Resolved: The benefits of domestic surveillance by the NSA outweigh the harms.
For part 1 of this analysis, click here.
Con PositionJust like the Pro, Con will need to set up a weighing mechanism to give the judge the tools she will need to evaluate this case. (See my comments on weighing mechanisms in the Pro analysis here.) On this side of the debate, teams must at least prove the harms (the negatives, the downside, the costs) of domestic surveillance at minimum cancel out any benefits or outweigh them. No doubt, a huge part of the Con case will center around the principle of rights and liberties; the erosion of personal freedoms. At stake is a debate on natural security interests versus personal liberty. It is the dilemma of social contract which begins to require more and more that citizens relinquish freedoms in order to exchange for protection. Despite the obvious contentions, I won't spend much time discussing this approach here
This surveillance program is in place for one and only one reason; to prevent another major terror attack like the one experienced on 9/11. The evidence arising from that act revealed, that the terrorists are "living among us" and when suspected terrorists enter the country it is very difficult to track their activities and whereabouts in a coordinated way. In the beginning, the NSA mandate was to isolate activities which involved individuals within the nations borders, interacting with suspected terrorists outside of the country. Often, intelligence gathered outside of the country, such as a captured terrorist's cell phone revealed phone numbers of people inside the U.S. When this occurred, investigators could obtain probable cause warrants and have phone data collected for the phone inside the country and the investigation would proceed accordingly, to identification, and location of the individual involved. Nevertheless, soon after the NSA was created, it began collecting "meta-data" on the calls of nearly all U.S. citizens without warrants. It is claimed the data contains basic information which does not identify the individuals and indeed, the phone companies themselves have this data as a means to verify billing records.
The Incredible IntangiblesThere is little hard-evidence to support the Pro or Con side of the debate. Let's be honest. The Pro evidence supporting benefits is mainly based upon the limited revelations made by government and NSA officials. Of course they are going claim success. It keeps them and whole lot of other folks employed. As for the harms, how do we put a cost on them since no doubt Con will be relying on the general contention that Americans are having their rights violated and yet, even though there is a general sense this is bad, individuals are unwilling to force Congress to reverse the mandates and they have not curtailed their day-to-day activities which are subject to NSA data collection. So it seems the benefits are incredible (as in, lacking credibility) and the harms intangible. For this reason, I feel it is perfectly reasonable, perhaps even necessary for the Con to play every emotional impact card it can. Let it be known, for example, there is little to no verification of NSA successes, there is little to no evidence to support the legitimacy of their activities and methods since it is cloaked in secrecy, let it be known the FISA court is an arm of the Executive branch and there is a kind of fox guarding the hen-house system of checks and balances in which each party has a interest to justify its own existence and let it be known that in the past the FBI and similar law enforcement agencies have done a stellar job protecting Americans, even if major improvements were or are still needed since 9/11. On the Con side, the erosion of rights is occurring slowly but nevertheless it is happening as surely as the forces which shaped the Grand Canyon. Yeah, these kinds of impact statements may be extreme and may even be proven false, but they serve to poison the well.
Government AbuseThe government is comprised of bureaucrats, contractors, administrators, and millions of people and to think they all act with utmost regard for individuals rights and moral integrity is simply naïve thinking. We are constantly seeing "failures" of the system to safeguard liberties, from the egregious felonies like the Watergate scandal of the 1970s to the very recent charges of IRS targeting of tea-party organizations. With so many points of failure, failure is inevitable.
What does this latest revelation have in common with at least two of the scandals the Obama administration is fighting at the moment? How is it like the Justice Department's overly broad seizure of phone records -- office, home and cell -- for multiple Associated Press journalists, as well as DOJ's aggressive efforts to obtain access to even personal emails sent by a Fox News reporter (even as government officials use personal accounts in an apparent attempt to evade freedom of information laws)? And how is it like the IRS's ideologically slanted efforts to scrutinize conservative groups, including not only its delays of processing their applications but, when the agency did act, its ridiculously broad requests for information such as all Facebook posts, the nature of prayers spoken at some of the groups' events, and even speculation as to whether any of its members might one day run for elected office?
