that data to
the public by the Freedom of Information Act (Grubesic & Murray, 2006, p. 65). In response to the
governments creation of federal agencies like the Critical Infrastructure Assurance Office and National
Infrastructure Protection Center in 1998, industry responded with the creation of the Partnership for Critical
Infrastructure Security as well as the generation of Information Sharing Analysis Centers (Michel-Kerjan,
2003, p. 136). Industry agents staff these Centers, which specialize in areas like telecommunications,
electricity, and finance (Michel-Kerjan, 2003, p. 136). This analysis evaluates this option under the
aforementioned criteria.

Industry acceptance and political obstacles could

obstruct the way to success. Politically, the Freedom of Information Act, which could force
the disclosure of details of infrastructure weaknesses to the public, may make private companies
apprehensive about sharing their data with the government. Laws like the Critical Infrastructure
Information Act of 2002 protect the private sector from such disclosures, but companies may be reluctant
nonetheless (Pozen, 2005, p. 678). Industry acceptance also affects this options efficacy. There are
currently federal organizations like the United States-Computer Emergency Readiness Team bridging the
communication gap between the public and private sectors, but only serious attention to these programs
by both parties will evoke substantive results. Companies confront a tradeoff between security and
efficiency as well as transparency and customer satisfaction. Noting this trend, Clay Wilson addressed
studies revealing a low rate of cybercrime incident reporting because companies fear consumer backlash
from negative publicity (Wilson, 2009, p. 24). According to a study conducted among Fortune 1000
companies, one of the most trenchant effects of compromised cyber security is damage to 6 reputation

This options effectiveness is directly tied to

political feasibility and industry acceptance.
among consumers (Hansen, 2001, p. 1161).

Cybersecurity Impact Grid/Economy

Cybersecurity is key to the grid --- prevents economic
collapse
Hayden et al 14 (Michael,- former director of the Central Intelligence Agency and

the National Security Agency. Curt Hbert is a former chairman of the Federal Energy
Regulatory Commission. And Susan Tierney is a former assistant secretary of Energy. All three
are co-chairs of the Bipartisan Policy Center's Electric Grid Cyber Security Initiative How to
protect our electric grid: Column)

cyber threats to critical infrastructure -- for example, water, energy

and telecommunications are important to our national security.
There is evidence that energy systems, in particular, are becoming a popular
target. The Department of Homeland Security recently reported responding to 198 cyber-incidents in
Rather,

2012 across all critical sectors. Forty-one percent of these incidents involved the energy sector, particularly

a successful cyber attack on the electric

is more a question of "when" than "if." A targeted cyber
attack either alone or combined with a physical attack on the power system could lead to
huge costs, with sustained outages over large portions of the electric grid and
prolonged disruptions in communications, health care delivery and food and water supplies.
electricity. Although to date there are no reports of
grid, we believe it

Unlike traditional threats to electric grid reliability, such as extreme weather events, a cyber attack is less
predictable in its timing and potentially more difficult to diagnose and address. Such an attack could come
from various sources and target many potential vulnerabilities. The North American electricity grid is
sprawling, with approximately 5,800 major power plants and more than 450,000 miles of high-voltage
transmission lines. And

our economy is pervasively dependent upon its

functioning.

Efforts to prevent and respond to cyber attacks on the electric grid are complicated by
a complex governance structure. In addition to the countless companies involved with pieces of the grid
and actions to protect it, numerous federal, state and local agencies are involved in some aspect of
cybersecurity. Successfully managing cybersecurity risks and recovering from a destructive cyber attack
will require effective coordination at several levels, including U.S. energy companies, the intelligence
community and emergency management agencies; between relevant federal government and state and
local authorities involved in energy, law enforcement, essential services and other issues; and between
U.S. energy regulatory and security agencies and their counterparts in Canada and Mexico. To address
new and evolving threats of cyber attacks on the grid, the Bipartisan Policy Center convened an expert

policy approaches that would improve protection of

the grid and increase preparedness in the case of an attack. We believe there must be
a series of new, innovative approaches to address the evolving threat. Recommendations include:
Public-private partnerships that mobilize the respective assets and expertise of industry and
government agencies, and improve the flow of information among
government and companies -- such as this month's GridEx exercise, which joins industry
advisory group to develop

and government in an extensive simulation of a cyber attack.

AT Disads

AT Terrorism DA No Link
Mass domestic surveillance isnt key to preventing
terrorism - comprehensive, independent analysis proves
David Sterman, Emily Schneider, and Peter Bergen, 1/13/2014,

International Security, Do NSAs bulk surveillance programs stop terrorists?

https://www.newamerica.org/international-security/do-nsas-bulk-surveillanceprograms-stop-terrorists/, mm
our review of the governments claims about the role that NSA
bulk surveillance of phone and email communications records has had in keeping
the United States safe from terrorism shows that these claims are
However,

overblown and even misleading . An in-depth analysis

of 225 individuals

recruited by al-Qaeda or a like-minded group or inspired by al-Qaedas ideology, and charged in the United
States with an act of terrorism since 9/11,

demonstrates that traditional

investigative methods, such as the use of informants, tips from local communities, and
targeted intelligence operations, provided the initial impetus for investigations
in the majority of cases, while the contribution of NSAs bulk
surveillance programs to these cases was minimal. Indeed, the controversial
bulk collection of American telephone metadata, which includes the telephone numbers that originate and

Section 215 of
appears to have played an identifiable role in
initiating, at most, 1.8 percent of these cases. NSA programs involving the
surveillance of non-U.S. persons outside of the United States under Section 702 of the FISA
Amendments Act played a role in 4.4 percent of the terrorism cases we
examined, and NSA surveillance under an unidentified authority
played a role in 1.3 percent of the cases we examined . Regular FISA
receive calls, as well as the time and date of those calls but not their content, under
the USA PATRIOT Act,

warrants not issued in connection with Section 215 or Section 702, which are the traditional means for
investigating foreign persons, were used in at least 48 (21 percent) of the cases we looked at, although its
unclear whether these warrants played an initiating role or were used at a later point in the investigation.
Surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism
and only the most marginal of impacts on preventing terrorist-related activity, such as fundraising for a
terrorist group. Furthermore, our examination of the role of the database of U.S. citizens telephone
metadata in the single plot the government uses to justify the importance of the program that of Basaaly
Moalin, a San Diego cabdriver who in 2007 and 2008 provided $8,500 to al-Shabaab, al-Qaedas affiliate in
Somalia calls into question the necessity of the Section 215 bulk collection program. According to the
government, the database of American phone metadata allows intelligence authorities to quickly
circumvent the traditional burden of proof associated with criminal warrants, thus allowing them to
connect the dots faster and prevent future 9/11-scale attacks. Yet in the Moalin case, after using the
NSAs phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an
investigation and wiretap his phone. Although its unclear why there was a delay between the NSA tip and
the FBI wiretapping, court documents show there was a two-month period in which the FBI was not
monitoring Moalins calls, despite official statements that the bureau had Moalins phone number and had
identified him. , This undercuts the governments theory that the database of Americans telephone
metadata is necessary to expedite the investigative process, since it clearly didnt expedite the process in

a careful review of
three of the key terrorism cases the government has cited to defend
NSA bulk surveillance programs reveals that government officials
have exaggerated the role of the NSA in the cases against David Coleman Headley
the single case the government uses to extol its virtues. Additionally,

and Najibullah Zazi, and the significance of the threat posed by a notional plot to bomb the New York Stock
Exchange. In 28 percent of the cases we reviewed, court records and public reporting do not identify
which specific methods initiated the investigation. These cases, involving 62 individuals, may have been
initiated by an undercover informant, an undercover officer, a family member tip, other traditional law

enforcement methods, CIA- or FBI-generated intelligence, NSA surveillance of some kind, or any number of
other methods. In 23 of these 62 cases (37 percent), an informant was used. However, we were unable to
determine whether the informant initiated the investigation or was used after the investigation was
initiated as a result of the use of some other investigative means. Some of these cases may also be too
recent to have developed a public record large enough to identify which investigative tools were used. We
have also identified three additional plots that the government has not publicly claimed as NSA successes,
but in which court records and public reporting suggest the NSA had a role. However, it is not clear

the overall
problem for U.S. counterterrorism officials is not that they need
vaster amounts of information from the bulk surveillance programs,
but that they dont sufficiently understand or widely share the
information they already possess that was derived from
conventional law enforcement and intelligence techniques. This was true
whether any of those three cases involved bulk surveillance programs. Finally,

for two of the 9/11 hijackers who were known to be in the United States before the attacks on New York
and Washington, as well as with the case of Chicago resident David Coleman Headley, who helped plan the
2008 terrorist attacks in Mumbai, and it is the unfortunate pattern we have also seen in several other
significant terrorism cases.

