Professional Documents
Culture Documents
Surveillance State
The war on terror has being brought to America in the form of
aerial surveillance, making Orwells dystopia a reality
Gohoshray 2013 (Saby [President, Institute of Interdisciplinary Studies
Director, Research, and Compliance WorldCompliance Company]; Domestic
Surveillance Via Drones: Looking Through the Lens of the Fourth Amendment; 33 N.
Ill. U. L. Rev. 579)
A scenic drive along a picturesque highway , it is a vacation, a trip of a
Suddenly, the serenity of your surrounding is interrupted by a Hellfire missile
from a Predator drone. You are obliterated. Again, imagine you are in the seclusion of your fenced in
Imagine for a moment.
lifetime.
backyard. Lounging, barely clothed, and drenched in suntan lotion, it is your well-earned time off from work.
Suddenly, your zone of private reflection is shattered by the buzzing noise of a Hummingbird drone above. Before
you can cover up, the high-resolution zoom lens of the drone has already completed its mission--to capture multiple
images of sunbathers like yourself. This was a self-led mission by a voyeur rogue law enforcement personnel. Your
devoid of emotions and physiological limitations. Today's drones can both strike with deadly finality n4 and peer
deep into individual homes with see-through imaging capability, n5 high-powered zoom lenses, n6 and night-vision
This emerging new reality will soon be at the horizon of American social
landscape for various reasons. First, the public proclamation of success in containing
al-Qaeda n8 has emboldened the current administration. This has created a fertile
ground for law enforcement agencies in various states to deploy drones for
domestic surveillance. n9 Second, previously limited as an aid in border protection, n10 drones have
now become a desirable necessity for law enforcement across the nation . n11 Third,
capability. n7
despite the federal [*582] government's reluctance in allowing pervasive use for fear of aviation safety, n12 recent
presidential declarations n13 and congressional authorization n14 has brought this drone-induced Orwellian
Why? This Article examines the issue in two threads. In the first, it dissects the factors that brought us face-to-face
with this impending reality. In the second, it analyzes a set of constitutional, ethical, and philosophical reasons for
the illegitimacy of future deployment of domestic drones. Thus, this Article proceeds as follows: Part II examines the
current landscape to identify the socio-legal factors that may have contributed to the emergence of the mindset of
domestic surveillance. Identifying the post-9/11 landscape as the primary contributor to an emerging reality of a
security-centric society, this Part evaluates how jurisprudence may have attenuated the original understanding of
the Fourth Amendment, while enabling the law enforcement framework to rise above individual privacy concerns.
Part II also analyzes the reasons and societal factors that have given rise to the sociological apathy towards a
applicability of older cases in analogues behavior in the post-modern era, this Part identifies why an individual's
expectation of privacy when decoupled from the shaping effect of society's mass hysteria may be an objective
measure to reject drone surveillance. Part IV delves into a fundamental analysis of the impending domestic
surveillance. By combining social contract theory with the deeper liberty principles espoused by Warren and
Brandeis, this Part drives home that individuals in the contemporary American society have a fundamental right and
Fourth
Amendment jurisprudence may still be robust enough to address complexities
arising out of drone surveillance [*583] and when taken in conjunction with social
contract theory, may present a strong rationale for rejecting drones introduction at
this time.
long-standing inheritance to be secure within their private seclusion. Finally, Part V concludes that the
As such, this Comments major concern with domestic drone surveillance is not privacy. In the vast majority of
cases, police will not use drones to observe at what hour each night the lady of the house takes her daily sauna
and bath.60 Although this Comment does not focus on voyeuristic or Peeping Tom drones,61 intimate privacy
concerns are relevant Fourth Amendment values that deserve protection. To be sure, one can imagine such
distasteful surveillance being used for blackmail and persuasion (among other things), even from public vantage
those privacy concerns are being trumpeted so loudly that they have
obscured another relevant problem with drone surveillancediscriminatory sorting
through discretionary law enforcement. More precisely, the fear is provid[ing] law
enforcement with a swift, efficient, invisible, and cheap way of tracking the
movements of virtually anyone and everyone they choose.62 Police, through
legislative encouragement and judicial acquiescence, now have powerunmatched
in historyon the streets of this country: a form of paramilitarized violence found
in a rapidly expanding criminal justice-industrial complex, with both ideological and
material connections to the military industrial complex.63 Drone surveillance is yet
another tool in the arsenal of police discretion, including surveillance , [*741] arrest,
[detention and] incarceration, and the use of force up to and including the authority to kill."
points. However,
not just talking about the physical border, you're talking about an area that
encompasses many major cities that have large minority populations, and the idea that
these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in
African-American
communities could well feel the disproportionate impacts of the integrated use of
domestic drones and other surveillance in the coming years, as technologies such
as StingRay are already being used mostly in the ongoing war on drugs to track
those suspected of selling and buying drugs . The drug war has long negatively
impacted communities of color, based on racialized drug policies and racial
discrimination by law enforcement; two-thirds of all those convicted of drug crimes
are people of color, despite similar rates of drug use among whites and people of
color. These already-existing racial disparities in intrusive policing tactics and
deployment of surveillance technologies are one of the primary reasons civil
liberties experts are saying the government often gets it backward when thinking
about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing
that region are somehow accepting that they have a right to less privacy," she said.
their use afterward (when they may already be violating many people's civil rights). "What we see with StingRays is
the same phenomenon that we're seeing with [UAS], where federal agencies are using them," Guliani said. "State
and local agencies are using them. There's federal dollars that are going to buy them, and we're kind of having the
privacy debate after the fact with very little information."
FBI reminds me that, from the slave pass system to laws that deputized white civilians as enforcers of Jim Crow,
black people and other people of color have lived for centuries with surveillance
practices aimed at maintaining a racial hierarchy. Its time for journalists to tell a new story that
does not start the clock when privileged classes learn they are targets of surveillance. We need to understand that
data has historically been overused to repress dissidence, monitor perceived criminality, and perpetually maintain
an impoverished underclass. In an era of big data, the Internet has increased the speed and secrecy of data
collection. Thanks to new surveillance technologies, law enforcement agencies are now able to collect massive
amounts of indiscriminate data. Yet legal protections and policies have not caught up to this technological advance.
Concerned advocates see mass surveillance as the problem and protecting privacy as the goal. Targeted
surveillance is an obvious answerit may be discriminatory, but it helps protect the privacy perceived as an earned
privilege of the inherently innocent. The trouble is,
approach in use is Broken Windows. This approach to policing places an undue focus on quality of life crimeslike
selling loose cigarettes, the kind of offense for which Eric Garner was choked to death. Without oversight,
accountability, transparency, or rights, predictive policing is just high-tech racial profilingindiscriminate data
collection that drives discriminatory policing practices. As local law enforcement agencies increasingly adopt
surveillance technologies, they use them in three primary ways: to listen in on specific conversations on and offline;
to observe daily movements of individuals and groups; and to observe data trends. Police departments like
Brattons aim to use sophisticated technologies to do all three. They will use technologies like license plate readers,
which the Electronic Frontier Foundation found to be disproportionately used in communities of color and
communities in the process of being gentrified. They will use facial recognition, biometric scanning software, which
the FBI has now rolled out as a national system, to be adopted by local police departments for any criminal justice
purpose. They intend to use body and dashboard cameras, which have been touted as an effective step toward
accountability based on the results of one study, yet storage and archiving procedures, among many other issues,
remain unclear. They will use Stingray cellphone interceptors. According to the ACLU, Stingray technology is an
invasive cellphone surveillance device that mimics cellphone towers and sends out signals to trick cellphones in the
area into transmitting their locations and identifying information. When used to track a suspects cellphone, they
also gather information about the phones of countless bystanders who happen to be nearby. The same is true of
domestic drones, which are in increasing use by U.S. law enforcement to conduct
routine aerial surveillance. While drones are currently unarmed, drone manufacturers
are considering arming these remote-controlled aircraft with weapons like rubber
bullets, tasers, and tear gas. They will use fusion centers. Originally designed to increase interagency
collaboration for the purposes of counterterrorism, these have instead become the local arm of the intelligence
community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the
clearinghouse for increasingly used suspicious activity reportsdescribed as official documentation of observed
behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity. These
reports and other collected data are often stored in massive databases like e-Verify and Prism. As anybody whos
ever dealt with gang databases knows, its almost impossible to get off a federal or state database, even when the
data collected is incorrect or no longer true.
religious profilingit relies on it. Just as stop and frisk legitimized an initial, unwarranted contact
between police and people of color, almost 90 percent of whom turn out to be innocent of any crime, suspicious
activities reporting and the dragnet approach of fusion centers target communities
of color. One review of such reports collected in Los Angeles shows approximately 75 percent were of people of
color. This is the future of policing in America, and it should terrify you as much as it terrifies me. Unfortunately, it
probably doesnt, because my life is at far greater risk than the lives of white Americans ,
especially those reporting on the issue in the media or advocating in the halls of power. One of the most terrifying
uncovered by Wired in 2011, the bureau taught agents to treat mainstream Muslims as supporters of terrorism, to
view charitable donations by Muslims as a funding mechanism for combat, and to view Islam itself as a Death
Star that must be destroyed if terrorism is to be contained. From New York City to Chicago and beyond, local law
enforcement agencies have expanded unlawful and covert racial and religious profiling against Muslims not
suspected of any crime. There is no national security reason to profile all Muslims. At the same time, almost
450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum
seekers, families with small children, and the elderly. Undocumented migrant communities enjoy few legal
protections, and are therefore subject to brutal policing practices, including illegal surveillance practices. According
to the Sentencing Project, of the more than 2 million people incarcerated in the United States, more than 60 percent
are racial and ethnic minorities. But by far, the widest net is cast over black communities. Black people alone
represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on
the eve of the Civil War. Lest some misinterpret that statistic as evidence of greater criminality, a 2012 study
confirms that black defendants are at least 30 percent more likely to be imprisoned than whites for the same crime.
This is not a broken system, it is a system working perfectly as intended, to the detriment of all.
The NSA could not have spied on millions of cellphones if it were not already spying on black people, Muslims, and
migrants. As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today,
racial disparities are being made invisible by a media environment that has failed to
tell the story of surveillance in the context of structural racism.
discussed facts shaping this issue. I'm going to focus here most on domestic surveillance drones, but I want to say a
and cars in Pakistan, Yemen, Somalia, Afghanistan and multiple other countries aimed at Muslims (although US law
enforcement agencies already possess Predator drones and have used them over US soil for surveillance). Instead,
as I detailed in a 2012 examination of the drone industry's own promotional materials and reports to their
(UAS), used both for surveillance and attack purposes, is AeroVironment, Inc. (AV). Its 2011 Annual Report filed with
the SEC repeatedly emphasizes that its business strategy depends upon expanding its market from foreign wars to
domestic usage including law enforcement: AV's annual report added: "Initial likely non-military users of small UAS
headed off the battlefield. They're already coming your way. "AeroVironment, the California company that sells the
military something like 85 percent of its fleet, is marketing them now to public safety agencies." Like many drone
manufacturers, AV is now focused on drone products - such as the "Qube" - that are so small that they can be
"transported in the trunk of a police vehicle or carried in a backpack" and assembled and deployed within a matter
of minutes. One news report AV touts is headlined "Drone technology could be coming to a Police Department near
you", which focuses on the Qube. But another article prominently touted on AV's website describes the tiny UAS
product dubbed the "Switchblade", which, says the article, is "the leading edge of what is likely to be the broader,
even wholesale, weaponization of unmanned systems." The article creepily hails the Switchblade drone as "the
ultimate assassin bug". That's because, as I wrote back in 2011, "it is controlled by the operator at the scene, and it
worms its way around buildings and into small areas, sending its surveillance imagery to an i-Pad held by the
operator, who can then direct the Switchblade to lunge toward and kill the target (hence the name) by exploding in
his face." AV's website right now proudly touts a February, 2013 Defense News article describing how much the US
Army loves the "Switchblade" and how it is preparing to purchase more. Time Magazine heralded this tiny drone
weapon as "one of the best inventions of 2012", gushing: "the Switchblade drone can be carried into battle in a
backpack. It's a kamikaze: the person controlling it uses a real-time video feed from the drone to crash it into a
precise target - say, a sniper. Its tiny warhead detonates on impact." What possible reason could someone identify
as to why these small, portable weaponized UAS products will not imminently be used by federal, state and local
law enforcement agencies in the US? They're designed to protect their users in dangerous situations and to enable
enforcement is what its title describes as "The Militarization of America's Police Forces". The history of domestic law
enforcement particularly after 9/11 has been the importation of military techniques and weapons into domestic
policing. It would be shocking if these weapons were not imminently used by domestic law enforcement agencies.
In contrast to weaponized drones, even the most nave among us do not doubt the imminent proliferation of
domestic surveillance drones. With little debate, they have already arrived. As the ACLU put it in their recent report:
"US
been seen in Afghanistan, where the US military has dubbed its drone surveillance system "the Gorgon Stare",
That
drone surveillance system is "able to scan an area the size of a small town" and "the
most sophisticated robotics use artificial intelligence that [can] seek out and record
certain kinds of suspicious activity". Boasted one US General: "Gorgon Stare will be looking at a whole
named after the "mythical Greek creature whose unblinking eyes turned to stone those who beheld them".
city, so there will be no way for the adversary to know what we're looking at, and we can see everything." The NSA
already maintains ubiquitous surveillance of electronic communications, but the Surveillance State faces serious
limits on its ability to replicate that for physical surveillance. Drones easily overcome those barriers. As the ACLU
report put it: I've spoken previously about why a ubiquitous Surveillance State ushers in unique and deeply harmful
effects on human behavior and a nation's political culture and won't repeat that here (here's the video (also
embedded below) and the transcript of one speech where I focus on how that works). Suffice to say, as the ACLU
explains in its domestic drone report: "routine aerial surveillance would profoundly change the character of public
life in America" because only drone technology enables such omnipresent physical surveillance. Beyond that, the
tiny size of surveillance drones enables them to reach places that helicopters obviously cannot, and to do so
without detection. They can remain in the sky, hovering over a single place, for up to 20 hours, a duration that is
always increasing - obviously far more than manned helicopters can achieve. As AV's own report put it (see page
11), their hovering capability also means they can surveil a single spot for much longer than many military
satellites, most of which move with the earth's rotation (the few satellites that remain fixed "operate nearly 25,000
miles from the surface of the earth, therefore limiting the bandwidth they can provide and requiring relatively
larger, higher power ground stations"). In sum, surveillance drones enable a pervasive, stealth and constantly
hovering Surveillance State that is now well beyond the technological and financial abilities of law enforcement
agencies. One significant reason why this proliferation of domestic drones has become so likely is the emergence of
a powerful drone lobby. I detailed some of how that lobby is functioning here, so will simply note this passage from
a recent report from the ACLU of Iowa on its attempts to persuade legislators to enact statutory limits on the use of
domestic drones: "Drones have their own trade group, the Association for Unmanned Aerial Systems International,
which includes some of the nation's leading aerospace companies. And Congress now has 'drone caucuses' in both
the Senate and House." Howie Klein has been one of the few people focusing on the massive amounts of money
from the drone industry now flowing into the coffers of key Congressional members from both parties in this "drone
caucus". Suffice to say, there is an enormous profit to be made from exploiting the domestic drone market, and as
usual, that factor is thus far driving the (basically nonexistent) political response to these threats. What is most
often ignored by drone proponents, or those who scoff at anti-drone activism, are the unique features of drones: the
way they enable more warfare, more aggression, and more surveillance. Drones make war more likely precisely
because they entail so little risk to the war-making country. Similarly, while the propensity of drones to kill innocent
people receives the bulk of media attention, the way in which drones psychologically terrorize the population simply by constantly hovering over them: unseen but heard - is usually ignored, because it's not happening in the
US, so few people care (see this AP report from yesterday on how the increasing use of drone attacks in Afghanistan
is truly terrorizing local villagers). It remains to be seen how Americans will react to drones constantly hovering over
their homes and their childrens' schools, though by that point, their presence will be so institutionalized that it will
be likely be too late to stop. Notably, this may be one area where an actual bipartisan/trans-partisan alliance can
meaningfully emerge, as most advocates working on these issues with whom I've spoken say that libertarianminded GOP state legislators have been as responsive as more left-wing Democratic ones in working to impose
some limits. One bill now pending in Congress would prohibit the use of surveillance drones on US soil in the
'limited police resources and community hostility."' 12 5 This association of public anonymity and privacy is not new.
126 Privacy expert and Columbia University Law professor Alan F. Westin points out that "anonymity [] occurs when
the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and
surveillance." 127 Westin continued by stating that: [A person] may be riding a subway, attending a ball game, or
walking the streets; he is among people and knows that he is being observed; but unless he is a well-known
celebrity, he does not expect to be personally identified and held to the full rules of behavior and role that would
operate if he were known to those observing him. In this state the individual is able to merge into the "situational
landscape." 128 While most people would share the intuition of Chief Justice Rehnquist and professor Westin that
we expect some degree of anonymity in public, there is no such right to be found in the Constitution. Therefore ,
legislature. Based on current trends in technology and a keen interest taken by law
enforcement in the advancement of UAS integration into national airspace, it is
clear that drones pose a looming threat to Americans' anonymity . 129 Even when UASs are
authorized for noble uses such as search and rescue missions, fighting wildfires, and assisting in dangerous tactical
should take up the call to protect the subspecies of privacy that is anonymity. A. Philosophic: The Panopticon Harm
Between 1789 and 1812, the Panopticon prison was the central obsession of the renowned English philosopher
Jeremy Bentham's life. 131 The Panopticon is a circular building with cells occupying the circumference and the
guard tower standing in the center. 132 By using blinds to obscure the guards located in the tower, "the keeper [is]
concealed from the observation of the prisoners ... the sentiment of an invisible omnipresence."'133 The effect of
such architectural brilliance is simple: the lone fact that there might be a guard watching is enough to keep the
prisoners on their best behavior. 134 As the twentieth-century French philosopher Michel Foucault observed, the
major effect of the Panopticon is "to induce in the inmate a state of conscious and permanent visibility that assures
the automatic functioning of power."'135 In Bentham's vision ,
example, in a case regarding the constitutionally vague city ordinance that prohibited "nightwalking," Justice
Douglas commented on the importance of public vitality and locomotion in America: The difficulty is that [walking
and strolling] are historically part of the amenities of life as we have known them. They are not mentioned in the
Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people
the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of
dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have
encouraged lives of high spirits rather than hushed, suffocating silence. 138 As Justice Douglas understood,
bring about in law enforcement? The following is an excerpt from a news report on the mindset of UAS pilots who operate military
Hitler refers to Jews as vermin (volksungeziefer) or parasites (volksschtidling). In the infamous Nazi film, Der ewige Jude, Jews were
portrayed as harmful pests that deserve to die. Similarly,
Plan
The United States federal government should curtail its aerial
surveillance by ruling that such searches constitute a search
within the Fourth Amendment and is unreasonable without a
warrant, barring exigent circumstances.
Solvency
Only court action on aerial surveillance solves privacy
backsliding, keeps up with technology, and provides law
enforcement with legal bright lines
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE
FOURTH AMENDMENT: ADOPTING A REASONABLE FOURTH AMENDMENT
JURISPRUDENCE TO PREVENT UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT
SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
IV. ENSURING A REASONABLE FUTURE BY PREVENTING UNREASONABLE UAS SURVEILLANCE Speaking for the
Supreme Court in Kyllo, Justice Scalia acknowledged that technological advances have reduced the privacy [*489]
protections granted by the Fourth Amendment. n252 In Justice Scalia's mind, the primary issue facing the Court was
"what limits there are upon this power of technology to shrink the realm of guaranteed privacy." n253 Attempting to
determine how courts might decide the constitutionality of warrantless UAS surveillance of the home and its
if UAS
surveillance is not a Fourth Amendment search, then the "realm of guaranteed
privacy" referred to by Justice Scalia would not just be shrunk, but eliminated. n255
curtilage is context-dependent, and ultimately speculative. n254 As one author has noted,
Even if UAS surveillance is currently a search subject to the Fourth Amendment that status may be lost as UAS
Supreme Court has heard challenges to law enforcement's use of aerial surveillance, sense enhancing devices, and
electronic tracking, it has never considered anything like UAS, which combine all three capabilities. n261
Historically, the cost of using personnel for traditional surveillance placed a practical limitation on police
surveillance which acted to protect privacy. n262 The affordability of UAS could eliminate this constraint on
excessive police presence and dramatically increase the potential for abuses. n263 In addition ,
UAS' small
size and silent operation allow them to operate in relative stealth. n264 Citizens could
be observed by law enforcement without ever knowing they were under
surveillance. n265 Although UAS are not invasive by causing "undue noise ... wind, dust, or threat of injury,"
they may actually be more intrusive than conventional aircraft. n266 Because people will not have notice of UAS'
approach or presence, they will be unable to keep private those activities which they do not wish to expose to
context, or when they are armed with a new technology. n271 Similarly, the courts will not lag behind
each new technological advance in UAS technology because a warrant will always
be required. n272 Finally, and most importantly, the rule will accomplish what current
jurisprudence cannot: it will prevent Fourth Amendment protections from being left
"at the mercy of advancing technology ." n273 The Supreme Court has established
precedent for adopting the rule proposed here. n274 In Katz, the Court shifted the basis of
finding that a Fourth Amendment search had occurred from a physical trespass to an intrusion on a reasonable
expectation of privacy. n275 In doing so, the Court demonstrated its willingness to adopt new rules to ensure that
the courts
would be acting in accordance with the precedent from Katz and would guarantee
that UAS technology remains within the scope of Fourth Amendment protections.
privacy is protected from threats posed by new technologies. By adopting the rule proposed here,
fully integrated into U.S. airspace. n288 Equally disconcerting is the fact that the Supreme Court's estimation of what society
considers reasonable is not necessarily accurate. n289 Justice Scalia facetiously observed that "unsurprisingly, those "actual
(subjective) expectations of privacy' "that society is prepared to recognize as reasonable' bear an uncanny resemblance to those
adopted." n297 Although the original degree of privacy is difficult to ascertain, allowing the government to
use a UAS outfitted with facial recognition software or high-powered cameras to
silently track individuals for extended periods of time without a warrant hardly
seems to qualify. n298 Equally unlikely is the idea that Congress, rather than the Constitution, was expected to be the
guarantor of privacy protections at the time the Fourth Amendment was adopted. n299 It is clear that the courts
need a new approach to their Fourth Amendment jurisprudence to protect privacy
from a technological onslaught. Requiring a warrant for all UAS surveillance will
ensure that even the widespread use of UAS will not erode society's legitimate
privacy expectations.
the Internet, Global-Positioning Systems (GPS), biometrics, gigapixel cameras, face recognition technology, and the
widespread use of e-mail and other forms of electronic communication, there has been no attendant development
judges to misunderstand the context of their decisions and their likely effect when technology is in flux." n370 But
in the unique situation outlined in this Article, judges do not need to be experts in these technological fields to
understand the capabilities of technologies like ALPR and facial recognition software. The danger I discuss in this
article is that police will keep a digital dossier of every single person's movements. This type of monitoring would
facilitate fishing expeditions, increase the likelihood of corrupt behavior by law enforcement, and facilitate some
types of racial profiling.
more, critics of judicial policymaking seem tacitly concerned that the limited applicability of judicial rules in the
future will weaken the force of stare decisis, thereby undermining the judiciary's legitimacy. But nothing could
further de-legitimize the judiciary more than a failure to serve its fundamental role as a protector against the
tyranny of majoritarian preferences. The courts are therefore the best-positioned actor within our decentralized
federal system to protect against the threat of extensive, indiscriminate data collection. Concerns about the
judiciary's institutional competence seem misplaced. And though the courts have limited resources, there is not
enough convincing evidence of a "judicial information deficit" n374 so as to overcome the judiciary's important role
as protectors of discrete and insular minorities.C. Re-conceptualizing the Current Privacy Doctrine in Light of the
study of privacy law. I argue that, given the mounting evidence of efficient retention of public surveillance data and
data centralization, it is finally time to re-conceptualize outdated privacy law assumptions - principal among them
the antediluvian notion that an individual has no reasonable expectation to privacy in public movements. To be
clear, I am not arguing that, descriptively, people currently have an honest expectation to privacy in public in
today's world. In the age of GPS, smart phones, Facebook, and Twitter, our socially reasonable expectation to
privacy is weaker than ever. Instead, it is time for a normative reassessment of our entire privacy doctrine. Of
course, I am not the first to propose such an argument. Professor Solove has already observed: Privacy is not simply
an empirical and historical question that measures the collective sense in any given society of what is and has long
been considered private. Without a normative component, a conception of privacy can only provide a status report
on existing privacy norms rather than guide us toward shaping privacy law and policy in the future. If we focus
simply on people's current expectation of privacy, our conception of privacy would continually shrink given the
state can monitor their every movement with ALPR? Do we reasonably expect a person to assume the risk that the
state will keep extensive, centralized data on their movements indefinitely? Or perhaps the more important
question is should we expect individuals to completely abandon all anonymity in public? I believe the clear,
normative answer to these questions is a resounding no, and the implications of the digitally efficient investigative
state only add weight to the claims previously made by Professor Solove and others. Ultimately, this Article only
scratches the surface of the broader social implications of the digitally efficient investigative state. Questions
remain about the relative criminological benefits of observational comparison as compared to wholesale data
retention. There is an increasing need for empirical research on the effects these emerging technologies have on
individual behavior. And there is a dearth of concrete data on the extent to which law enforcement use these
technologies. I offer only a brief glimpse into this new technological order, the relevant case law, and some general
between technologies that merely improve police efficiency and those that offer officers a new, extrasensory ability.
