2015 NDI 6WS – Privacy Neg – Wave 1Presented to you by: Alex, Alice, Hannah, Mary, and Shannon

CPs

Congress Legislation CP

1NCCP text: The United States federal government should increase the evidentiary threshold under Section 3123 to a reasonable suspicion standard.

This solves privacy – provides clear limitations on surveillance Richard M. Thompson 14 – (Legislative Attorney at Congressional Research Service, “The Fourth Amendment Third-Party Doctrine”, 6/5/14, Congressional Research Service, http://fas.org/sgp/crs/misc/R43586.pdf, AB)

Notwithstanding the concurring opinions in Jones, the bulk of Supreme Court and lower federal court precedent have left most non-content information unprotected by the Fourth Amendment. In

some instances, Congress filled this void by creating varying levels of privacy protection for this type of non-content information. However, these protections are in the main not as robust as the warrant

requirement, and in some instances, searches may be justified by little more than “official curiosity.”171 Seven years after the Court handed down Smith and ruled that government access to telephone toll records was not covered by the Fourth Amendment, Congress enacted as part of the Electronic Communications Privacy

Act of 1986 (ECPA) several provisions requiring the government to seek a court order before using a pen register or trap and trace device.172 Again, these devices allow the government to gather dialed telephone numbers and email addressing information, among other non-content information.173 Under 18 U.S.C. § 3123, a court “shall issue an ex parte order authorizing the installation and use of a pen register or trap and trace device ... if the court finds that the attorney for the Government has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”174 A few things should be noted about this provision. First, the “shall” language removes discretion from the judge; if

the judge finds the government has made the required certification, he must issue the order.175 Second, while the court must ensure that the government has made the proper certification, ECPA does not require an “independent judicial inquiry into the veracity of the attested facts.”176 This means that the judge will not make an independent assessment whether the relevancy standard has been met, but only that the government has made the proper certification. One district court has noted that “the extremely limited judicial review required by [the pen register statute] is intended merely to safeguard against purely random use of this device.”177 One magistrate judge went so far as to describe his role under the pen register statute as a “rubber stamp” limited to “proofreading errors,” and that “without independent judicial review, the authorization of pen registers is subject to misuse and abuse.”178 Third, the relevancy standard, which again the government, and not the court, determines if it has been met,

is a “far from burdensome” legal standard.179 The Supreme Court has held, at least in the subpoena context, that

information sought is not relevant only if “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject” of

the investigation.180 In light of this relatively lax standard, several prominent commentators on privacy and technology have suggested that Congress should increase the evidentiary threshold under Section

3123 from mere relevance to at least a reasonable suspicion standard similar to that used for accessing certain stored communications.1 Also included in ECPA is the Stored Communications Act (SCA), in which Congress provided varying degrees of protection to information historically subject to the third-party doctrine and, thus, outside the reach of the Fourth Amendment. Under 18 U.S.C. § 2703(c), service providers must hand over “records or other information pertaining to a subscriber” so long as the government can establish “specific and articulable facts” that the records are “relevant and material” to an ongoing criminal investigation.182 This is akin to the Terry reasonable suspicion standard—it is lower than probable cause but does require the government to articulate its basis to believe that the information is connected to criminal activity.183 This standard has been applied to data such as the to/from address line in an email or the IP addresses of websites a person has visited. Some courts have construed Section 2703(d) in conjunction with the pen register statute to allow the government access to cell site location information.184 Section 2703(c)(2) requires the providers to hand over other customer information such as their name, address,

telephone calling records, length of service, telephone number, and means and source of payments, including credit card or bank

account numbers with either an administrative, grand jury, or trial subpoena.185 Additionally, Congress has passed more targeted privacy protection laws. For instance, the privacy of cable subscribers is safeguarded under the Cable Communications Privacy Act of 1984,186 and the privacy of video store customers under the Video Privacy Protection Act.187

More recently , various Members of Congress have sought to temper the reach of the third- party doctrine with respect to transactional data . Several days after the Edward Snowden leaks

became public, Senator Paul filed the “Fourth Amendment Restoration Act of 2013” (S. 1121) in an effort to “stop

the National Security Agency from spying on citizens of the United States[.]”188 This bill would require that “[t]he Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based upon probable cause.”189 While dictating to the judiciary what the Fourth Amendment should and should not protect may

be beyond Congress’s constitutional power,190 Congress clearly can play a role in setting substantive and procedural limitations on government surveillance authorities . For instance, Senator Paul has introduced a similar bill, the “Fourth Amendment Preservation and Protection Act of 2013” (S. 1037), which would prohibit federal, state, and local government officials from accessing information relating to an individual held by a third party in a “system of records.”191

Other congressional measures would alter the third-party doctrine in a more targeted way. Several location monitoring bills would, for instance, prohibit companies from sharing their customers’ location information unless

the government obtained a warrant or one of several limited exceptions applied.192 So what does the future have in store for the third-party doctrine and the government’s collection of non-content, transactional data? At this point, there appears to be only one solid vote on the Court in Justice

Sotomayor for eliminating or significantly reducing the scope of this doctrine. Although there are hints in Justice Alito’s Jones opinion that he and the three members of his concurrence are ready to reconsider this rule when it comes to pervasive

government surveillance, his rationale was left somewhat underdeveloped. It will take future opinions to get a better sense of whether or how far these Justices are willing to go to limit government access to non-content information held in the hands

of third parties. In the meantime, the lower federal courts might continue to limit or distinguish the third-party

doctrine in specific and narrow instances. For instance, in the NSA telephone metadata case, Judge Leon limited

Smith to its facts and held that it did not apply to this more comprehensive data collection program.193 Likewise , if and when the Supreme Court is asked to reconsider the scope of the third-party doctrine, it is more likely to carve out specific exceptions than to overturn it in its entirety . This approach would permit the courts to engage in a more nuanced, normative approach to analyzing the privacy interests implicated by accessing records derived from transactions between people and other various entities. Another possibility is for Congress to act. Justice Alito observed in Jones that “[i]in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative” as “a legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive wa y .”194 This argument that Congress is best suited to address the nuanced policy questions that privacy and security entails has been expressed by commentators as well.195 Like the courts, it appears unlikely that Congress would be willing to

completely eliminate the third-party doctrine. On the other hand, Congress may be more inclined to engage in a subject-by-subject approach, in which Congress limits the third-party doctrine in certain areas. Congress provided statutory protection for telephone toll records in the pen register/trap and trace statute; for Internet metadata in the Stored Communications Act; and for video customer records in the Video Privacy Protection Act. It

could enact similar protection for other subject areas where non-content information is shared with companies as a necessary part of doing business.

2NCCongress can modify the 4th amendment- this solves Rosen and Wittes 11, Jeffrey and Benjamin, professor of law at The George Washington University and senior fellow in Governance Studies at The Brookings Institution, “Constitution 3. 0 : Freedom and Technological Change,” Brookings Institution Press, 2011. ProQuest ebrary. Web. 30 June 2015.

The final question is what branch of government will create the use restrictions I have in mind. Can courts do this in the name of the

Fourth Amendment, or is it up to Congress? In my view, Congress is the most likely regulator . The Fourth Amendment prohibits unreasonable searches and seizures. Use limitations are neither searches nor seizures, however. They are restrictions on what the government can do with information after it has searched for and seized it. There is little in the way of constitutional text , history, or precedent that supports recognizing use restrictions as part of Fourth Amendment protections. Granted, it is possible to creatively reimagine Fourth Amendment law in ways that recognize use restrictions. As far back as 1995, Harold Krent made such an argument. 1 Krent reasoned that obtaining information is a seizure and that the subsequent use of the information— including downstream disclosures of it— could make the seizure “unreasonable.” In other words, instead of saying that searches and seizures occur at a specific time, they could be deemed to occur over a period of time. All uses of information would be required to be reasonable, and courts could distinguish between acceptable and unacceptable uses of information according to their reasonableness. The argument is creative, but I think it is too far a stretch from

existing doctrine to expect courts to adopt it. In my view, there are two basic problems. First, most of the information collected by the government is not protected under current Fourth Amendment law. Collecting third-party records is neither a search nor a seizure (which is why they are frequently collected;

information that is protected by the Fourth Amendment is collected only rarely). Under Krent’s proposal, however, presumably we would need to overhaul that doctrine to make all evidence collection a seizure to enable courts to then pass on the reasonableness of the seizure. If we took that step, however, we would need an entirely new doctrine on what seizures are reasonable, quite apart from downstream uses. This would require a fairly dramatic overhaul of existing Fourth Amendment law, all to enable use restrictions. Second, disclosures of information come in so many shapes and sizes that courts would have little basis on which to distinguish reasonable from unreasonable uses. Every database is different, every data point is different, and every disclosure is different. The kind of fine-grained

reasonableness inquiry called for by Fourth Amendment law would leave judges with few clear guideposts or historical precedents on which to distinguish uses that violate the Fourth Amendment from those that do not . For both of these reasons, recognizing use restrictions in Fourth Amendment law may create more problems than it solves. At the very least, we should not expect courts to

take such a leap any time soon. In contrast, legislatures are well equipped to enact use restrictions. They can p romulgate bright-line rules concerning information collected under specific government powers, and they can explain the scope of the limitation and the contexts in which it is triggered. Furthermore, they can legislate use restrictions at the same time as they enact the statutes authorizing the evidence collection. That way, use restrictions can be a part of the original statutory design, rather than something imposed years later by the

State Drafting CP

1NC Shell: State Drafting CPCP Text: The fifty states and all relevant territories should draft an amendment expressly guaranteeing a right to informational privacy, then advocate and hold a voluntary convention to engage in a non-binding amendment proposal for this amendment

It solves and competes – it’s distinct from regular procedure which shields the link to PTX since Congress isn’t involvedMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

There is a way to address the defects of the national convention approach. The nation could adopt an amendment process that avoids the problems of a runaway convention and most of the other uncertainties while also depriving Congress of the ability to block amendments . Under

this reformed amendment process, the state legislatures would draft the amendment themselves rather than have a convention draft it. Once two-thirds of the state legislatures had approve d the same specific language for an amendment , that amendment would thereby be formally proposed. This would trigger the ratification stage , which would require, as it does now, three-quarters of the

states to ratify a constitutional amendment. This simple version of the reform could be improved in three ways. First, to facilitate deliberation and coordination, the amendment process would specifically authorize an advisory convention among the states so that they could discuss, in a nonbinding way, possible amendments to propose. Second, to prevent the small states from having excessive power relative to their

populations, the voting rule for ratification should be changed so that each state’s ratification does not count equally, but instead is measured based on its electoral votes . Third, to ensure that the

ratification decision is made by a different entity than the state legislatures that propose the amendment, ratification would be decided by either state conventions or the people of the states through ballot measures.

2NC Solvency: StatesSolves from the states aloneMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

In proposing this reform, I will rely on the normative approach that I outlined earlier. In particular, I will assume that the best way to pass constitutional provisions is through a strict supermajority process that uses one entity to propose the amendment and another to ratify it. Yet, I will make one significant adjustment to this normative approach––limiting my proposals to those that are likely to be attractive to state legislatures. As I discuss in the next

section, Congress is not likely to amend the Constitution to eliminate its veto, but the state legislatures might call a convention to increase their power. For state legislatures to do this, however, the amendment procedure has to be attractive to them. 116 My goal in this Article is not merely to explore the normative defects of

the broken convention process. It is also to show that a reform is available that would solve the problem and that could conceivably be enacted under the existing system . Thus, focusing on reforms that might be adopted is not an arbitrary limitation, but one that is essential to my purposes.

It solves and ensures passageMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

The overall effect of the political controls would be significan t. In my view, they would operate to strongly discourage the passage of nonconforming amendments and to provide a reasonably strong chance that a state drafting amendment would , if it were actually popular, be enacted. While there is no single aspect of the process that guarantees these results, the combination of effects is likely to be powerful. First, the state agreement largely eliminates the coordination problems and therefore assures that if two-thirds of the states apply, a convention will be called. Second, the joint strategy of the states to write a specific amendment, to announce that a runaway convention would be illegal and improper, to select sympathetic convention delegates, and to attempt to block any nonconforming amendment at the ratification stage should have a significant effect in both blocking a runaway convention and in promot ing passage of t he state drafting amendment .

2NC Solvency: CoordinationThe CP solves coordination problemsMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

The state legislatures could address these difficulties by combining elements of the state drafting procedure with the existing national convention approach. First, the states should hold a voluntary convention in order to agree on a single specific amendment and a strategy for adopting it. By proposing a single specific amendment, the states would significantly reduce the coordination problems among the states and between the states and Congress. With two-thirds of the state legislatures calling for the exact same amendment, Congress would have no discretion to argue that the applications were not for the same subject.

AT: CP = Watered DownNo deficits, reforms are just as successful and any issues are insignificantMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

Obviously, this focus places limits on the normative attractiveness of the reforms that are available. If the state legislatures would be unwilling to enact good reforms, then no good reform could occur. Fortunately, I do not believe this is a significant problem. Given my assumption that a strict supermajoritarian process that uses two

entities is desirable, the reform I propose here is close to what one might regard as the ideal. While the need for state

legislative enthusiasm does require adopting a less than ideal approach, the defects are not so large as to make the proposal unattractive. The best is sometimes the enemy of the good. It makes sense, however, to address these possibly superior alternatives, which state legislatures are unlikely to adopt, after discussing the reform proposal.

AT: Runaways bad / Links to PTXSolves and ensures no runaway failure or Congressional backlashMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

To address this problem, it would be useful for the states to hold a convention , but to do so in a way that avoids the pitfalls of the existing convention method . The Constitution ought to authorize conventions that are both voluntary and advisory. A group of states could choose to hold a convention whenever they deemed it advisable, but no state would be required to attend. The convention would not have any binding powers. Instead, it would allow the states to debate the merits of different proposals. It would also allow them to assess the popularity of different proposals and to compromise on a single amendment to be considered

by each state legislature. A successful convention would endorse a single proposal that each state legislature could then approve. This type of convention would avoid the problems that afflict national conventions under the existing convention approach. First, it could not result in a runaway convention. The convention itself would have no power and its endorsement therefore could not allow a proposal

to avoid state scrutiny. There also could be no runaway convention because proposals would result only from the actions of the state legislatures. Second, calling a convention would not require the states to agree on a single subject. A convention would not require specification of a subject and the delegates could discuss whatever they

deemed important. But because the convention would have no power, it would have an incentive to discuss subjects that the state legislatures were interested in. Third, there would be no need for the convention to agree on specific voting rules or voting rights. While the convention might want to do so, nothing significant would turn on it since it would be an advisory body. The convention could report its votes in a variety

ways, tabulating them based on state population, state equality, or some combination. With this information, the state legislatures would then be in a position to determine which proposals had significant support and to decide whether to formally endorse those proposals. Finally, there would be no problem of congressional sabotage of the convention because Congress would have no authority over it .

