702 Reform Negative swsdi 2015 Solvency

702 Reform Negative SWSDI 2015

Solvency

FAA Framework Too Weak

FAA exclusivity fails – doesn’t protect civil liberties, increases reputational costs for companies and creates a double-standard for foreign companies.

Of course, FAA Exclusivity wouldn’t solve every problem. It would not prevent foreign governments from collecting information themselves and then providing it to U.S. intelligence agencies, as U.S. law cannot bind a foreign government. And some may argue that FAA provides inadequate civil liberties protections for Americans. This proposal says nothing about the adequacy of that statute in this respect. What it says is that for data held by an American company about a target that is not a U.S. person, the checks within FAA are stronger than those solely under E.O. 12333. Others have argued that the FAA shifts the burden of cooperation solely onto the company, which will suffer greater reputational harm as a more witting participant in affirmatively granting the government’s requests. However, companies have suffered reputational harm as a result of allegations of unwitting cooperation. Making the cooperation known, even if it’s secret, gives the companies the opportunity to account for it in their own planning. The move by certain U.S. companies to place subsidiaries in foreign ownership to resist requests by the U.S. government presents an interesting twist on this idea. In shifting the balance back to increased protections for U.S. companies, this legislation would change the incentives so that claiming U.S. law would have operational advantages in giving companies uniformity of law for all their data. This would also encourage the use of a single choice of law for all data governed by a company—that of the nationality of incorporation—rather than encouraging a choice of law patchwork to govern the data as it flows around the world. Finally, some foreign multinational companies operating in the U.S. and abroad may argue that this is inconsistent with principles that we treat all companies operating in the U.S. the same way for purposes of law. While that would remain true under this proposal, it would create a difference in how the U.S. treats U.S. companies operating abroad compared to how it treats foreign companies abroad. But stretching the U.S. Constitution to foreign companies abroad is to stretch the document too far. If, on the other hand, those companies see advantage in changing their nationality to U.S. in order to claim protections of those laws, then that is the corporate version of the kind of immigration patterns that America has seen since its founding.

Oversight Impossible

Congress can’t enforce the aff – no oversight over the NSA.

Friedersdorf, ’14 [Conor, “Congress Still Has No Idea How Much the NSA Spies on Americans”, The Atlantic, 10-30-14, http://www.theatlantic.com/politics/archive/2014/10/congress-still-has-now-idea-how-much-the-nsa-spies-on-americans/382114/, RSR]

The biggest lie Americans are told about the NSA is that it is subject to "strict oversight." Listening to President Obama, Senator Dianne Feinstein, or most any high-ranking official in the national-security bureaucracy, one gets the impression that the Senate and House intelligence committees are keeping careful tabs on the most technologically empowered spy agency in human history. The truth is that Congress is alarmingly ignorant about NSA spying. It's not all the national-security state's fault. There are too many issues for every legislator to master them all; surveillance policy is a particularly complicated; and national security is an area many in Congress undermine checks and balances by deferring to the president. Yet even the most diligent, knowledgeable members of the Senate Intelligence Committee consistently lack basic information that's plainly needed for adequate oversight. No one who assesses the relevant evidence can credibly deny this. Take Senator Ron Wyden. No one could dispute that the Oregon Democrat zealously seeks information about America's intelligence agencies. No one disputes that he is far more knowledgeable about the intricacies of surveillance policy than the typical member of Congress. So it is instructive to reflect on what he hasn't known. Though a member of the intelligence committee beginning in 2001, he didn't know about the Bush administration's warrantless-wiretapping program until The New York Times reported on it in 2005 (after holding the story for more than a year). "He was surprised again when, six months later, USA Today published a different story revealing for the first time that the NSA was secretly collecting the phone call records of tens of millions of Americans, records that US telecoms were willingly handing over without a warrant," Kim Zetter notes at Wired. These two examples are sufficient to show that during the Bush years he was denied information of the utmost relevance to an overseer. And now under President Obama there are equally clear examples of information he requires but is denied. One example concerns Executive Order 12333, one of the primary legal authorities the NSA cites to justify some of its overseas intelligence gathering. What kind of surveillance does it enable in practice? How many Americans have their privacy compromised by spying carried out under that order? Congress has no clue. “I’m not sure we’re at the bottom or close to it," Wyden told Wired. Some context is needed to grasp the significance. In response to Edward Snowden's revelations about the phone dragnet, legislators are considering steps to better protect the private communications of Americans. But Congress cannot strike whatever balance it desires between surveillance and privacy if members don't even know what the spy agency does under legal cover of executive orders. Wyden suspects that the White House and intelligence community "agreed to halt the phone records collection program, in the wake of intense criticism, only because the spy agency has other tricks to get the same data." Is he correct? The fact that one of the most interested members of the Senate Intelligence Committee doesn't know is a glaring problem. On the whole, American legislators have only the vaguest idea what the NSA does under Executive Order 12333, and this ignorance is a direct impediment to sound policymaking. It makes adequate oversight impossible, so the conceit that the NSA is subject to "strict oversight" is absurd. Yet even as Senate Intelligence Committee members are kept ignorant of these vital facts, Carrie Cordero, director of national security studies at Georgetown University Law Center, writes as if the intelligence community now errs on the side of transparency. She urges these officials to tell Americans more about the terrorist menace. Any accurate information is useful, but how about first giving Senate overseers all the facts they need as overseers? Suppressing this information neuters Congress. Legislators preparing to vote on the USA Freedom Act conspicuously lack important facts needed to assess the adequacy and wisdom of the bill. Why do so few care?