AT Terrorism DA AT Advocate Protects

Foreigners/Undermines Foreign Surveillance
The privacy advocate would only be involved in domestic
surveillance cases
Spencer Kimball, 12/19/2013, DW, pressure builds to crack down on NSA
spying, http://www.dw.com/en/pressure-builds-to-crack-down-on-nsaspying/a-17307624, mm
a permanent special advocate to FISC, who
would be tasked specifically with representing civil liberties and privacy
concerns. In contrast to the outside experts in Feinstein's bill, the special advocate must have a
The USA Freedom Act also attaches

proven track record of being a "zealous and effective advocate in defense of civil liberties." The chief
justice of the Supreme Court would appoint the special advocate from a pool of five candidates selected by

The advocate would have

access to both the government's surveillance applications and the
secret court's decisions and can move to challenge them. But the USA
Freedom Act would do very little to restrict NSA surveillance against
foreign nationals living abroad, according to Vladeck. "Neither the FISA
Improvements Act nor the USA Freedom Act really have non-citizens in mind," he said.
"Both are really responses to concerns that have arisen on the home
front and actually do very little to assuage the concerns that have
arisen with regard to our surveillance of foreigners."
the president's Privacy and Civil Liberties Oversight Board.

AT Terrorism DA Section 215

The metadata program doesnt reduce the risk of
terrorism it actually makes it harder to prevent
terrorism since agencies are drowning in useless data
Glenn Greenwald, 2014, No Place to Hide: Edward Snowden, the NSA,
and the US Surveillance State. p. 202-205, mm
To begin with,

much of the data collection conducted by the NSA has

manifestly nothing to do with terrorism or national security. Intercepting the

communications of the Brazilian oil giant Petrobras or spying on negotiation sessions at an economic

collecting all
Americans communications records has no relationship to terrorism .
summit or targeting the democratically elected leaders of allied states or

Given the actual surveillance the NSA does, stopping terror is clearly a pretext. Moreover, the

argument that mass surveillance has prevented terror plots a claim

made by President Obama and a range of national security figures has been proved false.

As the Washington Post noted in December 2013, in an article headlined Officials Defense of NSA Phone
Program May Be Unraveling,

a federal judge declared the phone metadata

collection program almost certainly unconstitutional, in the process saying that the Justice
Department failed to cite a single case in which analysis of the NSAs
bulk metadata collection actually stopped an imminent terrorist
attack. That same month, Obamas hand-picked advisory (composed of, among others, a former CIA
deputy director and a former White House aide, and convened to study the NSA program through access to

the metadata program was not essential to

preventing attacks and could readily have been obtained in a timely
manner using conventional [court] orders. Quoting the Post again: In
classified information) concluded that

congressional testimony, [Keith] Alexander has credited the program with helping to detect dozens of plots
both in the United States and overseas but the advisory panels report cut deeply into the credibility of
those claims. Additionally, as Democratic senators Ron Wyden, Mark Udall, and Martin Heinrich all

members of the Intelligence Committee baldly stated in the New York Times,
the mass collection of telephone records has not enhanced
Americans protection from the threat of terrorism . The usefulness
of the bulk collection program has been greatly exaggerated . We have
yet to see any proof that it provides real, unique value in protecting national security. In spite of our
repeated requests, the NSA has not provided evidence of any instance when the agency used this program
to review phone records that could not have been obtained using a regular court order or emergency

A study by the centrist New American Foundation testing the veracity

concurred that the program has
had no discernible impact on preventing acts of terrorism . Instead, as
authorization.

of official justifications for the bulk metadata collection

the Washington Post noted, in most cases where plots were disrupted the study found that
traditional

law enforcement and investigative methods provided the

evidence to initiate the case. The record is indeed quite poor. The collect-it-all
system did nothing to detect, let alone disrupt, the 2012 Boston Marathon
bombing. It did not detect the attempted Christmas-day bombing of a
tip or

jetliner over Detroit, or the plan to blow up Times Square, or the plot to attack the New York City subway
system all of which were stopped by alert bystanders or traditional police powers. It certainly did nothing
to stop the string of mass shootings from Aurora to Newtown. Major international attacks from London to
Mumbai to Madrid proceeded without detection, despite involving at least dozens of operatives. And

bulk surveillance would not have given

intelligence services better tools to prevent the attack on 9/11 . Keith
despite exploitative claims from the NSA,

Alexander, speaking to a Senate panel, said I would much rather be here today debating the program
than trying to explain how we failed to prevent another 9/11. (The same argument, verbatim, appeared
in talking points the NSA gave its employees to use to fend off questions). The implication is rank fear

the CIA
had multiple reports about an al-Qaeda plot and quite a bit of information about
mongering and deceitful in the extreme. As CNN security analyst Peter Bergen has shown,

two of the hijackers and their presence in the United States, which the agency didnt share with other
government agencies until it was too late to do anything about it. Lawrence Wright, the New Yorkers alQaeda expert, also debunked the NSAs proposition that metadata collection could have stopped 9/11,

the CIA withheld crucial intelligence from the FBI, which has
the ultimate authority to investigate terrorism in the US and attacks on Americans abroad. The FBI
could have stopped 9/11, he argued. It had a warrant to establish surveillance of everyone
explaining that

connected to Al Qaeda in America. It could follow them, tap their phones, clone their computers, read their
emails, and subpoena their medical, bank, and credit-card records. It had the right to demand records from

There was no need for a metadata

collection program. What was needed was cooperation with other federal agencies, but for
telephone companies of any calls they made.

reasons both petty and obscure those agencies chose to hide vital clues from the investigators most likely
to avert the attacks. The government was in possession of the necessary intelligence but had failed to
understand or act on it. The solution that it then embarked on to collect everything en masse has done
nothing to fix that failure. Over and over, from multiple corners, the invocation of the terrorism threat to

mass surveillance has had quite the

opposite efect: it makes detecting and stopping terror more
difficult. Democratic Congressman Rush Holt, a physicist and one of the few scientists in Congress, has
made the point that collecting everything about everyones communications
only obscures actual plots being discussed by actual terrorists.
Directed rather than indiscriminate surveillance would yield more
specific and useful information. The current approach swamps the
intelligence agencies with so much data that they cannot possibly
sort through it efectively.
justify surveillance was exposed as a sham. In fact,

AT Terrorism DA Section 702

New research proves Section 702 isnt integral to
surveillance
Jennifer Granick, 1/13/2014, Just Security, new report questions value of
section 702 warrantless surveillance, http://justsecurity.org/5639/reportquestions-section-702-warrantless-surveillance/, mm

the New America Foundation, researchers have published a paper

examining the role of dragnet programs in the United States
counterterrorism operations. The paper provides data on the effectiveness
Today over at

of bulk phone records collection and breaks some new ground on whether warrantless content surveillance
under section 702 of the FISA Amendments Act provides valuable intelligence. The researchers
conducted an in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired
by al-Qaedas ideology and charged in the United States with an act of terrorism since September 11th.
The New America Foundation report finds that bulk collection of American telephone metadata played an
identifiable role in initiating no more than 1.8 percent of these cases. This assessment follows on a number
of recent looks at the effectiveness of the phone records collection under section 215 of the USA PATRIOT
Act, including that of Just Security guest blogger and Hoover fellow Marshall Erwin and our own Ryan
Goodmans look at whether the collection could have prevented the attacks of September 11th. The
report also seriously examines the usefulness of warrantless content surveillance under Section 702 of the

Theres been apparent agreement within the

government that this surveillance, including collection from
providers under the PRISM program, has been useful in
counterterrorism eforts. Even reformers like Senators Ron Wyden and Mark Udall have said
FISA Amendments Act.

that the program has provided valuable intelligence, while pushing for changes that would close off back
door searches, a loophole permitting suspicionless searches using U.S. person selection criteria post-

section 702 is less valuable than we may have

assumed given this consensus, finding that targeting the content of
communications of non-U.S. persons outside of the United States
under Section 702 of the played a role in only 4.4 percent of
examined terrorism cases.
collection. This new suggests

Section 702 isnt key it only helped in 4.4 percent of

terrorism investigations
Jennifer Granick, 1/30/2014, Just Security, Reforming the Section 702

Dragnet (part 1), http://justsecurity.org/6574/reforming-section-702-dragnet1/, mm

The consensus is clear that spying on innocent Americans section
215 of the Patriot Act is flatly illegal. The Center for Democracy and Technology said
it, Christopher Sprigman and I said it, Laura Donohue said it, Judge Richard Leon said it, the Privacy and

So far, less
attention has been paid to the legalityand wisdomof mass surveillance under
section 702 of the FISA Amendments Act (FAA), codified at 50 USC 1881a. Section
Civil Liberties Oversight Board (PCLOB) said it, Sprigman and I said it again.

