The United States Congress should restrict the National Security Agency’s ability to collect “bulk data” without a warrant

Aff

Plan

The United States Congress should restrict the National Security Agency’s ability to collect “bulk data” without a warrant.

Inherency/Solvency

1AC Squo Doesn’t Solve/Aff Does

Expiration of Section 215 doesn’t solve

Edgar ’15 [Tim Edgar , visiting scholar at the Brown University’s Watson Institute for International Studies and has also taught at the Georgetown University Law Center and Boston University, first-ever director of privacy and civil liberties for the White House National Security Staff, Lawfare, Without the USA Freedom Act, NSA Could Resume Bulk Collection Even if Patriot Act Provisions Expire, May 30, 2015, http://www.lawfareblog.com/2015/05/without-the-usa-freedom-act-nsa-could-resume-bulk-collection-even-if-patriot-act-provisions-expire/]

With the Senate continuing its dangerous brinksmanship regarding the imminent expiration of three Patriot Act provisions, opponents of NSA bulk data collection seem poised to celebrate whatever happens. McConnell’s efforts to extend the Patriot Act unchanged lack enough support to pass either chamber. A last-minute deal to pass the USA Freedom Act may be in the works, but would still face a number of procedural and political hurdles. It is likely there will be at least some lapse of three sections of the Patriot Act, including section 215, the business records provision that supports the NSA’s bulk collection of telephone records.

The assumption has been that the expiration of section 215 of the Patriot Act would mean the end of bulk data collection. That assumption is wrong. Only passing the USA Freedom Act will do that.

Even if section 215 expires, the NSA could resume bulk metadata collection with a little legal work from Justice Department and Intelligence Community lawyers. It is true that the Foreign Intelligence Surveillance Court’s interpretation of section 215 has provided the authority for NSA’s current program of bulk phone records collection as business records under the Foreign Intelligence Surveillance Act (FISA). However, as careful readers of Lawfare know, the NSA’s bulk telephone metadata program under section 215 is not the only, nor was it the first, bulk collection of metadata authorized by a creative interpretation of the Patriot Act’s amendments to FISA.

The section 215 phone records program was modeled on an earlier, Internet metadata bulk collection program that began after September 11. The FISC approved the Internet metadata program under the pen register/trap and trace (PR/TT) provisions of FISA – as amended by section 214 of the Patriot Act. The Internet metadata program – known as the PR/TT program – had serious compliance problems because it was difficult for the NSA reliably to segregate Internet metadata from Internet content. Still, the FISC continued to approve the PR/TT program, with modifications, until the NSA itself chose to end the program in 2011.

As a result, the FISC’s orders approving bulk metadata collection remain a viable interpretation of the PR/TT provisions of FISA and would have precedential value in any effort to resume bulk collection, whether of Internet or telephony metadata. The PR/TT provisions of FISA are not limited to Internet metadata. If anything, they apply more naturally to traditional telephony metadata, as they cover “dialing, routing, addressing, or signaling” information. Section 214, unlike section 215, is not going to expire tomorrow – it was made permanent in 2005.

The Obama administration has understandably not talked much about this. It doesn’t want to take pressure off Congress, and there is always risk in advancing a modified legal theory which would certainly face opposition from telecommunications providers. The administration may feel differently on Monday, after section 215 has expired and it is facing an intelligence gap. Government lawyers would only need to persuade the court that telephony metadata are “dialing, routing, address, or signaling” data – which they plainly are.

The NSA might well seek to switch its arguments before the FISC from section 215 to the PR/TT theory even if section 215 were reauthorized unchanged, as McConnell has proposed. The existing program is on shaky legal ground because of the Second Circuit’s rejection of the FISC’s interpretation of section 215.

The NSA’s bulk Internet metadata program is far less well known than its phone records counterpart, probably because it was terminated in 2011 — two years before Snowden leaked it and the government confirmed it. Still, the drafters of the USA Freedom Act were careful to extend its reforms of bulk collection beyond section 215 of the Patriot Act. The USA Freedom Act prohibits bulk collection not only under section 215, but also under either the PR/TT provisions of FISA (section 214 of the Patriot Act) or through the use of “national security letters.”

Senator Rand Paul (R-KY) and his supporters should understand that, if they succeed in blocking the USA Freedom Act, there is no guarantee that bulk collection will end simply because section 215 expires. In fact, they may well end up preserving, not ending, the very bulk collection they oppose.