AT: Links to PTXCongress doesn’t even need to authorize them if the states agree to itMichael B. Rappaport 10, Hugh and Hazel Darling Foundation Professor of Law, Director, Center for the Study of Constitutional Originalism, “REFORMING ARTICLE V: THE PROBLEMS CREATED BY THE NATIONAL CONVENTION AMENDMENT METHOD AND HOW TO FIX THEM”, November 2010, VIRGINIA LAW REVIEW VOLUME 96 , NUMBER 7, http://www.virginialawreview.org/sites/virginialawreview.org/files/1509_1.pdf, AB)

If at least two-thirds of the states agreed to the application , this would eliminate most of the discretion that Congress ordinarily exercises when there are calls for a limited convention . First, with two-thirds of the states calling for the same convention, Congress would not have to decide whether state applications that differed from one another should be interpreted as calling for a single limited convention. Second, this proposal would also address the situation where Congress holds that there are no limited conventions.132 The contingency portion of this application would address that possibility and require Congress, in those circumstances, to call an unlimited convention. Thus, this proposed application would largely eliminate the two main ways that Congress might hold that applications for a limited convention did not actually require such a convention to be called.

States CP

Solvency

State constitutions sufficient to protect from infringing surveillance - Florida’s 100 new laws proveJenna Buzzacco-Foerster 6/30, “More than 100 new state laws take effect Wednesday,” 6/30/15, http://www.tcpalm.com/news/politics/legislative-session-2015/more-than-100-new-state-laws-take-effect-wednesday_04854714, AZ

A law aimed at protecting Floridians from unwanted surveillance is one of more than 100 that take effect Wednesday. The law — dubbed the Freedom from Unwarranted Surveillance Act — spells out that unmanned aerial drones can’t be used for surveillance. It also says when devices can be used.

“From my standpoint, I think it’s a good start,” said Stephen Myers, owner of Angel Eyes UAV in Naples. “It’s a good beginning.” Drones can be used to assess property taxes, for aerial mapping, and to conduct environmental monitoring. The law also says that drones can be used by a person licensed by the state to perform “reasonable tasks within the scope” of the person’s job. Myers said that could mean insurance companies can use drones for roof inspections or to inspect large properties, like golf courses, for damage following a storm.

Rep. Ray Rodrigues, R-Estero, said he supported the law because it protected Floridians’ privacy, while still allowing some commercial uses. “We’ve seen the technology for drones evolve rather rapidly and the technology has exceeded the statutory privacy protections,” said Rodrigues, who co-sponsored the measure in the House. “ I saw a strong effort to ensure our right to privacy. It addressed the concerns I had.”

The drone law is one of dozens — including the state’s $78 billion spending plan and a nearly $400 million tax cut package — that went into effect Wednesday, the first day of the state’s fiscal year.

States solveJeffrey A. Parness 11, B.A., Colby College, J.D., University of Chicago, taught for six years at the University of Akron School of Law, Northern Illinois University, 2011, “American State Constitutional Equalities”, GONZAGA LAW REVIEW Vol. 45:3, https://www.law.gonzaga.edu/law-review/files/2011/02/Parness.pdf , AB)

American state constitutions can play a key role today in protecting individuals.9 State constitutional laws can afford protections beyond those dictated by federal lawmakers. While the federal Constitution chiefly implies individual rights through recognizing federal and state governments with express and limited

powers, state constitutions often “contain positive or affirmative rights.”10 At worst, expansive state constitutional rights are hortatory, simply duplicating important federal values or iterating unenforceable local values. At best,

they extend new rights locally, deeming unlawful any oppressions that are irrational or uncompelling.11 Because of their narrower setting, in constitutional matters states are more able “to experiment, to improvise, [and] to test new theories . ”12 Thus, if “a state experiment succeeds , others may follow, ” and if an experiment fails, the failure will be isolated.13 As well, because they are more prone to amendment than the federal Constitution,14 state constitutions can more quickly respond to failed experiments, social changes, and new values.15 Of course, for many, too many

amendments may diminish the enhanced or special status of constitutional law.16 State constitutional rights can be read to be independent of, and thus to reach beyond, federal constitutional rights 17 even when the federal and state constitutions are both applicable and employ the same or similar language.18 For example, a reasonable search or seizure for federal constitutional purposes may be an unreasonable search or

seizure under a state constitution.19 A state constitutional right can also follow the federal

constitutional language on federal rights, even though that federal right is inapplicable to the states.20 State constitutions can also expressly recognize rights and limits on governmental conduct that are unaddressed in the federal Constitution.21 Thus, they can expand rights by condemning private as well as public acts resulting in inequalities.22 They can explicitly speak to privacy and other enumerated rights, 23 thus avoiding the difficulties in recognizing similar protections through vague terms like liberty and through unenumerated rights analyses. 24 Further, state constitutions can explicitly limit state governmental acts directed at certain citizens who are far less protected or relatively unprotected under the federal Constitution .25 Finally, comparable constitutional rights and limits may themselves be read differently from state to state. Thus, there can be varying interstate levels of judicial protection for certain comparable rights with heightened judicial review required at times.26 Greater equalities should be especially promoted by state constitutions where significant and unfair inequalities continue without other federal or state law remedies.27 One example is discrimination based upon sexual

orientation. A quick review of contemporary American state constitutions reveals there is already a wide range of local constitutional initiatives furthering equality

States approve, innovation + supportJeffrey A. Parness 11, B.A., Colby College, J.D., University of Chicago, taught for six years at the University of Akron School of Law, Northern Illinois University, 2011, “American State Constitutional Equalities”, GONZAGA LAW REVIEW Vol. 45:3, https://www.law.gonzaga.edu/law-review/files/2011/02/Parness.pdf , AB)

Equalities in employment, housing, schooling, and other settings have broad public support. Greater express state constitutional recognitions of self-executing rights of all persons to be free from employment, housing, schooling, and other discrimination on the basis of race, sex and other inappropriate classifications, subject to limited

legislative oversight, would extend equalities beyond federal law mandates. They would reflect the establishment of fundamental local values and allow for experimentation . They could also prompt varying balances between judicial and legislative authority over equality, both between states and within states depending upon the equality context.

The states solve – the federal government has ceded privacy protection to the statesJeffrey M. Shaman 6, Vincent de Paul Professor of Law, DePaul University College of Law, “THE RIGHT OF PRIVACY IN STATE CONSTITUTIONAL LAW,” 2006, http://org.law.rutgers.edu/publications/lawjournal/issues/37_4/Shaman.pdf

The right of privacy has developed primarily through decisions of the United States Supreme Court interpreting the Federal Constitution.9 Over the years, the Supreme Court has used the Fourteenth Amendment to the United States Constitution10 to formulate an evolving right of privacy that encompasses certain family rights,

reproductive rights, and, most recently, a right of intimate association.11 Yet the Court has placed definitive limits on family and reproductive rights, and also has refused to extend the right of privacy to other areas.12

There is scant agreement among the Justices of the Supreme Court concerning the right of privacy, and at times, the high Court’s commitment to privacy has wavered considerably. As a result of

the Court’s continuing equivocation in this area, the scope of the right of privacy under the Federal

Constitution is considerably uncertain. Given this uncertainty, it was hardly surprising when a number of states stepped into the breach to revitalize the right of privacy. State constitutions, after all, are an

important source of protection for individual rights and liberties, including the right of privacy. Indeed, state constitutions contain various provisions that can be used to protect the right of privacy . Many state constitutions contain due process or law of the land clauses safeguarding liberty that have been

interpreted to ensure the right of privacy.13 Similarly, s tate constitutional provisions that deny the existence of arbitrary power over individual liberty have been construed to protect the right of privacy . 14 State

constitutional provisions guaranteeing equality also are used as a means of protection for the right of privacy. In some states, a right of privacy has been found implicit in constitutional provisions declaring, “All persons are by nature free and independent, and have certain natural and unalienable rights”15 or stating, “The enumeration in this Constitution of certain

rights shall not be construed to deny, impair, or disparage others retained by the people.”16 In modern times, five states—Alaska, California, Florida, Hawaii, and Montana—have amended their constitutions to expressly protect the right of privacy.17 These express provisions provide fertile ground for the recognition of expansive privacy rights. But even where only a more general constitutional provision, such as a due process clause, is available as a source of protection for privacy, some states have been willing to countenance expansive privacy rights. In recent years, as claims have been made to expand the right of autonomy to new dimensions, the states have differed in their willingness to do so. Some state courts have moved forward to expand the right of a woman to choose to have an abortion,

while others have declined to take that course. A number of state courts have recognized the right of intimate association and struck down sodomy laws well before the Supreme Court was willing to do so, while other state courts chose to stand fast with the then prevailing federal approach rebuffing the right of intimate association. Of late, a number of state courts have faced the issue of same-sex marriage or civil union, and have reached various

conclusions concerning it. The Supreme Court of Massachusetts became a pioneer by being the first judicial body in the nation to rule that the right of privacy secured by the state constitution encompassed a right to same-sex marriage.18 Some twenty-eight years before that, the Supreme Court of Alaska pioneered a different sort of privacy by ruling that the state constitutional guarantee of privacy afforded a right to possess marijuana for personal use in the privacy of one’s home,19 although the court later was unwilling to extend that right to the possession of cocaine.20 The Alaska ruling was reminiscent of a few earlier cases upholding, on grounds of privacy, a right to smoke cigarettes or to ingest alcoholic beverages.21 Those decisions, though, fell into desuetude for many years, until they were revived as the foundation for regenerating the right of privacy.

States solve best – they’re already pioneers in privacy lawSomini Sengupta 13, foreign correspondent for The Times, “States rush to fill gap in U.S. privacy laws; Lawmakers see increase in support after accounts of federal surveillance,” lexis, 11/01/13

State legislatures around the United States, facing growing public concern about the collection and trading of personal data,

have rushed to propose a series of privacy laws, including limiting how schools can collect student data and deciding

whether the police need a warrant to track cellphone locations. Over two dozen privacy laws have passed this year in more than 10 states, in places as different as Oklahoma and California. Many lawmakers say that news reports of widespread surveillance by the National Security Agency have led to more support for the bills among constituents. And in some cases, the state

lawmakers say, they have felt compelled to act because of the stalemate in Washington on legislation to strengthen privacy laws. ''Congress is obviously not interested in updating those things or protecting privacy ,'' said Jonathan Stickland, a Republican state representative in Texas. ''If they're not going to do it, states have to do it .'' This year, Texas passed a bill introduced by Mr. Stickland that requires warrants for email searches, while Oklahoma enacted a law meant to protect the privacy of student data. At least three states proposed measures to regulate who inherits digital data, including Facebook passwords, when a user dies.

Some of the bills extend to surveillance beyond the web. Eight states, for example, have passed laws this year limiting the use of drones, according to the American Civil Liberties Union, which has advocated such privacy laws. In Florida, a lawmaker has drafted a bill that would prohibit schools from collecting biometric data to verify who gets free lunches and who gets off at which bus stop. Vermont has limited the use

of data collected by license plate readers, which are used mostly by the police to record images of license plates. California , long a pioneer on digital privacy laws, has passed three online privacy bills this year . One gives children the right to erase social media posts, another makes it a misdemeanor to publish identifiable nude pictures online without the subject's permission, and a third

requires companies to tell consumers whether they abide by ''do not track'' signals on web browsers. More than a year ago, the White House proposed a consumer privacy bill of rights, but Congress has not yet taken on the legislation . And a proposed updating of the 27-year-old Electronic Communications Privacy Act has stalled. Many states have already responded to those opinions. In the past couple of years, about 10 states have passed laws restricting

employers from demanding access to their employees' social media accounts. California set the stage on digital privacy 10 years ago with a law that required organizations, whether public or private, to inform consumers if their personal data had been breached or stolen. Several states followed, and today, nearly every state has a data breach notification law. This year, California amended that landmark law, adding an Internet user's login name and password to the menu of personal information that is covered. The California attorney general's office also has a full-time unit to enforce digital privacy laws.

Privacy Bill CP

1NC ShellPrivacy bill solves – creates a better framework of privacy policyWhite House 12 – The White House [“Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy”, February 2012, https://www.whitehouse.gov/sites/default/files/privacy-final.pdf ] hk

The United States is committed to protecting privacy. It is an element of individual dignity and an aspect of

participation in democratic society. To an increasing extent, privacy protections have become critical to the information-based economy. Stronger consumer data privacy protections will buttress the trust that is necessary to

promote the full economic, social, and political uses of networked technologies. The increasing quantities of personal data that these technologies subject to collection , use, and disclosure have fueled innovation and significant social benefits. We can preserve these benefits while also ensuring that our

consumer data privacy policy better reflects the value that Americans place on privacy and bolsters trust in the Internet and other networked technologies. The framework set forth in the preceding pages provides a way to

achieve these goals. The Consumer Privacy Bill of Rights should be the legal baseline that governs consumer data privacy in the United States . The Administration will work with Congress to bring this about, but it will also work with private sector stakeholders to adopt the Consumer Privacy Bill of Rights in the absence of legislation. To encourage adoption, the Department of Commerce will convene multistakeholder processes to encourage the development of enforceable, context-specific codes of conduct. The United States Government will engage with our international partners to increase the interoperability of our respective consumer data privacy frameworks. Federal agencies will continue to develop innovative privacy-protecting programs and guidance as well as enforce the broad array of existing Federal laws that protect consumer privacy. A cornerstone of this framework is its call for the ongoing participation of private-sector stakeholders. The views that companies, civil society, academics, and advocates provided to the Administration through written comments, public symposia,

and informal discussions have been invaluable in shaping this framework. Implementing it , and making progress toward consumer data privacy protections that support a more trustworthy networked world, will require all of us to continue to work together .

