2015-16 HIGH SCHOOL DEBATE TOPIC LECTURE ON DOMESTIC SURVEILLANCE

Hays WatsonHead Debate Coach

University of Georgia

Preview

Background information about the controversy surrounding domestic surveillance in the US

Discussion of potential affirmatives/aff ground on the domestic surveillance topic

Discussion of potential negative arguments on the domestic surveillance topic

Brief discussion of the GDI evidence packet affirmative – “court metadata” (can be found here: http://gdi.paperlessdebate.com/

Why Surveillance?

Why Surveillance?

Edward Snowden, a NSA contractor hired by the firm Booz Allen Hamilton, disclosed information in 2013 about US domestic surveillance practices to journalists Glen Greenwalt (The Guardian) and Laura Poitras (documentary filmmaker)

Distinct from WikiLeaks (Julian Assange) Set-off a firestorm of domestic and

foreign controversy regarding US surveillance policy

What is Surveillance?

Dictionary definitions define it as “observation and collection of data to provide evidence for a purpose”

Other definitions define it as types of observation – spying (think James Bond), monitoring (think wiretaps, satellites), data collection (“metadata”), visual observation (drones)

Other definitions define it as a process – the controlling, sorting, monitoring of information

Domestic Surveillance

What is Domestic Surveillance?

leaked US documents define domestic surveillance as “any imagery collected by satellite (national or commercial) and airborne platforms that cover the land areas of the 50 United States, the District of Columbia, and the territories and possessions of the US, to a 12 nautical mile seaward limit of these land areas.”

According to this definition, what forms of surveillance are we talking about?

History of Domestic Surveillance

Modern domestic surveillance policy began during the Cold War and continued through Vietnam to today (war on terrorism, etc.)

Congress, the courts, and the executive branch have all played significant roles in the formation of US domestic surveillance policy

Domestic surveillance is BOTH a political controversy (is surveillance good/bad) and a legal/moral controversy (is surveillance legal and/or justified)

Legislative History

Several pieces of legislation serve as the legal foundation for domestic surveillance

Foreign Intelligence Surveillance Act of 1978 (and the court it created – Foreign Intelligence Surveillance Court) is perhaps the most important source of legislative authority to domestically surveil

Electronic Communications and Privacy Act (1986), Patriot Act (2001), FISA Amendments Act (2008), USA Freedom Act (2015) continue to serve as additional legal authority in the US

Administrative History

J Edgar Hoover, long-time head of the FBI (1935-1972), is widely considered the “father” of domestic surveillance in the US

From the Cold War through Vietnam, he authorized surveillance of various domestic groups (suspected Nazis, Communists, anti-war activists, civil rights leaders, etc.)

Operation CHAOS (Cuba), CONINTELPRO (civil rights groups), Project Shamrock (mail/telegrams), Project Minaret (anti-war protestors) are some of his policies

Administrative History

Presidents have also authorized domestic surveillance

Early Cold War presidents – Truman, Eisenhower – allowed Hoover’s surveillance programs

Nixon engaged in domestic surveillance of political opponents

Ford, Carter, and Reagan issued executive orders authorizing domestic surveillance

Bush amended Reagan’s Exec Order 12333 to permit domestic surveillance related to the “war on terror”, a policy continued by Obama

Numerous agencies and sub-agencies are involved – FBI, CIA, NSA, DEA, DOJ (via OLC), etc.

Judicial History

While there are many Supreme Court cases impacting domestic surveillance, 3 stand out as particularly important regarding its legality: Katz vs US (1967), required warrants for wiretap

searches (4th amendment) Smith vs Maryland (1979), pen registers don't

require warrants because they aren't searches (telephone number info isn't "private")

Kyllo vs United States (2001) - suggested that the reasonableness of the government’s use of a surveillance technology would depend on the availability of the technology (thermal images of someone's home violated 4th Amendment)

Judicial History

Domestic surveillance policies are being litigated in the federal courts now, especially those programs illuminated by Snowden

Two cases in particular - ACLU vs James Clapper and Klayman v. Obama – are at the forefront of constitutional controversies surrounding domestic surveillance (namely NSA surveillance policies)

The Supreme Court has YET to rule on the constitutionality of surveillance programs disclosed by Snowden

2015-2016 Policy Debate Topic

This year’s high school policy debate topic deals with domestic surveillance.

The resolutional wording is Resolved: The United States federal government should substantially curtail its domestic surveillance.

Affirmatives must defend and win that the US federal government curtailing its domestic surveillance is GOOD – and there are a variety of WAYS domestic surveillance can be curtailed

Likely Affirmatives

The most popular affirmatives will call for curtailing those domestic surveillance policies practiced by the NSA

Why? Because that is the source of the controversy

Metadata collection aka bulk surveillance is the most notable form of NSA domestic surveillance

We’ll discuss more later, but think of metadata as “data about other data”

Likely Affirmatives

Drones will also be a popular area for affirmatives to curtail domestic surveillance

Drones are increasingly used to engage in domestic surveillance – at the federal, state, and local levels (law enforcement)

Drones can identify an object the size of a milk carton from altitudes of 60,000 ft OR engage in human body heat detection at distances of up to 60 km

US drone policy has a substantial impact on global drone policy

Other Affirmatives

Profiling of particular groups of people – CONINTELPRO, racial profiling, terrorist profiling (terror watch-lists), RFID chips (yes, the kind in your pet Fluffy)

Disease surveillance Satellite imagery/tracking Warrantless wiretaps GPS tracking Many more…

