1376 Files Available
A Stefan Bauschard Website
You are here:    Home      Newsletter      Resolved: A just government ought to prioritize civil liberties over national security (Introduction and Affirmative)

Resolved: A just government ought to prioritize civil liberties over national security (Introduction and Affirmative)

May 3, 2017
Published in Newsletter

Icon of Civil Rights v. National Security Civil Rights v. National Security -- Subscribers Only (572.1 KiB)

All relevant files

Introduction

The NSDA Lincoln-Douglas resolution addresses one of the most important questions of our time – should we prioritize national security or civil liberties? It’s a topic we’ve been debating since September 11, 2001 terrorist attacks and it is a topic that we will continue to debate as long as the global war on terror (GWOT), which has no end in sight, continues.

In this essay, I will review some key terms in the resolution, discuss key controversies, identify some critical arguments on both sides, and discuss some strategies for weighing issues.

Definitions

Civil Liberties. Civil liberties are the personal liberties the government can’t abridge without due process, including freedom of speech, privacy, due process, and the rights not to be disappeared or tortured

Wikipedia, no date, Civil Liberties, https://en.wikipedia.org/wiki/Civil_liberties

Civil liberties or personal freedoms are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom from torturefreedom from forced disappearancefreedom of consciencefreedom of pressfreedom of religionfreedom of expressionfreedom of assembly, the right to security and libertyfreedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.

The bill of rights protects civil liberties, and those protections are applied to the states

Wikipedia, no date, Civil Liberties, https://en.wikipedia.org/wiki/Civil_liberties

The United States Constitution, especially its Bill of Rights, protects civil liberties. The passage of the Fourteenth Amendment further protected civil liberties by introducing the Privileges or Immunities ClauseDue Process Clause, and Equal Protection Clause. Human rights within the United States are often called civil rights, which are those rights, privileges and immunities held by all people, in distinction to political rights, which are the rights that inhere to those who are entitled to participate in elections, as candidates or voters.[27] Before universal suffrage, this distinction was important, since many people were ineligible to vote but still were considered to have the fundamental freedoms derived from the rights to life, liberty and the pursuit of happiness. This distinction is less important now that Americans enjoy near universal suffrage, and civil liberties are now taken to include the political rights to vote and participate in elections. Because Indian tribal governments retain sovereignty over tribal members, the U.S. Congress in 1968 enacted a law that essentially applies most of the protections of the Bill of Rights to tribal members, to be enforced mainly by tribal courts.[28]

It is important to understand that civil liberties are different from civil rights, which are the rights to be treated equally.

Find Law, Civil Rights v. Civil Liberties, http://civilrights.findlaw.com/civil-rights-overview/civil-rights-vs-civil-liberties.html

It is important to note the difference between “civil rights” and “civil liberties.” The legal area known as “civil rights” has traditionally revolved around the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) in settings such as employment and housing. “Civil liberties” concern basic rights and freedoms that are guaranteed — either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers. Civil liberties include:

  • Freedom of speech
  • The right to privacy
  • The right to be free from unreasonable searches of your home
  • The right to a fair court trial
  • The right to marry
  • The right to vote

Certainly equality could be relevant to a discussion of civil liberties (most likely as an impact), but it is important to note that civil liberties are rights that are established by governments – by the “laws of the country…” They are not human rights – rights that likely established by the simply fact that people are human and/or protected by international law.

Dictionary.com

noun, Usually, civil liberties

  1. the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or arbitrary interference by the government.

2. such a right as guaranteed by the laws of a country, as in the U.S. by the Bill of Rights.

I highlight this element because Negative debaters may wish to kritik the entire notion that government-protected rights are valuable (Agamben). This will be discussed in more detail later.

Also, it is important to point out that all civil rights are not relevant to a discussion of the competition between civil rights and national security.

The rights that we normally find in conflict with national security include freedom from unreasonable searches and seizure, the right to privacy, the right to freedom of speech, and the right to a fair court trial. Why? Because the government, based on claims related to the need to protect “national security,” will assert that to effectively reduce threats to the nation’s security (namely “terrorism”) that it needs to engage in “searches” (including electronic monitoring) with fewer legal protections, to limit speech, and to limit due process protections for terrorist suspects. Broad searches, of course, implicate a right to privacy.

National security. “National security” refers the protection of the nation-state from threats –

US Legal Definitions, “National Security Law and Legal Definition,” https://definitions.uslegal.com/n/national-security/

“National security is a corporate term covering both national defense and foreign relations of the U.S. It refers to the protection of a nation from attack or other danger by holding adequate armed forces and guarding state secrets. The term national security encompasses within it economic security, monetary security, energy security, environmental security, military security, political security and security of energy and natural resources. Specifically, national security means a circumstance that exists as a result of a military or defense advantage over any foreign nation or group of nations, or a friendly foreign relations position, or a defense position capable of successfully protesting hostile or destructive action.”

This definition is obviously a bit vague, but that is inherent to the concept and the definition. And, of course, it is one of the criticisms of the concept – that “national security” claims can be used expansively to expand state power and oppress individuals and groups that are perceived to be threats to such security. Note this criticism of both the Trump administration and the broader claim of the problematization of the concept of “national security” —

Shirin Sinnar, Associate Professor of Law, Stanford Law School, April 12, 2017, Rethinking National Security, https://www.acslaw.org/acsblog/rethinking-national-security

At the most basic level, the idea of national security seems to implicate the security of something called the “nation”: the safety of some imagined community encompassing the American people as a whole. If we take seriously this idea, however, it should lead us to interrogate who is left out from the “nation” the state seeks to protect. That question can be asked in all administrations, but it is starkly at issue at this political moment. The Trump administration has launched an all-out assault on communities of color. The detentions of immigrants at courthouses, threats to revoke federal funding for sanctuary cities, the arrests of young people granted Deferred Action Childhood Arrival (DACA) status, the orders to publicize lists of crimes by undocumented people and the vast expansion of immigration enforcement priorities have terrified immigrant communities. The travel bans ripped apart families from Middle Eastern and African nations and branded Muslims as outcasts, sending a powerful message of exclusion to Muslim American and immigrant communities in America. The Justice Department now threatens to unravel dozens of federal agreements reached with cities across the country to protect largely African American communities from systematic discrimination, persistent police violence and onerous criminal fines that lock many people of color into poverty and incarceration. Beyond the direct policies targeting their safety, the administration’s concerted campaign of dehumanization subjects communities of color to further state and private violence. To take one example, the requirement in the travel bans that federal agencies publish reports of gender-based violence by foreign nationals, “including so-called ‘honor killings,’” is patently aimed at disseminating the narrative that foreigners, and Muslims in particular, are a threat to women. The claim that non-white men represent a threat to women is a time-worn trope used to incite racial hatred and justify violence, sometimes to protect “our” women and other times to liberate “theirs.” (Indeed, both Dylan Roof, who shot dead nine black men and women in a Charleston church and James Jackson, the recent murderer of a black man in New York, cited the protection of women as their motive). More broadly, the administration’s anti-Muslim and xenophobic rhetoric has encouraged new waves of private violence: an Indian man killed in Kansas, a Sikh man shot in Washington, Muslim women in headscarves assaulted around the country, thirty-five mosques set on fire or vandalized in the past three months. The result for many communities of color, facing both the Trump administration’s policies and the reenergized private violence of white supremacists, is profound insecurity. Yet rarely does the security of these communities enter into discussions of national security. Indeed, historically, race usually enters discussions of national security only when minority communities are perceived to be a threat, rather than when they face threats themselves. (The exception is when we fear that foreign countries or groups will exploit the treatment of minority communities for propaganda purposes, and therefore advocate the protection of their rights on national security grounds; even then, as Derrick Bell famously observed, the welfare of the minority community is promoted for its relevance to other people’s security, not their own). The safety of communities of color is rarely considered a matter of national security on its own terms, with the understanding that the nation encompasses all of its members. I am not suggesting we re-label police violence, hate crimes or other such problems as matters of national security and then proceed to treat them legally in the same way we traditionally approach national security. As legal scholars and historians, including Mary Dudziak, Laura Donohue and Aziz Rana, have argued, constructs like “national security” (or “wartime”) have been used historically to justify the transfer of extraordinary power from the people to the state and from the courts and Congress to the executive. That kind of power needs restraining, not further unleashing. But we ought to centralize questions of race and identity in discussions of national security to a greater extent than we have. We should question the broad deference accorded to claims of national security, when the scope of the term is both elastic and selective. We should elevate attention – constitutional and political – to the safety and security of non-white communities increasingly threatened with not just discrimination, but dehumanization. We should interrogate the more specific ways in which race constructs national security – such as the lines routinely drawn between forms of political violence (such as “hate crimes” and “terrorism”) depending on who is victimized. A new approach to national security and the Constitution might start by reconstituting national security.

Framework

Framework & Values

“Justice” generally means “the quality of being just; righteousness, equitableness, or moral rightness: to uphold the justice of a cause.”

This concept could obviously be unpacked a lot, but even within this definition we can find concepts morality, equality, and doing what is “right,” which could be interpreted to mean the protection of rights. You will find advantages related to these concepts underneath this, “Framework & Values” section, but I also want to highlight these files that you can use for impacts —

There are also a number of comparative arguments that can be used to argue in favor of the Affirmative.
First, Presumption is Affirmative because the Global War on Terror doesn’t have an end, therefore we may never naturally decide to protect civil liberties

Leonard Wong, US Army War College, no date, Homeland Security and Civil Liberties, http://ssi.armywarcollege.edu/pdffiles/pub697.pdf

Because the GWOT will likely last longer than any war in recent history, some perceive the duration of the potential compromise or suspension of civil liberties to be open-ended and, for that reason, very worrisome. Prophetically, some conference participants suggested that judicial review could and should shed light on the legitimacy of current abridgements of civil liberties, including the rights of detained persons, and help inform domestic and global public opinion.

