SQUIRREL-KILLERS 2015AFFIRMATIVE CASEBOOK

Dr. John F. Schunk, Editor

“Resolved: The United States federal government should substantially curtail its domestic surveillance.”

AFFIRMATIVE CASESA01. USA FREEDOM ACTA02. NSA DIGITAL SURVEILLANCEA03. GPS SURVEILLANCEA04. STINGRAYSA05. DRONE SURVEILLANCEA06. MUSLIM SURVEILLANCE

EXTENSION BRIEFSA07. SURVEILLANCE VIOLATES PRIVACYA08. SECRET SURVEILLANCE IS PERNICIOUSA09. RISK OF ABUSE IS FRIGHTENINGLY HIGHA10. SURVEILLANCE THREATENS DISSENTA11. SURVEILLANCE THREATENS DEMOCRACYA12. RISK OF TERRORISM WILL NOT INCREASEA13. USA FREEDOM ACTA14. NSA DIGITAL SURVEILLANCEA15. GPS SURVEILLANCEA16. STINGRAYSA17. DRONE SURVEILLANCEA18. MUSLIM SURVEILLANCE

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debate@squirrelkillers.comhttp://www.squirrelkillers.com

SK/A01. USA FREEDOM ACT

PLAN:1. The U.S. federal government will amend the US PATRIOT Act through adoption of the USA FREEDOM Act, which, among other things: a. Permits collection of domestic phone metadata only with a search warrant based upon probable cause of criminal activity, b. Provides a privacy advocate at all FISC (Foreign Intelligence Security Court) proceedings, and c. Eliminates gag orders on recipients of NSLs (National Security Letters).2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. U.S. GOVERNMENT IS COLLECTING PHONE METADATA IN BULK

A. NSA COLLECTS MASSIVE AMOUNT OF PHONE METADATA

SK/A01.01) Susan Freiwald [Professor of Law, U. of San Francisco], COLORADO TECHNOLOGY LAW REVIEW, 2014, LexisNexis Academic, p. 313. Pursuant to the 215 Program, the NSA [National Security Agency] collects call detail records from the large telecom providers pertaining to calls into, out of, and within the United States. A Foreign Intelligence Surveillance Court (FISC) order served on Verizon, which surfaced in the first Snowden disclosure, details the following as information collected: "comprehensive routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile Station Equipment Identity (IMEI), etc.), trunk identifier, telephone calling card numbers, and time and duration of calls." The orders refer to the data collected as "metadata," or information about the telephone calls apart from the content of the calls.

B. NATIONAL SECURITY LETTERS COMPEL COMPLIANCE

SK/A01.02) Editorial, COMMONWEAL, January 24, 2014, p. 5, GALE CENGAGE LEARNING, Expanded Academic ASAP. The review group [Presidential Review Group on Intelligence and Communications Technologies] also urges that law enforcement agencies that work closely with the NSA, such as the FBI, get a FISA judge's order when demanding customer information from private companies. Under current law, the agencies can simply compel compliance by issuing a "National Security Letter" on their own (a "gag order" on the companies comes with the letter). Fifteen thousand such letters were issued in 2012.

C. METADATA COLLECTION AFFECTS MILLIONS OF AMERICANS

SK/A01.03) Brendan Sasso, NATIONALJOURNAL.COM, July 2, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The report's modest recommendations contrast with the sweeping call for reform in the board's review of spying under Section 215 of the USA Patriot Act earlier this year. The NSA uses that provision, which has received more attention in the wake of Edward Snowden's leaks, to collect records such as phone numbers and call times on millions of U.S. phone calls.

II. BULK METADATA COLLECTION IS AN ORWELLIAN NIGHTMARE

A. METADATA REVEALS HIGHLY PERSONAL INFORMATION

SK/A01.04) Mariko Hirose [New York Civil Liberties Union], CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2014, LexisNexis Academic, pp. 815-816. Even at a level of a single individual or a single call, information about who a person calls and when can reveal a lot about a person. For example, a person may call numbers dedicated to certain type of issues, like an abortion clinic, religious counseling, or mental health hotlines. Or a person may call our office hoping to speak to someone anonymously to report a problem or to seek advice. A person may call a certain person's phone number every weekend night at 1:00 a.m. All of these things reveal a lot of private information about a person, and when this type of information is aggregated over time and over a great number of people, the pieces of metadata paint an increasingly more detailed picture of people's associations, beliefs, and activities.

B. BULK COLLECTION IS A HUGE INVASION OF PRIVACY

SK/A01.05) Elizabeth Atkins [Thomas Jefferson School of Law], WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS, Summer 2014, LexisNexis Academic, p. 55. Under this expanded program, the government began collecting United States citizens' call records without warrants. This program is unprecedented because it targeted not only phone calls made to suspects living outside of the country but call records between American citizens themselves. The government systematically collected and searched sensitive information on its own citizens without meeting the constitutional constraints of the Fourth Amendment. In most cases, the Fourth Amendment imposes a warrant requirement to perform a search. Prior to performing a search on a constitutionally protected area, a person must first have probable cause and then obtain a warrant from a judge. The government's failure to obtain a warrant before searching a person's metadata records violates that person's reasonable expectation of privacy.

C. SUSPICIONLESS SURVEILLANCE DESTROYS PUBLIC TRUST

SK/A01.06) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 105. Furthermore, generalized domestic government surveillance programs have been anathema to Americans from the earliest days of the nation, and the use of technological methods to achieve what the Framers would have found abhorrent is feeding an accelerating erosion of trust between the U.S. government and its people.

D. SURVIVAL OF DEMOCRACY IS AT RISK

SK/A01.07) Michael J. Glennon [Professor of International Law, Tufts U.], HARVARD NATIONAL SECURITY JOURNAL, 2014, LexisNexis Academic, p. 113. Madison wrote, "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." Recent history bears out his insight. Dahl has pointed out that in the 20th century--the century of democracy's great triumph--some seventy democracies collapsed and quietly gave way to authoritarian regimes.

III. CURRENT PROTECTIONS ARE HOPELESSLY INADEQUATE

A. PATRIOT ACT ALLOWS SUSPICIONLESS SURVEILLANCE

SK/A01.08) Elizabeth Atkins [Thomas Jefferson School of Law], WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS, Summer 2014, LexisNexis Academic, p. 55. The NSA's sweeping surveillance was legalized when Congress passed the USA PATRIOT Act, arguably the most expansive piece of legislation in America's history. Post-9/11, the USA PATRIOT Act allowed the government to use surveillance and technology more aggressively than ever before in an attempt to prevent future attacks.

B. FISA COURT HAS GIVEN RUBBER-STAMP APPROVAL

SK/A01.09) Dustin Volz, NATIONALJOURNAL.COM, December 8, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Amid the inaction, the FISA Court has now renewed the NSA's most controversial spying program four times--in March, June, September, and now December.

C. JUDICIAL SYSTEM HAS FAILED TO PROTECT PRIVACY

SK/A01.10) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 386. Such deference to the Executive Branch on national security matters served as the primary justification for a district court's recent holding that the NSA's metadata collection program did not constitute a violation of the Fourth Amendment. In December, the Southern District of New York in ACLU v. Clapper held that while the methods used by the NSA could be seen as unusually expansive given the minimal return yield of useful information in prosecuting suspected terrorists, the end goal of prosecuting potential terrorists warrant such extensive measures, which one must consider reasonable given the overarching context.

IV. USA FREEDOM ACT BEST PROVIDES PRIVACY PROTECTION

A. SEARCH WARRANTS SHOULD REPLACE BULK COLLECTION

SK/A01.11) Dustin Volz, NATIONALJOURNAL.COM, September 15, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Introduced by Senate Judiciary Chairman Patrick Leahy in July, the Freedom Act is regarded by many critics of the National Security Agency as a legitimate step forward in the fight for government-surveillance reform. The measure would effectively end the government's current mass collection and storage of phone metadata--the numbers and time stamps of calls but not their actual contents--and instead require phone companies to maintain those records. Under the bill, intelligence agencies would be able to obtain those records only after earning court approval for their queries. It would also usher in a number of other safeguards, such as the installation of a privacy advocate in the Foreign Intelligence Surveillance Court.

B. POWER TO ISSUE NSLs SHOULD BE CURTAILED

SK/A01.12) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 391. The law [USA FREEDOM Act] would also prohibit federal authorities from using methods such as pen registers, trap and trace devices and National Security Letters to justify the indiscriminate collection of bulk metadata. The bill would modify Section 215 to require that any information sought be relevant and material to an ongoing criminal investigation. This would effectively end the practice of collecting data and holding onto it under the possibility that such evidence could be used one day in a federal investigation.

C. PUBLIC TRUST WILL BE RESTORED

SK/A01.13) Dustin Volz, NATIONALJOURNAL.COM, July 29, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "This bill [USA FREEDOM Act] will help restore trust in the Internet by ending the government's bulk Internet metadata collection and increasing transparency around U.S. surveillance practices," said Reform Government Surveillance--a coalition of tech companies that includes Google, Facebook, and Microsoft--in a statement.

D. RISK OF TERRORISM WILL NOT INCREASE

SK/A01.14) Bryce Clayton Newell [Information School, U. of Washington], I/S: A JOURNAL OIF LAW AND POLICY FOR THE INFORMATION AGE, Summer 2014, LexisNexis Academic, p. 511. In regards to the immediacy of the government's need for the surveillance, the court [in Klayman vs. Obama] also found that: “[T]he Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three ‘recent episodes’ cited by the Government that supposedly ‘illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack’ involved any apparent urgency.”

SK/A02. NSA DIGITAL SURVEILLANCE

PLAN:1. The U.S. federal government will curtail its domestic surveillance of the internet by: a. requiring a search warrant for all domestic digital surveillance, b. ceasing development of domestic decryption programs, and c. establishing a US Postal Service secure email and browsing service.2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. NSA ENGAGES IN MASSIVE DIGITAL SURVEILLANCE

A. PRISM PROGRAM PROVIDES FRONT-DOOR ACCESS TO DATA

SK/A02.01) Brendan Sasso, NATIONALJOURNAL.COM, July 2, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The NSA has used the power [of Section 702 of the Foreign Intelligence Surveillance Act] for its "PRISM" program, in which it issues demands to companies such as Facebook, Google, and Microsoft for their users' communications.

B. MUSCULAR PROGRAM PROVIDES BACK-DOOR ACCESS

SK/A02.02) Joris V.J. van Hoboken & Ira S. Rubinstein [Fellows, Information Law Institute, New York U. School of Law], MAINE LAW REVIEW, 2014, LexisNexis Academic, p. 506. Finally, in October, the Washington Post reported that the NSA "has secretly broken into the main communications links that connect Yahoo and Google data centers around the world." Whereas PRISM apparently provided front-door access to Yahoo and Google accounts through a court-approved process under Section 702 of the FAA, this alternative program, called MUSCULAR, intercepted Yahoo and Google data flows through the backdoor as they transited the companies' private fiber-optic networks.

C. XKEYSCORE PROGRAM GIVES ACCESS TO ENTIRE INTERNET

SK/A02.03) A. Michael Froomkin [Professor of Law, U. of Miami], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, p. 992. The NSA therefore had systematic access to the private files of most Internet users, including their private bank and medical records. Indeed, in leaked internal documents the NSA boasted of its Digital Network Intelligence, including a system called XKeyscore, the NSA's "widest reaching" system. XKeyscore, one document claimed, covers "nearly everything a typical user does on the [I]nternet, including the content of emails, websites visited and searches," metadata, and even social media such as Facebook chats or private messages. What is more, XKeyscore, the documents state, can give the NSA (or its contractors) access to both stored and real time data.

D. SIGINT PROGRAM IS DEVELOPING DECRYPTION OF ALL DATA

SK/A02.04) Devon Ombres [U.S. Court of Appeals for the 11th Circuit], SETON HALL LEGISLATIVE JOURNAL, 2015, LexisNexis Academic, pp. 32-33. Finally, recently raised concerns include the NSA working with the National Institute of Standards and Technology ("NIST") in placing invidious backdoors into commercial Internet encryption algorithms to allow unfettered governmental access to virtually all information moving through cyberspace. A top secret budget document referring to the SIGINT (signals intelligence) Enabling Project gives this credence, as it reflects a $ 250 million annual layout toward goals of inserting vulnerabilities in commercial encryption systems, influencing policies, standards and specifications for commercial public key technologies, and collecting data or metadata from cooperative networks or increased control over networks.

II. NSA DIGITAL SURVEILLANCE IS AN ORWELLIAN NIGHTMARE

A. DIGITAL SURVEILLANCE SECRETLY INVADES PRIVACY

SK/A02.05) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, p. 847. When searches were confined to the physical world, the existence of a privacy violation and the victim's knowledge of the violation were, while not entirely congruent, at least largely overlapping. The reasons are both practical and legal. For one, it is difficult to rifle through a person's diary, break into her home, or search her person without being detected. Thus, it is unsurprising that throughout most of American history, criminal defendants rarely had to wonder whether their home, private papers, or other personal property had been searched by government agents. The very concept of notice as a matter of executive grace was difficult to fathom. As the last year of remarkable disclosures has vividly demonstrated, that center no longer holds. With the rise of electronic surveillance conducted remotely and surreptitiously - for example, at a telephone company or Internet switch - the government has achieved an unprecedented measure of control over when, and to whom, notice is given.

B. RISK OF ABUSE IS FRIGHTENINGLY HIGH

SK/A02.06) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1961. Thus, while covert domestic surveillance can be justified in discrete (and temporary) instances when there is advance judicial process, blanket surveillance of all Internet activity menaces our intellectual privacy and gives the government too much power to blackmail or discriminate against the subjects of surveillance.

C. THE RIGHT TO PEACEFUL DISSENT IS THREATENED

SK/A02.07) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, pp. 478-479. Why go to an animal rights conference, join a Google group of like-minded people opposed to the WTO, protest the next war in the streets, knowing that tomorrow the government may regard these associations as suspect and track them back to you? The most succinct statement of the homogenizing potential of such an all-seeing government was made by Umair Haque, who asked: "Can there be a more chilling message to conform than 'America is not interested in spying on ordinary people'?"

D. THE VERY SURVIVAL OF DEMOCRACY IS AT RISK

SK/A02.08) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 148. While it is expected that government should provide for our common defense, a democratic society such as ours cannot long tolerate secret government surveillance programs that collect, store, and analyze our private communications and papers, with no individualized suspicion of wrongdoing and no basis in law.

III. CURRENT PROTECTIONS ARE HOPELESSLY INADEQUATE

A. CONGRESS HAS FAILED TO ACT

SK/A02.09) Dustin Volz, NATIONALJOURNAL.COM, December 8, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. At the time [last January], Obama outlined a series of immediate steps he would take to reform some surveillance practices and increase transparency, but he said he would wait for Congress to send him a bill tailored to his specifications before moving forward on broader reform. Congress, however, has failed to enact reform, despite more than a year of negotiations that have spanned across both chambers.

B. JUDICIAL OVERSIGHT IS LACKING

SK/A02.10) American Civil Liberties Union, STATES NEWS SERVICE, March 10, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The NSA intercepts and copies private communications in bulk while they are in transit, and then searches their contents using tens of thousands of keywords associated with NSA targets. These targets, chosen by intelligence analysts, are never approved by any court, and the limitations that do exist are weak and riddled with exceptions.

IV. CURTAILING THE NSA BEST RESTORES DEMOCRACY

A. SEARCH WARRANTS WILL PROTECT PRIVACY

SK/A02.11) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1961. Rather than jettisoning longstanding civil liberties in our brave new digital world, we should instead follow the example of federal wiretapping law, which for decades has rested on the premise that private communications should be exactly that, shielded from the government (and other private actors) except in cases of proven law-enforcement need for limited access to those communications. Such a regime is a far cry from the security-driven argument for total surveillance, even in an age of terror.

B. ENDING DECRYPTION PROGRAMS PROTECTS FREE SPEECH

SK/A02.12) Devon Ombres [U.S. Court of Appeals for the 11th Circuit], SETON HALL LEGISLATIVE JOURNAL, 2015, LexisNexis Academic, p. 53. None of the proposed legislation addresses the issue of NSA/NIST collaboration in creating backdoors to encryption systems. Additional congressional oversight could address the issue, but to address it at the outset and staunch the financial harm befalling the United States tech industry, the most readily available way to address the issue, would be the budgetary mechanism of defunding the SIGINT Enabling Project. This would limit the NSA's ability to strong-arm NIST and major telecoms and reinstill public trust in the tech industry.

C. US POSTAL SYSTEM CAN PROVIDE SECURE EMAIL

SK/A02.13) Arthur S. Hayes [Associate Professor of Communicati1ons and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 471. Yet, were the USPS to offer email and browser-search engine services, users would have an alternative to Yahoo, Google and Microsoft that would fulfill the public need for an online service provider that is required by law, devoted by policy, and proven in practice to protect user privacy and keeping advertisers at bay. Privacy protection is the cornerstone of the USPS; its predecessor, the Constitution Post was founded on the principle of correspondence privacy.

D. CURTAILING NSA POWER WILL RESTORE PUBLIC TRUST

SK/A02.14) Dustin Volz, NATIONALJOURNAL.COM, December 17, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The tech lobby has been a vocal and important voice in the ongoing effort to curtail NSA authority. Several Silicon Valley giants--including Google, Facebook, and Yahoo--formed the Reform Government Surveillance coalition in the wake of the Snowden disclosures to advocate for limits on the NSA's broad spying authority and press for more transparency with customers about government data requests.