For the first time,
technologies. Implicit in this action will be the recognition that sometimes improvements in efficiency can be,
quite simply, so efficient as to be unconstitutionally harmful. Unregulated efficiency can facilitate
police wrongdoing, discrimination, and calumniate political dissenters. Unregulated
efficiency in policing technology undermines central protections and tenants of a
democratic state. The relationship between efficiency of criminal investigations and privacy rights will be a
new frontier for the courts in the coming decades. Th e courts should forcefully, but prudently,
protect against the unregulated efficiency of emerging investigative and
surveillance technologies. The judicial response offered in this Article would be but one more example of
the courts exercising their proper role as a limited but effective policymakers.
enemy, once identified as simply al Qaeda and affiliated groups, now includes amorphous
concepts like Islamic extremism or violent extremists. Meanwhile, any shared
understanding of when the war might end has basically vanished from public
discourse. Where there was once an aspiration in Washington to wind down the era of perpetual war, there
is now an agreement that America faces a multigenerational threat. With little
awareness of the consequences of this shift in discourse, U.S. counterterrorism ideology has become
far more nebulous, less concrete, and gradually more open-ended. The war on
terrorism is going poorly: The number, estimated strength, lethality (within countries they
operate in, not against Americans), and social media influence of jihadi terrorist groups is
growing. Yet, the same tough-sounding clichs and wholly implausible objectives are repeated
over and over, with no indication of any strategic learning or policy adjustments. If this
virulent and extremist virulent in that its poisonous and harmful and that repeatedly espousing it
ensures continued strategic failure, and extremist in that it proclaims the most extreme objectives that will never be
February, President Barack Obama said, We are at war with people who have perverted Islam and said that the
international community must eradicate this scourge of violent extremism. Similarly, when attempting to describe
the enemy, the chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, claimed that the United States is in a
fight against the group that has perverted Islam. In February, National Security Advisor Susan Rice contextualized
the U.S. mission as to cut off violent extremism at the knees. Earlier that month, she attempted to describe the
undefined enemy: As al Qaeda core has been decimated, we have seen the diffusion of the threat to al Qaeda
affiliates, ISIL, local militia[s], and homegrown violent extremists. Eric Holder, then the attorney general, claimed,
also in February, that the United States is simply combating the threat of violent extremism. Gen. Lloyd Austin,
commander of U.S. Central Command, said the enemy is ISIL and other violent extremist groups. Some
policymakers have been even vaguer. When asked to define the enemy, Secretary of State John Kerry said, I call
them the enemy of Islam. Lets set aside the fact that Kerry is now presuming to interpret what is legitimate faith
for 1 billion Muslims. Just who is this enemy precisely? Meanwhile, the Republican presidential candidates are
outdoing one another in blurring the enemy and exponentially expanding the number of individuals whom the
United States must defeat. Sen. Marco Rubio (R-Fl.) coined the Taken doctrine: On our strategy on global jihadists
and terrorists, I refer them to the movie Taken Liam Neeson. He had a line, and this is what our strategy should
be: We will look for you, we will find you, and we will kill you. Less theatrically, Sen. Ted Cruz (R-Texas) merely
pledged, We will stand up and defeat radical Islamic terrorism. Former Texas Gov. Rick Perry said, We are in the
early years of a struggle with violent Islamic extremists that will last many decades. Meanwhile, Sen. Rand Paul (RKy.), while touting his alleged willingness to name the enemy, called them radical Islam and haters of mankind.
Again, its fine, though meaningless, to talk tough, but whom are these threats being made against? The other
threatening recent shift in U.S. counterterrorism ideology relates to the end state in the war on terrorism and when
officials and
policymakers no longer pretend that the war on terrorism will ever end ; nor do they offer
any narrative for how this war would end. Rather, they are attempting to normalize the war on
terrorism as something all Americans should accept and get used to . As Defense
Secretary Ashton Carter admitted, We need to be thinking about terrorism more generally as
a more enduring part of our national security mission. This shift was crystallized in a
this might come about. Although Obama once claimed that this war, like all wars, must end,
remarkable recent observation by CIA Director John Brennan. Three years ago, Brennan, then Obamas closest
counterterrorism advisor, pledged, Were not going to rest until al Qaeda the organization is destroyed and is
eliminated from areas in Afghanistan, Pakistan, Yemen, Africa, and other areas. Were determined to do that. Yet,
last month, when asked at Harvard University when the war on terrorism will end, he responded philosophically:
Its a long war, unfortunately. But its been a war that has been in existence for
millennia. So this is going to be something, I think, that were always going to
have to be vigilant about. In other words, defeating terrorism is eschatological and
eternal. Similarly, Obama and his senior aides have come to repeatedly reframe the
war in decades. The new National Security Strategy describes it as a generational struggle in the aftermath
of the 2003 Iraq war and 2011 Arab uprisings, which will redefine the region as well as relationships among
communities and between citizens and their governments. Meanwhile, Dempsey, the most senior uniformed
military official, warned of Islamic terrorism: I think this threat is probably a 30-year issue. Likewise, on Capitol
Hill, this view has become standardized. Rep. Mac Thornberry (R-Texas) said it is a multigenerational struggle with
no cheap way to win this fight. Similarly, Sen. John McCain (R-Ariz.) called it a generational fight for civilization
against brutal enemies. Rep. Trent Franks (R-Ariz.) went even further than Brennan, noting, Weve been fighting
this radical Islamist ideology for 1,400 years. In other words, long before the United States was even established.
as: The source of power that provides moral or physical strength, freedom of action, or will to act. Yet, again,
Third, deference advocates argue that national security issues are of a highly
complex and classified nature, which courts are not competent to handle or assess .
Without full information about potential harms and the expertise to make risk assessments,
courts are not equipped to determine whether the government's infringement of a particular
liberty is appropriate. n281
Kennedy articulated the expertise rationale in Boumediene: in contrast to members of the
other branches, most judges do not "begin the day with briefings that may describe new
and serious threats to our Nation and its people." n282 Though the dissenters in Boumediene
criticized its employment as a rhetorical pose, n283 Roberts reified the rationale in
Humanitarian Law Project at the heart of his opinion. n284
Relatedly, deference may be rationalized because the objective in the terrorism context is
prevention, not prosecution. n285 As a result, the government may rely on intelligence
standards as opposed to those utilized in the criminal context. n286 Courts are not familiar
with the intelligence area and are therefore not qualified to evaluate the evidence that the
government may rely on.n287 Finally, deference may be urged due to the lack of precision or
quantification of likelihood of an attack. n288
[*1456] The expertise rationale ignores the fact that courts review the decisions of
experts in a myriad of highly complex subjects. n289 Judges also may be at a
greater advantage in terms of determining the accuracy of information because of
the adversarial process, which allows them to weigh contrary information that
executive officials might not have incentive to consider. n290Article III courts have,
of course, overseen scores of terrorism cases, both of domestic and international
dimensions. n291 As for the secretive nature of certain subjects, there are
procedures in place that have permitted courts to have access to classified
information. n292 Finally, specialized courts have also been created that allow for judicial
review of information with standards distinct from those in traditional Article III courts.
n293
[*1457] Concerning the lack of quantification, some scholars argue that terrorism risk
analysis can be undertaken as it is in other areas, where threats are analyzed "as a matter
of course," such as nuclear power plant accidents and environmental
protection. n294 Moreover, private entities, such as insurance companies, and various private
and governmental risk analysts commonly engage in the admittedly difficult enterprise of
predicting terrorist attacks. n295
[*1458] Deference can finally be rejected because experts are not always
right. n296 Indeed, experts are often political actors whose predictions and
assessments may be both a product of fear of blame and accountability and
objective analysis. n297 Moreover, judicial review that entails an honest discussion
of risk assessments can play an important role in a democratic society; how we deal
with the risks we face should not be left only to the experts. n298
(Ashley S., The Observer Effect: National Security Litigation, Executive Policy
Changes, and Judicial Deference, 82 Fordham Law Review 2, SEP)
The observer effect provides an important counterweight to the executives instinct
to prioritize national security equities at the expense of individual rights because
the executive knows that the courts may be a future audience for its policies. A
primary reason to be concerned about allowing the executive to completely
dominate national security decisionmaking is the fear that the executive will
conduct skewed risk assessments, overstate the threat that the country faces, and
establish excessively draconian policies as a result .151 As Cass Sunstein suggests, [T]he
President has a strong incentive to take precautions even if they are excessive and even unconstitutional.152
Ensuring some level of ambiguity about whether a court will step in to review a particular policy helps counteract
that bias. Christina Wells notes that the lack of predictability regarding a courts approach . . . should force the
advance
knowledge of the existence of judicial review can force the executive to assume
some pre-decisional awareness of accountability.154 That is, when the executive
understands that it likely will be forced to explain its reasoning after the fact for
particular security policies it adopts, it will think more carefully ex ante about what
those policies should be and weigh a greater number of alternatives.155 While this
element has procedural aspects to itforcing a more careful and considered
process of adopting policyit also has important substantive effects. Assuming that
courts as a rule will favor policies that are more rights protective than those favored by the executive , this
perception of future judicial oversight will shift the substantive policy in a more
rightssensitive direction.156
executive to consider that the possibility of rigorous judicial review is very real.153 In her view,
which the courts did not defer were individual rights cases. In short, the observer
effect produces a better second-best world when the cases in which the courts
show less deference are those that implicate individual rights.
which the mass surveillance techniques of the NSA left us totally unprepared. They appeared suddenly, startlingly
so, these black-clad men of ISIS, beheading journalists and others27 as they formed their proclaimed Sunni
the
fearsome spectacle of a terrorist enemy drove reason from the stage and the chant
of war was in the air. The New York Times carried the text ofObama's speech to the nation on September 10,
Caliphate over a broad swath of Syria and lraq. 28 Once again, as with the al Qaeda attacks of 9/11,
2014, in which he vowed to "destroy the terrorist group."29 Defense Secretary Chuck Hegel said that ISIS poses an
Lost in the moment of fear-induced passion was the fact that these men of ISIS who so alarmed us, like their cousins
in al Qaeda, were hardly unknown or mysterious beings, but instead monsters partially of our own creation. Adam
Gopnik reinforced this point in an August 2014 article in the New Yorker. "ISIS is a horrible group doing horrible
things, and there are many factors behind its rise," he wrote. "But they came to be a threat and a power less
because of all we didn't do than because of certain things we did do-foremost among them that massive, forward
intervention, the Iraq War. (The historical question to which ISIS is the answer is: What could possibly be worse than
when the public was so illserved with alarmist information about the extent of the terrorist threat-the
president was presumably in possession of that vast trove of intelligence data
collected by the NSA and analyzed with the brilliant software of the best Silicon
Valley datamining companies such as the media-celebrated Palantir. And yet there is no evidence that
this costly and intrusive effort was the least bit useful in predicting the rise of ISIS. Clearly, there is a
disturbing disconnect between the zeal with which big data is collected and the lack
of scientific precision in utilizing that data to make sound policy decisions and to
inform the public as to the necessity of action . It is also difficult to see just how that data, based as
Saddam Hussein?)"31 Now, once again-and this time as compared to 9 I 11,
it is on the minutiae of the lives of much of the world's population, is useful to an understanding of this threat. This
book explains the continued rise of a military-intelligence complex that, through the assertion of a pressing danger
to national security after 9 I 11, made an unfettered and largely unchallenged claim upon the vast amount of
private data collected in a wired world by government and private enterprises. It is a claim based on the
unquestioned assumption that what passes for military intelligence is sufficiently and uniquely productive of useful
insight to warrant the costs to our democracy as well as our federal budget, and that less invasive means of
research such as scholarship, journalism, and traditional shoe-leather spy and detective work are inherently
inadequate to the task of protecting us in a cyberworld. It is a commonly persuasive argument and difficult to
challenge given that the high-tech surveillance is cloaked in such tight secrecy. In the wake of the Snowden
revelations, when there was a much-heightened public awareness of the threat to privacy and a willingness, even
What now passes for military intelligence is a tech -driven oxymoron that denies the place of historical
contemplation, cultural and religious study, political complexity, and ethical restraints in assessing dangers to a
nation.
Never has our nation's foreign policy been so poorly served as in the era of
the Internet, with its enormous potential to enlighten us; but the collusions of warmongering fanatics and profiteers are beyond the comprehension of even the most
powerful machines. They must not be beyond the purview of public awareness, however. A fully
informed public is the best safeguard against the hazardous foreign entanglements
that our founders warned were the main threat to the health of the republic. That is
why they enshrined the constitutional protections against unbridled government power they believed would subvert
the American experiment in representative governance. We must heed the wisdom of the EFF's senior attorney Lee
Tien, who as much as any constitutional lawyer has battled on behalf of those rights. As he summed up in an
interview: "We need to fix the national security classification system that has classified so much information that we
don't know what's going on. It's hard to know what we should do, but we should all agree that knowing what's
happening is the first step. It's dangerous to propose a solution when you don't know what the extent of the
problem is. If you asked me before the Snowden revelations, my answer would be different. There are no personal
solutions to this; there is nothing we can do individually." "This is a systemic problem," he continued. "It's an
institutional problem, it's a political problem. There can only be collective action. That's it. That means we need to
organize.
You can't have a democracy if you don't have sufficient information. We're fighting
for the soul of this democracy."
call on all of them-individuals, Internet companies, politicians, the government-to fix it, and we need to
Case Support
Privacy Advantage
We know, however, from so many historical examplesthe Roman Empire, Nazi Germany, the Soviet Union-that unchallenged authority not
only will violate human rights but also will ultimately sow the seeds of its own ruin,
increasingly blind to its own limitations and flaws . Despite our historically innovative
constitutional checks on government power, we are nevertheless always flirting with
imperial hubris. We see this clearly in the pattern of lies that defined US foreign policy after 9/11 ; it is
quite apparent that leaving those lies largely unchallenged in the name of
classification seriously weakened the position of the United States in the world.
Thomas Drake, Chelsea Manning, or Edward Snowden.
While
state statutes and proposed federal legislation attempt to limit law enforcement's
ability to use drones in surveillance efforts, those proposals and statutes do not
adequately address the duration of the sur-veillance or the sophistication of the
technology used by law enforcement to enhance drone capabilities . Therefore, by requiragencies, n288 the drag-net surveillance that was once a laughable concept n289 is now a reality. n290
ing a warrant and restricting law enforcement from conducting drone surveillance for a period lasting longer than
twenty-four hours, the proposed legislation will best address the issues left open by Fourth Amendment
legislation that attempts to describe a circumstance meriting the use of a drone, n292 using the exigent
circumstances language will allow law enforcement agen-cies to comply with Fourth Amendment jurisprudence
already defined by the Court. Similarly,
this
proposal would allow law enforcement to be exempt from the warrant requirement
for exigent circumstances, while also allowing them to obtain a warrant from a
neutral and detached magistrate when law enforcement intends to conduct longterm surveillance, thereby ensuring that law enforcement agencies comply with the
warrant requirement of the Fourth Amendment and respect citizens' privacy rights.
public use, the general restriction provides a bright-line rule to law enforcement agencies. [*721] Therefore,
Despite a strong argument that UAS surveillance should not constitute a search as
long as it shows nothing more or different than what is revealed by naked-eye
observation, n240 it is not clear that courts would accept technological surveillance
as an equivalent substitute for manned surveillance. n241 In fact, in holding that the use of a
camera to photograph an open industrial area is not a search, the Supreme Court emphasized that commercial
property does not have the same heightened expectation of privacy as the home and stated that "the photographs
here are not so revealing of intimate details as to raise constitutional concerns." n242 However ,
given the
expectation of privacy in the home and the Supreme Court's assertion that "in the
home ... all details are intimate details," n243 it could be that any [*488] UAS
surveillance taken through skylights, windows, or open doors constitutes a search.
n244 Finally, and most importantly, in Kyllo, the Supreme Court may have opened the door to
warrantless UAS surveillance of the home at some point in the not-too-distant
future. n245 In holding that the use of thermal imaging constitutes a search, the
Court provided an important caveat by stating that when the technology used is
available to the general public, it does not constitute a search . n246 Therefore, it
appears that the Court's bright-line rule drawn at the entrance to the home may
have been written in "disappearing ink ." n247 To date, UAS are not in general public use. n248 That
is about to change since certain government agencies are allowed to operate them, the FAA is required to fully
integrate them into U.S. airspace by 2015, and their decreasing cost makes them more widely accessible. n249
Once the use of UAS becomes commonplace, the government may be able to use them to photograph or scan the
interior of a home without a warrant, regardless of whether the information revealed could not have otherwise been
obtained without a physical intrusion. n250 Therefore ,
Unmanned aerial vehicles (drones) have become essential to government surveillance overseas and are
now being deployed domestically for law enforcement and other purposes . The
ability of drones to conduct widespread domestic surveillance has raised serious
privacy concerns. Both government and private actors may use drones. Given the proliferation of this new
technology, Congress has recently directed the Federal Aviation Administration (FAA) to expedite the licensing
process and open the domestic airspace to drones. n4 Situations like the one described above will likely become
more common in the near future. n5 Domestic drones [*442] have the potential to allow the government to
effectively and efficiently monitor the activities of people across the nation. Part I of this Comment examines the
capabilities of drones, discusses currently planned drone deployments, and examines recent developments that
have brought the topic of domestic drone surveillance to the forefront of national security law discussions. This
applies an economic perspective to determine the optimal level of domestic drone surveillance that the law should
allow. This analysis is based upon a general economic model of surveillance developed by Andrew Song following
the September 11, 2001 terrorist attacks. n6 Economic analysis shows that the uncontrolled domestic deployment
of drones would lead to an inefficient and unproductive loss of social utility. Prompt legislative action is therefore
necessary to address the fundamental privacy challenges presented by the use of drones. Part IV concludes by
proposing a legal framework to balance security and other interests while safeguarding the privacy rights of U.S.
citizens. As discussed in this comment, such legislation should allow constructive use of the technology within a
framework that protects individual privacy rights. I. Background: Domestic Deployment of Drones Recent
congressional legislation has directed the FAA to expedite its current licensing process and allow the private and
commercial use of drones in U.S. airspace by October 2015. n7 The FAA has streamlined the authorization process
to "less than 60 days" for nonemergency drone operations. n8 Among other requirements, the recent legislation
directs the FAA to allow government agencies to operate small drones weighing less than 4.4 pounds. n9 The use of
drones can be expected to increase dramatically in the coming years. [*443] The FAA has already authorized many
police departments and other agencies to use drones. n10 As of November 2012, the FAA oversaw 345 active
Certificates of Waiver or Authorization that allow public entities to operate drones in civil airspace. n11 Customs and
Border Protection uses Predator drones along the nation's borders "to search for illegal immigrants and smugglers"
n12 and "the FBI and Drug Enforcement Administration have used Predators for other domestic investigations." n13
Predators owned by Customs and Border Protection and based at U.S. Air Force bases have been deployed on
numerous occasions to assist local law enforcement. n14 One law enforcement agency has even deployed a drone
capable of being armed with lethal and non-lethal weapons. n15 Drones also have applications beyond government
law enforcement. Drones may be used to provide live video coverage of events without the need to use piloted
helicopters and by paparazzi chasing after pictures of celebrities and other public figures. n16 Individuals may use
drones to spy on their neighbors, to keep an eye on their children, or to keep tabs on a potentially unfaithful spouse.
n17 The possibilities for corporate espionage and the theft of trade secrets are also endless. Drones range in size
from handheld units to units the size of large aircraft and have a wide variety of capabilities. n18 Nearly fifty
companies are reported to be developing an estimated 150 varieties of drone systems. n19 Users of drones may
include the military, federal and local law enforcement agencies, business entities, and private individuals. Drones
have many diverse domestic uses including surveillance of dangerous disaster sites, patrolling borders, helping law
enforcement locate suspects, monitoring traffic, crop dusting, aerial mapping, media coverage, and many others.
cameras, n21 face-recognition technology, n22 video-recording capability, n23 heat sensors, n24 radar systems,
n25 night vision, n26 infrared sensors, n27 thermal-imaging cameras, n28 Wi-Fi and communications interception
Drones
will soon be able to recognize faces and track the movement of subjects with only
minimal visual-image data [*445] obtained from aerial surveillance. n32 Drones have the ability
to break into wireless networks, monitor cell-phone calls, and monitor entire towns
while flying at high altitude. n33 These rapid technological advancements present
privacy challenges that were not contemplated when our existing laws were
developed.
devices, n29 GPS, n30 license-plate scanners, n31 and other systems designed to aid in surveillance.
too invasive a tool for it to be unclear when the public will be subjected to them. The
government needs to respect Americans privacy while using this invasive
technology, and the laws on the books need to be brought up to date to ensure that
America does not turn into a drone surveillance state . All over the U.S., states and localities are
trying to figure out through the democratic political process exactly what kind of protections we should put in place
in light of the growing use of what Time Magazine called the most powerful surveillance tool ever devised, on- or
this
production from the Marshals Service underscores the need for a federal law to
ensure that the governments use of drones remains open and transparent. A
number of federal lawmakers are already pushing to bring the law up to date.
Representatives Ted Poe (R-Texas) and Zoe Lofgren (D-Calif.) recently introduced the first
bipartisan legislation to regulate the governments use of drones . The proposed legislation,
which is supported by the ACLU, would enact judicial and Congressional oversight
mechanisms, require government agencies to register all drones and get a warrant
when using them for surveillance (except in emergency situations), and prohibit the domestic
use of armed drones. We believe this billand hopefully a future companion bill in the Senatewill provide
offline. These debates are essential to a healthy democracy, and are heartening to see. However,
a strong foundation for future legislation protecting our privacy rights in the face of proliferating drone surveillance
and government secrecy.
the Internet, Global-Positioning Systems (GPS), biometrics, gigapixel cameras, face recognition technology, and the
widespread use of e-mail and other forms of electronic communication, there has been no attendant development
AT: No Weaponized
Law enforcement uses predator drones
Bryan 2014 (Thomas A [J.D. and Master's Degree in International Politics, May
2014, The Catholic University of America, Columbus School of Law]; STATE V.
BROSSART: ADAPTING THE FOURTH AMENDMENT FOR A FUTURE WITH DRONES; 63
Cath. U.L. Rev. 465; kdf)
C. State v. Brossart: Unmanned Aerial Vehicles Become Part of American Life Against the background of an
expected expansion of domestic UAV use State v. Brossart has attracted widespread media attention because it is
among the earliest and most dramatic cases involving UAV use by law enforcement [*485] officials in United States.
cattle until he paid for the damages they had done to his property. n132 Anderson then contacted the Nelson
County, North Dakota Sheriff's Office for assistance in recovering the cattle. n133 Upon learning of the
disagreement between Anderson and Brossart, the sheriff's office dispatched officers to speak with Brossart
regarding the disputed cattle. n134 During that conversation, the officers advised Brossart that they had proof of
Anderson's ownership of the cattle and offered to confirm ownership by looking at the cattle. n135 In response,
Brossart warned the officers that they would not return if they attempted to enter his property. n136 Taking this
warning [*486] as a threat, the officers asked Brossart to cooperate or face arrest. n137 Brossart ignored their
request and returned to his tractor, prompting the officers to detain him. n138 The officers then approached
Thomas Brossart, Brossart's adult son who had arrived on the scene, and requested to enter the Brossart property
to "check on the cattle." n139 Thomas advised the officers that they would not be allowed on the property to see
the cattle until they had a valid search warrant. n140 The officers then left the scene to obtain a warrant. n141
The officers obtained a search warrant permitting them to enter the rented land that
afternoon and served the warrant at the Brossart home , which was located a half-mile from the
rented land. n142 However, as they entered onto Brossart's property to serve the search
warrant, the three Brossart sons, Alex, Thomas and Jacob, rushed at the officers with guns
drawn. n143 This action resulted in a standoff between the officers and the three sons. n144
During the standoff, the police deployed an MQ-9 Predator B Drone obtained
through an agreement with [*487] the United States Department of Homeland Security.
n145 The UAV was deployed without obtaining an additional warrant , purportedly "to help
assure that there weren't any weapons [on the Brossart property] and to make the arrest safer for both the
Brossarts and law enforcement." n146 The next morning, officers entered the Brossart property to recover the cattle
and arrested three of the Brossart children after they again confronted officers. n147 The Brossarts did not learn
that a UAV had been deployed during the standoff until after their arrest. n148
Schmidt, who impugned the innocence of consumers who worry about snooping by Google and other
companies. "If you have something that you don't want anyone to know, maybe you
shouldn't be doing it in the first place, " Schmidt stated in an interview for a December 2009 CNBC
Special, "Inside the Mind of Google."5 The ability of the fast-growing Internet data-mining
companies to trivialize privacy concerns succeeded because the target audience of
younger consumers was either indifferent to invasions of their privacy or ignorant of
the extent and depth of that data collection . It was remarkable that an American social culture that
had for so long been moored to a notion of individual sovereignty predicated on the ability to develop one's identity,
Americans had
fought and died for the right to have privately developed papers,
conversations, friendships, and diaries, especially in our homes. Yet here we were as a
society voluntarily moving so much of that into digital spaces owned and managed
by corporations we have no control over. This relinquishing of the most private
information about one's essence and aspirations became the norm in a shockingly
short period, examined only lightly and in passing. As we shared more and more with everideas, and mores in private, had, in a wink, become willing to surrender any such notion.
widening social networks, it seemed okay as long as the companies securely stored this precious data, to be used
only to enhance the consumer experience. We counted on the self-interest of the corporation not to harm us, not to
bite the hand that feeds. But the Snowden revelations changed all that by exposing how easily the government
could access-and indeed was accessing our personal info. That troubling confluence between the corporate world
and the state caught the public's attention in a way that Internet companies feared might be game changing,
message that US companies, up against a saturated domestic market for their products, found particularly
alarming, since they depend on global.growth to please shareholders.