Neither branch can effectively check the president’s use of the NSA.

Lee, ’13 [Timothy, “Obama says the NSA has had plenty of oversight. Here’s why he’s wrong.”, The Washington Post, 6-7-13, http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/07/obama-says-the-nsa-has-had-plenty-of-oversight-heres-why-hes-wrong/, RSR]

Obama's comments make it sound like the programs are subject to rigorous and continuous oversight. But the simple fact that Congress is briefed and federal judges are involved doesn't mean either branch is actually able to serve as an effective check. The excessive secrecy surrounding these programs makes that unlikely. Take Congress. When the government has briefed members of Congress on its surveillance activities, it has often been in meetings where "aides were barred and note-taking was prohibited." It's impossible for Congress to provide effective oversight under those conditions. Members of Congress rely on staff to help them keep track of legislative details. They need independent experts to advise them on complex technical issues. And they need feedback from the constituents they ultimately represent. But the senators briefed on these programs couldn't speak about them. Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) were reduced to spending years trying to hint at the existence of programs they weren't able to actually tell anyone about. Only now can anyone see what it is they were trying to tell us. Meanwhile, the 2008 FISA Amendments Act cut judges out of their traditional role of reviewing individual surveillance requests. Instead, it asks judges to approve broad categories of surveillance. The law gives judges little leeway to reject proposed surveillance programs, and in any event judges lack the expertise and resources to perform this quasi-legislative oversight role effectively. With both Congress and the courts effectively neutered, their traditional functions — defining the rules and making sure they're enforced — are now largely being performed inside the executive branch. In place of legal standards defined by Congress and enforced by an independent judge, we now have "minimization procedures" defined by some executive branch officials and applied by others. There's no opportunity for public debate about these rules and no independent oversight into whether the rules are being followed in individual cases. And there's ample evidence that letting the executive branch police itself is a recipe for abuse. Supporters of the NSA's programs generally make two arguments for the current arrangement. On the secrecy front, they argue that revealing details of the government's surveillance activities could tip off terrorists to the government's capabilities, making it harder to thwart attacks. On the judicial oversight front, they argue that individualized warrant requirements prevent the government from engaging in algorithmic surveillance. Neither argument is convincing. It's conceivable that secrecy about U.S. surveillance capabilities gave the U.S. government a fleeting advantage in the early years of this century, allowing them to intercept the communications of terrorists who didn't realize the extent of America's surveillance capabilities. But regardless, that advantage is now gone. For the foreseeable future, terrorists are going to assume that the U.S. government is monitoring all forms of electronic communications where doing so is technically feasible. It may be true that automated mass surveillance programs can uncover useful intelligence that couldn't be found using traditional law enforcement activities based on individualized search warrants. But even if that's true, it's not an argument for eliminating meaningful judicial oversight. Rather, it's an argument for developing new oversight methods that are more compatible with algorithmic surveillance techniques. For example, perhaps rather than requiring a warrant every time the government acquires information, the law should allow mass information collection but require judicial oversight before the government can query the database. The key principle is that there needs to be someone monitoring each investigation to ensure the rules are being followed. That person needs to have the authority to block information requests that don't comply with the law. And that person needs the independence that only members of the judicial branch enjoy. The broad parameters of America's domestic surveillance activities should be set by Congress, not the president. The FISA Amendments Act delegated way too much of this rule-making authority to the executive branch. But Congress can't have a meaningful debate — either about whether mass surveillance is a good idea or how to develop effective judicial oversight — while even general information about the NSA's activities is shrouded in secrecy. The Obama administration claims that this week's news "risks important protections for the security of Americans." It's more likely the disclosures risks sparking a more robust debate about America's unaccountable surveillance state.

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