Transparency cp shells

Aff Answers

2AC – Foreign Protection Key

Protections for foreign information is necessary to solve

Sprigman, NYU law professor, 2013

(Christopher, “U.S Government Surveillance: Bad for Silicon Valley, Bad for Democracy Around the World”, 6-28, http://www.theatlantic.com/technology/archive/2013/06/us-government-surveillance-bad-for-silicon-valley-bad-for-democracy-around-the-world/277335/)

In the public debate thus far over the NSA's mass surveillance programs, Americans have obsessed over our right to protect our emails, phone calls, and other communications from warrantless spying. But an issue that is just as important has been almost completely ignored: should the U.S. government be collecting the communications of foreigners without a warrant or any suspicion of wrongdoing? Unlike spying on U.S. citizens, where the government may well be breaking the law, spying on foreigners is almost certainly legal. But is it wise? We don't think so. Unfettered U.S. spying on foreigners will cause serious collateral damage to America's technology companies, to our Internet-fueled economy, and to human rights and democracy the world over. Rampant surveillance harms both privacy and our long-term national security. Foreigners don't vote in American elections, so perhaps it's not surprising that U.S. law throws them under the privacy bus. "If you are a U.S. person," President Obama (inaccurately) assures us, "the NSA cannot listen to your telephone calls." But the government doesn't disguise its broad snooping on foreigners. Director of National Intelligence James Clapper confirmed recently that the NSA "targets foreigners located overseas for a valid foreign intelligence purpose." The legal basis for wide-scale Internet spying on foreigners is set out in black and white in the Foreign Intelligence Surveillance Act (FISA). FISA allows collection of "foreign intelligence information," a grant of authority which goes well beyond counterterrorism or national security to include "information with respect to a foreign power or foreign territory that relates to ... the conduct of the foreign affairs of the United States." In the original version of FISA, individuals could only be targeted if they were "agents of foreign powers," but 2008 amendments to the statute did away with that limitation. Thus, FISA as it now stands authorizes warrantless surveillance of any non-U.S. individual reasonably believed to be located abroad, allowing for the interception of the most private kind of information so long as it "relates to" U.S. foreign affairs. That language is broad enough to allow the U.S. to seize almost any sort of foreign communication, on the grounds that a communication might relate in some way to a foreign-affairs interest of the United States. For foreigners who don't regularly read American surveillance statutes, this all came as an unpleasant surprise. And the details of how the NSA administers the mass surveillance programs do not make the surprise any more palatable. Individuals subject to NSA surveillance are almost never notified. The proceedings authorizing the surveillance are secret. The orders and directives are classified. The Internet companies that respond to the U.S. government's information demands are under gag order, or otherwise obligated not to disclose. And from a foreigner's perspective, all this happens at the request of a government they can't hold to account and is approved by a secret foreign court they can't petition. In addition to its broad legal authority to spy on foreigners, the U.S. now has a distinct technological advantage in doing so. In the past, the nature of the telecommunications infrastructure meant that NSA commonly had to operate abroad to intercept in real-time phone calls between non-Americans. But today, most communications flow over the Internet and a very large percentage of key Internet infrastructure is in the United States. Thus, foreigners' communications are much more likely to pass through U.S. facilities even when no U.S. person is a party to a particular message. Think about a foreigner using Gmail, or Facebook, or Twitter -- billions of these communications originate elsewhere in the world but pass through, and are stored on, servers located in the U.S. With so few legal or technical checks on the U.S. government's power to snoop, Internet users look to U.S. Internet companies to serve as gatekeepers. Fortunately, some U.S.-based Internet companies also have a pro-privacy streak, and view themselves as critical checkpoints in the surveillance infrastructure. Here are just two examples: In 2007, Yahoo unsuccessfully challenged the Protect America Act, a precursor law to the updated FISA. More recently, an unknown company brought a case before the FISA court which resulted in a secret 2011 holding that the NSA had violated the Fourth Amendment. Yet, Internet companies are in a terrible position to rein in government overreach. The court processes and the reasons for surveillance are kept secret from the companies. The cases that interpret the government's powers under the law are secret. And for whatever protections FISA might afford to Americans, it serves no such role for foreigners, who comprise a growing