Neg - Open Evidence Project

March 27, 2018 | Author: Anonymous | Category: Social Science, Political Science, Government
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1NC – Topicality Domestic Surveillance 1. Interpretation - Domestic surveillance is surveillance that physically takes place on the surveilling state’s territory, which is distinct from foreign surveillance which is in surveillance across state borders and surveillance entirely overseas. Deeks, 2015 Ashley. Associate Professor, University of Virginia Law School. "An International Legal Framework for Surveillance." Virginia Journal of International Law 55 (2015): 2014-53. As a result, this Article is focused on the category of spying that consists of foreign surveillance. “Foreign

surveillance” here refers to the clandestine surveillance by one state during peacetime of the communications of another state’s officials or citizens (who are located outside the surveilling state’s territory) using electronic means, including cybermonitoring, telecommunications monitoring, satellites, or drones. Foreign surveillance is comprised of two types of surveillance: “transnational surveillance” and “extraterritorial surveillance.”13 Transnational surveillance refers to the surveillance of communications that cross state borders, including those that begin and end overseas but incidentally pass through the collecting state. Extraterritorial surveillance refers to the surveillance of communications that take place entirely overseas. For example, if Australia intercepted a phone call between two French nationals that was routed through a German cell tower, this would be extraterritorial surveillance. In contrast, surveillance that takes place on the surveilling state’s territory (“domestic surveillance”) against either that state’s nationals or any other individual physically present in that state generally would be regulated by the ICCPR, as discussed below.14 This Article focuses predominately on transnational and extraterritorial surveillance, arguing that states should close the gap between the ways in which they regulate the two.

2. Violation – The NSA collection of internet traffic under 702 is foreign surveillance the communications of at least one party are outside the US. Simcox 2015 Robin Simcox is a Research Fellow at The Henry Jackson Society “Surveillance After Snowden Effective Espionage in an Age of Transparency” 5/26/2015 Henry Jackson Society Foreign Intelligence Surveillance Act Section 702 Section 702 of the Foreign Intelligence Surveillance Act (FISA) governs the interception of communications – for the specific purpose of acquiring foreign intelligence information – of those based outside the US. It is widely considered to be more integral to the NSA’s work than that of Section 215.

B. The Affirmative interpretation is bad for debate Limits are necessary for negative preparation and clash, and their interpretation makes the topic too big. They make the domestic limit meaningless. All surveillance becomes topical by their standards. C. T is a Voting Issue because the opportunity to prepare promotes better debating

1NC - Embassies not Domestic Surprise surprise, foreign embassies is considered foreign territory with foreign ambassadors who are not US citizens US Diplomacy Center at US Department of State NDG (>V. ORIGINALLY , an embassy referred to an ambassador and staff who were sent to represent and advance the interests of their country with another country’s government, Today, an embassy is the nerve center for a country's diplomatic affairs within the borders of another nation, serving as the headquarters of the chief of mission, staff and other agencies. An embassy is usually located in the capital city of a foreign nation; there may also be consulates located in provincial or regional cities. U.S. embassies and consulates abroad, as well as foreign embassies and consulates in the United States, have a special status. While

diplomatic spaces remain the territory of the host state, an embassy or consulate represents a sovereign state. International rules do not allow representatives of the host country to enter an embassy without permission --even to put out a fire -- and designate an attack on an embassy as an attack on the country it represents. Within the embassy, the ambassador is supported by a deputy chief of mission, Foreign Service Officers and Specialists who perform the full range of mission activities, and representatives of many other U.S. agencies, such as USAID and the Departments of Defense, Commerce, Justice and Agriculture among others. The staffs of all of these agencies report to the ambassador. Consulates, headed by a Consul General who reports to the Ambassador, carry out many of the same functions in provincial or regional capitals that the embassies do in national capitals. Besides the more obvious functions of issuing visas and assisting American citizens abroad, Embassy and consulate staff interact with host governments, local business and nongovernmental organizations, the media and educational institutions, and private citizens to create positive responses to U.S. policy and the U.S. in general. Mission staff report on political and economic issues that affect bilateral relations and possibly impact the U.S. directly, help U.S. businesses to find partners and customers, and sponsor American scientists, scholars, and artists to promote professional, educational and cultural exchanges. Since American officers normally are only assigned to a foreign country for a few years, it is necessary to hire citizens from the host country to fill jobs at both embassies and consulates.