SK/A03. GPS SURVEILLANCE

PLAN:1. The U.S. federal government will adopt the Geolocation Privacy and Surveillance Act (hereafter referred to as the GPS Act) which, among other things, requires a search warrant based upon probable cause of criminal activity for domestic GPS surveillance. 2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. GPS SURVEILLANCE IS EXTENSIVE AND GROWING

A. GPS TECHNOLOGY HAS BECOME UBIQUITOUS IN AMERICA

SK/A03.01) Alexandra I. Rengel [author of PRIVACY IN THE 21ST CENTURY], INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, LexisNexis Academic, p. 207. Today, GPS technology is found in any number of devices including cellular telephones, "smart" phones, computers, laptops, computer tablets and vehicles of every type. The proliferation of this technology is in part due to the decreasing cost of the devices as well as the rapid advances in the technologies associated with the devices that can either track position or emit signals that can then be tracked.

B. GOVERNMENT EXTENSIVELY USES GPS SURVEILLANCE

SK/A03.02) Marc McAllister [graduate, Notre Dame Law School], UNIVERSITY OF CINCINNATI LAW REVIEW, Fall 2013, LexisNexis Academic, p. 224. Law enforcement is often able to duplicate the type of tracking that occurred in Jones by monitoring the location of a suspect's cell phone. Given that no trespass is required to monitor the location of a suspect's cell phone, this method of investigation is currently subject to fewer constitutional constraints. As a result, police agencies are utilizing this form of tracking more frequently. Indeed, the number of requests to cell carriers for location information has grown "exponentially" over the past several years, with major wireless carriers now receiving thousands of requests each month.

C. GPS SURVEILLANCE WILL ACCELERATE IN THE FUTURE

SK/A03.03) Matthew Devoy Jones [Cleveland-Marshall College of Law], CLEVELAND STATE LAW REVIEW, 2014, LexisNexis Academic, p. 214. Since smartphones were first introduced in 2001, their number of users has continually increased, with over 100 million smartphone users in the United States in 2012. This number will likely grow in the coming years, making the issue of warrantless collection of smartphone GPS data a growing problem.

II. GPS SURVEILLANCE IS AN ORWELLIAN NIGHTMARE

A. LONG-TERM GPS SURVEILLANCE IS A SEARCH

SK/A03.04) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 228. The Mosaic Theory has gained prominence from the courts. Before reaching the Supreme Court, the D.C. Circuit applied the Mosaic Theory to Jones. In concluding that long-term GPS surveillance of movements exposed to the public view was a search, the D.C. Circuit reasoned that prolonged surveillance revealed information substantively different than short-term surveillance. In particular, a person who knows the totality of another person's movements is able to determine whether someone is a "weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups - and not just one such fact about a person, but all such facts."

B. GPS SURVEILLANCE IS A MASSIVE INVASION OF PRIVACY

SK/A03.05) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, p. 25. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."

C. GPS SURVEILLANCE ENDANGERS DEMOCRACY

SK/A03.06) Gus Hosein [Executive Director, Privacy International] & Caroline Wilson Palow, OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, pp. 1102-1103. As Justice Sotomayor so eloquently stated with regard to GPS monitoring: “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring-by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track-may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’”

III. CURRENT REGULATIONS PROVIDE NO EFFECTIVE REMEDY

A. FEDERAL LAW IS HOPELESSLY OUTDATED

SK/A03.07) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 205. Congress has remained silent on law enforcement's ability to obtain location data. In fact, the one major piece of legislation impacting digital communications, the Electronic Communications Privacy Act (ECPA), was enacted in 1986 and is hopelessly outdated. Even though the ECPA is the primary statute governing law enforcement access to wire, oral, and electronic communications, it does not provide guidance on how law enforcement should use location data and does not even contain the word "location."

B. U.S. SUPREME COURT HAS FAILED TO FILL THE VOID

SK/A03.08) Marc McAllister [graduate, Notre Dame Law School], UNIVERSITY OF CINCINNATI LAW REVIEW, Fall 2013, LexisNexis Academic, p. 256. In Jones, the Supreme Court ruled that the Government's installation of a GPS tracking device on a suspect's vehicle and subsequent use of that device to monitor the vehicle's movements constitutes a Fourth Amendment "search." The precise holding of Jones was limited to the particular form of GPS monitoring in which police attach a GPS tracking device to an individual's vehicle. Jones did not determine the constitutionality of similar forms of tracking accomplished in the absence of a trespass, such as cell phone tracking; nor did Jones resolve whether a warrant, probable cause, reasonable suspicion, or some other standard would make any particular instance of GPS tracking "reasonable" under the Fourth Amendment.

IV. GPS ACT WILL PROTECT AMERICANS AND PRESERVE DEMOCRACY

A. SEARCH WARRANT SHOULD BE REQUIRED

SK/A03.09) Alexandra I. Rengel [author of PRIVACY IN THE 21ST CENTURY], INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, LexisNexis Academic, p. 209. A bill introduced in the June 2011 legislative session of the US Senate known as the "Geolocation Privacy and Surveillance Act" (also known as the GPS Act) would require probable cause and an accompanying warrant before government agencies could obtain private geolocational information on an individual.

B. GPS ACT WILL PROTECT AMERICANS’ RIGHT TO PRIVACY

SK/A03.10) STATES NEWS SERVICE, January 27, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Rep. Peter Welch, joined by Sen. Ron Wyden (D-OR), Sen. Mark Kirk (R-IL), Rep. Jason Chaffetz (R-UT) and Jon Conyers Jr. (D-MI), reintroduced the Geolocation Privacy and Surveillance Act (GPS Act) last week. The legislation creates clear rules about when law enforcement agencies can access and track Americans' electronic location data. "Cell phones are in the pockets and purses of most Americans," said Welch. "While tracking technology has transformed our lives in many positive ways, it also poses a risk to privacy through potential misuse of tracking data. The time has come to modernize our statutes to reflect the technology of our age. This bipartisan legislation protects Americans' right to privacy while ensuring law enforcement officials are able do their important jobs."

C. STATES WILL FOLLOW THE FEDERAL GOVERNMENT LEAD

SK/A03.11) P. Kramer Rice [Notre Dame Law School], SETON HALL LEGISLATIVE JOURNAL, 2013, LexisNexis Academic, p. 33. While the GPS Act, rather than a Digital Bill of Rights, offers an opportunity to clarify much of the current confusion regarding smartphone technology, it also stands as a prominent example of how Congress can actively formulate immediate and contemporaneous responses to the never-ending evolution of smartphone technology and provide for heightened, Fourth Amendment-like protections where necessary, even where the Fourth Amendment would otherwise likely not be implicated. Indeed, like Congress, states may even take note and develop heightened protections that go beyond accord with those set by Congress or the Constitution.

SK/A04. STINGRAYS

PLAN:1. The U.S. federal government will require a search warrant based upon probable cause of criminal activity for all domestic use of Stingrays (also known as cell site simulators, ISMI catchers, Triggerfish, and other brand names).2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. STINGRAYS ARE SECRETLY SURVEILLING MILLIONS OF AMERICANS

A. STINGRAYS GAIN SECRET ACCESS TO CELL PHONE DATA

SK/A04.01) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, pp. 145-146. By impersonating a cellular network base station, a StingRay--a surveillance device that can be carried by hand, installed in a vehicle, or even mounted on a drone -- tricks all nearby phones and other mobile devices into identifying themselves (by revealing their unique serial numbers) just as they would register with genuine base stations in the immediate vicinity. As each phone in the area identifies itself, the StingRay can determine the location from which the signal came. The StingRay and other similar devices also have the capacity, if so configured, to intercept data transmitted and received by the phone, including the content of calls, text messages, numbers dialed, and web pages visited. This process is accomplished without any visual indication to the target that she is under surveillance or any mediating involvement on the part of the carrier whose network the StingRay is impersonating.

B. GOVERNMENT AGENCIES USE STINGRAYS EXTENSIVELY

SK/A04.02) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, LexisNexis Academic, p. 893. A StingRay - Harris Corporation's signature "cell site simulator," or "IMSI (international mobile subscriber identity) catcher" - is usually mounted in police surveillance vehicles to become a roving cell tower that collects information from any cell phone within their range, making available a wealth of subscriber, call-detail, and location information. These devices allow law enforcement to collect the unique identities associated with phones in a given location and to learn the precise location of previously identified phones. They work by masquerading as a wireless company's network equipment, triggering an automatic response from any devices on the same network in the area. Some can be configured to record the content of conversations over the phone or by text message. The use of these devices is already widespread, and it is rapidly becoming even more so.

C. STINGRAY USE HAS BEEN KEPT SECRET FOR YEARS

SK/A04.03) Stephanie K. Pell [Asst. Professor, West Point’s Army Cyber Institute] & Christopher Soghoian [ACLU’s Speech, Privacy, and Technology Project], HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2014, LexisNexis Academic, pp. 34-35. In order to ensure the continued effectiveness of cellular surveillance equipment, the FBI, for the past ten years, has taken significant steps to prevent the disclosure of information about the specific electronic equipment and techniques used by law enforcement. These steps include what might be characterized as a purposeful lack of disclosure to magistrate judges when seeking approval to use a cell site simulator in a criminal investigation, strict non-disclosure agreements with state and local law enforcement, and essentially across-the-board refusals to turn over documents relating to cell site simulators in response to Freedom of Information Act ("FOIA") and public records requests. This Part describes the growth (one might even say the metastasis) of a discourse of secrecy regarding the StingRay's use across various channels and levels of government.

II. SECRET USE OF STINGRAYS IS INIMICAL TO AMERICA

A. WARRANTLESS USE VIOLATES THE 4TH AMENDMENT

SK/A04.04) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, LexisNexis Academic, p. 894. The use of stingrays raises serious Fourth Amendment problems of various kinds. Their use is arguably per se unconstitutional because, since they inevitably ingest the information of many entirely innocent third parties, they are a "general warrant" of the kind the Fourth Amendment was meant to prohibit.

B. STINGRAYS INVADE PRIVACY OF THOUSANDS OF AMERICANS

SK/A04.05) CNN WIRE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Few people know Stingrays even exist -- or that federal agents and police across the country are increasingly using them to arrest people. It's a small device that mimics a cell phone tower, duping nearby cell phones into connecting to it rather than a real phone company tower. There's a growing privacy concern because while police use the Stingrays to track down an individual, they can potentially grab text messages and phone call data on thousands of innocent people.

C. STINGRAY USE SQUELCHES PUBLIC DISSENT

SK/A04.06) Fruzsina Eordogh, THE CHRISTIAN SCIENCE MONITOR, December 22, 2014, pNA, LexisNexis Academic. As evidence mounts around the country of law enforcement's increasing usage of stingrays, activists and civil liberties groups are growing more concerned that they are being monitored and tracked. These concerns have intensified over the past few weeks as anti-police violence protests have erupted in major cities from California to New York.

D. SECRET STINGRAY USE THREATENS DEMOCRACY

SK/A04.07) Bryan Ford [Associate Professor of Computer Science, Yale U.], TECHNOLOGY REVIEW, November-December 2014, p. 11, GALE CENGAGE LEARNING, Expanded Academic ASAP. Police spy on entire neighborhoods with fake cellular base stations known as "StingRays" and have deliberately obfuscated warrants to conceal their use of the technology. All this secrecy harms our democracy.

III. CURRENT REGULATION IS HOPELESSLY INADEQUATE

A. FEDERAL LAW IS SILENT ON THE USE OF STINGRAYS

SK/A04.08) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, pp. 150-151. It has already been described in the literature and documented to a recent Congress that nothing in the Electronic Communications Privacy Act (ECPA), which includes both the Wiretap Act and Pen/Trap statute, articulates a legal standard Congress intended the government to meet before acquiring real-time cellular location data (i.e. tracking a mobile device in real-time) from a carrier.

B. SECRECY THWARTS JUDICIAL OVERSIGHT

SK/A04.09) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, LexisNexis Academic, p. 894. A DOJ document unearthed last year by the ACLU of Northern California revealed that federal investigators have regularly used stingray devices while hiding that fact from federal magistrate judges. And at the state level, from California to Florida, stingrays have been used without court permission in all sorts of investigations.

IV. REGULATION WILL RESTORE THE CONSTITUTIONAL PROCESS

A. REQUIRING SEARCH WARRANTS WILL PROTECT PRIVACY

SK/A04.10) Brian L. Owsley [Asst. Professor of Law, Indiana Tech Law School], HASTINGS LAW JOURNAL, December 2014, LexisNexis Academic, pp.186-187. Second, the use of cell site simulators constitutes a Fourth Amendment search, which requires probable cause. Consequently, the proper approach is for the government to establish probable cause in order to obtain a search warrant consistent with the Fourth Amendment.

B. ELIMINATING SECRECY WILL RESCUE DEMOCRACY

SK/A04.11) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1959. Democratic societies should prohibit the creation of any domestic-surveillance programs whose existence is secret. In a democratic society, the people, and not the state apparatus, are sovereign. In American law, this tradition goes back to James Madison, and it lies at the very heart of both First Amendment theory and American constitutionalism itself.

SK/A05. DRONE SURVEILLANCE

PLAN:1. The U.S. federal government will adopt the Preserving Freedom from Unwarranted Surveillance Act which, among other things, requires a search warrant based upon probable cause of criminal activity for domestic use of drone surveillance.2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. AMERICA IS FACING AN EXPLOSION OF DRONE SURVEILLANCE

A. FEDERAL GOVERNMENT MAKES EXTENSIVE USE OF DRONES

SK/A05.01) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, p. 3. Federal agencies are also increasingly using drones for policing. As of May 2013, four Department of Justice ("DOJ") divisions had acquired drones: the FBI; the Bureau of Alcohol, Tobacco, and Firearms ("ATF"); the Drug Enforcement Agency ("DEA"); and the U.S. Marshals Service.

B. DRONES ARE BEING SUPPLIED TO LOCAL LAW ENFORCEMENT

SK/A05.02) Craig Whitlock, THE WASHINGTON POST, September 27, 2014, p. A1, LexisNexis Academic. Records obtained by the Electronic Frontier Foundation show that the Border Patrol has also outsourced its drones on hundreds of occasions to other law enforcement agencies throughout the United States. Details of most of those operations remain secret.

C. THOUSANDS OF DRONES WILL SOON FILL THE SKIES

SK/A05.03) STATES NEWS SERVICE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. By 2030, an estimated 30,000 drones could be flying in American skies. Currently, the laws regarding the use of drones for surveillance are unclear and further legislation is needed to ensure drones are not used in ways that infringe on the 4th Amendment rights of private individuals.

D. MILLIONS OF AMERICANS WILL BE AFFECTED

SK/A05.04) Phil Mattingly, THE WASHINGTON POST, June 20, 2013, p. A16, LexisNexis Academic. Leahy [U.S. Senator] said during a March hearing on drones that he was “convinced that the domestic use of drones to conduct surveillance and collect other information will have a broad and significant impact on the everyday lives of millions of Americans going forward.”

II. DRONE SURVEILLANCE IS A UNIQUE THREAT TO PRIVACY

A. DRONES CAN REVEAL HUGE AMOUNTS OF INTIMATE DATA

SK/A05.05) Ajoke Oyegunle [Catholic U. of America Law School], COMMLAW CONSPECTUS, 2013, LexisNexis Academic, p. 382 Drones make it possible to procure large amounts of information ordinarily unobtainable during a physical search. Perhaps more significantly, drones make it possible to obtain personal information that intrudes upon privacy in inventive and increasingly invasive ways. Activities performed within the confines of the home could be observed with great detail.

B. UNREGULATED DRONES VIOLATE THE 4TH AMENDMENT

SK/A05.06) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, p. 171. Drone technology presents a unique threat to privacy by eliminating practical safeguards against Fourth Amendment searches. First, drones can be substantially smaller than traditional aircrafts, making them practically invisible at altitudes where traditional aircraft could be spotted from the ground. Second, unlike traditional aircraft such as helicopters, many drones can operate almost silently, allowing them to conduct surveillance virtually unnoticed. Third, as one legal scholar notes: "[w]ith the ability to hover or circle in the sky for hours, [drones] present a potential intrusion far more pervasive than the mere flyover of a plane or helicopter."

C. THE POTENTIAL FOR GOVERNMENT ABUSE IS ENORMOUS

SK/A05.07) Alexandra I. Rengel [author of PRIVACY IN THE 21ST CENTURY], INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, LexisNexis Academic, p. 203. Privacy concerns, regarding unmanned aerial vehicles, center on the fact that these vehicles provide almost limitless access to view and record events from the sky, without the consent or knowledge of those being surveyed. It is easy to imagine how this technology could be abused.

D. AMERICA IS ON THE BRINK OF AN ORWELLIAN NIGHTMARE

SK/A05.08) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, pp. 5-6. The very essence of drone surveillance enables users to track the movements of large numbers of people simultaneously. Drones can provide police with the details of a person's daily routine, easily allowing them to create a profile of the person's associations, religious affiliation, health conditions, professional and recreational activities, and family and economic status. When all this information concerning hundreds, if not thousands, of people can be gathered from a distance of thousands of feet in the sky, it is hard to resist the claim that society has succumbed to an Orwellian vision far beyond George Orwell's imagination.

III. CURRENT REGULATIONS ARE HOPELESSLY INADEQUATE

A. CONGRESS HAS FAILED TO TAKE ACTION

SK/A05.09) Jonathan Olivito [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, p. 701. Current privacy protections are inadequate to safeguard against intrusive government drone surveillance, especially drone surveillance conducted in public areas.