majority of any global company's customers. When the government comes to an Internet company with a lawful but secret court order signed by a judge and demanding certain data, they can review the order skeptically. They can judiciously select the responsive information. They can bring a secret lawsuit in the FISA court to challenge the secret law on behalf of their international clients who have speculative Fourth Amendment rights under the U.S. Constitution. But beyond these usually quixotic efforts, the companies' powers are limited. As a result, from the perspective of many foreign individuals and governments, global Internet companies headquartered in the U.S. are a security and privacy risk. And that means foreign governments offended by U.S. snooping are already looking for ways to make sure their citizens' data never reaches the U.S. without privacy concessions. We can see the beginnings of this effort in the statement by the vice president of the European Commission, Viviane Reding, who called in her June 20 op-ed in the New York Times for new EU data protection rules to "ensure that E.U. citizens' data are transferred to non-European law enforcement authorities only in situations that are well defined, exceptional and subject to judicial review." While we cheer these limits on government access, the spying scandal also puts the U.S. government and American companies at a disadvantage in ongoing discussions with the EU about upcoming changes to its law enforcement and consumer-privacy-focused data directives, negotiations critical to the Internet industry's ongoing operations in Europe. Even more troubling, some European activists are calling for data-storage rules to thwart the U.S. government's surveillance advantage. The best way to keep the American government from snooping is to have foreigners' data stored locally so that local governments - and not U.S. spy agencies -- get to say when and how that data may be used. And that means nations will force U.S.-based Internet giants like Google, Facebook, and Twitter, to store their user data in-country, or will redirect users to domestic businesses that are not so easily bent to the American government's wishes. So the first unintended consequence of mass NSA surveillance may be to diminish the power and profitability of the U.S. Internet economy. America invented the Internet, and our Internet companies are dominant around the world. The U.S. government, in its rush to spy on everybody, may end up killing our most productive golden goose. Even worse, a shift away from U.S.-based Internet services is a blow to free expression around the world. We expect U.S.-based Internet companies to resist authoritarian governments that ask for help squelching political dissent. That resistance is good for global democracy, and good for the United States. Of course, U.S. technology companies' response to such demands have not always been exemplary. Rebecca Mackinnon's 2012 book details corporate complicity with repressive regimes' censorship and surveillance. Yet, without question, the role of Internet firms, especially those based in America, is a net plus for democracy abroad. Having Twitter in the U.S. helped when the U.S. State Department asked it in 2009 to delay its regularly scheduled maintenance to ensure activists can communicate during the Iranian elections. It is much harder to say no to a foreign government when a business has employees and data in that country. In this way, the EU push for local data storage plays right into what some have called the "cyber sovereignty movement," an effort by many nations for more national control over the Internet within their own borders. But unlike current discussions in Europe, those demands are not motivated by a desire to protect civil liberties. To the contrary, authoritarian countries want to censor, spy on, and control Internet access within their own borders. These nations -- Russia, China, the United Arab Emirates, Sudan, Saudi Arabia, and others -- unsuccessfully pushed for changes to the Internet's infrastructure at the International Telecommunications Union meeting last December in Dubai. The growth of cyber-sovereignty would be a serious blow to the spread of liberal democracy worldwide. The U.S. government's fervor for Internet surveillance has now provided advocates for such cyber-sovereignty with new privacy-motivated allies and a great set of talking points. President Obama recently chided Americans concerned with NSA surveillance for our naïveté, saying "you can't have 100 percent security and also then have 100 percent privacy." But this administration's rhetoric is short-sighted and depressing when, in fact, rampant surveillance harms our long-term security. Given the Internet's role in empowering democracy activists the world over, the State Department now ranks support for an open and uncensored Internet as one of it fundamental missions. We think this is unquestionably correct. But, we can't have secret warrantless mass surveillance -- of Americans or of foreigners -- and also enjoy Internet-fueled economic, democratic, and political empowerment. It is time to demand both security and privacy, for everyone -- Americans and foreigners alike -- before it's too late.