Second, the protection of individual rights is necessary to stop destruction from the nuclear state

George Kateb, Professor of Politics, Princeton, THE INNER OCEAN, 1992, p. 116-7

I have rehearsed platitudes. The justification is that these platitudes of individualism are not really platitudes. They are fundamental considerations that can wither through complacent or irritable inattention. In their withering, the way is eased for massive ruin and for the possibility of extinction. From these considerations—presumably the considerations that guide our lives—the absolute impermissibility of using nuclear weapons emerges. Individualism in the form of personal and political rights bars a government whose legitimacy rests on acknowledging and protecting those rights from acting in any way that risks or causes massive ruin at home or that threatens or inflicts it abroad. The emphasis is on the death of millions of individuals. The subjects of illegitimate governments—for example, the people of despotic states—are covered equally by this imperative: the claim to individual rights is not an enclosed, parochial matter, but universalist in nature. Kven though their own government does not acknowledge and protect their rights, any legitimate government which has an effect on them must do so insofar as it can. (Michael Walzer has already made this point in just and Unjust Wars[ 1977].) Above all, in dealing with foreigners, a legitimate government must not inflict massive ruin. The theory of the just war and elementary notions of common humanity may disallow any policy that risks or causes massive ruin, but the underlying moral principles of the American political system independently and clearly do so. If officials of a legitimate government use nuclear weapons or threaten to do so, and whether or not their people suffer retaliation, the officials have so grossly violated the principles of the system that they must be understood as having intended its moral destruction and therefore to have created a situation in which a revolution against them is abstractly justified in behalf of the very system they have subverted. They are the real revolutionaries. Notice what underlies the pretended right to use or threaten to use nuclear weapons. In the case of the United States, government rhetoric invokes freedom as the value that may be defended by nuclear weapons. Freedom is the term used to refer to all those rights to which the U.S. Constitution is devoted. Yet how can there be consistent faith in rights when masses of people become passive victims? American citizens would not be acting to defend their freedom; they would simply be enlisted in mass death. Further, how can there be consistent faith in rights when mass death is inflicted on others? The theory of rights recognizes no difference between one’s fellows and foreigners so far as negative moral entitlements are concerned: everyone has an equal claim not to have rights violated, even if positive claims to increased well-being may be nationally confined. If political freedom institutionally survived the use of nuclear weapons, its essence would have been spiritually maimed, perhaps destroyed irretrievably. The users of nuclear weapons would have engaged in a revolution against freedom.

Third, the protection of human rights is critical to human dignity

Kateb, Philosopher, Princeton, 1992, “The Inner Ocean”, pp. 8-9

A brief and unrigorous defense of individual rights, then, can perhaps suffice. The protection of personal and political rights is the only true protection of everybody’s human dignity. But a religious rejection of human dignity as the highest standard in favor of the superior dignity of the more-than-human is always possible. Undeniably, the theory of rights with which I work issued from religious people in England. Yet they were heterodox and they were intent on freeing society from religious superintendence and making unsectarian political morality the rule for society. They were politically secular, even if their political theory had some religious inspiration. The framers of American rights were even more heterodox, if they were religious at all. These days, if religious views are political introduced, debate becomes impossible after a while. Everyday reasoning runs up against belief or faith and becomes futile. The advocate of rights cannot persist in discussion but must try to blunt any religiously inspired attack on individual rights. In sum, there seems to be no generally credible foundation for a critique of rights. Rights emerge as the only or best way of protecting human dignity, and human dignity remains the highest standard.

Absent freedom and dignity, millions die

Kopplemen, US Ambassador to CSCE, WORLD AFFAIRS, Summer 1990, p. unknown

Yet, these great advances in the human condition have been paralleled in this century by what often seem to be intractable political conflicts. Hundreds of millions of lives have been lost: tens of millions in war, and an even greater number through political violence and repression. It as if the world of politics remained in the dark ages while our scientific, technological, and communications worlds moved ahead to the tomorrows of modern civilization. A secure peace, within and among nations, can be built only on the foundation of the institutions of freedom that protect and develop the inherent dignity and inviolable worth of every human being. It is peace and liberty that we seek.

Fourth, This is not a question of uniqueness – it is a linear disadvantage – infringements on liberty must be rejected at all costs or we forfeit to totalitarianism.

Petro, Toledo Law Review, 1974 (Sylvester, Spring, page 480)

However, one may still insist, echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always well to bear in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask Solzhenitsyn. Ask Milovan Dijas. In sum, if one believed in freedom as a supreme value and the proper ordering principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be emphatically identified and resisted with undying spirit.

Fifth, Rights must come first or they will always be violated in the name of security

George Kateb, Professor of Politics at Princeton University, 1992, The Inner Ocean: Individualism and Democratic Culture, p. 5

All I wish to say now is that unless rights come first they are not rights. They will tend to be sacrificed to some purpose deemed higher than the equal dignity of every individual. There will be little if any concept of the integrity or inviolability of each individual. The group or the majority or the good or the sacred or the vague fixture will be preferred. The benefi­ciaries will be victimized along with the victims because no one is being treated as a person who is irreplaceable and beyond value. To make rights anything but primary, even though in the name of human dignity, is to injure human dignity.

The Surveillance State

It is undoubtedly the case that the Trump administration is targeting immigrants and other minorities in the war on terror and that this represents some strong case ground for the Affirmative that I will unpack in a future essay. In this section, I will cover what most people think about when discussing this resolution – the expansion of the surveillance state as a means of preventing terrorism.

“’The stuff I saw really began to disturb me,” Mr. Snowden recalled. ”I could watch drones in real time as they surveilled the people they might kill.” He added: ”I watched N.S.A. tracking people’s Internet activities as they typed. I became aware of just how invasive U.S. surveillance capabilities had become. I realized the true breadth of this system. And almost nobody knew it was happening” New York Times

The controversy related to issues surrounding surveillance became a hot topic for debate when it was disclosed in June of 2013 by former defense contractor Edward Snowden and journalist Glenn Greenwald that the US National Security Agency (NSA) and other federal agencies are engaging in extensive surveillance to fight crime and reduce the threat of terrorism.

guardian-6june2013

The magnitude of the disclosure shocked many people, including elected representatives who were unaware of the extent of the surveillance. Civil rights advocates view the surveillance as an assault on privacy and liberty, while law enforcement and national security officials see these mass surveillance programs, and other targeted surveillance programs that are based on individual suspicion, as essential weapons in the war on terror, the fight against nuclear weapons proliferation, the general protection of US national security, and even efforts to reduce conventional crime.

Although the number of collected records has been reduced, the program continues today —

Charles Savage, May 2, 2017, New York Times, Reigned-In NSA Has Still Collected 151 Million Phone Records in ’16, https://www.nytimes.com/2017/05/02/us/politics/nsa-phone-records.html

The National Security Agency vacuumed up more than 151 million records about Americans’ phone calls last year via a new system that Congress created to end the agency’s once-secret program that collected domestic calling records in bulk, a report disclosed Tuesday. Although the number is large on its face, it nonetheless represents a massive reduction from the amount of information the agency gathered previously. Under the old system, it collected potentially “billions of records per day,” according to a 2014 study. The new report, an annual surveillance review published by the Office of the Director of National Intelligence, offered the first glimpse of how the new system is working. That the National Security Agency still collected such a large volume of calling data, even if it was only a fraction of what the agency once gathered, showed the challenge of conducting 21st-century surveillance and data monitoring within constraints set up to protect Americans’ privacy… That program came to light via the 2013 leaks by the former intelligence contractor Edward J. Snowden. Congress enacted the USA Freedom Act two years later to end the bulk collection but preserve the program’s analytical abilities. Now, phone companies turn over only the calling histories of people suspected of terrorism links and everyone with whom they have been in contact. The National Security Agency took in the 151 million records despite obtaining court orders to use the system on only 42 terrorism suspects in 2016, along with a few left over from late 2015, the report said…..That number may have policy implications as Congress prepares to take up legislation to reauthorize the law on which the warrantless surveillance program is based, known as the FISA Amendments Act. Set to expire at the end of this year, the law permits the agency to gather from phone and internet companies, without warrants, the messages of foreigners abroad, even when they communicate with Americans. Privacy advocates have raised alarms about the government’s ability to search the raw repository of emails for information about Americans, a practice they call a “backdoor search loophole” in the Fourth Amendment. They want Congress to require warrants for such searches.

Since the release of the original story, the controversy has become front page news around the world, with more and more arguably problematic programs described in the leaked trove of Snowden documents coming to light. New stories appear on a daily, making this one of the easiest topics to research and update in some time.

Journalist Glenn Greenwald's New Book Detailing NSA Spy Programs Goes On Sale

The federal mass surveillance programs that had been revealed through the spring of 2014 are catalogued in former debater Glenn Greenwald’s most recent book, No Place  to Hide: Edward Snowden, the NSA, and the US Surveillance State, which also offers a page-turning read into Greenwald’s initial meetings with Snowden and documentary film maker Laura Poitras in Hong Kong, as well as his access to the documents. The initial meetings are also documented in Poitras’ CitizenFour. Curtailing any of these and other mass surveillance programs will make for arguably strong Affirmative cases.

Of course, there are many arguments that intersect the mass and targeted surveillance areas. There will be many interesting cases related to drug surveillance, border surveillance, and surveillance based on race. In some instances, the federal government is engaging in mass surveillance in these areas and in other instances it is using targeted surveillance. In nearly every instance, there are proposals to curtail its use. Lincoln-Douglas debaters who read particular cases may argue for the particular defense of a specific liberty over national security in one of these particular areas.

The Affirmative

Advantage Areas

Many different advantages have been alluded to in the introduction to the essay. In this section I will unpack them in  more detail and provide some additional evidentiary support.  I have also linked some specific files.

Privacy/totalitarianism There are many different ways to understand “privacy,” an idea originally articulated by Samuel D. Warren and Louis D. Brandeis in 1890[1]. These include the right to be left alone, the right to be secure in one’s person, the right to have certain information about one kept secret, the right to to associate with who one wishes without interference[2].

The threat to privacy from any type of surveillance is significant because it involves monitoring of individuals. In many instances, people expect what is being monitored to otherwise be private.

Mass surveillance is especially intrusive.

Citron & Macht, 2013, Danielle Keats Citron, Lois K. Macht Research Professor of Law, University of Maryland School of Law; Affiliate Scholar, Stanford Center on Internet and Society; Affiliate Fellow, Yale Information Society Project., David Gray, Associate Professor of Law, University of Maryland School of Law. We are grateful to Neil Richards for his thoughtful essay and feedback and to Julie Cohen, Leslie Henry, Amanda Pustilnik, Daniel Solove, and the participants in the Harvard Law Review Symposium on Privacy and Technology for their helpful suggestions, “ADDRESSING THE HARM OF TOTAL SURVEILLANCE: A REPLY TO PROFESSOR NEIL RICHARDS,” May, p. 270

The continuous and indiscriminate surveillance they accomplish is damaging because it violates reasonable expectations of quantitative privacy, by which we mean privacy interests in large aggregations of information that are independent from particular interests in constituent parts of that whole. To be sure, the harms that Richards links to intellectual privacy are very much at stake in recognizing a right to quantitative privacy. But rather than being a function of the kind of information gathered, we think that the true threats to projects of self-development and democratic culture lie in the capacity of new and developing technologies to facilitate a surveillance state. In adopting this view, we ally ourselves in part with commitments to a quantitative account of Fourth Amendment privacy promoted by at least five Justices of the Supreme Court last Term in United States v. Jones.  In Jones, police officers investigating drug trafficking in and around the District of Columbia attached a GPS-enabled tracking device on defendant Jones’s car. By monitoring his movements over the course of a month, investigators were able to document both the patterns and the particulars of his travel, which played a critical role in his ultimate conviction. Although the Court resolved Jones on the narrow grounds of physical trespass, five justices wrote or joined concurring opinions showing sympathy for the proposition that citizens hold reasonable expectations of privacy in large quantities of data, even if they lack reasonable expectations of privacy in the constitutive parts of that whole. Thus, they would have held that Jones had a reasonable expectation in the aggregate of data documenting his public movements over the course of four weeks, even though he did not have any expectation of privacy in his public movements on any particular afternoon.  The account of quantitative privacy advanced by the Jones concurrences has much in common with the views promoted by Warren and Brandeis. Specifically, the concurring Justices in Jones expressed worry that by “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track,” programs of broad and indiscriminate surveillance will “chill[] associational and expressive freedoms,” and “alter the relationship between citizen and government in a way that is inimical to a democratic society.” Their concerns are well-grounded in original understandings of the Fourth Amendment. As Professor William Stuntz has shown, the Fourth Amendment was drafted partly in reaction to eighteenth-century cases involving the British government’s use of general warrants to seize personal diaries and letters in support of seditious-libel prosecutions that were designed to suppress political thought. Despite these roots, quantitative privacy is just beginning to receive recognition because it is only now under threat of extinction by technologies like Virtual Alabama and fusion centers.

