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General Links

Surveillance restrictions entirely fail — no real Congressional support, new technology and creative interpretations of law.Waldman 15 — Paul Waldman, senior writer at The American Prospect, blogger for the Washington Post, 2015 (“A reality check on the future of government spying,” Washington Post, June 3 rd, Available Online at http://www.washingtonpost.com/blogs/plum-line/wp/2015/06/03/a-reality-check-on-the-future-of-government-spying/, Accessed 06-08-2015)It’s tempting to hail the passage yesterday of the subtly-named USA Freedom Act as a victory for civil liberties in America and a step toward a healthy recalibration of the government’s surveillance policies. But if that’s your feeling today, you might want to think twice .

Not only are the changes the Freedom Act makes to existing practices relatively minor, both parties

have signed on with the dramatic expansion of surveillance on law-abiding Americans that occurred

after September 11. And both will continue to support it .The Freedom Act does take the bulk collection of Americans’ telephone records out of the hands of the National Security Agency and leaves those records with the phone companies; it sets up procedures for the NSA to get access to those records when it wants to. But the truth is that this program wasn’t particularly useful for the NSA to begin with. The government has been unable to point to a single terrorist attack that was thwarted by the use of these records. Not only that, just last month an appeals court ruled that the bulk collection program went way beyond anything envisioned by the section of the USA Patriot Act that was used to justify it, and it was therefore illegal.That doesn’t mean this new law isn’t significant, because anything that dials back the surveillance contained in the Patriot Act is significant. But let’s not forget that had Edward Snowden not revealed the existence of this program, the Obama administration would have been happy to keep it secret from the public indefinitely . It was only once the program’s existence was revealed that President Obama came out in favor of taking the records out of the NSA’s hands. Even if many Republicans (including Mitch McConnell) would have preferred to keep the bulk collection going as it was, we still have a bipartisan preference in Washington for keeping the gargantuan surveillance apparatus we set up after 9/11 in business.You might not have expected that from Barack Obama if you were a liberal who supported him over Hillary Clinton in the 2008 primaries, concluding that he was the dove while she was the hawk because of his opposition to the Iraq War. As a senator, Obama had been quite active in proposing reforms to the government’s surveillance powers; as president, most of what he advocated has fallen by the

wayside .And is Clinton going to move to restrict the government’s surveillance powers if she’s elected president? There’s no particular reason to believe she will. Up until now Clinton has been vague about what she might do when it comes to surveillance; when she’s asked about it, her answers tend to go like this: Yes there are concerns about privacy, we have to balance that with security, it’s something I’ll be thinking about. Yes, she supported the Freedom Act, but it remains to be seen whether she’ll go into detail about any other particular type of surveillance she’d like to restrict.And let’s not forget that the NSA and other government agencies are certain — not possible, not

likely, but certain — to come up with new ways to spy on Americans as new technologies become

available. Just as the NSA did with the bulk phone data collection, they’ll probably take a look at earlier laws and decide that there’s a legal basis for whatever new kind of surveillance they want to

begin — and that it’s best if the public didn’t know about it . Indeed, just this week an investigation by the Associated Press revealed that the FBI is using aircraft with advanced cameras to conduct investigations without warrants. That’s a relatively mundane use of technology, but there will always be new tools and capabilities coming down the pike, and the impulse will always be to put them into operation, then figure out afterward if it’s legally justifiable.The story of the bulk telephone data collection tells us that the only thing likely to restrain the expansion of government surveillance is public exposure. If you’re hoping that politicians who care about privacy will do it on their own, you’re likely to be disappointed.

Alternate Rationale — the government will find another way to get the same data. FISA Court is unable to intervene.Ackerman 15 — Spencer Ackerman, national security editor for Guardian US, former senior writer for Wired, won the 2012 National Magazine Award for Digital Reporting, 2015 (“Fears NSA will seek to undermine surveillance reform,” The Guardian, June 1st, Available Online at http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law, Accessed 06-08-2015)The USA Freedom Act is supposed to prevent what Wyden calls “secret law”. It contains a provision requiring congressional notification in the event of a novel legal interpretation presented to the secret Fisa court overseeing surveillance.Yet in recent memory, the US government permitted the NSA to circumvent the Fisa court entirely .

Not a single Fisa court judge was aware of Stellar Wind, the NSA’s post-9/11 constellation of bulk surveillance programs, from 2001 to 2004.Energetic legal tactics followed to fit the programs under existing legal authorities after internal controversy or outright exposure. When the continuation of a bulk domestic internet metadata collection program risked the mass resignation of Justice Department officials in 2004, an internal NSA draft history records that attorneys found a different legal rationale that “essentially gave NSA the same authority to collect bulk internet metadata that it had”.After a New York Times story in 2005 revealed the existence of the bulk domestic phone records program, attorneys for the US Justice Department and NSA argued, with the blessing of the Fisa court, that Section 215 of the Patriot Act authorized it all along – precisely the contention that the second circuit court of appeals rejected in May.

