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AT: NSA overreach

Obama policy statement minimizes data abuse risks and is binding US policy

Edward Snowden's disclosures have thus far centered on two NSA programs. One is domestic - the so-called metadata program, operated pursuant to section 215 of the USA PATRIOT Act, n13 and entailing the bulk collection of call record information, including phone numbers and times of calls. n14 The other is foreign - the PRISM program, operated pursuant to section 702 of the Foreign Intelligence Surveillance Act (FISA). n15 Under section 702, the government may conduct surveillance targeting the contents of communications of non-U.S. persons reasonably believed to be located abroad when the surveillance will result in acquiring foreign intelligence information. n16 The FISC must approve any government request for surveillance under section 702, although these requests can [*2141] describe broad types of communications without identifying particular individuals. n17

Under section 702, "foreign intelligence information" that the government may acquire includes a number of grounds related to national security, such as information relating to an "actual or potential attack" or "other grave hostile acts of a foreign power or an agent of a foreign power." n18 It also includes information relating to possible sabotage n19 and clandestine foreign "intelligence activities." n20 Another prong of the definition appears to sweep more broadly, including information relating to "the conduct of the foreign affairs of the United States." n21 Despite the greater breadth of this provision, President Obama informed a domestic and global audience that U.S. intelligence agencies seek a narrow range of information centering on the national security and foreign intelligence concerns described above. n22 While the U.S. intelligence agencies acquire a substantial amount of data that does not fit under these rubrics, the president's speech confirmed that U.S. analysts do not rummage through such data randomly or for invidious purposes. n23 A scatter-shot approach of this kind would be unethical, illegal, and ineffective. Instead, NSA officials query communications using specific "identifiers" such as phone numbers and email addresses that officials reasonably believe are used by non-U.S. persons abroad to communicate foreign intelligence information. n24 The government must also have in place minimization procedures to limit the acquisition, retention, and dissemination of nonpublic information about U.S. persons. n25 The NSA deletes all irrelevant content, including content from non-U.S. persons, after five years. n26

In acknowledging the "legitimate privacy interests" of both U.S. and non-U.S. persons, President Obama affirmed the U.S. commitment to core principles in January 2014. n27 First, he narrowed the operating definition of [*2142] foreign intelligence information, limiting it to "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists." n28 In addition, he asserted that the NSA would engage in bulk collection of communications for purposes of "detecting and countering" terrorism, espionage, nuclear proliferation, threats to U.S. forces, and financial crimes, including evasion of duly enacted sanctions. n29 Addressing anticipated concerns that these limits still left the NSA with too much discretion, President Obama declared what the United States would not do. First, it would not collect communications content "for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion." n30 Second, it would disseminate and store information regarding any person based on criteria in section 2.3 of Executive Order 12,333 n31: cases involving "foreign intelligence or counterintelligence," public safety, or ascertainment of a potential intelligence source's credibility. n32

Of course, President Obama's speech did not quell the complaints of NSA critics. One could argue that even the description the president provided has legal flaws under domestic and/or international law. One can also argue that the president's policy directive, statutory provisions, and case law cannot wholly eliminate the possibility of systemic or individual abuse of NSA authority. That said, there are compelling reasons for treating the president's speech and directive as an authoritative and binding statement of U.S. policy. The most compelling reason may be the simplest: no American president has ever been so forthright on the subject of intelligence collection, and few heads of state around the globe have ventured down the path that President Obama chose. n33 That alone counsels treating President Obama's guidance as more than "cheap talk."

Existing oversight checks NSA overreach

Cordero, 14 - Carrie F. Cordero is the Director of National Security Studies at Georgetown University Law Center (“Fear vs. Facts: Exploring the Rules the NSA Operates Under” 6/13,
There is no doubt the Snowden disclosures have launched a debate that raises significant issues regarding the extent of U.S. government national security surveillance authorities and activities. And Julian Sanchez’s essay Snowden: Year One raises a number of these issues, including whether the surveillance is too broad, with too few limits and too little oversight. But an overarching theme of Sanchez’s essay is fear – and fear of what might be overshadows what actually is, or is even likely. Indeed, he suggests that by just “tweaking a few lines of code” the NSA’s significant capabilities could be misdirected from targeting valid counterterrorism suspects to Americans involved in the Tea Party or Occupy movements.

So really, what would it take to turn NSA’s capabilities inward, to the dark corner of monitoring political activity and dissent? It turns out, quite a lot. So much, in fact, that after a considered review of the checks and balances in place, it may turn out to be not worth fearing much at all.

