freedom act 1ac - georgetown 2015

7/25/2019 Freedom Act 1AC - Georgetown 2015

1/121

Opening Packet HSS -2015

1AC document - Freedom Act

Af


2/121

Constructing your 1AC


3/121

Opening notes to students


4/121

Ho to !ui"d a 1AC #rom t$is %"e

One of our major goals at camp is to teach many dierent aspects that pop-up incontemporary surveillance debates.

At rst, this can be daunting as this document has a lot of moving parts. Buthopefully the rst few pages of this le will mae it all a little less overwhelming.

!ere are some tips"

First start !y c$oosing a p"an te&t#here are ten options included. $ome options are more strategic than others. %ewill discuss the upsides and downsides of each in lab time.

%hen choosing a plan te&t, one big 'uestion you(ll want to consider is whether tohave a 'narro( p"an te&t)tacling a small number of current surveillance practices* or a'!roader( p"an te&t)tacling several or all current surveillance practices*.

Second read )on"y* one o# t$e to 'in$erency and so"+ency(

options#here(s one if your plan is broad+ and another one if your plan is narrow. ost ofthe time, this will be presented in the opening portion of the A / before you readthe advantages )but that(s up to you*.

,$ird Heres "ist o# t$e ad+antages in t$e packet.

0o one will have time to read all of the advantages in an 1 minute A, so you(llneed to pic and choose your favorites. $ome advantages have 2longer3 and2shorter3 version to assist with time allocation. Other advantages have dierentimpact modules. At camp, consider mi&ing it up and reading dierent advantagesand modules in the various practice debates.

onceptually, here is a good way to thin about the A advantage options"

4uality of 5ife advantageso 6rivacy advantage / longer versiono 6rivacy advantage / shorter versiono Bigotry advantage / longer versiono Bigotry advantage / shorter version

#he 7ournalism advantage / designed to give an nice angle if you thin

your opponent may go for the 8riti. Advantages involving 9$ image"

o :ndia advantage / nancial marets impacto :ndia advantage / cyber impacto :ndia advantage / ;emocracy impacto


5/121

o


6/121

/"ossary and mportant ote


7/121

ote to students

#he ne&t page presents a glossary.


8/121


9/121

/"ossary

:f the ?F bloc header has one or more of the following acronyms, here is what itreferencing"

,$e SA F344O6 AC,/ A recently passed bill that stands for "Uniting andStrengthening America by Fulflling Rights and Ending Eavesdropping, Dragnet-

collection and nline !onitoring Act. #he Act implemented many reforms / butmost prominently it )arguably* ended the ability of federal intelligence agencies tostore certain phone data )2phone metadata3 / see below*. :nstead, it re'uiredphone companies, not government agencies, to hold on to that data. ?ederalintelligence agencies can search the phone company records if they granted awarrant authori=ing their re'uest. #he A>rmative in this pacet will argue thatcurrent ?reedom Act is insu>cient and that the original draft of the ?reedom Act

provided better safeguards.

,$e PA,3O, AC,/ :ts o>cial title is the 9$A 6A#@:O# Act / an acronym thatstands for HUniting and Strengthening America by #roviding Appropriate $oolsRe%uired to &ntercept and bstruct $errorism Act o' ())*" . #he 6atriot Act is an actof ongress that was signed into law by 6resident


10/121

o #he ?.:.$.A. law itself passed in IG1 / but it has often been amended

since then.o One reason that the ?AA of CC1 comes up is $ection GC of the ?AA.

$ection GC authori=es 6@:$ )e&plained below*. $ection GC isdesigned to gather intelligence on foreign citi=ens, but is often accused

of gathering intelligence on 9$ citi=ens. any argue that because$ection GC is understood to permit gathering information 2about3 aforeign person, it can be used to gather information regarding 9$persons.

9anguage/ argues that the $tatus 4uo fails because the language or denitions ofcurrent laws are not strict enough. !ere, the A>rmative would usually argue thatwhen language has 2wiggle room3 federal agencies will see to gain as muchintelligence a possible / often at the e&pense of privacy. #he most common e&ampleof insu>cient language is 2$$#3 / which is e&plained below.

6eta-data.etadata is traditionally dened as 2data about data.3 #ranslation" #he0$A probably isn(t listening to your phone calls or reading your email. :nstead, themetadata program givs intelligence access to information about phone calls. #hatincludes the phone numbers of both caller and recipient, the number of any callingcards used, the time and duration of calls and the international mobile subscriberidentity )a uni'ue identier embedded in a phone $: card* number. mailmetadata includes each message(s to, from, cc and timestamp information. :t alsoincludes the :6 address each email was sent from, which reveals where a computeris located. $tatus 'uo metadata programs do not allow the


11/121

S9s- 0ational $ecurity 5etters. #hese cards will argue that the $tatus 4uo failsbecause the ?B: currently has the authority to issue 0$5(s. #hese letters are servedon communications service providers )lie phone or internet companies* by the ?B:to compel provision of communication or :nternet activity. An 0$5 cannot demandthe content of a call, but can compel provision of metadata. @ecipients of 0$5s may

be subject to a gag order that forbids them from revealing the lettersJ e&istence tothe public. 0o approval from a judge is re'uired for the ?B: to issue an 0$5, but therecipient of the 0$5 can still challenge the nondisclosure re'uirement in federalcourt.

Pen 3egister or ,rap and ,race de+ice- A device that decodes or recordselectronic information / lie outgoing numbers from a telephone. A 2pen register3technically was a device that recorded data from telegraph machines. But the termhas survived and applies to modern communication. #hese cards will argue that the$tatus 4uo fails because the law provides insu>cient protection against bul

collection of data obtained from 26en @egister or #rap and #race3 devices.

P3S6/ 6@:$ is a 9$ surveillance program under which the 0ational $ecurityAgency )0$A* collects :nternet communications from at least nine major 9$ :nternetcompanies. 6@:$ re'uests for internet data are authori=ed under $ection GC ofthe ?:$A Amendments Act of CC1 )see ?AA or 2?AA-$ection GC3 / above*. #heprogram is intended to identity foreign citi=ens / but the program is often accusedof inadvertently gathering intelligence on 9$ citi=ens. According to #he %ashington6ost, 9$ intelligence analysts search 6@:$ data using terms intended to identifytargets whom the analysts suspect with at least D percent condence to not be

9.$. citi=en.

Signa" Args/ these cards spea to the image or perception of the law as seen bythe 9$ public or foreign countries.

SS,- 2$pecic $elector #erms3. #hese cards will argue that the $tatus 4uo failsbecause the law allows searches to be conducted with 2broad selector terms3 / liea =ip code, an area code, or the :6 address of a web hosting service that hoststhousands of web sites. #hese broad searches stumble onto much more data. $ome

privacy advocates want to demand an $$# / which would re'uire searches that aremuch more narrow )i.e. an individual(s name*.

;;;For summer camp students a"so ant to ta"k a!out to

more programs.)please tae notes here"*


12/121


13/121

1AC n$erency and So"+ency

Section


14/121

1AC


15/121

Contention One

Contention One t$e Status =uo #ai"s> and t$e Af so"+es.

,$e Freedom Act recent"y !ecame 9a. ,$is new Freedom Act

ont su!stantia""y reduce !u"k sur+ei""ance. Sa#eguards #rom

t$e original Freedom Act are needed.

e ?ork ,imes @15

)editorial board of 0ew Kor #imes / #he Opinion 6ages of 0ew Kor #imes / 2ore &cuses on the6atriot Act 2 - ay st- http"LLwww.nytimes.comLCDLCDLCLopinionLmore-e&cuses-on-the-patriot-act.htmlMsmidNfb-sharePrN*

$oftware designers have a termQ 2minimal viable product3Q to describe early versionsofthings lie i6hone appsthat they can rush to maret.#he idea is to get something outand rene it as they goalong.#hat(s the argumentbeing made for a measurein ongressthat would modify the 6atriot Act tomae it somewhat harder for the government toconduct mass surveillance of Americans without regard to whether they committedany misdeeds. $ure, there are compromises, Americans are told, but we should not let the perfect be the enemy of thegood. #he bill is a 2critical rst step toward reining in3 surveillance by the 0ational $ecurity Agency and is a basis for more reform,

said !uman @ights %atch. 4&cept t$e Constitution is not Candy Crus$. #he sameidea Q let(s do what we can and improve it later Q was used to shove the original 6atriot Act through ongress. :t was used to

justify the inade'uate changes later made to the act, many of which made it more intrusive on Americans( rights. :n CC1, we got a2reform3 of the ?oreign :ntelligence $urveillance Act, or ?:$A, that provided retroactive cover for the illegal surveillance of innocent

Americans conducted under 6resident or re'uire meaningful disclosure of so-called 2bacdoor3 searches of databases by the ?ederal Bureau of:nvestigation. :t does not appoint an advocate to argue before the ?:$A court on behalf of civil libertiesS instead, it simply appoints apanel of e&perts to advise the court, where only the government is allowed to present a case, in secret.


16/121

,$e new Freedom Act #ai"s. Pen register> super-minimization>

and SST standards#rom t$e original draft o# t$e Freedom Act

ou"d so"+e.

