Solvency
1nc – solvency
1. Legal regulation can't stop surveillance – it's too technical and laws aren't enforced
Assange et. al, 12 (Julian, editor-in-chief of WikiLeaks. Andy Muller-Maguhn, specialist on computers, telecommunications, and surveillance. Jacob Appelbaum, computer security researcher. Jeremie Zimmerman, co-founder and spokesperson for the citizen advocacy group La Quadrature du Net. Conversation in the book “Cypherpunks: Freedom and the Future of the Internet,” chapter titled “The Militarization of Cyberspace”)
JÉRÉMIE: So now it’s a fact that technology enables total surveillance of every communication. Then there is the other side of that coin, which is what we do with it. We could admit that for what you call tactical surveillance there are some legitimate uses— investigators investigating bad guys and networks of bad guys and so on may need, under the supervision of the judicial authority, to be able to use such tools— but the question is where to draw the line for this judicial supervision, where to draw the line for the control that the citizens can have over the use of those technologies. This is a policy issue. When we get to those policy issues you have politicians that are asked to just sign something and don’t understand the underlying technology, and I think that we as citizens have a role, not only to explain how the technology functions at large, including to politicians, but also to wade in to the political debates that surround the use of those technologies. I know that in Germany there was a massive movement against generalized data retention that led to the overturn of the Data Retention law in front of the constitutional court. 46 There is a debate going on in the EU about revising the Data Retention Directive. 47 ANDY: You are describing the theory of the democratic state which, of course, does need to filter out some bad guys here and there and listen to their phone calls on the basis of a court decision with overview to make sure it is done in the proper way. The trouble with that is that the authorities need to act in compliance with the law. If they don’t do that then what are they good for? Especially with this strategic approach, democratic states within Europe are massively buying machines that allow them to act exactly outside the law in regard to interception because they don’t need a court decision, they can just switch it on and do it, and this technology can’t be controlled. JULIAN: But are there two approaches to dealing with mass state surveillance: the laws of physics; and the laws of man? One is to use the laws of physics by actually building devices that prevent interception. The other is to enact democratic controls through the law to make sure people must have warrants and so on and to try to gain some regulatory accountability. But strategic interception cannot be a part of that, cannot be meaningfully constrained by regulation. Strategic interception is about intercepting everyone regardless of whether they are innocent or guilty. We must remember that it is the core of the Establishment carrying such surveillance. There will always be a lack of political will to expose state spying. And the technology is inherently so complex, and its use in practice so secret that there cannot be meaningful democratic oversight. ANDY: Or you spy on your own parliament. JULIAN: But those are excuses— the mafia and foreign intelligence— they are excuses that people will accept to erect such a system. JACOB: The Four Horsemen of the Info-pocalypse: child pornography, terrorism, money laundering, and The War on Some Drugs. JULIAN: Once you have erected this surveillance, given that it is complex, given that it is designed to operate in secret, isn’t it true that it cannot be regulated with policy? I think that except for very small nations like Iceland, unless there are revolutionary conditions it is simply not possible to control mass interception with legislation and policy. It is just not going to happen. It is too cheap and too easy to get around political accountability and to actually perform interception. The Swedes got through an interception bill in 2008, known as the FRA-lagen which meant the Swedish signals intelligence agency the FRA could legally intercept all communication travelling through the country in bulk, and ship it off to the United States, with some caveats. 48 Now how can you enforce those caveats once you’ve set up the interception system and the organization doing it is a secret spy agency? It’s impossible. And in fact cases have come out showing that the FRA had on a variety of occasions broken the law previously. Many countries simply do it off-law with no legislative cover at all. So we’re sort of lucky if, like in the Swedish example, they decided that for their own protection from prosecution they want to go legal by changing the law. And that’s the case for most countries— there is bulk interception occurring, and when there is a legislative proposal it is to protect the ass of those who are doing it. This technology is very complex; for example in the debate in Australia and the UK about proposed legislation to intercept all metadata, most people do not understand the value of metadata or even the word itself. 49 Intercepting all metadata means you have to build a system that physically intercepts all data and then throws everything but the metadata away. But such a system cannot be trusted. There’s no way to determine whether it is in fact intercepting and storing all data without having highly skilled engineers with authorization to go in and check out precisely what is going on, and there’s no political will to grant access. The problem is getting worse because complexity and secrecy are a toxic mix. Hidden by complexity. Hidden by secrecy. Unaccountability is built-in. It is a feature. It is dangerous by design.