B. COURTS HAVE FAILED TO FILL THE VOID

SK/A05.10) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, p. 4. Meanwhile, Fourth Amendment privacy jurisprudence has yet to grapple with drones and their unprecedented surveillance capabilities. Courts are slow to respond when it comes to evaluating the constitutional implications of new technology. Supreme Court case law on aerial surveillance has only considered manned aircraft flying at relatively low altitudes, which is not equivalent to the characteristics and capabilities of drones.

C. STATES AND LOCALITIES CANNOT PROVIDE PROTECTION

SK/A05.11) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, pp. 177-178. Some have argued for state and local, rather than federal, regulation of drones, opining these governmental bodies are better equipped to handle and react to the nuances of an emerging technology, but recent state drone legislation failures suggest otherwise. Recently, many state drone regulation bills have been struck down as legislators vie to secure their states as FAA drone-testing sites.

IV. THE PRESERVING FREEDOM ACT BEST PROTECTS PRIVACY

A. THE ACT REQUIRES USE OF SEARCH WARRANTS

SK/A05.12) Y. Douglas Yang [Boston U. School of Law], THE BOSTON UNIVERSITY PUBLIC INTEREST LAW JOURNAL, Summer 2014, LexisNexis Academic, p. 366. Senator Rand Paul's proposed bill, the Preserving Freedom from Unwarranted Surveillance Act of 2013, would require a warrant for most situations in which drones are used "to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation." Exceptions to the blanket warrant requirement would include border patrol missions, prevention of terrorist attacks, and circumstances in which police have reasonable suspicion that an imminent danger to life is at hand and are thus required to take immediate action.

B. SEARCH WARRANTS BEST PROTECT AMERICANS’ PRIVACY

SK/A05.13) Ajoke Oyegunle [Catholic U. of America Law School], COMMLAW CONSPECTUS, 2013, LexisNexis Academic, p. 391. Additionally, Congress should regulate the use of drones by law enforcement agencies by requiring warrants before using drones to obtain information from individuals. Because of its sophistication and potential for harm, a drone aerial search should be prohibited, unless accompanied by a warrant.

SK/A06. MUSLIM SURVEILLANCE

PLAN:1. The U.S. federal government will ban suspicionless domestic surveillance based upon religion, ethnicity, race, or national origin through adoption of the End Racial Profiling Act.2. Funding will come from a financial transaction tax.3. Enforcement will be by all necessary means.

I. MUSLIMS ARE TARGETED FOR SURVEILLANCE IN AMERICA

A. FEDERAL GOVERNMENT HAS WIDELY TARGETED MUSLIMS

SK/A06.01) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 94. Since 9/11 the FBI has used a range of strategies to monitor or surveil the Muslim community. These strategies include placing confidential informants in mosques, registering lawful immigrants from predominately Muslim countries, mapping Muslim communities, and recruiting private individuals to report suspicious behavior by Muslim or Muslim-appearing persons.

B. MUSLIM INSTITUTIONS HAVE BEEN INFILTRATED

SK/A06.02) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 91. Beyond Orange County, many confidential informants have infiltrated and continue to infiltrate mosques throughout the country. Moreover, the FBI's use of confidential informants is merely an extension of the FBI's Post-9/11 view of the Muslim community: since 9/11 the federal government has targeted Islam and Muslims' specific religious conduct without any factual knowledge that individuals, groups, or mosques were involved in terrorist or criminal activity.

C. TRAINING MATERIALS INSTITUTIONALIZE ANTI-MUSLIM BIAS

SK/A06.03) Sarah Mimms, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Ellison [U.S. Congressman] also responded to an ethnic slur that security officials used as a placeholder for a potential Muslim target, which was included in The Intercept's report: "Mohammed Raghead." Ellison called the "use of hateful anti-Muslim training materials" evidence of religious profiling by the U.S. government and warned of severe consequences. "Undue surveillance has a chilling effect in all communities. It tells young boys and girls who want to serve their country in the military or in elected office to stay out of the public space. This is wrong. We cannot allow fear and hatred to drown the inclusive promise of our nation," he wrote.

II. SURVEILLANCE BASED ON RELIGION IS A NATIONAL DISGRACE

A. RELIGIOUS DISCRIMINATION VIOLATES THE 14TH AMENDMENT

SK/A06.04) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, p. 436. Surveillance practices, such as posing as members of the community and placing individuals on watch lists without suspicion of terrorist activity, result in the impermissible monitoring of individuals on the basis of their race or ethnicity. These practices, although done in the name of national security, an established compelling government interest, violate the Equal Protection Clause of the Fourteenth Amendment because they are not narrowly tailored to the stated interest. The procedures are not narrowly tailored to the interest of national security because of the over-inclusiveness of the measures.

B. SURVEILLANCE CHILLS RELIGIOUS FREEDOM OF EXPRESSION

SK/A06.05) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, pp. 148-149. Fisher [law professor] further argues that overt attempts to gather information wherein government agents are openly present "substantially" interferes with expression. This chilling effect is even greater, she argues, when group members must acquiesce to the presence of government agents "if they wish to continue engaging in expressive activity." This assertion is especially true when intelligence gathering stands in the way of Muslims acting consistently with the values associated with religion; the clearest example are situations wherein government surveillance interferes with a Muslim individual's desire to make charitable donations.

C. SURVEILLANCE FUELS ANTI-MUSLIM PREJUDICE & VIOLENCE

SK/A06.06) Arjun Sethi, CNN WIRE, February 26, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Permitting dragnet religious surveillance of Muslim communities will also exacerbate anti-Muslim sentiment. The NYPD spying program comes on the heels of a nationwide maelstrom against Islam. More than a dozen state legislatures have considered legislation criminalizing sharia law. Mosques have been burned and vandalized, and Muslims have been the target of countless hate crimes.

D. ENTRAPMENT LEADS TO FALSE CONVICTIONS

SK/A06.07) Madiha Shahabuddin [Chapman University School of Law], CHAPMAN LAW REVIEW, Spring 2015, LexisNexis Academic, p. 596. The lengths to which the FBI has gone and is apparently willing to go to keep the informant system in place - despite its legally dubious nature - shows how adamant the agency is in employing morally suspect informants to catch would-be terrorists in terror plots orchestrated by the FBI. Also troubling is the fabrication of reports by informants that are later used in prosecuting the suspected terrorists who were the targets of such operations all along. But perhaps most disconcerting is the FBI's heavy hand in, as Aaronson argues, "manufacturing" these terror plots in order to implicate an easy target into taking the blame.

E. SURVEILLANCE DESTROYS COUNTERTERROR COOPERATION

SK/A06.08) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 91. Third, Monteilh's role as an informant created tension between the government and the Muslim community. His surveillance undermined the FBI's legitimacy within the Muslim community. Muslim individuals are less likely to cooperate with the FBI when they do not view the FBI's conduct as legitimate. Indeed, after it was revealed that Monteilh infiltrated Southern California mosques, the Shura Council of Southern California cut off its ties with the FBI.

III. CURRENT PROTECTIONS ARE WOEFULLY INADEQUATE

A. NCTC CAN ENGAGE IN SUSPICIONLESS SURVEILLANCE

SK/A06.09) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, pp. 442-443. One of the most debated changes is the National Counterterrorism Center's (NCTC) ability to query different databases for individuals' personal information and retain the information for up to five years, even when the query results in no indication of criminal or terrorist activity. This change in procedure was primarily due to counterterrorism officials' belief that some information could possibly prove helpful later. The Abdulmutallab attack marked the beginning of more intense counterterrorism measures, in which personal information is made subject to government surveillance without prior suspicion of criminal activity.

B. FBI CAN ENGAGE IN RELIGIOUS & ETHNIC PROFILING

SK/A06.10) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, pp. 448-449. The [FBI] manual prohibits "racial profiling" in the national security assessments; however, it allows an assessor to monitor "religious practitioners or religious facilities," and to identify locations of concentrated ethnic communities. The FBI, in essence, has the authority to infiltrate lawful and peaceful places of worship, communities and businesses, and take race, religion and ethnicity into account when developing its threat analysis.

IV. END RACIAL PROFILING ACT BEST PROTECTS MUSLIM COMMUNITY

A. THE ACT WOULD PROHIBIT RELIGIOUS PROFILING

SK/A06.11) STATES NEWS SERVICE, September 17, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. At the center of the briefing was a call for Attorney General Eric Holder to strengthen guidance to local, state and federal law enforcement on banning profiling, as well as the need for a more permanent fix through passage of Senator Cardin's bill, S. 1038, the End Racial Profiling Act (ERPA). The legislation, which is pending before the Senate Judiciary Committee, would prohibit the use of profiling based on race, ethnicity, religion and national origin by law enforcement agencies, as well as provide resources for training and gather data on such activity.

B. THE ACT WOULD IMPROVE LAW ENFORCEMENT TRAINING

SK/A06.12) STATES NEWS SERVICE, September 17, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Senator Cardin's legislation (ERPA) builds upon the Justice Department's "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies" issued in 2003. ERPA clearly defines racial profiling to include race, ethnicity, national origin, and religion as protected classes. It requires additional training of law enforcement officers to better educate them on the differences between specific suspect descriptions and sweeping generalizations or profiling. It also creates better procedures for receiving, investigating, and resolving complaints. It also creates an exception for the use of these factors where there is trustworthy information, relevant to the locality and time frame, which links persons of a particular race, ethnicity, or national origin to an identified incident or scheme.

C. JUSTICE DEMANDS AN END TO SUSPICIONLESS SURVEILLANCE

SK/A06.13) Madiha Shahabuddin [Chapman University School of Law], CHAPMAN LAW REVIEW, Spring 2015, LexisNexis Academic, p. 604. The government - both federal and local - should stop the practice of widespread, suspicionless surveillance of Muslim Americans in the form of mosque infiltration and informant sting operations. Community and grassroots activists, legal civil rights groups, and Muslim American leaders are all calling for the end of such a practice.

D. NO DAMAGE WILL BE DONE TO COUNTERTERROR EFFORTS

SK/A06.14) Aleksandra Lifshits, UWIRE TEXT, March 11, 2015, p. 1, GALE CENGAGE LEARNING, Expanded Academic ASAP. Since the attack, the Federal Bureau of Investigation has been spying on individuals based on their religious faith without any probable cause, she [Farhana Khera, President of Muslim Advocates] said. By 2005, the FBI had conducted about 500,000 "voluntary interviews" of Muslim individuals, "but not one of these interviews resulted in information that could prevent a terrorist attack," she added.

SK/A07. SURVEILLANCE VIOLATES PRIVACY

1. 4TH AMENDMENT PROTECTS RIGHT TO PRIVACY

SK/A07.01) Matthew Devoy Jones [Cleveland-Marshall College of Law], CLEVELAND STATE LAW REVIEW, 2014, LexisNexis Academic, p. 215. The Fourth Amendment protects the right of United States citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fourth Amendment also states the grounds on which the government can perform searches and seizures: The government must obtain a warrant issued on "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

SK/A07.02) Matthew R. Koerner [Duke U. School of Law], DUKE LAW JOURNAL, March 2015, LexisNexis Academic, pp. 1136-1137. Under the Fourth Amendment, "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Fourth Amendment is the "chief source of privacy protection" in the American justice system. It is intended to empower the government to investigate and enforce laws to a "reasonably satisfactory level," while still restricting these powers. In doing so, it acts as a "bulwark against police practices that prevail in totalitarian regimes."

SK/A07.03) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 377. In Katz, the Court held that the Fourth Amendment protects people, rather than places, from unreasonable searches and seizures. In that case, police authorities had obtained a conviction based on evidence that heavily relied on information derived from telephone conversations that had been picked up by an electronic listening and recording device placed outside of a telephone booth. The government contended that since there had been no physical intrusion into the telephone booth, all information had been obtained in accordance with the reasonable search and seizure framework. The Court rejected that theory, holding that the Fourth Amendment "cannot turn upon the presence or absence of a physical intrusion into any given enclosure."

2. RIGHT TO PRIVACY IS VITAL IN A DEMOCRACY

SK/A07.04) Jimmy Wales [founder, Wikipedia] & Lila Tretikov [Executive Director, Wikipedia], THE NEW YORK TIMES, March 10, 2015, p. A21, LexisNexis Academic. Privacy is an essential right. It makes freedom of expression possible, and sustains freedom of inquiry and association. It empowers us to read, write and communicate in confidence, without fear of persecution. Knowledge flourishes where privacy is protected.

3. THE “I HAVE NOTHING TO HIDE” ARGUMENT IS BOGUS

SK/A07.05) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 104. Common arguments made in the defense of government surveillance typically follow one of two closely related themes: "If you have nothing to hide, you have nothing to fear" (the government's perspective), or "I have nothing to hide, so I have no objection to government surveillance." These "nothing-to-hide" arguments and their ilk can be superficially compelling and have been made for some time. But don't we all have something to hide? After all, as Lavrenti Beria, head of Joseph Stalin's secret police, supposedly said, "Show me the man, and I'll find you the crime."

SK/A07.06) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 223. The second commonly held misconception is that individuals with nothing to hide would not object to governmental surveillance. However, this logic is deeply flawed. The Fourth Amendment was not designed to protect those with something to hide. Rather, the Framers intended to protect those very individuals with nothing to hide. Individuals who commit crimes lose their Fourth Amendment protections upon a showing of probable cause that a crime has occurred. Conversely, the Fourth Amendment shields the innocent from undue governmental intrusion and thereby preserves the relationship between the government and those who have done nothing wrong.

SK/A08. SECRET SURVEILLANCE IS PERNICIOUS

1. SECRECY PERMITS UNRESTRAINED SURVEILLANCE

SK/A08.01) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, p. 846. From the government's perspective, it must be said, secret searches are quite convenient. Ordinarily, the government must provide notice when it searches a person's home, papers, or effects. This notice is the precondition for the effective exercise of many other rights and protections - it offers accountability in the individual case, and it can produce important legal rulings that publicly set the metes and bounds of the government's search powers going forward. By avoiding its notice obligation, the government avoids all of this trouble, insulating itself from external scrutiny or constraint through the substitution of its own unilateral legal judgments for those generated through the adversarial and public judicial process.

SK/A08.02) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, pp. 849-850. To the government, the absence of evidence that Americans object to certain new surveillance methods becomes evidence of the absence of any such objections. If ever silence should not be mistaken for acquiescence, it is here, where that silence has been obtained through secrecy. Americans cannot consent to surveillance that their government hides from them, up to the point where even those who would lose their liberty as a consequence of it are kept in the dark.

2. SECRET SURVEILLANCE IS A THREAT TO DEMOCRACY

SK/A08.03) Bryce Clayton Newell [Information School, U. of Washington], I/S: A JOURNAL OIF LAW AND POLICY FOR THE INFORMATION AGE, Summer 2014, LexisNexis Academic, p. 519. Secret surveillance laws pose a danger of "undermining or even destroying democracy on the ground of defending it" in their "struggle against espionage and terrorism.”

SK/A08.04) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, pp. 1959-1960. For example, the Supreme Court has made clear that the federal Freedom of Information Act protects at its core the "citizens' right to be informed about "what their government is up to.'" As Professor Henry Steele Commager put it aptly, "the generation that made the nation thought secrecy in government [to be] one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to."

SK/A08.05) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, pp. 846-847. But when the government foregoes notice, the rule of law suffers. A society unaware that its government is secretly engaging in a particular surveillance method - even and especially one that breaks the law or violates the Constitution - can do nothing to challenge that practice. And without notice of the use of surveillance in an individual case, a criminal defendant faced with a loss of liberty cannot put forward informed or specific arguments about whether the surveillance was lawful. Indeed, while the cumulative effects of withholding notice from the public are diffuse and difficult to measure (though no less real for it), the consequences to criminal defendants deprived of notice are particular and severe.

3. SECRET DOMESTIC SURVEILLANCE MUST BE BANNED

SK/A08.06) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1960. Requiring the existence of domestic-surveillance programs to be disclosed solves a practical problem that has bedeviled courts trying to assess legal challenges to secret surveillance programs. How can plaintiffs prove injury if the government is not required to admit whether surveillance exists in the first place? A prohibition on secret surveillance programs solves this problem. When government programs are public - when we have no secret surveillance - courts will be able to assess their legality in the open.

4. SURVEILLANCE BAN WON’T HURT LAW ENFORCEMENT

SK/A08.07) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, pp. 1960-1961. At the same time, the prohibition on secret surveillance systems does not require the government to notify individual targets of surveillance that they are being watched. But fundamentally, surveillance requires legal process and the involvement of the judiciary to ensure that surveillance is targeted, justified, and no more extensive than is necessary.

SK/A09. RISK OF ABUSE IS FRIGHTENINGLY HIGH

1. RISK OF BLACKMAIL IS HIGH

SK/A09.01) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, pp. 1954-1955. Even in democratic societies, the blackmail threat of surveillance is a real one. Surveillance (especially secret surveillance) often detects crimes or embarrassing activity beyond or unrelated to its original purposes. The surveillance of Dr. King, for instance, produced evidence of his marital infidelity. In another infamous case, FISA-authorized surveillance of a terrorist suspect produced chilling evidence of the suspect's murder of his own daughter for dating the wrong boy. Whether these discoveries are important, incidental, or irrelevant, all of them give greater power to the watcher. Unscrupulous government officials could engage in blackmail, whether motivated by political or pecuniary considerations.