Compliance is a joke — the oversight agencies are inept and the NSA and FBI refuse to be monitored, even by the Justice Department.Schulberg and Reilly 15 — Jessica Schulberg, reporter covering foreign policy and national security for The Huffington Post, former reporter-researcher at The New Republic, MA in international politics from American University, and Ryan J. Reilly, reporter who covers the Justice Department and the Supreme Court for The Huffington Post, 2015 (“Watchdog Finds Huge Failure In Surveillance Oversight Ahead Of Patriot Act Deadline,” Huffington Post, May 21st, Available Online at

http://www.huffingtonpost.com/2015/05/21/section-215-oversight_n_7383988.html, Accessed 06-05-2015)WASHINGTON -- In a declassified and heavily redacted report on a controversial Patriot Act provision, the Justice Department’s inspector general found that the government had failed to implement

guidelines limiting the amount of data collected on Americans for seven years .Section 215 of the Patriot Act, which is set to expire June 1 unless Congress reauthorizes it, has been the legal basis for the intelligence community’s bulk metadata collection. As a condition for reauthorization back in 2005, the Justice Department was required to minimize the amount of nonpublic information that the program gathered on U.S. persons. According to the inspector general, the department did

not adopt sufficient guidelines until 2013. It was not until August of that year -- two months after the bombshell National Security Agency disclosures by Edward Snowden -- that Justice began applying those guidelines in applications to the Foreign Intelligence Surveillance Act court, the secretive body that approves government surveillance requests.“It’s an indictment of the system of oversight that we’ve relied upon to check abuses of surveillance powers. The report makes clear that, for years, the FBI failed to comply with its basic legal

requirements in using Section 215, and that should trouble anyone who thinks that secret oversight is enough for surveillance capabilities that are this powerful,” Alex Abdo, a staff attorney at the American Civil Liberties Union, told HuffPost.“The report confirms that the government has been using Section 215 to collect an ever-expanding universe of records. Given the timing, it’s particularly significant,” he continued referring to the looming expiration date.At times during that seven-year period, the report noted, the government blocked the Justice

Department 's Office of the Inspector General from determining whether the minimization guidelines had been implemented:

The FBI in the past has taken the position, over the OIG’s objections, that it was prohibited

from disclosing FISA-acquired information to the OIG for oversight purposes because the Attorney General had not designated anyone in the OIG as having access to the information for minimization reviews of other lawful purposes, and because there were no specific provisions in the procedures authorizing such access.

Link –Executive Circumvention

The president will use signing statements to ignore the laws that he signs — empirically proven on surveillance and War on Terror.Van Bergen 6 — Jennifer Van Bergen, JD, author of The Twilight of Democracy: The Bush Plan For America, Professor at Santa Fe Community College, 2006 (“The Unitary Executive: Why the Bush Doctrine Violates the Constitution,” Couterpunch, January 12th, Available Online at http://www.counterpunch.org/2006/01/12/the-unitary-executive/, Accessed 06-07-2015)When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.This news came fast on the heels of Bush’s shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked .But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain. They not only claim unilateral executive power, but also supply the train of the President’s thinking, the texture of his motivations, and the root of his intentions.They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

The President will explicitly violate legislative restrictions on surveillance during the war on terror. The resulting conflict will endanger the rule of law and impair wartime decisions.Lobel 8 — Jules Lobel, Professor of Law at the University of Pittsburgh, 2008 (“Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” Ohio State Law Journal, Vol. 69, 2008, pp.391-467, Available Online at http://moritzlaw.osu.edu/students/groups/oslj/files/2012/04/69.3.lobel_.pdf, Accessed 05-29-2015)The critical difficulty with a contextual approach is its inherent ambiguity and lack of clarity, which tends to sharply shift the balance of power in favor of a strong President acting in disregard of congressional will. For example, the application of the Feldman and Issacharoff test asking whether the congressional

restriction makes realistic sense in the modern world would yield no coherent separation of powers answer if applied to the current Administration’s confrontation with Congress. It would undoubtedly embolden the President to ignore Congress’s strictures . The President’s advisors would argue that

the McCain Amendment’s ban on cruel and inhumane treatment, or FISA’s requirement of a warrant,

does not make realistic sense in the context of the contemporary realities of the war on terror in which we face a shadowy, ruthless nonstate enemy that has no respect for laws or civilized conduct, a

conclusion hotly disputed by those opposed to the President’s policies. Focusing the debate over whether Congress has the power to control the treatment of detainees on the President’s claim that the modern realities of warfare require a particular approach will merge the separation of powers inquiry of who has the power with the political determination of what the policy ought to be. Such an approach is likely to encourage the President to ignore and violate legislative wartime enactments whenever he or she believes that a statute does not make realistic sense—that is, when it conflicts with a policy the President embraces. 53The contextual approach has a “zone of twilight” quality that Justice Jackson suggested in Youngstown. 54 Often constitutional norms matter less than political realities— wartime reality often favors a