Freedom Act codifies backdoor searches

Gosztola 6/7 [KEVIN GOSZTOLA, JUNE 7, 2015, The US Surveillance State Now That USA Freedom Act is Law, http://firedoglake.com/2015/06/07/podcast-the-us-surveillance-state-now-that-usa-freedom-act-is-law/]

The USA Freedom Act was signed into law this past week. It was viewed as both a victory for those concerned with privacy and restricting the National Security Agency’s mass surveillance and also as a law that did not go far enough in restricting spy agencies. In fact, the USA Freedom Act further codified the post-9/11 legal framework for surveillance and resurrected Patriot Act provisions, which expired for a couple days.

The law did do away with the NSA’s control of all Americans’ domestic call records. On the other hand, it left other programs, policies and practices, which NSA whistleblower Edward Snowden revealed to the public, entirely untouched. For example, “backdoor searches” under Section 702 of the FISA Amendments Act can continue, which means the NSA can collect emails, browsing and chat history of US citizens without a warrant.

On “Unauthorized Disclosure” this week, journalist Marcy Wheeler joins the show to discuss the current state of play now that this law considered to be reform has passed.

Freedom Act causes a global breakdown in civil liberties and crushes credibility

Solomon 6/5 [Norman Solomon, The USA Freedom Act Is a Virtual Scam, Huffington Post, June 5, 2015, http://www.huffingtonpost.com/norman-solomon/the-usa-freedom-act-is-a_b_7519046.html]

Some foes of mass surveillance have been celebrating the final passage of the USA Freedom Act, but Thomas Drake sounds decidedly glum. The new law, he tells me, is "a new spy program." It restarts some of the worst aspects of the Patriot Act and further codifies systematic violations of Fourth Amendment rights.

In Oslo as part of a "Stand Up For Truth" tour, Drake warned at a public forum on Wednesday that "national security" has become "the new state religion." Meanwhile, his Twitter messages were calling the USA Freedom Act an "itty-bitty step" -- and a "stop/restart kabuki shell game" that "starts with restarting bulk collection of phone records."

That downbeat appraisal of the USA Freedom Act should give pause to its celebrants. Drake is a former senior executive of the National Security Agency -- and a whistleblower who endured prosecution and faced decades in prison for daring to speak truthfully about NSA activities. He ran afoul of vindictive authorities because he refused to go along with the NSA's massive surveillance program after 9/11.

Drake understands how the NSA operates from the highest strategic levels. He notes a telling fact that has gone virtually unacknowledged by anti-surveillance boosters of the USA Freedom Act: "NSA approved." So, of course, did the top purveyor of mendacious claims about the U.S. government's surveillance programs -- President Obama -- who eagerly signed the "USA Freedom" bill into law just hours after the Senate passed it.

A comparable guardian of our rights, House Speaker John Boehner, crowed: "This legislation is critical to keeping Americans safe from terrorism and protecting their civil liberties."

While some organizations with civil-liberties credentials have responded to the USA Freedom Act by popping open champagne bottles at various decibels, more sober assessments have also been heard. Just after senators approved the bill and sent it to the president, Demand Progress issued a statement pointing out: "The Senate just voted to reinstitute certain lapsed surveillance authorities -- and that means that USA Freedom actually made Americans less free."

Another astute assessment came from CREDO, saying that Congress had just created "sweeping new authorities for the government to conduct unconstitutional mass surveillance of Americans."

As it happened, the president signed the USA Freedom Act into law while four U.S. "national security" whistleblowers -- Drake as well as Coleen Rowley (FBI), Jesselyn Radack (Justice Department) and Daniel Ellsberg (Pentagon Papers) -- were partway through a "Stand Up For Truth" speaking tour from London to Oslo to Stockholm to Berlin. Traveling as part of the tour, I've been struck by the intensity of interest from audiences in the countries we've already visited -- Great Britain, Norway and Sweden -- where governments have moved to worsen repressive policies for mass surveillance.