/reene @15)et alS ;avid


17/121

the full !ouse of @epresentatives, but now the $enate must include the language in the bill or in its own legislative

history.#hiseasy tas will mae sure that the law is not read as rejecting the $econd ircuit(s reading and will

help ensure that the 9$AFreedom Act actually accomplishes its goal of ending

!u"k co""ection . #he !ouse @eport on 9$A ?reedom, issued today, taes a step forward by stating that"ongress( decision to leave in place the TTrelevance(( standard for $ection DC orders should not be construed asongress( intent to ratify the ?:$A ourt(s interpretation of that term. #hese changes restore meaningful limits tothe TTrelevance(( re'uirement of $ection DC, consistent with the opinion of the 9.$. ourt of Appeals for the $econdircuit in A59 v. lapper. nsuring that the $enate doesnJt move away from the legislative history should be a toppriority as the bill moves forward. But that(s the bare minimum ongress must do. #he $econd ircuit, andespecially 7udge $ac(s concurrence, noted a lac of both transparency and a true adversary in the ?:$A ourt. #heCU and CE 9$A ?reedom Act had stronger ?:$A ourt reforms, particularly around the creation of a specialadvocate who would argue against the government in the ?:$A ourt. #he $econd ircuit(s opinion also emphasi=esthat typical subpoenas see only records of Hsuspects under investigation, or of people or businesses that havecontact with such subjects.H 9nder the current 9$A ?reedom Act, the government can collect records of a Hsecondhop,HQthe numbers, and associated metadata, that have been in contact with the numbers collected initiallyQwithout any additional authori=ation. #he bill should be changed so that the government must le anotherapplication for any further records it wants to collect. Automatically obtaining a Hsecond hopH is unacceptable

because it sweeps in too many people(s records.#he current 9$A ?reedom Act isalso out-of-sync

with thecourt(s narro +ie of permissible collection of records because it lacs a

rigorous denition of the Hspeci%c se"ection termD the government can useto identify the records it wants to collect.#his can be addressed bytwo changes" )*

draing upon "ast yearEs de%nition in the9$A Freedom Act S and, )*closing down potential loopholes lie the denition of HaddressH or the use of a HpersonH to include a corporate

person. 3estoring mportant Parts o# 2017 s SA Freedom Act #hisisalso an opportunityand a new conte&t for ongress to addressthe shortcomings of the

ne ly introduced 9$A Freedom Act that we previously wrote about. ongress should putbac ey provisions that were droppedalong the wayas well as remove those that were

introduced at the behest of the intelligence community. ?irst, t$e Dsuper minimi:ationD

procedures, which were key pri+acy procedures that mandated thedeletion of any information obtained about a person not connected to the

investigation, should be reintroduced. 8ey provisions establishing a $ig$er "ega"

standardand compliance assessment forthe use of pen registertrap-and-trace

de+ices , legal standing to sue the government over surveillance practices, and the original transparencyprovisions allowing government and corporate disclosure of surveillance orders should also beresuscitated.


18/121

1AC


19/121

Contention One

Contention One t$e Status =uo #ai"s> and t$e Af so"+es.

,$e Freedom Act recent"y !ecame 9a. ,$e newFreedom Act

ont su!stantia""y reduce sur+ei""ance. Pen register> super-

minimization> and SST standards#rom t$e original draft o# t$e

Freedom Act are needed.

/reene @15

)et alS ;avid


20/121

decision, ?? ass ongress to strengthenits proposed reform of $ection D, the 9$A ?reedomAct.6ending those improvements, ?? is withdrawing our support of the bill. %e(re urging ongress toroll the draft bac to the stronger and meaningful reforms included in the CEversion of 9$A ?reedomand a>rmatively embrace the $econd ircuit(s opinion on the limits of $ectionD. ost importantly, the $econd ircuit(s correct interpretation of the law shouldbe e&pressly embraced

by ongress in order to avoid any confusiongoing forward about what the ey termsin the statutemean,especially the terms 2relevant3 and 2investigation.3 #his recognition could be in the bill itself or, lesspreferably, in legislative history. #he !ouse 7udiciary ommittee has already included such language in its report tothe full !ouse of @epresentatives, but now the $enate must include the language in the bill or in its own legislative

history.#hiseasy tas will mae sure that the law is not read as rejecting the $econd ircuit(s reading and will

help ensure that the 9$AFreedom Act actually accomplishes its goal of ending

!u"k co""ection . #he !ouse @eport on 9$A ?reedom, issued today, taes a step forward by stating that"ongress( decision to leave in place the TTrelevance(( standard for $ection DC orders should not be construed asongress( intent to ratify the ?:$A ourt(s interpretation of that term. #hese changes restore meaningful limits tothe TTrelevance(( re'uirement of $ection DC, consistent with the opinion of the 9.$. ourt of Appeals for the $econdircuit in A59 v. lapper. nsuring that the $enate doesnJt move away from the legislative history should be a toppriority as the bill moves forward. But that(s the bare minimum ongress must do. #he $econd ircuit, andespecially 7udge $ac(s concurrence, noted a lac of both transparency and a true adversary in the ?:$A ourt. #he

CU and CE 9$A ?reedom Act had stronger ?:$A ourt reforms, particularly around the creation of a specialadvocate who would argue against the government in the ?:$A ourt. #he $econd ircuit(s opinion also emphasi=esthat typical subpoenas see only records of Hsuspects under investigation, or of people or businesses that havecontact with such subjects.H 9nder the current 9$A ?reedom Act, the government can collect records of a Hsecondhop,HQthe numbers, and associated metadata, that have been in contact with the numbers collected initiallyQwithout any additional authori=ation. #he bill should be changed so that the government must le anotherapplication for any further records it wants to collect. Automatically obtaining a Hsecond hopH is unacceptable

because it sweeps in too many people(s records.#he current 9$A ?reedom Act isalso out-of-sync

with thecourt(s narro +ie of permissible collection of records because it lacs a

rigorous denition of the Hspeci%c se"ection termD the government can useto identify the records it wants to collect.#his can be addressed bytwo changes" )*

draing upon "ast yearEs de%nition in the9$A Freedom Act S and, )*closing down potential loopholes lie the denition of HaddressH or the use of a HpersonH to include a corporate

person. 3estoring mportant Parts o# 2017 s SA Freedom Act #hisisalso an opportunityand a new conte&t for ongress to addressthe shortcomings of the

ne ly introduced 9$A Freedom Act that we previously wrote about. ongress should putbac ey provisions that were droppedalong the wayas well as remove those that were

introduced at the behest of the intelligence community. ?irst, t$e Dsuper minimi:ationD

procedures, which were key pri+acy procedures that mandated thedeletion of any information obtained about a person not connected to the

investigation, should be reintroduced. 8ey provisions establishing a $ig$er "ega"

standardand compliance assessment forthe use of pen registertrap-and-tracede+ices , legal standing to sue the government over surveillance practices, and the original transparencyprovisions allowing government and corporate disclosure of surveillance orders should also beresuscitated.


21/121

,$e current Freedom Act is too narro. ts "imited tophone

collection and not other bulk collection programs.

Gopstein @15

7oshua 8opstein is a journalist and researcher. !is wor focuses on :nternet law and disorder,surveillance and government secrecy. !e has written pieces for $late aga=ine and #he 0ew Korer.29$A ?reedom Act gives 0$A everything it wants Q and less3 - Al 7a=eera America(s #he $crutineer /7une nd / http"LLamerica.alja=eera.comLblogsLscrutineerLCDLFLLusa-freedom-act-gives-nsa-everything-it-wants--and-less.html

#he $enate adopted the !ouse version of the bill, which had been watered down at the behest of intelligence agencies, and 6resident Obama signed the?reedom Act into lawlater this evening. %hile far from what most would recogni=e as 2reform,3 at the end of the day, the bill is probably more of a victory fortransparency than it is for privacy. #hatJs because the?reedom Act has focused almost e&clusively on ending onesingle 0ational $ecurity Agency program under one single authority" #he secret bul collection ofAmericansJphone records under $ection Dof the 6atriot Act, revealed almost e&actly two years ago by dward $nowden. $ection D and twoother 2emergency3 post-IL surveillance provisions brieRy lapsed $unday night after the $enate failed to reauthori=e them.#he new law replaces the0$A(s bul data collection with a program that re'uires telecom companies to retainthe data and grant access to intelligence agencies through more targeted courtorders. #he other surveillance powers Q roving wiretaps and the so-called lone wolf provision Q remained unused even as surveillance haws raised apocalyptic warnings aboutletting them e&pire. #wo independent %hite !ouse panels have found that the metadata collection program has never helped to foil a terrorist plot. A major appellate court decision alsoruled the program was illegal, and that it merely served to create a 2vast data ban3 of e&tremely sensitive information Q specically, phone numbers and when and how often they

were called Q about millions of i nnocent Americans. :n other words, the bul phone records program was on its way out

no matter what.#he court ru"ing could have been a big opportunity to push for

an end to all domestic bul collectionunder the 6atriot Act, not Bust p$one records. But additional privacy protections had been negotiated away in the !ouse, and$enate advocates were not given a chance to add them bac.#he result renders the?reedom Act a missed opportunity to addresscountless other 0$A authorities, such as

&ecutive Order EEE and $ection GC of the F :$A Amendments A ct, ones we now )again, thans to $nowden*continue to collect many other types of data.

