Nsa affirmative

Answers to Circumvention

(___)

(__) Restoring strong regulatory language is sufficient to end circumvention.

Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, 2014

(Jennifer, “USA Freedom Act: Oh, Well. Whatever. Nevermind.” – Just Security - May 21, 2014 http://justsecurity.org/10675/usa-freedom-act-oh-well-whatever-nevermind/

The initially promising USA Freedom Act could have ended the previously secret government practices of collecting Americans’ calling records, internet transactional information and who knows what else in bulk. Today’s version would allow broad collection to continue under the guise of reform. The initial version of the bill would have reinforced existing statutory language requiring a showing of “relevance to an authorized investigation” before agents can get an order requiring production of business records, dialing and routing information, and other data, and would have added other limits to ensure massive collection would stop. It also would have implemented mild reforms to content surveillance under section 702 of the FISA Amendments Act, stopping “back door” searches for Americans’ communications. Last week, a Managers’ Amendment watered those provisions down, substituting new language that would allow agents to use a “specific selection term” as the “basis for production”. The bill defined “specific selection term” as something that “uniquely describe[s] a person, entity, or account.” Given the intelligence community’s success at getting FISA judges to reinterpret obvious language—e.g. “relevance”—in counter-intuitive ways, people wondered what this new language might mean. There’s deep public mistrust for the intelligence community and for the FISA court, which conspired to allow bulk collection under spurious legal justifications for years. Worse, there’s deep public mistrust for the law itself, since the intelligence community’s “nuanced” definitions of normal words have made the public realize that they do not understand the meaning of words like “relevance”, “collection”, “bulk”, or “target”.

Answers to Circumvention

(___)

(__) Non-compliance is unlikely.

Deeks, Associate Professor, University of Virginia Law School, 2015
(Ashley.. "An International Legal Framework for Surveillance." Virginia Journal of International Law 55 (2015): 2014-53)

There is a danger is that states will adopt these norms publicly but continue to conduct foreign surveillance much as they do today. Because it may be relatively difficult to ascertain whether states actually are complying with some of the six norms, there is ample room for a hypocritical embrace of the norms without a corresponding change in behavior. Two factors potentially mitigate this concern. The first is that many Western (and some non-Western) states refuse to adopt international norms publicly unless they genuinely plan to comply with them.288 In this view, formally accepting international rules without the intention or ability to comply with them serves to weaken, not strengthen, the international regime. Where these states view the international rules at issue as beneficial, they view their ability to comply with those rules as a sine qua non for formally adopting them in the first place. The second mitigating factor is that public revelations about surveillance programs are on the rise. As a result, non-compliance with stated norms is more likely to come to light. In democracies, non-compliance with publicly accepted norms is more costly to states, whose publics are accustomed to holding their governments to the laws they have adopted. Citizens are more likely to call for compliance with domestic laws than international laws, yet most states have a contingent of elites who seek to hold their governments accountable for international legal compliance as well.

Answers to Circumvention

(__) The NSA has no interest in subverting the law, circumvention doesn’t make sense.

Ackerman, National Security editor for the The Guardian, 2015,
(Spencer, 6-1-2015, "Fears NSA will seek to undermine surveillance reform," Guardian, http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law)

Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that NSA lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for director of national intelligence, James Clapper, said during a public appearance last month that creating a banned bulk surveillance program was “not going to happen”.

“The whole notion that NSA is just evilly determined to read the law in a fashion contrary to its intent is bullshit, of the sort that the Guardian and the left – but I repeat myself – have fallen in love with. The interpretation of 215 that supported the bulk collection program was creative but not beyond reason, and it was upheld by many judges,” said the former NSA general counsel Stewart Baker, referring to Section 215 of the Patriot Act.

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

With one exception, the judges that upheld the interpretation sat on the non-adversarial Fisa court, a body that approves nearly all government surveillance requests and modifies about a quarter of them substantially. The exception was reversed by the second circuit court of appeals.

Baker, speaking before the Senate voted, predicted: “I don’t think anyone at NSA is going to invest in looking for ways to defy congressional intent if USA Freedom is adopted.”

(__) Noncompliance isn’t a reason not to do the plan — the real problems are the laws that authorize the surveillance.

Jaffer ACLU Deputy Legal Director and Director of ACLU Center for Democracy, 2013

(Jameel “"There Have Been Some Compliance Incidents": NSA Violates Surveillance Rules Multiple Times a Day,” ACLU Blog, August 16^th, https://www.aclu.org/blog/there-have-been-some-compliance-incidents-nsa-violates-surveillance-rules-multiple-times-day?redirect=blog/national-security/nsa-privacy-violations-even-more-frequent-we-imagined, Accessed 06-05-2015)

One final note: The NSA's noncompliance incidents are a big deal, but we shouldn't let them become a distraction. The far bigger problem is with the law itself, which gives the NSA almost unchecked authority to monitor Americans' international calls and emails. The problem arises, in other words, not just from the NSA's non-compliance with the law, but from its compliance with it.

Answers to Circumvention

(__) The NSA doesn’t try to circumvent.

McCutcheon, editor for Congressional Quarterly , 2013
(Chuck (2013, August 30). Government surveillance. CQ Researcher, 23, 717-740. Retrieved from http://library.cqpress.com/)

Deputy Attorney General James Cole noted that the FISA court approves only requests that meet the standard of a “reasonable, articulable suspicion” of potential terrorist activity. “Unless you get that step made, you cannot enter that database and make a query of any of this data,” he said . Footnote 33

Timothy Edgar, a former American Civil Liberties Union (ACLU) attorney who later worked for the director of National Intelligence as its first deputy for civil liberties, says he was surprised — and that Americans would be as well — by how cautious spy agencies are about using their surveillance powers.

When he was at the ACLU, “I thought that the government would take whatever power you had given them and always interpret it in the broadest possible way,” says Edgar, who now teaches national security and technology law at Brown University. But he said he came to view government officials as “conscientious” and realized they did not habitually interpret their powers as broadly as civil liberties groups fear.