Glenn Greenwald, argues that the objective of NSA surveillance is the elimination of global privacy.

Icon of Privacy Advantage Privacy Advantage -- Subscribers Only (490.6 KiB)

Beyond individual privacy violations, this surveillance laws the foundations for totalitarianism.  Surveillance totalitarianism possible by discouraging intellectual exploration of controversial ideas and creating a power relationship between the government and the subject who is subject to surveillance.

Neil Richards, 2013, law professor, Washington University School of Law, Harvard Law Review, The Dangers of Surveillance, http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/ DOA: 3-20-15

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases,  and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis.  Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, finding that the respondents’ claim that their communications were likely being monitored was “too speculative.”  But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach. At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance. At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public/private divide. Public and private surveillance are simply related parts of the same problem, rather than wholly discrete. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process be-fore it is authorized. We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

Jonathan Schell, writing in the  Nation, argues that this is more power than Stalin was able to exercise in totalitarian Russia.

And certainly, the four Poles, of all people, are as fully aware as any sensible person of the abyss of difference that separates the Obama administration from, say, the regime of Joseph Stalin, slayer of tens of millions of his own people. And yet it is chillingly true at the same time that the US government has gone further than any previous government—not excluding Stalin’s—in setting up machinery that satisfies certain tendencies that are in the genetic code of totalitarianism. One is the ambition to invade personal privacy without check or possibility of individual protection. This was impossible in the era of mere phone wiretapping, before the recent explosion of electronic communications—before the cellphones that disclose the whereabouts of their owners, the personal computers with their masses of personal data and easily penetrated defenses, the e-mails that flow through readily tapped cables and servers, the biometrics, the street-corner surveillance cameras. But now, to borrow the name of an intelligence program from the Bush years, “Total Information Awareness” is technologically within reach. The Bush and Obama administrations have taken giant strides in this direction. That China and Russia—and Britain, and many other countries—have done the same is hardly comforting to the humble individual under the eye of the universal spying apparatus. A second totalitarian tendency has been the ambition to control the entire globe—a goal built into fascist as well as communist ideologies of the early twentieth century. In Hannah Arendt’s words, “Evidence that totalitarian governments aspire to conquer the globe and bring all countries on earth under their domination can be found repeatedly in Nazi and Bolshevik literature.” Neither achieved it, or even came close. But now, in the limited arena of information, a sort of shadow or rudiment of this ambition is near realization by the “sole superpower,” the United States. Much attention has been paid to Americans’ loss of privacy rights, but relatively overlooked in the debate over the government’s surveillance activities (at least in the United States) has been that all foreign communications—including those occurring in the lands of close allies, such as Germany—are fair game and are being swept into the US data banks. The extent of the US global reach over information was mirrored in Snowden’s fate. Astonishingly, almost no fully democratic country would have him. (The conspicuous exception was Bolivia, whose president suffered the indignity of a forced diversion and landing of his plane when he was suspected of carrying Snowden to safety.) Almost all others, including Poland, bowed to US pressure, actual or potential, to refuse Snowden protection. The Polish letter writers were scandalized by this spectacle. “The fact that only dictatorial governments agreed to give him shelter shames the democratic states,” they wrote. “Our democracies discredit themselves with their indifference and cowardice in this matter.” What happened to Snowden in Moscow diagramed the new global reality. He wanted to leave Russia, but the State Department, in an act of highly dubious legality, stripped him of his passport, leaving him—for purposes of travel, at least—stateless. Suddenly, he was welcome nowhere in the great wide world, which shrank down to a single point: the transit lounge at Sheremetyevo. Then, having by its own action trapped him in Russia, the administration mocked and reviled him for remaining in an authoritarian country. Only in unfree countries was Edward Snowden welcome. What we are pleased to call the “free world” had become a giant prison for a hero of freedom.

The NSA doesn’t have a great track record when it comes to limiting abuse of its authority.  During the Vietnam war, the NSA spied on Mohammed Ali, Martin Luther King, and Senator Howard Baker.  Arab American lawyer Abdeen Jabara was also spied on. In March 2013, the NSA program, Boundless Informant, collected 97 billion pieces of metadata.  From 1940 to 1973, the CIA and FBI engaged in a covert mail opening program.  The Army intercepted domestic radio communications. An Army surveillance program placed more than 100 people under surveillance.

Although the internal link to totalitarianism from the collection of individual information by private companies is inherently smaller, there are massive privacy violations, and since governments can get ahold of the information, there is a link into totalitarianism.

Daily Mail, July 7, 2014:

Noel Sharkey, a professor of artificial intelligence and robotics at Sheffield University, said that older people were more cautious with their personal data. Addressing the Cheltenham Science Festival, he said: ‘I’m 65, I don’t want to be targeted. I am very uncomfortable with it. It seems to me our privacy is gradually being violated and eroded without us noticing. ‘I am part of the generation which all read 1984 – I think we are less happy about giving up our privacy. ‘But the younger generation aren’t really thinking about it. The services that Google and Facebook give us are so good that people are willing to trade off their privacy for them.’ He said Google’s recording of all our online activities meant it knew far too much about us. He added: ‘At the moment it doesn’t seem harmful. But because governments can get hold of this information, they can monitor you, things might change quite dramatically.’ Google has invested billions of pounds buying up cutting-edge technologies which will increase their access to people’s information. The internet giant recently paid £1.9billion for Nest Labs, a firm which makes internet-connected heating systems, allowing people to control their thermostats from afar. Supporters argue that having greater control over home applications – which may soon include fridges that automatically reorder when you run out of food and lighting systems that turn on when they sense your approach – can only benefit consumers. But connecting more things to the internet enables large firms to collect more and more data.

Icon of Privacy Advantage Privacy Advantage -- Subscribers Only (490.6 KiB)

Icon of Totalitarianism Advantage Totalitarianism Advantage -- Subscribers Only (237.2 KiB)

Icon of Privacy Advantage Answers Privacy Advantage Answers -- Subscribers Only (332.0 KiB)

Icon of Rights Advantage Answers Rights Advantage Answers -- Subscribers Only (196.3 KiB)

Racism. Many argue that NSA surveillance is illegitimately targeted at minorities, particularly Arab and Muslim minorities.   In July of this year (2014), the Intercept, Glenn Greenwald’s new website, published the email addresses of more than 7,000 Muslim Americans who are under warrantless surveillance:

The National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans—including a political candidate and several civil rights activists, academics, and lawyers—under secretive procedures intended to target terrorists and foreign spies. According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

  • Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
  • Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
  • Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
  • Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
  • Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”—short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.

The spreadsheet shows 7,485 email addresses listed as monitored between 2002 and 2008. Many of the email addresses on the list appear to belong to foreigners whom the government believes are linked to Al Qaeda, Hamas, and Hezbollah. Among the Americans on the list are individuals long accused of terrorist activity, including Anwar al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in Yemen.

Many individuals are monitored based on their race and/or ethnicity.

Cindy C. Unegbu, law student, Fall 2013, Howard Law Journal, v. 57, NOTE AND COMMENT: National Security Surveillance on the Basis of Race, Ethnicity, and Religion: A Constitutional Misstep, http://heinonline.org/HOL/Page?handle=hein.journals/howlj57&div=15&g_sent=1Restricted but available to NSDA members, p. 433-6

Picture this: you live in a society in which the government is allowed to partake in intrusive surveillance measures without the institutionalized checks and balances upon which the government was founded. In this society, the government pursues citizens who belong to a particular race or ethnicity, practice a certain religion, or have affiliations with specific interest groups. Individuals who have these characteristics are subject to surreptitious monitoring, which includes undercover government officials disguising themselves as community members in order to attend various community events and programs. The government may also place these individuals on watch lists, even where there is no evidence of wrongdoing. These watch lists classify domestic individuals as potential or suspected terrorists and facilitate the monitoring of their personal activity through various law enforcement agencies for an extended period of time. This “hypothetical” society is not hypothetical at all; in fact, it is the current state of American surveillance. The government’s domestic spying activities have progressed to intrusive levels, primarily due to an increased fear of terrorism. This fear has resulted in governmental intelligence efforts that are focused on political activists, racial and religious minorities, and immigrants. The government’s domestic surveillance efforts are not only geared toward suspected terrorists and those partaking in criminal activity, but reach any innocent, non-criminal, non-terrorist national, all in the name of national security. The government’s power to engage in suspicionless surveillance and track innocent citizens’ sensitive information has been granted through the creation and revision of the National Counterterrorism Center and the FBI’s (Federal Bureau of Investigation) Domestic Investigations and Operations Guide. The grant of surveillance power has resulted in many opponents, including those within the current presidential administration, who challenge the order for numerous reasons. These reasons include the inefficiency of storing citizens’ random personal information for extended periods of time, the broad unprecedented authority granted to this body of government without proper approval from Congress, and the constitutional violations due to the deprivation of citizens’ rights. This Comment argues that the wide-sweeping surveillance authority granted to the government results in a violation of the Fourteenth Amendment’s Equal Protection Clause due to far-reaching domestic monitoring practices. Surveillance practices, such as posing as members of the community and placing individuals on watch lists without suspicion of terrorist activity, result in the impermissible monitoring of individuals on the basis of their race or ethnicity. These practices, although done in the name of national security, an established compelling government interest, violate the Equal Protection Clause of the Fourteenth Amendment because they are not narrowly tailored to the stated interest. The procedures are not narrowly tailored to the interest of national security because of the over-inclusiveness of the measures.

The government has developed systemic welfare and criminal surveillance systems that support the mass monitoring, detention, and incarceration of minorities, especially blacks.