SK/A09.02) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1954. Most of the former communist states in Eastern Europe have passed laws strictly regulating access to the surveillance files of the communist secret police. The primary purpose of such laws is to prevent the blackmail of political candidates who may have been surveilled under the former regime. The experience of these laws reveals, moreover, that the risk of such blackmail is one that the law cannot completely prevent after the fact. Professor Maria Los explains that "secret surveillance files are routinely turned into a weapon in political struggles, seriously undermining democratic processes and freedoms."

SK/A09.03) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1953. Information collected surreptitiously can be used to blackmail or discredit opponents by revealing embarrassing secrets. American political history over the past hundred years furnishes numerous examples of this phenomenon, but perhaps the most compelling is the treatment of Martin Luther King, Jr., by the FBI.

SK/A09.04) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, p. 477. FBI director J. Edgar Hoover had accumulated dossiers on all sorts of elected officials, which is why James Comey's term in that same office has been limited to ten years by statute--to avoid allowing any future FBI director to accumulate that much dirt on (and accompanying passive leverage over) Congressmen. Even Supreme Court justices had been surveilled in the past, as the Church Committee discovered. Perhaps one consequence of the accumulation of private conversations from foreign leaders' cell phones and email accounts will be not to undermine their negotiating positions at the G20 or the UN directly, but to allow the accumulation of leverage by discovering embarrassing secrets in their closets. Either way, the potential for surveillance corrupting the political process extends to multinational negotiations between democracies as well.

2. GOVERNMENT COULD BE COMPLETELY CORRUPTED

SK/A09.05) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, pp. 476-477. To what extent are judges, members of Congress and other elected officials exempted from NSA surveillance? If they are not, the chilling effect that afflicts attorneys and journalists applies here as well and has similarly-enormous potential to corrupt the political process. Imagine Anthony Weiner had not accidentally mass-tweeted that fateful photograph, and had remained in the House, but knew that the NSA knew about his habits--and was casting the deciding vote on a bill limiting the powers of the NSA?

SK/A10. SURVEILLANCE THREATENS DISSENT

1. SURVEILLANCE IS A THREAT TO PUBLIC DISSENT

SK/A10.01) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, pp. 38-39. One of the common threats to all movements, activists, and global citizens is the attack upon the rights to privacy, organizing, and dissent that is being wrought by the government-corporate surveillance state.

SK/A10.02) American Civil Liberties Union, STATES NEWS SERVICE, March 10, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Our clients advocate for human and civil rights, unimpeded access to knowledge, and a free press. Their work is essential to a functioning democracy. When their sensitive and privileged communications are monitored by the U.S. government, they cannot work freely and their effectiveness is curtailed - to the detriment of Americans and others around the world.

SK/A10.03) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, p. 459. The history of warrantless broad-brush surveillance is extensively documented. I will simply note a few points here: both republican and democratic presidents collected massive amounts of data on their political opponents in the civil rights and anti-Vietnam War movements. If it scares us to think that the FBI had dossiers on civil rights leaders and antiwar protesters in the 50s and 60s, today a far less transparent agency has dossiers on literally everyone.

SK/A10.04) Chris J. Chasin [U. of Pennsylvania Law School], UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY, Spring 2014, LexisNexis Academic, p. 58. If rights to privacy and association are not protected, speech will be chilled and valuable components of our civil discourse will be lost. The past years have demonstrated some ways that this chilling can occur. However, as new and novel technologies come into use, this impact can only worsen. If associational privacy is to endure, the standards governing electronic investigations must be modernized and revised with a specific focus towards protecting the communications of groups. The question that truly highlights the importance of this issue is a simple one: could the Civil Rights movement have survived today? Would the conveniences of the Internet have facilitated its efforts, or would technology have better allowed the police departments of the American South to silence activists and quell protests?

2. CLIMATE ACTIVISTS ARE THREATENED

SK/A10.05) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, p. 39. Many might be surprised to hear that the military infiltrated and spied on peace activists in Washington. Or that the FBI has been recruiting young women from college classrooms to spy upon, and entrap young anarchist/environmental activists while pretending to date the male victims.

SK/A10.06) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, p. 39. And even more disturbing, the U.S. government has colluded with private corporations and extractive industries to ratchet up their COINTELPRO-esque tactics upon climate justice activists.

SK/A10.07) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, pp. 40-41. In addition, it has become commonplace for corporations like TransCanada to provide PowerPoint presentations to local and federal law enforcement, as well as District Attorneys and other prosecutors, where the tar sands industrial giant provides them with information on political organizers and advocates terrorism investigations and prosecutions of nonviolent activities engaged in political campaigns against the irreparable destruction of the planet.

3. CURTAILING SURVEILLANCE IS NECESSARY TO PROTECT DISSENT

SK/A10.08) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, p. 41. Only by taking control away from the corporations and their beholden government cronies will this egregious surveillance activity be curtailed, and the only way that will happen is by fostering a powerful mass movement capable of reclaiming our civil liberties and the virtuous right to dissent.

SK/A11. SURVEILLANCE THREATENS DEMOCRACY

1. DEMOCRACY REQUIRES TRANSPARENCY

SK/A11.01) Bryan Ford [Associate Professor of Computer Science, Yale U.], TECHNOLOGY REVIEW, November-December 2014, p. 11, GALE CENGAGE LEARNING, Expanded Academic ASAP. Democracy rests on the principle that legal processes must be open and public. Laws are created through open deliberation; anyone can read or challenge them; and in enforcing them the government must get a warrant before searching a person's private property. For our increasingly electronic society to remain democratic, this principle of open process must follow us into cyberspace. Unfortunately, it appears to have been lost in translation.

2. SURVEILLANCE THREATENS FOUNDATION OF DEMOCRACY

SK/A11.02) Laura Ryan, NATIONALJOURNAL.COM, February 10, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The "out-of-control surveillance state" threatens the very core of the Constitution, according to Rep. Matt Salmon of Arizona. "Transparency and privacy are the core of a republic. A republic demands transparency from the government and privacy for its citizens," Salmon said Monday at the Heritage Foundation's Conservative Policy Summit. "Today we've reversed that, with government demanding transparency from us but insisting on secrecy for itself."

3. SURVEILLANCE STIFLES FREE SPEECH

SK/A11.03) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, pp. 224-225. Targets of governmental gaze have no way of knowing if and when they are being watched, yet it is commonly understood that you can be tracked via cell phones. It is this simultaneous dichotomy of surveillance that produces the anxiety that forms the panoptic effect. This is what Justice William O. Douglas had in mind when he said, "monitoring, if prevalent, certainly kills free discourse and spontaneous utterances."

4. SURVEILLANCE DESTROYS PUBLIC TRUST OF GOVERNMENT

SK/A11.04) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 147. The Fourth Amendment is a direct result of the Founders' constitutional value of reciprocal trust. Specifically, this amendment requires that government trust its citizens to act responsibly, a principle that is violated when government is allowed to step into citizens' lives without first finding that a citizen has given up that trust by failing to act responsibly. This governing constitutional principle is made even plainer in comparison to totalitarian governments, which maintain power and exercise control by sending a strong message to their citizens that the State is superior to the individual, doing so through monitored communications, random searches, and the use of citizen-informants.

SK/A11.05) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, pp. 147-148. While it is unlikely that government's use of collective surveillance will produce the sort of widespread unrest and violence that has resulted from racial alienation and societal powerlessness, milder results such as increased individual cynicism leading to decreased participation or outright mistrust of government agencies and agents can be just as destructive to our democratic society, with the possible devolution of our government into the sort of aristocratic enterprise the Founders wanted to avoid.

SK/A11.06) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 149. This nation and its Constitution have survived even greater existential threats than those we face today. It is not as clear that our society would be able to survive the corrosive effects of collective surveillance. The atrophy of civil liberties would be a "suicide pact" of a different kind, where the loss of our constitutional principles of protection from undue government power and of mutual trust between government and citizen makes our current models of society and government unsustainable.

5. NATIONAL SECURITY DOESN’T JUSTIFY DOMESTIC SURVEILLANCE

SK/A11.07) Editorial, COMMONWEAL, January 24, 2014, p. 5, GALE CENGAGE LEARNING, Expanded Academic ASAP. In a dangerous world, the United States is not about to abandon electronic surveillance abroad, which is the NSA's mandate. But national security means little if the methods used to keep the nation safe betray the fundamental democratic principles for which it stands.

SK/A12. RISK OF TERRORISM WILL NOT INCREASE

1. DOMESTIC SURVEILLANCE HAS NOT BEEN EFFECTIVE

SK/A12.01) Dustin Volz, NATIONALJOURNAL.COM, January 21, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "When you look at the United States, the Patriot Act, the mass surveillance that's been debated and criticized since 2013, the White House did two independent investigations into its effectiveness and found that despite monitoring the phone calls for everyone in the United States every time they pick up the phone, it hadn't stopped a single attack," Snowden said in his NOS interview. "We see the same thing in London. It didn't stop the attacks in Spain. It didn't stop the attacks in Boston," he continued. "The problem with mass surveillance is that you're burying people under too much data."

SK/A12.02) Dustin Volz, NATIONALJOURNAL.COM, January 30, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The bipartisan Privacy and Civil Liberties Oversight Board issued a progress report Thursday charting the administration's efforts to comply with recommendations it made exactly a year ago to overhaul the NSA's surveillance apparatus. That stern review last January also deemed the bulk collection of U.S. call data illegal and ineffective at countering terrorist plots-- conclusions that prompted the board to urge its dissolution.

SK/A12.03) Sara Sorcher, THE CHRISTIAN SCIENCE MONITOR, January 16, 2015, pNA, LexisNexis Academic. After the Snowden leaks, a review board appointed by Obama found this kind of mass collection was not essential to identifying terrorist activity or suspects any more than conventional court orders, and another report from the Privacy and Civil Liberties Oversight Board last year found bulk collection was unlikely to provide significant value in safeguarding the nation in the future.

2. TERRORIST ATTACK IN PARIS PROVES SURVEILLANCE INEFFICACY

SK/A12.04) Dustin Volz, NATIONALJOURNAL.COM, January 21, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Edward Snowden is pointing to the recent terrorist attacks in France as evidence that government mass-surveillance programs don't work because they are "burying people under too much data." "When we look at the Paris attacks specifically, we see that France passed one of the most intrusive, expansive surveillance laws in all of Europe last year, and it didn't stop the attack," the fugitive leaker said in an interview with NOS, a Dutch news organization, released Wednesday. "And this is consistent with what we've seen in every country."

3. BOSTON MARATHON BOMBING PROVES SURVEILLANCE INEFFICACY

SK/A12.05) Dustin Volz, NATIONALJOURNAL.COM, January 21, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Snowden has repeatedly referenced the 2103 Boston Marathon bombing to suggest mass surveillance may in fact undermine the mission of intelligence agencies. Dzhokar and Tamerlan Tsarnaev were pointed out by Russian intelligence to U.S. officials before the bombings in 2013, which killed three and left hundreds more wounded.

4. LAW ENFORCEMENT DOESN’T NEED SUSPICIONLESS SURVEILLANCE

SK/A12.06) Bryan Ford [Associate Professor of Computer Science, Yale U.], TECHNOLOGY REVIEW, November-December 2014, p. 11, GALE CENGAGE LEARNING, Expanded Academic ASAP. But effective surveillance does not require total secrecy. It can follow an openness principle: any surveillance process that collects or handles bulk data or metadata about people who are not specifically targeted by a warrant must be subject to public review and should use strong encryption to safeguard the privacy of the innocent. To gain access to unencrypted surveillance data, law enforcement agencies must identify people whose actions justify closer investigation and then demonstrate probable cause. The details of an investigation need not be public, but the data collection process should be--what was collected, from whom, and how it was decrypted. This is no different from the way the police traditionally use an open process to obtain physical search warrants without publicly revealing details of their investigation.

SK/A12.07) Dustin Volz, NATIONAL JOURNAL DAILY, March 3, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "It's possible for the United States government to obtain phone records of terrorists and bad actors without just going out there and vacuuming up millions of phone records, vacuuming up personal information of millions of law-abiding people," Wyden [U.S. Senator] said.

5. PROBABLE CAUSE GENERATES BETTER LAW ENFORCEMENT

SK/A12.08) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, pp. 469-470. When we require the executive to show up in court and prove with some small quantum of evidence that there is reason to suspect the target of being worthy of surveillance, judicial oversight isn't a burden to the system-instead, it results in more efficient law enforcement because it focuses law enforcement's efforts on threats that are real.

SK/A12.09) Shayana Kadidal [Sr. Managing Attorney, Center for Constitutional Rights], I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY, Summer 2014, LexisNexis Academic, p. 470. For 200-plus years having judges review the evidence for "probable cause" before issuing search warrants is a system that has worked to ensure not only that the innocent don't get searched, but also that law enforcement doesn't waste its time with irrational profiling. Our historical experience with warrantless surveillance confirms this. Inefficiency has been a hallmark of warrantless surveillance since the Church Committee reports, which showed that Presidents Nixon and Johnson targeted their political opponents (in the civil rights and Vietnam War protest movements). "Duplication, waste, and inertia" were the conclusions of one part of the Committee's reports on what happened when the agencies were allowed to gather information without any effective outside oversight. Whenever we removed courts as agents of accountability and oversight, we got lazy law enforcement.

SK/A13. USA FREEDOM ACT

1. NSA COLLECTS MASSIVE AMOUNT OF PHONE METADATA

SK/A13.01) Bryan Ford [Associate Professor of Computer Science, Yale U.], TECHNOLOGY REVIEW, November-December 2014, p. 11, GALE CENGAGE LEARNING, Expanded Academic ASAP. The National Security Agency, formed after World War II to spy on wartime adversaries, has clung to military-grade secrecy while turning its signals-intelligence weapons on us and our allies. While nominally still a "foreign intelligence" agency, the NSA has become a de facto law enforcement agency by collecting bulk surveillance data within the United States and feeding the data to law enforcement agencies.

SK/A13.02) Bryce Clayton Newell [Information School, U. of Washington], I/S: A JOURNAL OIF LAW AND POLICY FOR THE INFORMATION AGE, Summer 2014, LexisNexis Academic, p. 487. Based on Snowden's recent revelations and earlier reports, we know that government agencies, and particularly the NSA, have been collecting and analyzing vast quantities of telecommunications metadata as well as other online information from social media and online communications providers for quite some time.

SK/A13.03) Dustin Volz, NATIONALJOURNAL.COM, June 30, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. In 2013, the NSA conducted 198 searches of the contents of U.S. communications data under the 702 program. By comparison, it allowed about 9,500 searches of metadata--the duration and numbers of a call but not its contents--acquired via 702 in 2013. The CIA conducted "fewer than 1,900" searches of U.S. communications through 702 in 2013. The FBI, meanwhile, said it does not maintain such information. "When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight," Wyden [U.S. Senator] said in a statement. "This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected."

2. NATIONAL SECURITY LETTERS COMPEL COMPLIANCE

SK/A13.04) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, p. 222. Section 505 of the PATRIOT Act, Removing Obstacles to Investigating Terrorism, dramatically expanded the scope of NSLs [national security letters]. Similar to the expansion of FISA orders under Section 215, Section 505 amended the standard of proof that is required to issue NSLs. Previously, NSLs were not issued without specific and articulable facts demonstrating that the information sought pertained to a foreign power or to an agent of a foreign power. Under the PATRIOT Act, however, NSL issuance requires only that the material be relevant to a national security investigation.

SK/A13.05) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, p. 222. Not surprisingly, the use of NSLs [national security letters] began to dramatically increase after their scope was expanded, from 8,500 NSLs in 2000 to between 39,000 and 49,000 per year from 2003 to 2006. In 2010, the FBI made 24,287 NSL requests compared to only 14,788 in 2009.

SK/A13.06) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, p. 222. Additionally, Section 205 expanded the number of officials that are authorized to issue NSLs [national security letters]. First, it granted all fifty-six FBI field offices with the authority to make NSL requests. Second, it granted any government agency, not just the FBI, with the authority to obtain information from a consumer-reporting agency in connection with international terrorism or intelligence activities. This expansion of officials authorized to issue NSLs has led to increased concerns over the general lack of privacy safeguards under the PATRIOT Act.

SK/A13.07) Ronald Bailey [Science Correspondent], REASON, May 2014, p. 24, GALE CENGAGE LEARNING, Expanded Academic ASAP. Using authority created by Section 215 of the PATRIOT Act, the FBI each year issues thousands of national security letters (NSLs) demanding personal customer records from Internet service providers, financial institutions, and credit companies without prior court approval. In addition, the FBI typically imposes indefinite gag orders on anyone who receives an NSL, compounding a Fourth Amendment transgression with an infringement on the First.

SK/A13.08) Brendan Sasso, NATIONALJOURNAL.COM, June 16, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. And it doesn't matter how heavily encrypted an email is in transit if the NSA just forces the email provider to turn the message over. While the NSA collects some of its data by surreptitiously tapping into communications, much of the surveillance is done through court orders to Internet and phone companies.

3. METADATA COLLECTION AFFECTS MILLIONS OF AMERICANS

SK/A13.09) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 388. Whenever the NSA runs a query for a specific number, the system runs that number against every single number in the system to see which number(s) interacted with the targeted number. These numbers are updated on a daily basis. With over 326 million mobile subscriber connections as of December, 2012, which is roughly five times greater than the number of Americans who had landline telephone service around the time of the Smith decision, the government has a bottomless treasure trove of information that will exponentially grow larger given cellular technology's ever-increasing grip on consumer culture.

