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

DA Answers

1AC Terror DA Pre-Empt

Cohn and Kayyali ’14 [CINDY COHN AND NADIA KAYYALI, Electronic Frontier Foundation, JUNE 2, 2014, The Top 5 Claims That Defenders of the NSA Have to Stop Making to Remain Credible, https://www.eff.org/deeplinks/2014/06/top-5-claims-defenders-nsa-have-stop-making-remain-credible]

So if you hear any one of these in the future, you can tell yourself straight up: “this person isn’t credible,” and look elsewhere for current information about the NSA spying. And if these are still in your talking points (you know who you are) it’s time to retire them if you want to remain credible. And next time, the talking points should stand the test of time.

1.  The NSA has Stopped 54 Terrorist Attacks with Mass Spying

The discredited claim

NSA defenders have thrown out many claims about how NSA surveillance has protected us from terrorists, including repeatedly declaring that it has thwarted 54 plots.  Rep. Mike Rogerssays it often. Only weeks after the first Snowden leak, US President Barack Obama claimed: “We know of at least 50 threats that have been averted” because of the NSA’s spy powers. Former NSA Director Gen. Keith Alexander also repeatedly claimed that those programs thwarted 54 different attacks.

Others, including former Vice President Dick Cheney have claimed that had the bulk spying programs in place, the government could have stopped the 9/11 bombings, specifically noting that the government needed the program to locate Khalid al Mihdhar, a hijacker who was living in San Diego. 

Why it’s not credible:

These claims have been thoroughly debunked.  First, the claim that the information stopped 54 terrorist plots fell completely apart.  In dramatic Congressional testimony, Sen. Leahy forced a formal retraction from NSA Director Alexander in October, 2013:

"Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and of the 54, only 13 had some nexus to the U.S.?" Leahy said at the hearing. "Would you agree with that, yes or no?"

"Yes," Alexander replied, without elaborating.

But that didn’t stop the apologists. We keep hearing the “54 plots” line to this day. 

As for 9/11, sadly, the same is true.  The government did not need additional mass collection capabilities, like the mass phone records programs, to find al Mihdhar in San Diego.  AsProPublica noted, quoting Bob Graham, the former chair of the Senate Intelligence Committee:

U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al Mihdhar, long before 9/11 and had the ability find him, but they failed to do so.

"There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar," says former Senator Bob Graham, the Florida Democrat who extensively investigated 9/11 as chairman of the Senate’s intelligence committee.

Moreover, Peter Bergen and a team at the New America Foundation dug into the government’s claims about plots in America, including studying over 225 individuals recruited by al Qaeda and similar groups in the United States and charged with terrorism,  and concluded:

Our review of the government’s claims about the role that NSA "bulk" surveillance of phone and email communications records has had in keeping the United States safe from terrorism shows that these claims are overblown and even misleading...

When backed into a corner, the government’s apologists cite the capture of Zazi, the so-called New York subway bomber. However, in that case, the Associated Press reported that the government could have easily stopped the plot without the NSA program, under authorities that comply with the Constitution. Sens. Ron Wyden and Mark Udall have been saying this for a long time.

Both of the President’s hand-picked advisors on mass surveillance concur about the telephone records collection. The President’s Review Board issued a report in which it stated “the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks,” The Privacy and Civil Liberties Oversight Board (PCLOB) also issued a report in which it stated, “we have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the Patriot Act] made a concrete difference in the outcome of a counterterrorism investigation.”

And in an amicus brief in EFF’s case First Unitarian Church of Los Angeles v. the NSA case, Sens. Ron Wyden, Mark Udall, and Martin Heinrich stated that, while the administration has claimed that bulk collection is necessary to prevent terrorism, they “have reviewed the bulk-collection program extensively, and none of the claims appears to hold up to scrutiny.” 

Even former top NSA official John Inglis admitted that the phone records program has not stopped any terrorist attacks aimed at the US and at most, helped catch one guy who shipped about $8,000 to a Somalian group that the US has designated as a terrorist group but that has never even remotely been involved in any attacks aimed at the US.

2. Just collecting call detail records isn’t a big deal.

The discredited claim

The argument goes like this: Metadata can’t be privacy invasive, isn’t very useful and therefore its collection isn’t dangerous—so the Constitution shouldn’t protect it.  Even the President said, “what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content”—as if that means there is no privacy protection for this information.

Why it’s not credible:

As former director of the NSA and CIA Michael Hayden recently admitted: “We kill people based on metadata.”  And former NSA General Counsel Stu Baker said: “metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.”