,$e newFreedom Act i"" #ai" de%nitions are too atered-

don to c$eck mass sur+ei""ance. ,$e originalFreedom Act

so"+es.

,ummare""o @1

:nternally 'uoting !arley


22/121

heads to the Roor.#hough the origina" "egis"ation intended to end sweepingsurveillance programs, the billthe !ouse will vote on as early as this wee allows for 2masssurveillance on a slightly smaller scale,3according to !arley cials to search for records using 2a discrete term, such as a term specicallyidentifying a person, entity, account, address, or device, used by the


23/121

P"an te&t options


24/121

C$oose a p"an te&t t$at you "ike


25/121

P"an options

P"an Option I1J#he 9nited $tates federal government should pass the original version of the 9$A

?@;O Act )[email protected]*

P"an Option I2J

#he 9nited $tates federal government should substantially curtail its domesticsurveillance by strengthening the 9$A ?@;O Act to"

re'uire use of a 2specic selection term3 to satisfy the 2reasonable,

articulable suspicion standard3 re'uire that information collected through 2pen register or trap and trace

devices3 via emergency authori=ations be subject to the same proceduralsafeguards as non-emergency collections.

re'uire 2super minimi=ationH procedures that delete information obtained

about a person not connected to the investigation.

P"an Option I7J

@egarding its monitoring of 9nited $tates persons, the 9nited $tates federalgovernment should"

re'uire use of a 2specic selection term3 to satisfy current 2reasonable,

articulable suspicion standards3 re'uire that information collected through 2pen register or trap and trace

devices3 via emergency authori=ations be subject to the same proceduralsafeguards as non-emergency collections.

re'uire 2super minimi=ationH procedures that delete information obtained

about a person not connected to the investigation

P"an Option IJ

Bul collection of domestic metadata by 9nited $tates federal intelligence agenciesshould cease.

P"an Option I5J


26/121

:n the absence of an individually-tailored warrant obtained via use of a specicselector term, federal intelligence agencies should cease collection of domesticphone, internet, email, and-or associated electronic records.

P"an Option IKJ

:n the absence of an individually-tailored warrant obtained via use of a specicselector term, federal intelligence agencies should cease collection of domesticphone, internet, email, and associated electronic records. #his should include, butnot be limited to, ending the monitoring of 9nited $tates persons under Sections(*/ and (*0 o' the USA #A$R&$ ActS E1ecutive rder *(222S and Section )( o'the F&SA Amendments Act.

P"an Option I8J

#he 9nited $tates $upreme ourt should hold that domestic surveillance conductedby federal intelligence agencies cannot meet the 2reasonable, articulable suspicionstandard3 without having used a 2specic selection term3 and that domesticsurveillance conducted by federal intelligence agencies is in violation of the UthAmendment if"

it collects information through 2pen register or trap and trace devices3 via

emergency authori=ations that were not subject to the same proceduralsafeguards as non-emergency collectionsS and-or

if it fails to delete information obtained about a person not connected to theinvestigation.

P"an Option ILJ

#he 9nited $tates $upreme ourt should hold that domestic surveillance conductedby federal intelligence agencies violates the Uth Amendment if it collects domesticphone, internet, email, and-or associated electronic records in the absence of anindividually-tailored warrant obtained via use of a 2specic selector term3.

P"an Option IMJ

#he 9nited $tates federal government should hold that domestic surveillanceconducted by federal intelligence agencies violates the Uth Amendment if it collectsdomestic phone, internet, email, and-or associated electronic records in the


27/121

absence of an individually-tailored warrant obtained via use of a 2specic selectorterm3.

P"an Option I10J

#he 9nited $tates $upreme ourt should hold that no statute presently authori=esfederal intelligence agencies to engage in bul collection of domestic phone,internet, email, and-or associated electronic records.


28/121

1AC - Pri+acy Ad+antage


29/121

Pri+acy Ad+antage 1AC> "onger

+ersion


30/121

Pri+acy Ad+antage "onger +ersion

Contention I NNNN is Pri+acy

Pri+acy outeig$s.

- ti"itarian impact ca"c is skeed and

- 3eBect Sur+ei""ance as a structura" matter o# poer e+en $en its 're#ormed(> innocents are poer"ess

un"ess neutra" o+ersig$ts in p"ace.

So"o+e @8

;aniel $olove is an Associate 6rofessor at


31/121

of protecting against chilling eects is not measured simply by focusing on theparticular individuals who are deterred from e&ercising their rights.hilling eectsharm society because, among other things, they reduce the range of viewpoints e&pressedand the degree of freedom with which to engage in political activity.#he nothing to hideargument focuses primarily on the information collection problems associated with the 0$A programs. :t contends that limitedsurveillance of lawful activity will not chill behavior su>ciently to outweigh the security benets. One can certainly 'uarrel with thisargument, but one of the di>culties with chilling eects is that it is often very hard to demonstrate concrete evidence of deterredbehavior.1E %hether the 0$A(s surveillance and collection of telephone records has deterred people from communicating particularideas would be a di>cult 'uestion to answer. ?ar too often, discussions of the 0$A surveillance and data mining dene the problem

solely in terms of surveillance. #o return to my discussion of metaphor, the problems are not just Orwellian, but 8afaes'ue.#he0$A programs are problematic even if no information people want to hide is

uncovered. :n #he #rial, the problem isnot inhibited behavior, but rather a sufocating

poer"essness and +u"nera!i"itycreated by the court system(s use of personaldataand its e&clusion of the protagonist from having any nowledge or participation in the process. #he harms consist of thosecreated by bureaucraciesQindierence, errors, abuses, frustration, and lac of transparency and accountability. One such harm, fore&ample, which : call aggregation, emerges from the combination of small bits of seemingly innocuous data.1U %hen combined, theinformation becomes much more telling about a person. ?or the person who truly has nothing to hide, aggregation is not much of aproblem. But in the stronger, less absolutist form of the nothing to hide argument, people argue that certain pieces of informationare not something they would hide. Aggregation, however, means that by combining pieces of information we might not care to

conceal, the government can glean information about us that we might really want to conceal. 6art of

the allure of datamining for the government is its ability to reveal a lot about our personalities andactivities by sophisticated means of analy=ing data. #herefore, without greater transparency in data mining, it is hard toclaim that programs lie the 0$Adata mining program will not reveal information peoplemight want to hide, as we do not now precisely what is revealed. oreover, data mining aims to be predictive ofbehavior, striving to prognosticate about our future actions. 6eople who match certain proles are deemed liely to engage in asimilar pattern of behavior. :t is 'uite di>cult to refute actions that one has not yet done. !aving nothing to hide will not always

dispel predictions of future activity. Another problem in theta&onomy, which is implicated by the 0$Aprogram,isthe problem : refer to as e&clusion.1D &clusion is the problem caused when people are prevented fromhaving nowledge about how their information is being used, as well as barred from being able to access and correct errors in thatdata. #he 0$A program involves a massive database of information that individuals cannot access. :ndeed, the very e&istence of theprogram was ept secret for years.1F #his ind of information processing, which forbids people(s nowledge or involvement,resembles in some ways a ind of due process problem. :t is a structural problem involving the way people are treated bygovernment institutions. oreover, it creates a power imbalance between individuals and the government. #o what e&tent should

the &ecutive Branch and an agency such as the 0$A, which is relatively insulated from the political process and publicaccountability, have a signicant power over citi=ensM#his issue is not about whether the info rmationgathered is something people want to hide, but rather about the power and thestructure of government. A related problem involves 2secondary use.3 $econdary use is the use of data obtained forone purpose for a dierent unrelated purpose without the person(s consent. #he Administration has said little about how long thedata will be stored, how it will be used, and what it could be used for in the future. #he potential future uses of any piece of personalinformation are vast, and without limits or accountability on how that information is used, it is hard for people to assess the dangersof the data being in the government(s control. #herefore, the problem with the nothing to hide argument is that it focuses on justone or two particular inds of privacy problemsQthe disclosure of personal information or surveillanceQand not others. :t assumes a

particular view about what privacy entails, and it setstheterms for debate in a manner that is often unproductive. :t is important

to distinguish here between two ways of justifyinga program such as the SA sur+ei""ance and datamining program. #he rst way is to not recogni=e a problem. #his is how the nothing to hide argument worsQit denies even the

e&istence of a problem. #he second manner of justifying such a program is to acnowledgethe problems but

contendthat the !ene%ts of the 0$A program outeig$ t$e pri+acy$arms .#he rst justication inRuences the second, because the low value given to privacy is based upon a narrow view ofthe problem.#he ey misunderstanding is that thenothing to hide argument views privacyin a

particular wayQas a form of secrecy, as t$e rig$t to $ide t$ings. But there are manyother types of harminvolved beyond e&posing one(s secrets to the government. 6rivacyproblems are often di>cult to recogni=e and redress because they create a panoply of types of harm. ourts, legislators, and othersloo for particular types of harm to the e&clusion of others, and their narrow focus blinds them to seeing other inds of harms. One

of thedi>culties with the nothing to hide argument is that itloos #or a +iscera" kind o#