SK/A13.10) Bryan Ford [Associate Professor of Computer Science, Yale U.], TECHNOLOGY REVIEW, November-December 2014, p. 11, GALE CENGAGE LEARNING, Expanded Academic ASAP. The FBI secretly uses warrantless subpoenas to obtain bulk cell-tower records affecting hundreds of thousands of users at once, whether investigating bank robberies or harmless urban pranks.

4. METADATA REVEALS HIGHLY PERSONAL INFORMATION

SK/A13.11) Omer Tene [Associate Professor, Haim Striks School of Law, Israel], COLORADO TECHNOLOGY LAW REVIEW, 2014, LexisNexis Academic, p. 411. It is no longer clear that content is a robust indicator of privacy harm. On the contrary, communication contents may be no more private, sensitive or revealing than metadata. Indeed, many experts claim that the richness and depth of metadata could be more informative than communication content.

5. BULK COLLECTION IS A HUGE INVASION OF PRIVACY

SK/A13.12) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 377. A careful examination of case precedent and the relevant legal statutes leads one to the conclusion that the NSA's metadata collection program, as it currently stands, does not adequately align with Fourth Amendment constitutional jurisprudence.

6. PATRIOT ACT ALLOWS SUSPICIONLESS SURVEILLANCE

SK/A13.13) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, pp. 220-221. Section 215 of the PATRIOT Act expanded the scope of FISA Orders in three important respects. First, it expanded the type of documents that could be obtained to include "any tangible thing[] (including books, records, papers, documents and other items) for an investigation to protect against international terrorism and clandestine intelligence activities." This includes data stored in the cloud. Second, Section 215 of the PATRIOT Act included a "gag" provision, which prevents a party receiving a FISA order from disclosing that fact.

SK/A13.14) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, p. 221. Third, the legal standard [in Section 215 of the PATRIOT ACT] to obtain the order was changed, eliminating the need for any particularized showing. Rather, the FBI need only "specify that the records concerned are sought for an authorized investigation...to protect against international terrorism or clandestine intelligence activities." In practical effect, this change means that FISA orders can apply to someone who is neither the target of the investigation, nor an agent of a foreign power.

7. JUDICIAL SYSTEM HAS FAILED TO PROTECT PRIVACY

SK/A13.15) John T. Billings [Catholic U. School of Law], COMMLAW CONSPECTUS, 2012-2013, LexisNexis Academic, p. 221. NSLs [national security letters] are administrative subpoenas issued by a federal agency that require the production of information held by third parties, such as financial institutions, consumer reporting agencies, and wire or electronic service providers, such as cloud providers. NSLs are particularly worrisome because they do not require judicial oversight. Additionally, they include a "gag" provision that prohibits the third party from disclosing that it received an NSL.

8. SEARCH WARRANTS SHOULD REPLACE BULK COLLECTION

SK/A13.16) Dustin Volz, NATIONALJOURNAL.COM, July 29, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. A powerful Democratic senator introduced a new bill Tuesday that would end the National Security Agency's bulk surveillance of Americans' phone records and force the government to be more transparent and accountable with its spying orders. Senate Judiciary Chairman Patrick Leahy unveiled his hotly anticipated USA Freedom Act, a measure that has gained considerable traction and buzz over the past week.

SK/A13.17) Dustin Volz, NATIONALJOURNAL.COM, July 29, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Leahy's beefed up measure would effectively end the government's ability to collect bulk metadata--the numbers and time stamps of calls but not their actual contents--on Americans' phone records. Phone companies instead would keep those records and be required to give them to the NSA and other intelligence agencies only after the government earned approval for data searches through the Foreign Intelligence Surveillance Court.

SK/A13.18) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, pp. 390-391. Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection and Online Monitoring Act (USA FREEDOM Act), co-sponsored by Sen. Patrick Leahy (D-VT) and Rep. Mike Sensenbrenner (R-WI) would, among other things, put an end to the bulk collection of metadata allowed under Section 215 of the USA PATRIOT Act as well as force the NSA to implement more aggressive measures in filtering out information inadvertently collected.

SK/A13.19) Devon Ombres [U.S. Court of Appeals for the 11th Circuit], SETON HALL LEGISLATIVE JOURNAL, 2015, LexisNexis Academic, p. 56. Although President Obama has taken action to reform the NSA's collection of domestic communication data, the FREEDOM Act should be enacted, regardless of any redundancies with administration policy. The Act will aid in providing greater transparency and oversight to the NSA surveillance programs currently in place and stem perceived violations of the Fourth Amendment.

9. POWER TO ISSUE NSLs SHOULD BE CURTAILED

SK/A13.20) Editorial, COMMONWEAL, January 24, 2014, p. 5, GALE CENGAGE LEARNING, Expanded Academic ASAP. Currently, the NSA compels phone and internet companies to provide the metadata and keeps it for five years. According to the NSA, this bulk data collection can be combed through to reveal communication patterns and thus possible terrorist threats. However, the NSA was able to document only a few instances in which it actually searched these databases. Consequently, the review group recommends that this information remain in the hands of the private vendors, or a third party, and be accessed only by court order.

10. PUBLIC TRUST WILL BE RESTORED

SK/A13.21) Dustin Volz, NATIONALJOURNAL.COM, July 29, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The bill [USA Freedom Act] would also force the NSA to publicly report more data to the public about its surveillance, including what portion of searches conducted implicate Americans. And it would create a panel of special advocates to argue on behalf of privacy rights before the FISA court.

SK/A13.22) AMERICAN LIBRARIES, March-April 2014, p. 10, GALE CENGAGE LEARNING, Expanded Academic ASAP. The USA Freedom Act would end bulk collection of phone and internet metadata and permit companies to publicly report on FISA letters they have received and complied with and the number of users whose information was sought. It would also require the government to make disclosures about surveillance, establish a process for declassifying FISA court opinions, and create an office charged with arguing for privacy at the court.

SK/A13.23) Editorial, COMMONWEAL, January 24, 2014, p. 5, GALE CENGAGE LEARNING, Expanded Academic ASAP. Especially promising is the proposal that a civil-liberties advocate be added to the FISA court to make sure Fourth Amendment privacy concerns are given due consideration. The review group also suggests that the now confidential rulings of the FISA courts be made public whenever possible, a change long overdue and essential to restoring public trust.

SK/A13.24) Dustin Volz, NATIONAL JOURNAL DAILY, March 3, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. In November, the USA Freedom Act, championed by Democratic Sen. Patrick Leahy, came two votes short of advancing, as it failed to overcome a Republican-led filibuster flamed by fears that restricting the intelligence community could potentially aid groups like the Islamic State. The defeat came despite support for the bill from the White House, the intelligence community, tech companies and privacy advocates, and even a small cohort of tea-party conservatives, like Sens. Ted Cruz and Mike Lee, crossing the aisle.

11. RISK OF TERRORISM WILL NOT INCREASE

SK/A13.25) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 391. Legislation such as that proposed by Leahy and Sensenbrenner is the most effective remedy in addressing the issue of reasonable search and seizure as it relates the NSA's metadata collection program. The legislation presents the optimal course of action for several reasons. First, it keeps the issue, one entangled with concerns relating the changing notions of technology's impact on American society and national security, out of the courts. Second, and more importantly, the bill would help remedy elements of a program that, if the Supreme Court did in fact take on the case, would (and should) rule unconstitutional. If forced to gut these elements by judicial decree, the American intelligence community runs the risk of facing an interim period of increased vulnerability to terrorist threats as it crafts new programs that would align with the Court's set parameters to replace its previous ones.

SK/A13.26) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 389. Recently, a five-person panel known as the Privacy and Civil Liberties Oversight Bureau (PCLOB) released a report calling into question the effectiveness of the NSA's program in combating global terrorism. The 238-page report, the work of members appointed by both the Obama and the George W. Bush Administrations, acknowledged that the program has provided assistance in giving federal authorities additional leads regarding terrorism contacts already known to authorities and showing that foreign terrorist plots lack an American nexus. However, these victories cannot compensate for the "serious" problems laden in the program, specifically its failure to live up to Section 215 of the PATRIOT Act's "relevance" standard.

SK/A13.27) Clayton J. Pruner [U. of Notre Dame Law School], JOURNAL OF LEGISLATION, 2013-2014, LexisNexis Academic, p. 389. The panel [Privacy and Civil Liberties Oversight Bureau] wrote: “Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA's program.”

SK/A13.28) Susan Freiwald [Professor of Law, U. of San Francisco], COLORADO TECHNOLOGY LAW REVIEW, 2014, LexisNexis Academic, pp. 316-317. Opponents thus accorded considerable skepticism to proponents' initial claim that the 215 program (along with another program) had been valuable in 54 counterterrorism cases. The PCLOB report eventually concluded that the 215 program had yielded information unavailable from other investigative methods in only one case. Because that case involved the contribution of $ 8,500 to a terrorist network rather than a plan threatening imminent violence, it did not establish the program's efficacy for the majority of PCLOB [Privacy and Civil Liberties Oversight Board] members and other program opponents.

SK/A13.29) Dustin Volz, NATIONAL JOURNAL DAILY, March 3, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Privacy advocates bristle at the notion that a domestic dragnet in any way contributes to the fight against the Islamic State or other terrorist groups. The Freedom Act, they argue, would have prohibited only the government's carte-blanche collection of metadata, but would have still allowed the government to obtain those records from phone companies after earning judicial approval. And it would have extended the Patriot Act provisions for two years, but with tougher privacy protections--an option Clapper and others have said poses far less a threat to national security than letting the program expire entirely.

SK/A14. NSA DIGITAL SURVEILLANCE

1. PRISM PROGRAM PROVIDES FRONT-DOOR ACCESS TO DATA

SK/A14.01) Joris V.J. van Hoboken & Ira S. Rubinstein [Fellows, Information Law Institute, New York U. School of Law], MAINE LAW REVIEW, 2014, LexisNexis Academic, p. 504. The Guardian reported on another NSA program referred to in the leaked documents as "PRISM," under which the government collects the content of electronic communications, including "search history, the content of emails, file transfers and live chats." One of the leaked documents suggested that the government was collecting this data directly from the servers of leading U.S. companies including Google, Facebook, and Apple, although the government and the companies involved have all denied such claims.

SK/A14.02) Eugene Robinson, THE WASHINGTON POST, Juy 8, 2014, p. A17, LexisNexis Academic. Reporter Barton Gellman, researcher Julie Tate and security consultant Ashkan Soltani spent four months analyzing more than 160,000 instant-messaging conversations, e-mails, social network exchanges and other communications sucked in by the NSA's surveillance programs. The material Snowden provided was associated with roughly 11,400 individuals, perhaps half of them Americans. Of those whose lives were rummaged through, only 11 percent are identified by the NSA as legitimate targets who warrant surveillance. This means that about nine out of 10 just happened to be snagged in the NSA's net. It is important to clarify that I'm not talking about content-free metadata, such as the NSA's controversial log of domestic phone calls. These are actual e-mails, instant-messaging exchanges and social media posts that the NSA gathered under surveillance programs known as PRISM and Upstream. The Post reported that the content includes "stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes."

2. MUSCULAR PROGRAM PROVIDES BACK-DOOR ACCESS

SK/A14.03) A. Michael Froomkin [Professor of Law, U. of Miami], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, p. 991. Beginning in 2000, as encryption tools were gradually blanketing the Web, the N.S.A. invested billions of dollars in a clandestine campaign to preserve its ability to eavesdrop. Having lost a public battle in the 1990s to insert its own 'back door' in all encryption, it set out to accomplish the same goal by stealth.

SK/A14.04) A. Michael Froomkin [Professor of Law, U. of Miami], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, p. 991. Meanwhile, acting both with and without the consent of major software manufacturers, the NSA introduced secret back doors into widely-used commercial software. Specifically, companies say they were coerced by the government into handing over their master encryption keys or building in a back door. And the agency used its influence as the world's most experienced code maker to covertly introduce weaknesses into the encryption standards followed by hardware and software developers around the world.

SK/A14.05) A. Michael Froomkin [Professor of Law, U. of Miami], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, pp. 991-992. Similarly, the NSA induced key Internet communications intermediaries to give the NSA back door access to users' communications, most commonly meaning that the NSA could copy pre-encrypted text. Among the companies reported to have cooperated was Microsoft, for email systems Outlook and Hotmail, video conference system Skype, and cloud storage system SkyDrive. Apple, Google, Yahoo, and Facebook were also targeted. As a result, the NSA (and the UK's GCHQ) could in effect circumvent even the strong encryption systems that it had not managed to undermine.

3. XKEYSCORE PROGRAM GIVES ACCESS TO ENTIRE INTERNET

SK/A14.06) Peter Suderman, REASON, February 2014, p. 14, GALE CENGAGE LEARNING, Expanded Academic ASAP. NSA surveillance goes beyond such "metadata." According to an August report in The Wall Street Journal, the agency monitors roughly three-quarters of all Internet traffic, analyzing and in some cases retaining message content.

SK/A14.07) Jimmy Wales [founder, Wikipedia] & Lila Tretikov [Executive Director, Wikipedia], THE NEW YORK TIMES, March 10, 2015, p. A21, LexisNexis Academic. One of the documents revealed by the whistle-blower Edward J. Snowden specifically identified Wikipedia as a target for surveillance, alongside several other major websites like CNN.com, Gmail and Facebook. The leaked slide from a classified PowerPoint presentation declared that monitoring these sites could allow N.S.A. analysts to learn “nearly everything a typical user does on the Internet.”

SK/A14.08) Elizabeth Goitein [Co-Director, Liberty and National Security Program, New York U. Law School], THE CHRISTIAN SCIENCE MONITOR, June 5, 2014, pNA, LexisNexis Academic. By authorizing the NSA to collect all communications of targeted foreigners, including their exchanges with Americans, the 2008 legislation in effect authorized the warrantless domestic collection of Americans' international communications. This change upended 30 years of statutory law and any sensible reading of the Fourth Amendment. Snowden's disclosures revealed that the NSA collects 250 million Internet communications each year under this program.

SK/A14.09) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, p. 32. The government is collecting information on millions of citizens. Phone, Internet, and email habits, credit card and bank records—virtually all information that is communicated electronically is subject to the watchful eye of the state. The government is even building a nifty, 1.5 million square foot facility in Utah to house all of this data.

4. SIGINT PROGRAM IS DEVELOPING DECRYPTION OF ALL DATA

SK/A14.10) Peter Suderman, REASON, February 2014, p. 10, GALE CENGAGE LEARNING, Expanded Academic ASAP. The New York Times, Pro-Publica, and the London Guardian reported in September that the NSA had worked aggressively to crack public encryption technologies, making even the most secure communications vulnerable to government snooping. They cited a 2010 memo that described a briefing to the Government Communications Headquarters, a British intelligence service, that says the NSA has led a "multipronged effort to break widely used Internet encryption technologies." The document declares that "vast amounts of encrypted Internet data which have up till now been discarded are now exploitable."

SK/A14.11) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 122. The limited shelf life of cryptographic keys, and by extension the messages encrypted with those keys, becomes highly significant when we consider the implications of a secret NSA program to collect--and store indefinitely--all encrypted messages sent by U.S. citizens. Cryptography and mathematics researchers worldwide spend countless hours creating, analyzing, and attempting to break cryptographic systems, a time-honored and open process that serves as the only acceptable proving (and disproving) grounds for strong cryptography.

SK/A14.12) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 123. It is therefore not entirely surprising when cryptographic systems are broken, even those designed by recognized experts in the field and in use for years. This fact is not lost on the NSA, which employs thousands of mathematicians, many of whom hold PhDs in the field, to research ways to make and break cryptographic systems. By collecting and storing encrypted messages for indefinite periods of time, the NSA has asserted its own authority to eventually decrypt every such message, regardless of its origin or intent.

SK/A14.13) Joris V.J. van Hoboken & Ira S. Rubinstein [Fellows, Information Law Institute, New York U. School of Law], MAINE LAW REVIEW, 2014, LexisNexis Academic, pp. 505-506. A month later, The New York Times reported that the NSA has been engaged in and winning a "secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age." This program, which the leaked documents refer to as BULLRUN, is especially significant for present purposes because it reveals how NSA overcame its defeat in the key escrow and export control debates by finding new ways to exploit vast amounts of encrypted online data. BULLRUN relied on a number of stealthy methods ranging from the use of superfast computes to break codes, to allegedly pressuring companies into handing over their master encryption keys or building in backdoors, to introducing technical weaknesses covertly into commercial encryption standards.

SK/A14.14) Brendan Sasso, NATIONALJOURNAL.COM, June 16, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. But the truth is, efforts to improve online encryption and security can't totally thwart the NSA. Joseph Lorenzo Hall, the chief technologist for the Center for Democracy and Technology, said the idea of becoming "NSA-proof" is "just silly.""If they want it, they can get it," he said of the NSA's expert spies. The agency can hack or bypass many security measures if it is determined enough, Hall said.

5. DIGITAL SURVEILLANCE SECRETLY INVADES PRIVACY

SK/A14.15) American Civil Liberties Union, STATES NEWS SERVICE, March 10, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Through its general, indiscriminate searches and seizures of the plaintiffs' communications, upstream surveillance invades their Fourth Amendment right to privacy, infringes on their First Amendment rights to free expression and association, and exceeds the statutory limits of the FAA itself. The nature of plaintiffs' work and the law's permissive guidelines for targeting make it likely that the NSA is also retaining and reading their communications, from email exchanges between Amnesty staff and activists, to Wikipedia browsing by readers abroad.