702 is the statutory authority for the PRISM program, which involves warrantless collection of
communications contents via targeting non-U.S. individuals or entities reasonably believed to be located
abroad. The USA Freedom Act would strengthen and impose additional restrictions on section 702

a report from the New America

Foundation recently took a serious look at the efficacy of 702 in
counterterrorism. Researchers concluded that section 702 is less
valuable than people may have assumed, finding that section 702
surveillance, but would not end the dragnet. Meanwhile,

collection played a role in only 4.4 percent of examined terrorism

cases. In a few months, PCLOB plans to issue a report on section 702 collection.

AT Terrorism DA Impact Defense Nuclear

Terrorism
Terrorism wont go nuclear and they wont be able to
attack the US - several warrants
Mearsheimer 11, January, John J., Wendell Harrison Distinguished Service
Professor of Political Science at the University of Chicago. He is on the
Advisory Council of The National Interest, Imperial by
Design,http://nationalinterest.org/article/imperial-by-design-4576?page=3,
states have strong incentives to distrust terrorist groups , in part
because they might turn on them someday, but also because countries cannot
control what terrorist organizations do, and they may do something that
gets their patrons into serious trouble. This is why there is hardly any chance that a
rogue state will give a nuclear weapon to terrorists. That regimes leaders
could never be sure that they would not be blamed and punished for a
terrorist groups actions. Nor could they be certain that the United States or Israel
would not incinerate them if either country merely suspected that they had provided terrorists
with the ability to carry out a WMD attack. A nuclear handoff, therefore, is not a serious
threat. When you get down to it, there is only a remote possibility that terrorists will
get hold of an atomic bomb. The most likely way it would happen is if there were political chaos
The fact is that

in a nuclear-armed state, and terrorists or their friends were able to take advantage of the ensuing

there are additional obstacles to

overcome: some countries keep their weapons disassembled,
detonating one is not easy and it would be difficult to transport the
device without being detected. Moreover, other countries would have powerful
incentives to work with Washington to find the weapon before it could be
used. The obvious implication is that we should work with other states to improve nuclear security, so as
to make this slim possibility even more unlikely. Finally, the ability of terrorists to
strike the American homeland has been blown out of all proportion. In the nine
years since 9/11, government officials and terrorist experts have issued countless
warnings that another major attack on American soil is probableeven
imminent. But this is simply not the case .3 The only attempts we have seen
are a few failed solo attacks by individuals with links to al-Qaeda like the shoe bomber,
confusion to snatch a loose nuclear weapon. But even then,

who attempted to blow up an American Airlines flight from Paris to Miami in December 2001, and the
underwear bomber, who tried to blow up a Northwest Airlines flight from Amsterdam to Detroit in
December 2009. So, we do have a terrorism problem, but

it is hardly an existential threat . In fact, it is a minor threat. Perhaps the scope of

the challenge is best captured by Ohio State political scientist John Muellers telling comment that the
number of Americans killed by international terrorism since the late 1960s . . . is
about the same as the number killed over the same period by lightning, or by accidentcausing deer, or by severe allergic reactions to peanuts.

Your evidence is all hype - theres a 1 in 3.5 billion chance

of a terrorist strike
Schneidmiller 9 (Chris, GSN Writer, Citing John Mueller of Ohio State,
Experts Debate Threat of Nuclear, Biological Terrorism, January 13th,
http://www.globalsecuritynewswire.org/gsn/nw_20090113_7105.php)

There is an "almost vanishingly small" likelihood that terrorists would ever be

able to acquire and detonate a nuclear weapon, one expert said here yesterday (see GSN,
Dec. 2, 2008). In even the most likely scenario of nuclear terrorism, there are 20 barriers between
extremists and a successful nuclear strike on a major city, said John Mueller, a political science professor at Ohio
State University. The process itself is seemingly straightforward but exceedingly difficult -- buy
or steal highly enriched uranium, manufacture a weapon, take the bomb to the target site and blow it up.
Meanwhile, variables strewn across the path to an attack would increase the
complexity of the effort, Mueller argued. Terrorists would have to bribe officials in a
state nuclear program to acquire the material, while avoiding a sting by authorities or a scam by the sellers. The
material itself could also turn out to be bad. "Once the purloined material is purloined,
[police are] going to be chasing after you. They are also going to put on a high reward, extremely
high reward, on getting the weapon back or getting the fissile material back," Mueller said during a panel
discussion at a two-day Cato Institute conference on counterterrorism issues facing the incoming Obama
administration. Smuggling the material out of a country would mean relying on criminals who "are very good at
extortion" and might have to be killed to avoid a double-cross, Mueller said. The terrorists would then
have to find scientists and engineers willing to give up their normal lives to manufacture a
bomb, which would require an expensive and sophisticated machine shop. Finally,
further technological expertise would be needed to sneak the weapon across
national borders to its destination point and conduct a successful detonation, Mueller said. Every
obstacle is "difficult but not impossible" to overcome, Mueller said, putting the chance of
success at no less than one in three for each. The likelihood of successfully
passing through each obstacle, in sequence, would be roughly one in 3 [and a half]
1/2 billion, he said, but for argument's sake dropped it to 3 1/2 million. "It's a total gamble. This is a very
expensive and difficult thing to do," said Mueller, who addresses the issue at greater length in an upcoming book,
Atomic Obsession. "So unlike buying a ticket to the lottery ... you're basically putting everything, including your
life, at stake for a gamble that's maybe one in 3 1/2 million or 3 1/2 billion." Other scenarios are even
less probable, Mueller said. A nuclear-armed state is "exceedingly unlikely" to
hand a weapon to a terrorist group, he argued: "States just simply won't give it to somebody
they can't control." Terrorists are also not likely to be able to steal a whole
weapon, Mueller asserted, dismissing the idea of "loose nukes." Even Pakistan, which today is perhaps
the nation of greatest concern regarding nuclear security, keeps its bombs in two
segments that are stored at different locations, he said (see GSN, Jan. 12). Fear of an
"extremely improbable event" such as nuclear terrorism produces support for a wide range of homeland security
activities, Mueller said. He argued that there has been a major and costly overreaction to
the terrorism threat -- noting that the Sept. 11 attacks helped to precipitate the invasion of Iraq, which
has led to far more deaths than the original event. Panel moderator Benjamin Friedman, a research fellow at the
Cato Institute, said academic and governmental discussions of acts of nuclear or biological terrorism have tended
to focus on "worst-case assumptions about terrorists' ability to use these weapons to kill us." There is need for
consideration for what is probable rather than simply what is possible, he said.

No risk of nuclear terrorism.

Levi 2008 (Michael, fellow @ CFR. USA Today, Fear and the nuclear
terror threat. Jan 9. Lexis.)