32/121

inBury as opposed to a structura" one .:ronically, this underlying conception of injury is shared byboth those advocating for greater privacy protections and thosearguing in favor of the conRicting intereststo privacy. ?or e&ample, law professor Ann Bartow argues that: have failed to describe privacy harms in acompelling manner in my article, A #a&onomy of 6rivacy, where : provide a framewor for understanding the manifold dierentprivacy problems.1G Bartow(s primary complaint is that my ta&onomy 2frames privacy harms in dry, analytical terms that fail tosu>ciently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing

human beings beyond simply provoing feelings of unease.311 Bartow claims that the ta&onomy does not $a+e'enoug$ dead !odies( and that privacy(s 2lac of bloodand death, orat least ofbroen bones and bucets of money, distances privacy harms from other categories of tort law.ost privacy problems lac dead bodies. Of course, there are e&ceptional cases such as the murders of@ebecca $haeer and Amy Boyer. @ebecca $haeer was an actress illed when a staler obtained her address from a ;epartment ofotor Vehicles record.IC #his incident prompted ongress to pass the ;river(s 6rivacy 6rotection Act of IIU.I Amy Boyer wasmurdered by a staler who obtained her personal information, including her wor address and $ocial $ecurity number, from adatabase company.I #hese e&amples aside, there is not a lot of death and gore in privacy law. :f this is the standard to recogni=e aproblem, then few privacy problems will be recogni=ed. !orric cases are not typical, and the purpose of my ta&onomy is to e&plainwhy most privacy problems are still harmful despite this fact. Bartow(s objection is actually very similar to the nothing to hide

argument.#hose advancing thenothing to hide argument have in mind a particular ind of visceralprivacy harm, one where privacy is violated only when something deeply embarrassing or discrediting is revealed. Bartow(s

uest #or $orror stories represents a similar desire to nd visceral privacy harms. #he problem is that notall privacy harms are lie this. At the end of the day, privacy is not a horror movie, and demanding more palpable

harms will be di>cult in many cases.Ket there is still a harm worth addressing, e+en i# it is

not sensationa"istic. :n many instances, privacy is threatened not by singular egregious acts, but by a slowseries of relatively minor acts which gradually begin to add up. :n this way, privacy problems resemble certain environmental harmswhich occur over time through a series of small acts by dierent actors. Bartow wants to point to a major spill, but gradual pollutionby a multitude of dierent actors often creates worse problems. #he law fre'uently struggles with recogni=ing harms that do notresult in embarrassment, humiliation, or physical or psychological injury.IE ?or e&ample, after the $eptember attacs, severalairlines gave their passenger records to federal agencies in direct violation of their privacy policies. #he federal agencies used thedata to study airline security.IU A group of passengers sued 0orthwest Airlines for disclosing their personal information. One of theirclaims was that 0orthwest Airlines breached its contract with the passengers. :n ;yer v. 0orthwest Airlines orp., the court rejectedthe contract claim because 2broad statements of company policy do not generally give rise to contract claims,3 the passengersnever claimed they relied upon the policy or even read it, and they 2failed to allege any contractual damages arising out of thealleged breach.3ID Another court reached a similar conclusion.IF @egardless of the merits of the decisions on contract law, thecases represent a di>culty with the legal system in addressing privacy problems. #he disclosure of the passenger recordsrepresented a 2breach of condentiality.3IG #he problems caused by breaches of condentiality do not merely consist of individualemotional distressS they involve a violation of trust within a relationship. #here is a strong social value in ensuring that promises areept and that trust is maintained in relationships between businesses and their customers. #he problem of secondary use is alsoimplicated in this case.I1 $econdary use involves data collected for one purpose being used for an unrelated purpose withoutpeople(s consent. #he airlines gave passenger information to the government for an entirely dierent purpose beyond that for whichit was originally gathered. $econdary use problems often do not cause nancial, or even psychological, injuries. :nstead, the harm isone of power imbalance. :n ;yer, data was disseminated in a way that ignored airline passengers( interests in the data despitepromises made in the privacy policy. ven if the passengers were unaware of the policy, there is a social value in ensuring thatcompanies adhere to established limits on the way they use personal information. Otherwise, any stated limits become meaningless,and companies have discretion to boundlessly use data. $uch a state of aairs can leave nearly all consumers in a powerlessposition. #he harm, then, is less one to particular individuals than it is a structural harm. A similar problem surfaces in another case,$mith v. hase anhattan Ban.II A group of plaintis sued hase anhattan Ban for selling customer information to third partiesin violation of its privacy policy, which stated that the information would remain condential. #he court held that even presumingthese allegations were true, the plaintis could not prove any actual injury" W#Xhe 2harm3 at the heart of this purported class action,is that class members were merely oered products and services which they were free to decline. #his does not 'ualify as actualharm. #he complaint does not allege any single instance where a named plainti or any class member suered any actual harm dueto the receipt of an unwanted telephone solicitation or a piece of jun mail.CC #he court(s view of harm, however, did not account

for the breach of condentiality. %hen balancing privacy against security, the privacy harms areoften characteri=ed in terms of injuries to the individual, and the interest in security isoftencharacteri=ed in a more broad societal way.#he security interest in the 0$Aprograms hasoften been dened improperly.:n a ongressional hearing, Attorney


33/121

oversightand accountability we want in placewhen the government engages in searchesand sei=ures. #he government can employ nearly any ind of investigatory activity with a warrant supported by probablecause. #his is a mechanism of oversightQit forces government o>cials to justify theirsuspicions to a neutral judgeor magistrate before engaging in the tactic. ?or e&ample, electronic surveillance lawallows for wiretapping, but limits the practice with judicial supervision, procedures to minimi=e the breadth of the wiretapping, andre'uirements that the law enforcement o>cials report bac to the court to prevent abuses.C :t is these procedures that the BushAdministration has ignored by engaging in the warrantless 0$A surveillance. #he 'uestion is not whether we want the governmentto monitor such conversations, but whether the &ecutive Branch should adhere to the appropriate oversight procedures thatongress has enacted into law, or should covertly ignore any oversight. #herefore, the security interest should not get weighed in itstotality against the privacy interest. @ather, what should get weighed is the e&tent of marginal limitation on the eectiveness of agovernment information gathering or data mining program by imposing judicial oversight and minimi=ation procedures. Only incases where such procedures will completely impair the government program should the security interest be weighed in total, rather

than in the marginal dierence between an unencumbered program versus a limited one. ?ar too often,the balancingof privacyinterests against securityinterests taes place in a manner that severely

shortchanges the privacyinterest while inQating t$e security interests . $uch is

the logic of the nothing to hide argument. %hen the argument is unpaced, and its

under"ying assumptions e&amined and challenged, we can see how it s$i#ts

t$e de!ate to its terms , in which it drawspower from its unfair advantage. :t is

time to pull the curtainon the nothing to hide argument. %hether e&plicit or not, conceptions of privacy underpinnearly every argument made about privacy, even the common 'uip 2:(ve got nothing to hide.3 As : have sought to demonstrate inthis essay, understanding privacy as a pluralistic conception reveals that we are often taling past each other when discussingprivacy issues. By focusing more specically on the related problems under the rubric of 2privacy,3 we can better address each

problem rather than ignore or conRate them.#henothing to hide argument speas to some problems, but not to others. :t

represents a singular and narrow way of conceiving of privacy, and it ins by

e&c"uding consideration o#the ot$er pro!"ems often raised in

go+ernment sur+ei""ance and data mining programs. %hen engaged with directly, the nothing to hideargument can ensnare, for it forces the debate to focus on its narrow understanding of privacy. But when confrontedwiththe plurality of privacy problems implicatedby government data collectionand use beyondsurveillance and disclosure, thenothing to hide argument, in the end, has nothing to say.

Put pri+acy !e#ore security. ,$e !a""ot s$ou"d create a side

constraint$ere ends dont Busti#y t$e means. ,$is is

especia""y app"ies to data co""ection in t$e a!sence o# pro!a!"e

cause.

A"!rig$t @1

5ogan Albright is the @esearch Analyst at ?reedom%ors, and is responsible for producing a wide

variety of written content for print and the web, as well as conducting research for sta mediaappearances and special projects. !e received his aster(s degree in economics from


34/121

probable causein order to surveil an individual. 0o one is disputing that. But whenthis targeting results in collateral spyingon vast numbers of innocents, in the absence ofprobable causeand the corresponding warrants, that is a major problem. #he 0$A has asserted that suchincidental data collectionis inevitable, and to a certain e&tent that(s liely true. :t is understandable that in some situations

the 0$A may learn information about people other than the direct target, but this s$ou"d obviously !e

minimi:ed as #ar as possi!"e , andat the very least t$e in#ormation s$ou"d!e immediate"y purged #rom go+ernment data!ases , not stored foryears on end.:n any case, the whole situation is indicative of the agency(s cavalier attitude towards individual rights.%hile national security is a concern we all share, the ends do not justify the means whenthose means involve violate the constitutional protectionsaorded to citi=ens by our nation(s founders. :t

is not okay to +io"ate t$e rig$ts o# an innocent in the process of

achieving a broader goal, e+en i# t$at goa" is no!"e. #he way the 0$A hasbeen behaving isachiavellian in the most literal sense. :n his Fth century political treatise, #he 6rince, 0iccoloachiavelli recogni=ed a harsh reality of politics that still plagues us half a millennium later, writing, 2A prince wishing to eep his

state is very often forced to do evil.3 #aing achiavelli(s advice as a green light for immoral behavior has beenthe problem with governments throughout history, a problem the founding fathers sought to avoid by setting down precise

guidelines for what the government could and could not do in the form of a onstitution. #he disregard of these rules, and theargument that there should be a national security e&ception to the ?ourthAmendment, undermines the entire purpose of the American e&periment, and restoresthe uropean-styletyrannies the revolutionaries fought against.