We know, however, from so many historical examplesthe Roman Empire, Nazi Germany, the Soviet Union-that unchallenged authority not
only will violate human rights but also will ultimately sow the seeds of its own ruin,
increasingly blind to its own limitations and flaws . Despite our historically innovative
constitutional checks on government power, we are nevertheless always flirting with
imperial hubris. We see this clearly in the pattern of lies that defined US foreign policy after 9/11 ; it is
quite apparent that leaving those lies largely unchallenged in the name of
classification seriously weakened the position of the U nited States in the world.
Thomas Drake, Chelsea Manning, or Edward Snowden.
Deference
UQ -- Deference High
Unchecked executive is leading to ineffective surveillance and drone policies that
are devoid of standards
Brand and Guiora 15 (Jeffrey S., J.D., Dean Emeritus and Professor of Law,
Director Center for Law and Global Justice, University of San Francisco School of
Law, and Amos N., Ph.D, Professor of Law, S.J. Quinney College of Law, University of
Utah, Co-Director, Center for Global Justice, The Steep Price of Executive Power Post
9/11: Reclaiming Our Past to Insure Our Future, Jan. 27, 2015,
http://www.law.utah.edu/the-steep-price-of-executive-power-post-911-reclaimingour-past-to-insure-our-future/)
Each of these accounts is connected by a common thread the exercise of
unrestrained Executive Branch power that ignores the fundamental principle that
the President and his subordinates do not have unilateral authority to surveil any
call, to engage in illegal torture, or to launch attacks almost certain to kill. Each
reflects policies that pursue national security while ignoring a fundamental truth
about our democracy: Absent appropriate checks and balances, the rule of law is
undermined and individual liberty is likely to be sacrificed. Of course, this
observation is hardly novel and has been reiterated constantly throughout the 240
year history of the Republic. James Madison articulated it in the Federalist Papers:
The accumulation of all powers, legislative, executive, and judiciary, in the same
handsmay justly be pronounced the very definition of tyranny. J ustice Kennedy
wrote about it in 2004, upholding the right of habeas corpus for Guantanamo
detainees: The Framers inherent distrust of governmental power was the driving
force behind the constitutional plan that allocated powers among three independent
branches. This design serves not only to make Government accountable but also to
secure individual liberty. Americas post-9/11 response abandons this foundational
principle, ceding unitary authority to the Executive Branch, despite strong evidence
that its surveillance, interrogation and drone policies have been ineffective, counterproductive, lack transparency, and are devoid of specific standards or oversight for
their implementation.
The Cuban Missile Crisis affords striking examples of such a problem. When informed by
the Joint Chiefs of Staff of the growing tensions with the Soviet Union in late
October 1962, NATO's Supreme Allied Commander in Europe, American General
Lauris Norstad, ordered subordinate commanders in Europe not to take any
actions that the Soviets might consider provocative. n192 Putting forces on
heightened alert status was just the kind of potentially provocative move
Norstad sought to forestall. Indeed, when the Joint Chiefs of Staff ordered U.S.
forces globally to increase alert status in a directive leaving room for Norstad to
exercise his discretion in complying with the order, Norstad initially decided not
to put European-stationed forces on alert. n193 Yet despite Norstad's noprovocation instruction, his subordinate General Truman Landon, then
Commander of U.S. Air Forces in Europe, increased the alert level of nucleararmed NATO aircraft in the region. n194 In Sagan's account, General Landon's
first organizational priority-to maximize combat potential-led him to undermine
higher priority political interests in avoiding potential provocations of the
Soviets. n195
It is in part for such reasons that studies of organizational performance in crisis management
have regularly found that "planning and effective [*1604] response are causally connected."
n196 Clear, well-understood rules, formalized training and planning can function
to match cultural and individual instincts that emerge in a crisis with
commitments that flow from standard operating procedures and professional
norms. n197 Indeed, "the less an organization has to change its pre-disaster
functions and roles to perform in a disaster, the more effective is its disastetr
[sic] response." n198 In this sense, a decisionmaker with absolute flexibility in an emergencyunconstrained by protocols or plans-may be systematically more prone to error than a decision-maker
who is in some way compelled to follow procedures and guidelines, which have incorporated professional
expertise, and which are set as effective constraints in advance .
Examples of excessive flexibility producing adverse consequences are ample.
Following Hurricane Katrina, one of the most important lessons independent
analysis drew from the government response was the extent to which the
disaster was made worse as a result of the lack of experience and knowledge of
crisis procedures among key officials, the absence of expert advisors available
to key officials (including the President), and the failure to follow existing
response plans or to draw from lessons learned from simulations conducted
before the fact. n199 Among the many consequences, [*1605] basic items like
food, water, and medicines were in such short supply that local law enforcement
(instead of focusing on security issues) were occupied, in part, with breaking
into businesses and taking what residents needed. n200
Or consider the widespread abuse of prisoners at U.S. detention facilities such as Abu Ghraib. Whatever
the theoretical merits of applying coercive interrogation in a carefully selected way against key
intelligence targets, n201 the systemic torture and abuse of scores of detainees was an outcome no one
purported to seek. There is substantial agreement among security analysts of both parties that the prisoner
abuse scandals have produced predominantly negative consequences for U.S. national security. n202
While there remain important questions about the extent to which some of the
abuses at Abu Ghraib were the result of civilian or senior military command
actions or omissions, one of the too often overlooked findings of the government
investigations of the incidents is the unanimous agreement that the abuse
was (at least in part) the result of structural organization failuresn203 -failures
that one might expect to [*1606] produce errors either to the benefit or
detriment of security.
decisionmakers, hidden by one executive agency from another and by one branch of government from
another, and limited in its relevance and accuracy from an absence of oversight and competing analysis.
n218 Such findings also emerge from studies of the generally effective Japanese
response to the sarin gas attacks on the Tokyo subway system. Essential to the
Japanese government's response was "a willingness to prioritize cooperation
over interagency or intergovernment competition." n219 In all of these cases, it may
well be that such behavior could be addressed by different incentive structures . But in the absence
of such guidance, it was the organizations instinctive (and structural) insularity
that prevailed.
The counterproductive effect of such pathologies can infect more than just real- time
responsiveness; it inhibits error correction over time -a [*1610] feature that theorists identify
as central in explaining the success of those organizations that have operated
effectively in chronically unpredictable environments. n220 In the nuclear safety
context, for example, Scott Sagan showed that Americans had been at greater
risk than once thought from accidents involving the U.S. nuclear weapons
arsenal-threats ranging from pilot error, malfunctioning computer warnings, the
miscalculation of an individual officer, and a host of other seemingly
inconceivable mistakes n221 -in part because actors at every organizational
level had incentives to cover up safety problems, "in order to protect the
reputation of the institution." n222 While it was perhaps "not surprising that the
military commands that are responsible for controlling nuclear forces would
create a veil of safety to manage their image in front of the [P]resident, the
Congress, and the public," Sagan found that concern for the effect of revealing
mistakes skewed assessments at all levels, "influenc[ing] the reporting of nearaccidents by operators, the beliefs of organizational historians about what is
acceptable to record, and the public interpretation of events by senior
authorities." n223 Particularly in operations where failure, when it does occur,
can come at an extraordinarily high price, there is a premium on gaining (and
implementing) as much insight as possible from those failures that do occur.
n224
available or because people begin to focus on the potentially catastrophic nature of a particularly fearful event,
essentially dropping probability out of the equation altogether.
further by polarization or groupthink. Second, the public may fall prey to skewed risk assessment as a result of
private availability entrepreneurs' attempts to fan fear regarding particular threats. As the public becomes
excessively "fearful of statistically small risks," it may demand that government act to prevent that risk regardless
of the costs of regulation or the potential harm caused by regulating the risk.1 49 To the extent that reputational
pressures operate on officials, especially elected ones, they will tend to respond positively to public demands by
enacting legislative and regulatory measures regarding small-probability risks.150 Finally, the government may
itself act as an availability entrepreneur, causing the public to call for government action. Once the public's calls are
of sufficient strength, those officials can then pressure others to enact legislation or take action to further their
private agendas.
executive officials are sometimes willing to act as availability entrepreneurs, instigating public hysteria for political ends.
the police, whose primary responsibility is law enforcement, to balance privacy interests fairly, so we cannot trust
Obama to hand over documents relating to the drone program. Additionally, it also has the power to establish a viable, transparent
court capable of actually challenging the use of drones in the U.S. and abroad.
A third type of pressure imposed by the observer effect prompts the executive to
reveal nonpublic executive policies and, in doing so, try to attest to its own
responsible behavior. Once the policies are widely available, foreign governments,
NGOs, and legal scholars can assess and debate them.112 The disclosure provides a
baseline against which courts and the public may evaluate future executive
behavior and challenge that behavior when it appears to countermand the stated
policy.113 Of course, these disclosures are self-serving; they reflect an executive
calculation that these policy revelations are likely to benefit the executives case at
a manageable cost. And not all litigation leads to disclosure: in some cases, being
sued causes government officials to be more cautious than usual about making
public statements on issues implicated by the litigation. Nevertheless, the executive
has revealed a number of policies under the influence of the observer effect. The
governments decision to reveal publicly the process by which it determines when
and how to transfer military detainees to other countries serves as an example.114
Initially, the government transferred people from Guantnamo to other countries
without publicly explaining the standards and process by which it conducted those
transfers. The government had not revealed when it sought diplomatic assurances
that receiving countries would not mistreat the detainees; when it sought security
assurances (by which a receiving country agreed to take measures to ensure that a
transferred detainee would not undertake dangerous activities); and which
government officials were involved in the process.115In addition, several cases
have prompted the government to identify which set of individuals it deems
detainable in particular armed conflicts, even though no court specifically ordered
the government to do so.
Deeks 13 (Ashley S., attorney-adviser in the Office of the Legal Adviser at the
U.S. Department of State, advised on the law of armed conflict, including detention,
the U.S. relationship with the International Committee of the Red Cross, intelligence
issues, conventional weapons, and the legal framework for the conflict with alQaeda, The Observer Effect: National Security Litigation, Executive Policy Changes,
and Judicial Deference, Fordham Law Review, Vol. 82, No. 2, cl)
In another sense, though, much of substance has been decided since 2002by the
executive branch rather than the courts. This Article illustrated an important reason
why the executives national security policies have changed significantly since
2001. Many of these changes are due not to the direct sunlight of court orders, but
to the shadow cast by the threat or reality of court decisions on executive
policymaking in related areas of activity. Court decisions, particularly in the national
security realm, have a wider ripple effect than many recognize because the
executive has robust incentives to try to preserve security issues as its sole domain.
In areas where the observer effect shifts executive policies closer to where courts
likely would uphold them, demands for deference by the executive turn out to be
more modest than they might seem if considered from the isolated vantage of a
single case at a fixed point in time. It remains critical for courts to police the outer
bounds of executive national security policies, but they need not engage
systematically to have a powerful effect on the shape of those policies and,
consequently, the constitutional national security order.
SOP Add-on
2AC
Warrants revitalizes the separation of powers
Reynolds 2014 (Glenn Harlan [prof of law @ U of Tennessee]; NSA spying
undermines separation of powers: Column;
www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillance-congresscolumn/5340281/; kdf)
Most of the worry about the National Security Agency's bulk interception of telephone
calls, e-mail and the like has centered around threats to privacy . And, in fact, the evidence
suggests that if you've got a particularly steamy phone- or Skype-sex session going on, it just might wind up being
shared by voyeuristic NSA analysts. But most Americans figure, probably rightly, that the NSA isn't likely to be
interested in their stuff. (Anyone who hacks my e-mail is automatically punished, by having to read it.) There is,
however, a class of people who can't take that disinterest for granted :
if the
federal government has broad domestic-spying powers, and if those are controlled
by the executive branch without significant oversight, then the president has the
power to snoop on political enemies, getting an advantage in countering their plans,
and gathering material that can be used to blackmail or destroy them . With such power in
away, the president can appoint new judges, and Congress can change the laws, or even impeach. But
the executive, the traditional role of the other branches as checks would be seriously undermined, and our system
of government would veer toward what James Madison in The Federalist No. 47 called "the very definition of
tyranny," that is, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands." That
such widespread spying power exists, of course, doesn't prove that it has actually been abused. But the temptation
to make use of such a power for self-serving political ends is likely to be very great. And, given the secrecy
surrounding such programs, outsiders might never know. In fact, given the compartmentalization that goes on in
the intelligence world, almost everyone at the NSA might be acting properly, completely unaware that one small
section is devoted to gather political intelligence. We can hope, of course, that such abuses would leak out, but they
who had access to the information once it was gathered. We need the kind of extensive audit trails for access to
information that, as the Edward Snowden experience clearly illustrates, don't currently exist. In addition, we need
civil damages with, perhaps, a waiver of governmental immunities for abuse of power here. Perhaps we should
have bounties for whistleblowers, too, to help encourage wrongdoing to be aired. Is this strong medicine? Yes. But
widespread spying on Americans is a threat to constitutional government. That is a serious disease, one that
demands the strongest of medicines.
America's mature political institutions organized around the rule of law have
made it a relatively predictable and cooperative hegemon. The pluralistic and regularized
First,
way in which U.S. foreign and security policy is made reduces surprises and allows other states to build long-term,
competitive party system also provide a service to outside states by generating information about U.S. policy and
determining its seriousness of purpose. The messiness of a democracy can, indeed, frustrate American diplomats
investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted
Sharp shifts in policy must ultimately be vetted within the policy process and pass muster by an array of
policy or an action, is valid even if it is unpopular. After all, leadership requires taking the occasional unpopular stand; but whereas popularity is inherently
current administration has put little weight on legitimacy as a criteria for policy-making. The Iraq war, for instance, wasnt waged without regard for
international legitimacy; on the contrary, eschewing legitimacy was part of the plan. From the start, Bush Administration officials derided the idea that
American power should answer to international norms. Vice President Dick Cheney resisted calls by Secretary of State Colin Powell to bring Washingtons
case against Iraq to the UN, judging such diplomatic machinations a waste of time. The Administration even sometimes seemed to suggest, perversely,
the colonial era of great power politics, military prowess and territorial control ruled the day; countries with resources and armies did not worry much
about the court of international opinion. But after World War II, as leading nations grappled with how to administer war-ravaged Europe and Japan and how
to prevent future world wars, legitima0cy moved to the forefront. International law was expounded through treaty-based organizations like the UN, NATO,
and the Bretton Woods institutions. The dismantling of far-flung colonial empires and the emergence of the principle of self-determination helped fulfill the
legitimacy derived mainly from the Cold War itself: Among Western European governments and publics American actions were seen as justified to face
down a totalitarian menace. While violent proxy wars in Latin America and Asia had some corrupting effects on Americas image, they did not outweigh
worlds sole remaining superpower. With liberal democracy ascendant, American valuesincluding the market capitalism that much of the world once saw
as synonymous with imperialist exploitationnow enjoyed wide acceptance in Eastern Europe, Asia, and elsewhere. With the Soviet Union gone, what
Kagan identified as the legitimizing effect of the Cold War struggle evaporated. At the same time, Americas legitimacy also came under closer scrutiny.
This imbalance led to concern over the unparalleled degree of U.S. influence over the world economy, decision-making at the UN, and oil supplies in the
Middle East. Skeptics impugned American motives and methods by pointing to examples of Washingtons hypocritical support for oil-rich oligarchies in the
Middle East, uneven commitment to global free trade, and insufficiently aggressive efforts to halt greenhouse gas emissions. The Clinton Administration
handled these concerns through balanced policies and a degree of self-regulation. It showed enough respect for the views of allies and for the UN to get
away with circumventing international rules from time to timeas when it failed for many years (due to congressional resistance) to pay its dues to the UN
or failed to ratify the International Criminal Court (ICC) . During the Clinton era, conservatives sharpened their longstanding critique of the idea that
American foreign policy needed to enjoy international legitimacy. Many of these thinkers and politicians had, during the Cold War, seen international
institutions like the UN as Soviet-influenced impediments to American interests. Now they argued that America must not be constricted by external norms
of legitimacy, particularly if legitimacy might be arbitrated by international institutions like the UN that, despite the Soviet Unions collapse, still counted
dictatorships and tyrannies among their ranks. Such an argument was implicit in Kagan and William Kristols 1996 call for a foreign policy based on
benevolent hegemonya concept that continued to animate neoconservatives through the 2003 Iraq invasion. Rooted in the Cold War experience in
which Eastern European peoples drew inspiration from Western liberal ideals, benevolent hegemony held that if the United States acted from passionate
conviction, its moral rectitude would be recognized and followed, if not immediately then in the long run. The concept of benevolent hegemony guided the
Bush Administrations foreign policy even before September 11evident, for example, in its decision in late 2001 to withdraw from the Anti-Ballistic Missile
Treaty. The Administration knew the action would initially be derided, but it believed that the world would come to recognize that the creation of a North
After
September 11, Bushs decision to frame the battle against terrorism as one of good
versus evil also drew on assumptions of benevolent hegemony . Bush expected that the self-evidently
American missile shield would ultimately enhance not just American security, but also the interests for peace in the world.
moral basis of the fight against al Qaeda would insulate the United States from any potential questions about the legitimacy of its actions, much as the
battle against Soviet totalitarianism had once done in many quarters. For a short time after September 11, that logic seemed to prevail broadly, uniting
while the
2001 terrorist attacks temporarily legitimized an aggressive American foreign
policy, they also emboldened the conservative critique of legitimacy itself . Conservatives
the world in swift approval for the U.S.-led invasion of Afghanistan and other aggressive steps to clamp down on global terrorism. But
such as Attorney General John Ashcroft and his Deputy John Yoocrafted arguments on the premise that to be constrained by internationally accepted legal
constructs after the attacks would be to short-change U.S. security and abdicate Americas natural right to defend itself as it saw fit. Bush and his
supporters summoned the visceral patriotism of a wounded nation to argue that the
United States must unshackle itself from the constraints of international rules that
could tie its hands. The embrace of the doctrine of preemptive war in the 2002 National Security Strategy was a deliberate signal to the
world that the United States no longer saw itself constrained by norms of legitimacy, arrogating for itself a unilateral right with no articulated justification
as to why it alone was authorized to preempt threats with force. Thus the Administration approached the Iraq conflict with broad confidence in the
worlds belief in Americas benevolent hegemony and a dismissive attitude toward the constraints of legitimacy. Although Powell managed to convince the
Administration to make a pitstop at the UN Security Council to seek approval for its planned invasion, the UN membership (and much of the American
public) correctly suspected the decision had already been made. And indeed, when the Security Council balked at Bushs case, the Administration moved
forward anyway, constrained by neither the holes in its case for intervention nor by the worlds resistance. Washington was convinced that its rightness,
even if not ratified in advance, would be revealed after the fact. But instead the opposite happened. As Francis Fukuyama describes in America at the
, it became apparent soon after the invasion that benevolence would not
come to Americas rescue. Instead of welcoming American soldiers with sweets and flowers, Iraqi society exploded into a complex
Crossroads
civil war. U.S. forces failed to find weapons of mass destruction, debasing the wars central aim in both domestic and foreign eyes. And high-profile cases
of prisoner abuse and war crimes against civilians made a mockery of Bushs lofty vision of bringing liberty and democracy to the Middle East. Both at
home and abroad, even those who initially believed the invasion was well-intendednot just conservatives, but also many Democrats in Congresscame to
authorization by a formal body or written set of laws, such as an international agreement or treaty. Acts that meet the criterion include measures taken in
self-defense against an imminent threat under the UN Charter, policies on detention that match the Geneva Conventions, and extradition agreements
legitimacy. For example, when the United States has employed the technique of targeted assassinations against al Qaeda leaders, international outcry has
been muted despite the fact that such extralegal killings violate international law. Judgments of the rectitude of particular actions take account of
individual circumstances: whether an action is provoked, what alternatives were available, and whether appropriate methods were used. In the case of
targeted terrorist assassinationswhere the provocation is clear, the prospects for capturing an elusive and well-protected terrorist alive are low, and the
others indicated in the spring of 2006 that they would reduce funding to the elected Hamas-led government in the Palestinian territories because Hamas
was a terrorist organization, they helped legitimize Israels decision not to turn over collected tax monies to Hamas.
Third, legitimacy
gets arbitrated by the public at large in newspapers , cafs, web sites, and street protests. Particularly in this
last form, legitimacy can sound slippery and hard to define. But the concepts elusiveness does not
diminish its importance. Liberal advocates of legitimacy need to embrace alternative sources of legitimacy when, for example,
the UN Security Council is paralyzed in the face of a threat. The United States canand shouldact alone if it must .
While the withholding of international support will suggest that others doubt the legitimacy of an action, such misgivings do notin themselvesrender the
act illegitimate. While not prohibiting action, broad international reservations should occasion a hard look at why support is not forthcoming and whether
reasonable measuresfor example, further attempts at resolution short of the use of forceare warranted. A certain measure of legitimacy will derive from
the very willingness to engage and debate where the boundaries of legitimacy lie, rather than standing aloof and claiming that such questions dont
matter to Washington. The lampooning of legitimacy by the Bush Administration, of course, has made the concept taboo in some circles. After the first
presidential debate in 2004, John Kerry was drubbed by critics for suggesting that acts of preemption should have some widely recognizable justification
(in his ill-chosen words, passing a global test). Afraid of being portrayed as weak on defense, many progressives now hedge their arguments, calling for
building support for U.S. policies and rebuilding Americas popular image, but not speaking of restoring international legitimacy. Though a worthy goal in
population is wary that international intervention is a first step to recolonization and has a genuine fear of the Iraq scenario being repeated. As human
rights advocate David Rieff has pointed out, even liberal interventionists clamoring to stop the Darfur genocide must confront the fact that, after Iraq, a
U.S. invasion may well be more inflammatory than pacific. Taking Legitimacy Seriously Legitimacy is not a sweeping foreign policy vision, but rather a
principle that functions like a set of guardrails to keep the country on course toward the overriding goal of sustaining American superpowerdom.
Mouthing the rhetoric of legitimacy will not help . The Bush Administrations Orwellian invocation of the language of
liberal internationalismactive promotion of freedom, human rights, and the rule of lawamid policies marked by unilateralism, preemptive force, and
1AR Impacts
international politics. The primacy of the United States provides the world with that liberal Leviathan and has four major positive consequences for
source of much good for the countries concerned as well as the United States because liberal democracies are more likely to align with the United States
US military has participated in over 50 operations since the end of the Cold Warand most of those missions have been humanitarian in nature. Indeed,
There is
no other state, group of states, or international organizations that can provide these
global benefits. Without US power, the liberal order created by the United States will
end just as assuredly. But, the waning of US power, at least in relative terms, introduces additional problems for Pinker concerning the
decline of violence in the international realm. Given the importance of the distribution of power in international politics, and
specifically US power for stability, there is reason to be concerned about the future as the
distribution of relative power changes and not to the benefit of the United States.
the US military is the earth's 911 forceit serves, de facto, as the world's police, the global paramedic, and the planet's fire department.