2NC: SolvencyIndividual control over data solves the aff Weitzner et al 14 ( Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk) The principle of Individual Control in the Consumer Privacy Bill of Rights shifts the focus away from the longstanding principle of notice-and-choice to more dynamic and flexible mechanisms . Notice-and-choice is one important mechanism of privacy protection, but the Commerce Department Green Paper process found that routine checking of boxes puts too much

weight on the unmanageable burden of reading privacy policies and does not differentiate among situations that present material privacy risk and those that do not. Whether data is

used in a commercial context, or for basic medical or scientific research, may also be relevant to what kind of individual control is warranted. The C onsumer P rivacy B ill of R ights therefore calls for contextual mechanisms to exercise choice at the time of collection “appropriate for the scale, scope, and sensitivity of the data in question,” and also for additional mechanisms to address the use of personal data after collection. This principle reflects the Big Data

environment in two ways. First, it recognizes that the increasing velocity and variety of data collection make notice-and-choice ineffective ; consumers are asked for consent too frequently and on devices such as mobile phones that are not suited

to deliberate informed consent. Second, it recognizes that the velocity of data includes increased sharing with third parties with whom consumers do not have a direct relationship . Moving away from a one-size-fits-all notice and choice regime in which consumers often face a binary choice (either to give up data control or not to use a service) will strengthen fair exchange of value between consumers and companies by allowing consumers greater choices of how much to share in exchange for a given level of features and benefits. There are certainly contexts in which individual control will play a minor role as compared to other principles such as Respect for Context and Focused Collection. The expanded use of sensors and other developing forms of automated data collection will make notice-and-choice and other mechanisms of control impossible

or infeasible in an increasing number of circumstances. The principles of C onsumer P rivacy B ill of R ights are intended to apply in interactive and dynamic ways appropriate to the technologies they address ; the expansion of Big Data will put a premium on such application .

Privacy principles reduce the risk of leaks Weitzner et al 14 ( Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk)1. Re-identification risk: The risk that personal data can leak from big data research platforms is real . Principles including Transparency, Security, Focused Collection, and Accountability w ill all be important to manage this risk. Transparency will enable regulators , enforcement authorities , and interested members of the public such as advocates and academics to know what kind of data is being released and in what form. Assessing whether the users’ rights to have data held securely should include an assessment of who is able to access the data and therefore whether the re-identification risk can be minimized by binding those individuals to legal commitments to avoid re-identification. The right to have only focused collection of user data will also reduce re-identification risk by limiting gratuitous collection of data. And finally, an organization with strong institutional accountability procedures in place should handle data carefully and only release it publicly after evaluating the risk of re-identification. If the organization fails to consider this risk, then appropriate parties can be held accountable for resulting harm.

Resolves false info and models – their ev assumes the squo Weitzner et al 14 (Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk) 2. Data and model inaccuracy: The Consumer Privacy Bill of Rights can reduce the risk that decisions are made about an individual based on inaccurate information or an incorrect model . The principles of Transparency, Respect for Context, and Access and Accuracy are all useful to ensure fairness in big data decisionmaking. Since the Fair Credit Reporting Act (FCRA) was enacted, individuals have had basic transparency rights enabling them to know that personal information about them is being used for important decisions, as well as the right to access

and correct personal data to ensure that it is accurate. Such transparency is critical to make sure that individuals know their data is being used therefore be able to assure its accuracy or decide to exclude themselves from uses they object to. Similarly, the Access and Accuracy affords a mechanism to assure that data and the inference drawn from are accurate. While most consumers will not be able to identify errors in models, 5 transparency on inferences drawn by a model

may shine light on algorithmic errors, The CPBR Transparency principle also requires that companies explain how they will use data and this should be understood to include relevant information about the decision-making models and algorithms. There is work to be done to define how much of the decision-making metrics should be exposed, as some of that information will be proprietary. Enough context about the decision metrics should be made available to enable consumer

protection enforcement agencies and other stakeholders to assess whether the decisions models are fair. These principles are reinforced by the Respect for Context principle. When data is used out of context, the CPBR provides

that if “companies decide to use or disclose personal data for purposes that are inconsistent with the context in which the data was disclosed,

they must provide heightened measures of Transparency and Individual Choice.” This will help individuals to flag uses of information that are likely to create risk and increase the likelihood that both personal data and models derived from personal data are accurate.

Transparency is key Weitzner et al 14 (Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk)

First and foremost, an expanded commitment to transparency is necessary to guard against the risk of unfair, inaccurate use of personal data. The variety of personal information in big data systems requires a more active transparency in which individuals, consumer advocates and enforcement agencies can understand precisely how personal data is used, in some cases with resolution down to the level of individual data elements. Recognizing that individual control and consent may not be practical for high velocity

collection and use of personal data, such systems will place more reliance on respect for context , assuring the information is only collected where the context makes such collection reasonably apparent, and that the use is consistent with the original context of collection. In context use should be able to proceed without individual consent, but out of context use would require increased transparency and individual control. Large collections of personal data create increased risk of

breach and loss, to security must be given special attention. As important decisions may be made through big data systems, access and accuracy rights are vital to be sure individuals are not treated unfairly . And

finally, institutional accountability mechanism are vital to assure that all of the principles in the Consumer Privacy Bill of Rights are adhered to the use

of big data systems. Beyond just the substantive principles of the Consumer Privacy Bill of Rights, the larger policy process that the Administration’s privacy framework puts into place has a dynamic, flexible quality that will be especially important to help American society evolve new privacy norms in response to the challenge of

large scale analytics. As explained by Ken Bamberger and Deirdre Mulligan, the evolution of ‘privacy on the ground’ has enabled the evolution of privacy rules in a 8 manner that is responsive to public requirements while at the same allowing flexibility for the development of new services and

business models. The C onsumer P rivacy B ill of R ights framework is designed to facilitate the continuous evolution of norms and rules as large-scale analytics drive new business models.

2NC: Agenda PTX NBRead the Albert evidence specific to constitutional amendments

2NC: Big Data NBThe CP keeps up with big data innovationsWeitzner et al 14 (Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, 4/4/14 https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf, AB)For each of the big data privacy risks identified here, the substantive principles in the C onsumer P rivacy B ill of Rights offer guidance to develop concrete responses to those risks in a manner that provides clarity for individuals and flexibility for innovative big data analytic applications. Given the rapid evolution of big data analytic applications, the unique procedural aspects of the C onsumer P rivacy B ill of R ights also offers a means by which principle-based privacy approaches to new applications can be developed rapidly as enforceable codes of conduct and then enforced under the FTC’s existing statutory authority

2NC AT: Ethics S. DeficitSolves ethics claims – specifically designed to become conscious of the use of data collection Weitzner et al 14 (Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk) 3. Unfair use of sensitive inferences: Even if inferences are accurate, it may be unfair as a matter of ethics or public policy to use such information for certain purposes . For example, behavioral profiling techniques used for marketing

purposes can provide advertisers the ability to reach audiences defined by age, ethnicity, race, gender and other sensitive categories. The recent statement of privacy principles from leading civil rights organizations (“Civil Rights Principles for the Era of Big Data”) offers useful guidance on this point. The R espect for C ontext principle was specifically designed to prevent misuse of such profiles for more sensitive, harmful discriminatory purposes. As the CPBR explains: The Administration also encourages companies engaged in online advertising to refrain from collecting, using, or disclosing personal data that may be used to make decisions regarding employment, credit, and insurance eligibility or similar matters that may have significant adverse consequences to consumers…. Such practices also may be at odds with the norm of responsible data stewardship that the Respect for Context principle encourages.” 6 Just because it is possible to learn or infer a sensitive characteristic of an individual, that does not imply that it is either legally or ethically permissible to use such an inference (no matter how accurate or inaccurate) for all purposes. However, addressing the use of such characteristics is a matter of social policy broader than privacy policy. Antidiscrimination laws and norms of countries around the world regularly prohibit acting in a discriminatory manner based on information about an individual, even if it is publicly available. Indeed, some of the personal characteristics that entail the

highest degree of legal concern include gender and race, attributes of individuals that are readily observable and in most cases public information. The T ransparency and A ccess A ccuracy principles provide mechanisms that can be helpful in identifying where data collected about individuals is used in ways contrary to legal or ethical principles. Despite this, reflexive and poorly justified application of the Fourth Amendment third party doctrine can lead to the “unwarranted” assumption that as soon

as personal data is public it can be used for any purpose. The Respect for Context principle stands in opposition to this view and squarely for the proposition that privacy interests in personal information are determined as much by how the data is to be used as is the public or non-public status of the data.

2NC AT: Circumvention S.DeficitNo risk of a solvency deficit – transparency principle resolves circumvention Weitzner et al 14 ( Weitzner, MIT Computer Science and Artificial Intelligence Lab, Abelson, MIT Department of Electrical Engineering and Computer Science, Dwork, Microsoft Research, Rus, MIT Computer Science and Artificial Intelligence Lab, Pentland, MIT Media Lab Vadhan, Harvard University, [Daniel Weitzner, Hal Abelson, Cynthia Dwork, Cameron Kerry, Daniela Rus, Sandy Pentland, Salil Vadhan, “Consumer Privacy Bill of Rights and Big Data: Response to White House Office of Science and Technology Policy Request for Information”, DP: 4-4-14 DA: 7-1-15, https://ipp.mit.edu/sites/default/files/documents/MITBigDataPrivacyComments.pdf ] hk) The Transparency Principle requires companies to disclose when and why they collect individuals’ personal data , so that consumers can guard against misuse of their personal data . Beyond just individual awareness, transparency has a vital function for the evolution of privacy norms themselves. In the modern history of information privacy, transparency has enabled consumer advocates, policy makers, enforcement agencies, the press and the interested public to engage in dialogue

and criticism about how commercial privacy practices are evolving. It is only with awareness of actual privacy practices that society can have a meaningful dialogue about which practices are acceptable and which fall outside legal and/or social

norms. Meaningful transparency in big data systems will require going beyond just disclosure of policies as to personal data. Enabling citizens, governments and advocates to address big data privacy challenges requires a more active transparency - the ability to be aware of and track the actual flow and use of personal information. Big Data is different from the regular use of personal data in that consumers are not only affected by the primary collection of data, but also by the subsequent aggregation of that data to inform algorithms that govern companies’ decision-making and affect individual users. Therefore users need additional tools to help them follow complex data flows and understand what picture of them this data enables, beyond just the general disclosures in privacy policies. For example, disclosing to an individual that a health insurance company knows her address does not inform her of the likelihood that this information is being combined with multiple other databases to create “neighborhood profiles” that in turn could affect pricing for individual customers within those neighborhoods. The requirement that companies detail how they will use gathered data bears

more weight in the Big Data context than requirements that companies simply disclose what personal data they collect. A transparency framework that updates consumers when companies come up with new uses for aggregated personal data will increase user trust and help ensure that accountability takes place at the rate of business growth, rather than at the rate of governmental enforcement

DAs

Privacy Turn

1NCIncreased internet freedom would result in desensitization of human rights abuses and an increase in divisions.Jamie Metzl, 69, served as Deputy Staff Director and Senior Counselor of the United States Senate Committee on Foreign Relations,[7] Senior Coordinator for International Public Information and Senior Advisor to the Undersecretary for Public Diplomacy and Public Affairs at the Department of State,[8] and Director of Multilateral and Humanitarian Affairs on the National Security Council, “Information Technology and Human Rights,” http://www.heinonline.org.turing.library.northwestern.edu/HOL/Page?page=705&handle=hein.journals%2Fhurq18&collection=journals, shlee

In an information age where satellite television broadcasts and Internet appeals to address mass violations of human rights reach world populations on a daily basis, there is a danger that people will become callous to reports of difficulties everywhere in the world, that the limited human capacity for absorption, compassion, and responsive action will become spread so thin as to dilute popular outrage and forestall responsive action. There is also a danger that as information technology systems continue to play ever greater roles in the international worlds of commerce and communications, those without access to such systems will be denied the tools necessary to improve their conditions. This appears to be happening even in this early stage in the development of information technology systems. Although Internet access can be achieved through satellite, packet radio,

microwave, or cable links, it is still mostly done by telephone, access to which is highly concentrated in the wealthiest countries!' It is thus not surprising that access to the Internet is no better distributed internationally.° This international division between rich and poor is often mirrored within states. In the United States, for example, where 60 percent of global computer networking takes place, the Rand Corporation has estimated that while only 3 percent of the bottom income quartile of the population had access to computer networks in 1993,

23 percent of the top quartile had access during the same period" In an information age , disparities in access to information and sources of knowledge can only exacerbate existing divisions between rich and poor societies, states, and individuals.

2NC

Increased privacy rights results would result in more oppressive forms of controlMorozov 11 (Evgeny Morozov, Bernard L. Schwartz Senior Fellow at the New America Foundation and a contributing editor of Foreign Policy, “Whither Internet Control?”, April 2011, http://muse.jhu.edu/journals/journal_of_democracy/v022/22.2.morozov.html,shlee)

Most talk of " liberation technologies" as ways of weakening "Internet [End Page 62] control" turns out to be about the technological rather than the sociopolitical dimension . But what if success in that area is met with larger and more sophisticated efforts at exerting sociopolitical control ?

