*** National Security Letters Affirmative

Answers to: National Security Disadvantage

National Security Letters are not necessary for national security- they needlessly violate the privacy of thousands of innocent Americans
Sanchez, 2014

(“Can We Do Without National Security Letters?” Julian Sanchez January 9, Online: http://justsecurity.org/5351/national-security-letters/)

Former top FBI attorney Michael Woods (Quoted in Eric Lichtblau’sBush’s Law) has summarized the ethos that led to the massive explosion of NSLs issued in the aftermath of the 9/11 attacks:All of a sudden, every lead needed to be looked at. The atmosphere was such that you didn’t want to be the guy who overlooked the next Moussaoui. . . . If you’re telling the FBI people over and over you need to be preemptive, you need to get out there before something happens, you’re pushing people toward a fishing expedition. We heard over and over again, connect the dots, and we were pushing the envelope and doing things that, in the old days, would have seemed beyond the pale.That is certainly an understandable initial reaction, but at this point it seems fair to question whether the use of such an invasive tool is really necessary as a means of checking out every possible lead.  When NSL authority was initially expanded, after all, the requirement that records obtained be relevant to an “authorized investigation” was understood to refer to full investigations, predicated on “specific and articulable facts” providing “reasonable grounds” to believe some real national security threat exists. The guidelines were only later, in 2003, altered to allow their use in “preliminary” investigations based on “information or allegations” suggesting a possible threat—and before long, such investigations accounted for the majority of NSLs issued.If the inability to chase down a sufficient number of thin leads had been at the root of the failure to detect the 9/11 plot, this might well be a reasonable response, but the evidence is fairly overwhelming at this point that this was not the case.  The problem, rather, was a failure to “connect dots” by sharing information about known threats across agencies, rather than insufficiently promiscuous collection of dots.  Needless to say, the vast majority of the thousands of Americans whose information is collected pursuant to NSLs are not, in fact, terrorists—nor, in all likelihood engaged in criminal wrongdoing of any kind. So if the objection is that such large-scale use of NSLs to collect data about Americans is likely to be infeasible when advance approval is required, one good answer might be: Yes, that is the point.  Candidate Barack Obama presumably thought so when hedeclared his intention to put an end to the use of “National Security Letters to spy on citizens who are not suspected of a crime.”NSL authorities have already given rise to misuses the Justice Department’s Inspector General characterized as widespread and serious—but the disclosure of the FISC opinions authorizing bulk collection of metadata under Section 215 of the Patriot Act adds further grounds for concern.  The “relevance” standard that the FISC construed to permit huge volumes of irrelevant records as a means of sifting through them for a minuscule fraction of relevant ones, after all, is the same standard found in the NSL statutes.  The FISC, to be sure, stressed the many extrastatutory safeguards it had imposed on the NSA’s metadata programs in order to limit the invasion of innocent Americans’ privacy, but the presence or absence of those safeguards cannot really bear on the threshold question of whether the records obtained are “relevant.” Would any FBI agent be so bold as to issue an NSL for the records of all subscribers at a major cell carrier?  Almost certainly not, at least in the current climate. But with this broad understanding of “relevance” now on the record, and being openly defended by the Justice Department, it is easy to imagine smaller scale fishing expeditions operating on the same theory—perhaps applying to all users of a particular Web site or online service.Finally, it bears noting that the courts may well force the administration’s hand if it does not undertake its own reforms.  One court has already held that NSLs, with their presumptive gag orders, violate the First Amendment—though that ruling has been stayed pending appellate review. So it is at least an open question whether they can survive in their current form whether or not the administration is eager for reform. Fortunately, there is little reason to think that intelligence agencies would be hobbled if deprived of a tool relatively little used before the passage of the Patriot Act, or that the use of intrusive methods to “check out” Americans by the tens of thousands is essential to protecting American security.[…]If the NSL gag provisions can be weakened sufficiently to pass First Amendment muster, such a compromise solution might represent the elusive “balance” between privacy interests and the need to quickly evaluate leads in the initial phases of investigations. But the burden should be on the intelligence community to establish that even more limited authority is genuinely necessary.  The absence of broad NSL powers prior to the Patriot Act does not appear to have been a major factor in the failure to detect the 9/11 attacks, and the public has not been made aware of any cases where such easy access to sensitive information has enabled the discovery of some plot or terror cell that would otherwise have gone undetected. The claim that the FBI cannot investigate effectively without a tool that has existed in its current form for roughly a decade should be seen as an extraordinary one—demanding equally extraordinary evidence before we accept it.