Arun Kundnani and Deepa Kumar, March 2015, Race Surveillance and Empire, Kundani is a Professor @ NYU, Kumar is a journalist, http://www.kundnani.org/2015/03/21/race-surveillance-and-empire-2/ DOA: 3-28-15

The law and order rhetoric that was used to mobilize support for this project of securitization was racially coded, associating Black protest and rebellion with fears of street crime. The possibilities of such an approach had been demonstrated in the 1968 election, when both the Republican candidate Richard Nixon and the independent segregationist George Wallace had made law and order a central theme of their campaigns. It became apparent that Republicans could cleave Southern whites away from the Democratic Party through tough-on-crime rhetoric that played on racial fears. The Southern Strategy, as it would be called, tapped into anxieties among working-class whites that the civil rights reforms of the 1960s would lead to them competing with Blacks for jobs, housing, and schools. With the transformation of the welfare state into a security state, its embedding in everyday life was not undone but diverted to different purposes. Social services were reorganized into instruments of surveillance. Public aid became increasingly conditional on upholding certain behavioral norms that were to be measured and supervised by the state, implying its increasing intrusion into the lives of the poor—culminating in the “workfare” regimes of the Clinton administration. 50 In this context, a new model of crime control came into being. In earlier decades, criminologists had focused on the process of rehabilitation; those who committed crimes were to be helped to return to society. While the actual implementation of this policy was uneven, by the 1970s, this model went out of fashion. In its place, a new “preventive” model of crime control became the norm, which was based on gathering information about groups to assess the “risk” they posed. Rather than wait for the perpetrator to commit a crime, risk assessment methods called for new forms of “preventive surveillance,” in which whole groups of people seen as dangerous were subject to observation, identification, and classification. The War on Drugs—launched by President Reagan in 1982—dramatically accelerated the process of racial securitization. Michelle Alexander notes that At the time he declared this new war, less than 2 percent of the American public viewed drugs as the most important issue facing the nation. This fact was no deterrent to Reagan, for the drug war from the outset had little to do with public concern about drugs and much to do with public concern about race. By waging a war on drug users and dealers, Reagan made good on his promise to crack down on the racially defined “others”—the undeserving. Operation Hammer, carried out by the Los Angeles Police Department in 1988, illustrates how racialized surveillance was central to the War on Drugs. It involved hundreds of officers in combat gear sweeping through the South Central area of the city over a period of several weeks, making 1,453 arrests, mostly for teenage curfew violations, disorderly conduct, and minor traffic offenses. Ninety percent were released without charge but the thousands of young Black people who were stopped and processed in mobile booking centers had their names entered onto the “gang register” database, which soon contained the details of half of the Black youths of Los Angeles. Entry to the database rested on such supposed indicators of gang membership as high-five handshakes and wearing red shoelaces. Officials compared the Black gangs they were supposedly targeting to the National Liberation Front in Vietnam and the “murderous militias of Beirut,” signaling the blurring of boundaries between civilian policing and military force, and between domestic racism and overseas imperialism. In the twelve years leading up to 1993, the rate of incarceration of Black Americans tripled, establishing the system of mass incarceration that Michelle Alexander refers to as the new Jim Crow. And yet those in prison were only a quarter of those subject to supervision by the criminal justice system, with its attendant mechanisms of routine surveillance and “intermediate sanctions,” such as house arrests, boot camps, intensive supervision, day reporting, community service, and electronic tagging. Criminal records databases, which are easily accessible to potential employers, now hold files on around one-third of the adult male population. Alice Goffman has written of the ways that mass incarceration is not just a matter of imprisonment itself but also the systems of policing and surveillance that track young Black men and label them as would-be criminals before and after their time in prison. From stops on the street to probation meetings, these systems, she says, have transformed poor Black neighborhoods into communities of suspects and fugitives. A climate of fear and suspicion pervades everyday life, and many residents live with the daily concern that the authorities will seize them and take them away. A predictable outcome of such systems of classification and criminalization is the routine racist violence carried out by police forces and the regular occurrences of police killings of Black people, such as Michael Brown in Ferguson, Missouri, on August 9, 2014.

 

Racism  — Native Americans. I’m not sure how this will play out yet in terms of an advantage for a traditional cases, but a lot has been written about how surveillance has historically been used in racist ways against Native Americans.

Arun Kundnani and Deepa Kumar, March 2015, Race Surveillance and Empire, Kundani is a Professor @ NYU, Kumar is a journalist, http://www.kundnani.org/2015/03/21/race-surveillance-and-empire-2/ DOA: 3-28-15

National security surveillance is as old as the bourgeois nation state, which from its very inception sets out to define “the people” associated with a particular territory, and by extension the “non-peoples,” i.e., populations to be excluded from that territory and seen as threats to the nation. Race, in modern times, becomes the main way that such threats—both internal and external—are mediated; modern mechanisms of racial oppression and the modern state are born together. This is particularly true of settler-colonial projects, such as the United States, in which the goal was to territorially dispossess Indigenous nations and pacify the resistance that inevitably sprang up. In this section, we describe how the drive for territorial expansion and the formation of the early American state depended on an effective ideological erasure of those who peopled the land. Elaborate racial profiles, based on empirical “observation”—the precursor to more sophisticated surveillance mechanisms—were thus devised to justify the dispossession of native peoples and the obliteration of those who resisted. The idea of the American nation as the land of white Anglo-Saxon Protestants enabled and justified the colonial-settler mission. 5 Thus, when the US state was formed after the Revolutionary War, white supremacy was codified in the Constitution; the logical outcome of earlier settler-colonial systems of racial discrimination against African slaves and Indigenous populations. 6 But the leaders of the newly formed state were not satisfied with the thirteen original colonies and set their sights on further expansion. In 1811, John Quincy Adams gave expression to this goal in the following way: “The whole continent of North America appears to be destined by Divine Providence to be peopled by one nation, speaking one language, professing one general system of religious and political principles, and accustomed to one general tenor of social usages and customs.” 7 This doctrine, which would later come to be known as “manifest destiny” animated the project of establishing the American nation across the continent. European settlers were the “chosen people” who would bring development through scientific knowledge, including state-organized ethnographic knowledge of the very people they were colonizing. John Comaroff’s description of this process in southern Africa serves equally to summarize the colonial states of North America: “The ‘discovery’ of dark, unknown lands, which were conceptually emptied of their peoples and cultures so that their ‘wilderness’ might be brought properly to order—i.e., fixed and named and mapped—by an officializing white gaze.” 9 Through, for example, the Bureau of Indian Affairs, the United States sought to develop methods of identification, categorization, and enumeration that made the Indigenous population “visible” to the surveillance gaze as racial “others.” Surveillance that defined and demarcated according to officially constructed racial typologies enabled the colonial state to sort “tribes” according to whether they accepted the priorities of the settler-colonial mission (the “good” Indians) or resisted it (the “bad” Indians). 10 In turn, an idea of the US nation itself was produced as a homeland of white, propertied men to be secured against racial others. No wonder, then, that the founding texts of the modern state invoke the Indigenous populations of America as bearers of the “state of nature,” to which the modern state is counterposed—witness Hobbes’s references to the “the Savage people of America.” 11 The earliest process of gathering systematic knowledge about the “other” by colonizers often began with trade and religious missionary work. In the early seventeenth century, trade in furs with the Native population of Quebec was accompanied by the missionary project. Jesuit Paul Le Jeune worked extensively with the Montagnais-Naskapi and maintained a detailed record of the people he hoped to convert and “civilize.” 12 By studying and documenting where and how the “savages” lived, the nature of their relationships, their child-rearing habits, and the like, Le Juene derived a four-point program to change the behaviors of the Naskapi in order to bring them into line with French Jesuit morality. In addition to sedentarization, the establishment of chiefly authority, and the training and punishment of children, Le Juene sought to curtail the independence of Naskapi women and to impose a European family structure based on male authority and female subservience. 13 The net result of such missionary work was to pave the way for the racial projects of colonization and/or “integration” into a colonial settler nation. By the nineteenth century, such informal techniques of surveillance began to be absorbed into government bureaucracy. In 1824, Secretary of War John C. Calhoun established the Office of Indian Affairs (later “Bureau”), which had as one of its tasks the mapping and counting of Native Americans. The key security question was whether to forcibly displace Native Americans beyond the colonial territory or incorporate them as colonized subjects; the former policy was implemented in 1830 when Congress passed the Indian Removal Act and President Jackson began to drive Indians to the west of the Mississippi River. Systematic surveillance became even more important after 1848, when Indian Affairs responsibility transferred from the Department of War to the Department of the Interior, and the Bureau of Indian Affairs sought to comprehensively map the Indigenous population as part of a “civilizing” project to change “the savage into a civilized man,” as a congressional committee put it. By the 1870s, Indians were “the quantified objects of governmental intervention”; resistance was subdued as much through “rational” techniques of racialized surveillance and a professional bureaucracy as through war. 14 The assimilation of Indians became a comprehensive policy through the Code of Indian Offenses, which included bans on Indigenous cultural practices that had earlier been catalogued by ethnographic surveillance. Tim Rowse writes that For the U.S. government to extinguish Indian sovereignty, it had to be confident in its own. There is no doubting the strength of the sense of “manifest destiny” in the United States during the nineteenth-century, but as the new nation conquered and purchased, and filled the new territories with colonists, it had also to develop its administrative capacity to govern the added territories and peoples. U.S. sovereign power was not just a legal doctrine and a popular conviction; it was an administrative challenge and achievement that included acquiring, by the 1870s, the ability to conceive and measure an object called “the Indian population.” The use of surveillance to produce a census of a colonized population was the first step to controlling it. Mahmood Mamdani refers to this as “define and rule,” a process in which, before managing a heterogeneous population, a colonial power must first set about defining it; to do so, the colonial state “wielded the census not only as a way of acknowledging difference but also as a way of shaping, sometimes even creating, difference.” The “ethnic mapping” and “demographics unit” programs practiced by US law enforcement agencies today in the name of counterterrorism are the inheritors of these colonial practices. Both then and now, state agencies’ use of demographic information to identify “concentrations” of ethnically defined populations in order to target surveillance resources and to identify kinship networks can be utilized for the purposes of political policing. Likewise, today’s principles of counterinsurgency warfare—winning hearts and minds by dividing the insurgent from the nonresistant—echo similar techniques applied in the nineteenth century at the settler frontier.

Freedom of association/expression.  Surveillance discourages individuals from freely associating and expressing their opinions.

Elizabeth Joh, law professor, 2013, University of California, Davis, School of Law, Arizona Law Review, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, p. fn34 Available at; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2285095 DOA: 1-12-15

Osborn v. United States, 385 U.S. 323, 341 (1966) (Douglas, J., dissenting); see also United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”); Ciraolo, 476 U.S. at 225 n.10 (1986) (Powell, J., dissenting) (“It would appear that, after today, families can expect to be free of official surveillance only when they retreat behind the walls of their homes.”); United States v. U.S. Dist. Court, 407 U.S. 297, 320 (1972) (“Official surveillance . . . risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.“); Johnson, 333 U.S. at 14 (“The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.”); cf. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) (“The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.”).

Internet surveillance chills news reporting and free speech.