Scholars still know little about the factors that influence the dynamics and the distribution of the two kinds of control. As technological methods lose efficacy, sociopolitical methods could simply overtake them: An authoritarian government might find it harder to censor blogs, but still rather easy to jail bloggers. Indeed, if censorship becomes infeasible, imprisonment may become inevitable . Thus, if the technological dimension of Internet control were one day to be totally eliminated , the upshot could be a set of social and political barriers to freedom of expression that might on balance be worse —not least

because "liberation technologies" would be powerless to overcome them. It would be a cruelly paradoxical

outcome indeed should liberation technology's very success spur the creation of a sociopolitical environment in which there would be nothing for technology to "liberate. ”

Politics DA

1NC - UnpopularThe plan is ridiculously capital-intensiveAlbert 14 (Richard Albert, Associate Professor at Boston College Law School, "Constitutional Disuse or Desuetude: The Case of Article V." Boston University Law Review 94, (2014): 1029-., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1758&context=lsfp, AB)

“Nothing is ‘easy , ’” writes Henry Paul Monaghan, “ about the processes prescribed by Article V .”112 Scholars

today describe the requirements of Article V as practically impossible to meet .113 For instance, Bruce

Ackerman views Article V as establishing a “formidable obstacle course.”114 Sanford Levinson argues that “Article V, practically speaking, brings us all too close to the Lockean dream (or nightmare) of changeless stasis,”115 and that it is “the Constitution’s most truly egregious feature.”116 Rosalind Dixon has described the “virtual impossibility of formal amendment to the Constitution under Article V.”117 Jeffrey Goldsworthy observes that “the supermajoritarian requirements of Article V are so onerous as to be arguably undemocratic, by making it much too easy for minorities to veto

constitutional amendments.”118 Vik Amar explains that Article V establishes “particular and cumbersome processes.”119 And Richard Fallon laments that “[e]ven under the best of circumstances, the requirement that three-fourths of the states must ratify constitutional amendments makes it nearly impossible to achieve significant change in our written Constitution through the Article V process.”120 Article V, in short, is seen as a dead end. This is not a new perspective on the difficulty of successfully using Article V. Writing in 1885, Woodrow Wilson decried the “cumbrous machinery of formal amendment erected by Article Five.”121 Even earlier, at the adoption

of the Constitution, John DeWitt doubted whether it would ever be possible to amend the Constitution using Article V: “[W]ho is there to be found among us, who can seriously assert, that this Constitution, after ratification and being practiced

upon, will be so easy of alteration?”122 DeWitt believed states would have views too different to meet Article V’s required supermajority threshol d: Where is the probability that three fourths of the States in that Convention, or three fourths of the Legislatures of the different States, whose interests differ scarcely in nothing short of everything , will be so very ready or willing materially to change any part of this System, which shall be to the emolument of an individual State only?123

The answer, he predicted, was that formal amendment would be rare.

2NC - UnpopularIt’s unpopular – this link turns the aff and causes circumventionAlbert 14 (Richard Albert, Associate Professor at Boston College Law School, "Constitutional Disuse or Desuetude: The Case of Article V." Boston University Law Review 94, (2014): 1029-., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1758&context=lsfp, AB)Political parties and increased political polarization may have exacerbated the difficulty of Article V . As American political parties have become nearly evenly divided across both the federal and state governments over the last two generations, writes David Kyvig, “divisions within society together with the requirements of Article V frustrated every attempt to bring about fundamental change.”132 Kyvig adds that the close balance between political parties and among the forces of federalism alongside the “centripetal power of the federal government and the centrifugal strength of the states” have combined to inhibit

agreement on formal amendment.133 Daryl Levinson and Rick Pildes observe that political parties in the United States “today are both more internally ideologically coherent and more sharply polarized than at any time since the turn of the twentieth century.”134 Rick Pildes connects the onset of today’s hyperpolarized politics to the adoption of the Voting Rights Act of 1965: [T]his polarization reflects the deep structural and historical transformation in American democracy unleashed in 1965 by the enactment of the VRA. That moment began the process of ideologically realigning the political parties and of purifying them, so that both parties are far more ideologically coherent, and

differentiated from each other, than at any time in many generations. The culmination of that historical transformation – which can be seen as the maturation or full realization of American democracy – is today’s hyperpolarized partisan politics.135 Pildes concludes that “[t]he reality is that the era of highly polarized, partisan politics will endure for some time to come.”136 This only complicates an already difficult formal amendment process that relies on strong supermajorities across both the federal and state institutions. Nevertheless, as Christopher Eisgruber cautions, measuring amendment difficulty is itself difficult because amendment difficulty turns “upon a number of cultural considerations, such as the extent to which state politics differ from national politics and the extent to which people are receptive to or skeptical about the general idea of constitutional amendment.”137 The difficulty of measuring amendment difficulty has not discouraged scholars from comparing

amendment difficulty across nations. In such measures, the United States has ranked among the most difficult to amend.138

Terror DA

Case TurnTurns case – terrorism kills human rightsOffice of the United Nations High Commissioner for Human Rights 8 “Human Rights, Terrorism and Counter-terrorism”, Fact Sheet No. 32, July 2008, http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf, AB)Terrorism aims at the very destruction of human rights , democracy and the rule of la w. It attacks the values that lie at the heart of the Charter of the United Nations and other international instruments:

respect for human rights; the rule of law; rules governing armed conflict and the protection of civilians; tolerance among peoples and nations; and the peaceful resolution of conflict. Terrorism has a direct impact on the enjoyment of a number of human rights , in particular the rights to life, liberty and physical integrity. Terrorist acts can destabilize Governments, undermine civil society, jeopardize peace and security, threaten social and economic development, and may especially negatively affect certain groups. All of these have a direct impact on the enjoyment of fundamental human rights. The destructive impact of terrorism on human rights and security has been recognized at the highest level of the United Nations, notably by the Security Council, the General Assembly, the former Commission on Human Rights and the new Human Rights Council.7 Specifically, Member States have set out

that terrorism: • Threatens the dignity and security of human beings everywhere, endangers or takes innocent lives, creates an environment that destroys the freedom from fear of the people, jeopardizes fundamental freedoms , and aims at the destruction of human rights; • Has an adverse effect on the establishment of the rule of law, undermines pluralistic civil society, aims at the destruction of the democratic bases of society, and destabilizes legitimately constituted Governments; • Has links with transnational organized crime, drug trafficking, money-laundering and trafficking in arms, as well as illegal transfers of nuclear, chemical and biological materials, and is linked to the

consequent commission of serious crimes such as murder, extortion, kidnapping, assault, hostage-taking and robbery; 8 • Has adverse consequences for the economic and social development of States, jeopardizes friendly relations among States, and has a pernicious impact on relations of cooperation among States, including cooperation for development; and • Threatens the territorial integrity and security

of States, constitutes a grave violation of the purpose and principles of the United Nations, is a threat to international peace and security, and must be suppressed as an essential element for the maintenance of international

peace and security. International and regional human rights law makes clear that States have both a right and a duty to protect individuals under their jurisdiction from terrorist attacks. This stems from the general duty of

States to protect individuals under their jurisdiction against interference in the enjoyment of human rights. More specifically, this duty is recognized as part of States’ obligations to ensure respect for the right to life and the right to security. The right to life, which is protected under international and regional human rights treaties, such as the International Covenant on Civil and Political Rights, has been described as “the supreme right”8

Case

Privacy Advantage

Amendment FailsPlan causes privacy paternalism and OVERKILL with an amendmentAdam Thierer 14, senior research fellow at the Mercatus Center at George Mason University with the Technology Policy Program, Jan 23, 2014, “Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?”, https://privacyassociation.org/news/a/do-we-need-a-constitutional-amendment-restricting-private-sector-data-colle, AB)

Astonishingly, Rosen doesn’t seem to think that we should be free to do so. During our NPR debate, he said his amendment would disallow individuals from surrendering private data or privacy because he viewed these rights as “unalienable.” But Rosen should

keep in mind that not everyone shares the same privacy values and that many of us will voluntarily trade some of our data for the innovative information services we desire. If that choice is taken away from us then “privacy regulation ,” as privacy scholar Daniel Solove has recently noted, “ risks becoming too paternalistic . Regulation that sidesteps consent denies people the freedom to make choices,” Solove argues. “The end result is that either people have choices that are not meaningful or people are denied choices altogether.” By making privacy choices for us, Rosen’s proposed amendment would likely suffer from that same sort of privacy paternalism. Such paternalism is particularly problematic in this case since privacy is such a highly subjective value and one that evolves over time. As Solove notes, “the correct choices regarding privacy and data use are not always clear. For example, although extensive self-exposure can have disastrous consequences, many people use social

media successfully and productively.” Privacy norms and ethics are changing faster than ever today. One

day’s “creepy” tool or service is often the next day’s “killer app.” Finally, practically speaking, a constitutional amendment is overkill since many other options exist for protecting individual privacy from private data collection efforts. User education and empowerment is essential. So, too, is privacy by design and an

expanded role for privacy professionals within private organizations. Targeted enforcement of existing laws, torts and other measures will continue to be applied here and perhaps even expand in their focus.

And, again, more constraint on government’s ability to commandeer private databases is absolutely essential. These are all far more practical and less-restrictive steps that can be taken without resorting to the sort of constitutional sledgehammer that Jeff Rosen favors. or upending the information economy.

Privacy Turn – Takes Away FreedomPlan constrains private entity which takes AWAY freedom – turns caseAdam Thierer 14, senior research fellow at the Mercatus Center at George Mason University with the Technology Policy Program, Jan 23, 2014, “Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?”, https://privacyassociation.org/news/a/do-we-need-a-constitutional-amendment-restricting-private-sector-data-colle, AB)

There are several problems with Rosen’s proposal—legal, economic and practical. The bottom line is

that a constitutional amendment would be too sweeping in effect and that better alternatives exist to deal with the privacy concerns he identifies. Conflating Two Different Things First, it goes without saying that a constitutional amendment is not a matter to be taken lightly. It alters the underlying fabric of our republic and represents the ultimate legal constraint. Rosen nonetheless thinks one is needed to cover both governmental- and private-sector data collection practices, even though the Fourth Amendment already applies to government. Many people are rightly outraged about the extent of government surveillance activities that have come to light in the wake of the Snowden revelations. A crucial component of these revelations is that our government is increasingly vacuuming up data from private entities—sometimes with their

consent, but often without those private entities having any choice in the matter (or perhaps not even knowing about it at all). This leads many privacy advocates to make a big leap: Because much of the data that our government collects today originates from private data collection efforts, we should just treat those private entities the same as government actors. “Once data is collected by private parties, the government will inevitably demand access,” Rosen says. Therefore, he says, we should impose the same data collection restrictions on private actors that we impose on

governments. Of course, it’s always been true that “the government will inevitably demand access” to private data, but to the extent it is a growing problem, Rosen and other privacy advocates should redouble their efforts to constrain government surveillance powers and the ability to indiscriminately suck up privately held data. We could start with strong ECPA reform, elimination of the third-party doctrine,

and other bolstered Fourth Amendment constraints on national security and law enforcement powers. Importantly, a private entity is just not the same as a government entity, and we should continue to distinguish between them when crafting data collection policies. Rosen says that “distinction between surveillance by the government and surveillance by

Google makes little sense,” but in reality, the differences between public and private entities remains profound. Private entities cannot fine, tax or imprison us. And while we can escape the orbit of private companies and their services, the same is not true for governments. We need to have serious discussions about how to help people better manage their privacy preferences, but if we begin those conversations by mistakenly conflating government and corporate power, then the end result will be sweeping controls on our modern information economy. Which is the next problem with Rosen’s proposal: It would create serious social and economic trade-offs that he fails to consider. In terms of social trade-offs, a constitutional amendment limiting data collection might conflict with certain speech and information-gathering freedoms. As Professor Eugene Volokh has noted, at least

here in the U.S., “We already have a code of ‘fair information practices,’ and it is the First Amendment, which generally bars the government from controlling the communication of information … whether the communication is ‘fair’ or not.” Meanwhile, recent commercial speech jurisprudence—such as the Supreme Court’s 2011 decision in Sorrell v. IMS Health Inc.—has bolstered First

Amendment protections for data-gathering and use. There would also be economic trade-offs associated with Rosen’s proposed amendment. Private data collection is the fuel that powers our information economy. It creates value for consumers by making possible innovative goods and services at a great price—often free. Banning private data collection and use will likely mean fewer choices or higher prices. That’s why many of us already trade away some of our personal

information in exchange for digital services that improve our lives in other ways. For example, the

same location “tracking” techniques that Rosen and many others decry as privacy violations are also what enable the free mapping and traffic services that we rely on daily. Shouldn’t we be allowed to make that trade?

Not having a clear definition of privacy turns caseChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf, AB)

Although the conclusions put forth in this article do not in themselves dictate any particular legal result, they should nonetheless serve to inform the development of Canada’s fledgling privacy tort. We ought to know what privacy is, and what interests underlie it, before we set about fine-tuning a legal test designed to protect it. The same point

can perhaps be put better in the negative: without a clear conceptual account of privacy, “a legal privacy right would be ”, as Delany and Carolan note, “ incomplete, incoherent, and liable to cause confusion”. 230 An

appellate court tasked with determining the scope of a Canadian privacy tort will have to identify the nature of a privacy invasion, find an appropriate doctrinal basis for the action, and decide how to balance competing interests in privacy and freedom of speech. I have argued throughout this article that a coherent understanding of privacy must include both a physical and an informational dimension. The American approach, which recognizes both the wrongful disclosure of information and intrusions on private activities, provides a more comprehensive and conceptually justified response than the narrower “informationist” approach employed in New Zealand and England.

Privacy Doesn’t SolveToo vague to be legitChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf, AB)

The “right to be let alone” occupies a hallowed place in privacy discourse. Although the phrase was coined by Judge Cooley42—who used it not to justify a right to privacy, but rather to explain why tort law regards trespass to the person as wrongful—it is now generally attributed to Warren and Brandeis, who invoked it throughout their seminal 1890 article.43

The latter authors analyzed numerous cases of trespass, defamation, confidence, and especially common law copyright, and identified a latent principle of privacy—operating

unarticulated— which they argued should thenceforth be protected independently, as a distinct tort.44 This principle of privacy, expressed as a “right to be let alone”, is anchored in the more

fundamental interest of an “inviolate personality”.4 The Warren and Brandeis formulation has come under much academic criticism. The first problem is its vagueness.46 Because neither the “right to be let alone” nor the concept of “inviolate personality” is adequately defined, 47 the article gives no practical or conceptual guidance on the scope of the right.48 A related criticism is that the phrase “right to be let alone” itself appears to be less a definition of privacy than simply a description of one example of it.49

Privacy is too sweeping/broadChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf, AB)

The second criticism, stemming from the above mentioned vagueness, is that this conception of privacy is overly broad. As Gavison explains: [It] cover[s] almost any conceivable complaint anyone could ever make. A great many instances of “not letting people alone” cannot readily be described as invasions of privacy. Requiring that people pay their taxes or go into the army, or punishing them for murder, are just a few . . . examples.50 This conceptual over breadth is evident in how the “right to be let alone” has been used in American constitutional jurisprudence, where it is often equated with privacy51 and is taken to encompass the right to “live one’s life as one chooses”. 52 This includes the “privilege of an individual to plan his own affairs . . . [and] do what he pleases”.53 This “substantive”54 conception of privacy confers a zone of decisional autonomy, and currently forms the basis for the right to abortion in American constitutional law.55 It has been much criticized as being really an “assertion of liberty per se [rather] than one of privacy”.56 A narrower and clearer definition of privacy is needed.