Answers to: National Security Disadvantage

National Security Letters are intrusive tools that are not as effective as other, more ethical national security efforts.
German and Richardson, 2012

(“National Security Letters: Building Blocks for Investigations or Intrusive Tools?” Michael German and Michelle Richardson for the ABA Journal September 1, Online: http://www.abajournal.com/magazine/article/national_security_letters_building_blocks_for_investigations_or_intrusive_t/

During the original Patriot Act debates, Attorney General John Ashcroft called librarians opposing the legislation “hysterical,” and now Valerie Caproni and Steven Siegel argue that criticism of NSLs is “hyperbole.” Caproni and Siegel repeat the FBI’s previous assertions that NSLs are “critical tools” in the government’s national security arsenal, but there is no public data to support this statement and, despite Caproni and Siegel’s denials, there is ample evidence that this overbroad authority has been abused, as any unchecked power usually is.The founders designed our constitutional system of government to prevent abuse of power through checks and balances between the branches and robust procedural protections where the government attempts to deprive an individual of his rights. Indeed, the most fully developed processes for the protection of civil rights exists within the criminal justice system, which makes the Caproni-Siegel comparison of NSLs to grand jury subpoenas most misplaced.The grand jury, made up of ordinary citizens, is designed to serve as an independent check on law enforcement authority by protecting people against unfounded charges. As the United States Attorneys’ Manual notes, the grand jury’s power is limited by its narrow function of determining whether to bring an indictment for a criminal violation, which reduces the risk of unnecessary, suspicionless data collection. And in grand jury proceedings, the role of prosecutors—who are bound by the ethical obligations of their profession—is also a curb against law enforcement overreach. None of these protections exist with NSLs or other surveillance tools geared toward intelligence collection rather than criminal prosecution. The FBI has the sole discretion to issue NSLs with virtually no independent oversight. Moreover, a grand jury’s indictment only starts the criminal justice process, after which additional rights attach and affirmative discovery obligations are imposed on the government. The government’s obligation to disclose sources and methods of evidence-gathering during trial is likewise a deterrent to improper collection, as the exclusionary rule compels suppression of illegally obtained evidence. The secrecy required in grand jury proceedings is designed to protect the privacy of the witnesses and individuals investigated, not to hide the government conduct from independent oversight and public accountability, as is the case with intelligence tools like NSLs. Victims of NSL abuse have no way of knowing their rights have been violated, and no remedy.The truth is that NSLs are intrusive tools. While the Supreme Court did fail to protect personal data held by third parties in 1976, as Caproni and Siegel point out, Congress then stepped in to protect financial, credit and communications records, which most Americans consider sensitive and private information. The pre-Patriot NSL authorities Caproni and Siegel mention were limited to collecting information about suspected foreign agents or international terrorists. The Patriot Act expansion of NSL authorities allows the collection of data about any American the FBI deems “relevant” to an espionage or terrorism investigation, with no independent review. And given the technological advancements that have occurred since the Supreme Court’s 1976 decision, which now leave vast amounts of personal information unprotected on third-party servers, trusting the government to be judicious with its access to such data through NSLs or other tools is even more misplaced.Caproni and Siegel also note that NSL recipients rarely challenge the government’s demands, which isn’t surprising given that NSLs seek records pertaining to someone other than the recipient. When the entities that hold private information show as little interest in protecting it as the government, everyone should worry. And it’s interesting that in the three cases in which NSL recipients challenged these demands, the government withdrew the NSL requests rather than defend them in court, thereby mooting challenges to the underlying statute and throwing into doubt the government’s justification for making these requests in the first place.Finally, consider the FBI’s continuing minimization of the abuse discovered by the inspector general. The FBI’s own audit found legal violations in 9.43 percent of its NSL files, and the IG later determined that the FBI underreported the number of NSL violations by a factor of three. These figures justify calling the abuse pervasive, and denying their importance only raises further skepticism that Americans can trust government agents with such unfettered power. The IG did indeed say the FBI made strides toward reform in 2008, but concluded that “it is too soon to definitively state whether the new systems and controls developed by the FBI and the department will eliminate fully the problems with the use of NSLs.”