These foreign employees are essential to the success of an embassy’s mission, both for their professional skills and for the institutional memory they provide for new officers. They used to be known as Foreign Service Nationals, but are now officially called Locally Employed Staff and may include U.S. citizens who are long-time residents of the country.

2NC Cards Domestic Clear definition of domestic surveillance is critical to good policy making. Yoo and Sulmasy 2007, Yoo, John, Judge Advocate and Associate Professor of Law, United States Coast Guard Academy. Sulmasy, Glenn, Professor of Law, Boalt Hall School of Law, University of California–Berkeley; visiting scholar, American Enterprise Institute Counterintuitive: Intelligence Operations and International Law. Michigan Journal of International Law, Vol. 28, 2007; UC Berkeley Public Law Research Paper No. 1030763. Available at SSRN: Domestically, so many components and issues comprise “intelligence” that it remains difficult to pin down a specific definition.22 Mark Lowenthal, an expert in intelligence gathering, has noted that “[v]irtually every book written on the subject of intelligence begins with a discussion of what the author believes ‘intelligence’ to mean, or at least how the he or she intends to use the term. This editorial fact tells us much about the field of intelligence.”23 Even those who have spent years in the field find the term vague.24 Any international convention on the peacetime conduct of intelligence collection would prove unsuccessful at the very least because of difficulties in defining exactly what it would seek to regulate. Defining intelligence and intelligence gathering often derives from such vague subject terms as counterintelligence, business intelligence, foreign intelligence, espionage, maritime intelligence, spacerelated intelligence, signals intelligence, and human intelligence. These subject terms themselves then need an established universal definition and further simplification in order to reduce the ambiguity associated with attempts to regulate the practice. Currently, the United States defines intelligence as a body of evidence and the conclusions drawn from it. It is often derived from information that is concealed or not intended to be available for use by the inquirer.”25 This vague and overly broad definitional statement reveals the problems with actually articulating what intelligence is and what it is not. Without a clear definition of the term (from the United States or any other state for that matter), we should not expect regulation of intelligence activities at the international level.

Foreign & Domestic Intelligence are different. Michael German and Dr. John Elliff 14, Dr. John Elliff was the domestic intelligence task force leader for the Church Committee. He later held postitions in the Central Intelligence Agency, the Defense Department, and the Federal Bureau of Investigation, and served on the staff of the Senate Intelligence and Judiciary Committees. Michael German is a fellow with the Brennan Center for Justice’s Liberty and National Security Program, Prior to joining the Brennan Center, Mr. German served as the policy counsel for national security and privacy for the American Civil Liberties Union Washington Legislative Office. A sixteen-year veteran of federal law enforcement, Mr. German served as a special agent with the Federal Bureau of Investigation, where he specialized in domestic terrorism and covert operations. As an undercover agent, German twice infiltrated extremist groups using constitutionally sound law enforcement techniques. 12-11-2014, "Military, Foreign, and Domestic Intelligence Are Not the Same," Brennan Center for Justice, Dr. Elliff’s distinction between military, foreign and domestic intelligence activities is crucial, but often overlooked. Though they share a last name, military, foreign and domestic intelligence should be treated as three completely different disciplines, with different goals, rules, and toolboxes.