strong President who will overwhelm both Congress and the courts . While it is certainly correct— as Jackson noted—that neither the Court nor the Constitution will preserve separation of powers where Congress is too politically weak to assert its authority, a fluid contextual approach is an invitation to Presidents to push beyond the constitutional boundaries of their powers and ignore legislative

enactments that seek to restrict their wartime authority .Moreover, another substantial problem with a contextual approach in the war powers context is that the judiciary is unlikely to resolve the dispute. 55 The persistent refusal of the judiciary to adjudicate the constitutionality of the War Powers Resolution strongly suggests that courts will often refuse to intervene to resolve disputes between the President and Congress over the constitutionality of a statute that a President claims impermissibly interferes with her conduct of an ongoing war. 56 This result leaves the political branches to engage in an intractable dispute over the statute’s

constitutionality that saps the nation’s energy, diverts focus from the political issues in dispute, and

endangers the rule of law .Additionally, in wartime it is often important for issues relating to the exercise of war powers to be resolved quickly. Prompt action is not usually the forte of the judiciary.

If, however, a constitutional consensus exists or could be consolidated that Congress has the authority to check the President’s conduct of warfare, that consensus might help embolden future Congresses to assert their power. Such a consensus might also help prevent the crisis, chaos, and stalemate that may result when the two branches assert competing constitutional positions and, as a practical matter, judicial review is unavailable to resolve the dispute.Moreover, the adoption of a contextual, realist approach will undermine rather than aid the

cooperation and compromise between the political branches that is so essential to success in

wartime . In theory, an unclear, ambiguous division of power between the branches that leaves each

branch uncertain of its legal authority could further compromise and cooperation. However, modern

social science research suggests that the opposite occurs. 57 Each side in the dispute is likely to grasp onto aspects or factors within the ambiguous or complex reality to support its own self-serving position. This self-serving bias hardens each side’s position and allows the dispute to drag on , as has happened with the ongoing, unresolved dispute over the constitutionality of the War Powers Resolution. Pg. 407-409

The President will simply refuse to enforce the law — empirically proven when national security information is involved. This is true even if he signs the bill into law.McGinnis 93 — Assistant Professor, Benjamin N. Cardozo School of Law, former Deputy Assistant Attorney General in the Office of Legal Counsel, Department of Justice, 1993 (“Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers,” Law and Contemporary Problems, Vol 56 No 4, Autumn, Available Online at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp, Accessed 06-05-2015)A. The Executive's Rebuff of An Adventitious Congressional Challenge to the AccommodationOne year into President Bush's term, Congress passed the Foreign Relations Authorization Act.74 The Act included a provision prohibiting the United States from spending any money authorized for international conferences on the U.S. delegation to the Conference on Security and Cooperation in Europe unless that delegation included representatives of the Commission on Security and Cooperation in Europe.75 This Commission was composed almost entirely of members appointed by the legislative branch.76The reasons for Congress's decision to include this provision are obscure,' but a former member of the National Security Council staff recalls that the Counsel to the Foreign Relations Committee of the House of Representatives was particularly interested in these negotiations and wanted to participate in them.78 The inclusion of the provision was a sharp challenge to the President's asserted powers in foreign affairs for two reasons. First, presidents from both parties have asserted their authority to represent the United States in foreign affairs and thus control the identity of U.S. negotiators.79 Moreover, presidents have also consistently claimed the absolute right to control national security

information and prevent its disclosure to Congress -a power that would obviously be impaired if a representative of the legislative branch were required on the negotiating team.'Given the far-reaching challenge to powers of the presidency, President Bush's response was extremely forceful. He announced that the provision was unconstitutional, and that he would refuse to enforce it, permitting him to continue spending funds on the conference. 1 Announcing his refusal to enforce the provision served the purpose of protecting the boundaries of his powers better than vetoing the bill would have done. By claiming this right of refusal, the President was asserting a power of constitutional review over legislation that interfered with his constitutional prerogatives, at least in the area of foreign affairs. A veto, even if sustained, would not have permitted the President dramatically to assert a lawmaking role rivaling that of the Court in this area.'

The President's move effectively gave him the last word on the issue .' Congress could have used its power of impeachment to assert its view of the Constitution (both as to the substance of the President's foreign affairs authorities and as to his authority to refuse to enforce a law), but its use of this power under these circumstances would have seemed politically implausible because of both the relative unimportance of the issue in the public's perception and the general level of support the President enjoyed among the public and Congress at the time. By refusing to enforce the law, the President had effectively called Congress's bluff, both raising the stakes and leaving Congress with no feasible way to make its law binding through the use of its own political powers.