March 7 http://www.worldpoliticsreview.com/articles/8099/the-new-rules-leadershipfatigue-puts-u-s-and-globalization-at-crossroads)
We live in a time of arguably the greatest structural
change in the global order yet endured, with this historical moment's
most amazing feature being its relative and absolute lack of mass violence . That is something to
consider when Americans contemplate military intervention in Libya, because if we do take the step to prevent larger-scale
killing by engaging in some killing of our own, we will not be adding to some
fantastically imagined global death count stemming from the ongoing
"megalomania" and "evil" of American "empire." We'll be engaging in the same sort of
system-administering activity that has marked our stunningly successful
stewardship of global order since World War II. Let me be more blunt: As the guardian of
globalization, the U.S. military has been the greatest force for peace the
world has ever known . Had America been removed from the global dynamics
that governed the 20th century, the mass murder never would have ended.
Indeed, it's entirely conceivable there would now be no identifiable human
civilization left, once nuclear weapons entered the killing equation. But the
world did not keep sliding down that path of perpetual war. Instead,
America stepped up and changed everything by ushering in our nowperpetual great-power peace . We introduced the international liberal
trade order known as globalization and played loyal Leviathan over its spread. What resulted was
the collapse of empires, an explosion of democracy , the persistent spread
of human rights , the liberation of women, the doubling of life expectancy , a
roughly 10-fold increase in adjusted global GDP and a profound and
persistent reduction in battle deaths from state-based conflicts. That is what
It is worth first examining the larger picture:
American "hubris" actually delivered. Please remember that the next time some TV pundit sells you the image of "unbridled" American military power as the cause of global
disorder instead of its cure. With self-deprecation bordering on self-loathing, we now imagine a post-American world that is anything but. Just watch who scatters and who steps up
as the Facebook revolutions erupt across the Arab world. While we might imagine ourselves the status quo power, we remain the world's most vigorously revisionist force.
As
for the sheer "evil" that is our military-industrial complex, again, let's examine
what the world looked like before that establishment reared its ugly head . The
last great period of global structural change was the first half of the
20th century, a period that saw a death toll of about 100 million across
two world wars. That comes to an average of 2 million deaths a year in a world of approximately 2 billion souls. Today, with far more comprehensive
worldwide reporting, researchers report an average of less than 100,000 battle deaths annually in a world fast approaching 7 billion people. Though admittedly crude
United States stands behind multiple collaborative enterprises and should be credited for that. Nevertheless, sometimes it
administration. Defining Hegemony Let me begin with my conception of hegemony. While the definition of hegemony is based on its material aspects
rules providing an umbrella for interstate relations. Although interstate conflict is ubiquitous in international society and the pursuit of particularistic
interests is common, the international society provides a normative framework that restricts and moderates the hegemon's actions. This normative
.A
hegemons role in the international community relies on legitimacy. Legitimacy is
framework accounts for the hegemon's inclination toward orderly and peaceful interstate relations and minimizes its reliance on power
associated with external recognition of the hegemons right of primacy, not just the fact of this primacy. States recognize the hegemons power, but
they develop expectations that go beyond the idea that the hegemon will act as it wishes because it has the capabilities to do so. Instead, the
primacy of the hegemon is manifested in the belief that, while it has special rights that other members of the international society lack, it also has a
set of duties to the members of the international society. As long as the hegemon realizes its commitment to the collective, its position will be
deemed legitimate. International cooperation is hard to achieve. And, in general, international relations is not a story of harmony. A states first
inclination is to think about its own interests, and states always prefer doing less over doing more. The inclination to pass the buck or to free ride on
that action is needed, obstacles may still arise. These difficulties can be attributed to various factors, but especially prominent is the disagreement
over the particular strategy that the hegemon promotes in pursuing the general interest. When states think that the strategy and policies offered by
the hegemon are not compatible with the accepted rules of rightful conduct and break established norms, many will disapprove and resist. Indeed,
while acceptance of a hegemons leadership in international society may result in broad willingness to cooperate with the hegemon in pursuit of
shared interests it does not guarantee immediate and unconditional compliance with all the policies the hegemon articulates. While its legitimacy
does transfer to its actions and grants some leeway, that legitimacy does not justify every policy the hegemon pursuesparticularly those policies
that are not seen as naturally deriving from the existing order. As a result, specific policies must be legitimated before cooperation takes place. This
process constrains the hegemons actions and prevents the uninhibited exercise of power.
Actors, even unipoles, cannot create legitimacy unilaterally . Legitimacy can only be given by
others. It is conferred either by peers, as when great powers accept or reject the actions of another power, or by
those upon whom power is exercised. Reasons to confer legitimacy have varied throughout history. Tradition,
blood, and claims of divine right have all provided reasons to confer legitimacy, although in contemporary
politics conformity with [End Page 61] international norms and law is more influential in determining which
actors and actions will be accepted as legitimate. 9 Recognizing the legitimacy of power does not mean these
others necessarily like the powerful or their policies, but it implies at least tacit acceptance of the social
structure in which power is exercised. One may not like the inequalities of global capitalism but still believe that
markets are the only realistic or likely way to organize successful economic growth. One may not like the P5
vetoes of the Security Council but still understand that the United Nations cannot exist without this concession
payoffs. Trust will be thin to nonexistent. This is obviously an expensive system to run and few unipoles have
tried to do so.
AT: Circumvention/Inherency
advance
knowledge of the existence of judicial review can force the executive to assume
some pre-decisional awareness of accountability.154 That is, when the executive
understands that it likely will be forced to explain its reasoning after the fact for
particular security policies it adopts, it will think more carefully ex ante about what
those policies should be and weigh a greater number of alternatives.155 While this
element has procedural aspects to itforcing a more careful and considered
process of adopting policyit also has important substantive effects. Assuming that
courts as a rule will favor policies that are more rights protective than those favored by the executive , this
perception of future judicial oversight will shift the substantive policy in a more
rightssensitive direction.156
executive to consider that the possibility of rigorous judicial review is very real.153 In her view,
More systemically, the observer effect reminds the executive of the courts
presence, and so has a subtle rights-protective influence on a number of executive
policies in the wake of a triggering event. The observer effect tends to work without
regard to the subject matter of the specific case or cases on which a court is
focused. But that fact might leave categories of individual plaintiffs out in the cold in
case after case. Assume the courts are aware of and seek to foster the observer
effect in the executive. If the courts decide not to defer only in cases that do not
implicate individual rights, and decide to defer in national security cases that do
implicate individual rights, the courts might preserve the observer effect while
failing to serve their function as individual rights protectors. We might conclude that
the observer effect will have some influence in shifting national security policies
that do implicate individual rights, but those changes might be more modest and
less satisfying from a rightsprotective approach than they would be if the cases on
which the courts did not defer were individual rights cases. In short, the observer
effect produces a better second-best world when the cases in which the courts
show less deference are those that implicate individual rights.
when it takes the form of customary norms, and even when it is subject
primarily to informal enforcement. There is a rich literature, for example, on the
customary law merchant in medieval Europe, the enforcement of which was
based heavily on reputation.108 Gillian Hadfield and Barry Weingast have recently
supplemented that literature with modeling that shows how legal norms in general
can be effective even in the absence of centralized enforcement.109 As applied to
presidential power, this analysis suggests, once again, that the interrelationship of
law and politics does not by itself negate the importance of law.
example,
the FAA regulations and the White House order provide some basic rules of
the sky that will govern who can fly drones in the United States and under what
conditions, while attempting to prevent aviation disasters and unrestrained
government surveillance," the Washington Post declared. But civil liberties experts warned
that the FAA rules and presidential memo leave the door open for invasions of
privacy by the government and corporations. "The proposed rules do absolutely
nothing to address privacy, except perhaps require some identifying markings displayed in the 'largest
"Together,
practicable manner' such that you may be able to identify who owns the drone that is spying on you," Ryan Calo
wrote at Forbes. "I was on the conference call announcing the new rules and the Secretary of Transportation
mentioned the importance of privacy and civil liberties, but this commitment is not reflected in the proposed rules."
The Center for Democracy and Technology called on Congress to raise the bar on domestic drone standards.
"Drones have the potential for significant societal, scientific, and economic benefits, but also pose new and
intrusive privacy problems," CDT senior counsel Harley Geiger said in a press statement. "The White Houses memo
requires government agencies to enhance transparency and develop clear rules to protect the privacy of
Americans. This is an important and welcome step in advancing drone technology, while protecting civil liberties."
Still, he added, "the
White House memo itself does not establish strong privacy and
transparency drone standards for agencies, leaving it up to the agencies to develop
these standards. Because the memos requirements are not specific, the drone policies the agencies set for
themselves will be key to how individuals privacy is actually protected. Congress still has a role to play in setting
strong privacy and transparency standards for drone use." One of the most promising applications for domestic
drone use is also one of the most troubling: as an internet service platform, giving operators access to vast
quantities of data and threatening net neutrality, Drew Mitnick and Jack Bussell note at the blog for Access, a global
human rights organization focused on digital freedom. " Drones
Secure Our Borders First Act is an ugly piece of legislation thats clearly intended
to strongarm the Department of Homeland Security into dealing with the border in a
very particular waywith drones and other surveillance technology. The bill appears to
have stalled in the Houseit was on the calendar for last week but wasnt voted on, and it's not on the schedule for
this week. But its not dead yet. And even if it does die, this isnt the first time Congress has tried to increase the
use of drones at the border. In 2013, the Senate passed S.744, the Border Security, Economic Opportunity, and
Immigration Modernization Act. The bill called for the use of drones 24 hours per day and for 7 days per week.
The House of Representatives did not pass the legislation, but the drone mandate in HR 399 is eerily similarand it
demonstrates that the idea that drones should be used at the border is persistent. The 72-page piece of legislation,
authored by Rep. Michael McCaul from Texas, gives the Department of Homeland Security (DHS) an incredibly
specific mandate. It requires DHS to gain operational control of high traffic areas within 2 years, and the entire
southern border within 5 years. Operational control means the prevention of all unlawful entries into the United
States. It prescribes exactly how that should be done, and even includes penalties for failure to do so, including
pay freezes for government officials. The bill also prescribes how operational control should be obtained. It does this
by prescribing what equipment 11 specific border points should use. At several of the points, that equipment
includes drones. Additionally, the bill includes the following mandate: The Office of Air and Marine of U.S. Customs
and Border Protection [CBP] shall operate unmanned aerial systems not less than 16 hours per day, seven days per
week. As the ACLU notes, its a little shocking that the bill includes such mandates only weeks after a damning
DHS Inspector General (DHS IG) report titled CBP Drones are Dubious Achievers. And thats just the most recent
report. In June of 2012, EFF called attention to another DHS IG report that faulted the DHS for wasting time, money,
and resources using drones that were ineffective and lacked oversight. To put it in perspective, Predator drones cost
$3,000 per hour to fly. Thats certainly part of the reason that HR 399 authorizes $1 billion in appropriations. Of
course, the waste of money in this bill pales in comparison to its potential negative impact on civil liberties .
Drones pose a multitude of privacy concerns. Drones can be equipped with, among
other capabilities, facial recognition technology, live-feed video cameras, thermal
imaging, fake cell phone towers to intercept phone calls, texts and GPS locations, as
well as backend software tools like license plate recognition, GPS tracking, and facial recognition. They are capable
of highly advanced and near-constant surveillance, and can amass large amounts of data on private citizens, which
Lest it seem
that this will only affect communities directly adjacent to the border, or individuals being
investigated or pursued by CBP, its important to note that the government considers the
border to extend 100 miles in, and CBP has certain powers to conduct activities like searches that would
can then be linked to data collected by the government and private companies in other contexts.
be unconstitutional elsewhere. Furthermore, according to documents obtained by the EFF as part of a Freedom of
Information Act lawsuit against the agency,
In
fact, the documents showed that between 2010-2012, the number of missions CBP flew for state, local and non-CBP
federal agencies increased eight-fold. The silver lining? The legislation hasnt passed yet. Theres still time to
contact your elected representatives and tell them to vote no.
AT: Disads
Impact Framing
You watched convicted criminals, not free citizens. You ruled your own home.
Its intrinsic to the concept of liberty. For if we are observed in all matters, we are constantly
under threat of correction, judgment, criticism, even plagiarism of our own
uniqueness. We become children, fettered under watchful eyes, constantly fearful
that either now or in the uncertain future patterns we leave behind will be brought back to
implicate us, by whatever authority has now become focused upon our once-private
and innocent acts. We lose our individuality, because everything we do is observable and
their day.
recordable. While he was talking about governmental intrusion into our lives, he could have just as easily been
describing the apolitical actions of todays leading brands (and the online services providers on which they rely). His
privacy is a subject that we much respect and understand not only before
but during any discussion of how it is affected by governance or business . Its also a
point is that
little perspective on how those opt-in mouseprint agreements that many of us sign when we agree to be watched in
order to share cat videos with one another arent just somewhat quaint, but downright scary.
probable cause in order to surveil an individual. No one is disputing that. But when this targeting results in collateral
spying on vast numbers of innocents, in the absence of probable cause and the corresponding warrants, that is a
major problem. The NSA has asserted that such incidental data collection is inevitable, and to a certain extent
thats likely true. It is understandable that in some situations the NSA may learn information about people other
than the direct target, but this should obviously be minimized as far as possible, and at the very least the
information should be immediately purged from government databases, not stored for years on end. In any case,
the whole situation is indicative of the agencys cavalier attitude towards individual
rights. While national security is a concern we all share, the ends do not justify the means when
those means involve violate the constitutional protections afforded to citizens by
our nations founders. It is not okay to violate the rights of an innocent in the
process of achieving a broader goal, even if that goal is noble. The way the NSA has been
behaving is Machiavellian in the most literal sense. In his 16th century political treatise, The Prince,
Niccolo Machiavelli recognized a harsh reality of politics that still plagues us half a millennium later, writing, A
prince wishing to keep his state is very often forced to do evil. Taking
Machiavellis advice as a green light for immoral behavior has been the problem with governments throughout
must be identified and analyzed. As a result of the availability of efficient widespread surveillance, increased
domestic drone surveillance will generate utility in the form of increased security from crime and terrorism.
Drones may remain airborne for long periods of time without onboard pilots and are
very efficient at providing persistent, widespread surveillance. As a result, the societal
utility and disutility caused by the drone surveillance may be compounded . The socially
optimal amount of surveillance may increase because drones have the ability to significantly reduce the cost of
widespread surveillance. n144 The benefit of this increased security will come at the cost of individual privacy.
drone surveillance is restricted too much, allowing less than the optimal
level, then society will not realize the full benefit that the surveillance can provide in
the form of prevention, deterrence, and security. n145 At the same time, if the limits are not
surveillance. If
strong enough, too much drone surveillance will lead to significant disutility resulting from the loss of privacy.
Therefore, the law should be structured to allow drone surveillance up to the point where the social benefit of the
surveillance exceeds or equals the marginal social cost or disutility. Following the insights gained from Song's
it is deployed in a manner that benefits society. Drones should only be used when the government is able to satisfy
the required levels of scrutiny described in Song's model. n146 Doing so will ensure that the societal benefits to be
gained from drone surveillance will outweigh the privacy disutility and social costs that may result from the loss of
privacy. The next section will apply this conclusion to analyze the current legislative and policy recommendations
for drone surveillance to determine the optimal course of action.
Generic DA Answer
A lack of transparency in data collection makes their impact
inevitable
Scheer 2015 (Robert [Prof @ USCs School of journalism and communication];
They Know Everything About You; Nation Books; p. 157-8; kdf)
OUR GOVERNMENT, LIKE OTHERS THROUGHOUT history, tells us that repressive, invasive, and
paranoid national security policies are for our own good , especially in terms of our safety. Yet
where do the prerogatives of a surveillance state driven by fear and governed by
secrecy really take us? The reality is that these procedures not only are unconstitutional but
all too often lead to bad government policies, both at home and abroad. One need
only review the invasion of Iraq to see the folly of toppling a regime that was an
implacable enemy of al Qaeda-an invasion driven by a fear of weapons of mass destruction that free
access to the available data would have discounted. The direct result, billions of dollars and
hundreds of thousands of deaths later, is a fractured Iraq that, at the time of this writing a
decade later, seems to be in a constant state of bloody division. Or as veteran correspondent
Patrick Cockburn summarized in the London Review of Books in 2014, after the extremist Islamic State of Iraq and
Syria (ISIS) seized huge swaths of both countries: For America, Britain and the Western powers, the rise of lsis and
the Caliphate is the ultimate disaster. Whatever they intended by their invasion oflraq in 2003 and their efforts to
get rid of Assad in Syria since 2011, it was not to see the creation of a jihadi state spanning northern Iraq and Syria
run by a movement a hundred times bigger and much better organised than the al-Qaida of Osama bin Laden. The
war on terror for which civil liberties have been curtailed and hundreds of billions of dollars spent has failed
The obvious lesson of that debacle, and others like it, is that an informed public
with access to accurate information-even when the facts are embarrassing to the
government- is the best safeguard against such errors. Aren't we better off knowing
when our freedoms are threatened or we are being lied to, even by our own leaders,
so that we can rectify such policies? In other words, didn't Edward Snowden, regardless of
the legality of his actions, actually make us safer?
miserably.1
No Link
The plan doesnt eliminate all drones, just puts limits on
surveillance
Galizio 2014 (Gregory; NOTE: A DIGITAL ALBATROSS: NAVIGATING THE LEGAL
FRAMEWORK OF DOMESTIC POLICE DRONE TECHNOLOGY VERSUS PRIVACY RIGHTS
IN MASSACHUSETTS AND BEYOND; 20 Suffolk J. Trial & App. Adv. 117; kdf)
While law enforcement drones need to be strictly restrained by [*143]
statute, the courts, and government agencies, this emerging technology need not be
universally condemned as the advent of George Orwell's dystopian world. American legislatures and
courts should legally discourage all dragnet surveillance conducted with drones. If
sensible legislation, along with strict judicial review, can be established, domestic drones
should be integrated into American skies . The courts must evolve and confront the
rapid pace of technology with more stringent approaches to protecting privacy
rights. On the practical side, civil libertarians should not unconditionally reject law
enforcement's operation of drones if used in the same manner as existing police
technology. The arrival of domestic drones offers a new battle within the dichotomy of privacy and security
V. CONCLUSION
interests. Just as drones may benefit domestic security interests, they burden the right of privacy. As drone and
other technologies further complicate this legal clash of competing interests, it will be up to lawmakers and judges
public has made clear that unless strict privacy rules are in place to govern surveillance drones, the benefits they
can provide are not worth the significant privacy implications. Therefore ,
xt No ISIS Terror
No threat of ISIS terrorism litany of reasons
Byman and Shapiro 2015 (Daniel L [research director @ Center for Middle
East Policy, Brookings] and Jeremy [Fellow @ Brookings]; Be Afraid. Be A Little
Afraid: The Threat of Terrorism from Western Foreign Fighters in Syria and Iraq;
January; www.brookings.edu/research/papers/2015/01/western-foreign-fighters-insyria-and-iraq-byman-shapiro?rssid=LatestFromBrookings; kdf)
Despite these fears and the real danger that motivates them, the Syrian and Iraqi
foreign fighter threat can easily be exaggerated . Previous cases and information emerging from Syria
suggest several mitigating effects that may reduce but hardly eliminatethe potential terrorist
threat from foreign fighters who have gone to Syria. Those mitigating factors include: Many die, blowing
themselves up in suicide attacks or perishing quickly in firefights with opposing forces.
Many never return home, but continue fighting in the conflict zone or at the next battle for jihad. Many of the
foreign fighters quickly become disillusioned , and a number even return to their home country without
engaging in further violence. Others are arrested or disrupted by intelligence services. Indeed, becoming a
foreign fighterparticularly with todays heavy use of social mediamakes a terrorist far more likely to come to the attention of
will have to be adapted to the new context in Syria and Iraq, but they will remain useful and effective. Key Policy Recommendations
The model below shows how the various mitigating factors and effective policies can (though not necessarily will) lessen the danger
presented by foreign fighters. Complex Model of Foreign Fighter Radicalization Complex Model of Foreign Fighter Radicalization
Decide First is the decision stage. It makes sense to reduce the numbers of those going to the conflict zone in the first place by
interfering in the decision to go. After all, those who do not go cannot be radicalized by foreign fighting. Western countries should
push a counter-narrative that stresses the brutality of the conflict and the internecine violence among jihadists. However, in general,
governments are poor at developing counter-narratives and lack community credibility. It is usually better to elevate existing voices
of community leaders who already embrace the counter-narrative than to try to handle this directly through government channels.
Also vital is developing peaceful alternatives for helping the people affected by the conflicts in the Middle East. Some fighters
certainly not all but a significant portionwere originally motivated by a genuine desire to defend the Syrian people against the
brutality of the Assad regime. Encouraging charitable activities, identifying legitimate channels for assistance, and otherwise
highlighting what concerned individuals can do to help alleviate the suffering of the Syrian people may siphon off some of the supply
of foreign fighters. Local programs for providing assistance can also improve domestic intelligence gathering capabilities in two
ways, according to Western security service officials. First, simply being out and about in the community gives government officials
more access to information about potential radicals. Families become comfortable with intelligence services, as do community
leaders. Second, such programs allow intelligence officials to gain access to individuals who can potentially be recruited to inform on
other would-be jihadists. Desired Results: Talked out of joining the foreign militias by family or community intervention. Choose
peaceful alternative to fighting. Travel The second stage in the foreign fighter radicalization process is the travel to Syria. Disrupting
the transit route via Turkey is one of the most promising ways of reducing the threat of foreign fighters to Europe and the United
States. Doing so will primarily require better cooperation between Western governments and Turkish authorities, who have not
always seen stopping the flow of fighters as their highest priority. But as Turkish authorities are now becoming more worried about
the jihadist threat to Turkey, Western security services should establish channels with Turkish intelligence and police to warn them of
the presence of specific individuals headed to Syria through Turkey and to encourage Turkey to turn them away from the Turkish
border or stop them at the Syrian border and deport them. Though there are other ways into Syria, all are far harder and more costly
for Western fighters. Security cooperation among European services and between European and American services is also essential.
Intelligence collected from the communications of foreign fighters, shared open source monitoring, and other information from one
service can prove vital for discovering transnational networks. Cooperation within Europe is indispensable for stopping travel as
jihadists from one European country often try to travel to Turkey and then on to Syria via another European country in an effort to
avoid detection. Desired Results: Arrested en route. Stopped at border and deported. Train and Fight In the third stage of the
process, the foreign fighters receive training and fight in Syria or Iraq, mostly out of the reach of European or American influence.
But even here, there are subtle ways of influencing the terrorist indoctrination process. Western security agencies should do
everything they can to sow doubt in the minds of extremist leaders in Iraq and Syria about the true loyalties of Western Muslim
volunteers. Highlighting information gained from recruits and even disinformation about the degree of infiltration by security
services can heighten fears. If jihadist organizations come to view foreigners as potential spies or as corrupting influences, they
might assign them to non-combat roles, test their allegiances by offering them the one-way ticket of suicide bombings, or even
avoid recruiting them altogether. Desired Results: Die in the combat zone. Stay abroad and fight. Become disillusioned with the
struggle. Return Upon the foreign fighters return, the fourth stage, it is critical to turn them away from violence and jihad. Western
services report that they usually know when individuals return and that many return with doubts. As a first step, security services
must triage returnees, identifying which ones deserve the most attention: our interviews indicate triaging is done inconsistently (and
in some cases not at all) among the Western security services. Inevitably, some dangerous individuals will be missed, and some
individuals identified as not particularly dangerous might later become a threat, but a first look is vital for prioritization. Efforts to
promote a counter-narrative are valuable, particularly if they involve parents, preachers and community leaders. Community
programs deserve considerable attention. The goal should be to move potential terrorists towards non-violence; since many are in
that category already, hounding them with the threat of arrest or otherwise creating a sense of alienation can backfire. In the past,
family and community members have at times been successful in steering returned fighters toward a different path, even getting
them to inform on their former comrades. Indeed, sending returnees to jail for relatively minor crimes such as going abroad to fight
with a foreign terrorist organization against a distant enemy may simply put them in prison for a few years and expose them to the
radicalizing elements present in many European prisons, where many minor players become exposed to hardened jihadists and
integrate into broader networks. Desired Results: Arrested and jailed. De-radicalized and reintegrated. No desire to attack at
home. Plot To disrupt foreign fighters in the fifth and final stage of plotting terrorist attacks, security services must remain focused
on the returnee problem and have sufficient resources to monitor the problem as it emerges in their countries. The good news is
that going to Syria and Iraq and returning home usually does bring one to the attention the security services. But maintaining
vigilance as the numbers increase will be difficult purely for reasons of resources. Marc Hecker, a French expert on terrorism,
commented that France could handle the dozens who returned from Iraq but would be over-whelmed by the hundreds who may
come back from Syria. Keeping track of that many suspects, is exceptionally resource intensive, particularly if it involves full-time
surveillance. For intelligence services, often the problem is not in accessing or gathering the data, but in processing, analyzing, and
following up on it in a timely manner. At the same time, their own effectiveness can work against them: by reducing the problem
considerably, they decrease the danger, thereby creating the impression that they need fewer resources. One way to mitigate this
effect is for security services to spread the burden of responsibility around by training and sharing information with local police and
other law-enforcement and community organizations. Security cooperation among European services and between European and
American services is absolutely necessary. Intelligence from the communications of foreign fighters, shared open-source monitoring,
and other information obtained by one service can prove crucial for discovering transnational networks. As noted earlier,
cooperation within Europe is critical for stopping travel, as jihadists from one European country often try to travel to Turkey and then
on to Syria via another European country in order to avoid detection. Desired Results: Attack foiled by law enforcement. Attack
put pressure on the media to continue to cover the stories that allow us to make this crucial evaluation. The
keep boots off the ground and allow political leaders to execute military strikes without the fear of losing troops.