The propriety of a particular intelligence method will vary significantly depending on whether we’re trying to obtain a hostile nation’s nuclear attack plans, a foreign trade representative’s negotiation strategy, or an American politician’s financial records. Investigating the pornography habits or sexual proclivities of a North Korean general to blackmail him into committing espionage might be justifiable. Doing the same thing to foreign religious figures, or innocent Americans is repugnant, if not illegal. Employing tools developed for use against foreign enemies against people who do not pose a national security threat is unnecessarily antagonistic and provocative. Elliff’s ranking of the different disciplines is helpful. Military intelligence, the preparation for war or defense from attack, is most necessary and important. Clandestine intelligence gathering to assist in the development of foreign policy is also needed, but he acknowledges that policy makers have access to other useful information sources, such as newspapers, academic studies, and reports from interest groups, from which to make decisions. Domestic intelligence collection, he argues, is necessary but only legitimate when it is focused on uncovering criminal activities. Elliff warns that the power of military intelligence tools makes them difficult to control through oversight by courts, legislatures, or even agency executives: [VIDEO] Yet aggressive surveillance tools and spying techniques developed for use by the military often end up getting used for more mundane “intelligence” purposes, a dangerous mission creep where the risk outweighs any potential reward. The NSA wiretapping of German Chancellor Angela Merkel’s cellphone was an embarrassing overreach that demonstrated our intelligence officials’ failure to consider the potential long-term consequences of their actions. Just because they can doesn’t mean they should. The broad scope of U.S. mass surveillance programs have likewise caused political, diplomatic, and legal conflicts with our allies, and inflicted serious economic damage on American commercial interests.

FBI is domestic, NSA is foreign. Jacob R. Lilly 2013 JD Cornell, 2003 “National Security at What Price? A Look into Civil Liberty Concerns in the Information Age under the USA Patriot Act” in Information Ethics : Privacy, Property, and Power edited by Adam D. Moore, 2013. ProQuest ebrary. E. Basic Elements of Electronic Surveillance in the United States

In the U.S. legal system, four basic methods of electronic surveillance exist. 73 These methods are (1) warrants authorizing the interception of communications, (2) search warrants authorizing the search of physical premises, (3) trap‐and‐trace devices 74 and pen‐traps, 75 and (4) subpoenas requiring the production of tangible records, such as printed e-mails or telephone logs. 76 When the surveillance is conducted for domestic reasons, these require a sliding scale of proof in order to be activated. 77 Interception orders and search warrants must meet the Fourth Amendment’s probable cause standard. 78 Court orders for certain documents, such as ISP 79 e‐mail logs, require a lower standard. The government merely has to show reasonable grounds for believing that the information being sought is relevant and material. 80 Pen‐trap surveillance uses an even lower standard in requiring only a sworn government declaration as to the relevance of the information being sought. 81 Each

of these standards applies only when the surveillance conducted is of a domestic nature. 82 Domestic surveillance within the United States and abroad is carried out by a variety of federal agencies. The Federal Bureau of Investigation (FBI) is the primary federal agency responsible for domestic activities, 83 with the National Security Agency (NSA) 84 and the Central Intelligence Agency (CIA) 85 forbidden by U.S. law from monitoring domestic activities and able only to operate outside the United States. 86 All three agencies are responsible for overseas surveillance, assisted by the Departments of State, Treasury, and Justice. 87

NSA = Foreign Rajesh De, General Counsel, National Security Agency, 10-16-2014, "The NSA and Accountability in an Era of Big Data," Journal Of National Security Law & Policy, As noted earlier, NSA is a foreign intelligence agency. Executive Order 12333 defines foreign intelligence as "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists." This language largely mirrors that which Congress adopted in the National Security Act of 1947. FISA contains a more intricate definition of foreign intelligence information for the specific purposes of that statutory scheme, but all support the same overall conclusion - NSA's mission is neither open-ended, nor is it discretionary. NSA may only collect signals intelligence for a foreign purpose.