6. RISK OF ABUSE IS FRIGHTENINGLY HIGH

SK/A14.16) Sara Sorcher, THE CHRISTIAN SCIENCE MONITOR, January 16, 2015, pNA, LexisNexis Academic. Collecting records from millions of citizens effectively relies on the idea that the data will be stored securely and immune to compromise or misuse, Mr. Rotenberg [Executive Director, Electronic Privacy Information Center] said. "But in a post-Snowden world, we know the NSA itself can't protect its own most sensitive information," he said.

SK/A14.17) Dustin Volz, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Earlier this week, The Washington Post reported on new Snowden leaks claiming that the vast majority of Internet accounts monitored via a foreign-intelligence program do not belong to overseas targets but instead to ordinary Internet users whose communications directly with those targets are incidentally collected. Some of The Post article's findings did not align fully with a report released just days earlier from the Privacy and Civil Liberties Oversight Board, the president's independent watchdog panel, which declared the program legal and effective.

7. CONGRESS HAS FAILED TO ACT

SK/A14.18) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, pp. 103-104. Hidden among the more dramatic revelations like PRISM and XKeyscore was a document approved by U.S. Attorney General Eric Holder that articulated "minimization procedures" required of the NSA under section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA). One of the provisions listed in this document applied specifically to encrypted information and allowed the NSA to collect and keep indefinitely any information obtained from "domestic communications"--which includes the communications of U.S. citizens--for "cryptanalytic, traffic analytic or signal exploitation purposes." In other words, under these minimization procedures, the mere fact that data is encrypted is alone enough to give the NSA the right to store that data (regardless of its U.S. or foreign origin) and hold it for as long as it takes to decrypt it.

SK/A14.19) Devon Ombres [U.S. Court of Appeals for the 11th Circuit], SETON HALL LEGISLATIVE JOURNAL, 2015, LexisNexis Academic, p. 28. Following the September 11, 2001 attacks, America's signals intelligence community began growing exponentially in scope and power. In the forefront of this community was the National Security Agency ("NSA"), acting with the aid of the USA PATRIOT Act. Between 2001 and 2013, the scope of the NSA's surveillance programs grew to include not only foreign communications, but also the mass collection of domestic metadata, including information on routing, senders, and recipients of phone calls, texts, and emails.

8. STATES CANNOT PROVIDE PROTECTION

SK/A14.20) Dustin Volz, NATIONALJOURNAL.COM, January 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Barnett [professor, Georgetown’s Law Center] further noted that even if the states did have legal authority to pull the plug or turn off the water on the NSA, it's unlikely they'd really want to. States like Maryland and Utah, which house NSA facilities, aren't going to try to shut them down because of the huge economic boon they provide to the states.

9. SEARCH WARRANTS WILL PROTECT PRIVACY

SK/A14.21) Jeffrey L. Vagle [Executive Director, Center for Technology, Innovation & Competition, U. of Pennsylvania Law School], INDIANA LAW JOURNAL, 2014-2015, LexisNexis Academic, p. 149. Technological advancements have eliminated some of the natural physical boundaries that prevented collective, persistent surveillance programs such as the suspicionless decryption program revealed in the Snowden documents--our system of laws must adjust to fill these gaps. As these physical hurdles continue to fall, default Fourth Amendment doctrine should likewise continue to deny government intrusions without individualized, articulable suspicion.

SK/A14.22) Neil M. Richards [Professor of Law, Washington U.], HARVARD LAW REVIEW, May 2013, LexisNexis Academic, p. 1960. The NSA wiretapping program was hard to challenge because its details were shrouded in secrecy, denials, and unassessable invocations of national security interests. At the same time, its shadowy nature created an even greater threat to intellectual privacy in particular because no one knew if her telephone calls were being listened to or not. Requiring disclosure of the existence and capabilities of domestic-surveillance programs to the general public makes them amenable to judicial and public scrutiny to ensure their compatibility with the rule of law.

10. TECH COMPANIES SUPPORT CURTAILING NSA POWER

SK/A14.23) Joris V.J. van Hoboken & Ira S. Rubinstein [Fellows, Information Law Institute, New York U. School of Law], MAINE LAW REVIEW, 2014, LexisNexis Academic, p. 506. In public statements, the companies expressed their "outrage" and, in the wake of these revelations, analysts predicted that U.S. tech companies may lose as much as $ 180 billion by 2016 due to international concerns about NSA's spying.

11. U.S. POSTAL SYSTEM CAN PROVIDE SECURE EMAIL

SK/A14.24) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, pp. 478-479. In contrast, when Professor of Law Anuj C. Desai looked at the U.S. postal service he found an agency that from its start was concerned about government officials prying into the thoughts of sealed letter senders. According to Desai, "[T]o find the origins of the constitutional principle of communications privacy, we must tap a different historical source, the history of a communications network. That network, maligned today as a relic from another era, is the post office, the most prominent federal administrative agency in the early American republic."

SK/A14.25) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 484. Part II of the report [“The Postal Service Role in the Digital Age”] identifies the necessary steps to develop eMailbox, "the digital counterpart to the physical mailbox" that would couple a physical address with an online one: "eMailbox would serve as a single official U.S. Mail branded e-mail box at a secure website. Individuals could collect all daily mail from their eMailboxes."

SK/A14.26) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 488. Similar to ReadyPost and the greeting card services, email would offer "convenience" to customers and "a degree of assurance that such products satisfy the Postal Service's processing requirements," specifically privacy protection. Like the greeting card program, the email service would "foster the use of mails," because "a foundation that links a physical address to an electronic mail box for every citizen and business ... facilitates communications and commerce for postal, governmental, and commercial applications that are available to all."

SK/A14.27) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 493. The OIG [Office of Inspector General] report devotes a great deal of space to consumer privacy concerns: "The Postal Service has earned its reputation as the most trusted federal government agency by being a reliable delivery partner for 236 years. Customers will regularly drop their most personal secrets and prized possessions "in the mail" without reservation."

SK/A14.28) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 502. From the perspective of the recipient, the message arrives sealed like an envelope because the recipient only sees the sender's name and, perhaps, a brief subject description. The recipient must "open" the email to read its content. Thus, it is reasonable to conclude that emails sent via a USPS account would enjoy full Fourth Amendment protection as a "sealed letter."

SK/A14.29) Arthur S. Hayes [Associate Professor of Communications and Media Studies, Fordham U.], COMMUNICATION LAW AND POLICY, Autumn 2014, LexisNexis Academic, p. 477. Under the PATRIOT Act, government need require only a subpoena to obtain "dialing, routing, addressing, or signaling information," effectively, the addressing information on e-mail messages, IP addresses, and Uniform Resource Locators. The proposed USPS-sponsored OSP's [online service provider] email service would be exempted from such warrantless searches under traditional Fourth Amendment-search and seizure postal service doctrine and its browser-search service would receive similar protection under the Fourth Amendment mosaic theory.

SK/A15. GPS SURVEILLANCE

1. GPS TECHNOLOGY HAS BECOME UBIQUITOUS IN AMERICA

SK/A15.01) P. Kramer Rice [Notre Dame Law School], SETON HALL LEGISLATIVE JOURNAL, 2013, LexisNexis Academic, p. 22. Smartphones are quickly replacing traditional cell phones, with many people purchasing smartphones for the purpose of utilizing the GPS technology and geo-apps. Unlike their cell phone predecessors, smartphones come pre-equipped with GPS technology, which is more precise in calculating location than previous calculations of CSLI [cell site location information]. In fact, when smartphone users activate their geo-app GPS technology, it has the capacity to pinpoint their real-time location down to the street corner. Moreover, users are increasingly linking this smartphone geo-app information to social media.

SK/A15.02) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, pp. 197-198. There is mounting evidence that smartphones are becoming increasingly prevalent. In 2011, a Pew Internet study found that eighty-three percent of adults in the United States have a cell phone of some kind. Among cell phone owners, forty-two percent own a smartphone. Thus, thirty-five percent of the American adult population uses smartphones.

SK/A15.03) Olivier Sylvain [Associate Professor of Law, Fordham U.], WAKE FOREST LAW REVIEW, Summer 2014, LexisNexis Academic, pp. 502-503. The growth of the market for wireless devices, gadgets, applications, and services over the past several years has been remarkable. And it does not appear to be slowing down. The vast majority of adults in the United States own a cell phone, and more than half own a smartphone. According to one report, mobile data traffic will increase anywhere from ten to twenty-five fold in the next five years.

2. GOVERNMENT EXTENSIVELY USES GPS SURVEILLANCE

SK/A15.04) Matthew Devoy Jones [Cleveland-Marshall College of Law], CLEVELAND STATE LAW REVIEW, 2014, LexisNexis Academic p. 213. Law enforcement's use of GPS technology to track individuals' smartphones under the Fourth Amendment Search and Seizure Clause has been a concern in recent cases.

SK/A15.05) P. Kramer Rice [Notre Dame Law School], SETON HALL LEGISLATIVE JOURNAL, 2013, LexisNexis Academic, pp. 23-24. Law enforcement groups have developed a handful of techniques to elicit records of CLSI [cell site location information] in an effort to obtain evidence against suspected lawbreakers as well as to thwart future criminal activity, most specifically potential terrorist attacks, by crafting character profiles of suspicious individuals. Law enforcement repeatedly seeks CSLI in order to obtain evidence against suspected drug smugglers.

SK/A15.06) Olivier Sylvain [Associate Professor of Law, Fordham U.], WAKE FOREST LAW REVIEW, Summer 2014, LexisNexis Academic, p. 504. Law enforcement and national security officials in particular have a keen interest in the location of criminal suspects and their affiliates. Relatively recent reports indicate that police departments across the country have dramatically increased their requests to service providers to supply user location information. Most law enforcement officials have made such requests without even bothering to obtain a warrant, and service providers have generally complied.

3. GPS SURVEILLANCE WILL ACCELERATE IN THE FUTURE

SK/A15.07) Christopher R. Orr [U. of Toledo Law School], UNIVERSITY OF TOLEDO LAW REVIEW, Winter 2014, LexisNexis Academic, p. 378. The number of Americans using smartphones increased in 2012 to become a majority of the country's cell phone market for the first time. With cell phones being omnipresent in American society and including GPS as non-optional, locational privacy is increasingly endangered.

4. LONG-TERM GPS SURVEILLANCE IS A SEARCH

SK/A15.08) Matthew Devoy Jones [Cleveland-Marshall College of Law], CLEVELAND STATE LAW REVIEW, 2014, LexisNexis Academic, p. 216. Smartphone users have an expectation of privacy in their GPS data and society believes that the expectation of privacy is reasonable. Because the Fourth Amendment was meant to restrict the use of general warrants and because the Supreme Court has defined many terms in the Fourth Amendment, the Fourth Amendment and a warrant based on probable cause are proper when deciding smartphone GPS tracking cases.

SK/A15.09) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 228. According to the Mosaic Theory, whether government conduct amounts to a search does not depend upon whether a particular individual act is a search, but rather, whether an entire course of conduct, viewed collectively, amounts to a search. Thus, individual acts that may not be searches on their own accord may rise to the level of a search when committed in particular combinations.

SK/A15.10) Timothy J. Geverd [Law Clerk, U.S. Distrifdt Court for Southern District of Georgia], THE JOHN MARSHALL JOURNAL OF INFORMATION TECHNOLOGY AND PRIVACY LAW, 2015, LexisNexis Academic, pNA. Professor Orin S. Kerr has termed this approach to a quantitative privacy the "'mosaic theory' of the Fourth Amendment.": "Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as individual steps." Thus, while individual police actions taken during the course of an investigation may not implicate the Fourth Amendment, "the mosaic can count as a collective Fourth Amendment search" when viewed in its entirety. According to Judge Leon, although turning over telephony metadata in isolation implicates no Fourth Amendment concerns, the cumulative effect of the NSA collection program infringed on reasonable expectations of privacy.

5. GPS SURVEILLANCE IS A MASSIVE INVASION OF PRIVACY

SK/A15.11) STATES NEWS SERVICE, January 27, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. [U.S. Representative, Jon Conyers Jr.:] "Geolocation tracking, whether information about where we have been or where we are going, strikes at the heart of personal privacy interests. The pattern of our movements reveals much about ourselves. When individuals are tracked in this way, the government is able to generate a profile of a person's public movements that includes details about a person's familial, political, professional, religious, and other intimate associations. That is why we need this legislation [Geolocation Privacy and Surveillance Act] to provide a strong and clear legal standard to protect this information."

SK/A15.12) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 198. In addition to traditional phone calls and text messages, smartphones transmit data from third-party applications, including social media and e-mail programs. The use of data is becoming more common. Between 2007 and 2010, AT&T saw an 8000% increase in data traffic. Part of the transmitted data is location data. In fact, The Wall Street Journal noted in 2011 that 47 of the 101 most popular smartphone applications sent location information to third parties. Given the increasing prevalence of smartphone ownership, the quantity and quality of data transmitted through these devices, and the fact that these devices are constantly at their owner's side, third-party access to smartphone data has the potential to reveal intimate details about the user's life.

SK/A15.13) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, p. 170. In her concurrence, Justice Sotomayor elaborated on practical concerns as they relate to privacy, noting that extensive GPS monitoring generates a precise record of peoples' travel patterns revealing intimate details about their daily lives such as "familial, political, professional, religious, and sexual associations."

6. GPS SURVEILLANCE ENDANGERS DEMOCRACY

SK/A15.14) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 219. Justice Sotomayor expressed concern over long-term monitoring in Jones. Specifically, because location data reveals details about one's "familial, political, professional, religious, and sexual associations," awareness of government surveillance may "chill[] associational and expressive freedoms... . The net result is that GPS monitoring ... may "alter the relationship between citizen and government in a way that is inimical to democratic society.'"

SK/A15.15) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 224. Here, the harm to the general public is the intrusive surveillance from the government. Awareness of government surveillance "chills associational and expressive freedoms" and alters "the relationship between citizen and government in a way that is inimical to democratic society."

7. FEDERAL LAW IS HOPELESSLY OUTDATED

SK/A15.16) Matthew Devoy Jones [Cleveland-Marshall College of Law], CLEVELAND STATE LAW REVIEW, 2014, LexisNexis Academic, p. 217. GPS-embedded smartphones are not covered by the ECPA [Electronic Communications Privacy Act] for two reasons. First, using a GPS embedded smartphone as a tracking device explicitly falls outside of the electronic communications definition. As previously mentioned, electronic communications are not, among other things, tracking devices. Second, smartphones did not exist at the time the ECPA was enacted.

8. U.S. SUPREME COURT HAS FAILED TO FILL THE VOID

SK/A15.17) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 217. Second, the Court did not address whether law enforcement can conduct twenty-four hour surveillance of any citizen without judicial oversight. Jones missed an opportunity to provide clarity in this realm and failed to recognize the various ways that long-term tracking could be instituted without the use of trespass.

SK/A15.18) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 221. But at what point does long-term monitoring become unreasonable under the reasonable expectation of privacy analysis? Law enforcement typically requests data from providers for periods of up to sixty days, more than twice as long as the twenty-eight day surveillance in Jones.

9. SEARCH WARRANT SHOULD BE REQUIRED

SK/A15.19) STATES NEWS SERVICE, January 27, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "We must enact the Geolocation Privacy and Surveillance Act to require the government to obtain a warrant based on probable cause to compel companies such as cell phone service providers to disclose the geolocation information of their customers," said Conyers [U.S. Representative].

SK/A15.20) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 230. Given that there are two ways to obtain location data, this Comment will propose a dual standard. First, in order to obtain precise location data (via GPS, triangulation, etc.), the government must obtain a warrant by providing specific and articulable facts demonstrating probable cause that a crime has been committed. Further, the location data sought must be reasonably related to the ongoing investigation. This probable cause standard protects the intimate details that are revealed by our location, minimizing undue surveillance that "chills associational and expressive freedoms." It further tailors the scope of the information gathered to a level that is reasonable to the needs of the investigation.

10. GPS ACT WILL PROTECT AMERICAN’S RIGHT TO PRIVACY

SK/A15.21) Dustin Volz, NATIONALJOURNAL.COM, June 25, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "We should not mechanically apply the rule used in the predigital era to the search of a cell phone," Alito [Supreme Court Justice] wrote. "Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form." But the Court also recognized the potential for its ruling to hamper police activity. Foundational privacy rights, however, must remain paramount, the justices reasoned.

SK/A15.22) Frank Lin [U. of Oregon Law School], OREGON LAW REVIEW, 2013, LexisNexis Academic, p. 231. First, only precise location data (such as GPS data) has the potential to reveal details regarding a protected space. Under the balanced approach, law enforcement must present probable cause that a crime has been committed. Thus, because law enforcement will already have presented probable cause to obtain this data, government monitoring of protected spaces would not violate the Fourth Amendment.

SK/A16. STINGRAYS

1. STINGRAYS GAIN SECRET ACCESS TO CELL PHONE DATA

SK/A16.01) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, pp. 142-143. This technology, commonly called the StingRay, the most well-known brand name of a family of surveillance devices known more generically as "IMSI catchers," is used by law enforcement agencies to obtain, directly and in real time, unique device identifiers and detailed location information of cellular phones--data that it would otherwise be unable to obtain without the assistance of a wireless carrier. Whether installed in a vehicle, mounted on a drone, or carried by hand, this unregulated and technologically unmediated surveillance technology can, for example, send signals through the walls of homes to locate and identify nearby cell phones without the assistance of a wireless carrier and without providing any notice to the targets of the surveillance operation.

SK/A16.02) STATES NEWS SERVICE, March 17, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Stingrays can collect information on all cell phones in a given area as well as precisely track particular phones, locating people within their own home, at a doctor's office, at a political protest or in a church. Some stingrays and similar devices are even configured to record private conversations.

