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No matter what Obama does to reform surveillance it will cause fights in congress- he can’t please every one


Liebelson, 2014 Danna. "Obama's NSA Reforms Are Going to Tick Off Everyone." Mother Jones. Mother Jones and the Foundation for National Progress., 16 Jan. 2014. Web. 5 July 2015.

On Friday, President Barack Obama is expected to unveil changes to the National Security Agency's sweeping surveillance programs. The announcement comes weeks after a post-Snowden advisory panel appointed by the president issued a whopping 300-plus pages of pro-transparency recommendations that, if taken up, would radically alter how the NSA does business. But according to early reports, Obama will only be implementing small reforms. He will punt the bigger decisions to Congress—with the hope of partially appeasing lawmakers, voters, privacy advocates, and the national security community. From the looks of it, pretty much everyone is going to be mad at him. If Obama Lets the NSA Continue Sweeping Up Vast Information on Americans' Phone Calls… Who gets mad? Sixty percent of America, privacy advocates, FreedomWorks; some members of Congress Right now, the NSA collects Americans' phone metadata in bulk. (Metadata, which includes call dates and phone numbers, is revealing, but it doesn't include the contents of the actual conversations.) For privacy advocates, ceasing the practice is a top priority. "Ending bulk collection is essential to effective reform," says Greg Nojeim, senior counsel at the Center for Democracy & Technology​ Center. "I can't imagine anyone who's concerned about these programs is going to be satisfied by a bunch of cosmetic tweaks that leave bulk collection in place," adds Julian Sanchez, a research fellow at the libertarian Cato Institute. The conservative activist group FreedomWorks will also be mad if Obama doesn't repeal bulk surveillance. "The NSA's unconstitutional surveillance must be stopped to safeguard our civil liberties," the group writes. Julie Borowski, policy analyst for FreedomWorks, said in a press call on Thursday that the group supports the USA Freedom Act, which would end bulk collection of phone data. Obama's advisory panel recommended the government accede to privacy activists' demands and terminate the NSA's expansive collection and storage of phone metadata. The panel proposed that a party other than the government, such as a phone company, hold on to Americans' phone records, and it suggested that the NSA should have to seek a court order to access that data. (The NSA currently doesn't need a judge's permission each time it dips into this data.) But civil liberties advocates should prepare to be disappointed. The New York Times reported that Obama will not end this bulk collection of phone metadata. Nor is Obama likely to accept the panel's recommendation that phone companies become the guardians of this trove of data. It appears he will leave the big decisions regarding phone metadata to a polarized Congress, which is currently fighting over two bills. One introduced by Sen. Patrick Leahy (D-Vt.) and Rep. James Sensenbrenner Jr. (R-Wis.) would end bulk collection, and another, from Sen. Dianne Feinstein (D-Calif.), would codify the practice. If Obama Imposes Modest Limits on the NSA's Telephone Metadata Collection Program… Who gets mad? The NSA, Feinstein, and other members of Congress The NSA will be happy if, as expected, Obama okays its continued collection of bulk phone metadata. However, he may well make some modest changes to this program, according to the New York Times, such as cutting back the number of people whose phone records the NSA can look at and limiting the time the NSA can hold on to the records. Even such slight reforms will upset folks in the intelligence community. According to the Times, "Some [intelligence] officials complained that [Obama's] changes will add layers of cumbersome procedure that will hinder the hunt for potential terrorists." Some members of Congress also oppose modest limits to the NSA's collection powers. If Obama Allows the NSA to Continue Hacking Internet Encryption… Who gets mad? Tech geeks, Lavabit, Google engineers, and journalists The NSA will be delighted if Obama eschews his panel's recommendation that the agency cease undermining the encryption and security of tech companies, as leaked documents have revealed. It's not clear yet what Obama administration will do regarding this recommendation. But if doesn't restrain the NSA on this front, tech geeks everywhere will be angry. When the news broke in October that the NSA had hacked into Google, a security engineer for the company wrote, "Fuck these guys." (Google and other tech companies have since bulked up their encryption to keep out the NSA.) Many journalists and lawyers also rely on the promise of secure encryption to do their jobs. They're hoping that the president sides with civil libertarians and members of the tech industry who want to make sure that the NSA does not have the authority to defeat all forms of encryption. If Obama Reforms the Top-Secret Spy Court… Who gets mad? The top-secret spy court and the NSA Some judges will no doubt be outraged if Obama makes any changes to the Foreign Intelligence Surveillance Act Court, the top-secret spy court that approves or denies many of the government's surveillance requests. Obama is expected to appoint a privacy advocate to advise the court on civil liberties issues. But on January 13, US district Judge John Bates, the former presiding judge of the FISA court, wrote in a public letter that "a privacy advocate is unnecessary." Bates also decried the presidential panel's recommendation that the government require judicial approval for all National Security Letters—secret requests the FBI and other government agencies use to force businesses to hand over records. According to Bates, subjecting these requests to the FISA court's scrutiny would be a "detriment to [the court's] current responsibilities." (If the FISA court emerges untouched by Obama's reforms, privacy advocates will be irate.) Obama faces a tricky challenge. He clearly believes some NSA reform is necessary, yet, for good or bad, he doesn't want to alienate the intelligence community. This might lead him to a position that does not produce sufficient change to allay the concerns of techies, civil libertarians, and Americans who worry the surveillance state has gone too far—but still manages to tick off the intelligence officials he counts on to defend the nation; and the national security hawks on and off Capitol Hill who are always ready to assail the president. Obama has often talked about the need to balance national security and civil liberties. His effort to deal with the Snowden-prompted NSA scandal shows how tough a political task that is for him.