This is mixed blessing.
Many drone strikes are in fact legitimate. But certain signature strikes , I
are not. And the American public should be aware of this difference.
justified to do so.
would argue,
Olmstead, n269 the Court then required law enforcement to obtain a valid warrant before conducting wiretap
surveillance. n270 A year after Olmstead, Congress enacted legis-lation codifying the warrant requirement. n271
Along with the codification of the warrant requirement, Congress developed a comprehensive framework for
with the presumption that law enforcement will not seek to obtain a warrant before conducting drone surveillance,
imposing a requirement similar to the wiretap requirement will prohibit law enforcement from conducting its
surveillance for extended periods. A statutory, bright-line rule requiring a warrant for long-term drone sur-veillance defining an acceptable period for such surveillance - removes law enforcement's discretion from the equation and
ensures that law enforcement receives the proper guidance to determine situations requiring a warrant. Further,
such rules limit law enforcement's ability to use drones to conduct long-term surveillance at the expense of an
Congress is best suited to determine what distinguishes longterm surveillance from short-term surveillance, as Fourth Amendment jurisprudence lacks a
individual's privacy rights.
description of long-term sur-veillance. Moreover, the thirty-day period prescribed by the wiretap legislation n275
permits law enforcement to gain too much informa-tion about an individual's daily routine and lifestyle. As
cautioned [*717] by the mosaic theory, visual surveillance over an extended period reveals far more about the
individual than an isolated observa-tion. n276 While law enforcement can admittedly learn vast amounts of
information by tapping one's telephone, n277 the amount and nature of information available from drone
surveillance is distinguishable. For example, if a police officer were to conduct wiretap surveillance of John Doe's
home to intercept information regarding a drug purchase, the officer would also be privy to Doe's conversations,
including a call in which Doe's conversation with his partner turns extremely intimate. On the other hand, if the
police officer were conducting surveillance with a drone, he may actually be able to view Doe engaging in
intercourse with his partner. Drone use would allow the officer to view such intimate moments countless times
jurisprudence concerning aerial surveillance discussed fly-over observations that were relatively short in duration,
An hourly limit
provides law enforcement with a bright-line rule regarding the permissible scope of
surveillance and also limits the impermissi-ble discovery of the patterns, habits, and
preferences of an individual's life. To provide some flexibility to law enforcement, the time permitted
n278 using an hourly component to prescribe the time limitation would be beneficial.
should not be so limited as to prevent brief aerial observations such as those used in Ciraolo and Riley, but rather
the time limitation should be directed at striking a balance between law enforcement's needs and society's
residents attending the community meeting in October chanted No drones! drowning out officers
attempts to explain how the unmanned aerial vehicles would support certain criminal
investigations, help out during natural disasters, and assist in search-and-rescue
operations. Now its clear that Seattles drones, purchased with federal grants, wont be flying over the metro area anytime
soon. Amid backlash from civil-liberties advocates and citizens worried about government invasion of their privacy, the mayor earlier
Lawmakers in at least 11
states want to restrict the use of drones because of fears they will spy on
Americans, and some are pushing to require warrants before the robots collect
evidence in investigations. Just this month, the Virginia General Assembly passed a two-year moratorium on drones.
this month tabled any drone ambitionsfor now. Public concerns are not limited to Seattle.
The outcry comes after the Electronic Frontier Foundation sued last year for a list of drone applicants within the U.S. When that
information went public, staff attorney Jennifer Lynch says, it really got people up in arms about how drones are being used, and
got people to question their city councils and local law-enforcement agencies to ask for appropriate policies to be put in place to
implementation in the U.S., says its focus is totally on safety, not privacy worries. We are concerned about how its being used
only to the extent it would affect the safety of the operation, says FAA spokesman Les Dorr. As it happens, domestic drone
operations are relatively limited because of safety concerns. The FAA has issued nearly 1,500 permits since 2007 for the use of
drones by public entities, such as law enforcement or fire departments, or by universities conducting research. Of those, 327 are
active. For example, Customs and Border Protection uses drones to keep tabs on the border with Mexico, and NASA deploys them to
monitor hurricanes. But the sky will open to drones in 2015 . A federal law signed last year directs the FAA to
safely integrate the unmanned vehicles into the U.S. airspace by then, paving the way for businesses and other private entities to
fly their own drones. With the agency estimating that some 10,000 commercial drones could be flying by 2017, picture this: news
outlets surveying damage from natural disasters, or paparazzi snooping on celebrities. And all 18,000 state and local lawenforcement agencies could be potential customers. The FAA last week began searching for six locations to test drones and is asking
for input on privacy protections for these sites. While the agency acknowledges that privacy is an issue that must be addressed, it
does not claim overall rule-making authority. Its unclear whos responsible for privacy issues at this point and time, says Gerald
Dillingham, director of civil-aviation issues at the Government Accountability Office. No one has stepped up to the plate. GAO
recommends that the FAA, along with the Justice and Homeland Security departments, discuss privacy parameters. If we wait until
theres a crisis, oftentimes the rules and regulations that are made in crisis arent our best showing, Dillingham says. Congress can
also act; Reps. Ted Poe, R-Texas, and Zoe Lofgren, D-Calif., introduced a bill last week requiring warrants for the use of drones in
criminal investigations. The American Civil Liberties Union sees momentum building to put privacy protections in place before the
drones become commonplace. It insists that law-enforcement agencies should not use them for investigations unless authorities
have reasonable suspicion they will turn up a specific criminal act. This is a lower threshold than a warrant, staff attorney Catherine
Crump says, because it does not require officers to go to a judge. We think that standard is what is necessary to prevent lawenforcement agents to engage in purely suspicionless use of drones, flying them around to see whats going on. As it stands,
theres
really not a lot in American privacy law thats going to be much of a barrier
to using drones, University of Washington law professor Ryan Calo says. Court cases invoking the Fourth
that
drones could be the catalyst for much-needed changes to privacy laws in a
nation in which targeted, unchecked surveillance is becoming increasingly
possible. The danger lies in it becoming the norm.
the continuous surveillance of a suspect. Drones can achieve the same goals without touching a vehicle. Calo thus believes
But the report, authored by aerospace specialist and former George Washington University professor Darryl Jenkins, assumes that
the White House and Congress stick to the current schedule and have in place the necessary legal and regulatory frameworks.
Current law calls for full drone integration into U.S. airspace by September 2015, but many key privacy questions surrounding UAVs
have yet to be answered. Theres also growing doubt that the Federal Aviation Administration can meet the congressionally
mandated timetable. If deadlines are met and drones become commonplace in American skies, some states will be especially big
Virginia, for example, stands to gain nearly 2,500 jobs by 2017. It also could take in
$4.4 million in tax revenue and see more than $460 million in overall economic
activity by 2017, the report says. Virginia would gain the eighth-most jobs of any state as a result of drone integration.
Maryland isnt far behind, with projections of more than 1,700 new jobs by 2017. California would be by far the
biggest winner in terms of jobs, with more than 12,000 expected . Florida, Texas, New York,
winners.
Washington, Connecticut, Kansas, Arizona and Pennsylvania are also expected to be benefit greatly from the coming drone economy.
This is an incredibly exciting time for an industry developing technology that will
benefit society, as well as the economy, said Michael Toscano, president and CEO of the Association for
Unmanned Vehicle Systems International, a trade group that has existed for more than 40 years but has come into the public eye
economic potential of drones runs deeper than just dollars and cents. The industry faces an uncertain future in light of growing
public paranoia surrounding the craft paranoia that has only been heightened by the debate over whether the Obama
administration would ever consider using a drone to kill an American on U.S. soil. While the drones that will be employed by U.S.
companies or law enforcement agencies are far different than the military-style UAVs equipped with Hellfire missiles, those
distinctions arent always clear. Tuesdays report not only offered the industry a chance to shine the spotlight on drones positive
uses and economic potential, but also served as an opportunity or, perhaps a warning to lawmakers seeking to limit UAVs. More
than 20 states are considering bills to establish strict guidelines for what drones can do. Virginia is mulling a measure that would put
a two-year moratorium on all government use of drones. Such a measure would be especially harsh because first-responders such
environments for the industry and the technology will likely siphon jobs away from states that do not, said Mr. Jenkins, the reports
lead author who used to head George Washington Universitys Aviation Institute and also is a former professor at Embry-Riddle
University. On another front, the FAA appears to be in danger of missing the congressionally mandated 2015 deadline for drone
integration. The agency just recently began taking applications for its test-site program, where drones will be studied to see how
they respond in different climate conditions and at different altitudes. More than 30 states have expressed interest in the program,
precisely define the scope of landowners' property interests in low-altitude airspace. Unfortunately, as a growing
pressures, principles of microeconomics and property theory call for new laws giving landowners more definite
would create a simple "exclusion" regime for low-altitude airspace that is better suited to handle aerial trespass and
conflicts are beginning to erupt almost daily between civilian drone users and private landowners. In Pittsburgh, a
drone recently flew over the playing field during a professional baseball game. n43 In Seattle, a woman getting
dressed in a high-rise building spotted a camera-equipped drone hovering just outside her window. n44 In Nashville,
a civilian drone soared conspicuously close to the city's Fourth of July fireworks display. n45 In Los [*164] Angeles,
hockey fans near the entrance of a professional sports arena threw large objects at a drone and eventually knocked
it out of the sky. n46 In each of these cases, it was debatable whether the drone operators involved could be held
active controversy regarding the proper scope of the FAA's regulatory authority over drone flights. The FAA clearly
possesses power to bring enforcement actions against citizens whose drones soar through high-altitude airspace
areas or near airports and create serious risks of collisions with human-occupied aircraft. But should the FAA have
regulatory jurisdiction over the flight of a drone if it occurs several miles away from any airport and the device
never climbs more than a few dozen feet off of the ground? In a [*165] recent dispute between the FAA and a
commercial drone operator, an administrative law judge for the National Transportation Safety Board expressed
skepticism that the FAA presently had regulatory power over such flights. The judge colorfully pointed out that,
under the FAA's expansive view of its own authority, even "a flight in the air of ... a paper aircraft, or a toy balsa
growing array of ever-more-sophisticated drones is now readily available for purchase at hobby stores and on the
Internet. Many of these drones sell for just a few hundred dollars and can effortlessly be controlled from ordinary
smartphones. n3 Seemingly overnight, a domestic drones market that once catered primarily to weekend hobbyists
is attracting journalists, real estate agents, wedding photographers, law enforcement agencies, and even delivery
companies. Unfortunately, the
Administration ("FAA")
enforce a controversial moratorium on most commercial drone use. n10 To date, most of the scholarly n11 and
legislative n12 activity relating to domestic drones has centered on the devices' potential impact on privacy rights
and criminal evidence gathering. Regrettably ,
for tech startups as costs of launching new products and services plummet and global markets open up to the
there is a world wide perception that any data that is stored or even
routed through the United States is sucked into cavernous NSA data centers for
analysis and cataloging. That perception was solidified in 2006 when former AT&T technician Mark Klein
smallest vendor. Yet,
blew the whistle on the fiber tap that ATT had provided to the NSA in some of its data centers. Those perceptions
leading examples. Box.net, and other cloud storage solutions, are burgeoning. Cloud infrastructure providers like
Amazon, Microsoft, and Rackspace are investing billions to serve markets that should be global but will be barred
from most countries thanks to the complete abandonment of trust caused by NSA/FBI spying. Since 2006, every
time I present outside the US the same question has been asked: Is the US reading our email? Answers that allude
to protections from abuse and oversight now seem specious. From this week forward a universal suspicion has
transformed into acknowledged fact. Yes, US government agencies are reading email, tracking phone calls, and
monitoring all communications. Brian Honan Board Member of the UK & Ireland Chapter of the Cloud Security
Data Protection directive it is illegal for European companies to export the personal data of EU citizens to countries
outside of the EU and the European Economic Area. Exceptions to this are for certain countries that have similar
privacy legislation in place to that of the EU or where the strong contracts protecting the privacy of that data are in
place. The US in not one of the approved countries but has put in place the EU Safe Harbor program which US
companies can sign up to and agree to apply EU privacy protections to private data. Many of the companies
allegedly involved in PRISM are part of the Safe Harbor program. The fact the US government is potentially
accessing that data could place the European organisations in breach of EU Data Protection regulations. The news
will also heighten concerns many European organisations, especially EU government ones, will have in selecting a
US Cloud Provider for their services. Gabriel Yoran, Managing Director and Founder of German security company
Steganos added: The European Union traditionally favors strong privacy regulations. However, this policy has been
under attack recently, being seen as a competitive disadvantage in the cloud services space. This could
dramatically change now in the light of the recent Verizon findings. Privacy software maker Steganos traditionally
stresses it being headquartered in Berlin and therefore subject to the even stricter German data protection law (one
of the strictest in the world). According to a February survey, 64% of Steganos customers said it was important or
blanket data harvesting arrangements with Verizon, ATT, Sprint-Nextel, Google, Microsoft, Apple, Skype, Yahoo,
FaceBook and even credit card processors, will have immediate repercussions. Non-US customers of any US
business will immediately evaluate their exposure to these new risks and look for alternatives. European, Canadian,
and Australian tech companies will profit from this. Competitors in those regions will offer alternatives that will also
tates
incomes for the majority of workers have left the nation shaken and frustrated. At the same time, astonishing
the
advanced
of everything
even as they make it hard to see where things are going. Hence this paper: At a critical moment, this report asserts the special importance to Americas future of what the paper calls Americas advanced industries sector.
Characterized by its deep involvement with technology research and development (R&D) and STEM (science, technology, engineering, and math) workers, the sector encompasses 50 industries ranging from manufacturing industries
high-tech services
Their dynamism is going to be a central
component of any future revitalized U.S. economy.
these industries
encompass the countrys best shot at supporting innovative
and
sustainable growth.
Advanced industries represent a
sizable economic anchor for the U.S. economy and have led the post-recession
employment recovery.
the sector packs a massive economic punch.
such as automaking and aerospace to energy industries such as oil and gas extraction to
such as computer software and computer system design, including for health applications.
These industries encompass the nations tech sector at its broadest and most consequential.
As such,
, inclusive,
For that reason, this report provides a wide-angle overview of the advanced industry sector that reviews its role in American prosperity, assesses key trends, and maps
its metropolitan and global competitive standing before outlining high-level strategies to enhance that.The overview finds that: 1.
Modest in size,
As an employer
and source of economic activity the advanced industry sector plays a major role in the U.S. economy. As of 2013, the nations 50 advanced industries (see nearby box for selection criteria) employed 12.3 million U.S. workers. That
).
On a per worker basis, advanced industries purchase $236,000 in goods and services from other businesses annually, compared with $67,000 in purchasing
by other industries. This spending sustains and creates more jobs. In fact, 2.2 jobs are created domestically for every new advanced industry job0.8 locally and 1.4 outside of the region. This means that in addition to the 12.3
million workers employed by advanced industries, another 27.1 million U.S. workers owe their jobs to economic activity supported by advanced industries. Directly and indirectly, then, the sector supports almost 39 million jobs
nearly one-fourth of all U.S. employment. In terms of the sectors growth and change, the total number of jobs in the sector has remained mostly flat since 1980 but its output has soared. From 1980 to 2013 advanced industries
expanded at a rate of 5.4 percent annually30 percent faster than the economy as a whole. Since the Great Recession, moreover, both employment and output have risen dramatically. The sector has added nearly one million jobs
since 2010, with employment and output growth rates 1.9 and 2.3 times higher, respectively, than in the rest of the economy. Advanced services led this post-recession surge, and created 65 percent of the new jobs. Computer
systems design alone generated 250,000 new jobs. Certain advanced manufacturing industriesespecially those involved in transportation equipmenthave also added thousands of jobs after decades of losses. Advanced
industries also provide extremely high-quality economic opportunities for workers. Workers in advanced industries are extraordinarily productive and generate some $210,000 in annual value added per worker compared with
$101,000, on average, outside advanced industries. Because of this, advanced industries compensate their workers handsomely and, in contrast to the rest of the economy, wages are rising sharply. In 2013, the average advanced
industries worker earned $90,000 in total compensation, nearly twice as much as the average worker outside of the sector. Over time, absolute earnings in advanced industries grew by 63 percent from 1975 to 2013, after adjusting
for inflation. This compares with 17 percent gains outside the sector. Even workers with lower levels of education can earn salaries in advanced industries that far exceed their peers in other industries. In this regard, the sector is in
fact accessible: More than half of the sectors workers possess less than a bachelors degree. 2. The advanced industries sector is highly metropolitan and varies considerably in its composition and depth across regions. Advanced
industries are present in nearly every U.S. region, but the sectors geography is uneven. Advanced industries tend to cluster in large metropolitan areas. Looking across the country, the 100 largest metro areas contain 70 percent of
all U.S. advanced industries jobs. In terms of the sectors local clustering, San Jose is the nations leading advanced industry hub with 30.0 percent of its workforce employed in the sector. Seattle follows with 16.0 percent of its local
jobs in advanced industries. Wichita (15.5 percent); Detroit (14.8 percent), and San Francisco (14.0 percent) follow. Overall, advanced industries account for more than one in 10 jobs in nearly one-quarter of the countrys major metro
areas. This clustering occurs in a variety of configurations. Some metropolitan areassuch as Grand Rapids, MI; Portland, OR; and Wichitafocus heavily on advanced manufacturing pursuits such as automotive, semiconductor, or
aerospace manufacturing, respectively, while metros like Bakersfield and Oklahoma City exhibit strong energy specializations. By contrast, services such as computer systems design, software, and research and development
predominate in metropolitan areas like Boston, San Francisco, and Washington. For their part, San Jose, Detroit, and Seattle exhibit depth and balance across multiple advanced industry categories. Overall, the number of extremely
dense concentrations of advanced industry actually has declined. In 1980, 59 of the countrys 100 largest metropolitan areas had at least 10 percent of their workforce in advanced industries. By 2013, only 23 major metro areas
nited
tates
. The United States has the most productive advanced industries in the world, behind only energy-intensive Norway. However, this
Although advanced industries export $1.1 trillion worth of goods and services each year and account for roughly 60 percent of total U.S. exports, the United States ran a $632 billion trade deficit in the sector in 2012, in line with
similar yearly balances since 1999. To be sure, a handful of individual advanced industries such as royalties and other intellectual property and aerospace manufacturing enjoy trade surpluses that exceeded $60 billion and $80 billion
in 2012. However, numerous areas of historical strength such as communications equipment, computer equipment, motor vehicles, and pharmaceuticals now run sizeable deficits, as do high-value R&D services and computer and
nited
tates
However, the United States is losing ground relative to other countries on measures of innovation performance and
capacity.
Americas research
dominance looks less impressive after adjusting for the size of its working age
population
share of global GDP and population, meaning that U.S. slippage cannot simply be attributed to demography or macroeconomic convergence. Likewise,
. Turning to the nations critical regional innovation ecosystems, surprisingly few U.S. metropolitan areas rank among the worlds most innovativeas measured by patent cooperation treaty applications
per capita. Among the nations most patent-intensive regions, just twoSan Diego and the San Jose-San Francisco combined arearank in the global top 20 and just two more (Boston and Rochester) score in the top 50.
chilly
temperatures are part of Canadian companies sales pitch to businesses looking for
places to store their growing troves of digital information as cheaply as possible. They also
boast of inexpensive hydroelectric power and low seismic activity. And now theyre touting what they
say is a new advantage: less snooping. Revelations that the U.S. National Security
Agency has spied on data networks run by American companies have given
Canadian data-center operators an opportunity. Theyre telling customers from Europe
and Asia that laws north of the border are more protective of privacy. Sales of storage
services in Canada are growing 20 percent a year at Telus and Rogers Communications Inc. U .S.-based
technology companies, meanwhile, complain that the NSA scandal has hurt their
business. There is a structural advantage in Canada in that the data is here and the privacy protection is more
the air conditioning about 40 hours a year to keep its computer servers from overheating. The
stringent, said Lloyd Switzer, who runs Teluss network of data centers. The company has 10 data centers in
Quebec, Ontario, Alberta and British Columbia, where it opened a C$75 million, 215,000-square-foot (20,000square-meter) facility in Kamloops last year. That site has room for six more modules of expansion, which would
increase the investment into the hundreds of millions of dollars.
surge in demand for data storage to make up for the slowing growth of smartphones, which more than half of
Canadians already have. Stock gains for the companies also have slowed. Shares of Rogers climbed 6 percent last
year after gaining 15 percent in 2012. Telus rose 12 percent last year, its smallest annual increase in four years.
Last month, a U.S. federal judge ruled that the NSA probably acted illegally in collecting telephone-call data,
allowing a lawsuit to go forward claiming the practice violates the U.S. Constitution. U.S. District Judge William H.
Pauley III in Manhattan late last month ruled the NSAs bulk collection of phone records is legal, challenging the
earlier ruling. The NSA has said its pleased with Pauleys decision. Facing Charges Snowden has been charged with
theft and espionage by the U.S. government and has avoided arrest by remaining in Russia. While editorials in
newspapers such as the New York Times have recommended that he get clemency, Janet Napolitano, the former
head of the Department of Homeland Security, has said he doesnt deserve a reprieve. Canadas Privacy Act,
enacted in 1983, imposes obligations on 250 federal-government departments and agencies to limit collection and
the datacenter sales pitch glosses over the long history of intelligence-sharing between
Canada and the U.S. The governments have collaborated as far back as the 1940s, said Ron Deibert, an
Internet-security expert who runs the University of Torontos Citizen Lab. Anyone who would look to
Canada as a safe haven would be fooling themselves, Deibert said in a phone interview.
Canada would be one of the poorest choices as we have a long-standing
relationship with the NSA. Surveillance Allowed Communications Security Establishment, the countrys
use of personal information, and gives citizens the right to access that data and correct mistakes. Still,
intelligence agency for communications and electronics, is forbidden from monitoring purely domestic traffic.
Many of these state-level bills seek to require search warrants for surveillance
drones used by local police departments, and at least six states have required warrants. In 2013,
eight.
Virginia put in place a two-year moratorium on the use of drones by law enforcement to develop more stringent
guidelines. Legislation restricting civilian drone use has passed in states such as Florida, Tennessee, Idaho, Montana
and Oregon, but other states such as North Dakota have tried to pass laws that would ban weapons from domestic
Gov. Paul LePage backed up the claim by vetoing a bill that would have required police to obtain a warrant before
the AP. Mairena is a government relations manager for the Virginia-based Association for Unmanned Vehicle
Systems International (AUVSI), an industry group. The group's website boasts hundreds of corporate members,
many of which are defense contractors. The group also has ties to the Unmanned Systems Caucus in Congress.
Whether or not requiring a warrant in law enforcement drone operations would kill
jobs remains to be seen, but the integration of civilian drones into the NAS would
create a considerable economic impact, to be sure. An AUVSI report estimates that that the
integration of unmanned systems in the U.S. will generate more than $13.6 billion
and create 74,000 jobs within the first three years. But strong regulations of
domestic drones in the states may prove especially important depending on what
guidelines the FAA puts in place to integrate the technology into the national
airspace by 2015, as some experts fear the susceptibility to co-option of unmanned systems by third-party
operators could pose serious risks to domestic security.
people, greater political stability, and stronger long-term growthall of which should help lift the U.S. out of its own
A team of IMF researchers has looked at the long-term record of the worlds
economies when it comes to growth and recession . They measured how long economies
doldrums.
expanded without interruption, as well as the depth and length of downturns. Over the past two decades, low and
middle-income economies have spent more time in expansions, while downturns and recoveries have become
shallower and shorter. This suggests countries have become more resilient to shocks. In the 1970s and '80s, the
median developing economy took more than 10 years after a downturn to recover to the GDP per capita it had prior
to that slump. By the early 2000s, that recovery time had dropped to two years. In the 1970s and '80s, countries of
the developing world spent more than a third of their time in downturns, but by the 2000s they spent 80 percent of
their time in expansions. The first decade of the 21st century was the first time that developing economies saw
more expansion and shorter downturns than did advanced economies: Median growth in the developing world was
at its highest since 1950 and volatility at its lowest. Developing countries still face a larger risk of deeper recession
when terms of trade turn against them, capital flows dry up, or advanced economies enter recessions themselves.