SK/A16.03) Fruzsina Eordogh, THE CHRISTIAN SCIENCE MONITOR, December 22, 2014, pNA, LexisNexis Academic. Stingrays, or more technically known as International Mobile Subscriber Identity (IMSI) catchers, have been around since the 1990s. They work by mimicking a cellphone tower, coaxing wireless devices in the area to connect to it as the closest option. From there, the stingray has access to all kinds of data on a phone, from the location to phone and text logs.

SK/A16.04) Heath Hardman [Editor-in-Chief], ALBANY GOVERNMENT LAW REVIEW, 2015, LexisNexis Academic, p. 25. Some cell-site simulators are capable of more than tracking. Some can also be used to gather information or to listen to calls. In fact, the Stingray gathers third-party signals, data, and phone numbers from other cellphones in the area of its operation while locating a target cellphone. In addition to locating cellphones and gathering data, it is possible for a CSS to actually intercept cellphone calls in order to eavesdrop and record them.

2. GOVERNMENT AGENCIES USE STINGRAYS EXTENSIVELY

SK/A16.05) CNN WIRE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The FBI has a secret device to locate criminal suspects, but they would apparently rather let suspects go free than reveal in court the details of the high tech tracker. The device, called a "Stingray," tricks cell phones into revealing their locations.

SK/A16.06) Jim Pagels, REASON, April 2015, p. 7, GALE CENGAGE LEARNING, Expanded Academic ASAP. The FBI has declared its right to use devices--called "stingrays" or International Mobile Subscriber Identity catchers--that act like fake cell towers to monitor cell phone locations, calls, and texts, all without a warrant. The claim, made during private briefings with Senate Judiciary Committee staff, comes on the heels of a November Wall Street Journal report that small Justice Department aircraft could collect identification and location data from tens of thousands of phones per flight.

SK/A16.07) CNN WIRE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. We also know police in at least 20 states use Stingrays, according to public records obtained by the American Civil Liberties Union. But everything else is a mystery because police agencies have non-disclosure agreements with the maker of Stingrays: the Harris Corporation based in Melbourne, Florida. They also have similar hush-hush contracts with the FBI.

SK/A16.08) Fruzsina Eordogh, THE CHRISTIAN SCIENCE MONITOR, December 22, 2014, pNA, LexisNexis Academic. Until 2006, stingrays were used mostly in the war on terrorism. That is when police departments began acquiring them with grants from the US Department of Homeland Security.

SK/A16.09) Fruzsina Eordogh, THE CHRISTIAN SCIENCE MONITOR, December 22, 2014, pNA, LexisNexis Academic. In Tallahassee, Fla., the ACLU determined through public records requests that police deployed stingrays more than 250 times between 2007 and 2014. It said that the Los Angeles Police Department used stingrays at least 340 times in 2011. In Tacoma, Wash., the News Tribune reported that police there used them 179 times between 2009 and 2014. The Charlotte Observer recently reported that police officials there used stingrays more than 500 times in a five to seven year span.

SK/A16.10) Stephanie K. Pell [Asst. Professor, West Point’s Army Cyber Institute] & Christopher Soghoian [ACLU’s Speech, Privacy, and Technology Project], HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2014, LexisNexis Academic, p. 61. Together with the FCC, DHS [Department of Homeland Security] shares the responsibility of protecting the security of America's civilian telephone networks. DHS is also a law enforcement agency, with component agencies that have spent millions of dollars on StingRays and other cellular interception equipment. Moreover, DHS funds the acquisition of cellular surveillance equipment by state and local law enforcement agencies.

SK/A16.11) Stephanie K. Pell [Asst. Professor, West Point’s Army Cyber Institute] & Christopher Soghoian [ACLU’s Speech, Privacy, and Technology Project], HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2014, LexisNexis Academic, p. 32. Indeed, in late 2014, the Wall Street Journal revealed that the U.S. Marshals Service has equipped airplanes with IMSI catchers, which, since 2007, the agency has flown over cities to locate targets. The IMSI catchers used in these tracking operations interact with and collect data from a vast number of innocent people's phones. Moreover, such surveillance necessarily involves sending signals through the walls of homes and apartment buildings or penetrating briefcases, purses, and pockets in order to identify the phones contained within.

3. STINGRAY USE HAS BEEN KEPT SECRET FOR YEARS

SK/A16.12) Patrick Toomey [American Civil Liberties Union] & Brett Max Kaufman [Technology Law & Policy Clinic, New York U.], SANTA CLARA LAW REVIEW, 2014, LexisNexis Academic, pp. 894-895. Incredibly, police departments around the country have signed non-disclosure agreements with Harris Corporation that forbid law-enforcement agencies from revealing their possession or use of stingray devices. The agreement also requires police departments to inform Harris Corporation anytime they receive public-records requests so that Harris can challenge the request, or the release of any records responsive to it, in court. And even when defendants, and courts, do learn about the use of stingrays in criminal investigations in time to raise legal challenges to the use of these devices, the government always has the option of withdrawing the evidence to avoid judicial scrutiny.

SK/A16.13) Jim Pagels, REASON, April 2015, p. 7, GALE CENGAGE LEARNING, Expanded Academic ASAP. The Harris Corporation, a Florida-based company that manufactures the snooping tools, requires police departments to sign a non-disclosure agreement that explicitly warns them not to mention stingrays.

SK/A16.14) Stephanie K. Pell [Asst. Professor, West Point’s Army Cyber Institute] & Christopher Soghoian [ACLU’s Speech, Privacy, and Technology Project], HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2014, LexisNexis Academic, p. 38. The FBI and DOJ are indeed coordinating the use of this technology, particularly through non-disclosure agreements, to limit disclosure to the public of information about cellular interception equipment. The FBI has entered into non-disclosure agreements with state and local enforcement partners. The FBI argues that information shared by the federal government with states "concerning cell site simulator technology is considered homeland security information under the Homeland Security Act." The result of this classification is that cell site simulator information "remain[s] under the control of the [FBI] . . . ."

SK/A16.15) CNN WIRE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Closely guarded details about how police Stingrays operate have been threatened this week by a judge's court order. Judge Patrick H. NeMoyer in Buffalo, New York, described a 2012 deal between the FBI and the Erie County Sheriff's Office in his court order Tuesday. The judge, who reviewed the deal, said the FBI instructed the police to drop criminal charges instead of revealing "any information concerning the cell site simulator or its use."

4. WARRANTLESS USE VIOLATES THE 4TH AMENDMENT

SK/A16.16) Fruzsina Eordogh, THE CHRISTIAN SCIENCE MONITOR, December 22, 2014, pNA, LexisNexis Academic. A pen register is when police ask a telecommunications company to log the phone numbers that are dialed on a suspect's device. But stingrays can reveal much more information since it allows uses to search through a phone, examine text logs, GPS locations and data for others in the vicinity of the surveillance target. The Electronic Frontier Foundation, a digital rights group, calls stingrays an "unconstitutional, all-you-can-eat data buffet." According to the ACLU's Wessler, the warrantless use of stingrays is a violation of the fourth amendment. The stingray is indiscriminate, he says, as it "goes through walls, into homes, and private spaces."

5. STINGRAYS INVADE PRIVACY OF THOUSANDS OF AMERICANS

SK/A16.17) Stephanie K. Pell [Asst. Professor, West Point’s Army Cyber Institute] & Christopher Soghoian [ACLU’s Speech, Privacy, and Technology Project], HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2014, LexisNexis Academic, p. 32. While the Rigmaiden case presented a situation where law enforcement agents canvassed a neighborhood (and thus penetrated with electronic signals many of the homes within that neighborhood),the U.S. Marshals' airplane-assisted surveillance operations involve surveillance on a much larger scale. Indeed, they send signals into huge numbers of Fourth Amendment protected spaces -- potentially into every home, purse, and pocket in a city. Such dragnet surveillance operations therefore raise serious legal questions, even if authorized by a court.

SK/A16.18) Brian L. Owsley [Asst. Professor of Law, Indiana Tech Law School], HASTINGS LAW JOURNAL, December 2014, LexisNexis Academic, p. 186. Would you want your information captured and saved in a government computer forever based only on the most minimal of standards? That is what the federal government is doing through its current use of cell site simulators.

6. STINGRAY USE SQUELCHES PUBLIC DISSENT

SK/A16.19) Lauren Regan [Executive Director, Civil Liberties Defense Center, Eugene, OR], MONTHLY REVIEW, July-August 2014, PROQUEST, p. 36. Triggerfish is a technology that mimics a cell phone tower, picking up on a cell phone’s signal and essentially, through a man-in-the-middle attack, intercepts calls and reveals numbers dialed and received, locations, and other information that can pinpoint the identity of the cell phone user. In fact, some suspect that triggerfish was used to round-up the RNC (Republican National Convention)-8 in 2008. The technology known as “Stingray” is essentially the same as triggerfish.

7. FEDERAL LAW IS SILENT ON THE USE OF STINGRAYS

SK/A16.20) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, p. 155. Moreover, through examining two magistrate court opinions discussing StingRay technology, we will illustrate the limited ability magistrate judges have to restrain government power when there is no statute directly authorizing or limiting a surveillance method or technology.

8. SECRECY THWARTS JUDICIAL OVERSIGHT

SK/A16.21) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, pp. 152-153. Magistrate Judge Stephen Wm. Smith, an early critic of warrantless real-time tracking, offers an important perspective on why appellate review of real-time location tracking and other types of government surveillance subject to ECPA is a rare occurrence: for the most part, the government is the only party with the ability and potential incentive to appeal unfavorable judgments. ECPA surveillance orders are issued ex parte and often remain sealed long past an investigation's end. A target of a sealed ECPA order is thus unlikely to become aware of the government's acquisition of her information unless an investigation proceeds to charges. It is at that point, as a criminal defendant, that a target can challenge the ECPA order. If an investigation never proceeds to an indictment, the innocent target will never learn that a third party disclosed her information to the government.

SK/A16.22) Stephanie K. Pell [Fellow, Stanford Law School’s Center for Internet & Society] & Christopher Soghoian [American Civil Liberties Union], YALE JOURNAL OF LAW & TECHNOLOGY, 2013- 2014, LexisNexis Academic, p. 164. As previously indicated, when a digital analyzer or StingRay collects data, no corresponding third party records are created--the information intercepted is in the sole possession of the agents using the StingRay. If there is no judicial oversight, then there is no trace or record of StingRay surveillance in a particular case other than law enforcement's own elective record keeping systems.

9. ELIMINATING SECRECY WILL RESCUE DEMOCRACY

SK/A16.23) STATES NEWS SERVICE, March 17, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "The Erie County Sheriff has claimed military grade secrecy to prevent the release of information about how it uses stingrays against its own residents," said John A. Curr III, director of the NYCLU's Western Regional Office. "But this is not Iraq or Afghanistan - this is Buffalo. And we have a right to know what the Sheriff is doing to us in the name of keeping us safe."

SK/A17. DRONE SURVEILLANCE

1. FEDERAL GOVERNMENT MAKES EXTENSIVE USE OF DRONES

SK/A17.01) Phil Mattingly, THE WASHINGTON POST, June 20, 2013, p. A16, LexisNexis Academic. Lawmakers, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), and civil liberties groups have raised concerns about the impact on privacy of drones used by federal law enforcement agencies. The Department of Homeland Security regularly deploys drones to oversee the southern border.

SK/A17.02) Craig Whitlock, THE WASHINGTON POST, September 27, 2014, p. A1, LexisNexis Academic. Until now, the armed forces and federal law enforcement agencies have been reflexively secretive about drone flights and even less forthcoming about how often they use the aircraft to conduct domestic surveillance.

SK/A17.03) Jonathan Olivito [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2013, LexisNexis Academic, p. 678. The Customs and Border Protection agency has operated drones around the borders since 2005.Customs and Border Protection drones uncover intelligence on illegal border crossings and major drug trafficking operations. Likewise, the Coast Guard hopes to use drones "to reconnoiter large maritime areas." The FBI and the Drug Enforcement Agency have utilized drones within the United States; the Customs and Border Protection agency has even made its drones available to local police departments for domestic law enforcement operations.

SK/A17.04) Craig Whitlock, THE WASHINGTON POST, January 7, 2015, p. A8, LexisNexis Academic. U.S. Customs and Border Protection has been flying surveillance drones for nearly a decade, launching them from bases in Texas, Florida, North Dakota and Arizona. The agency has nine of the Predator B model - a modified version of the MQ-9 Reaper drone flown by the Air Force - and has plans to more than double the size of its drone fleet to 24 as part of a $443 million expansion

SK/A17.05) Craig Whitlock, THE WASHINGTON POST, September 27, 2014, p. A1, LexisNexis Academic. Department of Justice officials have also been reluctant to answer queries from lawmakers about their drone operations. The FBI first disclosed its use of small, unarmed surveillance drones to Congress in June 2013 and subsequently revealed that it had been flying them since 2006. The Justice Department inspector general reported last fall that the FBI had not developed new privacy guidelines for its drone surveillance and was relying instead on old rules for collecting imagery from regular aircraft.

SK/A17.06) Craig Whitlock, THE WASHINGTON POST, September 27, 2014, p. A1, LexisNexis Academic. The Department of Homeland Security also conducts extensive surveillance with unarmed drones. Its Customs and Border Protection service has nine large Predator B models, which account for about three-quarters of all drone flight hours reported by federal civilian agencies. Customs and Border Protection drones patrol a 25-mile-wide corridor along the nation's northern and southern borders, as well as over the Caribbean Sea and Gulf of Mexico.

SK/A17.07) Alexandra I. Rengel [author of PRIVACY IN THE 21ST CENTURY], INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, LexisNexis Academic, p. 203. The FAA regulates the use of drones and grants licenses on a case-by-case basis after determining the "airworthiness" of the system. As stated in the Government Accountability Office report ("GAO report"), the authorized uses are limited to "activities such as law enforcement, search and rescue, forensic photography, monitoring or fighting forest fires, border security, weather research, and scientific data collection." The GAO report goes on to state that the ultimate goal for the FAA is to expand unmanned aviation to the "greatest extent possible."

2. DRONES ARE BEING SUPPLIED TO LOCAL LAW ENFORCEMENT

SK/A17.08) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, pp. 2-3. State and local police departments are eager to equip themselves with drones because they are cheaper and more efficient than helicopters and other types of manned aircraft. Police departments in cities such as Miami, Florida, Houston, Texas, Seattle, Washington, Arlington, Texas, and other areas such as Mesa, Colorado, and Queen Anne's County, Maryland, have purchased drones and are testing the new technology with the hope of incorporating them soon into their fleet. Records released by the FAA reveal that police departments in Kansas, Washington, Texas, Arkansas, Idaho, Alabama, Colorado, North Dakota, Ohio, and Utah have applied for permission to fly drones in U.S. airspace.

3. THOUSANDS OF DRONES WILL SOON FILL THE SKIES

SK/A17.09) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, p. 161. Drones are rarely used in U.S. airspace today; however, as a result of a recent congressional push, the Federal Aviation Administration (FAA) has predicted that 30,000 drones could be flying in U.S. skies in less than twenty years. Coupled with cutting-edge technology such as thermal imaging devices, high-powered cameras, and facial recognition technology, current law may not be prepared to adapt fast enough to address the privacy concerns raised by mass domestic drone usage.

4. DRONES CAN REVEAL HUGE AMOUNTS OF INTIMATE DATA

SK/A17.10) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, p. 171. Similarly, drone surveillance allows a depth of information collection previously impossible. Like the Jones concurrences' concern with GPS monitoring, drones allow the collection of a vast amount of intimate personal information-travel patterns or shopping habits to name a few-but on a much larger scale, and surveillance is not limited merely to an individual but all people beneath the drone's all-seeing eye.

5. UNREGULATED DRONES VIOLATE THE 4TH AMENDMENT

SK/A17.11) Ajoke Oyegunle [Catholic U. of America Law School], COMMLAW CONSPECTUS, 2013, LexisNexis Academic, p. 382. The Fourth Amendment protects individual privacy against government use of sensory detection equipment (e.g., wiretaps, thermal imaging, and satellite location surveillance). This well established precedent of individual privacy should govern with drones because many drones are equipped with technology, such as high-definition cameras, radar technology, and thermal imaging sophisticated enough to "see" through obstructions.

SK/A17.12) Y. Douglas Yang [Boston U. School of Law], THE BOSTON UNIVERSITY PUBLIC INTEREST LAW JOURNAL, Summer 2014, LexisNexis Academic, p. 348. Within the realm of Fourth Amendment jurisprudence, remote surveillance involving unmanned platforms presents a unique privacy problem. Such technology is an invention of the twenty-first century and was not explicitly contemplated by the Constitution's drafters. Additionally, modern drone surveillance is only beginning to mature to its potential, and the Supreme Court thus has not had the opportunity to incorporate drone surveillance into its Fourth Amendment jurisprudence.

6. CONGRESS HAS FAILED TO TAKE ACTION

SK/A17.13) Veronica Escobar, THE NEW YORK TIMES, July 26, 2014, p. A21, LexisNexis Academic. And despite President Obama's efforts to work with Central American leaders to address the root causes of the migration, his recently announced request for $3.7 billion, supposedly to deal with these new migrants, contains yet more border security measures: Almost $40 million would go to drone surveillance, and nearly 30 percent of it is for transportation and detention.