Prosecutors have become kings, with the ability to find a crime committed by just about anyone. Data mining and access to internet activity can help find terrorists, but it also can be used to find crimes which were not previously known to have been committed by political opponents. A “find the target first, then find the crime” political approach requires access to information of an unprecedented level. Which is exactly what is happening.
...why should law-abiding citizens mind federal surveillance? The answer begins with this distressing reality: None of us scrupulously obeys the law. Technically speaking, we're all criminals. Federal and state criminal statutes have multiplied like rabbits over the decades, and so now everyone breaks the law, probably every day. Copy a song to your laptop from a friend's Beyonce CD? You just violated the Digital Millennium Copyright Act. Did you buy some clothes in Delaware because they were tax free? You're probably evading taxes. Did you give your 20-year-old nephew a glass of wine at dinner? Illegal in many states. Citizens that the federal government wants to indict, the federal government can indict if it monitors them closely enough. That's why it's so disturbing to learn that the federal government doesn't need to obtain a warrant on us in order to get our emails and phone records.
Cyber HacksWhile we have no way of knowing how secure the data being collected by the NSA actually is, we do know that foreign and domestic entities are continually trying to penetrate and hack secure systems for whatever purposes they feel are worth the risks. Suppose the NSA is hacked and data is stolen. Should we be concerned? Would we even find out?
According to the Washington Post, "An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances." And this week, we learned that the FBI, CIA and NSA were unable to protect some of their most closely held secrets from Glenn Greenwald, Richard Engel, Robert Windrem, Barton Gellman, and Laura Poitras. Those journalists, talented as they are, possess somewhat fewer resources than foreign governments!...In the wrong hands, it could enable blackmail on a massive scale, widespread manipulation of U.S. politics, industrial espionage against American businesses;,and other mischief I can't even imagine. The plan is apparently to store the data indefinitely, just in case the government needs it for future investigations. Don't worry, national security officials tell us, we won't ever look at most of it. Do you trust the government to keep it secure, forever, if others try to look?
The High Cost of NSA SecurityFor the cost-benefit analysis it is necessary to look at hard data, or least as hard as it gets and while the true cost of the harms are yet to be known, a picture is already beginning to emerge.
A new study suggests that the direct losses to US tech companies from people and companies fleeing to other services (often overseas) is likely to be between $22 billion and $35 billion over just the next three years. Germany is already looking at pushing for rules in the EU that would effectively ban Europeans from using services from US companies that participate in NSA surveillance programs (which is a bit hypocritical since it appears many EU governments are involved in similar, or even worse, surveillance efforts).
The laws regulating the functioning of the NSA are very difficult for the Con to claim they are anything but "legal". However, understanding whether or not the NSA is actually in compliance with the law is a different matter entirely. In 2011, this matter was reviewed U.S. District Judge, John Bates whose opinion contained a footnote which cited inconsistencies in how the methods used by the NSA were depicted to the court.
Questions of Legal Compliance
..the court’s approval of the National Security Agency’s telephone records program was premised on “a flawed depiction” of how the NSA uses meta-data, a “misperception . . . buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime. “Contrary to the government’s repeated assurances, NSA had been routinely running queries of the meta-data using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been ‘so frequently and systemically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.’ ”
For the purposes of this post I have limited the evidence to items other than the expected claims of loss of liberties. Loss of liberties is real. It is something, I personally am concerned about but it is one of those things that is very difficult to make a case around when the other side is going to be citing the devastating effects of terrorism. Nevertheless, I feel I have given you enough to begin your research.
For All These Reasons and More...
Click here - for another approach to the Pro case
Tim Carney: Even law-abiding people should oppose surveillance; Washington Examiner
TIMOTHY P. CARNEY; JUNE 9, 2013
The latest sign of a federal government that knows no limits; Atlanta Journal Constitution
Kyle Wingfield; June 6, 2013
When everything is a crime, government data mining matters; Legal Insurrection
William A. Jacobson, June 8, 2013
What If China Hacks the NSA's Massive Data Trove?; The Atlantic
Conor Friedersdorf Jun 8 2013
Cost-Benefit Analysis Of NSA Surveillance Says It's Simply Not Worth It
Mike Masnick Aug 9, 2012
The NSA is losing the benefit of the doubt; The Washington Post
Ruth Marcus,August 22, 2013