Answers to: Crime Disadvantage

The FBI misuses National Security Letters- many are issued, with few prosecutions. A ban would stop the abuse, not increase crime.

Fraase 2013

(“National Security Letter Report” Michael Fraase March 11, Online: http://www.farces.com/national-security-letter-report/)

A Justice Department reportindicates that the FBI illegally obtained personal information including banking and telephone records on thousands of US citizens. The information was gathered without court subpoena through the use of national security letters, the scope of which was significantly expanded under the Patriot Act. These national security letters, intended to be used only in cases of emergency, were used “without an emergency or even without an investigative case,” according to Dan Eggen and John Solomon’s report in the Washington Post. The national security letters were, in some cases, used retroactively.More than 143,000 requests for information on more than 52,000 individuals were issued from 2003-05, figures much higher than those reported to Congress.Some politicians responded by calling for restrictions on the Patriot Act and have pledged investigatory hearings. Senate Majority Whip Richard Durbin (D-Illinois) has been calling for a review of the Bush administration’s use of national security letters for two years told Eggen and Solomon that the report “confirms the American people’s worst fears about the Patriot Act.” Retraction letters flew across Washington last week as administration representatives sought to correct their sworn testimony that the use of national security letters was well-regulated.

National Security Letters are for use only in terrorism or espionage cases; our plan would have little to no effect on non-national security related crime.
German and Richardson, 2012

(“National Security Letters: Building Blocks for Investigations or Intrusive Tools?” Michael German and Michelle Richardson for the ABA Journal September 1, Online: http://www.abajournal.com/magazine/article/national_security_letters_building_blocks_for_investigations_or_intrusive_t/

Many federal agencies use administrative (not court-approved) subpoenas to obtain information relating to their duties—there are more than 300 instances where the law grants such powers. NSLs are a type of administrative subpoena that can be invoked only in terrorism and espionage investigations. They can be issued by the FBI to limited types of third-party records’ custodians, and the custodians are responsible for gathering and producing responsive materials to the FBI. The custodian can object if compliance would be burdensome, and the FBI cannot simply take materials from the custodian. For that reason, NSLs should not be confused with search warrants. Search warrants are issued based on a finding of probable cause by a neutral and detached magistrate; the person on whom a search warrant is served has no option to decline to cooperate, and the entity serving the search warrant is authorized to seize material from the custodians. Moreover, the scope of a search warrant is set by the specific finding of the magistrate and can be quite broad, depending on the underlying facts. In contrast, NSLs have a strictly defined scope that has been set by Congress.

2AC Extensions: Privacy

The FBI has a history of misusing data tools and covering it up. Federal agents frequently violate privacy rules- 70% since 2002 have involved National Security Letters

RTE News, 2007

(“FBI Agents Broke The Rules 1,000 Times” RTE News June 14, Online: http://www.rte.ie/news/2007/0614/90049-fbi/)

An internal FBI audit has found the agency violated rules more than 1,000 times while collecting data on US domestic phone calls, e-mails and financial transactions in recent years. The Washington Post reported today that the number of violations uncovered by the audit was far greater than those previously documented in a Justice Department report in March. The vast majority of newly discovered violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorised to collect. The agents retained the information in their files, which mostly concerned suspected terrorist or espionage activities, according to the report. The new audit covers just 10% of the FBI's national security investigations since 2002, so the actual number of violations in the FBI's domestic surveillance efforts probably number several thousand. Of the more than 1,000 violations uncovered by the new audit, about 700 involved the provision of information by phone companies and other communications firms that exceeded what the FBI's National Security Letters had sought. However, some two dozen of the newly discovered violations involved agents' requests for information that US law did not allow them to have, the audit found. National Security Letters allow the FBI to compel the release of private information such as communications or financial records without getting court authority. Their use has grown since the 11 September 2001 attacks. More than 19,000 such letters were issued in 2005 seeking 47,000 pieces of information. FBI officials said the audit found no evidence that any agent knowingly or willingly violated the laws or that supervisors encouraged such violations.