Kenneth Roth, November 18, 2013, “The NSA’s Global Threat to Free Speech,” http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/ DOA: 3-20-15

But the NSA’s overreaching endangers free speech in more direct ways as well. Consider the not-uncommon situation in which a repressive government such as China’s asks an Internet company for information on a user. The most notorious request of this kind involved the Chinese journalist Shi Tao, who just completed eight years in prison for “leaking state secrets”—sending a human rights group information about media restrictions for the fifteenth anniversary of the 1989 Tiananmen Square uprising and the ensuing massacre. At China’s request, Yahoo turned over Shi’s email information, contributing to his conviction. One of the best defenses against such requests is for Internet companies to store user information in servers located outside the country in question. That approach is not foolproof—governments have many ways to pressure Internet companies to cooperate—but it can help to fend off such requests. US Internet companies currently opt to repatriate to servers in the United States most information on users in foreign countries. However, after the revelations about NSA surveillance, many countries have said they may require Internet companies to keep data about their citizens on servers within their own borders. If that becomes standard practice, it will be easier for repressive governments to monitor Internet communications. Weak as US privacy safeguards are, those in many other countries are no better. For example, while outraged at the NSA’s snooping, many privacy activists in Brazil oppose their own government’s proposed requirement to store data locally because they fear their data protection laws are inadequate. Moreover, as the case of Shi Tao shows, granting national governments easy access to user information may enable them not only to invade privacy but also to suppress criticism and unearth dissent. Anonymity is sometimes the best protection against censorship, but official access to user information makes anonymity difficult. Current proposals to change the way the Internet is regulated could, if implemented, also facilitate efforts by foreign governments to gather information on their own citizens’ electronic activities. The Internet is governed mainly through informal cooperative arrangements among numerous public and private entities, but a US-based organization, the Internet Corporation for Assigned Names and Numbers, or ICANN, is responsible for, among other things, coordinating the assignment of unique identifiers that allow computers around the world to find and recognize each other. A private board of directors runs ICANN, but the US Commerce Department has a large part in its management.

Icon of First Amendment -- Speech And Association -- Advantage First Amendment -- Speech And Association -- Advantage -- Subscribers Only (90.5 KiB)

Icon of Journalism Advantage Journalism Advantage -- Subscribers Only (238.0 KiB)

Economy. The link to this advantage stems from mass surveillance activities by the US federal government. The argument is that foreign companies and countries no longer want to do business with US Internet companies because information on their citizens is turned over to and held by the NSA.

Arvind Ganesan wrote on CNN’s website on July 13, 2013:

The National Security Agency surveillance scandal has been devastating to the U.S. government’s credibility as an advocate for Internet freedom. But the impact on U.S. technology companies and a fragile American economy may be even greater. Every new revelation suggests far more surveillance than imagined and more involvement by telephone and Internet companies, with much still unknown. One of the most troubling aspects of this spying is that foreign nationals abroad have no privacy rights under U.S. law. Foreigners using the services of global companies are fair game. (There is also a certain irony to the revelations, considering that some European governments such as Germany and the Netherlands are strong U.S. allies on Internet freedom but may simultaneously be targets of U.S. surveillance online.) A July 1 report by Der Spiegel on the NSA spying on European officials infuriated governments a week before negotiations started on a massive U.S.-European Union trade agreement that could be worth almost $272 billion for their economies and 2 million new jobs. Officials throughout Europe, most notably French President Francois Hollande, said that NSA spying threatens trade talks. The French government unsuccessfully called for a two-week postponement of the trade talks. The next day, it had to address allegations in Le Monde of its own domestic mass surveillance program. For the Internet companies named in reports on NSA surveillance, their bottom line is at risk because European markets are crucial for them. It is too early assess the impact on them, but the stakes are clearly huge. For example, Facebook has about 261 million active monthly European users, compared with about 195 million in the U.S. and Canada, and 22% of Apple’s net income came from Europe in the first quarter of 2013. Europe was primed for a backlash against NSA spying because people care deeply about privacy after their experience of state intrusion in Nazi Germany and Communist Eastern Europe. And U.S. spying on Europeans via companies had been a simmering problem since at least 2011. In June 2011, Microsoft admitted that the United States could bypass EU privacy regulations to get vast amounts of cloud data from their European customers. Six months later, BAE Systems, based in the United Kingdom, stopped using the company’s cloud services because of this issue. A major EU survey released in June 2011 found that “[t]hree out of four Europeans accept that revealing personal data is part of everyday life, but they are also worried about how companies – including search engines and social networks – use their information.” Only 22% trusted e-mail, social networking, and search companies with their data. Then the European Parliament issued a report on privacy in October 2012 confirming Microsoft’s claim and urging new privacy protections between the EU and the United States. The EU tried, but the Financial Times reported that senior Obama administration officials and tech industry representatives successfully lobbied against it. The NSA scandal has brought tensions over spying to a boil. German prosecutors may open a criminal investigation into NSA spying. On July 3, Germany’s interior minister said that people should stop using companies like Google and Facebook if they fear the U.S. is intercepting their data. On July 4, the European Parliament condemned spying on Europeans and ordered an investigation into mass surveillance. The same day, Neelie Kroes, the EU’s chief telecom and Internet official, warned of “multi-billion euro consequences for American companies” because of U.S. spying in the cloud. The companies have belatedly distanced themselves from the NSA and called for more transparency. Google, Microsoft, Yahoo and Facebook are in a particularly tough spot as members of the Global Network Initiative, a group (including Human Rights Watch) formed to verify whether companies respect freedom of expression and privacy online.

Icon of Economy Advantage Links Economy Advantage Links -- Subscribers Only (98.0 KiB)

Internet innovation.  Related to the questions of Internet freedom and the economical implications of surveillance is the question of how surveillance of the Internet may chill its development because developers will be reluctant to develop new concepts under surveillance.

John Shinal, March 17, 2015, USA Today, At SXSW, unlikely allies in privacy-law fight, http://www.pressreader.com/usa/usa-today-international-edition/20150318/281762742738887/TextView DOA: 3-21-15

“While the statutes are murky, the Fourth Amendment is crystal clear,” he said during the panel. As Issa made his comments in a meeting room of the JW Marriott Hotel here, ACLU attorney Ben Wizner and privacy advocate and author Bruce Schneier — during another SXSW privacy panel just down the hall — were making a similar argument: Mass surveillance is throttling both society and business. “Pervasive surveillance leads to conformity,” Schneier said. “If everything we do is watched, we’ll do fewer new things.” Schneier’s comments echo the position of a growing number of Silicon Valley companies worried that surveillance will cost them customer trust and future business. “Right now, U.S. companies dominate Internet services,” says Alex Stamos, Yahoo’s chief information security officer, who was in the audience for the lawmaker’s panel. “The worry is that someone else will surpass us” if customers lose trust in American technology over privacy concerns, Stamos said.

Internet innovation has the potential to gain access to all types of interesting developments, from advances in genomics, to Internet gaming, the transhumanism. I suspect this, perhaps combined with Economy and Freedom, will be a strong advantage areas.

Glenn Greenwald, attorney & journalist who broke the NSA spying story, May 2014,  No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State, Kindle edition

From the time that it first began to be widely used, the Internet has been seen by many as possessing an extraordinary potential: the ability to liberate hundreds of millions of people by democratizing political discourse and leveling the playing field between the powerful and the powerless. I without institutional constraints, social or state control, and pervasive fear— is central to the fulfillment of that promise. Converting the Internet into a system of surveillance thus guts it of its core potential. Worse, it turns the Internet into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.

Internet fracturing. And related to the questions of internet freedom, the economics of the internet, and the development of the Internet is the question of Internet fracturing — different countries and regional organizations developing their own Internets. Surveillance makes this more likely.

William Marsden, Montreal Gazette, March 15, 2015, Cyber-spying thrives as technology makes it easier; Canada was likely among the countries who shared citizens’ personal data, p. A7

Early this year Google, Apple, Microsoft, Facebook, Twitter and Yahoo united to form the Reform Government Surveillance Coalition to lobby government to restrict NSA surveillance. “The reality is these are publicly traded companies that owe a fiduciary obligation to their shareholders,” Goitein said. “They are mindful of their bottom line which is suffering quite badly, especially overseas, on the perception that the companies don’t protect their customers privacy.” All of them are feeling the heat, particularly from EU countries already concerned about their monopolistic reach. When you add on the NSA surveillance program and the fact that the majority of Internet traffic finds its way through the U.S. and its Five Eyes partners, countries like Germany are considering their own closed national Internet network – or how to spell typewriter.

India modeling.  This advantage claims that if US internet policies are more protective of privacy then international internet service companies will protect the privacy of users around the world, including in India.  Widespread surveillance in India will undermine democracy, triggering conflict and war.  There is also a scenario that claims that cyberattackers will target India’s surveilled data, risking cyber conflict and war.

Icon of India Advantage India Advantage -- Subscribers Only (375.4 KiB)

Hegemony. “Hegemony” refers to the idea that there is one global hegemon, or leader, in the international systems. Many teams will argue that their plan will boost US leadership by strengthening its economic power, military power, or soft power.

“Soft power” refers to how likable the US is, and there is good evidence that reducing surveillance will improve the US image in the world – its “soft power.”

Adam Quinn. October 28, 2013. The Conversationalist. Obama’s Soft Power a Hard Sell After NSA Revelations. http://theconversation.com/obamas-soft-power-a-hard-sell-after-nsa-revelations-19572 DOA: 3-11-15

Soft power. Many of those who are optimistic about the ability of the US to pull off this project of declining power without declining influence place emphasis on two things: the extent to which the US has soft power due to widespread admiration for its political and cultural values, and the extent to which it has locked in influence through the extent of its existing networks of friends and allies. Even if these advantages cannot arrest America’s decline on harder metrics, if played properly they can mitigate its consequences and secure an acceptable future. Shoring up support from like-minded countries such as those of Europe ought to be the low-hanging fruit of such an effort. So the current problems do harm on both fronts. It will be difficult to maintain the allure of soft power if global opinion settles on the view that American political discord has rendered its democracy dysfunctional at home, or that its surveillance practices have given rein to the mores of a police state.

US soft power can be valuable in facilitating global diplomacy that is necessary to arrest environmental problems, slow nuclear proliferation, mediate global disputes. By strengthening allied relationships it can also support US hard power.

In terms of economic power, there is great evidence that US leadership in the development of the Internet (see the links to that above) is important to its overall economic leadership.

Powers & Jablonski, 2015, Shawn Powers, former debater, is an Assistant Professor of Communication at Georgia State Universit, Michael Jablonski, is an attorney and presidential fellow in communication at Georgia State University, The Real Cyber War: The Political Economy of Internet Freedom, p. Kindle (location at end of card)

American market dominance in the internet economy is not incidental. According to Cameron Kerry, general counsel for the Department of Commerce, “Today the internet is central to our mission to promote growth and retool the economy for sustained U.S. leadership in the twenty-first century.” Kerry’s supervisor, Secretary of Commerce Gary Locke, agrees, noting, “This is the future of the global economy. And it’s a sector where the United States has demonstrated tremendous innovative capacity. . . . The sheer volume of economic activity today directly translates into yet more opportunities for entrepreneurs as well as keeping our larger companies competitive in the aggressive global economy.”

There is evidence that connects US economic power and soft power to the protection and promotion of hegemony, but Affirmative teams may find other direct links to that as well.