Focus on surveillance as information gathering ignores content of the surveillance – causes restriction which turns the caseChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational

Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf, AB)

Conceiving of privacy as a claim to control personal information gets us very close to understanding its essence.63 Simply put, we intuit privacy as a claim to control, and this intuition is reflected in the social norms that surround us.64 We feel that this conception of privacy is the reason someone has a moral claim to keep the contents of his diary secret; and reasonable people reflect that understanding by respecting this right, or at least by intuiting that reading a person’s diary violates something we all sense to be private. Furthermore, as I explain in section

two, the claim to control personal information is closely associated with the values underpinning privacy (especially the values of dignity and autonomy). However, there are three significant problems with control-based definitions. The first problem is that insofar as they concentrate on information,65

they are too restricted.66 We all recognize, intuitively, that privacy can be invaded even where information is not communicated, such as where a peeping tom trains his telescope on a woman’s bedroom to watch her undress. A definition of privacy that fails to capture such physical intrusions simply lacks intuitive coherence. It might be suggested that informational control can capture this example, the argument being that the tom has in fact received information about his victim (in the sense that he has learned what she looks like without clothes). This argument is problematic however, owing to its artificiality. Parker responds to it by asking us to imagine that the tom and the woman are lovers.67 Is it still sensible to regard the tom, when he sneaks a peak at his lover through the window after leaving her side, as obtaining information about what she looks like naked—information he already has?68 If the answer is no, then such peeping falls outside this definition of privacy, resulting in an intuitive under-inclusiveness. Even if we strain and answer yes because the man has learned that his lover remains

undressed or is in a different pose, this information-based approach clearly fails to capture the true essence of the invasion.69 It is not that information has been acquired but rather that she is being “looked at . . . against her wishes”.70 Wacks explains: What is essentially in issue in cases of intrusion is the frustration of the legitimate expectations of the individual that he should not be seen or heard in circumstances where has not consented to or is unaware of such surveillance. The quality of the information thereby obtained, though it will often be of an intimate nature, is not the major objection.71 These observations lead to a related point. As Moreham has convincingly argued, by failing to appreciate the true essence of the complaint, this information-based approach necessarily fails to appreciate the gravity of the privacy violation itself, and therefore must logically undervalue it.72 This is because, to be internally coherent, the information-based approach must regard the information learned as the only relevant factor when assessing the gravity of an invasion; but if we consider Parker’s peeping lover example, we see that very little new information has in fact been communicated. Consequently,

as the information learned was negligible, so too must be the violation of privacy. Such an approach is clearly inadequate if we regard this example as a serious violation of privacy.73 So,

the first major problem with the “control over information” approaches is their narrowness, in that they fail to adequately capture what we intuit—that physical intrusions violate privacy for reasons unrelated to, and irrespective of, any information that may also be gleaned (or subsequently published) as a consequence of an intrusion. It is the looking (or listening or touching) itself, not the acquisition of

information, that is offensive to our intuitive sense of privacy. Furthermore, as I explain in section two, the values underpinning privacy, and the reasons why it is important, strongly support including a physical intrusion dimension in our definition. Before moving to the remaining criticisms, it is worth noting that there is widespread academic74 and law commission75 recognition, and some judicial recognition, that physical intrusions lie at the conceptual core of privacy

Their definition of privacy is vague which causes exclusionChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational

Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf, AB)

A second criticism of control-based definitions concerns ambiguity in the manner in which “control” is used by various commentators.77 If control is used, as Fried uses it,78 to mean actual control, and

privacy is thus the state of controlling information, it follows that a person who cannot exert control cannot enjoy privacy.79 But surely this cannot be correct, for it would mean that a person could not assert a right to privacy even in relation to highly sensitive personal information gathered while she is in a public place80—a position roundly rejected by academics,81 the House of Lords,82 the European Court of Human Rights,83 the New Zealand Court of Appeal84

and the Supreme Court of Canada.85 A related problem here is that treating privacy as a state of actual control over information may suggest a loss of privacy where there is only the threat of a loss.86 Moreham illustrates this by noting that if X had a machine capable of reading all of Y’s emails, and also of seeing Y’s naked body through her clothes, Y could not be said to have actual control over that information. So even if X never actually used the

hypothetical device, the mere fact that he had it would violate Y’s privacy.87 In short, “[c]ontrol-based definitions therefore fail to distinguish between those situations where there is a risk of unwanted access and those where unwanted access has in fact been obtained”.88 A better conception of privacy is thus to

formulate it, as Westin does, as a claim to control information, rather than a state of control itself.89 A third criticism of control-based definitions concerns their potential over breadth.90 This stems from the fact that many

authors fail to identify with precision the types of information falling within a controlbased conception of privacy. Simply put, defining privacy as a claim to control information relating to one’s self does little to help us know what information is in fact private. On a plain reading, it could mean that any information about a person is private, including the colour of her eyes or even her name—

information that, to be sure, few would intuit to be private. What is needed is some conceptual device to guide us in ascertaining what information is private. I return to this issue, as well as to the concept of privacy as a claim to control, after considering the remaining conceptions of privacy.

Squo SolvesNew ECPA legislation restores privacy rights – status quo solvesChris Calabrese 7/5, the legislative counsel for privacy-related issues in the American Civil Liberties Union, “Post USA Freedom Act: There's more to be done,” 7/5/15, http://www.ourmidland.com/opinion/editorials/post-usa-freedom-act-there-s-more-to-be-done/article_6676dd8c-7565-5ba4-8387-0158caae0784.html, AZ

But unless ECPA is reformed to reflect modern realities, government agents will continue to assert the authority to search our communications and our private possessions without a warrant and without showing any evidence whatsoever that a crime has been committed.

That’s an intolerable and completely unwarranted invasion of our privacy. It isn’t what the law’s authors intended, of course. But government agencies are taking advantage of ECPA’s unintended consequences to evade constitutional checks on their powers. And as long as ECPA remains on the books as written, it no longer represents an unexpected assault on our liberty. It is an intentional one.

Fortunately, members in both houses of Congress , led by Senators Mike Lee and Pat Leahy, and Representatives Kevin

Yoder and Jared Polis, have introduced legislation to reform ECPA, and restore Fourth Amendment protections to our online communications . The ECPA Amendments Act and Email Privacy Act, respectively, would restore the law’s original purpose to protect privacy in the ways we communicate, transact businesses, learn and recreate today by protecting emails and other communications stored with third party service providers for any amount of time.

Their legislation has broad, bipartisan support. It is backed by hundreds of members in Congress, including more than 270 House members. Outside the halls of Congress, conservatives, moderates and liberals, small and large businesses, labor unions, civil libertarians and former prosecutors all advocate reforms to an obsolete law that threatens the liberty and prosperity of the American people. Congress has regularly had to pass reforms to legislation that technology has rendered obsolete and vulnerable to exploitation by the executive branch. We’re calling on ECPA to be next.

Since our founding as a nation, Americans have insisted that we be secure in our persons and secure in our liberties. We made progress toward that end with the passage of the USA Freedom Act. The next step is the reform of ECPA, and re-establishing that neither changes in technology nor laws that have outlived their purpose can be allowed to infringe on Americans’ privacy protections.

Your evidence is overstated – there is no root cause, and checks on surveillance in the status quo prevent escalation or injusticeCarolyn Doyle & Mirko Bagaric 5, “The right to privacy: appealing, but flawed”, The International Journal of Human Rights, Volume 9, Issue 1, 2005, p. 3-36, Taylor & Francis Online, AB)

There are, of course, infinite examples of people being persecuted, abused or discriminated against

because of personal attributes (such as their religion or political opinion) which have been identified by

others or by the State. This naturally tends to invite suspicion concerning disclosure of personal information. However, to draw a connection between this type of injury and the absence of privacy is misguided – it fails to identify the root cause of such conduct. People were not demonised, persecuted and murdered in Nazi Germany because there was no right to privacy, but because of the implementation by a totalitarian regime of policies based on a racist

ideology which tapped into pervasive anti-Semitic attitudes in the community.132 In liberal democracies such as Australia, the strongest safeguards against the misuse of personal information by the State are the checks and balances built into the system through the separation of powers and the rule of law, and ultimately, the accountability of the executive government to the people at democratic elections. State agencies may only collect and use personal information about citizens if such action comes within the executive

power of the State or is specifically authorised by law. Unauthorized action can be challenged in the courts.

Moreover, the trend in recent times has been to provide further protection in the form of legislation such as the Privacy Act (Cth) 1988 which imposes obligations in relation to the collection, use and disclosure of

information which the State is legally authorised to collect. Gibbs argues that the danger of introducing the concept of privacy into legal discourse is that ‘it starts to colonize the various rights of action that already exist’.133 Bundling up complaints about the acquisition, disclosure and use of personal information under the heading ‘privacy’ militates against the clear and precise identification of the interests at stake and what, if any, remedies should be granted by the law

when those interests are compromised.134 As a general rule, the misuse of personal information to discriminate

against a person in employment or the provision of services is best addressed by laws which are specifically directed against the attitudes and conduct which cause the harm , rather than by a general right of privacy. Anti-discrimination laws fulfil this function. Of course, it may also be necessary to impose restrictions on the release of personal information held by private and public sector organisations in order to minimise the possibility

of such information falling into the hands of criminals and sociopaths. But the object of such laws is the protection of personal security and safety, not privacy per se.

Quit your whining – privacy right concerns are unfounded and status quo solvesCarolyn Doyle & Mirko Bagaric 5, “The right to privacy: appealing, but flawed”, The International Journal of Human Rights, Volume 9, Issue 1, 2005, p. 3-36, Taylor & Francis Online, AB)

The existence of a right to privacy is dubious. Even if such a right does exist it is not a very important right, ranking well down in the list of interests that are conducive to human flourishing. Privacy proponents have been incapable of explaining the foundation for such a right and why it should enjoy a high level of legal protection. The present level of protection of privacy in specific contexts both through legislation and at common law is adequate , particularly in view of the recourse now available under the doctrine of confidence in relation to public disclosures of intimate information. The right to privacy can be seen as a late-twentieth/early twenty-first century First World invention, indicative of a highly individualistic society fearful of the capabilities of the technology it has developed. However the alarmist rhetoric of privacy advocates who proclaim the imminent demise of privacy

does not match reality: in fact, it is arguable that citizens in Western societies enjoy a level of de facto privacy unprecedented in history .158 As to the threats posed by the monitoring capabilities of

the new information technologies, it is now becoming apparent that technology itself can provide the means to counter them.159 The current legal focus and level of discussion concerning the right of privacy is a clear illustration of the human propensity for losing perspective. It follows that v ery few interests should be subjugated to the right of privacy.

Manufacturers are starting to respect privacy rights – account for privacy concerns through the national data protectionMarc Dautlich and Cerys Wyn Davies 6/30, head of information law at Pinsent Masons and partner, “Drone manufacturers can help operators respect privacy rights, says watchdog”, 6/30/15, http://www.out-law.com/en/articles/2015/june/drone-manufacturers-can-help-operators-respect-privacy-rights-says-watchdog/, AZ

Drone manufacturers can help the organisations wishing to operate them respect privacy rights by warning of the "potential intrusiveness" of their use, an EU privacy body has said.

The Article 29 Working Party, a committee made of up representatives from the national data protection

authorities (DPAs) throughout the EU, said the manufacturers could also put information on their packaging to tell operators where the use of drones is permitted. The manufacturers can also help account for privacy concerns in the use of drones by designing the devices with data protection in mind , it said.

"Data protection should be embedded within the entire life cycle of the technology , from the very early

design stage, right through to its ultimate deployment, use and final disposal; such technology should be engineered in such a way as to avoid the processing of unnecessary personal data (for example, in case of strategic or critical infrastructures, engineering firmware of drones in order to inhibit data collection within previously defined no-fly zones could be advisable)," the Working Party's new opinion (21-page / 455KB PDF) said.

New codes of conduct could be drawn up by drone manufacturers and operators to ensure data protection requirements are considered and addressed, it recommended. The codes could help "enhance the social acceptability of drones", it said.

Current Supreme Court protections of privacy sufficient – LA v. Patel provesMoxila Upadhyaya and Brandt Mori 6/24, trial attorney in civil litigation and real estate and business lawyer, “U.S. Supreme Court Issues Significant Ruling Protecting Privacy Rights of Hotel Owners and Guests”, 6/24/15, http://www.mondaq.com/unitedstates/x/407006/Data+Protection+Privacy/US+Supreme+Court+Issues+Significant+Ruling+Protecting+Privacy+Rights+of+Hotel+Owners+and+Guests, AZ

One difficult situation in which hotel operators and owners can find themselves occurs when law enforcement demands access to private hotel guest records without a warrant.

On June 22, 2015, the U.S. Supreme Court issued an important decision addressing this very

dilemma, siding with hotel owners. In City of Los Angeles v. Patel, the Court struck down a Los Angeles municipal provision that required hotels to make guest records available for inspection by any L.A. Police Department officer

without the need for a search warrant. Prior to the Court's ruling, any officer could obtain, without a warrant, sensitive records, including a hotel guest's name, address, and vehicle details; the number of members in the guest's party; the method of payment; arrival and departure date; and room number. A hotel owner who refused to turn over such information could be arrested on the spot and be subject to a misdemeanor charge punishable by up to six months in jail and a $1,000 fine.

In its 5-4 decision, the Court held that the provision is unconstitutional because it violates the Fourth Amendment's protection against unreasonable searches and seizures. Because the

municipal provision failed to afford hotel owners any pre-compliance opportunity to challenge the requested search, the Court held the provision to be facially unconstitutional. In so holding, the Court noted that "business owners cannot reasonably be put to this kind of choice" – that is, either handing over their guests' private information or facing arrest and criminal prosecution.