Curtailing domestic surveillance causes a lot of Political Capital- sunset negotiations ensure political battles


Givens in 2013 (Austen D. Givens, a PhD student in the Department of Political Economy at King’s College London, “The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-Terrorism Laws”, July 2, 2013, http://harvardnsj.org/2013/07/the-nsa-surveillance-controversy-how-the-ratchet-effect-can-impact-anti-terrorism-laws/, 7/5/15)

After a terrorist attack, creating laws quickly to contend with terrorism is reasonable and appropriate. It is equally reasonable and appropriate, however, to build hedges into those laws to guard against unsound initial judgments or assumptions. The set of policy recommendations below provides a starting point to mitigate the potential impact of the ratchet effect upon anti-terrorism laws. Taking these steps does not guarantee that anti-terrorism laws will be easy to scale-back or reverse, nor can it completely prevent unintentional interpretations of anti-terrorism laws. But these recommendations can increase policymakers’ awareness of the ratchet effect, which can lead to more thoughtfully crafted and effective anti-terrorism laws. First, initial changes may be difficult to undo. The early legislative moves after a terrorist attack are pivotal. They set the tone for future, related legislation. Moreover, as argued earlier in this article, changing laws can be difficult under normal circumstances, let alone when the laws concern an issue as serious as terrorism. It is vital for leaders to get the beginning stages of a nation’s anti-terrorism legislation right; a bad start can lead to a pattern of subsequent bad laws. This is not a call for perfection, but a plea for greater awareness of this reality and for leaders to use this awareness when drafting laws. Second, policymakers should beware of reflexive legislation. Terror attacks create conditions in which emotions can run high; feelings of terror, anger, sadness, confusion, and frustration are natural consequences of these circumstances. Behavioral psychology teaches us that human beings’ higher-order thinking skills (e.g. logic, reasoning, analysis, reflection) are poorly integrated with baser, emotionally-rooted thinking (e.g. irrational prejudices, unreasonable fears, self-destructive desires).[11] One researcher has gone so far as to say that the amygdala—the portion of the brain that controls reactive emotion—can hijack the higher-order parts of the brain, impeding effective decision-making in crises.[12] Considering this, it is reasonable to suggest that laws passed in the immediate aftermath of terrorist attacks may be rooted more in baser, emotionally-driven thinking than in careful, analytical, higher-order thinking. In other words, they may be mostly reflexive, not reflective. This is not to say that all laws passed after terrorist attacks are emotionally-driven. Nor is it the case that all laws created in these circumstances are somehow “bad” laws. But during and after terrorist attacks, leaders’ judgment of what may or may not be good law can become clouded by emotion. Similarly, terrorist attacks can drive public support for reflexive anti-terrorism legislation. And this is not an instinct that can be somehow “shut off” or “tuned out.” Legislators and citizens should be aware of this potential, and must walk a fine line between meeting immediate post-crisis needs and championing laws that will remain effective for the long haul. Third, “sunset” provisions are prudent and reasonable. Given that anti-terrorism laws passed in the wake of terrorist attacks may be partly driven by emotion and that initial laws may prove difficult to undo, it is wise for government leaders to include “sunset” provisions in new anti-terrorism laws. Generally “sunset” provisions allow portions of a law to expire if not renewed by a pre-determined date. In a sense, democracies must deliver a new mandate for the law—or at least part of the law—to avoid this expiration. With “sunset” provisions in place, unwise, irrelevant, or ineffective components of a law can be allowed to wither and die when necessary. Letting these provisions lapse requires virtually no political capital from government leaders, unlike actively changing or removing a law, which can require a great deal. For elected officials, this means that letting part of an anti-terrorism law expire is relatively easy. Re-examining and pruning anti-terrorism laws in this way is a healthy practice. It can head off potential abuses of particularly aggressive anti-terrorism measures and forces a continual re-thinking of anti-terrorism laws as circumstances change over time. The recent NSA surveillance controversy highlights the relevance of the ratchet effect to broader discussions of anti-terrorism laws. The ratchet effect can affect anti-terrorism laws generally, entrenching and expanding them over time and potentially leading to those laws being interpreted in unexpected and undesirable ways. The USA PATRIOT Act, developed in the aftermath of the 9/11 terrorist attacks, has been difficult to scale back since then, and has now been interpreted in a way that at least one of the Act’s authors did not intend. This unintended interpretation of the Act led, in part, to today’s NSA surveillance controversy. Scholars can benefit from future explorations of the ratchet effect, which may help illuminate further why anti-terrorism laws remain in place and how their influence can expand in unanticipated ways.