1NC Search isn’t Surveillance 1. Interpretation – Surveillance is to closely watch a person, place or thing for the purpose of investigation and is distinct from a Search which intrudes on an expectation of privacy. Hutchins, 2007, Mark, Alameda County District Attorney's Office “Police Surveillance” Before we begin, a word about terminology. As used in this article,

the term “surveillance” means to “closely watch” a person, place, or thing for the purpose of obtaining information in a criminal investigation.5 It also includes recording the things that officers see or hear, and gaining access to public and private places from which they can make their observations. It does not include wiretapping and bugging which, because of their highly-intrusive nature, are subject to more restrictive rules.6 THE TEST: “Plausible vantage point” Surveillance becomes

a “search”—which requires a warrant—if it reveals sights or sounds that the suspect reasonably believed would be private.7 As the court explained in People v. Arno, “[T]he test of validity of the surveillance [turns upon] whether that which is perceived or heard is that which is conducted with a reasonable expectation of privacy.”8 Thus, a warrant is unnecessary if the suspect knew, or should have known, there was a reasonable possibility that officers or others might have seen or heard him.9 In the words of the Supreme Court, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”10

2. Violation - Prison body cavity searches are not surveillance. Anthony Kennedy, Supreme Court Justice 2012, Anthony, Opinion of the Majority, 4/2/12, The Court’s opinion in Bell v. Wolfish, 441 U. S. 520 (1979) , is the starting point for understanding how this framework applies to Fourth Amendment challenges. That case addressed a rule requiring pretrial detainees in any correctional facility run by the Federal Bureau of Prisons “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” Id., at 558. Inmates at the federal Metropolitan Correctional Center in New York City argued there was no security justification for these searches. Officers searched guests before they entered the visiting room, and the inmates were under constant surveillance during the visit. Id., at 577–578 (Marshall, J., dissenting). There had been but one instance in which an inmate attempted to sneak contraband back into the facility. See id., at 559 (majority opinion). The Court nonetheless upheld the search policy. It deferred to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside. Id., at 558.

The Court explained that there is no mechanical way to determine whether intrusions on an inmate’s privacy are reasonable. Id., at 559. The need for a particular search must be balanced against the resulting invasion of personal rights. Ibid.

Prefer our interpretation A. Brightline – our interepretation creates a clear and precise limit on the types of affirmatives that are topical, their interpretation opens up to anything the government does that might be icky.

B. Limits are necessary for negative preparation and clash, and their interpretation makes the topic too big. Including searches adds an entirely different legal regime with different laws, judicial standards, and other issues for THOUSANDS of different crimes. Topicality is a Voting Issue.

1NC – T Surveillance v. Backdoors 1. Interpretation – Surveillance is systematic and routine attention to personal details for the purpose or influence or detention. Richards, 2013 Neil M. Professor of Law, Washington University. "The Dangers of Surveillance" Harv. L. Rev. 126 1934 What, then, is surveillance? Scholars working throughout the English-speaking academy have produced a thick descriptive literature examining the nature, causes, and implications of the age of surveillance.6 Working under the umbrella term of “surveillance studies,” these scholars represent both the social sciences and humanities, with sociologists making many of the most significant contributions.7 Reviewing the vast surveillance studies literature, Professor David Lyon concludes that surveillance is primarily about power, but it is also about personhood.8 Lyon offers a definition of surveillance as “the

focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction.”9 Four aspects of this definition are noteworthy, as they expand our understanding of what surveillance is and what its purposes are. First, it is focused on learning information about individuals. Second, surveillance is systematic; it is intentional rather than random or arbitrary. Third, surveillance is routine — a part of the ordinary administrative apparatus that characterizes modern societies.10 Fourth, surveillance can have a wide variety of purposes — rarely totalitarian domination, but more typically subtler forms of influence or control.11

2. Violation – Backdoors are not surveillance because there is no observation of personal information. David Omand 15, 3-19-2015, visiting professor at King’s College London. "Understanding Digital Intelligence and the Norms That Might Govern It," Global Commission On Internet Governance Paper Series: no. 8 — March 2015 , The second issue concerns how an invasion of privacy of digital communications is defined. Is it when the computer of an intercepting agency accesses the relevant packets of data along with the rest of the streams of digital information on a fibre optic cable or other bearer? Or is it when a sentient being, the intelligence analyst, can actually see the resulting information about the communication of the target? Perhaps the most damaging loss of trust from the Snowden allegations has come from the common but unwarranted assumption that access in bulk to large volumes of digital communications (the “haystack”) in order to find the communications of intelligence targets (the wanted “needles”) is evidence of mass surveillance of the population, which it is not.