Icon of Hegemony Hegemony -- Subscribers Only (256.9 KiB)

Icon of Hegemony Advantage Answers Hegemony Advantage Answers -- Subscribers Only (247.9 KiB)

Internet freedom. US surveillance practices undermine US credibility on promoting freedom of the Internet. This will result in even greater restrictions in countries like Russia and China.

Tarun Wadhwa, June 23, 2014, http://www.forbes.com/sites/tarunwadhwa/2013/06/13/with-nsa-surveillance-us-government-may-have-dealt-major-blow-to-global-internet-freedom-efforts/ Forbes, “NSA Surveillance May Have Dealt Major Blow to Global Internet Freedoms” DOA: 3-6-16

We should all be extremely concerned about the colossal surveillance infrastructure that is being built in the name of our safety. In trying to reassure the public, our leaders have told us that these programs are not meant to target us, but instead, foreigners who may pose a threat to our security.  But this is merely a decision on how the data is being used today – we are getting into very dangerous territory by hoping for the best intentions of whoever is in power in the future.  American history holds many lessons for us here: circumstances can change, the perception of who is a threat can vary with whoever is in office, and we cannot predict what our political situation will look like decades, or even years, from now. In the court of global public opinion, America may have tarnished its moral authority to question the surveillance practices of other nations – whether it be Russia on monitoring journalists, or China on conducting cyber espionage.  Declarations by the State Department that were once statements of principle now ring hollow and hypocritical to some.  No nation can rival the American surveillance state, but they no longer need support to build their own massive systems of espionage and oppression. The costs of surveillance and data storage technologies are plummeting — these will no longer be prohibitive factors.  Diplomatic pressures and legal barriers that had also once served as major deterrents will soon fade away.  The goal has been to promote internet freedom around the world, but we may have also potentially created a blueprint for how authoritarian governments can store, track, and mine their citizens’ digital lives.

Kenneth Roth, November 18, 2013, “The NSA’s Global Threat to Free Speech,” http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/

The NSA’s electronic spying has also done much to discredit the US government’s reputation as an outspoken champion of Internet freedom. Most notably under the leadership of former Secretary of State Hillary Clinton, the US has regularly criticized countries for detaining dissident bloggers or users of social media. But today, although the United States continues to respect freedom of expression on and off line, that virtue is easily overshadowed by Washington’s indifference to Internet privacy. And even America’s reputation for respecting free speech is undermined when the Obama administration tries to extradite and prosecute Edward Snowden for an alleged security breach that many see as legitimate whistleblowing. Beyond Internet users, those who probably feel most at risk by Washington’s disregard for privacy are US Internet companies. Companies such as Google and Facebook are undoubtedly terrified that users in other countries will begin looking for non-American alternatives to avoid NSA snooping. The German Federation of Journalists, for example, recently warned its members to avoid using US Internet companies for email or searches because of NSA surveillance, and Deutsche Telekom said it is working to keep electronic messages from entering the United States unnecessarily. Internet companies thus may become one powerful constituency to press the US government to reform its surveillance laws.

Icon of Internet Freedom Answers Internet Freedom Answers -- Subscribers Only (213.0 KiB)

Icon of Internet Freedom Advantage Internet Freedom Advantage -- Subscribers Only (138.6 KiB)

Executive power abuse. Current federal surveillance practices arguably exceed the authority of the Commander-in-Chief and Affirmative debaters can argue that this assertion of executive power is tyrannical.

Robert Levy, 2006, “Wartime Executive Power and the NSA’s Surveillance Authority II,” http://www.cato.org/publications/congressional-testimony/wartime-executive-power-nsas-surveillance-authority-ii DOA: 3-5-15

Attorney General Gonzales has a second, more plausible, defense of warrantless surveillance — namely, Article II of the Constitution states that “The executive Power shall be vested in a President” who “shall be Commander in Chief” of the armed forces. That power, says the attorney general, trumps any contrary statute during time of war. I respectfully disagree — which is not to say I believe the president is powerless to order warrantless wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power. But warrantless surveillance of Americans inside the United States, who may have nothing to do with al-Qaeda, does not qualify as incidental wartime authority. The president’s war powers are broad, but not boundless. Indeed, the war powers of Congress, not the president, are those that are constitutionalized with greater specificity. The question is not whether the president has unilateral executive authority, but rather the extent of that authority. And the key Supreme Court opinion that provides a framework for resolving that question is Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer — the 1952 case denying President Truman’s authority to seize the steel mills. Truman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act, Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was recently adopted by the Second Circuit in holding that the administration could no longer imprison Jose Padilla: First, when the president acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum. Second, when the president acts in the absence of either a congressional grant or denial of authority, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” But third, where the president takes measures incompatible with the express or implied will of Congress — such as the NSA program, which violates an express provision of the FISA statute — “his power is at its lowest.” Even under Youngstown’s second category (congressional silence), the president might have inherent wartime authority to interpret the “reasonableness” standard of the Fourth Amendment in a manner that would sanction certain warrantless surveillance. But the NSA program does not fit in Youngstown’s second category. It belongs in the third category, in which the president has acted in the face of an express statutory prohibition. Naturally, if the statutory prohibition is itself unconstitutional, the administration is not only permitted but obligated to ignore it. That’s the argument administration supporters have proffered to excuse the NSA’s defiance of FISA. To bolster their case, they cite the only opinion that the FISA Court of Review has ever issued, In re: Sealed Case. There, the appellate panel mentioned several earlier cases that concluded the president has “inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The Court of Review then added: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” Three responses: First, I do not contend that the president lacks “inherent authority to conduct warrantless searches to obtain foreign intelligence information.” He has such authority, but Congress, exercising its own concurrent wartime powers, has limited the scope of that authority by excluding warrantless surveillance intentionally targeted at a U.S. person in the United States. Second, the surveillance in the earlier cases cited by Sealed Case took place pre-FISA, so Congress had not yet laid out the rules. Third, the quote from Sealed Case conveniently stops one sentence short. Here is the very next sentence: “The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.”

Infopolitics. Infopolitics is a new concept and I don’t think it has been run as an advantage in debate yet, so I’m not sure how it will play out, but the basic idea is that people are becoming defined by the data they represent and that is bad. Restricting the collection of the data would restrict the development of this identity.

Colin Koopman, January 26, 2014, Coopman is an assistant professor of philosophy at the University of Oregon, where he is also a resident scholar at the Wayne Morse Center for Law and Politics. He is the author of “Genealogy as Critique” and “Pragmatism as Transition,” and is at work on a book about infopolitics, http://opinionator.blogs.nytimes.com/2014/01/26/the-age-of-infopolitics/?_r=0 DOA: 3-6-15

We are in the midst of a flood of alarming revelations about information sweeps conducted by government agencies and private corporations concerning the activities and habits of ordinary Americans. After the initial alarm that accompanies every leak and news report, many of us retreat to the status quo, quieting ourselves with the thought that these new surveillance strategies are not all that sinister, especially if, as we like to say, we have nothing to hide. We do not like to think of ourselves as bits and bytes. But if we don’t, we leave it to others to do it for us. One reason for our complacency is that we lack the intellectual framework to grasp the new kinds of political injustices characteristic of today’s information society. Everyone understands what is wrong with a government’s depriving its citizens of freedom of assembly or liberty of conscience. Everyone (or most everyone) understands the injustice of government-sanctioned racial profiling or policies that produce economic inequality along color lines. But though nearly all of us have a vague sense that something is wrong with the new regimes of data surveillance, it is difficult for us to specify exactly what is happening and why it raises serious concern, let alone what we might do about it. Our confusion is a sign that we need a new way of thinking about our informational milieu. What we need is a concept of infopolitics that would help us understand the increasingly dense ties between politics and information. Infopolitics encompasses not only traditional state surveillance and data surveillance, but also “data analytics” (the techniques that enable marketers at companies like Target to detect, for instance, if you are pregnant), digital rights movements (promoted by organizations like the Electronic Frontier Foundation), online-only crypto-currencies (like Bitcoin or Litecoin), algorithmic finance (like automated micro-trading) and digital property disputes (from peer-to-peer file sharing to property claims in the virtual world of Second Life). These are only the tip of an enormous iceberg that is drifting we know not where. Surveying this iceberg is crucial because atop it sits a new kind of person: the informational person. Politically and culturally, we are increasingly defined through an array of information architectures: highly designed environments of data, like our social media profiles, into which we often have to squeeze ourselves. The same is true of identity documents like your passport and individualizing dossiers like your college transcripts. Such architectures capture, code, sort, fasten and analyze a dizzying number of details about us. Our minds are represented by psychological evaluations, education records, credit scores. Our bodies are characterized via medical dossiers, fitness and nutrition tracking regimens, airport security apparatuses. We have become what the privacy theorist Daniel Solove calls “digital persons.” As such we are subject to infopolitics (or what the philosopher Grégoire Chamayou calls “datapower,” the political theorist Davide Panagia “datapolitik” and the pioneering thinker Donna Haraway “informatics of domination”). Today’s informational person is the culmination of developments stretching back to the late 19th century. It was in those decades that a number of early technologies of informational identity were first assembled. Fingerprinting was implemented in colonial India, then imported to Britain, then exported worldwide. Anthropometry — the measurement of persons to produce identifying records — was developed in France in order to identify recidivists. The registration of births, which has since become profoundly important for initiating identification claims, became standardized in many countries, with Massachusetts pioneering the way in the United States before a census initiative in 1900 led to national standardization. In the same era, bureaucrats visiting rural districts complained that they could not identify individuals whose names changed from context to context, which led to initiatives to universalize standard names. Once fingerprints, biometrics, birth certificates and standardized names were operational, it became possible to implement an international passport system, a social security number and all other manner of paperwork that tells us who someone is. When all that paper ultimately went digital, the reams of data about us became radically more assessable and subject to manipulation, which has made us even more informational. We like to think of ourselves as somehow apart from all this information. We are real — the information is merely about us. But what is it that is real? What would be left of you if someone took away all your numbers, cards, accounts, dossiers and other informational prostheses? Information is not just about you — it also constitutes who you are. We need a concept of infopolitics precisely because we have become infopersons. What should we do about our Internet and phone patterns’ being fastidiously harvested and stored away in remote databanks where they await inspection by future algorithms developed at the National Security Agency, Facebook, credit reporting firms like Experian and other new institutions of information and control that will come into existence in future decades? What bits of the informational you will fall under scrutiny? The political you? The sexual you? What next-generation McCarthyisms await your informational self? And will those excesses of oversight be found in some Senate subcommittee against which we democratic citizens might hope to rise up in revolt — or will they lurk among algorithmic automatons that silently seal our fates in digital filing systems? As soon as we learn to see ourselves and our politics as informational, we can begin to see the importance of surveillance reforms of the sort proposed by Senator Ron Wyden, Democrat  of Oregon, as well as the wisdom implicit in the transgressions of “hacktivists” whose ethics call for anonymity and untraceability. Despite their decidedly different political sensibilities, what links together the likes of Senator Wyden and the international hacker network known as Anonymous is that they respect the severity of what is at stake in our information. They understand that information is a site for the call of justice today, alongside more quintessential battlefields like liberty of thought and equality of opportunity. Willingness to see ourselves as informational persons subject to informational powers could help us bring into view what will be required to protect the many individual rights and social ties now inhering in all those bits and bytes.