NSA surveillance violates explicit Congressional statutes and Supreme Court case law — the President has refused to comply with appropriate Congressional mandates in the area of surveillance.Levy 6 — Robert Levy, senior fellow in constitutional studies and chairman of the Board of Directors at the Cato Institute, director of the Institute for Justice, the Foundation for Government Accountability, J.D. and Ph.D. in business, former professor of law at Georgetown, 2006 (“Wartime Executive Power: Are Warrantless Wiretaps Legal?,” The Freeman, a publication of the Foundation for Economic Education, drawn from his testimony before the Senate Judiciary Committee, August 1st, Available Online at http://fee.org/freeman/detail/wartime-executive-power-are-warrantless-wiretaps-legal/, Accessed 05-29-2015)Thus the administration can credibly argue that it may conduct some types of warrantless surveillance without violating the Fourth Amendment. And because the president’s Article II powers are elevated during time of war—assuming the AUMF to be the functional, if not legal, equivalent of a declaration of war—his post-9/11 authorization of NSA warrantless surveillance might be justifiable if Congress had

not expressly disapproved .

But Congress did expressly disapprove, in the FISA statute . Therefore, the President’s assertion of a national-security exception that encompasses the NSA program misses the point. The proper question is not whether the president has inherent authority to relax the “reasonableness” standard of the Fourth Amendment. The answer to that question is: yes, in some cases. But the narrower issue in the NSA case is whether the president, in the face of an express statutory prohibition , can direct that

same surveillance. The answer is no, and I am not aware of any case law to support an argument to

the contrary .Put somewhat differently, Article II establishes that the president has inherent powers, especially during wartime. And those powers might be sufficient to support his authorization of warrantless surveillance, notwithstanding the provisions of the Fourth Amendment. But Article II does not delineate the scope of the president’s wartime powers. And because Congress has concurrent authority in this area, an express prohibition by Congress is persuasive when deciding whether the president has overreached.The distinction between concurrent and exclusive powers is important. For example, the president’s “Power to grant . . . Pardons” is exclusive; there is no stated power for Congress to modify it by legislation—for example, by declaring certain offenses unpardonable. By contrast, the president’s wartime powers are shared with Congress, which is constitutionally authorized to “define and punish . . . Offenses against the Law of Nations,” “declare War,” “make Rules concerning Captures on Land and Water,” “raise and support Armies,” “provide and maintain a Navy,” “make Rules for the Government and Regulation of the land and naval forces,” and suspend habeas corpus. That suggests the president

must comply with duly enacted statutes unless he can show that Congress has exceeded its authority.

In this instance, President Bush has made no such showing.

Obama and the NSA will just find another way to collect the same data — shutting down programs empirically fails to end the intrusion.Ackerman 15 — Spencer Ackerman, national security editor for Guardian US, former senior writer for Wired, won the 2012 National Magazine Award for Digital Reporting, 2015 (“Fears NSA will seek to undermine surveillance reform,” The Guardian, June 1st, Available Online at

http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law, Accessed 06-08-2015)The USA Freedom Act, a compromise bill, would not have an impact on the vast majority of NSA surveillance. It would not stop any overseas-focused surveillance program, no matter how broad in scope, nor would it end the NSA’s dragnets of Americans’ international communications authorized by a different law. Other bulk domestic surveillance programs, like the one the Drug Enforcement Agency operated, would not be impacted.The rise of what activists have come to call “bulky” surveillance, like the “large collections” of Americans’ electronic communications records the FBI gets to collect under the Patriot Act, continue unabated – or, at least, will, once the USA Freedom Act passes and restores the Patriot Act powers that lapsed at midnight on Sunday.That collection, recently confirmed by a largely overlooked Justice Department inspector general’s report, points to a slipperiness in shuttering surveillance programs – one that creates opportunities

for clever lawyers . The Guardian revealed in 2013 that Barack Obama had permitted the NSA to collect domestic internet metadata in bulk until 2011. Yet even as Obama closed down that NSA program, the Justice Department inspector general confirms that by 2009, the FBI was already collecting the same

“electronic communications” metadata under a different authority . It is unclear as yet how the FBI transformed that authority, passed by Congress for the collection of “business records”, into large-scale collection of Americans’ email, text, instant message, internet-protocol and other records. And a similar power to for the FBI gather domestic internet metadata, obtained through non-judicial subpoenas called “National Security Letters”, also exists in a different, non-expiring part of the Patriot Act.Jameel Jaffer, the deputy legal director of the ACLU, expressed confidence that the second circuit court of appeals’ decision last month would effectively step into the breach. The panel found that legal authorities permitting the collection of data “relevant” to an investigation cannot allow the government to gather data in bulk – setting a potentially prohibitive precedent for other bulk-collection programs.“We don’t know what kinds of bulk-collection programs the government still has in place, but in the past it’s used authorities other than Section 215 to conduct bulk collection of internet metadata, phone records, and financial records. If similar programs are still in place, the ruling will force the government to reconsider them, and probably to end them,” said Jaffer, whose organization brought the suit that the second circuit considered.Julian Sanchez, a surveillance expert at the Cato Institute, was more cautious.“The second circuit ruling establishes that a ‘relevance’ standard is not completely unlimited – it doesn’t cover getting hundreds of millions of people’s records, without any concrete connection to a specific inquiry – but doesn’t provide much guidance beyond that as to where the line is,” Sanchez said.“I wouldn’t be surprised if the government argued, in secret , that nearly anything short of that scale is still allowed, nor if the same Fisa court that authorized the bulk telephone program, in defiance of any common sense reading of the statutory language, went along with it.”