4+en withina uti"itarian #rameork> pri+acy outeig$s #or to

reasonsJ

First Structura" !ias. Their link inates the security riskand

t$eir impacts an epistemologically wrong.

So"o+e @L



35/121

what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balancedagainstthe security interests,which are cast in terms ofthe safety of society as a whole.ourts andcommentators defer to the government(s assertions about the eectiveness of the security interest. :n the conte&t of data mining, the liberty interest is limited by narrow understandings

of privacy that neglect to account for many privacy problems.As a result, the balancing concludes with a victory in

favor of the security interest.ut as : will argue, important dimensions of data mining(s security benets re'uire more scrutiny, and the

pri+acy concerns are signi%cant"y greater t$an currentlyackno"edged. #hese problemshave undermined the balancing process and

skeed the resu"ts toard t$e security side o# t$e sca"e. ;ebates about data miningbegin with the assumption that it is an essential tool in protecting our security. #errorists lur among us, and ferreting them out can be 'uite di>cult. &amining data for patterns willgreatly assist in this endeavor, the argument goes, because certain identiable characteristics and behaviors are liely to be associated with terrorist activity. Often, little more is said,and the debate pro-ceeds to e&amine whether privacy is important enough to refrain from using such an eective terrorism-ghting tool. any discussions about security and libertyproceed in this fashion. #hey commence by assuming that a particular security measure is eective, and the only remaining 'uestion is whether the liberty interest is strong enough tocurtail that measure. But given the gravity of the security concerns over terrorism, the liberty interest has all but lost before it is even placed on the scale. 7udge @ichard 6osner arguesthat judges should give the e&ecutive branch considerable deference when it comes to assessing the security measures it proposes. :n his recent boo, 0ot a $uicide 6act" #heonstitution in a #ime of 0ational mergency,E 6osner contends that judicial restraint is wise because 2when in doubt about the actual or liely conse'uences of a measure, thepragmatic, empiricist judge will be inclined to give the other branches of government their head.3U According to 6osner, 2WjXudges aren(t supposed to now much about nationalsecurity.3D 5iewise, ric 6osner and Adrian Vermeule declare in their new boo, #error in the Balance" $ecurity, 5iberty, and the ourts,F that 2the e&ecutive branch, not ongress orthe judicial branch, should mae the tradeo between security and liberty.3G oreover, 6osner and Vermeule declare that during emergencies, 2WcXonstitutional rights should be rela&edso that the e&ecutive can move forcefully against the threat.31 #he problem with such deference is that, historically, the e&ecutive branch has not always made the wisest nationalsecurity decisions. 0onetheless, 6osner and Vermeule contend that notwithstanding its mistaes, the e&ecutive branch is better than the judicial and legislative branches on institutionalcompetence grounds.I 27udges are generalists,3 they observe, 2and the political insulation that protects them from current politics also deprives them of information, especiallyinformation about novel security threats and necessary responses to those threats.3C 6osner and Vermeule argue that during emergencies, the 2novelty of the threats and of thenecessary responses maes judicial routines and evolved legal rules seem inapposite, even obstructive.3 27udicial routines3 and 2legal rules,3 however, are the cornerstone of dueprocess and the rule of lawQthe central building blocs of a free and democratic society. At many times, 6osner, Vermeule, and other strong proponents of security seem to focus almoste&clusively on what would be best for security when the objective should be establishing an optimal balance between security and liberty. Although such a balance may not promote

security with ma&imum e>ciency, it is one of the costs of living in a constitutional democracy as opposed to an authoritarian political regime. #he e&ecutive branch may be theappropriate branch for developing security measures, but this does not mean that it is the most adept branch at establishing a balance between security and liberty. :n our constitutionaldemocracy, all branches have a role to play in maing policy. ourts protect constitutional rights not as absolute restrictions on e&ecutive and legislative policymaing but as importantinterests to be balanced against government interests. As #. Ale&ander Aleinio notes, 2balancing now dominates major areas of constitutional law.3 Balancing occurs through variousforms of judicial scrutiny, re'uiring courts to analy=e the weight of the government(s interest, a particular measure(s eectiveness in protecting that interest, and the e&tent to which thegovernment interest can be achieved without unduly infringing upon constitutional rights.E ?or balancing to be meaningful, courts must scrutini=e both the security and libertyinterests. %ith deference, however, courts fail to give ade'uate scrutiny to security interests. ?or e&ample, after the subway bombings in 5ondon, the 0ew Kor 6olice ;epartment begana program of random searches of people(s baggage on the subway. #he searches were conducted without a warrant, probable cause, or even reasonable suspicion. :n ac%ade v8elly,U the 9nited $tates ourt of Appeals for the $econd ircuit upheld the program against a ?ourth Amendment challenge. 9nder the special needs doctrine, when e&ceptionalcircumstances mae the warrant and probable cause re'uirements unnecessary, the search is analy=ed in terms of whether it is 2reasonable.3D @easonableness is determined bybalancing the government interest in security against the interests in privacy and civil liberties.F #he weight of the security interest should turn on the e&tent to which the programeectively improves subway safety. #he goals of the program may be 'uite laudable, but nobody 'uestions the importance of subway safety. #he critical issue is whether the searchprogram is a su>ciently eective way of achieving those goals that it is worth the tradeo in civil liberties. On this 'uestion, unfortunately, the court deferred to the law enforcemento>cials, stating that the issue 2is best left to those with a uni'ue understanding of, and responsibility for, limited public resources, including a nite number of police o>cers.3 G :ndetermining whether the program was 2a reasonably eective means of addressing the government interest in deterring and detecting a terrorist attac on the subway system,31 thecourt refused to e&amine the data to assess the program(s eectiveness.I #he way the court analy=ed the government(s side of the balance would justify nearly any search, no matterhow ineective. Although courts should not tae a now-it-all attitude, they should not defer on such a critical 'uestion as a security measure(s eectiveness. #he problem with manysecurity measures is that they are not wise e&penditures of resources. A small number of random searches in a subway system of over four million riders a day seems more symbolicthan eective because the odds of the police nding the terrorist with a bomb are very low. #he government also argued that the program would deter terrorists from bringing bombs onsubway trains, but nearly any ind of security measure can arguably produce some degree of deterrence. #he ey issue, which the court did not analy=e, is whether the program wouldlead to deterrence signicant enough to outweigh the curtailment of civil liberties. :f courts fail to 'uestion the e>cacy of security measures, then the security interest will prevail nearlyall the time. 6reventing terrorism has an immensely heavy weight, and any given security measure will provide a marginal advancement toward that goal. :n the defer-ence e'uation, themath then becomes easy. At this point, it is futile to even bother to loo at the civil liberties side of the balance. #he government side has already won. 6roponents of deference arguethat if courts did not defer, then they would be substituting their judgment for that of e&ecutive o>cials, who have greater e&pertise in understanding security issues. $pecial e&pertise innational security, however, is often not necessary for balancing security and liberty. 7udges and legislators should re'uire the e&perts to persuasively justify the security measures beingdeveloped or used. Of course, in very comple& areas of nowledge, such as advanced physics, none&perts may nd it di>cult to understand the concepts and comprehend theterminology. But it is not clear that security e&pertise involves such sophisticated nowledge that it would be incomprehensible to none&perts. oreover, the deference argumentconRates evaluating a particular security measure with creating such a measure. #he point of judicial review is to subject the judgment of government o>cials to critical scrutiny ratherthan blindly accept their authority. ritical in'uiry into f actual matters is not the imposition of the judge(s own judgment for that of the decisionmaer under review.EC :nstead, it isforcing government o>cials to e&plain and justify their policies. ?ew will 'uarrel with the principle that courts should not 2second guess3 the decisions of policy e&perts. But there is adierence between not 2second guessing3 and failing to critically evaluate the factual and empirical evidence justifying the government programs. 0obody will contest the fact thatsecurity is a compelling interest. #he ey issue in the balancing is the e&tent to which the security measure furthers the interest in security. As : have argued elsewhere, whenever courtsdefer to the government on the eectiveness of a government security measure, they are actually deferring to the government on the ultimate 'uestion as to whether the measurepasses constitutional muster.E ;eference by the courts or legislature is an abdication of their function. Our constitutional system of government was created with three branches, adesign structured to establish checs and balances against abuses of power. :nstitutional competence arguments are often made as if they are ineluctable truths about the nature ofeach governmental branch. But the branches have all evolved considerably throughout history. #o the e&tent a branch lacs resources to carry out its function, the answer should not beto diminish the power of that branch but to provide it with the necessary tools so it can more eectively carry out its function. ?ar too often, unfortunately, discussions of institutionalcompetence devolve into broad generali=ations about each branch and unsubstantiated assertions about the inherent superiority of certain branches for maing particulardeterminations. :t is true, as 6osner and Vermeule observe, that historically courts have been deferential to the e&ecutive during emergencies.E 6roponents of security measures oftenadvance what : will refer to as the 2pendulum theory3Qthat in times of crisis, the balance shifts more toward security and in times of peace, the balance shifts bac toward liberty. ?ore&ample, hief 7ustice @ehn'uist argues that the 2laws will thus not be silent in time of war, but they will spea with a somewhat dierent voice.3EE 7udge 6osner contends that theliberties curtailed during times of crisis are often restored during times of peace.EU ;eference is inevitable, and we should accept it without being overly concerned, for the pendulumwill surely swing bac. As : argue elsewhere, however, there have been many instances throughout 9$ history of needless curtailments of liberty in the name of security, such as the6almer @aids, the 7apanese :nternment, and the carthy communist hearings.ED #oo often, such curtailments did not stem from any real security need but because of the 2personalagendas and prejudices3 of government o>cials.EF %e should not simply accept these mistaes as inevitableS we should see to prevent them from occurring. !oping that the pendulumwill swing bac oers little consolation to those whose liberties were infringed or chilled. #he protection of liberty is most important in times of crisis, when it is under the greatest threat.;uring times of peace, when our judgment is not clouded by fear, we are less liely to mae unnecessary sacrices of liberty. #he threat to liberty is lower in peacetime, and the need toprotect it is not as dire. #he greatest need for safeguarding liberty is during times when we least want to protect it. :n order to balance security and liberty, we must assess the security