Core Affirmative Ground

Core Affirmative Ground

There are “core” issues that domestic surveillance implicates and from which affirmatives will derive their claims for “substantial curtailment”

Privacy – the right to be left alone – is perhaps the most common/most persuasive

US privacy law = complicated and fascinating Has implications on global development Human rights, governmental power, business

confidence, international relations are all impacted by domestic surveillance’s effects on privacy

Core Affirmative Ground

International cooperation/global leadership is another area affected by domestic surveillance that Affirmatives will likely want to discuss

Specific areas include: International law Soft power – our global reputation Modeling – others emulate our policies Specific forms of cooperation – terrorism

cooperation, intelligence cooperation, economic/financial cooperation

Core Affirmative Ground

The Internet – and its development – will also be a common topic of discussion given domestic surveillance of Internet-based activity

Internet technological developments and “Internet Freedom” are the two likely areas of research

Drones and drone technology will also be a common topic of discussion

Proliferation of drone technology, the development of norms regarding drones are the two likely area of research

Who Curtails Domestic Surveillance?

Aside from the major harms associated with domestic surveillance – privacy/rights, international cooperation, Internet developments, etc. – Affirmatives will also likely discuss the benefits of having particular AGENTS of the US federal government curtail domestic surveillance

Congress, the courts, and the executive branch are all potential agents that could garner BENEFITS from curtailing surveillance

Who Curtails Domestic Surveillance?

Congressional curtailment – some affirmatives could claim that having Congress curtail domestic surveillance improves the democratic accountability of our policies (they are the elected branch)

Judicial curtailment – some affirmatives could claim that having the courts curtail domestic surveillance demonstrates the independence of our judiciary from other branches

Executive curtailment – some affirmatives could claim that having the executive curtail surveillance could set a model emulated by other heads of state/restores the credibility of executive agencies (NSA, CIA, FBI, etc.

Why We Shouldn’t Curtail Domestic Surveillance

Why We Shouldn’t Curtail Domestic Surveillance

Negative teams will need to persuasively argue that domestic surveillance policies should NOT be curtailed (i.e. disprove the affirmative)

Negatives have a variety of means at their disposal to disprove the affirmative’s demand to curtail domestic surveillance

Articulating the consequences of curtailing surveillance (disadvantages), highlighting alternative forms of addressing the harms associated with surveillance (counterplans), and interrogating the flawed assumptions underlining the “need” to curtail domestic surveillance (critiques) will form the basis of most Negative arguments on this year’s topic

Disadvantages to Curtailing Surveillance

The most likely disadvantage to curtailing domestic surveillance will revolve around our ability to fight and defeat terrorists

Many experts feel that specific forms of domestic surveillance provide us with the information and tools necessary to defeat our terrorist enemies (“Tying one hand behind our backs”)

Curtailing surveillance means more terrorism…and more terrorism is bad

Disadvantages to Curtailing Surveillance

Another popular disadvantage to curtailing domestic surveillance will revolve around the negative political repercussions of doing so

Many politicians/segments of the American public feel that domestic surveillance policies are necessary and beneficial

Curtailing surveillance could alienate powerful political groups, constraining the president’s overall ability to secure his agenda OR could hurt a party’s chances of winning upcoming elections

Negative Ground Cont.

In addition to the disadvantages briefly discussed, the Negative will also have the ability to offer alternative solutions to the harms created by surveillance

Having the courts rather than congress curtail, promoting privacy in other ways than curtailing surveillance, encouraging international cooperation in other ways that curtailing surveillance, etc. are all approaches Negatives can take against particular affirmatives

Negative Ground Cont.

In addition to the disadvantages and counterplans that Negatives can deploy against particular affirmative proposals, Negative teams can challenge the underlying assumptions behind the Affirmative’s call to curtail domestic surveillance

“Critiques” of legal approaches (legalism), of domestic approaches (cosmopolitan internationalism), of security approaches (security), of the deployment of governmental power (Foucault/biopower) are all common arguments Negatives can also deploy (more on Fri)

GDI Camp Affirmative

Court Metadata Aff

The GDI evidence packet affirmative has the federal judiciary curtail NSA metadata surveillance by ruling in favor of an electronic right to privacy

The Supreme Court has yet to rule on the constitutionality of NSA surveillance policies – our aff has the courts take a stance IN FAVOR of electronic privacy rights

There are a variety of advantages this affirmative claims

What is Metadata

As mentioned earlier, it’s data that describes other data

It is also commonly referred to as bulk collection of data or bulk surveillance

It involves the mass collection of your personal metadata – phone numbers, email addresses, when and were you used them

Doesn’t contain specific content or specific personal information

The NSA engages in metadata (authorized via legislative and administrative policies)

Why is Metadata Important

It can be used to access private information

That private information is widely considered a human right (“too be free from government”)

Since metadata implicates electronic communication, it implicates the MEANS by which we engage in that communication (Internet)

Domestic use of metadata surveillance raises concerns abroad about the potential use of foreign metadata

Why the Courts?

Administrative and legislative approaches to curtail domestic metadata surveillance have been lacking and/or piecemeal

The 2015 Freedom Act didn’t end NSA metadata collection (underlying legal authorities to do bulk surveillance remain)

Courts have deferred to the executive and legislative branches – sets a dangerous precedent for deferring on other important legal issues

US court actions are modeled globally – signals of domestic judicial independence are adopted elsewhere

Questions? Don’t Fret