Mass surveillance is unconstitutional and a threat to democracy

The New York Times Editorial Board, 2013

(“Surveillance: A Threat to Democracy” June 11, Online: http://www.nytimes.com/2013/06/12/opinion/surveillance-a-threat-to-democracy.html

A new Washington Post-Pew Research Center pollfound that a majority of Americans are untroubled by revelations about the National Security Agency’s dragnet collection of the phone records of millions of citizens, without any individual suspicion and regardless of any connection to a counterterrorism investigation.Perhaps the lack of a broader sense of alarm is not all that surprising when President Obama, Senator Dianne Feinstein, the Democratic chairwoman of the Intelligence Committee, and intelligence officials insist that such surveillance is crucial to the nation’s antiterrorism efforts. But Americans should not be fooled by political leaders putting forward a false choice. The issue is not whether the government should vigorously pursue terrorists. The question is whether the security goals can be achieved by less-intrusive or sweeping means, without trampling on democratic freedoms and basic rights. Far too little has been said on this question by the White House or Congress in their defense of the N.S.A.’s dragnet.The surreptitious collection of “metadata” — every bit of information about every phone call except the word-by-word content of conversations — fundamentally alters the relationship between individuals and their government.Tracking whom Americans are calling, for how long they speak, and from where, can reveal deeply personal information about an individual. Using such data, the government can discover intimate details about a person’s lifestyle and beliefs — political leanings and associations, medical issues, sexual orientation, habits of religious worship, and even marital infidelities. Daniel Solove, a professor at George Washington University Law School and a privacy expert, likens this program to a Seurat painting. A single dot may seem like no big deal, but many together create a nuanced portrait.The effect is to undermine constitutional principles of personal privacy and freedom from constant government monitoring. The American Civil Liberties Union filed a lawsuit on Tuesday, challenging the program’s constitutionality, and it was right to do so.The government’s capacity to build extensive, secret digital dossiers on such a mass scale is totally at odds with the vision and intention of the nation’s framers who crafted the Fourth Amendment precisely to outlaw indiscriminate searches that cast a wide net to see what can be caught. It also attacks First Amendment values of free speech and association.In a democracy, people are entitled to know what techniques are being used by the government to spy on them, how the records are being held and for how long, who will have access to them, and the safeguards in place to prevent abuse. Only then can they evaluate official claims that the correct balance between fighting terrorism and preserving individual liberty has been struck, and decide if they are willing to accept diminished privacy and liberty. If Americans have been slow to recognize the dangerous overreach of the N.S.A.’s phone surveillance, it is largely because they have scant information to judge the government’s conduct.Even if most Americans trust President Obama not to abuse their personal data, no one knows who will occupy the White House or lead intelligence operations in the future. The government’s capacity to assemble, keep and share information on its citizens has grown exponentially since the days when J. Edgar Hoover, as director of the F.B.I., collected terrorist threats need to catch up.

2AC Extensions: Racism

Government has a history of infiltrating peaceful groups, mass surveillance is incompatible with human rights and democracy
Stallman 2013

(“How Much Surveillance Can Democracy Withstand?” Richard Stallman October 14, Online: http://www.wired.com/2013/10/a-necessary-evil-what-it-takes-for-democracy-to-survive-surveillance/