interest. #his involves evaluating two componentsQthe gravity of the security threat and the eectiveness of the security measures to address it. :t is oftenmerelyassumedwithout 'uestion thatthe secu-rity threat fromterrorism is one of the gravest dangerswe facein the modern world. But this assumption might be wrong.Assessing the ris of harm from terrorism is very di>cult becauseterrorism is such an irregular occurrence and is constantly evolving. :f we e&amine the data from previous terrorist attacs, however, the threat of terrorism

$as !een se+ere"y o+erstated. ?or e&ample, many people fear being illed in a terrorist attac, but based on statistics fromterrorism in the 9nited $tates, the ris of dying from terrorism is miniscule . According to political scientist 7ohn ueller, WeXven withthe $eptember attacs included in the count . . . the number of Americans illed by international terrorism since the late IFCs )which is when the $tate ;epartment began its

accounting* is about the same as the number illed over the same period by lightning, or by accident-causing deer, or by severe allergic reactions to peanuts.EG Add up the


36/121

eight deadliest terrorist attacs in 9$ history, and they amount to fewer than fourthousand fatalities.E1 :n contrast, Ru and pneumonia deaths are estimated to be around si&ty thousand per year.EI Another forty thousand die in auto accidentseach year.UC Based on our e&perience with terrorism thus far, the ris of dying from terrorism is very low on the

relative scale of fatal riss. ;ramatic events and media attentioncan c"oud a rationa"

assessment o# risk. #he year CC was not just notable for the $eptember attacs. :t was also the summer of the shar bite, when e&tensivemedia coverage about shar bites led to the perception that such attacs were on the rise. But there were fewer shar attacs in CC than in CCC and fewer deaths as well, with onlyfour in CC as compared to thirteen in CCC.U And regardless of which year had more deaths, the number is so l ow that an attac is a frea occurrence. :t is certainly true that our paste&perience with terrorism might not be a good indicator of the future. ore treacherous terrorism is possible, such as the use of nuclear or biological weapons. #his complicates ourability to assess the ris of harm from terrorism. oreover, the intentional human conduct involved in terrorism creates a sense of outrage and fear that ordinary deaths do not engender.Alleviating fear must be taen into account, even if such fear is irrationally high in relation to other risier events such as dying in a car crash. But enlightened policy must not completely

give in to the panic and irrational fear of the moment. :t should certainly attempt to 'uell the fear, but it must do so thoughtfully. 0evertheless, most policymaersnd it 'uite di>cult to assess the threat of terrorism modestly.:n the face of widespread public panic, it is hardfor government o>cials to mae only moderate changes. $omething dramatic must be done, or political heads will roll. culty in assessing the security threat in a more

rational manner, it is imperative that the courts meaningfully analy=e the eectiveness of security measures. ven if panic and fear might lead to thegravity of the threat being overstated, we should at least ensure that the measures taento promote security aresu>cientlyeectiveto justify the cost. 9nfortunately, as : will discuss in the ne&t section, rarely do discussions about thesacrice of civil liberties e&plain the corresponding security benet, why such a benet cannot be achieved in other ways, and why such a security measure is the best and most rational

one to tae. 5ittle scrutiny is given to security measures. #hey are often just accepted as a given, no matter howill-conceived or ineective they might be.$ome ineective security measures are largely symbolic, such as the 0ew Kor ity subway search program. #hesearches are unliely to catch or deter terrorists because they involve only a miniscule fraction of the millions of daily passengers. #errorists can just turn to other targets or simplyattempt the bombing on another day or at another train station where searches are not taing place. #he vice of symbolic security programs is that they result in needless sacrices of

liberty and drain resources from other, more eective security measures. 0evertheless, these programs have a virtueQthey can ameliorate fear because they are highly visible.:ronically, the subway search program(s primary benet was alleviating people(s fear )which was probably too high*, albeit in a deceptive manner )as the program did not add much in

the way of security*. ;ata miningrepresents another ind of security measure, one that currently has little proven eectivenessandlittle symbolic value. ;ata mining programs are often not visible enough to the public to 'uell much fear. :nstead, their benets come primarily from their actual eectiveness in reducing

terrorist threats, which remains highly speculative. #hus far, data mining is not +ery accurate in the behavioral predictionsit maes. ?or e&ample, there are appro&imately .1 million airline passengers each day.U A data mining program to identify terrorists with a false positive rate of percent )which wouldbe e&ceedingly low for such a program* would Rag eighteen thousand people as false positives. #his is 'uite a large number of innocent people. %hy is the government so interested indata mining if it remains unclear whether it will ever be very accurate or worableM 6art of the government(s interest in data mining stems from the aggressive mareting eorts ofdatabase companies. After $eptember , database companies met with government o>cials and made a persuasive pitch about the virtues of data mining.UE #he technology sounds

'uite da==ling when presented by sillful mareters, and it can wor 'uite well i n the commercial setting. #he problem, however, is thatjust because datamining might be eective for businesses trying to predict customer behavior doesnot mae it eective for the government trying to predict who will engage interrorism. A high level of accuracy is not necessary when data mining is used by businesses to target mareting to consumers, because the cost of error to individuals isminimal. Ama=on.com, for e&ample, engages in data mining to determine which boos its customers are liely to nd of interest by comparing boobuying patterns among its customers.Although it is far from precise, it need not be because there are few bad conse'uences if it maes a wrong boo recommendation. onversely, the conse'uences are vastly greater for

government data mining. 9ltimately, : do not believe that the case has been made that data mining is awise e&penditure of security resources.#hose who advocate for security should be just as outraged as those on the liberty side of thedebate. Although courts should not micromanage which security measures the government chooses, they should e&amine the eectiveness of any given security measure to weigh itagainst the liberty costs. ourts should not tell the e&ecutive branch to modify a security measure just because they are not convinced it is the best one, but they should tell the

e&ecutive that a particular security measure is not eective enough to outweigh the liberty costs.#he very point of protecting liberty is todemand that sacrices to liberty are not in vain and that security interests, whichcompromise civil liberties, are su>ciently eective to warrant the cost.

Second - Relative certainty. ,$e disad on"y may cause +io"ence

- sur+ei""ance denitelydoes. Pri+acy is paramount #or dignity

and protecting our uniue indi+idua"ity.

Sc$neier @K

Bruce $chneier is a fellow at the Berman enter for :nternet $ociety at !arvard 5aw $chool, aprogram fellow at the 0ew America ?oundationJs Open #echnology :nstitute and the #O of @esilient$ystems. !e is the author of Beyond ?ear" #hining $ensibly About $ecurity in an 9ncertain %orld.ommentary, 2#he ternal Value of 6rivacy3, %:@;, ay 1, CCF,http"LLwww.wired.comLnewsLcolumnsL,GC11F-C.html


37/121

#he most common retort against privacy advocates-- by those in favor of:; checs,cameras, databases, data mining and other wholesale surveillance measures-- is this line" H:f you arenJtdoing anything wrong, what do you have to hideMH $ome clever answers" H:f :Jm notdoing anything wrong, then you have no cause to watch me.H HBecause the government gets todene whatJs wrong, and they eep changing the denition.H HBecause you might do something wrong

with my information.H

y problem with 'uips lie these-- as right as they are --

is that theyaccept the premise that privacy is about hiding a wrong. :tJs not. Pri+acy is an

in$erenthuman right, and a reuirement #or maintaining the human condition with

dignity and respect. #wo proverbs say it best" 4uis custodiet custodes ipsosM )H%ho watches the watchersMH*and HAbsolute power corrupts absolutely.H ardinal @ichelieu understood the value of surveillance when he famously said, H:f onewould give me si& lines written by the hand of the most honest man, : would nd something in them to have him hanged.H %atch

someone long enough, and youJll nd something to arrest -- or just blacmail -- with. 6rivacy is important because

without it, sur+ei""ance in#ormation i"" !e a!used " to peep, to sell to mareters andto spy on political enemies -- whoever they happen to be at the time. 6rivacy protects us from abuses bythose in power, even if weJre doing nothing wrong at the time of surveillance. %e donothing wrong when we mae love or go to the bathroom. %e are not deliberately hiding anything when we see out private placesfor reRection or conversation. %e eep private journals, sing in the privacy of the shower, and write letters to secret lovers and then

burn them. Pri+acy is a !asic $uman need. A future in which privacy would face constant assaultwas so alien to the framers of the onstitution that it never occurred to them to call out privacy as an e&plicit right. 6rivacy wasinherent to the nobility of their being and their cause. Of course being watched in your own home was unreasonable. %atching at allwas an act so unseemly as to be inconceivable among gentlemen in their day. Kou watched convicted criminals, not free citi=ens.