But the scale of that risk has diminished. Thats because low and middle-income economies have introduced policy
reforms that increase resilience: flexible exchange rates, inflation targeting, and lower debt. Economies with
inflation-targeting regimes see recovery periods less than a third as long as economies without targeting, for
example. Larger reserves are associated with longer expansions. And median reserves in developing countries more
than doubled as a percentage of GDP between the 1990s and 2010. Median external debt has dropped from 60
percent to 35 percent of GDP over that same period. Such policy changes account for two-thirds of the increased
recession-resilience of developing countries since the turn of the century, suggest the IMF researchersleaving
external factors, such as positive terms of trade, accounting for just one-third. Thats good news for the developing
worldnot least because volatile growth is particularly bad for poorer people, who are most at risk of falling into
malnutrition or being forced to take children out of school, which has long-term consequences for future earnings.
That might help explain the relationship between growth volatility, slower reductions in poverty, and rising
inequality. Sudden negative income shocks can also be a factor in sparking violence: When rains fail, the risk of civil
war in Africa spikes, and when coffee prices in Colombia fall, municipalities cultivating more coffee see increased
drug-related conflict. The African analysis suggests that a five percentage-point drop in income growth is associated
with a 10 percent increase in the risk of civil conflict in the following year. Finally ,
because volatility
increases the uncertainty attached to investments, it can also be a drag on overall
long-term economic performance. Viktoria Hnatkovska and Norman Loayza of the World Bank
estimated that moving from a comparatively stable to a relatively volatile growth trajectory is associated with a
with the developing world accounting for about one-third of trade and GDP at market rates, as well as three-fifths of
xtNo Impact
The global economy determines the US economy, not vice
versa
Rasmus 2015 (Jack; US Economy Collapses Again; May 14;
www.counterpunch.org/2015/05/14/us-economy-collapses-again/; kdf)
The problem of weak, stop-go, recovery in the U.S. today is further exacerbated by a
global economy that continues to slow even more rapidly and , in case after case, slip
increasingly into recessions or stagnate at best. Signs of weakness and stress in the global economy are
everywhere and growing. Despite massive money injections by its central bank in 2013, and again in 2014, Japans
economy has fallen in 2015, a fourth time, into recession. After having experienced two recessions since 2009,
Europes economy is also trending toward stagnation once more after it too, like
Japan, just introduced a US$60 billion a month central bank money injection this past winter. Despite daily hype in
the business press, unemployment in the Eurozone is still officially at 11.4 percent , and in
countries like Spain and Greece, still at 24 percent. Yet we hear Spain is now the poster-boy of the Eurozone,
having returned to robust growth. Growth for whom? Certainly not the 24 percent still jobless, a rate that hasnt
changed in years. Euro businesses in Spain are doing better, having imposed severe labor market reforms on
Italy
remains the economic black sheep of the Eurozone, still in recession for years now,
while France officially records no growth, but is likely in recession as well. Elites in both Italy
and France hope to copy Spains labor market reforms (read: cut wages, pensions, and make
workers there, in order to drive down wages to help reduce costs and boost Spanish exports. Meanwhile,
it easier to layoff full time workers). In order to boost its growth, Italy is considering, or may have already decided,
to redefine its way to growth by including the services of prostitutes and drug dealers as part of its GDP. Were the
AT: Immigration DA
AT Linkdrones fail
Drones are ineffective at surveillance US borders prove
Bennett, January 7, 2015
(Brian, writes about national security and intelligence in Washington, D.C. He has documented a pattern of
excessive force by U.S. Border Patrol agents and revealed the first arrest on U.S. soil using a Predator drone. He
started as a reporter for Time magazine in Hong Kong in 2000, reported from Pakistan and Afghanistan after the
Sept. 11, 2001, attacks and was Times Baghdad bureau chief in 2003 and 2004, Border drones are ineffective,
badly managed, too expensive, official says, LA Times,
Rather than spend more on drones, the department should "put those funds
to better use," Roth recommended. He described the Predator B drones flown along the border by U.S.
John Roth.
Customs and Border Protection as "dubious achievers." It's time for Congress to agree on a humane immigration
solution It's time for Congress to agree on a humane immigration solution "Notwithstanding the significant
drones expected soon amid soaring sales BUSINESS Proposed U.S. regulations for drones expected soon amid
Three
drones flying around the Tucson area helped apprehend about 2,200 people illegally
crossing the border in 2013, fewer than 2% of the 120,939 apprehended that year
in the area. Border Patrol supervisors had planned on using drones to inspect
ground-sensor alerts. But a drone was used in that scenario only six times in 2013 .
soaring sales SEE ALL RELATED
Auditors found that officials underestimated the cost of the drones by leaving out operating costs such as pilot
time, we see the practical realities of these systems don't live up to the hype. - Jay Stanley, ACLU privacy expert
"It really doesn't feel like [Customs and Border Protection] has a good handle on how it is using its drones, how
much it costs to operate the drones, where that money is coming from or whether it is meeting any of its
performance metrics," said Jennifer Lynch, a lawyer for the Electronic Frontier Foundation, a San Francisco-based
privacy and digital rights group. The report's conclusions will make it harder for officials to justify further
investment in the border surveillance drones, especially at a time when Homeland Security's budget is at the center
of the battle over President Obama's program to give work permits to millions of immigrants in the country illegally
18, 2015 ADD A COMMENTSEE ALL COMMENTS 21 "People think these kinds of surveillance technologies will be
a silver bullet," said Jay Stanley, a privacy expert at the American Civil Liberties Union. " Time
after time, we
see the practical realities of these systems don't live up to the hype. " Customs and
Border Protection, which is part of Homeland Security, operates the fleet of nine long-range Predator B drones from
bases in Arizona, Texas and North Dakota. The agency purchased 11 drones, but one crashed in Arizona in 2006
and another fell into the Pacific Ocean off San Diego after a mechanical failure last year. Agency officials said in
they had no plans to expand the fleet aside from replacing the
Predator that crashed last year. The agency is authorized to spend an additional
$433 million to buy up to 14 more drones.
response to the audit that
flight aren't getting their money's worth. The Department of Homeland Securitys Office of the Inspector General issued a biting
has ballooned since CBPs program launched in 2005, with proponents saying they had more endurance and better capacity than
other manned flying vehicles like helicopters. There are nine drones currently in operation (CBP has purchased 11 in total, but one
crashed in 2006 and another crashed in January 2014) and they primarily patrol two areas of the border: the Arizona-Tucson sector
expensive than CBPs cost estimates suggest. CBP estimates that each flight hour costs around $2,468, but the inspector generals
office said that figure was closer to $12,255, factoring in additional operating costs of pilots, equipment, support staff and other
overhead. (By comparison, the similar MQ-9 Reaper drone used by the Air Force costs an estimated $3,624 per flight hour, while the
manned F-16C fighter-bomber costs more than $20,000 per flight hour, according to Time magazine's calculations.) The
$443
million CBP plans to spend on program expansion could be put to better use by
investing in alternatives, the report said, referring to the agencys 2012 proposal to
buy an additional 14 aircraft to survey the border. The inspector generals office noted that CBP
agreed with one of its recommendations to work with another Homeland Security office to evaluate the necessity and costeffectiveness of purchasing any additional drones. But CBP said it wouldnt revise its cost calculation methodology to more
accurately reflect the total cost of operating drones on the border, saying its current methods met all federal requirements. This
drone program would raise privacy issues, saying that the Department of Homeland Security was complying with privacy and civil
liberty laws in its use of unmanned vehicles.
AT: Legitimacy
No Link Grounds
Expanding 4 Amendment rights in the face of a major
technological advance like drones is well within Court
precedent
Black 13- J.D. Candidate Washington and Lee Law School
th
(Tyler, Over Your Head, Under the Radar: An Examination of Changing Legislation,
Aging Case Law, and Possible Solutions to the Domestic Police Drone Puzzle, 2013,
19 Washington and Lee Law Review, Lexis Nexis) JB
Court acknowledged that "[i]t would be foolish to contend that the degree of
privacy secured to citizens by the Fourth Amendment has been entirely unaffected
by the advance of technology." n147 As an example, the majority pointed to aerial
observation cases. n148 The Court wondered openly "what limits there are upon this power of technology to
The
shrink the realm of guaranteed privacy." n149 This statement acknowledges two important concepts-
AT: Politics
push
to limit domestic drone use on a federal level. On Friday, the House Judiciary Committee
subcommittee on Crime, Terrorism, Homeland Security and Investigations is holding a hearing called, "Eyes in the
congressional hearing on
domestic drones this year; at the first, Judiciary Committee chairman Sen. Patrick Leahy, D-VT, warned that
"the domestic use of drones to conduct surveillance and collect other information will
have a broad and significant impact on the everyday lives of millions of Americans."
Sky: The Domestic Use of Unmanned Aerial Systems." It is the second
Three bills from the current Congress have been referred to the subcommittee for consideration. The first, called the
Preserving American Privacy Act, would require a governmental entity operating a drone to minimize the collection
or disclosure of identifying information. Another bill, the Preserving Freedom from Unwarranted Surveillance Act,
would prevent government officials from using a drone to gather evidence or other information pertaining to
criminal conduct without a warrant. A third would prohibit the use of drones to kill citizens of the United States
Senate side, both Sen. Mark Udall, D-Colo., and Sen. Rand Paul, R-Ky., are
preparing to introduce legislation. Paul's bill, which his office says will be released in the coming weeks,
is a reintroduction of his "Preserving Freedom from Unwarranted Surveillance Act" from last year, which bars the
use of drones by law enforcement without a warrant in most cases. The freshman senator
within the United States. On the
gave the issue of domestic drone use national prominence when he filibustered over what he considered a lack of
clarity from the White House over whether it had the authority to use drones to kill U.S. citizens on American soil
with drones. (Attorney General Eric Holder eventually said the answer, when it came to Americans not engaged in
combat, is no.)
is
1990; Fiorina 1986; Weaver 1986). The conditions for the exercise of
judicial review may be relatively favorable when judicial invalidations
of legislative policy can be managed to the electoral benefit of most
legislators. In the cases considered previously, fractious coalitions
produced legislation that presidents and party leaders deplored but
were unwilling to block. Divisions within the governing coalition can
also prevent legislative action that political leaders want taken, as
illustrated in the following case.
AT: Federalism DA
No Link
The plan sets a floor states can go beyond it
Kaminski 2013 (Margot E [Executive Director of the Information Society Project,
Research Scholar, and Lecturer in Law at Yale Law School]; Drone Federalism:
Civilian Drones and the Things They Carry; 4 Calif. L. Rev. Circuit 57; kdf)
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law
enforcement drone use and civilian drone use. n8 Most advocates and academics have focused on establishing
privacy regulations to govern law enforcement drone use. n9 This task is worthy of immediate attention. The FAA
already permits law enforcement drone use, where it does not yet permit commercial private drone use. n10 A
number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11
The federal government could regulate law enforcement drone use as it has
historically regulated other law enforcement behavior, by providing a floor for state
laws. n12 Federal legislation already governs law enforcement use of wiretaps and
pen registers. n13 Drone surveillance is likely to additionally involve video
surveillance, location tracking, and/or facial recognition, among other possible
technologies. Thus federal legislation governing law enforcement surveillance could
be expanded to govern location tracking, video surveillance, and the use of facial recognition software by law
enforcement. n14 [*60] Regulating law enforcement drone use poses few countervailing dangers from legislating
thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First Amendment
rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough
privacy. n15
AT: Terrorism
The obvious lesson of that debacle, and others like it, is that an informed public
with access to accurate information-even when the facts are embarrassing to the
government- is the best safeguard against such errors. Aren't we better off knowing
when our freedoms are threatened or we are being lied to, even by our own leaders,
so that we can rectify such policies? In other words, didn't Edward Snowden, regardless of
the legality of his actions, actually make us safer?
miserably.1
place between 1984 and 1993 appear[] to have worked quite satisfactorily . . . both from the perspective of the
But the
deeper question of what to do about this trail of horror still appears to be of little
interest in the American capital. Instead, President Obama and others appear fixed on more clerical
style analysis of the jihadi phenomenon, apparently believing that insisting these attacks are perversions of Islam is
of that, and despite half-hearted training efforts for the Syrian opposition and incremental increases in trainers
we have few allies on the ground who are capable of slapping down
ISIS, al Qaeda and their cohort. Instead, we gossip angrily about the weaknesses of
the Iraqi government, the fractiousness of the Syrian opposition and the
incompetence of third world armies. If this is not our fight, then gossip, kibbitzing and apathy
are the right call. But the next terrorist attack on the United States and it will come
will spur more calls to action. Wouldnt it be wise to dramatically step up training,
arms supplies, support and whatever is needed to begin to reverse the Islamist tide,
rather than waiting until the only solution is the commitment of US combat forces?
being sent to Iraq,
Just saying.
precisely define the scope of landowners' property interests in low-altitude airspace. Unfortunately, as a growing
pressures, principles of microeconomics and property theory call for new laws giving landowners more definite
would create a simple "exclusion" regime for low-altitude airspace that is better suited to handle aerial trespass and
conflicts are beginning to erupt almost daily between civilian drone users and private landowners. In Pittsburgh, a
drone recently flew over the playing field during a professional baseball game. n43 In Seattle, a woman getting
dressed in a high-rise building spotted a camera-equipped drone hovering just outside her window. n44 In Nashville,
a civilian drone soared conspicuously close to the city's Fourth of July fireworks display. n45 In Los [*164] Angeles,
hockey fans near the entrance of a professional sports arena threw large objects at a drone and eventually knocked
it out of the sky. n46 In each of these cases, it was debatable whether the drone operators involved could be held
active controversy regarding the proper scope of the FAA's regulatory authority over drone flights. The FAA clearly
possesses power to bring enforcement actions against citizens whose drones soar through high-altitude airspace
areas or near airports and create serious risks of collisions with human-occupied aircraft. But should the FAA have
regulatory jurisdiction over the flight of a drone if it occurs several miles away from any airport and the device
never climbs more than a few dozen feet off of the ground? In a [*165] recent dispute between the FAA and a
commercial drone operator, an administrative law judge for the National Transportation Safety Board expressed
skepticism that the FAA presently had regulatory power over such flights. The judge colorfully pointed out that,
under the FAA's expansive view of its own authority, even "a flight in the air of ... a paper aircraft, or a toy balsa
growing array of ever-more-sophisticated drones is now readily available for purchase at hobby stores and on the
Internet. Many of these drones sell for just a few hundred dollars and can effortlessly be controlled from ordinary
smartphones. n3 Seemingly overnight, a domestic drones market that once catered primarily to weekend hobbyists
is attracting journalists, real estate agents, wedding photographers, law enforcement agencies, and even delivery
companies. Unfortunately, the
Administration ("FAA")
enforce a controversial moratorium on most commercial drone use. n10 To date, most of the scholarly n11 and
legislative n12 activity relating to domestic drones has centered on the devices' potential impact on privacy rights
and criminal evidence gathering. Regrettably ,
organization Stop LAPD Spying are leading an effort to stop the department from using drones. At their offices near skid row last week, they warned of
what they see as police militarization. Other communities are wrestling with similar issues, but Garcia and Kahn note that the LAPD's history of police
spying makes the debate especially important here. In one sense, drones are not that big a deal. Unlike unmanned aircraft operated by the military and
CIA, these don't carry missiles, and because they hover above ground, they can't see much that isn't already visible to a police helicopter or even a
satellite. A drone, however, is smaller and more readily deployed, and for many people it changes the notion of what's private. Most of us regard our
backyards, for example, as private space, but is that a reasonable expectation now that a helicopter, a satellite or a drone can peer into it without entering
the property? Only the LA times would give these two radical clowns space. They say Drones invade privacy issues yet the group of 20 for this group go to
meetings, yell, scream, verbally assault, threaten anyone who doesn't agree with them. They attend police commission meetings all the time cause...
Similarly, a national effort to collect data on suspicious activity can feel awfully invasive. Activity as innocent as taking a photograph of a government
building or engaging in lawful, peaceful protest can trigger alarm in post-9/11 America. We're all concerned about safety, Kahn told me last week, but
at what price? The policing paradigm, he and Garcia argued, has shifted from solving crimes to gathering, storing and sharing information. The result is
an overbearing, wasteful attempt to head off future crimes. Significant numbers of people agree, and 2,000 have so far signed a petition circulated by
Stop LAPD Spying urging the department not to use its new drones. Clear, thoughtful rules are needed for recordings by LAPD Clear, thoughtful rules are
needed for recordings by LAPD Beck is well aware of the uneasiness that technology creates and not just in a law enforcement context. As he pointed
There is, however, a special burden on law enforcement to gather and use information
with care. The local Vons may know a lot about its customers, but it can't arrest them. Recognizing that and aware that the LAPD in the 1980s
was roundly criticized for spying on its critics Beck said he's approaching the use of drones with
unusual caution. His staff is working with the ACLU to develop a draft policy on the use of
the small aircraft, and they hope to present a recommendation to the Police Commission in a few weeks. The commission will then
hold public hearings before finalizing a policy. Kahn and Garcia want the department to forswear the drones
altogether. That seems unlikely. Rather than leave his drones in the box, Beck proposes to operate them with clear rules and
sound, civilian oversight ideas that have been fundamental in addressing other LAPD
issues such as racial bias and use of excessive force. Having rules in place may not be much comfort to the person who looks up
from his backyard and sees an LAPD drone overhead. But it could, at least, ensure that the devices are used to fight
crime, not to spy or harass.
LAPD: 'Active' Terror Plots Linked To Iran, Hezbollah, 'Sovereign Citizens' The LAPD has it's own counter-terrorism unit, in fact. CBS reports at the first link
above: "'In this region we have active terrorist plots, in this region, right now,' said Deputy Chief Michael Downing, commanding officer of the LAPD's
counter-terrorism unit. The Department is currently tracking 'government of Iran operatives, Hezbollah, sovereign citizen, homegrown violent extremists,
animal rights groups' and others, Downing said. He added that Iranian or Hezbollah agents may initiate attacks locally if war erupts between the U.S. and
unless they could round up 300 heavily armed cops to take on 75 Spetznaz (within minutes of an attack) who are armed with fully automatic weapons and
possibly shoulder fired missiles and grenades -- and still that might not be enough. The fact is this -- a small group of highly trained fighters (foreign
special forces) can take down larger groups of fighters (local police) not prepared for this kind of fight. Los Angeles Terrorist Attacks First, let's consider
like our own Navy Seals and Airborne Rangers here at home. Many are highly trained, deadly accurate with weapons, dangerous in hand to hand combat.
How these two groups (Swat Teams and Jihadist terror cells) aren't running into one another right now when the terror threat level is so high in America
terror groups (we know they're here, there's no doubt about that) are communicating with one
another at a level that is beating America's surveillance here at home. Jihad: Superior
reveals one thing --
Communications No fly-lists, email and phone surveillance, U.S. mosques infiltrated by government informants -- stakeouts by the FBI and other
undercover government teams are not getting anywhere, it seems. Not to say that the FBI isn't good at what they do -- they have done a great job with
tracking down and breaking up large scale organized crime rings in the past; they've arrested the leaders of street gangs and motorcycle clubs, as well as
a number of large drug rings that can trace their origins all the way to South American drug lords. In any of these groups, dozens and sometimes hundreds
of arrests can take place at one time in a large FBI sting -- But it's not happening with Jihadist terror cells. Risk of Terrorist Attack Remains High With or
United States population. Swat Team Up in Flames What about the local Swat Team? Foreign special forces may already have a plan for taking on the local
Swat Team -- they might blow up their armored vehicle as it leaves base -- the entire Swat Team murdered before they can pose any threat. Or they might
have snipers waiting near the scene, ready to pick off Swat Team members and any others that pose a threat to an active terror attack. Learning From a
Real Terrorist Attack with AK-47s In 2008, Mumbai, India was attacked by trained militants from Pakistan, where multiple locations where attacked at
around the same time, or shortly after one another. One group of militants (ten) that attacked that evening landed on a beach in inflatable speedboats,
simply telling local fishermen to "mind their own business" as they set off into the city (a report to police by the fishermen received little response). One of
the first attacks began when two men with AK-47s walked into a train station and began killing people. In all, just in that train station, they killed 58 people
and injured 104. Then they left the train station, shooting at pedestrians and police, killing eight police officers. They passed a police station but the police
inside were smart -- out gunned, they had secured the gates and shut off all the lights and hid. The attackers ignored the police station and continued
Mahal and the Oberoi Trident; several people are killed, many more are injured. Hostages are taken at both hotels; many flee from windows as fire fighters
with ladders outside the hotels help several people escape. A Jewish outreach center (the Nariman house) is seized by terrorists, hostages are taken; a few
people end up killed by the time the attack is broken up by counter terrorism teams who are dropped on to the roof by helicopter and covered by nearby
snipers. India's counter terrorism forces eventually are able to infiltrate each location terrorists had seized and had taken hostages; during rescues a few
people are killed, including counter terrorism forces; all but one terrorist (arrested and taken into custody) die. Down in the Mumbai harbor police seized a
it's possible that there had been a bigger attack planned, thus
the reason for the excess weapons stored at the docks .
boat carrying guns and explosives --
You cannot
fix any of this by treating the entire population as suspects and then engaging in
suspicionless, blanket collection and processing of personal data. Mass data collectors can dig
deeply into anyones digital persona but dont have the resources to do so with
everyone. Surveillance of the entire population, the vast majority of whom are innocent, leads
to the diversion of limited intelligence resources in pursuit of huge
numbers of false leads. Terrorists are comparatively rare, so finding one is a needle-in-a-haystack
problem. You dont make it easier by throwing more needleless hay on the stack. It is statistically
impossible for total population surveillance to be an effective tool for catching
terrorists. Even if your magic terrorist-catching machine has a false positive rate of 1
in 1,000and no security technology comes anywhere near this every time you
asked it for suspects in the U.K. it would flag 60,000 innocent people. Law enforcement and
security services need to be able to move with the times, using modern digital technologies intelligently and
through targeted data preservationnot a mass surveillance regimeto engage in court-supervised technological
surveillance of individuals whom they have reasonable cause to suspect. That is not, however, the same as building
reasonable, and legitimate, Ted Senator, a data scientist who worked on an early post-9/11 program called Total
Information Awareness, said, in 2002. Since then,
lone-wolf terrorists, cells, and, as Alexander has put it, the terrorist who walks among us, as though Al
Qaeda were a fifth column, capable of camouflaging itself within civil society. Patrick Skinner, a former C.I.A. case
officer who works with the Soufan Group, a security company, told me that this image is wrong. We knew about
these networks, he said, speaking of the Charlie Hebdo attacks.
false sense of security. It sounds great when you say youre monitoring every phone call in the United
States. You can put that in a PowerPoint. But, actually, you have no idea whats going on. By
flooding the system with false positives, big-data approaches to counterterrorism
might actually make it harder to identify real terrorists before they act . Two years before the
Boston Marathon bombing, Tamerlan Tsarnaev, the older of the two brothers alleged to have committed the
attack, was assessed by the citys Joint Terrorism Task Force . They determined that he
was not a threat. This was one of about a thousand assessments that the Boston J.T.T.F.
conducted that year, a number that had nearly doubled in the previous two years, according to the Boston
F.B.I. As of 2013, the Justice Department has trained nearly three hundred thousand law-enforcement officers in
how to file suspicious-activity reports. In 2010, a central database held about three thousand of these reports; by
2012 it had grown to almost twenty-eight thousand. The bigger haystack makes it harder to find the needle,
Sensenbrenner told me. Thomas Drake, a former N.S.A. executive and whistle-blower who has become one of the
agencys most vocal critics, told me, If
No Impact
Their experts have motive to exaggerate the likelihood of an
attack
Weiss 2015 (Leonard [visiting scholar at Stanford Universitys Center for
International Security and Cooperation]; On fear and nuclear terror; Mar 3; Bulletin
of the Atomic Scientists 2015, Vol. 71(2) 7587; kdf)
There is a tendency on the part of security policy advocates to hype security threats
to obtain support for their desired policy outcomes. They are free to do so in a democratic society, and
most come by their advocacy through genuine conviction that a real security threat is receiving insufficient attention. But there
is now enough evidence of how such advocacy has been distorted for the purpose
of overcoming political opposition to policies stemming from ideology that careful
public exposure and examination of data on claimed threats should be part of any
such debate. Until this happens, the most appropriate attitude toward claimed threats of nuclear
terrorism, especially when accompanied by advocacy of policies intruding on individual freedom, should be one of
skepticism. Interestingly, while all this attention to nuclear terrorism goes on, the United States and other nuclear nations
have no problem promoting the use of nuclear power and national nuclear programs (only for friends, of course) that end up
creating more nuclear materials that can be used for weapons. The use of civilian nuclear programs to disguise national weapon
ambitions has been a hallmark of proliferation history ever since the Atoms for Peace program (Sokolski, 2001), suggesting that the
real nuclear threat resides where it always has resided-in national nuclear programs; but placing the threat where it properly
belongs does not carry the public-relations frisson currently attached to the word terrorism.
become notorious, apocalyptic pronouncements in Western media may begin at any time, warning of the possible acquisition and
the ease of obtaining conventional explosives and the ability to deploy them, a terrorist group is unlikely to exchange a big part of
its operational program to engage in a risky nuclear development effort with such doubtful prospects. And, of course, 9/11 has
heightened sensitivity to the need for protection, lowering further the probability of a successful effort.
experts are
far more dubious about the heavy U.S. reliance on air power and targeted strikes .