2. (___)
3. Mass collection of private information is inevitable and doesn't cause material harm
Posner, 13 (Eric, professor at the University of Chicago Law School, is the co-author of "Terror in the Balance" and "The Executive Unbound." “Is the N.S.A. Surveillance Threat Real or Imagined?” 6-9-13. http://www.nytimes.com/roomfordebate/2013/06/09/is-the-nsa-surveillance-threat-real-or-imagined)
Jameel, I don’t see the need for systemic reform, nor do I see an offense to the Constitution. Indeed, I don’t even understand the nature of the objection to the National Security Agency programs. Exactly what harm did they cause? Two possibilities emerge from the current public discussion. 1. A general sense of creepiness that government officials know when we make phone calls, and for how long, or may even be reading our e-mail messages. Government should not look over our shoulders as we conduct our lives. 2. A fear that the government uses this information to undermine democracy — to blackmail, harass or embarrass critics, for example. The first objection strikes me as weak. We already give the government an enormous amount of information about our lives, and seem to have gotten used to the idea that an Internal Revenue Service knows our finances, or that an employee of a government hospital knows our medical history, or that social workers (if we are on welfare) know our relationships with family members, or that public school teachers know about our children’s abilities and personalities. The information vacuumed up by the N.S.A. was already available to faceless bureaucrats in phone and Internet companies — not government employees, but strangers just the same. Many people write as though we make some great sacrifice by disclosing private information to others, but it is in fact simply the way that we obtain services we want — whether the market services of doctors, insurance companies, Internet service providers, employers, therapists and the rest, or the nonmarket services of the government like welfare and security. Even so, I am exaggerating the nature of the intrusion. The chance that human beings in government will actually read our e-mails or check our phone records is infinitesimal (though I can understand that organizations like the A.C.L.U. that have a legitimate interest in communicating with potential government targets may be more vulnerable than the rest of us). Mostly all we are doing is making our information available to a computer algorithm, which is unlikely to laugh at our infirmities or gossip about our relationships. The second objection is a lot more serious. We know that our government is capable of misusing information in this way, as occurred during the Nixon administration. Many people seem to believe that President Obama sent telepathic signals to I.R.S. workers instructing them to harass Tea Party organizations. But I am unaware — and correct me if I am wrong — of a single instance during the last 12 years of war-on-terror-related surveillance in which the government used information obtained for security purposes to target a political opponent, dissenter or critic. That means that, for now, this objection is strictly theoretical, and the mere potential for abuse can’t by itself be a good reason to shut down a program. If it were, we would have no government.
Ext 1 - FISA will rubberstamp
FISA will interpret the aff in the broadest possible way to allow spying to continue – intelligence agencies are functionally unconstrained by rule of law
Granick, 13 (Jennifer, Director of Civil Liberties at the Stanford Center for Internet and Society. “NSA's Creative Interpretations Of Law Subvert Congress And The Rule Of Law” 12-16-13. Forbes. http://www.forbes.com/sites/jennifergranick/2013/12/16/a-common-law-coup-detat-how-nsas-creative-interpretations-of-law-subvert-the-rule-of-law/)
In the wake of today’s tremendously important ruling by the District Court for the District of Columbia that bulk collection of telephone metadata violates the Fourth Amendment, it is more important than ever that Congress end this misuse of section 215 of the USA PATRIOT Act. However, Deputy Attorney General James Cole testified earlier this week before the Senate Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic phone call records, even if the USA FREEDOM ACT passes into law. That must have come as a real surprise to committee chairman Senator Patrick Leahy (D-VT) and the dozens of USA FREEDOM Act’s bipartisan co-sponsors, all of whom agree that the core purpose of the bill is to end NSA dragnet collection of Americans’ communication data. Cole noted the reform legislation wouldn’t necessarily inhibit the NSA’s surveillance capabilities because “it’s going to depend on how the court interprets any number of the provisions that are in [the legislation].” Comments like this betray a serious problem inside the Executive Branch. The Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. This isn’t the rule of law. This is a coup d’etat. Leahy’s proposed legislation would amend section 215 of the USA PATRIOT Act to require the government to show the records it seeks are not only relevant but also material to an authorized investigation and that the target has some connection to terrorism or espionage before it can obtain those records. This latter requirement, the USA FREEDOM Act sponsors say, will “end bulk collection”. Cole apparently disagrees. Responding to a question at yesterday’s hearing on the bill, Cole said, “Right now the interpretation of the word ‘relevant’ is a broad interpretation. Adding ‘pertinent to a foreign agent’ or ‘somebody in contact with a foreign agent’ could be another way of talking about relevance as it is right now. We’d have to see how broadly the court interprets that or how narrowly.” In other words, the FISA court might let us keep doing what we’re doing no matter what the law says and despite Congress’ intent . All courts issue opinions about what the laws that legislatures pass mean. These opinions are called the “common law”. But common law interpretations of statutes are only legitimate if they are fair and reasonable interpretations. The NSA has a great track record getting FISC judges to interpret even obviously narrow phrases in surprisingly broad ways. For example, Americans, including the Patriot Act’s main sponsor Representative Jim Sensenbrenner (R-WI) and a co-sponsor of the USA Freedom Act, were shocked to learn last June that the NSA used Section 215 for bulk collection of phone data (and potentially other sensitive records). Sensenbrenner said, “[i]f Congress knew what the NSA had in mind in the future immediately after 9/11, the Patriot Act never would have passed, and I never would have supported it.” The 2004 FISC opinion authorizing the NSA’s collection and use of Internet metadata under the pen register statute is another dismaying example of this phenomenon. In this opinion, Judge Colleen Kollar-Kotelly acknowledged that she was allowing an “exceptionally broad” and “novel” form of collection, but nevertheless deferred to “the fully considered judgment of the executive branch in assessing and responding to national security threats and in determining the potential significance of intelligence-related information.” This opinion—called “strange” and a “head-scratcher”—later served as precedent upon which FISA Judge Claire Eagan relied in her 2006 authorization of the bulk phone records collection. Time and again, the FISC accepts the Administration’s shockingly flimsy arguments. As a set, the few public FISC opinions we’ve seen suggest that the Executive Branch—in cahoots with a few selected judges—has replaced legitimate public statutes with secret, illegitimate common law. The rule of law is a basic democratic principle meaning that all members of a society—individuals, organizations, and government officials—must obey publicly disclosed legal codes and processes. If Cole is right that, try as it might, Congress cannot end bulk collection because the secret FISA court may defer to the NSA’s interpretation of the rules, there is no rule of law. The NSA is in charge, the FISA court process is just a fig leaf, and this is no longer a democracy. There’s been a coup d’etat.