In fact, a Stanford study this year demonstrated exactly what you can reconstruct using metadata: “We were able to infer medical conditions, firearm ownership, and more, using solely phone metadata.” Metadata can show what your religion is, if you went to get an abortion, and other incredibly private details of your life.

3.  There Have Been No Abuses of Power

The discredited claim

President Obama stated in an interview that “there are no allegations, and I am very confident —knowing the NSA and how they operate — that purposefully somebody is out there trying to abuse this program…” And General Alexander stated in a speech that “We get all these allegations of [abuses of power] but when people check... they find zero times that that's happened. And that's no bullshit. Those are facts.”

Why it’s not credible:

We already have evidence of abuses of power. We know that NSA analysts were using their surveillance powers to track their ex-wives and husbands, and other love interests. They even had a name for it, LOVEINT. The FISA court has also cited the NSA for violating or ignoring court orders for years at a time. And those are just self-reported abuses – the only oversight that occurs is that the NSA investigates itself and reports on the honor system to Congress or the FISC about what it finds. A real independent investigation might reveal even more. Unfortunately, until we get something like a new Church Committee, we are unlikely to see such details.

4. Invading Privacy is Okay Because It’s Done to Prevent Terrorist Attacks

The discredited claim

We keep hearing the same thing: Surveillance is a “critical tool in protecting the nation from terror threats.” When we reform the NSA, it must be done in a way that “protect[s] the operational capability of a critical counterterrorism tool.” The implication is that the stopping terrorist attacks is the government’s only goal.

Why it’s not credible:

We know that NSA surveillance is not used just for stopping terrorists and it’s not even just used for national security.

The Intercept recently revealed leaks detailing the NSA’s role in the “war on drugs,”—in particular, a 2004 memo detailing how the NSA has redefined narcotics trafficking as a national security issue. We also know that the NSA feeds data to the DEA, where it ends up playing a part in ordinary law enforcement investigations. And internationally, the NSA engages in economic espionage and diplomatic spying, something detailed in Glenn Greenwald’s recent book No Place to Hide.  

5. There’s Plenty of Oversight From Congress, the Foreign Intelligence Surveillance Court, and Agency Watchdogs

The discredited claim

We’ve repeatedly heard from the President and from NSA defenders like Sen. Dianne Feinsteinand Rep. Mike Rogers that Congress knows all about NSA spying. Right after the first Snowden leak, President Obama said: “your duly elected representatives have been consistently informed on exactly what we’re doing.” We’ve also heard that a court has approved these programs, so we shouldn’t be concerned.

Why it’s not credible:

EFF and others have long documented that Congress has an incredibly hard time getting information about NSA spying. And it’s not just Congress. We learned a few months ago that the Department of Defense's deputy Inspector General, in charge of Intelligence and Special Program Assessments, was not aware of the call detail collection program.

What’s more, the secretive Foreign Intelligence Surveillance Court (FISC) is completely incomparable to an ordinary adversarial court. It makes decisions in a vacuum, and it doesn’t always have complete information, much less a second adversarial voice or technical help. Its chief judge has said that it’s not equipped to conduct oversight. EFF recently had to tell the court that its Jewel v. NSA case even existed – the government had apparently decided that it didn’t have to. We also know that the FISC isn’t much of a block, since in 11 years “the court has denied just 10 applications, and modified several dozen, while approving more than 15,000.”

So why are we giving up our rights?

It's time for NSA and its supporters to admit what we all know is true: what is at stake in this debate is the simple ability for any of us—in the US or around the world—to be able to use the Internet without fear of surveillance. They continue to be willing to overstate their case in order to scare us into allowing them to continue to  “collect it all.”  But the American people are getting wise and the media are increasingly double-checking their claims. As a result, more Americans than ever now say that the NSA has gone too far and those tired old stories are starting to wear thin.

2AC AT Terror DA

The bulk data doesn’t solve terrorism or terror support activities- squo solves that

Sterman, Schneider and Bergen ’14 [David Sterman, Emily Schneider, Peter Bergen, MA in Security Studies for Georgetown, International Security associate, Senior Security Associate, and Director of Studies at International Security, JANUARY 13, 2014, DO NSA'S BULK SURVEILLANCE PROGRAMS STOP TERRORISTS?, https://www.newamerica.org/international-security/do-nsas-bulk-surveillance-programs-stop-terrorists/]

However, our review of the government’s claims about the role that NSA “bulk” surveillance of phone and email communications records has had in keeping the United States safe from terrorism shows that these claims are overblown and even misleading. An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s 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 NSA’s 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 receive calls, as well as the time and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, 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 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 it’s unclear whether these warrants played an initiating role or were used at a later point in the investigation. (Click on the link to go to a database of all 225 individuals, complete with additional details about them and the government’s investigations of these cases: http://natsec.newamerica.net/nsa/analysis).