NSA- generic

Reforms fail – even new legislation won’t make the NSA transparent

Greenwald, 2014(Glenn –former constitutional law and civil rights litigator & has won numerous awards for NSA reporting including awards in investigative journalism, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State. p. 130-131)In the wake of our Snowden stories, a group of senators form both parties who had long been concerned with surveillance abuses began efforts to draft legislation that would impose real limits on the NSA’s powers. But these reformers, led by Democratic senator Ron Wyden of

Oregon, ran into an immediate roadblock: counter efforts by the NSA’s defenders in the Senate to write legislation

that would provide only the appearance of reform, while in fact retaining or even increasing the NSA’s powers. As Slate’s Dave Weigel reported in November: Critics of the NSA’s bulk data collection and surveillance programs have never been

worried about congressional inaction. They’ve expected Congress to come up with something that looked like reform but actually codified and excused the practices being exposed and pilloried. That’s what’s always happened – every amendment or reauthorization to the 2001 USA Patriot Act has built more back

doors than walls . “We will be up against a ‘business-as-usual brigade’ – made up of influential members of the government’s intelligence leaderships, their allies in think tanks [sic] and academia, retired government officials, and sympathetic legislators,” warned Oregon Sen. Ron Wyden last month. “Their endgame is ensuring that any surveillance reforms are only skin-deep…Privacy protections that don’t actually protect privacy are not worth the paper they’re printed on.” The “fake reform” faction was led by Dianna Feinstein, the very senator who is charged with exercising primary oversight over the NSA. Feinstein has long been a devoted loyalist of the US national security industry, from her vehement support for the war on Iraq to her steadfast backing of Bush-era NSA programs. (Her husband, meanwhile, has major stakes in various military contracts). Clearly, Feinstein was a natural choice to head a committee that claims to carry out oversight over the intelligence community but has for years performed the opposite function. Thus, for all the government’s denials, the NSA has no substantial constraints on whom it can spy on and how. Even when such constraints nominally exist – when American citizens are the surveillance target – the process has become largely

hollow . The NSA is the definitive rogue agency : empowered to do whatever it wants with very little control, transparency, or accountability.

NSA reform gets quietly rolled back — expansive interpretations and FISA rubber stamps.Ackerman 15 — Spencer Ackerman, national security editor for Guardian US, former senior writer for Wired, won the 2012 National Magazine Award for Digital Reporting, 2015 (“Fears NSA will seek to undermine surveillance reform,” The Guardian, June 1st, Available Online at http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law, Accessed 06-08-2015)Privacy advocates fear the National Security Agency will attempt to weaken new restrictions on the bulk collection of Americans’ phone and email records with a barrage of creative legal wrangles , as the first major reform of US surveillance powers in a generation looked likely to be a foregone conclusion on Monday.The USA Freedom Act, a bill banning the NSA from collecting US phone data in bulk and compelling disclosure of any novel legal arguments for widespread surveillance before a secret court, has already been passed by the House of Representatives and on Sunday night the Senate voted 77 to 17 to proceed to debate on it. Between that bill and a landmark recent ruling from a federal appeals court that

rejected a longstanding government justification for bulk surveillance, civil libertarians think they stand a chance at stopping attempts by intelligence lawyers to undermine reform in secret.Attorneys for the intelligence agencies react scornfully to the suggestion that they will stretch their authorities to the breaking point. Yet reformers remember that such legal tactics during the George W Bush administration allowed the NSA to shoehorn bulk phone records collection into the Patriot Act.Rand Paul, the Kentucky senator and Republican presidential candidate who was key to allowing sweeping US surveillance powers to lapse on Sunday night, warned that NSA lawyers would now make

mincemeat of the USA Freedom Act’s prohibitions on bulk phone records collection by taking an

expansive view of the bill’s definitions , thanks to a pliant , secret surveillance court .

“My fear, though, is that the people who interpret this work at a place known as the rubber stamp factory, the Fisa [court],” Paul said on the Senate floor on Sunday.