First, a little history. Prior to 1978, NSA conducted surveillance activities for foreign intelligence purposes under Executive authority alone. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which distinguished between surveillance that occurred here at home and that which occurred overseas. FISA requires that when electronic surveillance is conducted inside the United States, the government seek an order from the Foreign Intelligence Surveillance Court (FISC or the Court) based on probable cause. So, if the government wants to conduct surveillance targeting a foreign agent or foreign power here in the United States, it must obtain FISC approval to do so. By law, the Court may not issue an order targeting an American based solely on activities protected by the First Amendment to the Constitution. The Attorney General is required to report on the full range of activities that take place under FISA to four congressional committees: both the intelligence and judiciary committees in Congress. The law requires that the committees be “fully informed” twice each year.

There have been a number of amendments to FISA over the years. In 1994, the statute was amended to require that physical searches for national security purposes conducted inside the United States also happen by an order from the FISC. The USA-PATRIOT Act of 2001 amended several provisions of FISA, one of which enabled better sharing of information between terrorism and criminal investigators. And in 2008, FISA was amended to provide a statutory framework for certain approvals by the Attorney General, Director of National Intelligence, and FISC regarding the targeting of non-U.S. persons reasonably believed to be outside the United States for foreign intelligence purposes, when the cooperation of a U.S. communications service provider is needed.

So how do we know that this system of approvals is followed? Is the oversight over NSA’s activities meaningful, or “decorative,” as Sanchez suggests?

It is worth exploring. Here is how oversight of the Section 702 surveillance works, as one example, since it has been the subject of a significant part of the debate of the past year. Section 702 was added to FISA by the FISA Amendments Act of 2008. It authorizes the NSA to acquire the communications, for foreign intelligence purposes, of non-U.S. persons reasonably believed to be outside the United States. These are persons with no Constitutional protections, and yet, because the acquisition requires the assistance of a U.S. electronic communications provider, there is an extensive approval and oversight process. There is a statutory framework. Specifically, the Attorney General and Director of National Intelligence jointly approve certifications. According to declassified documents, the certifications are topical, meaning, the way the statute is being implemented, the certifications are not so specific that they identify individual targets; but they are not so broad that they cover any and everything that might be foreign intelligence information. The certifications are filed with the FISC, along with targeting and minimization procedures. Targeting procedures are the rules by which NSA selects valid foreign intelligence targets for collection. Minimization procedures are rules by which NSA handles information concerning U.S. persons. The FISC has to approve these procedures. If it does not approve them, the government has to fix them. The Court reviews these procedures and processes annually. The Court can request a hearing with government witnesses (like senior intelligence officials, even the NSA Director, if the judge wanted or needed to hear from him personally) or additional information in order to aid in its decisionmaking process. Information about the 702 certifications is reported to the Congressional intelligence committees.

Once the certifications are in effect, attorneys from the Department of Justice’s (DOJ) National Security Division and attorneys and civil liberties officials from the Office of the Director of National Intelligence (ODNI) review the NSA’s targeting decisions and compliance with the rules. They conduct reviews at least every 90 days. During that 90-day period, oversight personnel are in contact with NSA operational and compliance personnel. Compliance incidents can be discovered in one of at least two ways: the NSA can self-report them, which it does; or the DOJ and ODNI oversight personnel may discover them on their own. Sometimes the NSA does not report a compliance incident in the required timeframe. Then the time lag in reporting may become an additional compliance incident. The DOJ and ODNI compliance teams write up semi-annual reports describing the results of their reviews. The reports are approved by the Attorney General and Director of National Intelligence and provided to the FISC and to Congress. According to the one report that has been declassified so far, in August 2013, for a six-month period in 2012, the rate of error for the NSA’s compliance under Section 702 collection was .49% - less than half of one percent. If we subtract the compliance incidents that were actually delays in reporting, then the noncompliance rate falls to between .15-.25% - less than one quarter of one percent. Hardly an agency run amok.

--xt – squo solves

Squo Congressional oversight prevents abuse and oversight reform is better than scaling back

Cordero, 14 - Carrie F. Cordero is the Director of National Security Studies at Georgetown University Law Center (“Fear vs. Facts: Exploring the Rules the NSA Operates Under” 6/13,
Generally, however, Congressional committees charged with oversight of the Intelligence Community do their job. The Intelligence Committees of Congress have professional staff, often with deep experience in national security matters. The Committees conduct substantive hearings, although, due to the sensitive and operational nature of the topics discussed, often in classified session. Congressional staff also receive briefings. During the debate surrounding the passage of the FISA Amendments Act of 2008, many members of Congress and their staffs visited the NSA and received dozens of briefings regarding its details and subsequent implementation.

Decorative? Returning to the question implicitly posed by Sanchez’s argument: what would it take to turn this system inside out? Most likely, it would take either a conspiracy of the highest order, or the complete incompetence of everyone involved in the processfrom operators to leadership inside the Intelligence Community, from lawyers to senior officials at the Justice Department, from legal advisors to judges of the FISC, from staff to members of Congress.