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-Qaeda’s 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 NSA’s phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an investigation and wiretap his phone. Although it’s 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 Moalin’s calls, despite official statements that the bureau had Moalin’s phone number and had identified him. , This undercuts the government’s theory that the database of Americans’ telephone metadata is necessary to expedite the investigative process, since it clearly didn’t expedite the process in the single case the government uses to extol its virtues.

Additionally, 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 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 whether any of those three cases involved bulk surveillance programs.

Finally, 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 don’t sufficiently understand or widely share the information they already possess that was derived from conventional law enforcement and intelligence techniques. This was true 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.

No link- answers McCall

McCall ’15 [ALEXANDER MCCALL, Indiana Public Media, June 1, 2015, Indiana Politicians Aren’t Happy About Patriot Act Expiring, http://indianapublicmedia.org/news/indianas-senators-patriot-act-82874/]

But Fred Cate, a professor of law and senior fellow at the Center for Applied Cybersecurity Research at Indiana University, disagrees with Coats’ and Donnelly’s notion.

“There’s no evidence that it’s that important of a program,” Cate says. “Sure, there’s a chance that if we impose new limits, we might get something wrong, but that’s the cost of democracy.”

Cate says the bulk collection program may be a useful tool, but he says courts are yet to suggest that it’s an important tool for fighting terrorism.

“All the courts that have looked at it, all the separate review commissions the president appointed and Congress appointed and even the Department of Justice’s own inspector general have concluded this has not been a very important program,” he says.

He says, however, the decision to shift the responsibility of storing Americans’ phone data from the NSA to telecom companies could raise some concerns about data security.

The Senate could vote on a bill known as the USA Freedom Act, which would make those changes in storage responsibilities, as soon as Tuesday.

2AC AT Chinese Censorship DA

The Internet is counterproductive – social-network surveillance ensure regime survival

Bosch 11 (Torie Bosch, contributor to Slate Magazine, citing Evgeny Morozov, visiting scholar at Stanford University and a Schwartz fellow at the New America Foundation and contributing editor to Foreign Policy and Boston Review, “Tangled Web “, Feb. 1, 2011, http://www.slate.com/id/2281743/pagenum/all)