Breaches of the law are categorized as compliance problems – the NSA is immune from legal repercussions

O’Neill, 13(Ben – lecturer in statistics @ U of New South Whales, “The NSA and its Compliance Problems,” 29 August 2013, https://mises.org/library/nsa-and-its-%E2%80%9Ccompliance-problems%E2%80%9D)

Rather than referring to these as instances of lawbreaking as what they are, the Director of National Intelligence has instead referred to these legal violations as “compliance problems ” with the programs. He has made a point to stress that these kinds of problems are monitored and assessed regularly by the agency and are to be

expected in such a complex program. One consequence of this view is that there is no actual sanction for unlawful

activity by the NSA . If “compliance problems” are just an expected part of government operations

then there is no sense in having any sanction for these legal breaches. The agency then operates

above the law , in the sense that its agents are pre-emptively acquitted of lawbreaking , on the grounds

that some degree of non-compliance with the law is expected.¶ Even for the Foreign Intelligence Surveillance Court, tasked with supposed judicial oversight of the agency, attempting to hold the NSA to the rule of law has been a farce. Chief Judge Reggie Walton explained to the press that, “[t]he FISC is forced to rely upon the accuracy of the information that is provided to the Court. ... The FISC does not have the capacity to investigate issues of noncompliance , and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”¶ The NSA has “compliance problems” in its surveillance programs in the same way that a serial killer has “compliance problems” with the law against murder — neither of them are willing to follow the rules. In a society which respects the rule of law this matters. And as the demagogues spring up to defend the actions of the agency, it is useful to bear in mind what these “compliance problems” really mean for the rule of law.

The NSA has jettisoned the law from its behaviors entirely

O’Neill, 13

(Ben – lecturer in statistics @ U of New South Whales, “The NSA and its Compliance Problems,” 29 August 2013, https://mises.org/library/nsa-and-its-%E2%80%9Ccompliance-problems%E2%80%9D)

One of the core principles of good governance in society is the idea that the authority of law ought to prevail over the brute power of people — i.e., that society should operate under the rule of law, not the rule of men. Aristotle wrote that “[t]he law ought to be supreme over all ...” and argued that ... where the laws are not supreme, there demagogues spring up.” The principle has many important ramifications for society, but the most important is the view that government agents and agencies must be bound by the same law as their subjects.¶ This principle is of great relevance in the present NSA scandals, especially in light of recent NSA admissions of “compliance problems” with the legal constraints that are supposed to operate on the agency. For ordinary citizens, “compliance problems” with the law are better known as “crimes” (or possibly civil wrongs) and these lead to judgment debts,

fines, and possibly even jail time, depending on the severity of the lack-of-compliance . But for government officials

such notions are irrelevant — legal compliance problems are just something you file a report about, and send to another bureaucrat higher up in the government chain, so that he can bury it on his desk.¶ Unfortunately, this is not a new phenomenon. The notion of the rule of law is the wellspring of an endless stream of hypocrisy in the modern social-democratic welfare-warfare state . It is difficult to find anyone who does not speak highly of the

principle when it is presented in abstract form, yet it is simultaneously rare to find people who really take the idea

seriously when applied to concrete situations involving government wrongdoing. In the case of the

NSA, the principle of rule of law has been jettisoned entirely, and the agency operates without any

effective legal constraints.

The NSA will always disregard surveillance law – it doesn’t view most of its work as “data collection”

O’Neill, 13(Ben – lecturer in statistics @ U of New South Whales, “The NSA and its Compliance Problems,” 29 August 2013, https://mises.org/library/nsa-and-its-%E2%80%9Ccompliance-problems%E2%80%9D)

The collection of metadata and communication content occurs without any probable cause to believe that that the people targeted are a threat to anyone. It also occurs in violation of the U.S. Constitution and the already very broad requirements of the Patriot Act, which requires applications for access to records to have “a statement of facts showing that there are reasonable grounds to believe that the [records] sought are relevant to an authorized investigation.” In a recently declassified (but still heavily redacted) opinion from the Foreign Intelligence Surveillance Court, Judge James Bates wrote that “[t]his court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” In an earlier ruling the court had found that legal requirements for data queries had been “frequently and systematically violated.”¶ The NSA has taken a two-pronged approach to its legal defense of its surveillance activities. It has claimed that it may collect any and all information it wishes without any warrant or restriction, and that this does not constitute real “collection” of data unless the database is later queried. In other words, collection of data is not really collection of data, so long as the data sits idle and is not accessed. It has then claimed that querying of its databases is only ever done under warrant and only under circumstances where there are specific facts to yield a reasonable suspicion of terrorist activity. This is clearly false in view of the broad searches and indiscriminate data mapping that shows up in NSA documentation.