Kou ruled your own home. :tJs intrinsic to the concept of liberty. ?or if we are observed in all matters, we are

constantlyunder threat ofcorrection,judgment,criticism, even plagiarism o# our on

uniueness . %e becomechildren, fettered under watchful eyes, constantly fearful that-- eithernow or in the uncertain future -- patterns we leave behind will be brought bac toimplicate us, by whatever authority has now become focused upon our once-private

and innocent acts. Re "ose our indi+idua"ity, because everything we do is

observable and recordable.!ow many of us have paused during conversation in the past four-and-a-half years, suddenly aware that we might be eavesdropped onM 6robably it was a phoneconversation, although maybe it was an e-mail or instant-message e&change or a conversation in a publicplace. aybe the topic was terrorism, or politics, or :slam. %e stopsuddenly, momentarilyafraid that our words might be taen out of conte&t, then we laugh at our paranoia and go on. But our demeanor has changed, and our words are subtly altered. #his is the loss offreedom we face when our privacy is taen from us. #his is life in former ast


38/121

Smit$ @1

6eter 7. $mith :V / attorney for the law rm 598:0$ A00:$ and 5ead ouncil for #his brief was wassigned by the entire legal team, which includes four attorneys from the 5#@O0: ?@O0#:@?O90;A#:O0 and three additional attorneys from the A@:A0 :V:5 5:B@#:$ 90:O0 ?O90;A#:O0 -A6655A0#($ @65K B@:? in the matter of $mith v. Obama / be'ore the United States 3inth 4ircuit4ourt o' Appeals. October Fth/ available at" https"LLwww.e.orgLdocumentLsmiths-reply-brief

#he government argues that it would be more convenient for law enforcement if thecourts established a bright-line rule that e&tinguished all privacy in informationshared with others.$ee ciency but to safeguard individual liberty. f.

Bailey v. 9nited $tates, EE $. t. CE, CU )CE* )2@,T$e mere #act t$at "a

en#orcement may !e made more ecient can ne+er !y itse"#

Busti#y disregard o# t$e Fourt$ Amendment .(3 )'uoting incey v. Ari=ona, UEG 9.$.

E1D, EIE )IG1***S @iley, EU $. t. at UIE )2Our cases have historically recogni=ed that t$e arrantreuirement is Tan important woring part of our machinery of government, (

not mere"y @an incon+enience to !e some$o 'eig$ed(

against t$e c"aims o# po"ice eciency. (3 )'uoting oolidge v. 0ew !ampshire, UCE 9.$.UUE, U1 )IG***. 0otably, the government made the same appeal for a bright-line rule in 7ones and aynard, see, e.g., Brief forthe 9nited $tates at E, 7ones, E $. t. IUD, but the $upreme ourt and ;.. ircuit rejected it.

3eBect t$ose pri+acy +io"ations as an a priori imperative. A"so

pro+es t$at t$e disads a"" $ype.

Ryden @1)et alS #his amicus brief issued by three 9$ $enators - @on %yden, ar 9dall and artin !einrich.%yden and 9dall sat on the $enate $elect ommittee on :ntelligence and had access to the meta-dataprogram. 2B@:? ?O@ A:: 9@:A $0A#O@ @O0 %K;0, $0A#O@ A@8 9;A55, A0; $0A#O@A@#:0 !:0@:! :0 $966O@# O? 65A:0#:??-A6655A0#, 9@


39/121

3eBect uti"itarianism. t s$atters a"" et$ics and Busti%es t$e

orst atrocities.

Ho"t @M5

)7im !olt is an American philosopher, author and essayist. !e has contributed to #he 0ew Kor #imes,#he 0ew Kor #imes aga=ine, #he 0ew Kor @eview of Boos, #he 0ew Korer, #he American $cholar,and $late. !e hosted a weely radio spot on BB for ten years and he writes fre'uently about politicsand philosophy. 0ew Kor #imes, 2orality, @educed #o Arithmetic,3 August D, p. 5e&is*

an the deliberate massacre of innocent people ever be condonedM #he atomic bombs dropped on !iroshima and 0agasai on Aug. F and I, IUD,resulted in the deaths of C,CCC to DC,CCC 7apanese by incineration and radiation poisoning. Although a small fraction of the victims were soldiers, thegreat majority were noncombatants -- women, children, the aged. Among the justications that have been put forward for 6resident !arry #ruman(sdecision to use the bomb, only one is worth taing seriously -- that it saved lives. #he alternative, the reasoning goes, was to launch an invasion. #rumanclaimed in his memoirs that this would have cost another half a million American lives. %inston hurchill put the gure at a million. @evisionist historianshave cast doubt on such numbers. %artime documents suggest that military planners e&pected around DC,CCC American combat deaths in an invasion.$till, when 7apanese casualties, military and civilian, are taen into account, the overall invasion death toll on both sides would surely have ended upsurpassing that from !iroshima and 0agasai. $cholars will continue to argue over whether there were other, less catastrophic ways to force #oyo tosurrender. But given the erce obstinacy of the 7apanese militarists, #ruman and his advisers had some grounds for believing that nothing short of a full-scale invasion or the annihilation of a big city with an apocalyptic new weapon would have succeeded. $uppose they were right. %ould this prospect have

justied the intentional mass illing of the people of !iroshima and 0agasaiM:n the debateover the 'uestion, participants on bothsides have beenplaying the numbers game. stimate the hypothetical number of lives savedby the bombings, then add up the actual lives lost. :f the rst number e&ceeds the second, then #ruman did the right thingS ifthe reverse, it was wrong to have dropped the bombs. #hat is one approach to the matter -- the utilitarian approach. According to utilitarianism, a form of

moral reasoning that arose in the Ith century, the goodness or evil of an action is determined solely byits conse'uences. :f somehow you can save C lives by boiling a baby, go ahead

and !oi" t$at !a!y . #here is, however, an older ethical tradition , one rooted in 7udeo-hristian theology, that taes a 'uite dierent view. #he gist of it is e&pressed by $t. 6aul(s condemnation of those who say, 25et us do evil, that good may

come.3 $ome actions, this tradition holds, can never be justied by their conse'uencesS they areabsolutely forbidden . :t is always wrong to boil a baby even if lives are savedthereby. Applying this absolutist morality to war can be tricy. %hen enemy soldiers are trying to enslave or ill us, the principle of self-defensepermits us to ill them )though not to slaughter them once they are taen prisoner*. But what of those who bac themM ;uring %orld %ar ::, propagandistsmade much of the 2indivisibility3 of modern warfare" the idea was that since the enemy nation(s entire economic and social strength was deployed behind

its military forces, the whole population was a legitimate target for obliteration. 2#here are no civilians in 7apan,3 declared an intelligence o>cer of the?ifth Air ?orce shortly before the !iroshima bombing, a time when the 7apanese were popularly depicted as vermin worthy of e&termination. #he boundarybetween combatant and noncombatant can be fu==y, but the distinction is not meaningless, as the case of small children maes clear. Ket is wartimeilling of those who are not trying to harm us always tantamount to murderM %hen naval docyards, munitions factories and supply lines are bombed,civilian carnage is inevitable. #he absolutist moral tradition acnowledges this by a principle nown as double eect" although it is always wrong to illinnocents deliberately, it is sometimes permissible to attac a military target nowing some noncombatants will die as a side eect. #he doctrine ofdouble eect might even justify bombing a hospital where !itler is lying ill. :t does not, however, apply to !iroshima and 0agasai. #ransformed intohostages by the technology of aerial bombardment, the people of those cities were intentionally e&ecuted en masse to send a message of terror to therulers of 7apan. #he practice of ordering the massacre of civilians to bring the enemy to heel scarcely began with #ruman. 0or did the bomb result incasualties of a new order of magnitude. #he earlier bombing of #oyo by incendiary weapons illed some CC,CCC people. %hat !iroshima and 0agasai

did mar, by the unprecedented need for rationali=ation they presented, was the triumph of utilitarian thining in the conduct of war.#heconventional code of noncombatant immunity -- a product of several centuries of ethical progress among nations, which had been formali=ed by aninternational commission in the IC(s in the !ague -- was swept away. A simpler a&iom too its place" since war is hell, any means necessary may be

used to end, in hurchill(s words, 2the vast indenite butchery.3 :tis a moral calculus that, for all its logical consistency,

ofends our deep-seated intuitions about t$e sanctity o# "i#e -- our conviction that a person is alwaysto be treated as an end, never as a means. 5eft up to the warmaers , moreover,

utilitarian calculations are susceptible to bad-faith reasoning" tinker it$ t$enum!ers enoug$ and +irtua""y any atrocity can !e e&cused in thenational interest.:n 7anuary, the world commemorated the DCth anniversary of the liberation of Auschwit=, where mass slaughter wascommitted as an end in itself -- the ultimate evil. #he moral nature of !iroshima is ambiguous by contrast. Ket in the postwar era, when governments do

not hesitate to treat the massacre of civilians as just another strategic option, the bomb(s sinisterlegacy is plain" it has inuredus to the idea of reducing innocents to instruments and morality to arithmetic.