Here's the reality. The nuclear threat is real and deserves our utmost attention. An atomic bomb detonated

it would be tougher
for terrorists to pull of a nuclear attack than many people assume . (A
in the heart of a major American city could kill hundreds of thousands. But

dirty bomb would be easier to make and deliver, but its impact would be far less severe.) Many intelligence
professionals know that, but our political culture doesn't do moderation. The first step to getting smart
about defense, then, is to bust some popular myths about nuclear terrorism. The long road Start at the
beginning: To pull off a plot, a terrorist group needs to get its hands on a bomb or on the materials it needs
to make one. It would probably target a nuclear facility directly, maybe a military base in the former Soviet
Union or a civilian reactor in an obscure corner of the world. That's a big reason why we need to do a much
better job of securing those sites. Our imagination, though, tends to focus just as much on a shadowy
black market where nuclear materials from the former Soviet Union are bought and sold so long as the
price is right. That fear is fueled by regular reports of intercepted nuclear materials and by the success of
Pakistani engineer A.Q. Khan in building a genuine worldwide black market in nuclear technology -- but not

when it comes to loose nukes,

the black market image is misleading, since underground deals are
hard for terrorists to engineer. Buyers and sellers need to worry about being turned in -in nuclear materials like uranium and plutonium. Indeed

many illicit transactions have actually been stings. Terrorists should also be nervous about getting ripped
off. When drug smugglers work with people they don't already know and trust, they tend to keep deals
small, about $10,000 or less. A nuclear weapon or the materials for it would be worth millions. If a group
got its hands on nuclear materials, it would still need to build a bomb. To the Internet! The place is littered
with tutorials on how to build nuclear weapons, and while a lot of what's out there is nonsense, there are
places that get the basics right. (Suggestion for policymakers: Hire students who failed physics to make as
many instructional websites as they can.) The problem for terrorists is that, as anyone who has ever tried
programming a VCR can tell you, instructions are the easy part. 'The dirty work' When it comes to nukes,

it's the engineering and the dirty work -- machining, metalworking,

electronics -- that's tough, something that the Ph.D. physicists who think about terrorism
often forget. Let's not kid ourselves: With the right team, a terrorist group might
pull the job of. But we have a lot more leverage here than a lot of
people think. A group that made it this far would also need to get its bomb into the USA. Here the
doom and gloom is a bit more justified. The United States has long, porous borders, and right now it only
inspects a fraction of the cargo that comes in through its ports. Still, not everything is as bad as it looks. In
2006, U.S. government agents tried to smuggle weapons-grade uranium across the Canadian border. They
made it through on three of four tries. Border security must be pretty useless, right? Not necessarily. Those

put yourself in the shoes of a

terrorist leader contemplating a nuclear strike, add up all the other
ways you might fail, and you might easily come to a diferent
conclusion -- and perhaps not even start a plot in the first plac e. Given
odds of failing seem terrible from where we sit. But

the consequence of a successful attack, we'd be fools to convert from nuclear zealots who think the sky is
falling to nuclear atheists who reject the existence of a real threat. But like a cop who leaves his Kevlar
vest at home because he assumes that all bad guys have armor-piercing bullets, we'll miss opportunities to
confront the threat if we exaggerate it. Better to be pragmatic agnostics: We should be skeptical if we're
told that pulling off a nuclear attack is easy, but we should be smart about making it even harder.

Politics Plan = Bipart

Creating a public advocate has bipartisan support
Carol Costello and Adam Schif, 9/20/2013, [interview], CNN
Newsroom - Transcript: FISA Courts, https://votesmart.org/publicstatement/813069/cnn-newsroom-transcript-fisa-courts#.VY8-L-1Viko, mm
Is there bipartisan support for your idea?
I think there is. And the administration has signaled its
willingness to have an advocate of this kind and I think in discussions
with other members on the intelligence committee and in the House
generally, I think there is bipartisan interest in more safeguards
within the process. We're not talking about having a private advocacy interest in every single
COSTELLO: Now for the toughest question.

SCHIFF:

case that goes before the FISA court because actually what the court does most routinely is weigh in on an
individual warrant that is much like a search warrant where there's no adversarial process in the criminal
court system. But on these large cases, these constitutional cases, the authorization of new programs,

you would really have bipartisan agreement that there

ought to be an independent voice the court can draw on.
there I think

Plan has bipartisan supportrecent bills prove

Levy 14 (Pema, PhD in Poli Sci @ University of Indiana citing Sharon

Bradford Franklin, senior counsel at nonpartisan legal research and advocacy

group Constitution Project NSA FISA Controversy: Congress Looks To Reform
Secret Court, 7/17/14, Accessed 6/24/15, http://www.ibtimes.com/nsa-fisacontroversy-congress-looks-reform-secret-court-1348875)//SSN
Beginning last month, numerous bills have been put forward to make the court
more transparent and trustworthy. On Wednesday, a House Judiciary Hearing will examine how
the federal government is running programs that were approved by the FISA (Foreign Intelligence Surveillance Act) court.

current bipartisan
interest in the courts activities put the FISC (Foreign Intelligence Surveillance Court)
at the center of possible congressional responses to Snowdens
leaks. I think the public is extremely concerned about the metadata that is being collected, said Rep. Steve Cohen,
Though some lawmakers have been sounding alarm bells about the court for a few years,

D-Tenn., who has put forward a proposal to reform the secret court. I think because of that massive concern, that because
the Snowden situation has maintained itself in the news, questions about the court have not been as front-burner as
they are now, Cohen said. Civil liberties advocates also feel that the FISA court is where they are most likely to win
reforms, particularly when it comes to increasing transparency. " In

terms of issues that have

bipartisan support and are more likely than others to go forward, I
would agree that this is one of those issues, said Sharon Bradford Franklin, a senior

counsel at the Constitution Project, a nonpartisan legal research and advocacy group. In response to abuses of the
governments spying powers, Congress created the FISC in the 1978 Foreign Intelligence Surveillance Act to approve
warrant applications for surveillance activities related to national security. For years, the court appeared to function just as
Congress had intended, even though the process is one-sided: the government seeks approval for an operation, and there
is no pushback from a counterparty to argue that the operation is overreaching. But in light of the recently leaked
documents detailing the vast scope of the National Security Agencys surveillance programs, members of Congress are
beginning to question whether the secret court is acting as an effective check on the governments spying operations. In
fact, recent revelations show that the scope and functions of the court have vastly expanded in recent years. Perhaps the
greatest change at the FISC is that judges are no longer simply reviewing warrant applications for individual surveillance
operations. Instead, FISA court judges are reviewing and approving what is called programmatic surveillance, the
procedures the government intends to use to conduct broad surveillance operations over a significant period of time. This
change was the result of the 2008 FISA Amendments Act (FAA), which under Section 702 allowed the government to
perform large-scale operations that needed to be authorized only on an annual basis. Now that the judges are approving
surveillance on a much greater scale, civil liberties advocates feel that the one-sided process at the court is insufficient.
Last week, retired District Court Judge James Robertson, who served on the FISC for three years before resigning in protest
over the Bush administrations warrantless wiretap program in 2005, said that the court needs an adversarial process to
evaluate programmatic surveillance. Robertson made his comments at a public workshop of the Privacy and Civil Liberties
Oversight Board (PCLOB), a government agency created to advise on civil liberties concerns. A judge needs to hear both
sides of a case before deciding," he said. "It's quite common -- in fact it's the norm -- to read one side's brief or hear one

side's argument and think, hmm, that sounds right, until we read the other side." Robertsons proposal made headlines
and will be a central piece of legislation forthcoming from Sen. Richard Blumenthal, D-Conn., to reform the court. His bill
will include a special advocate with the power and responsibility to ensure that privacy rights are considered in FISA
court opinions, and an opportunity for civil society organizations to weigh in before the court issues a ruling that
substantially alters the balance between liberty and security in federal policy, Blumenthal wrote in a Politico op-ed
Monday. Another proposal to change the structure of the court comes from Rep. Steve Cohen, D-Tenn., whose bill would
change the way judges are appointed, a reform also mentioned by Blumenthal. Currently, the 11 FISA court judges are
appointed to seven-year terms by the chief justice of the Supreme Court -- a system that has resulted in judges appointed
to the federal bench by Republican administrations now making up 10 of the 11 members. Cohens bill would give the
chief justice three appointments, with the remaining eight divided among Democrats and Republicans in the House and
Senate in order to create a more ideologically diverse court. Cohen, who is a member of the House Judiciary Committee,