Writing for the Court, Justice Sonia Sotomayor noted that the Fourth Amendment may be satisfied as long as a hotel owner is afforded an opportunity to have a neutral decisionmaker review an officer's demand to search the hotel guest records before he or she faces penalties for failing to comply. This can be accomplished, for example, through an

administrative subpoena by which the hotel owner may challenge law enforcement's request before a judge. This outcome, according to the

Court, "reduces the risk that officers will use these administrative searches as a pretext to harass business owners."

Framing Advantage

ConsequentialismDeontological theories of privacy rights are baseless and guaranteed to failCarolyn Doyle & Mirko Bagaric 5, “The right to privacy: appealing, but flawed”, The International Journal of Human Rights, Volume 9, Issue 1, 2005, p. 3-36, Taylor & Francis Online, AB)Non-consequentialist (rights) theories. The leading contemporary non-consequentialist theories are those which are

framed in the language of rights. Following the Second World War, there has been an immense increase in ‘rights talk’,81 both in the number of supposed rights and in total volume. Rights doctrine has progressed a long way since its original aim of providing ‘a legitimisation of ... claims against tyrannical or exploiting regimes’.82 As Tom Campbell points out: The human rights movement is based on the need for a counter-ideology to combat the abuses and misuses of political authority by those who invoke,

as a justification for their activities, the need to subordinate the particular interests of individuals to the general good.83 There is now, more than ever, a strong tendency to advance moral claims and arguments in terms of rights.84 Assertion of rights has become the customary means to express our moral sentiments. As Sumner notes: ‘There is virtually no area of public controversy in which rights are not to be found on at least one side of the question – and generally on both.’85 The domination of rights talk is such that it is accurate to state that human rights have at least temporarily replaced maximising utility as the leading philosophical inspiration for political and social

reform.86 Despite the dazzling veneer of deontological rights-based theories, when examined closely they are unable to provide convincing answers to central issues such as: what is the justification for rights? How can we distinguish real from fanciful rights? Which right takes priority in the event of conflicting rights? Such intractable difficulties stem from the fact that contemporary rights theories lack a coherent foundation. It has been argued that attempts to ground rights in virtues such as dignity, concern or respect are unsound and that they fail to provide a mechanism for moving from abstract ideals to concrete rights.87 A non-consequentialist ethic provides no method for distinguishing between genuine and fanciful rights claims and is incapable of providing guidance regarding the ranking of rights in the event of a clash. In light of this, it not surprising that the number of alleged rights has blossomed exponentially since the fundamental protective rights of life, liberty and property were

advocated in the seventeenth and eighteenth centuries. Today, all sorts of dubious claims have been advanced on the basis of rights: for example, ‘the right to a tobacco-free job’, the ‘right to sunshine’, the ‘right of a father to be present in the delivery room’, the ‘right to a sex break’,88 and even ‘the right to drink myself to death without interference’.89

Novel rights are continually evolving and being asserted. A good example is the recent claim by the Australian Prime Minister (in the context of the debate concerning the availability of IVF treatment to same-sex couples or individuals) that each child has the right to a mother and father. In a similar vein, in light of the increasing world oil prices, it has been declared that this violates the right of Americans to cheap gasoline. In England, the Premier League has been accused of violating the right of

football club supporters to an F.A. Cup ticket. Due to the great expansion in rights talk, rights are now in danger of being labelled as mere rhetoric and are losing their cogent moral force. Or, as Sumner points out,

rights become an ‘argumentative device capable of justifying anything [which means they are] capable of justifying nothing ’.90 Therefore, in attempting to uncover the scope and content of ‘emerging’ rights such as the right to privacy it is normally unhelpful to consider the issue from the perspective of a deontological rights-based normative theory . Against the background of such

a theory, proponents of the right can simply assert the existence of a right to privacy and equally validly, opponents can assert a ‘right to know’. An impasse is then reached because there is no underlying ideal

that can be invoked to provide guidance on the issue. As with many rights, the victor may unfortunately be the side which simply yells the loudest.91 This may seem to be unduly dismissive of rights-based theories and pay inadequate regard to the considerable moral reforms that have occurred against the backdrop of rights talk over the past half-century. There is no doubt that rights claims have proved to be an effective lever in bringing about social change. As Campbell correctly notes, rights have provided ‘a constant source of inspiration for the protection of individual liberty’.92 For example, recognition of the (universal)

right to liberty resulted in the abolition of slavery; more recently the right of equality has been used as an effective weapon by women and other disenfranchised groups. For this reason, it is accepted that there is an ongoing need for moral discourse in the

form of rights. This is so even if deontological rights-based moral theories (with their absolutist

overtones) are incapable of providing answers to questions such as the existence and content of proposed right s, and even if rights are difficult to defend intellectually or are seen to be culturally biased. There is a need for rights-talk, at least at the ‘edges of civilisation and in the tangle of international politics’.93 Still, the significant changes to the moral landscape for which non-consequentialist rights have provided the catalyst

must be accounted for. There are several responses to this. First, the fact that a belief or judgment is capable of moving and guiding human conduct says little about its truth – the widespread practice of burning ‘witches’

in medieval times being a case in point. Secondly, at the descriptive level, the intuitive appeal of rights claims, and the absolutist and forceful manner in which they are expressed, has heretofore been sufficient to mask fundamental logical deficiencies associated with the concept of rights. Finally, and perhaps

most importantly, we do not believe that there is no role in moral discourse for rights claims, simply that the only manner in which rights can be substantiated is in the context of a consequentialist ethic.94

Util & Consequentialism are necessary and prevent absolutismCarolyn Doyle & Mirko Bagaric 5, “The right to privacy: appealing, but flawed”, The International Journal of Human Rights, Volume 9, Issue 1, 2005, p. 3-36, Taylor & Francis Online, AB)

Consequentialism. A more promising tack for ascertaining the legitimacy of a right to privacy is to ground the analysis in a consequentialist ethic. The most popular consequentialist moral theory is utilitarianism. Several different forms of utilitarianism have been advanced. In our view, the most cogent (and certainly the most influential in moral and political discourse) is hedonistic act utilitarianism, which provides that the morally right action is that which produces the greatest amount of happiness or pleasure and the

least amount of pain or unhappiness. This theory selects the avoidance of pain, and the corollary, the attainment of happiness, as the ultimate goals of moral principle. We are aware that utilitarianism has received a lot of bad press over the past few decades, resulting in its demise as the leading normative theory. Considerations of space and focus do not permit us to fully discuss these matters. This has been done elsewhere.95 The key point to note for the purpose of the present

discussion is that for those with a leaning towards rights-based ethical discourse, utilitarianism is well able to accommodate interests in the form of rights. Rights not only have a utilitarian ethic, but in fact it is only against this background that rights can be explained and their source justified. Utilitarianism provides a sounder foundation for rights than any other competing theory. For the utilitarian, the answer

to why rights exist is simple: recognition of them best promotes general utility. Their origin accordingly lies in the pursuit of happiness. Their content is discovered through empirical observations regarding the patterns of behaviour which best advance the utilitarian cause. The long association of utilitarianism and rights appears to have been forgotten by most. However, over a

century ago it was John Stuart Mill who proclaimed the right of free speech, on the basis that truth is important to the attainment of general happiness and this is best discovered by its competition with falsehood.96 Difficulties in performing the utilitarian calculus regarding each decision make it desirable that we ascribe certain rights and interests to people – interests which evidence shows tend to maximise happiness97 – even more happiness than if we made all of our decisions without such guidelines. Rights save time and energy by serving as shortcuts to assist us in attaining desirable consequences. By labelling certain interests as rights, we are spared the tedious task of establishing the importance of a particular interest as a first premise in practical arguments.98 There are also other reasons why performing the utilitarian calculus on each occasion may be counter-productive to the ultimate aim. Our capacity to gather and process information and our foresight are restricted by a large number of factors, including lack of time, indifference to the matter at hand, defects in reasoning and so on. We are quite often not in a good position to assess all the possible alternatives and to determine the likely impact upon general happiness stemming from each alternative. Our ability to make the correct decision will be greatly assisted if we can narrow down the range of relevant factors in light of pre-determined guidelines. History has shown that certain patterns of conduct and norms of behaviour if observed are most conducive to promoting happiness. These observations are given expression in the form of rights which can be asserted in the absence of evidence why adherence to them in the particular case

would not maximise net happiness. Thus utilitarianism is well able to explain the existence and importance of rights. It is just that rights do not have a life of their own (they are derivative, not foundational), as is the case with deontological theories. Due to the derivative character of utilitarian rights,

they do not carry the same degree of absolutism or ‘must be doneness’ as those based on deontological theories. However, this is not a criticism of utilitarianism, rather it is a strength since it is farcical to claim that any right is absolute. Another advantage of utilitarianism is that it is the only theory that provides a mechanism for ranking rights and other interests. In event of clash, the victor is the right which will generate the most happiness.

***Harel and Sharon 11 (Harel is part of the Hebrew University Law Faculty, Professor of law, Boston University Law School and Sharon is part of the Department of Philosophy, Stanford University [Alon Harel and Assaf Sharon, “'Necessity knows no law'”, Volume 61 – Number 4 Fall 2011, Project Muse] hk

Even orthodox advocates of deontological prohibitions concede that certain significant risks warrant the infringement of rights - including the right to life.10 A leading strategy for dealing with the dilemma of extreme cases is what has come to be known as threshold deontology. Thus, most contemporary deontologists agree that

deontological [End Page 849] injunctions can be overridden under certain circumstances. Even if one concedes that shooting down a plane carrying fifty passengers in order to save fifty victims is not justified, the numbers can surely be fiddled with until an acceptable ratio is achieved. What about shooting down fifty passengers to save 1 000 victims? What about 10 000? And what about shooting down two to save 50? The issue surely must not hinge on playing with the numbers. As a matter of principle, there must be some ratio of victims to potential victims that would indeed justify the downing of the plane.11 This is not merely an abstract observation of moral philosophers. The duties to protect are an established component of many constitutions, including the German Federal Constitution. This duty entails a duty to protect the potential victims of a terrorist attack, and such a duty, enshrined in the Constitution, may under certain circumstances require infringing some people's rights. Some of the difficulties faced by threshold deontology are familiar and need not be rehearsed here.12 Let us, however, point out one difficulty which, to our mind, has not received due emphasis. Threshold deontology we argue is not faithful to the underlying values and commitments of deontology of at least one central brand - Kantian

deontology. The basic challenge faced by threshold deontology is to address the following question: if the life of one person cannot be sacrificed for the sake of saving one other person, or two, or even one hundred, why can it be sacrificed to save one thousand, or ten thousand, or one million? The natural answer of a Kantian threshold deontologist is to maintain that, while sacrificing one person to save two or three violates the victims' dignity, the sacrifice of one to save a thousand does not violate the victims' dignity. In other words,

there is a threshold above which the sacrifice of life does not constitute a violation of dignity.

***Kuehn 91 (Kuehn has Fellowships from the Canada Council, the National Endowment for the Humanities, and the Institute of Advanced Studies of the University of Edinburgh, taught in Canada, Germany and the U.S.A., was Gastprofessor at the University of Hamburg, and Kuehn joined the Boston University faculty in August of 2004, and teaches full time both semesters each year [Manfred Kuehn, “Kantian Ethics and Socialism (Review)”, Journal of the History of Philosophy, Volume 29, Number 2, April 1991, pp. 318-321 (Review), project muse] hk

Even if we grant that a "critical reconstruction" has to satisfy different criteria from an "interpretation," there must be some criteria for assessing its adequacy on textual and historical grounds. To qualify as a reconstruction, it must have sufficient similarity to its prototype. While it is often difficult to determine what is sufficient in a particular case, most philosophical scholars would agree--I believe--that if a reconstruction were to lead to views that contradict some of the most fundamental features of its prototype, then it does not qualify as a reconstruction. But precisely this is the case with van der Linden's interpretation of Kant's duty to promote the highest good as central for Kantian social ethics. The following three points should go some way towards showing this: (i) When

van der Linden interprets "the highest good as a society in which human agents seek to make one another happy," he claims he

has changed "somewhat Kant's common definition of the highest good, but [has] preserve[d] the meaning of his claim that we must promote the highest good (as the union of universal virtue and

universal happiness)" (4). But this is clearly false . He has radically changed Kant's meaning by emphasizing a different factor from the one Kant does. Kant differentiates in the highest good between an "a priori factor" that depends upon us, i.e., our

morality, and an "empirically conditioned factor" that does not necessarily depend upon us, i.e., is external to us. This latter factor is happiness. A duty "to further the summum bonum as far as it in us lies" (AK 5: 453) can only amount to furthering the component

that is up to us, i.e., to pursuing the strictest morality, not universal happiness. Van der Linden wants us to further what is external to us, empirically conditioned, and clearly not entirely in our power (see also point ii). It is in this way that he transforms the summum bonum into a "social ideal." This ideal is perhaps more reasonable than Kant's, but it also amounts to the opposite of Kant's own ideal. At one point van der Linden observes: "Cohen eliminates the distinction between the highest political good and the highest moral good and puts in their place one highest good, a peaceful international order of democratic socialist societies" (164). That seems to me, more or less, what van der Linden also does. (ii) When van der Linden attempts "to show that each of the formulations of the categorical imperative.., demands that we seek a moral society in which human agents try to

make one another happy" (5f.), he clearly makes happiness the criterion for the morality of acts. However, if Kant was opposed to

anything in his moral theory, it was precisely to this move. To be sure, his arguments are directed more against egoistic versions of this type of consequentialism , but his arguments can be seen to be directed against collectivist ones as well. For one thing, Kant was much too skeptical about our ability to predict what will bring about happiness (be it our own or that of other people) to give it such a central place in his moral theory (see especially Ak 4: 393-97, and 8: 370). Kant is also adamant that man's morality should not be based upon anything depending on "the circumstances in which he is placed" (ibid., 389). And this is one of the main reasons why he held that "from the viewpoint of the people's welfare, no theory properly applies at all; instead, everything rests on practice submissive to experience" (Ak 8: 3o6). Van der Linden's reconstruction transforms Kant's theory into something Kant himself says is impossible. (iii) In one of the late historical pieces on which van der Linden relies so much, Kant expressis verbis rejects the highest good as a moral principle, saying, when "we ask about the principle of morals, the doctrine of the highest good as the ultimate end of a will that is in conformity to its laws can thus be wholly ignored and put aside as episodic" (On the Old Saw: That May Be Right in Theory; Ak 8: 28o). What Kant considers (and, according to the logic of his position, must consider) as inessential and "episodic," thus becomes central in van der Linden's reconstruction. When he tells us "I place politics, history, social conflict, and the moral commitment to change society at the core of Kant's practical philosophy, attempting to undercut the view of ethics as primarily concerned with the struggle between individual duty and inclination" (vii, emphasis mine), he himself tells us precisely what he does.