Right now, many people in Europe and elsewhere who care about civil liberties and want true press freedom are looking at the United States: to understand what an aroused citizenry might be able to accomplish, seeking to roll back a dangerous accumulation of power by an ostensibly democratic government. Let's not unwittingly deceive them -- or ourselves -- about how much ground the U.S. surveillance state has lost so far.
Lee 6/7 [Timothy B. Lee, Why the latest Patriot Act reform won’t be enough to rein in the NSA, Vox, June 7, 2015, http://www.vox.com/2015/6/7/8741095/patriot-nsa-john-tye]

On Friday, I talked to John Napier Tye, a former State Department official who resigned last year over what he regards as unconstitutional surveillance by the US federal government. He sees the USA Freedom Act as "a small step in the right direction," but he's hoping the next step will be a broader debate about other ways the US government spies on innocent Americans.

Most people have heard about the Patriot Act, which was signed just weeks after the attacks of September 11, 2001 and was reformed this week by the USA Freedom Act. But Tye argues the real action is elsewhere.

"You have to keep in mind that most NSA collection on Americans was not under the Patriot Act. It was under other legal authorities. And none of that surveillance is affected by this new law," he says. "When you think about all the collection that the NSA has been doing on Americans, a small percentage — 5 or 10 percent, maybe less — was under the Patriot Act."

Tye points to two other sources of authority for government spying. One is the 2008FISA Amendments Act, which is the legal basis for a controversial NSA program called PRISM that collects private data from major internet companies like Google and Facebook. The other is Executive Order 12333, a Reagan-era directive that has become the basis for a lot of NSA spying.

Tye says that EO 12333 is "an executive order, it's not a statute. It was never passed by Congress. It was originally issued by President Reagan in 1981 and has been amended several times since then — including by George W. Bush."

EO 12333 "gives a very broad grant of authority to intelligence agencies to do all kinds of things," Tye says. "There's one section in there that allows the NSA to collect data on US persons as part of a lawful foreign intelligence investigation. That provision is being used to collect a huge amount of Americans' communications and data."

When the government collects information overseas, it isn't bound by most US surveillance laws. The NSA has reserved the right to "incidentally" collect Americans' private communications overseas so long as Americans are not the target of a particular surveillance effort. But Tye argues that this is a huge loophole in practice.

"I don't think most Americans understand that almost all of their internet and phone data is either stored on backup servers overseas or transits outside of our borders," he says. "A huge amount of our data is collected under this authority outside the borders of the US, Gmails and Yahoo messages, Facebook messages, Apple iMessages, Twitter, every service you can think of."

Tye says he has firsthand knowledge of the extent of NSA spying programs. That's because he was an official in the State Department's Bureau of Democracy, Human Rights, and Labor in 2013 when Edward Snowden's revelations became public.

"My jobs was internet freedom, promoting free and open internet around the world," Tye says. "When the Snowden leaks happened in June of 2013, I was not surprised. I knew that a lot of stuff had been happening. I knew that a lot of surveillance was going on that no one knew about. And it didn't surprise me that this was finally front-page news."

Tye says that after the Snowden leaks, "part of my job was to help develop responses to initiatives within the UN Human Rights Council and the UN General Assembly by Germany, Brazil, and other countries that were very concerned with online privacy. To be able to properly negotiate those efforts, I was briefed on the scope of US intelligence practices. In two different classified briefings, one in the fall of 2013 and one in the first part of 2014, I learned about activities under 12333."

Tye believed these programs were unconstitutional and began filing complaints inside the government about them. He met with the intelligence committees in both the House and the Senate and filed complaints with the inspectors general of both the State Department and the National Security Agency. He says none of them were very interested in the issue.

So last summer, Tye quit his job and went public with his concerns in an op-ed for the Washington Post. He says he ran the op-ed through government censors to make sure it didn't disclose any classified information. Tye has spent the last year at the public interest group Avaaz and is now starting his own law firm that will focus on civil rights and human rights issues.

Tye would like President Obama to unilaterally revise Executive Order 12333 to better protect the privacy of Americans. If Obama doesn't, he'd like Congress to hold hearings on the issue. "I think that Congress should take a more active role in overseeing executive branch activity under 12333," Tye says. "Congress should hold hearings and find out what protections really exist for Americans and how much our data is being collected."

He also favors reforms to the FISA Amendments Act, which was passed by Congress in 2008. Whereas some provisions of the Patriot Act were set to expire this year — and have now been renewed until 2019 — the FISA Amendments Act is permanent. The most controversial part of the FISA Amendments Act is Section 702, which allows warrantless surveillance to collect Americans' communications so long as the target is a foreigner located overseas.