Most of the
reforms coming from Congress, including Blumenthals and Cohens proposals, take on
the issue of transparency, which civil liberties advocates believe is a major concern, by seeking to
declassify at least some of what goes on at the FISA court. A bipartisan bill from Democratic Sen. Jeff Merkley
of Oregon and Republican Sen. Mike Lee of Utah takes on the issue of secret law, a reference
said he intends to discuss his proposal at a FISA oversight hearing Wednesday morning.

to the fact that the FISC is reportedly issuing opinions that create a legal framework for the governments surveillance
programs and are not public. The result is that while the statutes passed by Congress are available to the public, how
those statutes have been interpreted and used remains secret. According to a New York Times report, the FISC has
interpreted acts of Congress to give the NSA broad new authorities in lengthy opinions that are hidden from the public. It
is unclear when the court began to issue these long opinions, but when Robertson was on the court, he said he was
unaware that any such opinions were being written. This business about there being a whole body of long opinions that
have been written, that surprised me, Robertson said at the PCLOB workshop. I didnt know about them when I was on
the court. Robertson declined to speculate on why the court began to issue longer opinions, but it does seem clear that
this is a more recent development. Cohens proposal would require 60 percent of the 11 judges to agree in order to issue
opinions when the entire court is considering a case. To shed some light on this secret body of law, Merkley and Lees bill
would require the attorney general to declassify significant FISC opinions that contain substantive legal interpretations,

The bill has several cosponsors in the Senate, including [Democrat] Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee.
with exceptions for opinions that contain sensitive national security information.

Reps. [Democrat] Adam Schiff, D-Calif., and [Republican] Todd Rokita, R-Ind., have introduced a companion bill in the
House. A second transparency proposal comes from Michigan Rep. John Conyers, the top Democrat on the House Judiciary
Committee, and Michigan Republican Rep. Justin Amash, a sophomore congressman with libertarian leanings. In addition
to reining in the collection of data on American citizens, the bill would require that FISA court opinions be shared with
Congress and that summaries of the opinions be made public. In the wake of Snowdens leaks, many members of

The 41 cosponsors of the bill, introduced last month, run the gamut from
progressive Democrats to tea party Republicans.
Congress complained that they had not been aware of the scope of the NSAs surveillance programs.

Plan has bipartisan support

Barry 13 (Kyle C., AFJ Legislative Counsel and Director of Justice Programs
at the Alliance for Justice, Presidents Surveillance Review Group supports
key reforms to the Foreign Intelligence Surveillance Court, 12/24/13,
Accessed 6/24/15, http://www.afj.org/blog/presidents-surveillance-reviewgroup-supports-key-reforms-to-the-foreign-intelligence-surveillancecourt)//SSN
The Review Group report is an important step toward a better functioning FISA Court, one that affords fair process and
better protects the privacy rights of all Americans. But many of the Review Groups recommendations are broad
suggestions that leave for Congress and the President the job of implementing practical solutions. Currently, there are two

bills pending in the House and Senate that would address the flaws in
FISA Court raised by AFJ, the Review Group, and others. The FISA Court Reform Act of 2013
would create the Office of the Special Advocate to argue on behalf of privacy
interests, and appeal decisions that favor the government. It would also mandate increased
transparency and disclosures of FISA Court opinions. The FISA Judge Selection
Reform Act would increase the number of FISA Court judges from 11 to 13, and spread the authority to select judges

Each of these bills has bipartisan

support, and Congress should act on them quickly when it returns to work in
among the chief judges for our federal courts of appeals.
January.

Politics Plan Popular

Plan popularnew libertarian coalition in congress will
push the plan and other civil liberty issues
Lemieux 6/8

[Scott Lemieux; Political Analyst for Time; "How Congress learned to stop
bowing to President Obama on national security"
http://theweek.com/articles/558953/how-congress-learned-stop-bowingpresident-obama-national-security; June 8, 2015; JW]
For a brief period of time last week, the post-9/11 National Security Agency
telephone surveillance program was no longer fully in force. In an all
too rare case of Senate procedures actually protecting civil liberties,
Sen. Rand Paul won a battle with Majority Leader (and fellow Kentuckian)
Mitch McConnell in preventing the relevant sections of the USA
Patriot Act from being re-authorized. Paul's "victory" was temporary, and
ultimately resulted in only modest changes to the surveillance state ,
in the form of the USA Freedom Act. But the new restrictions on the N.S.A.'s
surveillance program can be a basis for cautious optimism going
forward, not only on the topic of surveillance but on other issues related to civil liberties and national security . It
appears Congress has finally recovered some of its clout. The machinations in
the Senate were an outgrowth of the political firestorm created by Edward Snowden, who revealed the N.S.A's secret

A majority of the American public, which tends to be

highly supportive of antiterrorism measures, opposes the collection
of metadata revealed by Snowden. Whatever one thinks of
Snowden's means, his whistleblowing has had a significant efect on
American political culture, creating more skepticism about the NSA's
antiterrorism eforts among both political elites and ordinary people .
surveillance program.

As a result, Congress finally acted to restrict the NSA's powers. The USA Freedom Act, signed into law by President
Obama, contains two significant reforms. First of all, the NSA will not be permitted to collect bulk telephone and internet
records. And second, at least some decisions of the FISA court that oversees NSA surveillance will be made transparent to
the public, rather than be classified. It is important not to overstate the significance of these changes. W hile

the
NSA will not be able to store data in bulk, private telecommunication
companies will, and the government will be able to access that data
with an order from the FISA court, which has generally been
extremely deferential to government requests. And while it's good that the process
will become more transparent, it's hard to imagine that making such information available will have a transformative
effect. The new law is an improvement over the status quo ante, but not a major one. Does the passage of the legislation
at least signal the arrival of a new civil liberties hero in the Republican Party, who also happens to be running for

Paul's procedural obstructions were more about bringing

attention to himself than getting a better bill. After all, McConnell brought up the USA
president? Not really.

Freedom Act for a vote that same day it almost certainly could have passed had Paul supported it. Indeed, if not for Paul
the bill could have passed the Senate last November the cloture vote fell two votes short, and Paul was one of those
votes. Even though Paul was theoretically opposed to the bill because he (correctly) believed that it didn't go far enough,
his obstructionism did not actually cause Congress to pass a better statute. As Russell Berman observes in The Atlantic,
Paul is, in a sense, as much a political loser in this as McConnell.

The new restrictions on the

NSA aren't about Rand Paul per se. But they do suggest the
existence of a new civil libertarian coalition in Congress, consisting
of most of the Democratic caucus and a handful of Republicans.
This group of legislators might be able to make modest headway
not only in pruning the surveillance state, but on other important

issues, such as mass incarceration . Supporters of NSA reform

should consider whether bipartisan reform is possible on other civil
liberties issues as well. In addition to the policy changes, then, the USA Freedom Act
is also politically significant. The fact that a Senate supermajority
was able to pass a bill over the defiance of the Senate majority
leader suggests that the days when Congress gave maximal
deference to the executive branch might finally be over. (Congress, of course,
has shown little deference to the president when it comes to him trying do more to protect civil liberties, such as his
attempt to stop imprisoning people at Guantanamo Bay.)

As we get further away from 9/11,

hopefully a majority in Congress will finally begin to recognize that
we do not need to diminish the civil liberties of American citizens to
efectively fight terrorism.

Plan popularkey supporters have vowed to take up FISA

reforms
HRW 5/19 [Human Rights Watch; International Organization to Uphold
Human Rights; Strengthen the USA Freedom Act;
http://www.hrw.org/news/2015/05/19/strengthen-usa-freedom-act; May 19,
2015, JW]
Human Rights Watch is an independent, international organization that works as part of a
vibrant movement to uphold human dignity and advance the cause of human rights for all.
Strengthen the USA Freedom Act - May 19, 2015 http://www.hrw.org/news/2015/05/19/strengthen-usa-freedom-act
As the Senate considers the USA Freedom Act this week, policymakers should strengthen it by limiting large-scale collection of records and

The Senate should also take care not to

weaken the bill, and should reject any amendments that would require companies to
reinforcing transparency and carrying court reforms further.

retain personal data for longer than is necessary for business purposes. It has been two years since the National Security Agency (NSA)
whistleblower Edward Snowden unleashed a steady stream of documents that exposed the intention by the United States and the United
Kingdom to collect it all in the digital age. These revelations demonstrate how unchecked surveillance can metastasize and undermine
democratic institutions if intelligence agencies are allowed to operate in the shadows, without robust legal limits and oversight.