NSA utilizes loopholes in US constitution to monitor citizens despite current legislation. Axel Arnbak & Sharon Goldberg, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad, 21 Mich. Telecomm. & Tech. L. Rev. 317 (2015)INTRODUCTION Although the string of revelations on surveillance operations conducted by the United States (US) intelligence community has overloaded the general public and the media, we are only beginning the process of precisely describing the legal and technical details behind these operations. This multi-disciplinary Article discusses interdependent legal and technical loopholes that US intelligence agencies could use to circumvent Fourth Amendment protections and statutory safeguards for Americans. There are several loopholes in current US surveillance law that allow for largely unrestrained surveillance on Americans by collecting their network traffic abroad while not intentionally targeting a US person. Because the US legal framework regulating intelligence operations has not been updated to account for new technical realities, the loopholes we identify could leave Americans’ Internet traffic as exposed to network surveillance and as unprotected, from a legal perspective, as foreigners’ Internet traffic. This Article aims to broaden the understanding of how technical realities of the Internet impact US surveillance law and suggest remedies that can close the loopholes identified. This Article focuses on surveillance operations conducted by US government agencies but does not speculate on the extent to which the intelligence community is exploiting the loopholes identified. This Article also does not address the morality of surveillance based on the (assumed) nationality of Internet users. This analysis fits into a recurring regulatory conundrum. The application of any law is, ultimately, tied to jurisdiction. For centuries, jurisdiction has been determined primarily by geographic borders, or the physical space that states consider sovereign territory. Because global communication networks do not necessarily respect such borders, regulators and courts across the globe are struggling to adapt law to this new technical reality. Transnational surveillance (i.e., surveillance conducted from one country, directed towards users in another country) on global communications networks presents us with one of the most urgent examples of this conundrum.1 Although short term technical and legal solutions are available to address some of the issues outlined in this Article, they are no panacea. In the end, safeguarding the privacy of American Internet users requires a reconsideration of three legal principles underlying US surveillance law. First, the geographical point of collection determines which legal regime applies to a surveillance operation. Second, the collection of network traffic, before processing and analysis, is not firmly protected by the Fourth Amendment. Third, constitutional protection is limited to “US persons,” a term that is not defined uniformly across different regimes of US surveillance laws. These principles emerged in different times than ours. If they are maintained, loopholes in antiquated law—particularly Executive Order (EO) 12333—will work in conjunction with ever-advancing technical capabilities to enable largely unrestrained surveillance on Americans from abroad. This Article focuses on network traffic surveillance conducted from abroad in the data collection phase, although at times we point to policies for data retention and subsequent analysis as well. Part I describes the three legal regimes that form the core regulatory framework for network traffic collection by intelligence agencies. Part II discusses the technical details of how network protocols can be exploited to conduct surveillance from abroad, thus circumventing the legal protections in place for Americans when operations are conducted on US soil. Part III briefly reflects on possible legal and technical remedies. METHODOLOGY. Our research combines descriptive, internal legal analysis with threat-modeling from computer science. In addition to reaching inter-disciplinary conclusions, we aim to offer academics a new analytical framework to conduct similar research. Our method should be particularly helpful for conducting research on the interdependency of the laws and technologies for network surveillance and conducting evaluations of surveillance law as part of policymaking. LEGAL ANALYSIS. Part I describes the current US regulatory framework for intelligence gathering. Three legal regimes are most relevant to this Article: 1. Surveillance of domestic communications records conducted on US soil under § 215 of the Patriot Act;2 2. Surveillance of international communications conducted on US soil under the Foreign Intelligence Surveillance Act (FISA);3 and 3. Surveillance conducted entirely abroad under Executive Order 12333 (EO 12333)4 and underlying policies, notably 2. See generally Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, 50 U.S.C. § 1861 (2012). 3. See generally Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, 50 U.S.C. § 1881a (2012). 4. See generally Intelligence Authorization Act for Fiscal Year 2015, H.R. 4681, 113th Cong. § 309 (2014); Exec. Order No. 12,333, 3 C.F.R. § 200 (1981); Exec. Order No. 13,284, 68 Fed. Reg. 4,075 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004); Exec. Order No. 13,470, 73 Fed. Reg. 45,325 (July 30, 2008). Spring 2015] Loopholes for Circumventing the Constitution 321 the US Signals Intelligence Directive SP0018 (USSID 18).5 Distinguishing factors include where the surveillance is conducted and whom a surveillance operation targets. All three branches of the US government oversee the first two regimes, and have been discussed at length by the government, media, and general public. The

third regime, however, is solely the domain of the executive branch and has only recently begun to receive some attention in policy, media, and academic arenas. EO 12333, adopted in 1981 by the Reagan Administration and not substantially updated since, forms the cornerstone of this legal analysis; indeed, the NSA states that EO 12333 is the “primary legal authority” for its operations.6 Working with primary legal sources, many of which have only recently been made public and