Curtailing domestic surveillance policies is controversial- policies are too politically entrenched


Givens in 2013 (Austen D. Givens, a PhD student in the Department of Political Economy at King’s College London, “The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-Terrorism Laws”, July 2, 2013, http://harvardnsj.org/2013/07/the-nsa-surveillance-controversy-how-the-ratchet-effect-can-impact-anti-terrorism-laws/, 7/5/15)

The ratchet effect is a unidirectional change in some legal variable that can become entrenched over time, setting in motion a process that can then repeat itself indefinitely.[1] For example, some scholars argued that anti-terrorism laws tend to erode civil liberties and establish a new baseline of legal “normalcy” from which further extraordinary measures spring in future crises.[2] This process is consistent with the ratchet effect, for it suggests a “stickiness” in anti-terrorism laws that makes it harder to scale back or reverse their provisions. Each new baseline of legal normalcy represents a new launching pad for additional future anti-terrorism measures. There is not universal consensus on whether or not the ratchet effect is real, nor on how powerful it may be. Posner and Vermeule call ratchet effect explanations “methodologically suspect.”[3] They note that accounts of the ratchet effect often ring hollow, for they “fail to supply an explanation of such a process…and if there is such a mechanism [to cause the ratchet effect], it is not clear that the resulting ratchet process is bad.”[4] I argue that the recent controversy surrounding the NSA’s intelligence collection efforts underscores the relevance of the ratchet effect to scholarly discussions of anti-terrorism laws. I do not seek to prove or disprove that the recent NSA surveillance controversy illustrates the ratchet effect at work, nor do I debate the potential strength or weakness of the ratchet effect as an explanation for the staying power or growth of anti-terrorism laws. As Sensenbrenner’s recent comments make clear, part of the original intent of the USA PATRIOT Act appears to have been lost in interpretation. It is reasonable to suggest that future anti-terrorism laws may suffer a similar fate. Scholars can therefore benefit from exploring how the USA PATRIOT Act took shape and evolved, and why anti-terrorism laws can be difficult to unwind.

The plan is unpopular—Congress loves domestic surveillance

Timm 3/14 [Trevor Timm, 3/14/15, The Gaurdian, “Congress won't protect us from the surveillance state – they'll enhance it”] http://www.theguardian.com/commentisfree/2015/mar/14/congress-wont-protect-us-from-the-surveillance-state-theyll-enhance-it

The same Senator who warned the public about the NSA’s mass surveillance pre-Snowden said this week that the Obama administration is still keeping more spying programs aimed at Americans secret, and it seems Congress only wants to make it worse. In a revealing interview, Ron Wyden – often the lone voice in favor of privacy rights on the Senate’s powerful Intelligence Committee – told Buzzfeed’s John Stanton that American citizens are being monitored by intelligence agencies in ways that still have not been made public more than a year and a half after the Snowden revelations and countless promises by the intelligence community to be more transparent. Stanton wrote: Asked if intelligence agencies have domestic surveillance programs of which the public is still unaware, Wyden said simply, “Yeah, there’s plenty of stuff.” Wyden’s warning is not the first clue about the government’s still-hidden surveillance; it’s just the latest reminder that they refuse to come clean about it. For instance, when the New York Times’ Charlie Savage and Mark Manzetti exposed a secret CIA program “collecting bulk records of international money transfers handled by companies like Western Union” into and out of the United States in 2013, they also reported that “several government officials said more than one other bulk collection program has yet to come to light.” Since then – beyond the myriad Snowden revelations that continue to pour out – the public has learned about the Postal Service’s massive database containing photographs of the front and back of every single piece of mail that is sent in the United States. There was also the Drug Enforcement Administration’s mass phone surveillance program – wholly separate than the NSA’s – in which “phone records were retained even if there was no evidence the callers were involved in criminal activity,” according to the New York Times. And recently, the Justice Department’s “national database to track in real time the movement of vehicles around the US”, reported by the Wall Street Journal. That there are still programs aimed at Americans that the Obama administration is keeping secret from the public should be a front page scandal. Instead of exposing and informing these programs, however, Congress seems much more intent on giving the intelligence agencies even more power. On the same day that Wyden issued his warning, the Senate Intelligence Committee passed its latest version of CISA, a supposed “cybersecurity” bill that allows companies to hand over large swaths of personal information to the government without any court order at all – and gives the companies immunity from any privacy lawsuits that may result. Wyden called it “a surveillance bill by another name” – and was the only Senator on the Intelligence Committee member to vote against it. The committee claims they passed some privacy amendments, but we have no idea what since they did so in complete secrecy, and the announcement came after it had already passed. The public has yet to see the bill. While members of Congress attempt to pass a new way for the government – and the NSA – to get their hands on more data of Americans, they’ve barely made a peep about reforming Section 215 of the Patriot Act, the controversial law that was twisted and warped to allow the NSA to collect every phone record in the United States.


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