The current level of general surveillance in society is incompatible with human rights. To recover our freedom and restore democracy, we must reduce surveillance to the point where it is possible for whistleblowers of all kinds to talk with journalists without being spotted. To do this reliably, we must reduce the surveillance capacity of the systems we use.Using free/libre software, as I’ve advocated for 30 years, is the first step in taking control of our digital lives. We can’t trust non-free software; the NSA uses and even creates security weaknesses in non-free software so as to invade our own computers and routers. Free software gives us control of our own computers, but that won’t protect our privacy once weset foot on the internet.Bipartisan legislation to “curtail the domestic surveillance powers” in the U.S. is being drawn up, but it relies on limiting the government’s use of our virtual dossiers. That won’t suffice to protect whistleblowers if “catching the whistleblower” is grounds for access sufficient to identify him or her. We need to go further.Thanks to Edward Snowden’s disclosures, we know that the current level of general surveillance in society is incompatible with human rights. The repeated harassment and prosecution of dissidents, sources, and journalists provides confirmation. We need to reduce the level of general surveillance, but how far? Where exactly is the maximum tolerable level of surveillance, beyond which it becomes oppressive? That happens when surveillance interferes with the functioning of democracy: when whistleblowers (such as Snowden) are likely to be caught.DON’T AGREE WE NEED TO REDUCE SURVEILLANCE? THEN READ THIS SECTION FIRSTIf whistleblowers don’t dare reveal crimes and lies, we lose the last shred of effective control over our government and institutions. That’s why surveillance that enables the state to find out who has talked with a reporter is too much surveillance — too much for democracy to endure.An unnamed U.S. government official ominously toldjournalists in 2011 that the U.S. would not subpoena reporters because “We know who you’re talking to.” Sometimes journalists’ phone call records are subpoena’d to find this out, but Snowden has shown us that in effect they subpoena all the phone call recordsof everyone in the U.S., all the time.Opposition and dissident activities need to keep secrets from states that are willing to play dirty tricks on them. The ACLU has demonstrated the U.S. government’s systematic practice of infiltrating peaceful dissident groups on the pretext that there might be terrorists among them. The point at which surveillance is too much is the point at which the state can find who spoke to a known journalist or a known dissident.Information, Once Collected, Will Be MisusedWhen people recognize that the level of general surveillance is too high, the first response is to propose limits on access to the accumulated data. That sounds nice, but it won’t fix the problem, not even slightly, even supposing that the government obeys the rules. (The NSA has misled the FISA court, which said it was unable to effectively hold the NSA accountable.) Suspicion of a crime will be grounds for access, so once a whistleblower is accused of “espionage”, finding the “spy” will provide an excuse to access the accumulated material.

The state’s surveillance staff will misuse the data for personal reasons too. Some NSA agents used U.S. surveillance systems to track their lovers — past, present, or wished-for — in a practice called “LoveINT.” The NSA says it has caught and punished this a few times; we don’t know how many other times it wasn’t caught. But these events shouldn’t surprise us, because police have long used their access to driver’s license records to track down someone attractive, a practice known as “running a plate for a date.”Surveillance data will always be used for other purposes, even if this is prohibited. Once the data has been accumulated and the state has the possibility of access to it, it may misuse that data in dreadful ways.

Total surveillance plus vague law provides an opening for a massive fishing expedition against any desired target. To make journalism and democracy safe, we must limit the accumulation of data that is easily accessible to the state.Robust Protection for Privacy Must Be TechnicalThe Electronic Frontier Foundation and other organizations propose a set of legal principles designed to prevent the abuses ofmassive surveillance. These principles include, crucially, explicit legal protection for whistleblowers; as a consequence, they would be adequate for protecting democratic freedoms — if adopted completely and enforced without exception forever.However, such legal protections are precarious: as recent history shows, they can be repealed (as in the FISA Amendments Act), suspended, or ignored.Meanwhile, demagogues will cite the usual excuses as grounds for total surveillance; any terrorist attack, even one that kills just a handful of people, will give them an opportunity.

If limits on access to the data are set aside, it will be as if they had never existed: years worth of dossiers would suddenly become available for misuse by the state and its agents and, if collected by companies, for their private misuse as well. If, however, we stop the collection of dossiers on everyone, those dossiers won’t exist, and there will be no way to compile them retroactively. A new illiberal regime would have to implement surveillance afresh, and it would only collect data starting at that date. As for suspending or momentarily ignoring this law, the idea would hardly make sense.

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