The distinction is between authorizing a computer to search through bulk data on the basis of some discriminating algorithm to pull out sought-for communications (and discard the rest) and authorizing an analyst to examine the final product of the material thus filtered and selected. It is the latter step that governs the extent of, and justification for, the intrusion into personal privacy. The computer filtering is, with the right discriminator, capable (in theory, of course, not in actual practice) of selecting out any sought for communication. But that does not mean the population is under mass surveillance.47 Provided the

discriminator and selection program chosen and used by the accessing computer only selects for human examination the material that a warrant has authorized, and the warrant is legally justified, then the citizens’ privacy rights are respected. Of course, if the selectors were set far too broadly and trawled in too much for sentient examination, then the exercise would fail to be proportionate (and would be unlawful, therefore, in most jurisdictions).

3. Prefer our interpretation A. Limits are necessary for negative preparation and clash, and their interpretation makes the topic too big. B. Including data gathering as surveillance makes the topic unmanageable and undebateable for the negative.

4. Topicality is a voting issue.

1NC - T-its(short shell) A.Interpretation: “Its” implies possession Corpus Juris Secundum, 1981 (Volume 48A, p. 247), jono yo Its. The possessive case of the neuter pronoun “it.” Also, as an adjective, meaning of or belonging to it. Sometimes referred to as the possessive word, but it does not necessarily imply ownership in fee, but may indicate merely a right to use.

B.Violation: the plan does not decrease surveillance of the usfg, the surveillance belongs to private companies. C. the affirmative interpretation is bad for debate Limits are key to negative preparation and clash. T IS A VOTER because the opportunity to prepare promotes better debating

1NC Plan Flaw 1. Violation- The plan uses I-T-apostrophe-S not I-T-S 2. It’s means – it is; Its is possessive. Oxford dictionaries, no date “‘Its’ versus ‘it’s’?” The word it’s is always short for ‘it is’ (as in it's raining), or in informal speech, for ‘it has’ (as in it's got six legs). The word its means ‘belonging to it’ (as in hold its head still while I jump on its back). It is a possessive pronoun like his.

3. Void for Vagueness – Errors in the law would be struck down by the Court. Justia, no date “Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine” Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.—Criminal statutes which lack sufficient definiteness or specificity are commonly held "void for vagueness."983 Such legislation "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused."984 'Men of common intelligence cannot be required to guess at the meaning of [an] enactment.'985

4. This means the plans isn’t topical because it doesn’t curtail Usfg surveillance.

2NC – Plan Flaw Typos in the law mean zero solvency – a transportation bill that required people to be locked in boxes, proves. Congress would have to pass an entirely new law to fix it. Pergram, 09, "Typo in Law Establishes Mandate to Lock Gun-Toting Train Passengers in Boxes", Fox News, 12-172009, It may sound absurd. But President Obama signed a bill into law Wednesday that requires passengers who carry firearms aboard Amtrak be locked in boxes for their journey. It's a mistake in the law's wording. But for now, the clerical error is the law of the land. Earlier this week, Congress sent the president a massive spending bill that funded dozens of federal departments. Tucked into the transportation section of the legislation are safety requirements for Amtrak customers who carry firearms on board the government-backed train system. The bill Congress passed mandates that passengers with firearms declare they have weapons with them in advance and stow them in locked boxes while on the train. The bill text was correct when the House approved the legislation last week. The Senate followed suit Sunday, but somewhere along the line, the