Biopower/biopolitics. Biopower is the power of the state over individuals that is achieved through the regulation of every day life. Surveillance is a critical element that enables this regulation to be sustained. [Related definitions]

sociology-of-health-and-illness-wk-15-medical-power-12-728

Bithaj Ajana, 2005, Surveillance and Biopolitics, Electronic Journal of Sociology, http://www.sociology.org/content/2005/tier1/ajana_biopolitics.pdf DOA: 3-5-15

With the increasing uncertainties of post September 11 world, the issue of surveillance is given renewed importance through the discourses surrounding the proliferation of ‘control’ technologies and the rhetoric of (in)security pervading contemporary politics. Electronic technologies are seen to be intensifying the ‘capacity’ and ubiquity of surveillance creating ‘new’ forms of social control. Not that the newness of the current modes of surveillance is to be regarded from a merely ontological vantage point and especially not as ‘a shift to a new type of society’ (Rose, 1999: 237) per se but more so from the epistemic informationisation and hybridisation of control and monitoring facilitated by the spread of digital technologies which lend to the emerging trends of surveillance their label of newness while sustaining the existing status quo of society. Examples of these technologies include DNA fingerprinting, electronic tagging, drug testing, health scans, biometric ID cards and passports, smart closed circuit television, etc, all of which rely on algorithmic techniques as well as ‘body parts’ in order to perform their function of surveillance. Whilst there is a myriad of issues pertaining to the phenomenon of surveillance, each of which deserve a thorough examination both theoretically and empirically, this paper will be mainly concerned with one specific aspect of surveillance and its relation to biopolitics and the ways in which surveillance stands as the emblem of the magnitude and dimension of that which constitutes the management of life and death.

Biopower and surveillance bibliography

Icon of Biopower Advantage Links Biopower Advantage Links -- Subscribers Only (224.5 KiB)

Icon of Biopower Impacts Biopower Impacts -- Subscribers Only (80.9 KiB)

Icon of Biopower Answers Biopower Answers -- Subscribers Only (248.6 KiB)

Securitization. Securtization is a popular kritik that argues that it is bad to justify action based on the logic of security because that can lead to the hyping of threats, military intervention, war, and the displacement of democracy as the trumped security threat squeezes out rational debate on any security issue. Rationales for surveillance are embedded in this securitization logic, and if the Affirmative wins this advantage it automatically challenges (and turns) the impact claim of the disadvantage.

Matthew Pickin, 2014,  Pickin has an MA in war studies. What is the Securitization of Cyberspace? Is it a Problem? https://www.academia.edu/3100313/What_is_the_securitization_of_cyberspace_Is_it_a_problem DOA: 3-6-15

n analysing the problems of the securitization of cyberspace, the concept of threat inflation, the shift towards censorship and surveillance, the militarisation of cyberspace, and the problem with military industrial complexes will be evaluated. Threat inflation is a concept in political science whereby elites will create concern for a threat which goes way beyond what is required, “When a threat is inflated, the marketplace of ideas on which a democracy relies to make sound judgements – in particular, the media and popular debate – can become overwhelmed by fallacious information (Brito & Watkins, 2011, p. 2).” In the article by Brito & Watkins parallels are made between the threat inflation of the cyber debate and the Iraq war. The Bush administration sought popular support for war by providing information that was later proved completely baseless. Implying that the Iraqi regime was connected to the terrorist attacks of 9/11 and implying that the United States was threatened by weapons of mass destruction were untrue statements that convinced the audience. Brito and Watkins claim that from 2009 there has been pressure for increased federal involvement in cyber security, increased coverage by the media and the introduction of several bills in Congress are evidence of this action. However, many critics including Brito and Watkins claim the official consensus about a grave and immediate threat is unverifiable, “There is very little verifiable evidence to substantiate the threats claimed, and the most vocal proponents of a threat engage in rhetoric that can only be characterized as alarmist (Brito & Watkins, 2011, p. 7).” Censorship and surveillance has increased greatly in recent years, many forms of surveillance are now common practice across many states. Following the September 11th terrorist attacks in the United States, countries have drafted bills which have included different surveillance-related proposals, “these Bills contained a host of proposals designed to address future terrorist threats through changes to policing, the military and public administration (Haggery & Ericson, 2000, p. 175).” Cyber-war has been used to describe many different actions, from attacking critical infrastructure to defacing websites. The shift towards censorship, surveillance and the securitization of cyberspace is very well connected, “Internet filtering is increasingly accepted worldwide, companies have imposed heavy-handed copyright controls, and surveillance in both the public and private sectors is widespread (Deibert, 2012).” Because most conflict which takes place today involves a cyberspace component, any measures taken to control this environment have side-effects such as increased surveillance and censorship. In an effort to combat piracy in cyberspace there is a rise in tethered appliances, this where an appliance can only be modified by the manufacturer and provides innovations in a controlled form. Tethered appliances have the potential to be used as great sources of surveillance and control, “Apple doesn’t monitor emails sent over your iPhone, but could; TiVo, the television-recording device, routinely inform headquarters of what you’ve been watching (Burkeman, 2008).” Securitization of cyberspace is a threat to the modern liberal democracy, any major change to the control of the internet away from the laissez-faire approach would be particularly damaging.

There is even evidence that meta data that is being collected by the government (see the plans essay) is directly securitized.

Powers & Jablonski, 2015, Shawn Powers, former debater, is an Assistant Professor of Communication at Georgia State Universit, Michael Jablonski, is an attorney and presidential fellow in communication at Georgia State University, The Real Cyber War: The Political Economy of Internet Freedom, p. Kindle (location at end of card)

Second, in the post-9/ 11 environment, digital information is commodified through its securitization. Information that was primarily of use value, including phone-call and internet-use metadata, was transformed into having exchange value through the lens of security. In the view of some in the intelligence community, that metadata could be analyzed to track down criminal and terrorist activities. This type of historical analysis is helpful to place current trends in context and to remind us that information is not inherently commodified but rather is transformed into a commodity in very discrete and deliberate ways.
(Kindle Locations 1783-1787).

Icon of Security K Security K -- Subscribers Only (1.4 MiB)

Racism/Colonialism.  Although Racism has already been discussed as an advantage to a case that addresses the targeting of minorities, Affirmative teams may also wish to kritik the justifications for surveillance as being driven by racism, the fear of the unknown, and a desire for control.

Daily Standard, November 6, 2014, Met chief Hogan-Howe: Internet is a haven for murderers, jihadis and paedophiles, http://www.standard.co.uk/news/london/met-chief-hoganhowe-internet-is-a-haven-for-murderers-jihadis-and-paedophiles-9844309.html DOA: 3-19-15

London’s police chief today warns society against letting parts of the internet become a “dark and ungoverned” space populated by paedophiles, murderers and terrorists. In a call for action, Met Commissioner Sir Bernard Hogan-Howe says encryption on computers and mobile phones is frustrating police investigations, meaning parts of the web are becoming “anarchic places”. He was telling a New York law enforcement conference: “We can’t allow parts of the internet, or any communications platform, to become dark, ungoverned space where images of child abuse are exchanged, murders are planned and terrorist plots are progressed. “In a democracy we cannot accept any space, virtual or not, to become anarchic where crime can be committed without fear. Yet this is in danger of happening.” His comments come just days after GCHQ’s new head warned that US technology companies such as Twitter, Facebook and WhatsApp were becoming “the command and control networks of choice” for terrorists.

The card at the beginning of the essay that criticized how “national security” was being used to defend racist targeting reinforces this argument.

Attacking the Terrorism Disadvantage – The Security Kritik

There are essentially three ways the Affirmative can generate offensive in the debate –

  • Traditional advantages – These have just been discussed – Affirmative debaters will claim that protecting civil rights protects quality, rights, and/or morality in some particular areas.
  • Performative advantages – Becoming more popular in L-D, these advantages are based on performative actions related to the area. For this topic, it is not difficult to imagine performative advantages.
  • Kritking (national) security. As some of the evidence both in the introduction and advantage areas alluded to, it is possible to argue that the idea of national security is bad. The Sinnar evidence at the beginning discussed how “national security” claims are being used to carry out a racist agenda and the ___ evidence discusses how “national security” claims have historically been used to oppress minorities throughout history.

And the drive toward security causes no value to life – We live life in our seatbelts instead of embracing the unknown which gives meaning to our lives.

This is not only an independent impact, but it can be used to turn the terrorism disadvantage. This militarism paints human existence as nothing more than war and individuals are essentially agents of violence

Marzec 9 (Robert P., Associate Professor of English literature and postcolonial studies at Purdue University, and associate editor of Modern Fiction Studies. The Global South, Volume 3, Number 1, “Militariality” Spring 2009. Project Muse AD 7/9/09) JM

These stratocratic controls of planetary human activity reveal more than the ideology of a single administration; they are an extension of what we can now see as the complete devotion to an apparatus that captures all cultural and political energies in terms of what Clausewitz defined as “policy.” The original state of “emergency” as defined by the Bush Administration in the wake of the World Trade Center and Pentagon attacks has been naturalized and sedimented as to become a fundamental starting point of human existence. Consequently, understanding the full intensity of the age of militariality requires more than the common critical awareness of Clausewitz’s central doctrine: “War is merely the continuation of policy by other means” (28). It requires first an understanding that for Clausewitz, war is the very ontological basis of human existence, a basis that transcends culture, history and temporality. War defines the very structure of human subjectivity, a juridico-natural “code of law” that is “deeply rooted” in a people, an army, a government: “war is a paradoxical trinity—composed of primordial violence, hatred, and enmity, which are to be regarded as a blind natural force; of the play of chance and probability within which the creative spirit is free to roam; and of its element of subordination, as an instrument of policy” (30). Clausewitz assigns a constituency to each of the registers of this trinity: “The first of these…mainly concerns the people; the second the commander and his army; the third the government” (30). In a totalizing problematic organized according to the idea of war serving as the basis of human existence, the people of a nation are equated with that of a blind primordial force of violence: “the first,” which refers to “primordial violence, hatred, and enmity” identifies the people living in the nation. “Government” therefore names that entity constituted for the exclusive purpose of controlling its unstable citizenry by reorienting the energies of the people to- wards warfare. This reorientation lays the groundwork and delineates the horizon of human creativity, and determines the single legitimized space of freedom: the army, where the “creative spirit is free to roam.” The space of in- stability, of chance, which is the condition for the possibility of creativity, enters into the war-footing picture of reality only on this register of militarized human activity. This connection here is not a matter of association; military activity defines the very essence of freedom and human creativity. The army and its state are not defined in this picture in traditional terms of democracy, protection, and service to a people. Nor are they the a sign of the discourse of biopower, for biopower has its eyes on the productivity of a population and functions according to a general administration of life that, although affecting “distributions around a norm,” still invites and produces a certain amount of heterogeneity (Foucault 266).