**Consequentialism trumps deontology Lindsay 5 – senior lecturer, faculty of law at Monash University (July 15, “AN EXPLORATION OF THE CONCEPTUAL BASIS OF PRIVACY AND THE IMPLICATIONS FOR THE FUTURE OF AUSTRALIAN PRIVACY LAW,” Melbourne University Law Review: Volume 29, 7/15/05, https://www.law.unimelb.edu.au/files/dmfile/29_1_4.pdf) mj

Consequentialist accounts justify privacy insofar as it produces desirable outcomes. Rigorous versions of consequentialism are forms of utilitarianism, whereby outcomes are determined by an aggregation, or maximisation, of individual utilities. Utilitarian-influenced approaches are well-suited to evaluating which of a number of competing interests should prevail by reference to overall results. For

example, a strict consequentialist could have no objection to an invasion of privacy that was necessary to produce a desirable outcome , such as the preservation of life or an increase in economic welfare. However, pure forms of consequentialism have considerable difficulties in dealing with arguments that rights should be respected regardless of the

consequences.68 As a simple example, a consequentialist might consider acceptable the publication of intimate details of an intercepted telephone conversation or, indeed, the placement of surveillance cameras inside a person’s home, if the invasion of privacy results in an increase in overall welfare. However, those who have favoured explicitly consequentialist views of privacy have generally not been indirect utilitarians. H J McCloskey, for example, simply regarded the protection of privacy as justified to the extent that it promotes what are, for him, the more fundamental goods of human

happiness, justice and liberty.72 This led him to conclude, in general terms, that if concerns about privacy come into conflict with more fundamental concerns regarding liberty of action, invasions of privacy should be accepted , and social attitudes adjusted accordingly. If privacy is understood within the context of overall social processes of

rationalisation and normalisation, and as integral to struggles over self-definition, the difficulties consequentialist accounts face in taking privacy seriously are comprehensible. In particular, by valuing a purely instrumental concept of reason, welfarism can be seen as privileging impersonal social objectives over human values, such as the ability of individual subjects to define themselves and

respect for human dignity. Strict welfarist analysis is therefore completely implicated in processes of rationalisation and normalisation, suggesting that it is especially ill-suited as a means for analysing the value of privacy. It is only if the models of the individual subject and of human reason underlying welfarism are enriched in ways suggested by Mill and Sen — by including values such as the ability of the individual to determine his or her own ends — that consequentialism is ever likely to be sympathetic to privacy. The implication of such a broad approach would be to constrain the untrammelled pursuit of welfarist objectives by the protection of individual rights, however formulated. However, broadening the approach in this way would seem to introduce the universalistic pretensions that plague deontological approaches to privacy.

**Human rights is the epitome of consequentialism Çalı 7– B.A., M.A., Ph.D., Lecturer in Human Rights, University College London. She is a Council of Europe expert on the European Convention on Human Rights and was a senior researcher for the British Independent Expert on the United Nations Sub-Commission on the Promotion and Protection of Human Rights in preparation of a study on "Reservations to Human Rights Treaties" between 1999–2002 [Başak Çalı, “Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions”, Human Rights Quarterly 29.1 (2007) 251-270, project muse ] hk

A specific group of human rights are categorized as qualified rights in political and legal practice because it is a common understanding that such [End Page 257] rights are not and should not be absolute.31 A human right is regarded as absolute when it cannot be overridden under any empirical circumstance whatsoever.32 Any competing consideration that may emerge according to circumstances is ruled out as irrelevant to upholding a human right in practice. The most common examples of absolute rights provisions in international law are freedom from torture,

right to due process, and freedom from slavery.33 These protections call for action from decision makers, independent of the circumstances. Courts are also under an obligation to ensure that any measure taken by executive authorities does not infringe upon the absolute character of the right.34 Even the existence of exceptional circumstances, such as a state of emergency or an armed conflict, does not suspend this requirement of independent action.35 [End Page 258] Qualified rights, on the other hand, are marked by their lack of absoluteness. They may conflict with other interests that may or may not be protected by human rights. Whether the protection of such rights then should be subject to consequential forms of analysis remains

unclear. Human rights protections precisely aim to act as constraints on consequentialist forms of reasoning. Acts of balancing require identification of interests, assigning values to them and ultimately to deciding which interest yields the net benefit. This leads to a contradicting position of subjecting the constraint itself (human rights protections) to a test of consequentialism.36 This position can only be logical if qualified rights, such as that of freedom of expression, freedom of assembly, or freedom of association are thought to be intrinsically different from absolute rights such as freedom from torture and

freedom from slavery. This distinction would mean two things: First, qualified human rights are by their nature in a commensurate conflicting relationship with communal aims and interests and are, therefore, context-sensitive. Second, context-sensitive rights are by their nature subject to utilitarian calculations of net benefit. None of these points, however, are coherent with the nature of human rights protections. It is clear that acts of balancing require this central assumption—that conflicts are commensurate. The case-law of the European Court of Human Rights reflects the strong influence of this assumption. The European Court of Human Rights takes striking a fair balance "between the competing interests of the individual and the community as a whole"37 as one of its interpretive principles in assessing qualified human rights claims. This view reduces important questions about human rights to a conflict between the rights claims of a particular individual against the community. Human rights protections do indeed benefit

certain persons at certain times. The nature of human rights protections, however, is not about the interests of a specific person, but those of each and every person . Every time a human rights protection is upheld, this does mean that a common interest is simultaneously sacrificed. It also does not follow that more of human rights protections mean less protection of common interests. [End Page 259]

**Rights protection is necessary irrespective of majority opinionÇalı 7– B.A., M.A., Ph.D., Lecturer in Human Rights, University College London. She is a Council of Europe expert on the European Convention on Human Rights and was a senior researcher for the British Independent Expert on the United Nations Sub-Commission on the Promotion and Protection of Human Rights in preparation of a study on "Reservations to Human Rights Treaties" between 1999–2002 [Başak Çalı, “Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions”, Human Rights Quarterly 29.1 (2007) 251-270, project muse ] hk

Human rights protections are best conceived, regardless of absolute or qualified forms, to serve their own purpose toward an understanding of common good. The deep values and considerations that back up human rights protections are not important because they maximize an overall good, but because they provide a space for individually-centered concerns in a political society.38 In international law, for example, human rights protections, by definition, concern

everyone, obligations erga omnes.39 In arguing that human rights are important for each and every individual , the emphasis should be on the separateness of individuals rather than their aggregate. The practice of the Inter-American Convention regarding freedom of expression,40 for example, suggests that this freedom has a "double effect," belonging to each individual to express and a collective to receive information and ideas.41 Even though this formulation might help to increase the rhetorical importance of freedom of expression, the risk of making rights vulnerable to their perceived importance to the community remains. For example, if a community overwhelmingly decides that it does not consider it to be important to receive

information about climate change, should this have an effect on the right of individuals to freedom of expression? When human rights are defined as belonging to each and every individual, it is clear that their existence does not depend on a collective need and the right should be protected despite the lack of collective need or interest. Additionally, balancing—identifying, quantifying, and weighing the interests—is not the only way to address these contextual considerations. Indeed, even the European Court of Human Rights, has employed a range

of non-balancing approaches. For example, the European Court of Human [End Page 260] Rights has considered the chilling effect caused by restricting the media's freedom of expression without balancing that right against communal interests.42 This shows a way of thinking about fundamental values behind freedom of expression without seeing this right in a head to head competition with a communal interest. When the Court says that the restriction of freedom of speech for a journalist would have a chilling effect, it is not weighing the right against other interests, but

showing why it is important in its own end.43 Engagement with the context, consequences, and history can be undertaken consistent with human rights aims, not necessarily at the expense of them.

Yes WarU.S Russia war is uniquely likelyDeBar 14 (Press.TV citing Don DeBar, political analyst, host and journalist at CPRmetro.org, “US encirclement of Russia setting stage for nuclear war: Analyst”, 11/9/14, http://www.presstv.com/detail/2014/11/09/385326/us-moves-make-nuclear-war-possible/, AB)

Political activist Don DeBar believes " the stakes are extremely" high for a nuclear war between Washington and Moscow due to US policy of military encirclement of Russia. “The United States has been advancing towards Russia physically in terms of placement of military resources, they are now parked at the borders of Russia from the Baltics up in the Baltic Sea in the very northwest

corner of Russia down to the middle of Ukraine at this point in the southwest part of Russia,” he told Press TV on Saturday. “The U nited S tates has been committing some very hostile acts towards Russia , attempting to tank its

currency, attempting to isolate it economically in general, and Russia has, in turn, been looking elsewhere to find partners for the development that it seeks for its own population,” the activist added. These hostile moves, DeBar said, have come at the same time that the Obama administration is pursuing its “pivot” to Asia which is aimed at containing China and giving rise to Japan as a military power. DeBar

made the comments after American philosopher Noam Chomsky said that the escalating tensions between the United States and Russia could spark a nuclear war. “China has risen as an economic power. Russia has come back as an economic power, [it] maintains its nuclear weaponry and has been upgrading its military,” DeBar said. “As tensions rise, as the law of unintended consequences has greater and greater play and as Chomsky cited the low-risk individual incidents of accidental war-peace planning, as you keep rolling the dice, sooner or later you’ll get ‘7’ or ‘11’ and that’s the end of humanity,” the analyst noted. “The stakes are extremely high. T he ironic part is that President Barack Obama got a Nobel Peace Prize at the beginning of his presidency because he had spoken to the need to eliminate nuclear weapons and he is now spending what’s going to end up being a trillion dollars over the next 30 years, but hundreds of billions of dollars in the near term to upgrade and expand the power of the American nuclear arsenal,” DeBar explained.

MAD doesn’t checkKroeig 14 (Matthew Kroenig, Associate Professor and International Relations Field Chair Department of Government Georgetown University & Nonresident Senior Fellow Brent Scowcroft Center on International Security The Atlantic Council, “The History of Proliferation Optimism: Does It Have A Future?”, February 2014, http://www.matthewkroenig.com/The%20History%20of%20Proliferation%20Optimism_Feb2014.pdf, AB)

Scott Sagan and other contemporary proliferation pessimists have provided systematic and thoroughgoing critiques of the

proliferation optimism position.32 Sagan shows that the spread of nuclear weapons leads to greater levels of international instability because: states might conduct preventive strikes on the nuclear facilities of proliferant states, proliferant states might not take the necessary steps to build a secure, second-strike capability, and organizational pathologies within nuclear states could lead to accidental or inadvertent nuclear launch.33 As Frank Gavin writes in his review of the optimism/pessimism debate, “The real problem, however, is that Sagan plays small ball in his debate with Waltz, conceding the big issues. Why not challenge Waltz on his core arguments about deterrence and stability?”34 Rather than repeat the substantial efforts of previous pessimists, therefore, I will take up Gavin’s challenge and focus on three big issues. In particular, this section maintains

that proliferation optimists: present an oversimplified version of nuclear deterrence theory, follow a line of argumentation that contains an internal logical contradiction, and do not address the concerns of U.S. foreign policymakers. First and foremost, proliferation optimists present an oversimplified view of nuclear deterrence theory . Optimists argue that since the advent of Mutually Assured Destruction (MAD), any nuclear war would mean national suicide and, therefore, no rational leader would ever choose to start one. Furthermore, they argue that the requirements for rationality are not high. Rather, leaders must value their own survival and the

survival of their nation and understand that intentionally launching a nuclear war would threaten those values. Many analysts and policymakers attempt to challenge the optimists on their own turf and question whether the leaders of potential proliferant states

are fully rational.35 Yet, these debate overlook the fact that, apart from the optimists, leading nuclear deterrence theorists believe that nuclear proliferation contributes to a real risk of nuclear war even in a situation of Mutually Assured Destruction ( MAD ) among rational state s.36 Moreover, realizing that nuclear war is possible does not depend on peculiar beliefs about the possibility of escaping MAD.37 Rather, as we will discuss

below, these theorists understand that some risk of nuclear war is necessary in order for deterrence to function. To be sure, in the 1940s, Viner, Brodie, and others argued that MAD rendered war among major powers obsolete, but

nuclear deterrence theory soon advanced beyond that simple understanding.38 After all, great power political competition does not end with nuclear weapons. And nuclear-armed states still seek to threaten nuclear-armed adversaries. States cannot credibly threaten to launch a suicidal nuclear war, but they still want to coerce their adversaries. This leads to a credibility problem: how can states credibly threaten a nuclear-armed opponent? Since the 1960s, academic nuclear deterrence theory has been devoted almost

exclusively to answering this question.39 And their answers do not give us reasons to be optimistic.