The tactical, whack-a-mole approach is not having the desired effect, my Foreign Policy
press spokesman, but outside the ranks of officials in President Barack Obamas administration,
colleague Micah Zenko told the New York Times. Not having the desired effect was a polite circumlocution: As
the administration inexplicably continues to tout as a counterterrorism success, U.S. policy in in shambles. If
youre looking for logic here, youre not going to find much, Stephen Seche, a former U.S. ambassador to Yemen,
Capt. Robert Newson, a Navy SEAL who served as director of the Joint Interagency
Task Force-Counter Terrorism, told an interviewer at West Points Combating Terrorism Center that
drone strikes, manned airstrikes, and special operations raids buy space and
time. But by themselves they are only a delaying action , and everywhere I have
been, in Iraq, Afghanistan, Yemen, every military person up and down the chain of
command acknowledges this. This CT concept the solution that some people champion where
the main or whole effort is drone strikes and special operations raids is a fantasy. Like Newson, I havent
policy.
encountered many defenders of U.S. counterterrorism strikes. Last year, I co-chaired a Stimson Center commission
on U.S. drone policy with retired Gen. John Abizaid. The commission, which included former senior military and
intelligence officials from both Obamas and George W. Bushs administrations, concluded in June 2014 that the
counterterrorism strategy
rests on questionable assumptions, and risks increasing instability and
escalating conflicts. While tactical strikes may have helped keep the homeland
free of major terrorist attacks, existing evidence indicates that both Sunni and Shia Islamic
extremist groups have grown in scope, lethality and influence in the broader area of
operations in the Middle East, Africa and South Asia . In dozens of interviews and conversations
Obama administrations heavy reliance on targeted killings as a pillar of US
with national security experts since June 2014, I have yet to find anyone who wont admit, off the record, that U.S.
counterterrorism policy is flailing badly.So
external critics were ignored or silenced, and everyone from Defense Secretary Donald Rumsfeld to Secretary of
theyre trapped in their own little bubble; maybe theyve started to believe their own hype. 3. They dont know
Or maybe they dont and cant know that they dont know what
the rest of us know. Maybe no one draws their attention to critical reports. Maybe the internal critics of
what they dont know.
whom there are clearly many censor themselves when theyre around the president and his inner circle. I
theres just no there there: The State Department doesnt always share important information with the Defense
Department, the Defense Department doesnt always share important information with Department of Homeland
Security, and the intelligence community generally doesnt share important information with anyone. Within
agencies, its no different. Central Command doesnt necessarily know what Special Operations Command knows,
and Africa Command may not know what either knows.Central Command doesnt necessarily know what Special
Operations Command knows, and Africa Command may not know what either knows. Military intelligence and
surveillance assets are concentrated in the Central Command area or responsibility, leaving commanders elsewhere
with less ability to monitor and understand whats going on. Meanwhile, the CIAs shift toward paramilitary
with a bureaucratic culture that insists that everything be boiled down to a few slides or a page of bullet points
never read the newspaper. Maybe Obama has stopped reading the news too. Or maybe he skips articles that look
critical or negative and goes straight to the sports section. It will be many years before current intelligence
to clean up the mess which wont be easy, since no one has any magic solutions. In the meantime, politics
trumps policy. The experts, analysts, and pundits can yap all they want, but airstrikes and targeted killings scratch
the itch to do something and look tough while doing it. The long-term efficacy of this approach is immaterial. 6 .
dealing with the rise of the Islamic State. A few weeks ago, he amended this to we dont yet have
a complete strategy. It shows.
AT: Counterplans
Drones Key
Drones key, yo
Stanley 2015 (Jay [Senior policy analyst, ACLU speech, privacy & tech project];
What's spooky about the FBI's fleet of spy planes?; https://www.aclu.org/blog/freefuture/whats-spooky-about-fbis-fleet-spy-planes; kdf)
Following up on a May story by the Washington Post about mysterious aircraft spotted circling over Baltimore, the
Associated Press reported today that the FBI maintains a secret air force with scores of small aircraft registered with
13 front companies under apparently false names, and that these planes fly over American cities frequently.
law enforcement has been using aircraft for many decades. So whats spooky
about this story? Several things: These are not your grandparents surveillance
aircraft. As I discussed when the Baltimore story broke, there are several very powerful masssurveillance technologies that utilize low-circling manned aircraft , including
Dirtboxes and persistent wide-area surveillance in which an entire 25-square mile
area can be monitored, and vehicles tracked, for extended periods of time by a
single camera. We need more information about the scope of surveillance these planes are being used for.
The FBI told the AP that its fleet was not equipped, designed or used for bulk
collection activities or mass surveillance. We are glad to hear thatbut that statement bears more
interrogation. For example the AP reports that the FBI occasionally uses Dirtboxes (aka IMSI
catchers or cell-site simulators) on the aircraft. Those certainly qualify as mass
surveillance devices. If the FBI is only using the aircraft when it has a specific
target rather than for broad fishing expeditions, that would be a good thingbut that is not
the same thing as saying that data on masses of people is not being swept up. The
FBI told the AP that under a new policy it has recently begun obtaining court orders to
use cell-site simulators. But we dont know what kind of court orders theyre getting to use the devices.
Rather than warrants, they may just be obtaining pen register orders, as we have seen
Obviously
done by local police in Baltimore and elsewhere. The sheer scope of the program. A 2010 federal budget document
found by the AP mentions at least 115 planes in the FBIs fleet, and the FBI has flown over 100 flights over more
companies with three-letter names and headed by ghost CEOS with signatures that dont match over time its all
currently in the air around the world and played a key role in uncovering the FBIs air force. It is true that under
orders from President Obama the DOJ recently promulgated a privacy policy for its use of drones, but that policy is
their surveillance abilities well-understood and relatively limited. What this story tells us is
that their use is now more widespread than we thoughtand we know their surveillance capabilities
are growing by leaps and bounds. Drones, by raising the prospect of endless free and easy aerial
surveillance, have brought to the fore issues that already existed with manned aircraft,
and new regulations designed to protect against aerial surveillance should not
distinguish between manned and unmanned aircraft. Law enforcement has been using aircraft
for many decades. So whats spooky about reports of FBI fleet of low-circling planes?
AT: Congress CP
No Solve Circumvention
Only a ruling about the 4th amendment can solve CP gets
circumvented
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE
FOURTH AMENDMENT: ADOPTING A REASONABLE FOURTH AMENDMENT
JURISPRUDENCE TO PREVENT UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT
SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
The advent of the widespread government use of UAS has raised
concerns about the potential threat to Americans' privacy . n64 Critics warn of a surveillance
C. Privacy Concerns
society in which the government monitors, tracks, records, and scrutinizes individuals' every move. n65 Individuals
have expressed sentiments such as, "I do not want flying spy robots looking into my private property with infrared
cameras ... It's an invasion of my privacy." n66 Survey results indicate that the American public is opposed to using
UAS in routine police matters. n67 Public opposition to drone use has had some effect. In
response to public backlash, the Seattle Police Department recently returned its two UAS to the manufacturer after
the mayor banned their use. n68 Virginia's legislature has imposed a two-year moratorium on using UAS for criminal
Second, although in theory Congress may insert itself into the policymaking process
including by legislating directly or by conducting oversight hearingsit faces a
number of hurdles to doing so. As Aziz Huq notes, Terrorism is a subject matter
that is especially prone to legislative delegation because it often entails hard tradeoffs. Post-9/11 legislation generally leaves large discretion in executive hands. For
example, when fashioning substitutes for habeas corpus, Congress left open both
substantive and procedural rules.138 In addition to this delegation, congressional
oversight mechanisms have not proven particularly robust.139 The president may
limit executive reporting to Congress by interpreting particular statutory terms
narrowly, as he seems to have done with the term hostilities in the War Powers
Resolution.140 Congressional reports on national security issues tend to emerge
years after the fact and thus have limited impact on policy setting that must take
place quickly.
years after the fact and thus have limited impact on policy setting that must take
place quickly.Congressional Pressure As political scientists have demonstrated, a
strategic executive will be attuned not just to the judiciary as a potential audience
for its policymaking, but also to Congress. The executive accordingly will take into
account potential congressional reactions to its policy decisions when finalizing
those policies. Perhaps, then, Congress is a key source of pressure on executive
policymaking, leading the executive to alter or reveal various national security
policies and procedures. Two facts indicate that Congress has played a modest role
in shaping the national security policies discussed here. First, the timing of the
policy changes seems closely aligned with activity in courts, and seems unrelated to
salient activity in Congress. In many cases, Congress only became involved in
cementing policy changes well after the executive already had made them on its
own. For instance, the 2005 Detainee Treatment Act effectively codified (with
modest amendments) the Bush Administrations 2004 Combatant Status Review
Tribunals.196 Congress has not legislated (or even threatened to legislate) to
mandate particular review procedures for detainees in Afghanistan, the use of
secret evidence in immigration proceedings, or the use of lethal force overseas
against American citizens. In most of the examples considered in Part I, Congress
has come late to the game, if it shows up on the field at all. Second, where Congress
has chosen to legislate in the postSeptember 11 era, it frequently has been more
aggressively security focused and less rights focused than the executive.197 For
instance, in 2007, the Senate passed a Sense of the Senate, by a 94-3 vote,
opposing efforts to bring Guantnamo detainees to the United States,
notwithstanding President George W. Bushs interest in doing so.198 In the National
Defense Authorization Act for Fiscal Year 2012, Congress sought to require the
executive to detain members of al Qaeda within a military detention paradigm
rather than an Article III criminal paradigm.199 President Obamas signing
statement opposed that policy and triggered relevant 196. Detainee Treatment Act
of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739 (codified in part at 42
U.S.C. 2000dd to 2000dd-1 (2006)). 197. There are exceptions to this. For
example, certain members of Congress hoped to cabin the executives use of the
state secrets doctrine. See infra note 308. 198. 153 CONG. REC. 19,719 (2007). 199.
National Defense Authorization Act for the Fiscal Year 2012, Pub. L. No. 112-81,
102122, 125 Stat. 1298 (2011). 2013] THE OBSERVER EFFECT 871 waivers built
into the legislation.200 It is hard to reconcile Congresss security-driven preferences
with policy shifts by the executive in more rights-protective directions. It is possible
that private consultations between some members of Congress and the executive
have affected executive decisions to alter executive policy, but records of those
discussions are not publicly available. There even is evidence of situations in which
members of Congress objected to rights-protective shifts in executive security
policies shortly after the executive issued those policies.201 In short, it is hard to
see, based on available direct and circumstantial evidence, that Congress has
exercised a potent observer effect of its own over the executive in the national
security arena.
http://www.lexisnexis.com.p
roxy.lib.umich.edu/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T222512
84585&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T2225
1284591&cisb=22_T22251284590&treeMax=true&treeWidth=0&csi=7336&docNo
=5)//AJ
[*1133] Drones, with their current and projected capabilities, present a perfect
storm of issues that fall outside of current Fourth Amendment jurisprudence but still
appear to implicate the Fourth Amendment. n20 Drones can maneuver through
each and every loophole of the jurisprudence for warrantless searches. n21 They
travel on public airways at low or high altitudes, undetected and with little or no
undue noise, nuisance, or threat to persons or property. n22 They can utilize senseenhancing technologies that are, or will soon be, in general public use. n23 And
drones can use these technologies to gather an abundance of intimate details and
information, previously impossible or impracticable to acquire. n24 Law
enforcement is likely to increasingly use drones for domestic surveillance, n25 and
this will likely propel drones to the forefront of courts' dockets . n26
Scholars have written exhaustively on many aspects of the Fourth Amendment, and
its intersection with drones has recently [*1134] received significant attention. n27
Much of the literature on drones and the Fourth Amendment recognizes that it is
unclear where - and whether - drones fall within current jurisprudence, and
recommends a variety of legislative solutions. n28 But although scholars identify
the legal uncertainties with drones, those recommending legislative action endorse
a partial solution that only perpetuates the problem that the courts have maintained
with respect to technology and the Fourth Amendment. Specifically, just as current
Fourth Amendment jurisprudence has failed to keep pace with advancing
technology, a legislative approach will also trail behind . n29 This Note addresses
these [*1135] issues and recommends an adaptive approach to Fourth
Amendment jurisprudence in the age of the drone.
For these reasons, it is highly probable that courts will soon confront issues
regarding the use of drones for domestic surveillance. n30 This Note argues that
when these issues arise, courts should apply the reasonable-expectation-of-privacy
test expounded in Katz v. United States, n31 and, in doing so, expand on the
subjective-expectation-of-privacy requirement. This oft-neglected element of the
two-pronged test provides critical analysis that is especially relevant to cases
involving drones. In further analyzing and clarifying the subjective-expectation
requirement, courts should proceed in three steps. First, they should determine
whether the surveilled person "exhibited an actual (subjective) expectation of
privacy" - the [*1136] threshold issue in order for the Fourth Amendment to apply.
n32 Second, if the person held a subjective expectation of privacy, courts should
evaluate the scope of that privacy expectation. And third, they should determine
whether the person "exposed [information] to the "plain view' of outsiders" and
whether the evidence at issue fell within the scope of that exposure. n33
times of conflict. The following examples, from Uganda, Nepal, Somaliland, and
South Sudan, illustrate some of the ways in which foreign governments and
judiciaries rely on the leadership of the U.S. and this Court to promote rule of law in
their home states. i. Uganda In Uganda, the precedent established by this Court in
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 128 S.Ct. 2229
(2008), influenced judges and legislators to incorporate the principles of judicial
review and enforceability in their domestic war crimes bill. In 2008 members of
PILPG began working with the Government of Uganda to establish a War Crimes
Chamber within the Ugandan High Court to prosecute members of the Lords
Resistance Army (LRA). The LRA is an insurgent group operating in Northern
Uganda, which, over the past twenty-five years, has kidnapped over sixty thousand
young Ugandan girls and boys, and forced them to be sex slaves and child soldiers.
PILPG worked closely with the Ugandan government to establish a judicial
mechanism to address this violence in accordance with international legal
standards. After discussing with PILPG this Courts holdings in Hamdan and
Boumediene, the Ugandan government decided to include a provision in their bill
establishing the War Crimes Chamber that provides for appeal to Ugandas highest
court. Following the example of the U.S., the Ugandans felt that it was important
that such high profile and controversial cases involving war crimes and terrorism
should be subject to the highest level of judicial review in order to promote
independence, fairness, and legitimacy. Provided that this Court issues a robust
interpretation of Boumediene, the Ugandan precedent is likely to be repeated by
other countries, such as Liberia, which are also contemplating the establishment of
judicial bodies to prosecute war crimes and terrorism. ii. Nepal This Court has also
served as a model for the nascent Nepal judiciary. Nepals 2006 Comprehensive
Peace Agreement ended a decade-long civil conflict between Maoist insurgents and
government forces. The Agreement provided for the election of a Constituent
Assembly to serve as an interim government and to draft a new constitution for
Nepal. Elected in May 2008, the Constituent Assembly is currently in the midst of
the constitution drafting process. PILPG is advising the Assemblys drafting
committees on a number of issues, among them the structure, composition, and
role of the judiciary. Members of the Assembly have repeatedly expressed the view
that the judiciary is a crucial component to fully and effectively implementing the
constitution and ensuring the balance of power in the new government. In technical
discussions with members of the Committee on the Judicial System, PILPG discussed
several aspects of the U.S. judicial model, including: the U.S. federal and state
judicial structures; the types of cases the Supreme Court can adjudicate; the powers
and functions of the U.S. judicial branch; the devolution of judicial power in the U.S.;
the role of the Supreme Court in establishing precedent for all U.S. courts; and the
mechanisms used by the Supreme Court to ensure enforcement of its decisions in
the lower courts. Members of the Committee on the Judicial System were
particularly interested in how the U.S. federal court system operates at the national
level, and how the U.S. model could be applied in Nepal as Nepal moves towards
decentralizing its court system. As the Constituent Assembly moves forward with
developing constitutional and judicial structures for Nepal, members will continue to
look to the functioning of this Court for guidance on the role of a high court in a
federal system, particularly how this Court enforces key decisions in the lower
courts. iii. Somaliland In Somaliland, the government relied heavily on U.S. terrorism
legislation when drafting terrorism legislation for the region. In October 2008,
Somaliland, an autonomous region inside the international borders of Somalia,
experienced its first large-scale attack by terrorist-linked suicide bombers. The
Somaliland government sought PILPGs assistance to develop a legal framework to
combat terrorism based on U.S. terrorism legislation. The government believed that
rule of law was the best means to combat terrorism and build international support
for Somalilands efforts towards that end. The Somaliland government sought to
address gaps in its legal regime that prevented law enforcement from accessing
information necessary to properly combat future terrorist attacks, such as
telecommunications records, financial transfer records, property rental records, and
vehicle records. The government requested PILPGs assistance in balancing new
government authority with vital due process safeguards that the U.S. and other
states use to protect the rights of citizens. iv. South Sudan In the South Sudan
peace process, the Sudan Peoples Liberation Movement/Army (SPLM/A), the leading
political party in the Government of Southern Sudan, relied on U.S. precedent to
argue for the primacy of law and the importance of the enforceability of adjudicative
decisions in deciding one of the most important and contentious issues in the
ongoing peace process. In May 2008, large-scale violence in Abyei, South Sudan,
resulted in the destruction of Abyei Town and the displacement of its residents. The
violence further threatened to unravel the 2005 Comprehensive Peace Agreement
between the Government of Sudan and the SPLM/A. The violence was a result of
tension between the parties regarding the long-overdue establishment of
boundaries of the Abyei Area, which straddles the North and South of Sudan and
was the location of widespread violence during decades of civil war. The parties had
agreed in the Comprehensive Peace Agreement to a specific process to determine
the boundaries of the Abyei Area. When the Abyei Boundaries Commission issued its
binding decision, however, the Government of Sudan refused to implement the
ruling. Given the long and violent history between the parties, the unresolved status
of Abyei threatened to re-ignite widespread conflict. Rather than returning to
hostilities, however, the parties elected to refer the Abyei question to an
adjudicative body. On July 7, 2008, the parties signed the Abyei Arbitration
Agreement. Under the terms of the Arbitration Agreement, the parties agreed to
submit questions regarding the boundaries of the Abyei Area to an arbitration
tribunal seated at the Permanent Court of Arbitration in The Hague. The leaders of
the SPLM/A told PILPG that they sought recourse to an adjudicative body because
they believed that the ruling would be enforceable and would be supported by the
international community. Based on the belief that the U.S. legal system promotes
the primacy of law and affirms the critical role of adjudicative bodies in a system
dedicated to the rule of law, the SPLM/A cited U.S. court decisions in its submissions
to the Abyei Arbitration tribunal. The SPLM/A memorials specifically cited this Court,
as well as U.S. district and circuit court decisions, to bolster the SPLM/As position
that the tribunal should respect the finality of the award of an adjudicative body,
such as the Abyei Boundaries Commission.2 When the Abyei Arbitration tribunal
issued its binding decision in July 2009, the arbitration decision also cited this
Courts precedent.3 This Court thus played an important role in the peaceful
resolution of one of the most contentious issues in the South Sudan peace process.
As the foregoing examples illustrate, foreign governments rely on the precedent set
by the U.S. and this Court when addressing new and complex issues in times of
conflict. Finding for the Petitioners in the present case will reaffirm this Courts
leadership in promoting respect for rule of law in foreign states during times of
conflict. B. Foreign Judges Follow U.S. and Supreme Court Leadership in Times
of Conflict. In addition to its work advising foreign governments, PILPG has been
and continues to be involved in a number of judicial training initiatives in
foreign states. These initiatives aim to foster independent and fair judicial
systems in transitional and post-conflict states throughout Central and
Eastern Europe, Africa, and the Middle East. In these trainings, PILPG frequently
relies on the work of this Court to illustrate and promote adherence to the
rule of law. In 2004, for example, PILPG led a week-long training session for Iraqi
judges in Dubai on due process and civil liberties protections to institute in the new
post-Saddam legal system. The training was seen as an important step toward the
democratization of Iraq, and something that would hasten the ability of the U.S. to
withdraw its troops from Iraq. On the second day of the training program, local and
international media published the leaked photos of the abuses at Abu Ghraib. The
Iraqi judges would not allow the training sessions to continue until PILPG answered
to their satisfaction questions about whether the U.S. judicial system could ensure
that the perpetrators would be brought to justice, that the victims would be able to
bring suit for their injuries, and that the abuses would be halted. When PILPG
returned for another training session several months later, the Iraqi judges had
mixed reactions to the prosecutions of the Abu Ghraib perpetrators. Some judges
perceived the U.S. prosecutions of the perpetrators as not aggressive enough, which
left the Iraqi judges with the impression that the U.S. was not leading by example.
Although other Iraqi judges appreciated and sought to follow the U.S. example to try
those responsible for abuses before an independent tribunal, it was clear that Abu
Ghraib temporarily set back U.S. efforts to establish rule of law in Iraq. A year later,
in 2005, PILPG conducted training sessions for the Iraqi High Tribunal judges who
would be presiding over the trial of Saddam Hussein and other former leaders of the
Baathist regime. Even more than the human rights training of ordinary Iraqi judges
discussed above, the successful operation of the Iraqi High Tribunal was seen as
critical to suppressing the spread of sectarian violence and heading off a full-scale
civil war in Iraq. The objectives of the tribunal were twofold. First, the tribunal
sought to bring those most responsible for the atrocities committed under the
Baathist regime before an independent panel of judges to be tried under
international standards of justice. Second, the tribunal sought to establish a model
for upholding and implementing rule of law in Iraq and to demonstrate that the
need for rule of law is greatest in response to the gravest atrocities. During the
training sessions, the Iraqi judges requested guidance on controlling disruptive
defendants in the courtroom. Specifically, the judges asked whether they could bind
and gag the defendants in the courtroom as they understood had been done to the
defendants in the 1969 Chicago Seven trial in the U.S. PILPG explained that the
U.S. Court of Appeals had ultimately overturned the convictions in that case, in part
because of the mistreatment of the defendants in the courtroom. United States v.
Dellinger, 472 F.2d 340 (7th Cir. 1972). This information persuaded the Iraqi judges
to seek less draconian means of control in the trial of Saddam Hussein, which was
televised gavel to gavel in Iraq. See generally Michael Newton and Michael Scharf,
Enemy of the State: The Trial and Execution of Saddam Hussein (2008). Foreign
judicial interest in U.S. respect for rule of law during the war on terror is not limited
to Iraqi judges. In 2006, PILPG conducted sessions in a weeklong rule of law training
program in Prague for fifty judges from former Soviet Bloc countries in Eastern
Europe. At the start of the first session, one of the judges asked Sobriaetes li vi
goverit o slone v komnate?, which translates to Are you going to be addressing
the elephant in the room? Michael P. Scharf, The Elephant in the Room: Torture and
the War on Terror, 37 Case W. Res. J. Intl L. 145, 145 (2006). The question referred
to the so-called White House Torture Memos, released just before the training
session began, which asserted that Common Article 3 of the 1949 Geneva
Conventions was not applicable to detainees held at Guantanamo Bay and which
provided justification for Military Commissions whose procedures would not meet
the Geneva standards. Id. at 145-46. The group of judges asked PILPG to explain
how representatives of the United States could expect to be taken seriously in
speaking about the importance of human rights law when the United States itself
has recently done so much that is contrary to that body of law in the context of the
so-called Global War on Terror. Id. at 145. PILPG addressed judges concerns by
explaining that the Presidents decision to establish Military Commissions via
Executive Order, and whether those Commissions had to comport with the Geneva
Conventions, was currently being reviewed by this Court in Hamdan v. Rumsfeld,
548 U.S. 557 (2006), and that the Executive Branch would be bound to follow the
holding of this Court. Scharf, supra, at 148. Foreign judges closely follow the
work of this Court and the example set by the U.S. Government in
upholding the rule of law during the war on terror. As these examples
illustrate, when the U.S. upholds the rule of law, foreign judges are more
likely to follow.