2AC – Transparency Only Bad

Transparency links to the DA and doesn’t restore public trust.

Etzioni, George Washington international affairs professor, 2014

(Amitai, “Liberal Communitarian Approach to Privacy and Security”, 6-25, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2459037)

The second approach entails increasing the power of, and adding layers to, institutional accountability and oversight. Although both might be called for, there are strong reasons to rely more on enhanced accountability and oversight than on much enhanced transparency. The distinction reflects the well-known difference between direct democracy (which is the idea behind transparency—the people will know all the details and judge the merit of the programs) and representative democracy (a good part of the judgment will be made by elected representatives, and the public will judge them). Significantly higher levels of transparency present two kinds of serious problems. One problem is well-known and plagues all efforts for direct democracy. There are sharp limits in the capacity of the public who are busy making a living and leading a social life, to learn the details of any government program and evaluate it—especially given that, in the end, they cannot vote any program up or down, but have only one "holistic" vote for their representatives based on all that those representatives favor and oppose. Second, high transparency is, on its face, incompatible with keeping secret that which must be kept secret. Moreover, when the government responds to calls for more scrutiny with the release of more information—so as to demonstrate that the secret acts did, in fact, improve security and did not unduly violate privacy—these releases encounter several difficulties. First, each piece of information released potentially helps the adversaries. This is, in effect, the way intelligence work is often done: by piecing together details released by various sources. Thus, the publication of information about which past terrorist operations were disrupted by the government could allow those groups to find out which of their plots failed because of US government interventions versus those that failed because of technical flaws, the weakness of their chosen agents, or some other reason. Second, it is next to impossible to spell out how these cases unfolded without giving away details about sources and methods. (That is, unless the government releases misleading details. But, sooner or later, some whistleblower would likely expose the ploy, undermining the whole enterprise, which was meant to build trust in government.) Thus, one intelligence official reports that the leaks regarding the NSA snooping programs have already led to terrorist groups “changing their communications behavior based on these disclosures,” meaning that we might “miss tidbits that could be useful in stopping the next plot.”72 Moreover, however much information about specific cases the government releases, skeptics are sure to find details that need further clarification and documentation. (This is the reason public relations experts urge those whose misdeeds are under public scrutiny to “tell all” right from the start, a strategy that may well serve politicians who cheat on their spouses, but not those who deal with combating terrorism.) Thus, following the uproar over the PRISM program, technology companies sought to “reassure users” by releasing reports on the frequency of government data requests. According to the New York Times, the result was that “rather than provide clarity, the companies’ disclosures have left many questions unanswered.”73 When NSA Director General Keith Alexander released details about how the agency’s surveillance programs had thwarted terrorist plots, the media immediately asked for more.74 Moreover, there is no way for the media to determine whether the released cases are typical or were chosen because they reflect well on the government. In contrast, a representative democracy approach suggests that one ought to search for ways to enhance the accountability and oversight power of various institutions, including Congressional committees, the FISA appeal court, the GAO, various Inspectors General, and privacy officers. The involved government agencies must greatly expand the use of audit trails.

Transparency Fails

Zagart and Erwin 14 (Amy Zagart and Marshall Erwin, April 21st, 2014, “Bringing the NSA from the Cold”, The Hoover Institution, http://www.hoover.org/research/bringing-nsa-cold KC)