"Under Section 702, the NSA is collecting a lot of stuff inside the United States that's nominally targeting foreigners but in fact is scooping up innocent communications from hundreds of millions of Americans," Tye says. Even worse, "the FBI has access to that database and can search it for domestic criminal reasons. So the purpose of the law nominally was to allow the NSA to conduct foreign intelligence investigations. But as it's currently being used, the FBI is using this data for domestic criminal investigations. The protections that we normally want in place for domestic criminal investigations are not necessarily there."

2AC Squo Doesn’t Solve

Squo and Freedom Act don’t solve

BCN ’15 [Business Cloud News, USA Freedom Act passes ending bulk data collection, May 14, 2015, http://www.businesscloudnews.com/2015/05/14/usa-freedom-act-passes-ending-bulk-data-collection/]

“If the Patriot Act authorities expire, and the FISC approves bulk collection under a different authority, how would the public know?  Without the USA Freedom Act, they won’t.  Allowing the PATRIOT Act authorities to expire sounds like a civil libertarian victory, but it will actually mean less privacy and more risk.”

“Let’s not kill these important reforms because we wish the bill did more.  There is no perfect.  Every bill we vote on could do more,” he added.

Others, including Ted Lieu (D-CA), voted against the proposed reforms because the bill didn’t go far enough.

“While I appreciate a number of the reforms in the bill and understand the need for secure counter-espionage and terrorism investigations, I believe our nation is better served by allowing Section 215 to expire completely and replacing it with a measure that finds a better balance between national security interests and protecting the civil liberties of Americans,” Lieu said.

“Beyond Section 215, I am troubled that the USA Freedom Act would leave in place Sections 505 and 702, provisions that also allow sweeping data collection and backdoor searches circumventing encryption that can result in the collection of information of US citizens not identified in warrants.  The loopholes left in place will continue to undermine the trust of the American people.”

2AC Solvency

Must prohibit all NSA authority to solve- only prior approval solves

TF ’14 [Tech Freedom, April 1, 2014, TF, CDT, and 40 others tell Congress what real NSA reform should look like, http://techfreedom.org/post/81391689035/tf-cdt-and-40-others-tell-congress-what-real-nsa]

The White House has expressed support for reining in the NSA’s bulk collection of Americans’ phone records, but with multiple bills in Congress it’s uncertain which specific reforms will be included in the debate moving forward. To ensure whichever NSA reform bill advances is as strong as possible, TechFreedom and 41 other nonprofits and businesses have sent a joint letter to key policymakers outlining what any bill aiming to reform bulk surveillance should include.

Read the text below, and see the full letter for the list of signatories and recipients:

We the undersigned are writing to express support for ending the government’s bulk collection of data about individuals. We strongly urge swift markup and passage of the USA FREEDOM Act (H.R.3361), which would enact appropriate surveillance reforms without sacrificing national 
security. This letter focuses on bulk collection, but overbroad NSA surveillance raises many more privacy and security issues that Congress and the Administration should address.

We appreciate that Congress and the Administration are converging on consensus that the National Security Agency’s (NSA) bulk collection of telephone records must end. Among other things, legislation on bulk collection should:

Prohibit bulk collection for all types of data, not just phone records. Section 215 of the PATRIOT Act applies broadly to business records, and the Department of Justice has claimed authority for bulk collection of any records that reveal relationships between individuals. Legislation that focuses only on phone records may still allow for the bulk collection of, for example, Internet metadata, location information, financial records, library records, and numerous other records that may help “identify unknown relationships among individuals.”

Prohibit bulk collection under Section 214 as well as Section 215 of the PATRIOT Act, or under any other authority. While the NSA’s bulk collection of telephone records under the purported authority of Section 215 has received considerable attention, the NSA engaged in the bulk collection of Internet metadata using the Pen/Trap authority under Section 214 until 2011. Legislation that focuses solely on Section 215 would still fail to prohibit the bulk collection of phone and Internet metadata using Section 214, the National Security Letter (NSL) statutes, or another authority. 

Require prior court approval for each record request. Under current law, the government must obtain approval from the FISA court before it can force private entities to turn over records (in bulk or otherwise) under Sections 215 and 214 of the PATRIOT Act. In addition, President Obama, in his January 17th policy announcement, established that a judicial finding is required before the government can query the phone records that the NSA collected in bulk. Congress should leave this key safeguard in place. If there is concern that the FISA Court would move too slowly to authorize domestic surveillance beforehand, then the solution should be to provide the FISA Court with sufficient resources.