May 13 , the

US

On

House of Representatives approved the USA Freedom Act of 2015 by a

substantial margin. The bill represents the latest attempt by Congress to rein in one of the surveillance programs Snowden disclosedthe
NSAs domestic bulk phone metadata collection under Section 215 of the USA Patriot Act. The House vote followed a major rebuke to the US
government by the US Court of Appeals for the Second Circuit, which ruled on May 7 that the NSAs potentially nationwide dragnet collection
of phone records under Section 215 was unlawful. Section 215 is set to expire on June 1 unless Congress acts to extend it or to preserve
specific powers authorized under the provision, which go beyond collection of phone records. Surveillance reforms are long overdue and can
be accomplished while protecting US citizens from serious security threats. Congress and the Obama administration should end all mass
surveillance programs, which unnecessarily and disproportionately intrude on the privacy of hundreds of millions of people who are not linked
to wrongdoing. But reforming US laws and reversing an increasingly global tide of mass surveillance will not be easy. Many of the programs
Snowden revealed are already deeply entrenched, with billions of dollars of infrastructure, contracts, and personnel invested. Technological
capacity to vacuum up the worlds communications has outpaced existing legal frameworks meant to protect privacy. The Second Circuit
opinion represents an improvement over current law because it establishes that domestic bulk collection of phone metadata under Section
215 of the Patriot Act cannot continue. Section 215 allows the government to collect business records, including phone records, that are
relevant to an authorized investigation. The court ruled that the notion of relevance could not be stretched to allow intelligence agencies
to gather all phone records in the US. However, the opinion could be overturned and two other appeals courts are also considering the legality
of the NSAs bulk phone records program. The opinion also does not address US surveillance of people not in the US. Nor does it question the
underlying assumption that the US owes no privacy obligations to people outside its territory, which makes no sense in the digital age and is
inconsistent with human rights law requirements. Even if the Second Circuit opinion remains good law, congressional action will be necessary
to address surveillance programs other than Section 215both domestic and those affecting people outside the USand to create more
robust institutional safeguards to prevent future abuses. The courts cannot bring about reforms to increase oversight and improve institutional

Human Rights Watch has supported the USA Freedom Act

because it is a modest, if incomplete, first step down the long road
to reining in the NSA excesses. Beyond ending bulk records
collection, the bill would begin to reform the secret Foreign
Intelligence Surveillance Act (FISA) Court, which oversees NSA
surveillance, and would introduce new transparency measures to
improve oversight. In passing the bill, the House of Representatives
also clarified that it intends the bill to be consistent with the Second
Circuits ruling, so as to not weaken its findings. The bill is no
panacea and, as detailed below, would not ensure comprehensive reform. It still
oversight on their own.

leaves open the possibility of large-scale data collection practices in the US under the Patriot Act. It does not constrain surveillance under

Section 702 of the FISA Amendments Act nor Executive Order 12333, the primary legal authorities the government has used to justify mass
surveillance of people outside US borders. And the bill does not address many modern surveillance capabilities, from mass cable tapping to
use of malware, intercepting all mobile calls in a country, and compromising the security of mobile SIM cards and other equipment and

Nonetheless, passing a strong USA Freedom Act would be a long-overdue

step in the right direction. It would show that Congress is willing and able
to act to protect privacy and impose oversight over intelligence agencies in an age when
technology makes ubiquitous surveillance possible. Passing this bill would also help shift the
services.

debate in the US and globally and would distance the United States
from other countries that seek to make mass surveillance the norm.
On a global level, other governments may already be emulating the
NSAs approach, fueling an environment of impunity for mass violations of privacy. In the
last year, France, Turkey, Russia, and other countries have passed
legislation to facilitate or expand large-scale surveillance. If the USA
Freedom Act passes, it would be the first time Congress has
affirmatively restrained NSA activities since the attacks of September 11 . Key
supporters of the bill have vowed to take up reforms to other laws
next, including Section 702 of the FISA Amendments Act.

FISA reform popular civil libertarians, privacy

organizations, and lobbies all push the plantheir
evidence doesnt assume new political coalitions
Barfield 14 [Claude Barfield; resident scholar at AEI who researches international trade policy, the
World Trade Organization (WTO), intellectual property, and science and technology policy, former
consultant to the Office of the US Trade Representative; NSA surveillance reform: A tilt toward privacy
over security; http://www.techpolicydaily.com/technology/nsa-surveillance-reform-tilt-toward-privacysecurity/; August 6, 2014; JW]
Several months ago, I predicted that in the debate over proposed NSA surveillance reform, NSAs security defenders

Traditionally,
security trumps privacy. But at this point in time, the tide seems to
would ultimately hold the line against significant changes in the current mode of operation.

be going the other way . Last week, the chairman of the Senate Judiciary Committee, Sen. Patrick
Leahy (D-VT), introduced a version of the USA Freedom Act that is far
more restrictive on intelligence agencies operations than any other competing bill.
Surprisingly, given the deep political divisions, Leahys bill seems to
have swept the field. As Jodie Liu and Benjamin Wittes write in Lawfare, Its the bill. It represents a
compromise between the intelligence community, the administration more generally, civil liberties groups, industry, and a
fairly wide range of senators. And it will be the legislation that moves forward with the sometimes nose-holding support of
most of the major parties. What follows is a brief review of how we got here and the future prospects for NSA

One can start with President Obamas much heralded but

ultimately noncommittal speech on NSA and FISA court reforms in
January. In his leading from behind mode, the president laid down
general principles but left it to Congress and various interest groups to fill in the
specifics. Then NSA Director General Keith Alexander had already publicly stated his opposition to ending the
surveillance reform.

governments control of the metadata program. His skepticism regarding this and other elements of the administrations
proposed FISA reforms was echoed publicly by the chairmen and ranking members of both the Senate and House
Intelligence Committees.

On the other side, numerous privacy and civil

liberties organizations

the ACLU, Electronic Frontier Foundation, Center for Democracy and

immediately clamored for legally binding, tighter

restrictions on NSA/CIA/FBI surveillance activities. They were joined by a Whos Who of highTechnology, et. al.

tech companies, including Microsoft, Google, Amazon, Yahoo, Apple, Verizon, Facebook, Twitter, and LinkedIn. Jockeying
among congressional committees provides one central focus for the narrative over the past six months.

Jurisdiction over NSA/FISA reform is split between the Intelligence

and Judiciary Committees in both houses, with primary power

traditionally residing in the Intelligence Committees. Pursuant to the
presidents proposals, the House Intelligence Committee began
working on a bill to partially revamp intelligence community and
FISA Court procedures. But in a surprising turn of events, a
competing bill from the House Judiciary Committee developed strong
bipartisan support and 163 sponsors. At that point, House Intelligence Committee leadership
capitulated and entered into negotiations with the administration and with Rep. Sensenbrenner and others on the Judiciary
Committee. This in turn led to a Judiciary Committee version of the USA Freedom Act that was revised in late negotiations
to assuage concerns among both the administration and Intelligence committee members. This bill passed the House on

Giving evidence of how far the pendulum has swung in

recent months, however, both civil libertarian groups and high-tech
companies came down hard against the House bill as passed, and demanded further
May 21, 303-121.

restrictions and changes in current policy and practice. This set the
stage for Senate Judiciary Chairman Leahy to seize the lead and rally a broad political
coalition

behind his own revised bill.