The National Security Agency is facing the worst crisis in its sixty-year history. Today, too many Americans mistakenly believe that the NSA is listening to their phone calls and reading their e-mail. But misperception is only part of the agency’s problem. In a YouGov national poll we commissioned last October, we also found that the more Americans understand the NSA’s activities, the less they support the agency. Our initial hunch was that Americans knew little about the intelligence agencies that have kept us safe since 9/11, and that public ignorance was compounding the NSA’s trust problems. Without a baseline understanding of what the NSA does and how it works, Americans would be more likely to believe the worst about America’s premier code-breaking and signals-intelligence agency. Or so we thought. Our poll results found the part about the public’s ignorance was true. But we did not find that ignorance bred greater distrust of the agency. Nearly half of respondents had no idea that the NSA breaks foreign codes, even though that has been one of the agency’s core missions since its creation and one of the reasons why the NSA employs more mathematicians than any organization in the United States. Of respondents, 39 percent believed that metadata—the information the NSA collects as part of its bulk phone records program—includes the content of phone calls. It doesn’t. And 35 percent mistakenly think the NSA interrogates terrorist detainees. Nearly as many (32 percent) wrongly think the agency conducts operations to capture or kill terrorists, and an additional 39 percent weren’t sure. And although 43 percent of Americans could correctly pick out James Clapper as the director of national intelligence, 74 percent could correctly identify Miley Cyrus as the person who twerked at the MTV Video Music Awards. When a celebrity’s bottom has better name recognition than the intelligence community’s head, you know spy agencies have some public relations work to do. But our poll also suggests that knowing more about intelligence agencies does not automatically translate into higher public support. For example, Americans who accurately understood the NSA’s telephone metadata program were no more favorable toward the agency than those who mistakenly thought metadata involved snooping on the content of calls. In many cases, we found that more knowledge corresponded with lower support. Among those who correctly identified Clapper, 53 percent had an unfavorable impression of the NSA, compared with 33 percent for those who could not identify him. Among those who erroneously believed that the NSA conducts operations to kill terrorists, 35 percent had an unfavorable view of the agency. Among those who answered this question correctly, 64 percent viewed the NSA unfavorably. General Keith Alexander, then-director of the NSA, argued in a speech in September that surveillance programs had been sensationalized by the media: “And so what’s hyped up in a lot of the reporting is that we’re listening to your phone calls. We’re reading your e-mails. That’s just not true.” He’s right. But if you read between the lines, what Alexander and other intelligence officials are saying is that their biggest problem is misperception: if only the public knew more, they would approve of what the NSA is doing. This is why the Obama administration’s response to the leaks by Edward Snowden has focused so much on transparency. Increased transparency, the logic goes, will correct misperceptions and win support. Our results suggest this approach is misguided. To know the NSA is not to love the NSA. The NSA needs to win this debate on the merits. What we need to know is whether the agency’s telephone and Internet surveillance programs are wise and effective. For months, we have been obsessing over the legality of the surveillance programs. But recent administration disclosures have provided a remarkable amount of information about the legal rationale and oversight regime governing the programs. Though legal scholars will continue to debate just what “relevance” or “targeting” means, the message from these disclosures for the public is this: there is no evidence that the NSA is engaged in any illegal domestic snooping operations. For national security, the more important question now is whether these programs are good counterterrorism policy. We have lost sight of that. Our poll shows that Americans are willing to give their government significant leeway if they think counterterrorism tools are effective. Support for assassinating known terrorists, for example, has hovered at around 65 percent for years. However, we have yet to hear a compelling case for why the NSA’s programs are valuable. This is how the administration can win an NSA debate: by demonstrating with clear examples that these programs have been critical, and by convincing the public that the privacy trade-offs involved are worth it.

1AR – Foreign Protection Key

Have to protect foreigners

Patel, NYU Brennan Center for Justice Liberty and National Security Program co-director, 2014

(Faiza, “Extending Privacy Protections to Foreigners Will Benefit Americans”, 11-6, http://justsecurity.org/17170/extending-privacy-protections-foreigners-benefit-americans/)

An additional argument for enhancing privacy protections for foreigners overseas is that the privacy of Americans is intimately bound with that of foreigners. Increased connectivity mean that we are communicating across borders at such a rate that government programs to collect overseas information inevitably pull in a great deal of information about Americans. Under EO 12333, such “incidentally” collected information about Americans can be retained by the NSA for a variety of reasons. As former State Department official John Napier Tye explained in the Washington Post earlier this year: “Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. … A legal regime in which US citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside US borders, may have made sense when most communications by US persons stayed inside the United States. But today, US communications increasingly travel across US borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications. Similar concerns have been raised by about incidental collection inside the US under Section 702 of the FISA Amendments Act. While improving “back-end” protections – constraints on the government’s retention or use of incidentally collected information – may help protect Americans’ privacy, their effectiveness is limited. In many contexts, the NSA has admitted that it is unable to identify and filter out Americans’ communications. In other words, if the NSA has free rein on to gather foreigners’ information, the pool of information it will simultaneously collect about Americans is enormous and, under current rules, barely protected. I agree with Ryan’s conclusion that procedural rules on surveillance work best in the domestic context. Indeed, they can only work when there is public trust in the government institutions that are implementing them, generally in secret. At this point, there is considerable skepticism about the NSA’s commitment to the privacy values. Relying on procedural protections implemented by other countries, particularly non-democratic ones is even less palatable. Of course, taking the position that there are strong policy reasons for extending privacy protections to mass surveillance programs overseas is not the same as requiring individualized warrants for each interception. There are ways of raising the bar on the type of information governments can collect and about whom (just as President Obama has done with respect to the use of certain types of information in Presidential Policy Directive 28) without reverting to a Fourth Amendment warrant model. Snowden’s revelations jump-started a conversation about privacy rights, both at home and overseas. Its time to recognize that these rights are intimately connected – stronger protections for foreigners will not only enhance their privacy, but also that of Americans.