7. STATES AND LOCALITIES CANNOT PROVIDE PROTECTION

SK/A17.14) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, p. 178. One of the factors considered by the FAA when choosing test sites is the presence of "drone-restrictive" laws and state legislators have been hesitant to jeopardize their states' chances at being selected. After a North Dakota bill that would have banned police from warrantless use of drones was struck down, a state senator remarked, "Now that we've defeated that bill in the Senate, it sends a clear message to the FAA that North Dakota's open for business . . . ." Attitudes and remarks like this suggest that state and local governments cannot be counted on to protect privacy interests in the face of competing economic opportunity.

8. SEARCH WARRANTS BEST PROTECT AMERICANS’ PRIVACY

SK/A17.15) STATES NEWS SERVICE, March 18, 2015, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Today, Congressman Ted Poe (TX-02) along with Congresswoman Zoe Lofgren (CA-19) introduced H.R. 1385, the Preserving American Privacy Act. The bill seeks to ensure the privacy of American citizens by establishing specific guidelines about when and for what purposes law enforcement agencies and private individuals can use drones to conduct targeted surveillance.

SK/A17.16) Hillary B. Farber [Associate Professor of Law, U. of Massachusetts], SYRACUSE LAW REVIEW, 2014, LexisNexis Academic, pp. 45-46. Congress and the states should pass legislation regulating unmanned aerial surveillance that is focused on transparency and accountability. Law enforcement should be required to obtain a warrant before conducting unmanned aerial surveillance. Only a limited number of exceptions to the warrant requirement should be permitted, such as when it is necessary to prevent imminent loss of life or destruction of property and when manned aircraft is ill-suited for use. At a minimum, these proposals would prohibit using unmanned aerial surveillance without a particularized target and would require probable cause to believe a crime is being committed.

SK/A17.17) Ben Jenkins [U. of Kentucky College of Law], KENTUCKY LAW JOURNAL, 2013-2014, LexisNexis Academic, p. 177. The rapid expansion of drone technology and use renders Fourth Amendment privacy safeguards inadequate, necessitating federal legislative action. Congress has previously passed preemptive legislation to address potential privacy issues in the face of technological advances. If proper privacy protections are not in place when the drone boom occurs, the legislature may not be able to respond fast enough to address infractions and civil rights concerns. If Congress does not act, privacy violations could occur without redress, privacy norms could be diminished, and society could become complacent. As one scholar noted, now is the time to establish a proper regulatory framework to address privacy concerns associated with domestic drone use.

9. ILLEGAL IMMIGRATION WILL NOT INCREASE

SK/A17.18) Craig Whitlock, THE WASHINGTON POST, January 7, 2015, p. A8, LexisNexis Academic. U.S. drones deployed along the borders are grounded most of the time, cost far more than initially estimated and help to apprehend only a tiny number of people trying to cross illegally, according to a federal audit released Tuesday. In a report that could undermine political support for using more drones to secure the nation's borders, the Department of Homeland Security's inspector general found "little or no evidence" that the fleet had met expectations or was effective in conducting surveillance.

SK/A17.19) Craig Whitlock, THE WASHINGTON POST, January 7, 2015, p. A8, LexisNexis Academic. As evidence, the report cited statistics showing that of the 120,939 illegal border crossers apprehended in Arizona during 2013, fewer than 2 percent were caught with the help of drones providing aerial surveillance. In Texas and the Rio Grande Valley, less than one-tenth of 1 percent of border-crossing apprehensions were attributed to drone detection.

SK/A17.20) Bill Theobald, USA TODAY, January 7, 2015, p. 5A, LexisNexis Academic. The unmanned drone program patrolling the southern U.S. border has not proved effective and costs almost five times more than reported, a study released Tuesday concludes. The inspector general for the Department of Homeland Security recommends scrapping plans to expand the program and directing the money to other programs to secure the border.

SK/A18. MUSLIM SURVEILLANCE

1. FEDERAL GOVERNMENT HAS WIDELY TARGETED MUSLIMS

SK/A18.01) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, p. 444. Following 9/11, the government instituted specific profiling of U.S. nationals who were residents or citizens of a foreign country of interest and were traveling through the airways. After the Abdulmutallab attack, the Obama administration reinstated this airport profiling of approximately fourteen countries, most of which were majority Muslim countries.

SK/A18.02) Natasha Tripathi, UWIRE TEXT, March 10, 2015, p. 1, GALE CENGAGE LEARNING, Expanded Academic ASAP. The four-year-old case, Hassan v. City of New York, confronted how the New York Police Department has been conducting surveillance of young American Muslims. According to the Muslim Advocates website, American Muslims were targeted throughout the northeast, including New York City and New Jersey. The program was undiscovered for more than a decade until it was exposed in 2011 by the Associated Press, according to the website. The surveillance included taking detailed notes on the details of American Muslims' daily lives in towns, mosques, businesses and college campuses.

SK/A18.03) Dustin Volz, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Greenwald [journalist] was supplied with a large trove of top-secret documents from Edward Snowden last year, and they have fueled a near-constant stream of reports that have exposed intimate details about the NSA's classified domestic and foreign surveillance programs. On Wednesday, Greenwald's newest story revealed that intelligence agencies have spied on the email communications of five high-profile Muslim-Americans who say they are not guilty of any wrongdoing. The story has already provoked an outcry from NSA critics who see the new leak as evidence of racial and ethnic profiling by intelligence analysts.

SK/A18.04) Dustin Volz, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Newly disclosed documents reveal that the National Security Agency and FBI have spied on the emails of at least five high-profile Muslim-Americans apparently guilty of no wrongdoing through a surveillance program meant for foreign terrorists. Those five citizens, identified in a new report from The Intercept, include Faisal Gill, a former adviser at the Homeland Security Department during the Bush administration; Asim Ghafoor, a lawyer; Hooshang Amirahmadi and Agha Saeed, both university professors; and Nihad Awad, the executive director of the Council on American-Islamic Relations.

SK/A18.05) STATES NEWS SERVICE, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Revelations today in The Intercept about the apparently arbitrary surveillance of several prominent American Muslims underscore the lack of safeguards to protect the rights of persons targeted by U.S. surveillance operations, Amnesty International said today. If it is true, as alleged, that the term "Mohammed Raghead" was used as a placeholder in a government document about how to make surveillance requests, there is good reason to be concerned that anti-Muslim bias tainted the process. Any surveillance conducted on the basis of religion, rather than probable cause to believe that the defendant violated the law, would constitute discriminatory interference with the right to privacy, prohibited by both the Constitution and international human rights law.

SK/A18.06) STATES NEWS SERVICE, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. While the story is not clear on this point, the government may have been granted warrants by the Foreign Intelligence Surveillance Court (FISC) to conduct surveillance of the men. The court operates almost entirely in secret, however, relying upon secret interpretations of controversial laws, and lacking sufficient protections against abuse. In particular, the court hears only one side of a request for surveillance: the government's side. In addition, the court's judges are chosen by the Chief Justice of the Supreme Court, an appointments process that damages its independence and impartiality. Amnesty International believes that these flaws greatly erode the FISC's capacity to serve as a meaningful check on executive power and its willingness to consider the right to privacy as well as the needs of legitimate law enforcement.

2. TRAINING MATERIALS INSTITUTIONALIZE ANTI-MUSLIM BIAS

SK/A18.07) Dustin Volz, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "All five vehemently deny any involvement in terrorism or espionage, and none advocates violent jihad or is known to have been implicated in any crime, despite years of intense scrutiny," The Intercept reports. "Some have even climbed the ranks of the U.S. national security and foreign policy establishments." The files, exposed by Edward Snowden and reported on by Glenn Greenwald and Murtaza Hussain, demonstrate a system of NSA surveillance under the Foreign Intelligence Surveillance Act that "affords the government wide latitude in spying on U.S. citizens," according to The Intercept. In addition, "blatant prejudice against Muslim-Americans is also documented in the Snowden archive."

SK/A18.08) Dustin Volz, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. "This report confirms the worst fears of American Muslims: The federal government has targeted Americans, even those who have served their country in the military and government, simply because of their faith or religious heritage," said Muslim Advocates, a national legal advocacy group, in a statement. "The report clearly documents how biased training by the FBI leads to biased surveillance."

3. RELIGIOUS DISCRIMINATION VIOLATES THE 14TH AMENDMENT

SK/A18.09) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 153. Surveillance, like most government programs targeted at the Muslim community, presumes Muslim and Muslim-appearing individuals are presumptively suspect terrorists. That is, no factual basis exits before the government begins surveilling the Muslim community.

SK/A18.10) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, p. 465. The grant of surveillance power to monitor individuals without suspicion of criminal or terrorist activity and the ability to collect personal information from various sources on the basis of race or ethnicity has resulted in the discrimination of domestic individuals who belong to a particular racial or ethnic group. This discrimination is generated through a disparate impact that the new government surveillance authority has on various ethnic and religious groups, specifically those that are Arab, South Asian, or practitioners of the Islamic religion.

SK/A18.11) CHURCH & STATE, September 2014, p. 15, GALE CENGAGE LEARNING, Expanded Academic ASAP. "The New York Police Department singled out Muslims for heavy handed surveillance simply because of their religious beliefs," said Barry W. Lynn, executive director of Americans United, in a statement to the media. "The assumption seemed to be that because they are Muslims, they must be up to something and are fair game to be spied upon." Added Lynn, "This type of religious profiling and assumption of guilt is simply not acceptable in a free society."

SK/A18.12) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 110. As Leti Volpp writes, "U.S. Authorities did not go around detaining white men because Timothy McVeigh, a white man, had blown up ... Oklahoma City buildings ... ." She further adds that a white person like Timothy McVeigh is seen more as an individual whereas Muslim and Muslim-appearing individuals are inextricably associated with group identity, and are consequently seen as prone to violence.

SK/A18.13) Arjun Sethi, CNN WIRE, February 26, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The Japanese relocation camps after Pearl Harbor; the blacklisting and harassment of communist sympathizers during the Cold War; the surveillance of civil rights, feminist and anti-Vietnam war activists throughout the 1960s and '70s; and more recently, stop and frisk in New York. The examples are legion. So is the disgrace. These policies once enjoyed widespread support and were considered necessary law enforcement tools. Today, they are a stain on our national consciousness. Religious surveillance of Muslim communities will one day join this tragic, shameful legacy.

SK/A18.14) STATES NEWS SERVICE, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Under international human rights law, any surveillance must be necessary and proportionate to a legitimate aim, such as countering serious crime, and be the least intrusive means of achieving that aim. Furthermore, the use of surveillance must be enshrined in law, be based on probable cause, and be subject to independent review. Surveillance must be targeted at individuals and be based on probable cause. It should not be conducted on the basis of religion, race, nationality, gender or other discriminatory factors.

4. SURVEILLANCE CHILLS RELIGIOUS FREEDOM OF EXPRESSION

SK/A18.15) Arjun Sethi, CNN WIRE, February 26, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Many Muslims in New York live under an umbrella of fear. Not because they have anything to hide, but because they want to be left alone, what Justice Louis Brandeis once called the right most valued by civilized men. They hesitate before speaking Arabic or Urdu in public, dither before attending religious services or joining aith based groups, and shy away from embracing emblems of faith, like hijabs and beards. Not even students are immune from this incessant second-guessing. Many vacillate before joining Muslim groups on campus or speaking on controversial issues like religious profiling in the classroom.

SK/A18.16) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, pp. 92-93. Just as NAACP members were viewed as inherently subversive in NAACP v. Button, the government today appears to treat Muslims as inherently violent or inherently prone to terrorism. This view leads the government to surveil or interrogate Muslim individuals without a factual basis indicating wrongdoing. Simply being Muslim creates the presumption of terrorism; this presumption can only be rebutted by Muslim individuals' and groups' acquiescence to surveillance. Put differently, the FBI, and indeed the general public, expects the Muslim community to subject itself to surveillance. Refusal to do so suggests that there is "something to hide."

SK/A18.17) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 149. Moreover, and as set out in the first section, Monteilh's infiltration of Southern California mosques had a profound chilling effect on participation in mosque-related activities. Many community members stopped attending mosques because they feared that the FBI would surveil them. Further, because of the fear of surveillance, Muslim leaders reported reduced charitable donations. One mosque experienced a thirty to fifty percent drop in charitable donations.

5. SURVEILLANCE FUELS ANTI-MUSLIM PREJUDICE & VIOLENCE

SK/A18.18) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, pp. 152-153. Ten years after 9/11, racial animosity towards Muslim and Muslim-appearing individuals continues to grow. Indeed, some might argue that racial animosity is even worse today. After 9/11, our government organized the 9/11 commission to determine what went wrong with our ability to assess threats from al-Qa'ida. In 2011, Congressman Peter King attempted to shift the burden of preventing terrorism from intelligence agencies to the Muslim community. King held a hearing on Muslim radicalization to open a debate about al-Qa'ida's influence on the Muslim community in the United States. Implicit in that purpose is the notion that potential for terrorism inheres in Islam.

6. ENTRAPMENT LEADS TO FALSE CONVICTIONS

SK/A18.19) Madiha Shahabuddin [Chapman University School of Law], CHAPMAN LAW REVIEW, Spring 2015, LexisNexis Academic, p. 595. An FBI informant - usually with a checkered past - is tasked with posing as a Muslim with "contacts" to terrorist organizations and told to approach certain targets who are often antisocial, almost "loner" types with few ties to a community - and sometimes with mental health issues - to conjure a terror plot that will lead to those individuals' prosecution and conviction. Hefty financial incentives abound for the informants, who can be paid up to $ 100,000 or more per case, with the added possibility of earning tens of thousands more if their operation results in a conviction.

SK/A18.20) Madiha Shahabuddin [Chapman University School of Law], CHAPMAN LAW REVIEW, Spring 2015, LexisNexis Academic, pp. 595-596. In addition, the FBI often uses the vulnerable immigration statuses of some Muslims (e.g., an overstayed student visa or undocumented status) to coerce or exert immense pressure upon immigrant Muslims to become informants in exchange for their immigration problems "going away." Such individuals are faced with the "choice" of either being deported, or, if they refuse, being prosecuted for terrorism crimes themselves. Even Muslim Americans with lawful status are approached by the FBI to become informants and threatened with being placed on the no-fly list and barred from commercial air travel.

SK/A18.21) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 100. Moreover, informants have an incentive to provide unreliable or even fabricated information or misinterpret comments and circumstances related to targets of surveillance, given that they often begin working for the FBI or other law enforcement agency in order to have their sentences reduced. One study found that nearly half of wrongful convictions involving the death penalty resulted from false informant testimony.

7. SURVEILLANCE DESTROYS COUNTERTERROR COOPERATION

SK/A18.22) Sarah Mimms, NATIONALJOURNAL.COM, July 9, 2014, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Rep. Keith Ellison, the first Muslim-American member of Congress, responded to a new report Wednesday that the federal government spied on five American citizens who are Muslim and have apparently committed no acts of wrongdoing, calling such actions "troubling" and "wrong." "Suspicious behavior indicating criminal behavior should be the basis for attracting law enforcement surveillance--not a person's religion. Profiling based on religion breeds distrust and resentment in communities that are potential partners in the fight against crime," the Minnesota Democrat said in a statement.

SK/A18.23) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 153. The presumption of suspicions towards Muslim and Muslim-appearing individuals is racially based. A Muslim or Muslim-appearing individual is presumptively suspicious because Islam is viewed as a national security threat, and Muslim identity is attached to the broader theme of danger to national sovereignty. This presumption creates several problems, placing a burden on the First Amendment right to associate, and devastating the Muslim community's relationship with law enforcement.

8. NCTC CAN ENGAGE IN SUSPICIONLESS SURVEILLANCE

SK/A18.24) Cindy C. Unegbu [Howard U. Law School], HOWARD LAW JOURNAL, Fall 2013, LexisNexis Academic, p. 447. The 2012 NCTC [National Counterterrorism Center] Guidelines provide the government with the ability to collect and utilize non-terrorism information on citizens for up to five years, even if the individual is not suspected of terrorism or criminal activity. Through this amendment, the NCTC can now utilize entire government databases to analyze suspicious patterns of behaviors. The databases that are made available to the NCTC range from flight records, casino-employee lists, and even the names of U.S. citizens who have volunteered to host foreign-exchange students, just to name a few.

9. FBI CAN ENGAGE IN RELIGIOUS & ETHNIC PROFILING

SK/A18.25) David Smith [Equal Justice AmeriCorps Legal Fellow], UCLA JOURNAL OF ISLAMIC AND NEAR EASTERN LAW, 2011-2012, LexisNexis Academic, p. 131. In the context of FBI intelligence gathering no legal mechanism - other than the Constitution - currently governs surveillance to prevent racial bias by agents. Today, the FBI Domestic Guidelines allow agents virtually free reign over who to surveil and when.

10. END RACIAL PROFILING ACT WON’T HURT COUNTERTERRORISM

SK/A18.26) CHURCH & STATE, September 2014, p. 15, GALE CENGAGE LEARNING, Expanded Academic ASAP. Under the program, the NYPD conducted surveillance of at least 20 mosques, as well as Muslim-owned businesses and other entities. Among them were 14 restaurants, 11 retail stores, two grade schools and two Muslim student associations. Police took video and photographs at the mosques, retail shops and schools. Undercover officers monitored conversations at these locations and sent informants to infiltrate them and monitor sermons. The department also monitored Muslim-oriented websites, listservs and internet chat rooms. All of this activity was undertaken even though there was no evidence that the individuals targeted had engaged in any illegal activity or planned to. No other religious group was subjected to similar surveillance, and the program resulted in no arrests or useful tips.