347 U.S. 436 (1954),5 United States v. Nixon, 418 U.S. 683 (1974),6 and Roper v.
Simmons, 543 U.S. 551 take on a special significance . Reliance on the moral
authority of this Court can provide invaluable support for those foreign
courts struggling to establish their own legitimacy, to shore up judicial
authority against overreaching by powerful executives, and to develop a
strong rule of law within their own national legal systems.
This Courts potential to positively influence the international rule of law is
particularly important in the nascent transnational judicial dialogue
surrounding the war on terrorism and the primacy of rule of law in times
of conflict. As the worlds courts begin to grapple with the novel, complex, and
delicate legal issues surrounding the modern-day war on terrorism, and as states
seek to develop judicial mechanisms to address domestic conflicts, foreign
governments and judiciaries are confronting similar challenges. In
particular, foreign governments and judiciaries must consider how to
accommodate the legitimate needs of the executive branch in times of war
within the framework of the law. Although foreign courts are just beginning to
address these issues, it is already clear that they are looking to the experience of
the U.S., and to the precedent of this Court, for guidance on upholding the
rule of law in times of conflict. In recent years, courts in Israel, the United
Kingdom, Canada, and Australia have relied on the precedent of this Court in
decisions addressing the rights of detainees.8 In short, as a result of this Courts
robust influence on transnational judicial dialogue, its decisions have proved
extraordinarily important to the development of the rule of law around the
world.
International courts have similarly relied on the precedent of this Court in
influential decisions. For example, in the important and developing area of
international criminal law, the international war crimes tribunals for Yugoslavia and
Rwanda both relied heavily on the precedent of this Court in their early opinions. In
the first five years of the Yugoslav Tribunal, the first in the modern iteration of the
war crimes tribunals, the justices cited this Court at least seventeen times in
decisions establishing the fundamental legal principles under which the Tribunal
would function.9 The International Criminal Tribunal for Rwanda similarly relied on
this Courts precedent, citing this Court at least twelve times in its first five years.10
The precedent of this Court has provided a crucial foundation for international
criminal law. The reliance on the precedent of this Court speaks to the Courts
international leadership on the promotion of respect for the rule of law in times of
conflict.
By ruling in favor of the Petitioners, this Court will reaffirm the precedent
established in its prior decisions granting habeas rights to Guantanamo detainees
and, in doing so, demonstrate to these foreign courts, and to other courts who will
be addressing these issues in the future, that all branches of government must be
bound by the rule of law, even in the most challenging of times.
No Solve -- Circumvention
CP cant solve the aff - gets circumvented and more invasive of
privacy
Stanley 2015 (Jay [Senior policy analyst, ACLU speech, privacy & tech project];
What's spooky about the FBI's fleey of spy planes?; https://www.aclu.org/blog/freefuture/whats-spooky-about-fbis-fleet-spy-planes; kdf)
Following up on a May story by the Washington Post about mysterious aircraft spotted circling over Baltimore, the
Associated Press reported today that the FBI maintains a secret air force with scores of small aircraft registered with
13 front companies under apparently false names, and that these planes fly over American cities frequently.
law enforcement has been using aircraft for many decades. So whats spooky
about this story? Several things: These are not your grandparents surveillance
aircraft. As I discussed when the Baltimore story broke, there are several very powerful masssurveillance technologies that utilize low-circling manned aircraft , including
Dirtboxes and persistent wide-area surveillance in which an entire 25-square mile
area can be monitored, and vehicles tracked, for extended periods of time by a
single camera. We need more information about the scope of surveillance these planes are being used for.
The FBI told the AP that its fleet was not equipped, designed or used for bulk
collection activities or mass surveillance. We are glad to hear thatbut that statement bears more
interrogation. For example the AP reports that the FBI occasionally uses Dirtboxes (aka IMSI
catchers or cell-site simulators) on the aircraft. Those certainly qualify as mass
surveillance devices. If the FBI is only using the aircraft when it has a specific
target rather than for broad fishing expeditions, that would be a good thingbut that is not
the same thing as saying that data on masses of people is not being swept up. The
FBI told the AP that under a new policy it has recently begun obtaining court orders to
use cell-site simulators. But we dont know what kind of court orders theyre getting to use the devices.
Rather than warrants, they may just be obtaining pen register orders, as we have seen
Obviously
done by local police in Baltimore and elsewhere. The sheer scope of the program. A 2010 federal budget document
found by the AP mentions at least 115 planes in the FBIs fleet, and the FBI has flown over 100 flights over more
companies with three-letter names and headed by ghost CEOS with signatures that dont match over time its all
currently in the air around the world and played a key role in uncovering the FBIs air force. It is true that under
orders from President Obama the DOJ recently promulgated a privacy policy for its use of drones, but that policy is
historically they have been expensive and their use therefore relatively rare, and
their surveillance abilities well-understood and relatively limited. What this story tells us is
that their use is now more widespread than we thoughtand we know their surveillance capabilities
are growing by leaps and bounds. Drones, by raising the prospect of endless free and easy aerial
surveillance, have brought to the fore issues that already existed with manned aircraft,
and new regulations designed to protect against aerial surveillance should not
distinguish between manned and unmanned aircraft. Law enforcement has been using aircraft
for many decades. So whats spooky about reports of FBI fleet of low-circling planes?
The Associated Press traced at least 50 aircraft back to the FBI, and
identified more than 100 flights in 11 states plus the District of Columbia . Those planes
In a 30-day period,
have been flying over parts of Boston, Chicago, Dallas, Houston, Minneapolis, Phoenix, Seattle and Southern
California as well rural areas. While you would expect the FBI to use aircraft in investigations, you might not expect
those planes to be registered to shell companies. The AP traced FBI planes to at least 13 fake companies, such as
FVX Research, KQM Aviation, NBR Aviation and PXW Services.
Although the FBI said its aviation program is not a secret, the agency tried the tactic of asking the AP not to
mention the fake companies tied to the planes as it would saddle taxpayers with the expense of creating new
cover companies to shield the government's involvement, and could endanger the planes and integrity of the
surveillance missions. The AP must have thought that request was funny and chose to ignore it because the
information about the shell companies and their links to the Justice Department are listed on public documents and
in government databases.
115 planes belonging to the FBI, including 90 Cessna aircraft, were mentioned in a 2009 budget document, but
while investigating the Associated Press also discovered:
planes are equipped with technology that can capture video of unrelated
criminal activity on the ground that could be handed over to prosecutions . One of the
The
planes, photographed in flight last week by the AP in northern Virginia, bristled with unusual antennas under its
fuselage and a camera on its left side.
Some of the aircraft can also be equipped with technology that can identify thousands
of people below through the cellphones they carry , even if they're not making a call or in public.
Officials said that practice, which mimics cell towers and gets phones to reveal basic subscriber information, is used
in only limited situations.
These are not your grandparents' surveillance aircraft, said ACLU senior policy analyst Jay Stanley. He also
explained that surveillance turning inward is just one spooky element about the FBIs spy planes.
One trend weve seen in the last 15 years or so is a great Turning Inward, as US surveillance capabilities
originally built to spy on the Soviet Union and other overseas targets have swung inward on the American people.
The FBI has a spy plane fleet, hidden behind shell companies with three-letter names and headed by ghost CEOS
with signatures that dont match over time its all very CIA. Yet these are American cities that theyre flying over.
Earlier this month, the ACLU hit the FAA as well as the DOJ, FBI, DEA, U.S. Marshals Service with Freedom of
Information Act requests about the surveillance planes and flights over Baltimore. The DEA has at least 92 planes
registered to shell companies and the U.S. Marshals Service use planes with tech capable of capturing data from
thousands of other phones, too.
The Wall Street Journal previously reported the Marshals have been flying Cessna aircraft outfitted with dirtbox
devices for seven years, snagging a large number of innocent Americans every time the feds hunt for criminals.
Dirtboxes work like Stingrays, which are in use by over 46 agencies including law enforcement, the military, and
A Stingray
surveillance device lets law enforcement mimic a cell phone tower, track the position of
users who connect to it, and sometimes even intercept calls and Internet traffic, send fake
texts, install spyware on a phone, and determine precise locations. Dirtboxes can sweep
intelligence agencies across 18 states and Washington D.C. for more than a decade.
Another mass surveillance technique that uses fixed-wing aircraft is known as Wide-Area
Surveillance. This involves the installation of super-high, gigapixel resolution cameras on
planes, which are then used to monitor entire cities. Every moving pedestrian and
vehicle can be tracked: the beginning and end everyones journeys, and the route taken in between. This
gives the authorities the power to press "rewind" on anybody's movements, and learn a lot of
intrusive things about how they live their life .
The investigation by the Associated Press into the FBIs use of surveillance aircraft does indeed raise questions
about how these surveillance flights affect Americans' privacy even if the FBI has started obtaining court orders to
use the tech. The agencys use of cell-site simulators, aka dirtboxes or IMSI catchers, attached to aircraft is the
creepiest part; the technology can track thousands of innocent Americans who did nothing to deserve having their
privacy and civil liberty rights poked with a surveillance stick.
If the FBI is running targeted surveillance in legitimate investigations, then why collect the whole haystack when
the agency is investigating one bad needle inside it?
AT: McNeal CP
Perm
Permutation do the plan and counterplanThe aff solves the link to the net-benefit
Yang 2014 (Y. Douglas [JD Boston U]; BIG BROTHER'S GROWN WINGS: THE
DOMESTIC PROLIFERATION OF DRONE SURVEILLANCE AND THE LAW'S RESPONSE;
23 B.U. Pub. Int. L.J. 343; kdf)
Rule 1 embodies the desire of both federal and state
legislatures to exclude certain situations from the burden of a warrant requirement.
a. Rule 1: Warrantless Drone Use
n228 Common examples of non-law enforcement operations include, but are not limited to, land surveying, n229
weather and climate observation and scientific research, n230 wildlife management and protection, n231 and
search and rescue missions. n232 In addition to Rule 1's exemption of non-law enforcement uses of drones ,
Rule
1 also exempts situations where a high risk of terrorist attack or imminent danger to
life or property exists. This specific provision finds its inspiration in Virginia's [*377] warrant
exception that allows drone use for responses to Amber Alerts, n233 Senior Alerts,
n234 and search-and-rescue missions." n235 While the Fourth Amendment covers all government
intrusions of privacy, government activity that does not involve criminal investigation tends to involve "a less
hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime." n236 Moreover,
drones can be a potent tool to assist in searching for missing persons and in police
emergencies, much in the same way that police helicopters and aircraft currently
provide aerial support, albeit at a much higher cost and with less flexibility . n237 Rule 1
reflects a desire by federal and state legislative proposals to exempt exigent circumstances from restrictions on
No Solve Privacy
CP doesnt solve privacy
Celso 2014 (Joel [JD Candidate U of Baltimore Law]; DRONING ON ABOUT THE
FOURTH AMENDMENT: ADOPTING A REASONABLE FOURTH AMENDMENT
JURISPRUDENCE TO PREVENT UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT
SYSTEMS; 43 U. Balt. L. Rev. 461; kdf)
Despite a strong argument that UAS surveillance should not constitute a search as
long as it shows nothing more or different than what is revealed by naked-eye
observation, n240 it is not clear that courts would accept technological surveillance
as an equivalent substitute for manned surveillance. n241 In fact, in holding that the use of a
camera to photograph an open industrial area is not a search, the Supreme Court emphasized that commercial
property does not have the same heightened expectation of privacy as the home and stated that "the photographs
here are not so revealing of intimate details as to raise constitutional concerns." n242 However ,
given the
expectation of privacy in the home and the Supreme Court's assertion that "in the
home ... all details are intimate details," n243 it could be that any [*488] UAS
surveillance taken through skylights, windows, or open doors constitutes a search.
n244 Finally, and most importantly, in Kyllo, the Supreme Court may have opened the door to
warrantless UAS surveillance of the home at some point in the not-too-distant
future. n245 In holding that the use of thermal imaging constitutes a search, the
Court provided an important caveat by stating that when the technology used is
available to the general public, it does not constitute a search . n246 Therefore, it
appears that the Court's bright-line rule drawn at the entrance to the home may
have been written in "disappearing ink ." n247 To date, UAS are not in general public use. n248 That
is about to change since certain government agencies are allowed to operate them, the FAA is required to fully
integrate them into U.S. airspace by 2015, and their decreasing cost makes them more widely accessible. n249
Once the use of UAS becomes commonplace, the government may be able to use them to photograph or scan the
interior of a home without a warrant, regardless of whether the information revealed could not have otherwise been
obtained without a physical intrusion. n250 Therefore ,
than practical concerns with its implementation. n283 [*493] The Katz reasonable expectation of privacy test has
been criticized for its circular nature. n284 As long as UAS surveillance remains sufficiently rare, an individual's
expectation of privacy is considered reasonable and it is protected from government intrusion by the Fourth
n222 Because the area is not exposed, and curtilage enjoys similar protection as the interior of the home, an
expectation of privacy should be recognized as reasonable. n223 For example, if an individual planted trees in his
backyard to conceal his actions from aerial observation, it would likely be a search if police used laser radar affixed
that point the litigated issue will likely become whether the technology employed by a particular UAS is in general
public use or not. n226 Many of the technologies, such as digital cameras, are already in general public use, and it
AT: States CP
Perm
The perm solves
Kaminski 2013 (Margot E [Executive Director of the Information Society Project,
Research Scholar, and Lecturer in Law at Yale Law School]; Drone Federalism:
Civilian Drones and the Things They Carry; 4 Calif. L. Rev. Circuit 57; kdf)
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law
enforcement drone use and civilian drone use. n8 Most advocates and academics have focused on establishing
privacy regulations to govern law enforcement drone use. n9 This task is worthy of immediate attention. The FAA
already permits law enforcement drone use, where it does not yet permit commercial private drone use. n10 A
number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11
The federal government could regulate law enforcement drone use as it has
historically regulated other law enforcement behavior, by providing a floor for state
laws. n12 Federal legislation already governs law enforcement use of wiretaps and
pen registers. n13 Drone surveillance is likely to additionally involve video
surveillance, location tracking, and/or facial recognition, among other possible
technologies. Thus federal legislation governing law enforcement surveillance could
be expanded to govern location tracking, video surveillance, and the use of facial recognition software by law
enforcement. n14 [*60] Regulating law enforcement drone use poses few countervailing dangers from legislating
thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First Amendment
rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough
privacy. n15
could include bad actors, even terrorists. Its hard to overstate how undercooked the debate on this future is. The
stakes are high; our privacy and our security are at risk. The implications for privacy and surveillance are huge. In
2012, the Supreme Court ruled that tracking a car using an attached GPS beacon, without a warrant, is
unconstitutional. But what if police use a roving drone instead? That debate is raging in Virginia now, which two
years ago imposed a two-year moratorium on warrantless drone surveillance. Thats where most of the regulatory
At the federal
level, we have a leadership vacuum. With a technological revolution on its way,
Washington is AWOL. How do you square this new world with our Constitution? As Brookings Institution
action is happening on this issue: in concerned states and municipalities across the country.
senior fellow John Villasenor said in 2012, The FAA, I would imagine, has more aviation lawyers than Fourth
Amendment constitutional lawyers. Then there are the new security challenges. Authorities have a poor track
record detecting small aircraft that fly where they shouldnt. In 2010, a Mexican government drone went down in an
El Paso backyard; though NORAD later said it had been tracking the plane, local officials seem to have been taken
entirely by surprise. This month, a postal employee flew a (manned) gyrocopter to Capitol Hill through some of the
most restricted airspace in the country. Incidents like these severely undermine confidence in our preparedness.
One day, one of the craft slipping under our radar will do us harm. Iran has poured funds into developing a suicide
drone essentially a cheap, nimble cruise missile. Its not hard to imagine terrorists building do-it-yourself versions
of the same device, a pipe bomb or pressure cooker strapped to a small UAV. This is a concern others have raised
for years, but it took a drone landing feet from the White House for the Secret Service to start trying out jamming
technology an issue they should have been thinking about years ago. Many drone countermeasures are still
primitive; some of the solutions are worse than the problem. Popular Science advised the White House, Simple
netting, used often at drone trade shows to keep small drones confident to their exhibitions, could also work, if the
is to encourage commercial firmsthrough either voluntary or mandatory standardsto hardwire restrictions into
the drones they build and sell. Some companies already program their drones to stay out of restricted airspace and
away from sensitive sites.
No Solve -- Precedent
Setting a Constitutional precedent is key to avoiding
technological whack-a-mole
Vacek 09 (Joseph [Assistant Professor, University of North Dakota]; Big Brother
Will Soon Be Watching - Or Will He? Constitutional, Regulatory, and Operational
Issues Surrounding the Use of Unmanned Aerial Vehicles In Law Enforcement; 2009;
Lexis)//AJ
Every technological step forward in remote sensing raises potential Fourth
Amendment issues, and the implications of law enforcement and executive use of
ever cheaper and more numerous surveillance tools are not fleshed out until the
highest courts profess their opinions, sometimes years later. And in the interim,
even newer technologies have rendered the original technologies and questions
obsolete. Even legislative oversight is ineffective - a deliberative organ's skills at
playing technological "whack-a-mole" are futile when compared to the rate of
industry advancement.
[*675] The societal questions raised by today's law enforcement use of cuttingedge surveillance technology in day-to-day operations will need to be answered at
the same level they are raised - on the ground. There is no precedent that squarely
addresses privacy implications of governmental use of a technology that allows
essentially permanent, multi-dimensional, multi-sensory surveillance of citizens
twenty-four hours per day. A hypothetical example approaching that kind of
surveillance ability would be a police officer's access to a Google Earth n1 like
displway, with a point of view that could be moved or zoomed anywhere in three
dimensions, coupled with real-time visual, audio, thermal, or other sensing. God-like
sensory omniscience, in other words. Individual law enforcement officers' abilities
could be multiplied with a flock of small UAVs, exponentially increasing the state's
power to continually monitor its citizenry.
Our Constitutional jurisprudence, demographics, and technological ability to
remotely sense almost anyone, anywhere, at anytime, seem to be the ingredients
necessary for a police state. But interestingly, law enforcement has not taken full
advantage of the potential tools available to them - perhaps for regulatory
impediments, for budgetary constraints, or to avoid running afoul of the
Constitution. At any rate, permanent, ubiquitous surveillance is not the stuff of
fiction anymore. So what could usher us into the brave new world of a big brotherlike security state? Off-the-shelf technology, an updated regulatory scheme, and
outdated Fourth Amendment cases could.
limited but effective policymakers.
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law
enforcement drone use and civilian drone use. n8 Most advocates and academics have focused on establishing
privacy regulations to govern law enforcement drone use. n9 This task is worthy of immediate attention. The FAA
already permits law enforcement drone use, where it does not yet permit commercial private drone use. n10 A
number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11
The federal government could regulate law enforcement drone use as it has
historically regulated other law enforcement behavior, by providing a floor for state
laws. n12 Federal legislation already governs law enforcement use of wiretaps and
pen registers. n13 Drone surveillance is likely to additionally involve video
surveillance, location tracking, and/or facial recognition, among other possible
technologies. Thus federal legislation governing law enforcement surveillance could
be expanded to govern location tracking, video surveillance, and the use of facial recognition software by law
enforcement. n14 [*60] Regulating law enforcement drone use poses few countervailing dangers from legislating
thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First Amendment
rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough
privacy. n15
very small percentage of FISA requests have been denied over the courts 30 year history. Most are approved as a
matter of course. Sarah Kreps and I have argued that one of the more disturbing aspects of the FISA courts are their
AT: Federalism DA
The plan sets a floor states can go beyond it
Kaminski 2013 (Margot E [Executive Director of the Information Society Project,
Research Scholar, and Lecturer in Law at Yale Law School]; Drone Federalism:
Civilian Drones and the Things They Carry; 4 Calif. L. Rev. Circuit 57; kdf)
DRONE PRIVACY REGULATIONS There are, broadly speaking, two subjects of drone privacy regulation: law
enforcement drone use and civilian drone use. n8 Most advocates and academics have focused on establishing
privacy regulations to govern law enforcement drone use. n9 This task is worthy of immediate attention. The FAA
already permits law enforcement drone use, where it does not yet permit commercial private drone use. n10 A
number of state and federal bills thus propose warrant requirements for drone surveillance by law enforcement. n11
The federal government could regulate law enforcement drone use as it has
historically regulated other law enforcement behavior, by providing a floor for state
laws. n12 Federal legislation already governs law enforcement use of wiretaps and
pen registers. n13 Drone surveillance is likely to additionally involve video
surveillance, location tracking, and/or facial recognition, among other possible
technologies. Thus federal legislation governing law enforcement surveillance could
be expanded to govern location tracking, video surveillance, and the use of facial recognition software by law
enforcement. n14 [*60] Regulating law enforcement drone use poses few countervailing dangers from legislating
thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First Amendment
rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough
privacy. n15
AT: Kritiks
Framework
FrameworkRole of the ballot is to weigh the plans merits
rejecting the aff because parts of our advocacy are imperfect is
not productiveallowing them to choose the debates focus
wrecks groundundermines deliberation
The alternative jettisons questions of policy because of a risk
of a link, this causes poor decision making and ruins the
process of debate
Pozen 2015 (David E [Associate prof @ Columbia Law]; Privacy-Privacy tradeoffs;
Early draft June 28, 2015 83 U. CHI. L. REV. (2015);
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2624281; kdf)
Although it only scratches the surface of debates over surveillance reform, the discussion in Part III demonstrates
privacy-privacy tradeoffs are deeply (if sometimes inconspicuously) woven into the fabric
of these debates. We would find the same thing, Parts I and II indicate, in virtually any area of information
policy. How might we build on these observations? If privacy-privacy tradeoffs cannot be
avoided, how might they be managed? Some basic suggestions emerge from the analysis
above. First, scholars, advocates, and government officials could do a much better job of
identifying and confronting privacy-privacy tradeoffs as tradeoffs. Unless
decisionmakers consider the full set of outcomes associated with each effort to
reduce risk, policy theorists have warned, they will systematically invite [risk-]risk
tradeoffs.76 This warning applies equally in the privacy context. Managing privacy- privacy
tradeoffs requires attention to, and information about, the full range of privacy interests that
may be affected by a decision, the potential conflicts and congruities among those interests, and the
expected distribution and degree of privacy gains and losses. It cannot just be
assumed that because a certain measure causes privacy harm , even serious harm,
privacy would be enhanced overall by jettisoning the measure . Privacy policies and
that
problems cannot be assessed in isolation. Second, the pluralistic turn in privacy theory may need to be qualified or
supplemented in certain respects to accommodate the reality of privacy-privacy tradeoffs .
Pluralistic
theories of privacy, recall, maintain that there are many different valid understandings
of privacy and that none has priority over the others.77 The ability to control ones intimate
relationships is no more or less central to the right of privacy than is the ability to keep secrets or to keep
over another, they may find it useful to learn how affected parties would assess a tradeoff. And at least in
some cases, this information may be attainable. Researchers and regulators can ask people whether and to what
extent they believe an anticipated privacy-privacy tradeoff would be desirable, or design mechanisms that induce
people to reveal their true privacy preferences, and then feed the results into a marginal cost analysis. 79 A pair
of computer scientists recently tried this and found, through a simple survey, that many social network users seem
eager to trade certain forms of personal information for greater control over photographs in which they appear. 80
The very asking of such questions , moreover, may have the salutary effect of raising
anticipated tradeoffs salience and fostering debate .
AT: Law K
Even if the gains of the aff are marginal, they are significant
Greenwald 2014 (Glenn [Constitutional lawyer- patriot]; CONGRESS IS
IRRELEVANT ON MASS SURVEILLANCE. HERES WHAT MATTERS INSTEAD; Nov 19;
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsasmass-surveillance/; kdf)
3) U.S. court proceedings. A U.S. federal judge already ruled that the NSAs domestic bulk collection program likely violates the 4th
Amendment, and in doing so, obliterated many of the governments underlying justifications. Multiple cases are now on appeal,
almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. For a variety of
when it comes to placing real limits on the NSA, I place almost as little faith in
the judiciary as I do in the Congress and executive branch. To begin with, the Supreme
Court is dominated by five right-wing justices on whom the Obama Justice
Department has repeatedly relied to endorse their most extreme civil-libertiesdestroying theories. For another, of all the U.S. institutions that have completely
abdicated their role in the post-9/11 era, the federal judiciary has probably been the
worst, the most consistently subservient to the National Security State . Still,
there is some chance that one of these cases will result in a favorable outcome that
restores some 4th Amendment protections inside the U.S. The effect is likely to be
marginal, but not entirely insignificant.
reasons,