40/121


41/121

Pri+acy Ad+antage 1AC s$orter

+ersion


42/121

Pri+acy Ad+antage s$orter +ersion

Contention I NNNN is Pri+acy

Pri+acy outeig$s.

- ti"itarian impact ca"c is !iased. t inQates t$e disadsrisk and

- 3eBect Sur+ei""ance as a structura" matter o# poer e+en $en 're#ormed(> innocents e&perience poer"ess

un"ess neutra" o+ersig$ts in p"ace.

So"o+e @8



43/121

of protecting against chilling eects is not measured simply by focusing on theparticular individuals who are deterred from e&ercising their rights.hilling eectsharm society because, among other things, they reduce the range of viewpoints e&pressedand the degree of freedom with which to engage in political activity.#he nothing to hideargument focuses primarily on the information collection problems associated with the 0$A programs. :t contends that limitedsurveillance of lawful activity will not chill behavior su>ciently to outweigh the security benets. One can certainly 'uarrel with thisargument, but one of the di>culties with chilling eects is that it is often very hard to demonstrate concrete evidence of deterredbehavior.1E %hether the 0$A(s surveillance and collection of telephone records has deterred people from communicating particularideas would be a di>cult 'uestion to answer. ?ar too often, discussions of the 0$A surveillance and data mining dene the problem

solely in terms of surveillance. #o return to my discussion of metaphor, the problems are not just Orwellian, but 8afaes'ue.#he0$A programs are problematic even if no information people want to hide is

uncovered. :n #he #rial, the problem isnot inhibited behavior, but rather a sufocating

poer"essness and +u"nera!i"itycreated by the court system(s use of personaldataand its e&clusion of the protagonist from having any nowledge or participation in the process. #he harms consist of thosecreated by bureaucraciesQindierence, errors, abuses, frustration, and lac of transparency and accountability. One such harm, fore&ample, which : call aggregation, emerges from the combination of small bits of seemingly innocuous data.1U %hen combined, theinformation becomes much more telling about a person. ?or the person who truly has nothing to hide, aggregation is not much of aproblem. But in the stronger, less absolutist form of the nothing to hide argument, people argue that certain pieces of informationare not something they would hide. Aggregation, however, means that by combining pieces of information we might not care to

conceal, the government can glean information about us that we might really want to conceal. 6art of

the allure of datamining for the government is its ability to reveal a lot about our personalities andactivities by sophisticated means of analy=ing data. #herefore, without greater transparency in data mining, it is hard toclaim that programs lie the 0$Adata mining program will not reveal information peoplemight want to hide, as we do not now precisely what is revealed. oreover, data mining aims to be predictive ofbehavior, striving to prognosticate about our future actions. 6eople who match certain proles are deemed liely to engage in asimilar pattern of behavior. :t is 'uite di>cult to refute actions that one has not yet done. !aving nothing to hide will not always

dispel predictions of future activity. Another problem in theta&onomy, which is implicated by the 0$Aprogram,isthe problem : refer to as e&clusion.1D &clusion is the problem caused when people are prevented fromhaving nowledge about how their information is being used, as well as barred from being able to access and correct errors in thatdata. #he 0$A program involves a massive database of information that individuals cannot access. :ndeed, the very e&istence of theprogram was ept secret for years.1F #his ind of information processing, which forbids people(s nowledge or involvement,resembles in some ways a ind of due process problem. :t is a structural problem involving the way people are treated bygovernment institutions. oreover, it creates a power imbalance between individuals and the government. #o what e&tent should

the &ecutive Branch and an agency such as the 0$A, which is relatively insulated from the political process and publicaccountability, have a signicant power over citi=ensM#his issue is not about whether the info rmationgathered is something people want to hide, but rather about the power and thestructure of government. A related problem involves 2secondary use.3 $econdary use is the use of data obtained forone purpose for a dierent unrelated purpose without the person(s consent. #he Administration has said little about how long thedata will be stored, how it will be used, and what it could be used for in the future. #he potential future uses of any piece of personalinformation are vast, and without limits or accountability on how that information is used, it is hard for people to assess the dangersof the data being in the government(s control. #herefore, the problem with the nothing to hide argument is that it focuses on justone or two particular inds of privacy problemsQthe disclosure of personal information or surveillanceQand not others. :t assumes a

particular view about what privacy entails, and it setstheterms for debate in a manner that is often unproductive. :t is important

to distinguish here between two ways of justifyinga program such as the SA sur+ei""ance and datamining program. #he rst way is to not recogni=e a problem. #his is how the nothing to hide argument worsQit denies even the

e&istence of a problem. #he second manner of justifying such a program is to acnowledgethe problems but

contendthat the !ene%ts of the 0$A program outeig$ t$e pri+acy$arms .#he rst justication inRuences the second, because the low value given to privacy is based upon a narrow view ofthe problem.#he ey misunderstanding is that thenothing to hide argument views privacyin a

particular wayQas a form of secrecy, as t$e rig$t to $ide t$ings. But there are manyother types of harminvolved beyond e&posing one(s secrets to the government. 6rivacyproblems are often di>cult to recogni=e and redress because they create a panoply of types of harm. ourts, legislators, and othersloo for particular types of harm to the e&clusion of others, and their narrow focus blinds them to seeing other inds of harms. One

of thedi>culties with the nothing to hide argument is that itloos #or a +iscera" kind o#


44/121

inBury as opposed to a structura" one .:ronically, this underlying conception of injury is shared byboth those advocating for greater privacy protections and thosearguing in favor of the conRicting intereststo privacy. ?or e&ample, law professor Ann Bartow argues that: have failed to describe privacy harms in acompelling manner in my article, A #a&onomy of 6rivacy, where : provide a framewor for understanding the manifold dierentprivacy problems.1G Bartow(s primary complaint is that my ta&onomy 2frames privacy harms in dry, analytical terms that fail tosu>ciently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing

human beings beyond simply provoing feelings of unease.311 Bartow claims that the ta&onomy does not $a+e'enoug$ dead !odies( and that privacy(s 2lac of bloodand death, orat least ofbroen bones and bucets of money, distances privacy harms from other categories of tort law.ost privacy problems lac dead bodies. Of course, there are e&ceptional cases such as the murders of@ebecca $haeer and Amy Boyer. @ebecca $haeer was an actress illed when a staler obtained her address from a ;epartment ofotor Vehicles record.IC #his incident prompted ongress to pass the ;river(s 6rivacy 6rotection Act of IIU.I Amy Boyer wasmurdered by a staler who obtained her personal information, including her wor address and $ocial $ecurity number, from adatabase company.I #hese e&amples aside, there is not a lot of death and gore in privacy law. :f this is the standard to recogni=e aproblem, then few privacy problems will be recogni=ed. !orric cases are not typical, and the purpose of my ta&onomy is to e&plainwhy most privacy problems are still harmful despite this fact. Bartow(s objection is actually very similar to the nothing to hide

argument.#hose advancing thenothing to hide argument have in mind a particular ind of visceralprivacy harm, one where privacy is violated only when something deeply embarrassing or discrediting is revealed. Bartow(s

uest #or $orror stories represents a similar desire to nd visceral privacy harms. #he problem is that notall privacy harms are lie this. At the end of the day, privacy is not a horror movie, and demanding more palpable

harms will be di>cult in many cases.Ket there is still a harm worth addressing, e+en i# it is

not sensationa"istic. :n many instances, privacy is threatened not by singular egregious acts, but by a slowseries of relatively minor acts which gradually begin to add up. :n this way, privacy problems resemble certain environmental harmswhich occur over time through a series of small acts by dierent actors. Bartow wants to point to a major spill, but gradual pollutionby a multitude of dierent actors often creates worse problems. #he law fre'uently struggles with recogni=ing harms that do notresult in embarrassment, humiliation, or physical or psychological injury.IE ?or e&ample, after the $eptember attacs, severalairlines gave their passenger records to federal agencies in direct violation of their privacy policies. #he federal agencies used thedata to study airline security.IU A group of passengers sued 0orthwest Airlines for disclosing their personal information. One of theirclaims was that 0orthwest Airlines breached its contract with the passengers. :n ;yer v. 0orthwest Airlines orp., the court rejectedthe contract claim because 2broad statements of company policy do not generally give rise to contract cla

freedom act 1ac - georgetown 2015

Documents