It’s totally possible – seven independent reasons-structural rivalries and stress-belief that war is impossible-thick interdependence-rising nationalism and competing claims-powerful military establishments-diplomatic alliances-temptation to maintain dominanceAllison 14 (Graham Allison, director of the Belfer Center for Science and International Affairs at the Harvard Kennedy School, “Just How Likely Is Another World War?”, 6/30/14, The Atlantic, http://www.theatlantic.com/international/archive/2014/07/just-how-likely-is-another-world-war/375320/, AB)This essay attempts to use the “May Method” to highlight seven salient similarities and seven instructive differences

between the challenges confronting Chinese and American leaders today and those facing world leaders in 1914. While most of the similarities make the possibility of conflict today more plausible that it might otherwise seem, and most of the differences make conflict seem less plausible, instructively,

some have the opposite effect. 1. “Thucydides’s Trap”: structural stress that inevitably occurs when a rapidly rising power rivals a ruling power. As Thucydides observed about ancient Greece, an ascendant Athens

naturally became more ambitious, assertive, arrogant, and even hubristic. Predictably, this instilled fear, anxiety, and defensiveness among the leaders of Sparta. Accustomed to economic primacy, naval dominance, and an empire on which the sun never set, Britain in 1914 viewed with alarm the unified German Reich that had overtaken it in industrial production and research, that was demanding a greater sphere of influence, and that was expanding its military capability to include a navy that could challenge Britain’s control of the seas. In the decade before the war, this led Britain to abandon a century of “splendid isolation” to tighten entanglements with France and then Russia. During the same period, German military planners watched with alarm as Russia rushed to complete railways that could allow it to move forces rapidly to the borders

of Germany and its faltering Austro-Hungarian ally. In 2014, what for most Americans is our natural, God-given position as “Number One” is being challenged by an emerging China on track to surpass the United States in the next decade as the world’s largest economy. As China has grown more powerful, it has become more active and even aggressiv e in its neighborhood, particularly in what it

believes are the rightly named “China” seas to its east and south. Fearful neighbors from Japan and the Philippines to

Vietnam naturally look to the U.S. for support in its role as the guardian of what since World War II has been an American Pax Pacifica. 2. The virtual inconceivability of “total” war . In 1914, aside

from occasional small wars and colonial smackdowns, war was “out of fashion.” The best-selling book of the era by

Norman Angell argued that war was a “great illusion,” since the nominal winner would certainly lose more than it could

possibly gain. In 2014, the “long peace” since World War II, reinforced by nuclear weapons and economic globalization, makes all-out war between great powers so obviously self-defeating that it seems unthinkable . 3.

Thick interdependence: economic, social, and political . In 1914, the U.K. and Germany were each other’s

major European trading partner and principal foreign investor. King George and Kaiser Wilhelm were first cousins, the latter having sat by the deathbed of his grandmother, Queen Victoria, in 1901, and marched as second only to George at

the funeral of George’s father, King Edward VII, in 1910. Elites of both societies studied at each other’s major universities, were partners in business, and socialized together. In 2014, China is the United States’ second-largest trading partner, the U.S. the largest buyer of Chinese exports, and China the largest foreign holder of American debt. A quarter of a million Chinese students study annually in American universities, including most recently Chinese President Xi Jinping’s only daughter. 4. Rising nationalism that accentuates territorial disputes. In 1914, as the Ottoman Empire unraveled, Serbian nationalists aspired to create a greater Serbia, and Russia and Austria-Hungary competed for influence among the Ottoman successor states in the Balkans. Meanwhile, resurgent Germans planned for a larger Germany and French patriots dreamed about recapturing Alsace-

Lorraine, provinces taken by Germany from France after the Franco-Prussian War of 1870–71. In 2014, China’s claim to the Senkaku Islands administered by Japan in the last China Sea, and the “9-dash line” by which it

asserts ownership of the entire South China Sea, are reflections of ambitions that are defining new facts in the surrounding waters, exciting nationalism among its neighbors and in its own population . 5.

Powerful military establishments focused on a primary enemy for the purposes of planning and buying (and justifying defense budgets). In 1914, Britain and Germany’s militaries viewed each other as major threats, Germany and Russia saw the other as major rivals, and France was focused on the danger posed by Germany. In 1907, as Germany’s naval expansion approached the point at which it could challenge British naval primacy, the British prime minister asked the leading analyst in the foreign ministry for a memorandum “on the present State of British relations with France and Germany.” That now-famous document written by Eyre Crowe predicted that Germany would not only establish the strongest army on the continent, but also “build as powerful a navy as she can afford.” Germany’s pursuit of what the memorandum called “political hegemony and maritime ascendency” would pose a threat to the “independence of her neighbors and ultimately the existence of

England.” Today, the U.S. Department of Defense plans against something it calls the “Anti-Access/Area Denial threat,” a thinly veiled “you know who” for China. Since its humiliation in 1996, when it was forced to back down from threats to Taiwan after the U.S. sent two aircraft carriers to support Taiwan, China has planned, built, and trained to push U.S. naval forces back beyond Taiwan to the first island chain and eventually to the second. 6.

Entangling alliances that create what Henry Kissinger has called a “diplomatic doomsday machine .” In 1914, a web of complex alliance commitments t hreaten ed rapid escalation into Great Power war . After unifying Germany in the late nineteenth century, Chancellor Otto von Bismarck constructed a network of alliances that would keep the peace in Europe while isolating Germany’s principal enemy, France. Kaiser Wilhelm wrecked Bismarck’s finely tuned alliance structure by refusing to extend Germany’s alliance with Russia in 1890. Two years later, Russia allied with France. This led Germany to strengthen its ties to Austria-Hungary, and Britain to entertain deeper entanglement with both France and Russia. In

2014, in East Asia, the United States has many allies, China few. In 2014, in East Asia, the United States has many allies,

China few. American obligations and operational plans cover a spectrum from the U.S.-Japan Treaty of Mutual Cooperation and Security, which obligates the U.S. to regard any attack upon Japan as an attack on the U.S., to agreements with the Philippines and others that require only consultation and support. As an assertive China defines air identification zones, drills for oil and gas in contested areas, excludes other states’ ships from waters around disputed islands, and operates ships and aircraft to redraw “rules of the

road,” it becomes easier to imagine scenarios in which mistakes or miscalcu lation lead to results no one would have chosen . 7. Temptation of a coup de main to radically improve power and prestige. In 1914, a declining Austria-Hungary faced rising, Russian-backed Pan-Slavism in the Balkans. Seeing Serbia as the epicenter of Pan-Slavism, Emperor Franz Joseph imagined that this menace could be contained by a decisive defeat of Serbia. The

assassination of his heir, Franz Ferdinand, provided an opportunity. In 2014, Shinzo Abe seeks to reverse Japan’s “lost decades.” A

quarter-century ago, Japan appeared to be on the threshold of becoming “Number One.” Since then, it has stagnated economically and become almost irrelevant in international politics. Abe’s program for revival

thus includes not only “Abenomics,” but also restoration of Japanese influence in the world , including revision of the constitution and expansion of Japan’s military forces to meet what he explicitly calls the “China threat.” In sum, those who see reminders of events a century ago in developments today are not deluded.

Solvency

1NC – Amendments Ineffective

Constitutional Amendments are ineffective and solved through other processesAlbert 14 (Richard Albert, Associate Professor at Boston College Law School, "Constitutional Disuse or Desuetude: The Case of Article V." Boston University Law Review 94, (2014): 1029-., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1758&context=lsfp, AB)

The consequence of the difficulty of Article V has been to reroute political actors pursuing constitutional change from formal to informal amendment. Today, the battleground for constitutional

change is what Bruce Ackerman calls a “transformative appointment[] to the Supreme Court.”139 Ackerman explains that Article V’s formal model of dual federalism , requiring assent from both national and state institutions, has been replaced by a new informal method of constitutional change that relies on the assent of only national institutions.140 The Electoral College selects the President in a national election, which in turn authorizes the President’s use of the appointment power to trigger a “decisive break with the constitutional achievements of the past generation.”141 The United States Senate then debates the merits of the President’s Supreme Court nominee.142 And the Supreme Court subsequently either adopts or rejects an informal constitutional amendment intended to change the Constitution

fundamentally.143 This new model of informal amendment codifies constitutional change in “ transformative judicial opinions that self-consciously repudiate preexisting doctrinal premises and announce new principles that redefine the American people’s constitutional identity,”144 rather than in a formal written change to the constitutional text. The difficulty of formally amending the Constitution has accordingly pushed “a significant amount of constitutional change off the books,”145 and forced political actors to update the Constitution informally through non-Article V methods,146 leaving the actual constitutional text unchanged. As Lawrence

Church observes, the amendment procedures under Article V are “too cumbersome and erratic to serve as the sole vehicle for constitutional development in a complex and rapidly changing society.”147 There are several other more flexible modes of constitutional change that do not rely on the mechanistic procedures of Article V in order to keep the constitutional regime current and reflective of

new social and political equilibria. They result in unwritten changes to the Constitution that may be as constraining as a formal amendment . That the United States Constitution is both written and unwritten is therefore

now uncontroversial.148 The Constitution is “much more, and much richer, than the written document.”149 Though we cannot deny the importance of the constitutional text, it “is only one component of the country’s

actual constitution.”150 The written constitution cannot completely reduce to writing the principles of natural rights that form our higher law and against which we judge the moral legitimacy of our positive law.151 Nor can it reflect the political forces, democratic traditions, and judicial precedent that constitute the Constitution.152 Whether something is constitutional therefore

depends less on where or whether it is codified than whether political actors perceive it as politically legitimate and conform their conduct to it. 153

2NC – Amendments IneffectiveArticle V amendments are too capital-intensive to be relevantAlbert 14 (Richard Albert, Associate Professor at Boston College Law School, "Constitutional Disuse or Desuetude: The Case of Article V." Boston University Law Review 94, (2014): 1029-., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1758&context=lsfp, AB)

The pace of formal amendment in the United States is decelerating. Article V remains invoked by political actors but its successful use has declined since its entrenchment. Of the twenty-seven formal amendments inscribed in the text of the Constitution since its ratification in 1789, fifteen were ratified from the founding through 1870.102 The first ten, the Bill of Rights, were ratified in the same year, 1791.103 From 1871 through 1933, there were six formal amendments.104 From 1934 through 1967, there were four formal amendments.105 From 1968 through 1991, there was only one formal amendment.106

And since 1992, over twenty years ago, there has likewise been only one formal amendment.107 Article V has in fact become so infrequently used that Article V amendments have even been described as irrelevant.108 In addition to the decelerating pace of formal amendment, the content of formal amendment has changed as well. As John Vile observes, “[m]ost amendments ratified over the course of the last sixty years have dealt with minor structural features of the Constitution or with voting rights.”109 András Sajó agrees, observing that since the Reconstruction Amendments, “amendments have been concerned with the technique of government,” with the exception of the Prohibition Amendment, which was an effort to entrench morality.110 The changing

orientation of successful uses of Article V compelled Robert Dixon, writing in 1968, to refer to Article V as the “comatose article of our living constitution.”111 Whether it is dead or comatose can be answered by asking whether Article V has

fallen into either disuse or desuetude. But first let us recognize that the declining use of Article V is attributable to its difficulty.

1NC – States Say NoStates would probably not all agreeAlbert 14 (Richard Albert, Associate Professor at Boston College Law School, "Constitutional Disuse or Desuetude: The Case of Article V." Boston University Law Review 94, (2014): 1029-., http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1758&context=lsfp, AB)

Today, Article V’s state supermajority ratification threshold has become functionally even more difficult to achieve as a result of the expansion of the Union . As Rosalind Dixon explains, the increased number of states – from thirteen in 1789 to fifty since 1967 – has changed the denominator for Article V , which has increased the Constitution’s amendment difficulty.128 Dixon explains: “All else being equal, this change in the denominator for Article V has implied a directly proportionate increase in the difficulty of ratifying proposed amendments.”129 Dixon furthermore observes that

today’s fifty-state denominator under Article V would be equivalent to a founding-era state supermajority ratification threshold lower than two-thirds: “On one calculation, if one were to try to adjust for this change in the denominator for Article V, the functional equivalent to the 75% super-majority requirement adopted by the framers would in fact now be as low as 62%.”130 Thomas Jefferson predicted this denominator problem, in 1823, when he wrote:

[T]he States are now so numerous that I despair of ever seeing another amendment to the Constitution, although the innovations of time will certainly call, and now already call, for some, and especially the smaller States are so numerous as to render desperate every hope of obtaining a sufficient number of them in favor of “Phocion’s” proposition.131 The Constitution’s amendment difficulty therefore derives partly from Article V’s structure.

75% of states need to support it for it to passConstitution 87, Article V of the Constitution, 1787, http://www.archives.gov/federal-register/constitution/article-v.html,

AB)

The Congres s , whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing

amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Only 10 states support privacy rightsNCSL 14, National Conference of State Legislatures, “PRIVACY PROTECTIONS IN STATE CONSTITUTIONS” 12/12/14, http://www.ncsl.org/research/telecommunications-and-information-technology/privacy-protections-in-state-constitutions.aspx, AB)

Constitutions in 10 states—Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and

Washington—have explicit provisions relating to a right to privacy. The privacy protections afforded in some of these states mirror the Fourth Amendment of the U.S. Constitution relating to search and seizure or government surveillance, but add more specific references to privacy [shown in italics]. In addition, more general provisions in other states have been interpreted by courts to have established privacy rights or various types.

1NC – Policies Fail

Privacy policies fail- only are created to protect corporate interests.

Erison 6 (Richard Victor Ericson, professor with the Centre of Criminology at the University of Toronto , “The New Politics of Surveillance and Visibility,”2006, from The New Politics of Surveillance and Visibility,sl)

Discussions about privacy rights often proceed as if privacy is itself a stable phenomena that must be protected from incursions or erosion. Such a conceptualization tends to downplay the historical variability and political contestation associated with the precise content of 'privacy .'

Claims to privacy and secrecy are political efforts to restrict the ability of others to see or know specific things. One of the more intriguing developments in this regard concerns how powerful interests are now appealing to such rights. The synoptic capabilities of contemporary surveillance have produced a

greater number of powerful individuals and institutions with an interest in avoiding new forms of scrutiny. As such, privacy rights that were originally envisioned as a means for individuals to secure a personal space free from state scrutiny are being reconfigured by corporate and state interests. Corporations routinely

appeal to legal privacy and secrecy protections. One of the more ironic of these involves efforts by firms that conduct massive commercial data surveillance to restrict the release of the market segment profiles that they derive from such information on the grounds that these are 'trade secrets.' The ongoing war on terror accentuates how the state is also concerned with carving out a sphere of privacy, even as it tries to render the actions of others more transparent. For example, the US. Patriot Act prohibits Internet service providers from disclosing the extent to which they have established governmental Internet monitoring measures. The US. administration has refused to meet Congressional demands for information regarding the implementation of the Patriot Act. The Pentagon regularly invokes claims to 'national security' to restrict public awareness of military matters, in-duding the capabilities of

its surveillance technologies. Hence, legal claims to privacy are being invoked as a means to render the actions of powerful interests more opaque at the same time that these same institutions are making the lives of others more transparent. Some see this trend towards non-reciprocal visibility as one of the greatest inequities in contemporary surveillance (Brin 1998).