language that referred to putting the guns in locked boxes morphed into stuffing "passengers" into locked boxes. Aides to House Speaker Nancy Pelosi, D-Calif., became aware of the problem Wednesday night as the House voted on its final slate of bills for the year. Pelosi's staff tried to negotiate with Republican aides to see if they would agree to change the text of the bill without revoting the entire piece of legislation. But it was all for naught as Obama had already signed the measure into law. It's clear the typo alters the legislation's mandate. But no one quite knows the origin of the mistake. Senior Congressional sources familiar with the error suggested the problem may have been introduced in the "enrolling" process of bills. Once both the House and Senate approve the final version of a bill, the text of the legislation is sent to an "enrolling clerk" who actually copies the bill onto parchment paper. The parchment version of the package is then sent to the White House for the president to sign into law. Another theory is that the mistake could be something as simple as a printing error. The House and Senate run multiple versions of bills before they send the final copy to the White House to become law. Another possibility is that Congress sent President Obama the wrong, non-proofed version of the bill to sign. The misfire is fixable. But probably not until early next year. The House late Wednesday completed what it expects to be its final session of the year. The Senate remains in session debating health care reform. But both

the House and Senate would have to agree to a technical correction of the text that missed its mark.

ASPEC A. Violation – The Affirmative plan text does not specify an agent beyond the United States federal government. The United States Federal Government consists of 3 branches: “The Executive, Legislative, or Judicial Branches” Dictionary of Politics, ‘73

B. Voting Issue – 1. Aff Conditionality – vagueness allows the aff to manipulate plan implementation to avoid Disads and Counterplans. This is uniquely abusive because in order for us to be able to debate the plan must stay stable throughout the round. 2. Policy Analysis – No policy is ever proposed without explicit reference to the mechanism of implementation. Refusing to engage in this discussion guts any educational policy analysis because you have no idea what the policy will actually look like if you vote Aff. 3. Evaluate competing interpretations of how debate should be – it’s not what you do but what you justify. 4. Plan text focus comes first – any disclaimers or enforcement clarifications are illegit because it allows infinite clarification. Plan text is all we get for pre-round prep. 5. Specification accounts for 90% of solvency. Elmore, Prof of Public Affairs, Univ. of Washington, 1980 (Political Science Quarterly, 79-80, pg. 605) The emergence of implementation as a subject for policy analysis coincides closely with the discovery by policy analysts that decisions are not self-executing. Analysis of policy choices matters very little if the mechanism for implementing those choices is poorly understood. In answering the question, “What percentage of the work of achieving a desired governmental action is done when the preferred analytic alternative has been identified?” Allison estimated that, in the normal case, it was about 10 percent, leaving the remaining 90 percent in the realm of implementation.


2AC – T Domestic 1. We meet – the NSA collects domestic internet traffic. Geiger, 2014, Harley Geiger is Advocacy Director and Senior Counsel at the Center for Democracy & Technology, 3-142014, "Four Key Reforms for NSA Surveillance," Center for Democracy & Technology, The government can obtain the content of communications of people outside the U.S. – such as email messages or phone conversations – under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The government is explicitly prohibited from using Section 702 to target anyone in the U.S., or U.S. citizens or lawful residents, for surveillance. However, the NSA is using it to collect vast amounts of Internet traffic – 250 million Internet communications per year according to a 2011 court estimate. Many Americans’ communications are inadvertently and incidentally swept up in that surveillance, though technically the Americans are not targeted. Once the NSA has collected communications content, the NSA can then search this pool of data for communications of U.S. persons without court approval and share this information with law enforcement. This “backdoor search loophole” should be closed by clarifying Section 702 to bar the government from searching for U.S. persons’ information without a court order authorizing the search.

2. Counter-interpretation – Domestic is related to a particular country Random House 15 Random House Dictionary, © Random House, Inc. 2015. Unabridged Domestic [duh-mes-tik] adjective ¶ 1. of or relating to the home, the household, household affairs, or the family: ¶ domestic pleasures.¶ 2. devoted to home life or household affairs. ¶ 3. no longer wild; tame; domesticated : ¶ domestic animals.¶ 4. of or relating to one's own or a particular country as apart from other countries: ¶ domestic trade.¶ 5. indigenous to or produced or made within one's own country; not foreign; native: ¶ domestic goods.

3. Reasons to prefer: A. Education—our interpretation allows for in-depth discussions concerning the functioning of our legal systems and society B. Limits: the neg overlimits—their definition precludes core affs, like CIA surveillance and border surveillance. 4. Reasonability is the best framework for evaluating Topicality, it checks a race to the bottom.

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