In a new book, The Net Delusion: The Dark Side of Internet Freedom, Evgeny Morozov scrutinizes plenty of evidence and concludes that the Web can, and does, indeed help dictators in a variety of ways. (Morozov, who was born in Belarus and researches the effects of the Internet on political behavior, also blogs for the Slate Group's Foreign Policy and has written on this subject for Slate.) We like to think that information sets us free, and that access to the Internet can lead those oppressed by authoritarians into the light of democracy. But the Internet is not a one-way street, and dictatorial regimes are quite technologically savvy. Countries like Egypt may block the Internet at times, but they can take advantage of it, too, using it not just to help track down dissidents but also to dispense propaganda. Morozov goes beyond Gladwell. It's not just that the revolution will not be tweeted. The Internet, he argues, may prevent the revolution from getting off the ground. Take the case of the Iranian protests in 2009. "Iran's Twitter Revolution revealed the intense Western longing for a world where information technology is the liberator rather than the oppressor," writes Morozov. The "revolution" did change things for the opposition, he argues—but in the wrong direction. The Iranian government and its hard-line supporters used mobile and Internet technology all too astutely against the protesters. Gleaning information from Facebook, they sent "threatening messages" to Iranians living abroad, text-messaged Iranians to stay home and avoid the protests, and urged "pious Iranians" to fight back online. Meanwhile, Morozov casts credible doubt on the alleged success of the protesters in mobilizing Twitter and other social media for their mission. Twitter was not terribly popular in Iran prior to the elections, with just 19,235 Twitter accounts registered in Iran, or 0.027 percent of the Iranian population. When Al-Jazeera fact-checkers tried to verify that tweets originated in Iran, they could "confirm only sixty active Twitter accounts in Tehran, a number that fell to six once the Iranian authorities cracked down on online communications." Many of the tweets that publicized the election unrest were actually coming from Iranians living abroad; Twitter may have helped spread the word internationally, but given the relatively tiny number of Iranians on Twitter, it couldn't have been used for large-scale organizing. The most frightening evidence of the government's technological prowess was its use of Facebook to contact Iranians abroad. Such social-networking analysis holds great potential for authoritarian regimes: Activists who blithely "friend" one another make investigations much easier for authorities trying to monitor troublemakers. This "social-network surveillance" could ruin on-the-ground organizations, as members' connections to one another are revealed. In The Net Delusion, Morozov tells the story of a young activist from his native Belarus who was called into his university to talk to the KGB. (It still exists, and is active, in Belarus.) The officers had detailed knowledge of Pavel Lyashkovich's travel, involvement with anti-governmental organizations, and connections in the dissident community, merely from checking his social-networking activity. It's easy to say that Lyashkovich should have taken more care to cover his tracks. But if the point of social networking is to broadcast change, it is maddeningly circular to say that activists must hide their connections to one another. This is just low-level social-networking surveillance. There are other unnerving technologies in the works that would make it even easier for authoritarian governments to spy on their populations. Recently, activists alleged that the Tunisian government has been siphoning login information sent to Facebook and Gmail, which enabled hackings of activists' accounts. There is also software in development at UCLA, funded in part by the Chinese government, "that can automatically annotate and comment on what it sees … obviating the need to watch hours of video footage in search of one particular frame." Authoritarian regimes are also exploiting the Web's communicative power themselves, turning the Internet into a tool for propaganda. Venezuelan President Hugo Chávez has more than 1 million followers on Twitter as @chavezcandanga; China and Russia have both expressed interest in creating their own social networks, which would allow them to fine-tune their censors, their surveillance, and their dissemination of friendly information. And they will surely find receptive audiences: Many of the Web users in these countries are even more extreme than their governments, their nationalism heightened as they descend into the echo chamber of Internet proselytizing, where radical views can go unchallenged. Today's sophisticated authoritarian regimes learn from the missteps and successes of one another. One of their preferred tactics at the moment is to respond with alacrity to selected complaints. For instance, the Chinese government sometimes acts to punish corrupt local officials in response to social-network grumbles. Huge Chávez, upon joining Twitter, vowed to use his handle to "answer the messages and … create a fund for the mission to provide many things that are now missing and that are urgent." They are leveraging social networks to construct a facsimile of democracy in action, to offer crumbs of political influence to citizens, to counter critics who say that they suppress dissent. It is devious and effective. No wonder Chávez called Twitter his "secret weapon." Meanwhile, the U.S. government and others interested in spreading democracy increasingly focus on Twitter as their secret weapon. In a landmark speech, Secretary of State Hillary Clinton hailed the importance of "technology … to spread truth and expose injustice." During the Iranian unrest, a State Department official asked Twitter to postpone scheduled maintenance to keep the site alive to aid the protesters. (Twitter ended up pushing back the maintenance but said it wasn't because of U.S. intervention.) And earlier this month, it was reported that the State Department has set aside $30 million to fund projects that will "foster freedom of expression and the free flow of information on the Internet and other connection technologies," particularly in China, Burma, Cuba, Venezuela, and Iran—countries infamous for their harsh regimes and their unfriendliness to the United States. But to capitalize on the potential of the Internet to spread freedom, we must also acknowledge its shortcomings—and remember that promoting democracy is not so simple as opening up means of communications. As Morozov indicates, we tend to think of authoritarian governments as "ridiculous Disney characters—stupid, distracted, utterly uninterested in their own survival, and constantly on the verge of group suicide." But these villains care deeply about self-preservation, and they'll use all the tools at their disposal—even our beloved Internet.

2AC AT Cybersecurity DA

Won’t pass- Patriot Act failed

Bennett ’15 [Cory Bennett, 05/31/15, Surveillance reform could tee up cyber bill, The Hill, http://thehill.com/policy/cybersecurity/243498-surveillance-reform-could-tee-up-cyber-bill]

“If you think about the core basics in each of those bills, there’s a focus on privacy issues,” Krayem said. “It seems like that could be a very useful thing to please both sides of the aisle.”

Of course, all these plans could fall apart if the Senate lets the Patriot Act expire. Then lawmakers enter uncharted territory and CISA is likely to get further delayed.

“In some regards, it may make more time to concentrate on cyber,” Penrose said.

The Patriot Act is somewhat outdated, he said. It doesn’t necessarily map well to today’s Internet-connected world.

Having the law expire, he added, might allow lawmakers to “turn to the next phase of where our national security concerns lie.”

2AC AT Overload