Nsa negative

Topicality – Domestic Interpretation Good

(___)

(__) The distinction between domestic and foreign is the critical question in determining how to handle surveillance. Their blurring of this distinction means we don’t learn about the law.

Freiwald, Professor, University of San Francisco School of Law., 2008
Susan. "Electronic Surveillance at the Virtual Border." Mississippi Law Journal 78 (2008): 2009-15.

While the FISA scheme is a creature of Congress, it must conform to constitutional constraints.26 As Part II discusses, Fourth Amendment precedents require the judiciary to oversee executive branch surveillance of purely “domestic” surveillance.27 But the Fourth Amendment has much less, if anything, to say about executive branch conduct of purely “foreign” surveillance.28 One could defensibly arrange the scenarios along a spectrum from most “domestic,” and therefore protected by the Fourth Amendment, to most “foreign,” and therefore least protected.

Rather than viewing the Fourth Amendment as providing decreasing judicial oversight as the character of the electronic surveillance becomes increasingly foreign, however, one could instead view Fourth Amendment protection as being all or nothing. In other words, one could view the Fourth Amendment as providing strict regulation for purely domestic investigations and no regulation for purely foreign investigations because the latter are governed by executive branch discretion. Then one would view the rules for cases that fall in the middle as designed to determine whether to treat the investigation as domestic or foreign. Under this view, in cases that are neither clearly domestic nor clearly foreign, the judge’s role would be to review the executive’s decision to deprive the target of judicial oversight of the surveillance that the Fourth Amendment mandates. The executive makes such a determination when a target effectively acts in the interest of a foreign power; in such a case, the executive may be said to “exile” that target if she is a U.S. Person.29

In this analysis, the virtual border plays a key role. On this side of the virtual border, domestic targets enjoy extensive judicial review of executive branch surveillance, pursuant to the dictates of the Fourth Amendment.30 On the other side, foreign targets are subject to whatever electronic surveillance the executive branch chooses to conduct in the exercise of its foreign affair powers.31 Foreign targets have no right to complain about surveillance techniques in our courts, though they may of course raise their complaints in their own courts.32

Topicality – Clear Definition Good

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(__) Clear definition of domestic surveillance is critical to good policy making.

Yoo and Sulmasy, Associate Professor of Law, United States Coast Guard Academy and Professor of Law, University of California–Berkeley 2007,
(John and Glenn, “Counterintuitive: Intelligence Operations and International Law”. Michigan Journal of International Law, Vol. 28, 2007; UC Berkeley Public Law Research Paper No. 1030763. Available at SSRN: http://ssrn.com/abstract=1030763)

Domestically, so many components and issues comprise “intelligence” that it remains difficult to pin down a specific definition.22 Mark Lowenthal, an expert in intelligence gathering, has noted that “[v]irtually every book written on the subject of intelligence begins with a discussion of what the author believes ‘intelligence’ to mean, or at least how the he or she intends to use the term. This editorial fact tells us much about the field of intelligence.”23 Even those who have spent years in the field find the term vague.24 Any international convention on the peacetime conduct of intelligence collection would prove unsuccessful at the very least because of difficulties in defining exactly what it would seek to regulate. Defining intelligence and intelligence gathering often derives from such vague subject terms as counterintelligence, business intelligence, foreign intelligence, espionage, maritime intelligence, space-related intelligence, signals intelligence, and human intelligence. These subject terms themselves then need an established universal definition and further simplification in order to reduce the ambiguity associated with attempts to regulate the practice. Currently, the United States defines intelligence as a body of evidence and the conclusions drawn from it. It is often derived from information that is concealed or not intended to be available for use by the inquirer.”25 This vague and overly broad definitional statement reveals the problems with actually articulating what intelligence is and what it is not. Without a clear definition of the term (from the United States or any other state for that matter), we should not expect regulation of intelligence activities at the international level.

Topicality – NSA is Foreign Surveillance

(___)

(__) The NSA is a Foreign Intelligence agency.

De, General Counsel, National Security Agency, 2014,
(Rajesh , 10-16-2014, "The NSA and Accountability in an Era of Big Data," Journal Of National Security Law & Policy, http://search.proquest.com/docview/1547942293/D7CD0D4112B54FC9PQ/2?accountid=10422)

As noted earlier, NSA is a foreign intelligence agency. Executive Order 12333 defines foreign intelligence as "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists." This language largely mirrors that which Congress adopted in the National Security Act of 1947. FISA contains a more intricate definition of foreign intelligence information for the specific purposes of that statutory scheme, but all support the same overall conclusion - NSA's mission is neither open-ended, nor is it discretionary. NSA may only collect signals intelligence for a foreign purpose.

(__) Section 702 collects communications of non-Americans outside of the US.

Dickerson, Harvard Law student and former editor Harvard National Security Journal, 2015
(Julie, 2-17-2015, "Harvard National Security Journal – Meaningful Transparency: The Missing Numbers the NSA and FISC Should Reveal," Harvard National Security Journal, http://harvardnsj.org/2015/02/meaningful-transparency-the-missing-numbers-the-nsa-and-fisc-should-reveal/

Under § 702 of the USA-PATRIOT Act, the NSA uses information from U.S. electronic communication service providers to target non-Americans outside the United States for documented foreign intelligence purposes. The NSA collects more than 250 million internet communications under this power each year. While a large absolute number, it is unclear what percent of total internet communications these § 702 communications constitute. The NSA has revealed that the internet carries 1,826 Petabytes of information per day, the NSA touches 1.6% of that data in its foreign intelligence mission, and the NSA only selects 0.025% of that data for review. The net result is that NSA analysts look at a mere 0.00004% of the world’s traffic. These percentages of total data traffic, though indicative that the percent of § 702 communications collected is likely miniscule, do not map perfectly onto percentages of total communications.