AT CLPO CP

AT CLPO CP Fails/Not Adversarial

No chance the counterplan acts adverse to the
government the CLPO is an internal NSA office it is new
understafed it already displays deference to progovernment surveillance policies
Schlanger, 15

Margo Schlanger is a Professor of Law at the University of Michigan Law

School, and the founder and director of the Civil Rights Litigation
Clearinghouse. Intelligence Legalism and the National Security Agency's Civil
Liberties Gap, (http://harvardnsj.org/wpcontent/uploads/2015/02/Schlanger.pdf), mm
the President announced that the
NSA would put in place a full-time civil liberties and privacy
officer.116 This particular bureaucratic structure is one that has developed over the past decade,
Within a few weeks of the Snowden disclosures,

during which several IC components and agencies that include such componentsODNI, CIA, DoD, DHS,
DOJ, and othershave added Privacy and Civil Liberties Offices.117 Apparently the introduction of a civil
liberties and privacy officer was not forced upon the NSA; officials there sponsored and embraced the
idea. 118 The job announcement went up in September 2013, 119 and the new NSA Civil Liberties and
Privacy Officer, Rebecca Richards, began work four months later.120 The role was clearly designed to be
a policy jobhelping to develop the rules, not merely promoting compliance with them. The job posting
included the following specific duties: b. As the senior architect for CL/P [civil liberties/privacy], ensure
that protections are addressed as part of all internal strategic decision processes related to the agencys
operations, key relationships, tradecraft, technologies, resources or policies. . . . e. Manage CL/P policy,
and advise on related assessment and compliance programs. . . . h. Provide CL/P reviews and
assessments as required of the NSA support to the U.S. Cyber Command.121 As one might expect

given the novelty of the position at the NSA, Richards is still

working out her offices role and procedures . She reports that the office,
which currently has six other employees, has three main functions: providing advice to
NSAs Director, developing civil liberties and privacy protections, and enhancing public transparency.

Her priority, she says, is to build in evaluation of civil liberties and

privacy interests as part of the NSAs mission processes. The compliance
office will continue to manage compliance, and the Office of the General Counsel, legal analysis. But the
new Civil Liberties and Privacy Office should be, she says, the focal point at NSA for assessing missionrelated civil liberties and privacy risks, helping with mitigation strategies, and communicating as
appropriate with the public. The office brings a different perspective into NSA conversations in
furtherance of the goal of reduc[ing] the impact of surveillance on ordinary people. The job is both
procedural and substantive: My job is to bring together mission folks, and others to ask, systematically,
what are we doing and why, and whether the privacy and civil liberties impacts are worth the operational
gain. Whats new about her office, she says, is that we are taking a more comprehensive civil liberties
and privacy risk assessment process that allows decision-makers to consider a broader set of civil
liberties and privacy values beyond the Constitutional considerations, the laws and judicial
interpretation. In addition, Richards does substantial outreach, spending quite a bit of [her] time
engaging with the various privacy groups to better understand their concerns and share that within
NSA.122 Richards points to new presidential direction as part of the impetus for change that underlies
her new role. She anticipates that sometimes the result will be a decision by the NSA not to pursue
certain mission activities. Other times the advice may not be to avoid an activity, but rather

So far, the visible output

of the new office has been two unclassified papers, one submitted to the
protections that mitigate civil liberties and privacy impacts.123

Privacy and Civil Liberties Oversight Board (PCLOB), summarizing surveillance under FISA Section 702 and
the various policies that apply to it,124 and one about non-bulk collection under 12,333.125

Richards received some criticism from observers who found the

papers too positive; the surveillance go-to blog Emptywheel described the
first one as propaganda that doesnt so much read as an

independent statement on the privacy assessment of the woman at the NSA mandated with
overseeing it, but rather a highly scripted press release .126 Others have
disagreed. For example, one commentator called the 702 paper remarkable for its transparency. 127
Richards defends these types of documents as appropriate steps towards transparency, pointing out that
the NSA has never produced such reports in the past. She emphasizes that she does not conceptualize
public criticism of the NSA as part of her new offices role. The idea, rather, is to advocate internally for
and implement civil liberties and privacy protections, and then advise the public what those protections
are. The IGs office, the PCLOB, and other entities can deliver public criticism.128

Lawyers at the CLPO wont fight for privacy rights that

ensures the counterplan gets ignored and cant solve the
af
Schlanger, 15
Margo Schlanger is a Professor of Law at the University of Michigan Law
School, and the founder and director of the Civil Rights Litigation
Clearinghouse. Intelligence Legalism and the National Security Agency's Civil
Liberties Gap, (http://harvardnsj.org/wpcontent/uploads/2015/02/Schlanger.pdf), mm
Any internal office whose mission is to constrain its agency runs the
risk of losing influence and being ignored , whether by being excluded from
working groups and processes or by having its attempted contributions rebuffed. This dynamic
might be particularly strong at the NSA, because internal actors have up until now

identified compliance problems as the threat to privacy/civil liberties. If the NSAs new civil liberties office
is going to add anything distinctive, it will need to embrace interests rather than rights, policy rather
than compliance. But as discussed above, the attraction of the compliance frame is the legitimation it
provides. When the new office takes on policy tasks, lacking that legitimation, it will be especially
bureaucratically vulnerable to being frozen out. Moreover, many of the tools usually available to an Office
of Goodness to augment its own influence will be unavailable because of the secrecy that surrounds NSA
activities. In many circumstances an Office of Goodness asked to publicly ratify particular agency choices
(activities, approaches, rules) can pressure agency leadership into making, or shading, certain choices in

the NSA civil liberties office will often be

unable to provide publicly-visible ratification , because the programs in question
are secret. Accordingly, office leadership will lack that pressure point. Offices of
exchange for that ratification. But

Goodness can often cultivate external advocacy organization support, but the NSA civil liberties offices
access to this tool is similarly undermined by secrecy. Offices of Goodness can gain influence by
generating documents that then become public, whether because they are officially released, leaked, or
turned over because of a Freedom of Information Act or litigation discovery request. But in the classified
environment these avenues of communication, too, are extremely narrow, which means that agency
flouting of office views is less costly than it would otherwise be. 364 All three of the strategies just
mentioned rely on a public constituency to bolster an Office of Goodnesss influencebecause, as James
Q. Wilson summarizes, for federal agencies, [t]he principal source of power is a constituency.365 The
NSA civil liberties office will have a public constituency, but secrecy cannot but undermine how much help
that constituency can provide. So in order to remain empowered, the NSA civil liberties office will need to
cultivate alternative allies, with security clearancesat ODNI, DOJ, at the White House, and in Congress. I
imagine this too will be a challenge. Beginning with ODNI and DOJ, the most obvious potential sources of
support will be from those agencies Civil Liberties and Privacy Officers. But neither is able to carry much
water. The ODNI civil liberties office, as already described, has chosen to function more as a compliance-

At DOJ, the Civil Liberties and Privacy Office lacks

influence over foreign intelligence matters, which are allocated
instead to the National Security Division. Indeed, no list of relevant offices or
type than a policy office.

proposal of potential actors to increase oversight of which Im aware have even mentioned this office.

And the National Security Division lawyers are so committed to

intelligence legalism, so firmly embedded in a compliance system,
that they are unlikely to be very sympathetic to policy arguments
that the government could but should not undertake some step or
366

activity. Besides, a policy orientation would reduce NSDs influence. Congress is also a somewhat
hopeful prospect. But an NSA civil liberties office is unlikely to lean far
enough to the left to hold the support of the most vocal congressional critics of the NSA. And
yet the most conservative members of the Intelligence Committees are not natural allies either. In
addition, all the obstacles to sustained congressional attention to and oversight of intelligence, discussed
above, must obstruct fine-gauge interventions that might be useful to the offices influence. In short, the
new NSA civil liberties office will be hard pressed to cement the alliances on which, like every Office of
Goodness, it will depend for influence. (I discuss the possibility of a White House alliance in the next
section.)