I have written about how to generally answer the “terrorism” in a separate essay (which will be updated this weekend when we work on the NSDA PF topic)

Icon of Terrorism DA Link Answers -- Consolidated Terrorism DA Link Answers -- Consolidated -- Subscribers Only (699.1 KiB)

Icon of Terrorism Answers Terrorism Answers -- Subscribers Only (1.2 MiB)

In this section I will focus on how to answer the link – how to answer the claim that surveillance reduces terrorism risks.

First, there is good evidence that surveillance has not been effective at reducing terrorism.

Cahall et al ’14 [Bailey Cahall, research associate for the National Security Studies program at the New America Foundation, David Sterman, program associate at New America and holds a master’s degree from Georgetown’s Center for Security Studies, Emily Schneider is a senior program associate for the International Security Program at New America, “Do NSA’s Bulk Surveillance Programs Stop Terrorists?” January 13, 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. …. 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. ….. 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.

Second, the possession of data will not solve. The FBI had plenty of data prior to 9-11 and didn’t act on it.
Matthatias Schwartz, January 26, 2015, The New Yorker, “The Whole Haystack,” http://www.newyorker.com/magazine/2015/01/26/whole-haystack, DOA: 1-23-15

In retrospect, every terrorist attack leaves a data trail that appears to be dotted with missed opportunities. In the case of 9/11, there was Mihdhar’s landlord, the airport clerk who sold Mihdhar his one-way ticket for cash, and the state trooper who pulled over another hijacker on September 9th. In August, 2001, F.B.I. headquarters failed to issue a search warrant for one of the conspirators’ laptops, despite a warning from the Minneapolis field office that he was “engaged in preparing to seize a Boeing 747-400 in commission of a terrorist act.” There was plenty of material in the haystack. The government had adequate tools to collect even more. The problem was the tendency of intelligence agencies to hoard information, as well as the cognitive difficulty of anticipating a spectacular and unprecedented attack. The 9/11 Commission called this a “failure of the imagination.” Finding needles, the commission wrote in its report, is easy when you’re looking backward, deceptively so. They quoted the historian Roberta Wohlstetter writing about Pearl Harbor: It is much easier after the event to sort the relevant from the irrelevant signals. After the event, of course, a signal is always crystal clear; we can now see what disaster it was signaling since the disaster has occurred. But before the event it is obscure and pregnant with conflicting meanings.

Those are good defensive arguments, but there are also a number of strong offensive arguments.

First, mass surveillance creates a false sense of security

Matthatias Schwartz, January 26, 2015, The New Yorker, “The Whole Haystack,” http://www.newyorker.com/magazine/2015/01/26/whole-haystack, DOA: 1-23-15

Before the event, every bit of hay is potentially relevant. “The most dangerous adversaries will be the ones who most successfully disguise their individual transactions to appear normal, reasonable, and legitimate,” Ted Senator, a data scientist who worked on an early post-9/11 program called Total Information Awareness, said, in 2002. Since then, intelligence officials have often referred to “lone-wolf terrorists,” “cells,” and, as Alexander has put it, the “terrorist who walks among us,” as though Al Qaeda were a fifth column, capable of camouflaging itself within civil society. Patrick Skinner, a former C.I.A. case officer who works with the Soufan Group, a security company, told me that this image is wrong. “We knew about these networks,” he said, speaking of the Charlie Hebdo attacks. Mass surveillance, he continued, “gives a false sense of security. It sounds great when you say you’re monitoring every phone call in the United States. You can put that in a PowerPoint. But, actually, you have no idea what’s going on.”

Second, surveillance causes data overload- hurts operations more

Kalhan ’14 [Anil, J.D. from Yale Law School, Associate Professor of Law, Drexel University. A.B., Brown University, “Immigration Surveillance,” Maryland Law Review, Volume 74, Issue 1, http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3646&context=mlr]

Vindicating these interests in the context of immigration surveillance therefore requires context-appropriate constraints on the collection, use, storage, and dissemination of personal information for immigration enforcement purposes—including robust limits on retention periods and secondary uses of information that were not originally contemplated. To date, however, exuberance over the potential benefits of interoperable databases and other new technologies has clouded attention to the continued importance of these limits when implementing these systems for migration and mobility control purposes. In an era in which more data is almost always assumed to be better, more information sharing and interconnectivity between database systems is also often assumed to be better as well.309 But as John Palfrey and Urs Gasser have emphasized, “complete interoperability at all times and in all places . . . can introduce new vulnerabilities” and “exacerbate existing problems.” Accordingly, they argue, placing constraints upon information sharing and interoperability and retaining “friction in [the] system” may often be more optimal.310

Third, NSA restrictions create credibility for more effective counter-terrorism and cybersecurity programs

Jack Goldsmith, a contributing editor, teaches at Harvard Law School and is a member of the Hoover Institution Task Force on National Security and Law, 10-10-13, We Need an Invasive NSA, The New Republic, http://www.newrepublic.com/article/115002/invasive-nsa-will-protect-us-cyber-attacks

There are two reasons to think that these predictions are wrong and that the government, with extensive assistance from the NSA, will one day intimately monitor private networks.¶ The first is that the cybersecurity threat is more pervasive and severe than the terrorism threat and is somewhat easier to see. If the Times’ website goes down a few more times and for longer periods, and if the next penetration of its computer systems causes large intellectual property losses or a compromise in its reporting, even the editorial page would rethink the proper balance of privacy and security. The point generalizes: As cyber-theft and cyber-attacks continue to spread (and they will), and especially when they result in a catastrophic disaster (like a banking compromise that destroys market confidence, or a successful attack on an electrical grid), the public will demand government action to remedy the problem and will adjust its tolerance for intrusive government measures.¶ At that point, the nation’s willingness to adopt some version of Alexander’s vision will depend on the possibility of credible restraints on the NSA’s activities and credible ways for the public to monitor, debate, and approve what the NSA is doing over time.¶ Which leads to the second reason why skeptics about enhanced government involvement in the network might be wrong. The public mistrusts the NSA not just because of what it does, but also because of its extraordinary secrecy. To obtain the credibility it needs to secure permission from the American people to protect our networks, the NSA and the intelligence community must fundamentally recalibrate their attitude toward disclosure and scrutiny. There are signs that this is happening—and that, despite the undoubted damage he inflicted on our national security in other respects, we have Edward Snowden to thank.¶ “Before the unauthorized disclosures, we were always conservative about discussing specifics of our collection programs, based on the truism that the more adversaries know about what we’re doing, the more they can avoid our surveillance,” testified Director of National Intelligence James Clapper last month. “But the disclosures, for better or worse, have lowered the threshold for discussing these matters in public.”¶ In the last few weeks, the NSA has done the unthinkable in releasing dozens of documents that implicitly confirm general elements of its collection capabilities. These revelations are bewildering to most people in the intelligence community and no doubt hurt some elements of collection. But they are justified by the countervailing need for public debate about, and public confidence in, NSA activities that had run ahead of what the public expected. And they suggest that secrecy about collection capacities is one value, but not the only or even the most important one. They also show that not all revelations of NSA capabilities are equally harmful. Disclosure that it sweeps up metadata is less damaging to its mission than disclosure of the fine-grained details about how it collects and analyzes that metadata.¶ It is unclear whether the government’s new attitude toward secrecy is merely a somewhat panicked reaction to Snowden, or if it’s also part of a larger rethinking about the need for greater tactical openness to secure strategic political legitimacy. Let us hope, for the sake of our cybersecurity, that it is the latter.

Fourth, encryption cracking opens access to unintended consequences, terrorism, loss of soft power, and stops tech company innovation

Weitzner July 7th, (Daniel Weitzner is the Director of the MIT CSAIL Decentralized Information Group and teaches Internet public policy in MIT’s Computer Science Department. His research includes development of accountable systems architectures to enable the Web to be more responsive to policy requirements, former US Deputy Chief Technology Officer for Internet Policy in the White House. led initiatives on privacy, cybersecurity, Internet copyright, and trade policies promoting the free flow of information, “Encryption ‘backdoors’ will open for criminals as well as governments: experts”, http://www.timeslive.co.za/scitech/2015/07/07/Encryption-backdoors-will-open-for-criminals-as-well-as-governments-experts, TMP)

A research report published by the Massachusetts Institute of Technology challenges claims from US and British authorities that such access is the policy response needed to fight crime and terrorism.¶ Providing this kind of access “will open doors through which criminals and malicious nation-states can attack the very individuals law enforcement seeks to defend,” said the report by 13 scientists.¶ The paper was released a day after FBI Director James Comey called for public debate on the use of encrypted communications, saying Americans may not realize how radical groups and criminals are using the technology. Comey argued in a blog post that Islamic State militants are among those using encryption to avoid detection.¶ The New York Times, which reported earlier on the study, said Comey was expected to renew a call at a congressional hearing for better access to encrypted communications to avoid “going dark.”¶ The computer scientists said, however, that any effort to build in access for law enforcement could be exceedingly complex and lead to “unintended consequences,” such as stifling innovation and creating hostility toward new tech products.¶ “The costs would be substantial, the damage to innovation severe, and the consequences to economic growth difficult to predict,” the report said.¶ “The costs to developed countries’ soft power and to our moral authority would also be considerable.”¶ In the 1990s, there was a similar debate on the “clipper chip” proposal to allow “a trusted third party” to have access to encrypted messages that could be granted under a legal process.¶ The clipper chip idea was abandoned, but the authors said that if it had been widely adopted, “it is doubtful that companies like Facebook and Twitter would even exist.”¶ The computer scientists said the idea of special access would create numerous technical and legal challenges, leaving unclear who would have access and who would set standards.¶ “The greatest impediment to exceptional access may be jurisdiction,” the report said.¶ “Building in exceptional access would be risky enough even if only one law enforcement agency in the world had it.”¶ The British government is considering legislation to compel communications service providers, including US-based corporations, to grant access to British law enforcement agencies.¶ “China has already intimated that it may require exceptional access,” the report said.¶ “If a British-based developer deploys a messaging application used by citizens of China, must it provide exceptional access to Chinese law enforcement?”¶ Among the report’s authors are Daniel Weitzner, director of the MIT Computer Science and Artificial Intelligence Laboratory, and well-known MIT cryptographer Ronald Rivest.

Icon of Security K Security K -- Subscribers Only (1.4 MiB)

Icon of Security K Answers -- updated 9-20-16 Security K Answers -- updated 9-20-16 -- Subscribers Only (810.4 KiB)

[1] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review, 4 (5), (1890): 193-220.

[2] William L. Prosser, “Privacy,” California Law Review, 48 (1960): 338-423.

Note: This essay is “in Progress.”  

Post a Comment

Your email address will not be published. Required fields are marked *

*

Calendar

May 2017
M T W T F S S
« Apr   Jun »
1234567
891011121314
15161718192021
22232425262728
293031