Here’s what happens in the real world: people make mistakes; technological implementation goes awry; bureaucracy gets in the way of getting down to the bottom line. The adequacy and rigor of Congressional oversight waxes and wanes based, at times, on the quality of the leadership of the various committees at any time. Government employees also sometimes do the wrong thing, such as the twelve cases in ten years that the NSA has explained to Congress, and then they are held accountable. Oversight and compliance systems sometimes fail, too, such as the delay in recognizing the problems in the technical implementation of the phone metadata program that was subsequently brought to the Court’s attention. These are all valid reasons to work on improving auditing, compliance, oversight and accountability mechanisms. They are not valid reasons for adopting reforms that would dramatically scale back important national security capabilities that keep the nation safe.

The NSA already implemented technical reforms to PRISM that prevent overreach

Sales, 14 - Associate Professor of Law, Syracuse University College of Law (Nathan, I/S: A Journal of Law and Policy for the Information Society, “Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy” 10 ISJLP 523, Summer, lexis)
The second program--known as PRISM or section 702--uses court orders issued under section 702 of FISA n18 to collect the content of certain international communications. In particular, the NSA targets specific non-Americans who are reasonably believed to be located outside the country, and also engages in bulk collection of some foreign-to-foreign communications that happen to be passing through telecommunications infrastructure in the United States. n19 The FISA [*527] court does not approve individual surveillance applications each time the NSA wishes to intercept these communications; instead, it issues once-a-year blanket authorizations. n20 As detailed below, in 2011 the FISA court struck down the program on constitutional and statutory grounds after the government disclosed that it was inadvertently intercepting a significant number of communications involving Americans; n21 the court later upheld the program when the NSA devised a technical solution that prevented such over-collection. n22

Zero incentive exists to expand PRISM – practicality prevents abuse

Lempert, 13 - Richard O. Lempert is a Visiting Fellow in Governance Studies at the Brookings Foundation and the University of Michigan’s Eric Stein Distinguished University Professor of Law and Sociology emeritus (“PRISM and Boundless Informant: Is NSA Surveillance a Threat?” 6/13,
The protection most of us enjoy under PRISM may be more practical than legal. The amount of data that can be collected limits the reach of the program. Not only is capturing too much information from innocent Americans a waste of resources, but also suspicious communications can be lost in a forest of irrelevant data. The NSA thus has powerful reasons to limit impermissible observations, at least where there is no good reason to suspect Americans of terrorist involvements. Still we lack two bits of information important in assessing this program. One is the fate of information pertaining to Americans who should not have been observed in the first place. If this information is purged from all databases except perhaps when the person is dangerous, erroneous capture is less of a concern than it otherwise would be. Second, we don’t know how monitoring targets are determined or the number of targets selected. To the extent that individuals, organizations and sites are targeted based on target-specific concerns about the threats they pose, the net cast is likely to be narrow, and even if the reasons for targeting do not rise to the level of legally cognizable probable cause, they tend in this direction. But if targets are selected based on the impersonal outputs of other data mining efforts like the telephone records that feed Boundless Informant, all bets are off. Depending on the algorithms used and the degree to which they have been empirically validated, the net could be wide or narrow, and the likelihood that a target would be involved in terrorism or that citizens would be swept into the net may be great or small. Congress in overseeing PRISM should demand this information if it is not already provided.

It is easy to be cynical about government and the respect that agencies show for the laws under which they operate. Cynicism is fed by occasional scandals and by the more frequent pseudo-scandals which make it appear that within the Beltway things are out of control. Having spent four years as a Division Director at the National Science Foundation and three years as Chief Scientist in the Human Factors/ Behavioral Science Division of DHS’s Science and Technology Directorate, I am not cynical. Time and again I have seen government employees seek to follow the law even when it seems silly and interferes with their mission. When I joined DHS I was most surprised by the fierceness of efforts to comply with the U.S. Privacy Act. At times interpretations of what the Act protected were so broad as to border on the ridiculous, and costs were real: research projects with national security implications were delayed, redesigned or even precluded because privacy officers, sometimes with little basis in the statute, felt there was a risk that personally identifiable information (PII) would be impermissibly collected. The absence of any reason to fear revelation or misuse made no difference. The strict scrutiny applied to research that might involve PII is, to be sure, relaxed in front line operational settings like PRISM and legal restrictions may differ, but my experience in two agencies as well as conversations with people in the intelligence community (IC) lead me to believe that it is a mistake to regard as a sham the legal restrictions on PRISM or other IC data mining and surveillance activities.

Through its PRISM and Boundless Informant efforts, NSA is working to protect the nation, apparently with some success. The 99.9% of us who pose no threat of terrorism and do not inadvertently consort with possible terrorists should not worry that the government will track our phone or internet exchanges or that our privacy will be otherwise infringed.

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