AT CLPO CP AT Solvency (Justice Department

Fails)
A special advocate is distinct and superior to internal
Justice Department checks only the special advocate can
vigorously oppose surveillance requests
Elizabeth Goitein and Faiza Patel, 4/8/2015, Brennan Center for Justice,
Fixing the FISA Court by Fixing FISA: A Response to Carrie Cordero,
https://www.brennancenter.org/blog/fixing-fisa-court-fixing-fisa-responsecarrie-cordero, mm

We would be creating an entire new bureaucracy duplicating the legal and oversight functions that the
Justice Department, under the leadership of the Attorney General, and the Court, comprised of

were
not proposing the establishment of an office to conduct legal
oversight. Were proposing the establishment of a Special Advocate
to advocate against the governments position in court . Were fairly
certain that no one in the Justice Department or the FISA Court is
charged with vigorously opposing the arguments presented by
Justice Department attorneys in FISA Court proceedings, so
duplication is not an issue here.
independent federal district court judges, perform. [Quote from Carie Cordero] To be clear,

AT CLPO CP AT Solvency (External Advocate

Key)
External advocates are key to checking national security
litigation the Guantanamo cases prove
Steve Vladeck, 8/12/2013, [Vladeck is a prof. of law at American
Univeristy Washington College of Law), Lawfare, defriending FISA: a
response to carrie cordero, http://www.lawfareblog.com/defriending-fisaresponse-carrie-cordero, mm
On the potential role of security-cleared private counsel, Carrie
[Cordero] fears that "[t]he advocate will eventually be just another
participant in closed-door government deliberations. For these reasons, it is
unclear how an additional advocate will be all that difference from the current trifecta of executive,
legislative, and Congressional branch oversight." [N.B.: I assume she meant to write "judicial" in the last
clause.] But we

need look no further than the Guantnamo habeas

litigation for evidence of the very important--and independent--role
that security-cleared private counsel have played, and can play, in
checking the government in largely secret, national security-based
litigation. Indeed, for all of the (many) criticisms of the Guantnamo
habeas litigation, the concern that the habeas lawyers have been
"captured" by the government just isn't one of them . To be sure,
these are outside, private counsel--and not members of an existing
government agency. But that's why many of the proposals for a
"special advocate" before the FISA Court, including my own, have focused
on creating a pool of such private counsel to handle these cases .

The counterplan functionally duplicates the existing

Amicus panel this doesnt solve the af because it isnt
an external agent, isnt adverse to the government, and
cant appeal decisions to higher courts
Kyle Barry, 5/27/2014, Alliance for Justice, house passes surveillance
reform bill without essential procedural safeguard,
http://www.afj.org/blog/house-passes-surveillance-reform-bill-withoutessential-procedural-safeguard#more-5194, mm
the USA Freedom Act originally proposed the Office of
the Special Advocate. The special advocate could ask to participate
in any proceeding before the FISA Court, and would vigorously
To address this problem,

advocate . . . in support of legal interpretations that protect

individual privacy and civil liberties. The special advocate could
also ask for the review of any FISA Court decision, and would have
standing to appeal decisions to both the FISA Review Court and ,
subsequently, the United States Supreme Court. This proposal would ensure
not just that the FISA Court would hear from lawyers outside the

executive branch , but that, with respect to each individual application, the court
would hear the best arguments on the side of privacy and civil
liberties. But the compromise version omits the special advocate, and
replaces it with an Amicus Curiae panel. The panel would consist of five lawyers
eligible to serve as amicus (or friend of the court) in FISA Court proceedings, and the court would appoint
a panel member to assist . . . in the consideration of any application for an order or review that, in the
opinion of the court, presents a novel or significant interpretation of the law[.] Even in such cases,
however, the court could avoid appointing amicus with a written finding that such appointment is not

This half-hearted attempt to solve the ex parte problem is

inadequate for three reasons. First, it leaves the FISA Court with almost
complete discretion to ignore the amicus panel. While the bills text creates a
appropriate.

rebuttable presumption in favor of appointing amicus in difficult cases, it is a presumption too easily
sidestepped. The questions of whether the presumption applies in the first place, and, if it does, whether it
is rebutted, are left to the unreviewable discretion of the court. Should the court wish to proceed without
further input, it need only find that an application does not involve a novel or significant question of law,
or that, for any other reason, appointment is not appropriate. This deference is particularly troubling
because the FISA Court already has the authority to appoint amicus curiae in appropriate cases, so this

this proposal
provides no additional mechanism to appeal FISA Court decisions.
reform is in reality little more than the status quo in different language. Second,

Once the court renders its decision the role of amicus is over, and the amicus is not empowered to ask for
review or appeal.

This is no trivial matter because only the government appears before the

FISA Court, and because the government almost never loses, appeals of FISA Court decisions are virtually

most importantly, the amicus is not adverse to

the government, and is not charged with advocating for those whose
privacy interests might be at stake in a FISA Court proceeding . Thus,
while an amicus may provide an additional voice, it is a neutral one, and will not necessarily
provide the sort of competing viewpoint on which the adversarial
nonexistent. Third, and perhaps

process depends .

AT CLPO CP - AT Delays
A privacy advocate would not cause delays emergency
provisions check serious national security risks
Elizabeth Goitein and Faiza Patel, 4/8/2015, Brennan Center for Justice,
Fixing the FISA Court by Fixing FISA: A Response to Carrie Cordero,
https://www.brennancenter.org/blog/fixing-fisa-court-fixing-fisa-responsecarrie-cordero, mm

We assume Carrie is referring to the delay that litigation might involve. Certainly, if programmatic
surveillance continues, there is nothing incongruous about conducting an adversarial proceeding on a

Whatever delay
may occur is plainly justified under those circumstances, and it is far more incongruous to
proposal to collect millions of Americans information over a period of years.

determine the legality of such a sweeping program without an adversary present. If programmatic

there is still no reason to fear that timesensitive investigations will be jeopardized by the participation of a
Special Advocate. There is already a generous provision for
emergencies in FISA, which allows the government to begin
surveillance before even submitting an application to the FISA Court
and to continue that surveillance pending the courts ruling . The
Justice Department need only certify that theres an emergency
situation and that the surveillance meets the necessary legal
criteria. This provision would not be disturbed under our proposal .
surveillance ends (as we recommend),

AT Topicality

AT Topicality Curtail = Restrict/Limit

A privacy advocate would curtail domestic surveillance
Accalia Elliott, 8/22/2013, Huffington Post, NSA collected thousands of US
internet communications with no terror connections, http://hpub.org/nsacollected-thousands-of-us-internet-communications-with-no-terrorconnection/, mm
new disclosures depict a FISA court, lauded by President Obama and other
that allowed NSA
programs to continue without full understanding of their collection
capabilities. Critics have called the FISA court a rubber stamp for
NSA spying. For example, in 2012, the court did not deny any of the 1,789 applications made by the

The

government officials as proof the NSA operates with careful checks in place,

US government for authority to conduct electronic surveillance and physical searches for foreign
intelligence purposes, according to official documents. Lawmakers responded to the released documents
with requests to the White House for further clarification and oversight of NSA activities. Senator Bob
Corker (R-Tenn.) asked for a briefing for the full Senate from NSA director Keith Alexander to discuss
surveillance procedures. This briefing should discuss the totality of NSA operations, including but not
limited to those that have already been discussed publicly, Corker wrote to the White House. Senator

A special
advocate could force the FISA court to impose strict limits on
Richard Blumenthal (D-Conn.) stressed the need for more oversight of NSA activities.

government surveillance, to ask tough questions of Executive Branch officials, and to

ensure that the government cannot engage in unconstitutional
activity for years before the court finds out and shuts it down ,
Blumenthal said.

Misc

K Cards PRISM = Panopticon

PRISM is the a quintessential example of the Panopticon.
Joanna Kulesza December 5, 2014 Groningen Journal of International Law,
vol 2(2): Privacy in International Law http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2599274## TF
Sixth of June 2013 was the day that proved conspiracy theorists right .
Simultaneous publications by the New York Times, The Guardian and Der Spiegel on secret
US surveillance programs disclosed multiannual and versatile electronic
espionage of domestic and foreign individuals by the NSA . 1 The publications were
based on top secret information, revealed to the journals by an ex-NSA contractor, Edward Snowden
and proved the validity of long-lasting suspicions of US running its unique
Panopticon,2 operating under the code name PRISM, an abbreviation originally used by the NSA for its

Planning Tool for Resource Integration, Synchronization, and Management. 3 It describes the use of three
key surveillance programs, all serving the same purpose of collecting and automatically synthesising
information about users of telecommunication services, including those obtained from Internet service
providers. While UPSTREAM was the program used for collecting data from public and private networks
through international fiber-optic connections and Internet Exchange Points, the XKeyscore was an analytic
system for buffering and retaining data from hundreds of websites and servers around the world while
combining it with data from other sources, such as diplomatic and intelligence resources at USs disposal.4

Its key function was to index such information using IP or e-mail addresses,
phone numbers, cookies, usernames, search terms or location data as well as
metadata retained by websites.5 Finally, BULLRUN was used to break encryption safeguarding
data stored on resources reached by the two other programs through, for example, backdoors installed in
software and hardware delivered by companies operating under NSA contracts.