are still redacted on key issues, we make the following central observation: if an intelligence agency can construct plausible presumptions that surveillance does not “intentionally target” a US person and when the surveillance is conducted abroad, the permissive legal regime under EO 12333 applies. Under EO 12333, operations from abroad can be presumed to affect foreigners rather than Americans. Since the Supreme Court has consistently held that foreigners do not enjoy constitutional protection under US law,7 the legal incentives to conduct surveillance under EO 12333 are substantial. The legal notion of “targeting a US person” does not rule out bulk collection of Internet traffic, even in situations where the traffic actually contains millions of Americans’ communication records. By collecting the traffic abroad, authorities can presume the traffic belongs to foreigners. Any US person’s traffic that happens to be captured during bulk collection is considered “incidentally collected” and may be retained for further processing. Users are only “targeted,” in the legal sense, once collection is complete and the surveillance operation moves into its retention and analysis phases. Indeed, documents revealed on August 25, 2014 indicate that metadata from retained traffic can be shared between multiple intelligence agencies, including domestic law enforcement and the Drug Enforcement Agency, and used for purposes that include “target development.”8 5. See generally NATIONAL SECURITY AGENCY, U.S. SIGNALS INTELLIGENCE DIRECTIVE SP 0018, LEGAL COMPLIANCE AND U.S. PERSONS MINIMIZATION (2011) [hereinafter “USSID 18”]. 6. NATIONAL SECURITY AGENCY, MEMORANDUM: THE NATIONAL SECURITY AGENCY: MISSIONS, AUTHORITIES, OVERSIGHT AND PARTNERSHIPS at 2–3 (2013), available at https:// www.nsa.gov/public_info/_files/speeches_testimonies/2013_08_09_the_nsa_story.pdf. 7. Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013); United States v. VerdugoUrquidez 494 U.S. 259 (1990). 8. Ryan Gallagher, Sharing Communications Metadata Across the U.S. Intelligence Community, THE INTERCEPT, at slide 6, August 25, 2014, https://firstlook.org/theintercept/document/2014/08/25/sharing-communications-metadata-across-u-s-intelligence-community; 322 Michigan Telecommunications and Technology Law Review [Vol. 21:317 Thus, collecting Americans’ network traffic abroad creates a legal loophole for surveillance on them. A surveillance operation acting in a manner consistent with EO 12333 allows foreignness to be presumed for data that is intercepted abroad. This circumvents Americans’ Fourth Amendment protections that are assumed (in the legal sense) to be US persons under FISA and § 215 of the Patriot Act during domestic surveillance operations.9 As of July 2014, the lack of public scrutiny of EO 12333 seems to have shifted. When the first public version of this Article was posted online prior to its presentation at the 2014 Privacy Enhancing Technologies Symposium, a range of media outlets reported on our findings. Coverage on CBS News10 spurred an inadequate official response from the NSA compliance department; we discuss this response further in Part I.C.4 of this Article. A few weeks later, a Washington Post editorial by John Napier Tye, who served in the State Department from 2011 to 2014, argued: Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215. . . . Consider the possibility that Section 215 collection does not represent the outer limits of collection on US persons but rather is a mechanism to backfill that portion of US person data that cannot be collected overseas under 12333.11 On July 23, 2014, the executive agency’s Privacy and Civil Liberties Oversight Board (“PCLOB”) confirmed that it will investigate surveillance policy and operations based on EO 12333.12 Given the complexity of US surveillance law and especially EO 12333, the investigation is expected to take months and underscores the necessity of inter-disciplinary research on EO 12333 policy and operations. TECHNICAL REALITIES. Part II explores why network traffic can easily be routed or stored abroad where it can then be collected under the permissive legal regime of EO 12333. We already know of surveillance programs that Ryan Gallagher, The Surveillance Engine: How the NSA Built its Own Secret Google, THE INTERCEPT, August 25, 2014, https://firstlook.org/theintercept/2014/08/25/icreach-nsa-cia-secret-google-crisscross-proton/. 9. See 50 U.S.C. § 1861 (2012); 50 U.S.C. § 1881a(b)(5) (2012). 10. See Zack Whittaker, Legal Loopholes Could Allow Wider NSA Surveillance, Researchers Say, CBS NEWS (June 30, 2014, 4:02 PM), http://www.cbsnews.com/news/legalloopholes-could-let-nsa-surveillance-circumvent-fourth-amendment-researchers-say/.

Reforms don’t stop or restrict the NSA from surveilling

Greenwald 14Glenn Greenwald is a journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law. “CONGRESS IS IRRELEVANT ON MASS SURVEILLANCE. HERE’S WHAT MATTERS INSTEAD.” At The Intercept on CONGRESS IS IRRELEVANT ON MASS SURVEILLANCE. HERE’S WHAT MATTERS INSTEAD. Accessed 6/29/15 at https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/

There is a real question about whether the defeat of this bill is good, bad, or irrelevant. To begin with, it sought to change only one small sliver of NSA mass surveillance (domestic bulk collection of phone records under section 215 of the Patriot Act) while leaving completely unchanged the primary means of NSA mass surveillance, which takes place under section 702 of the FISA Amendments Act, based on the lovely and quintessentially American theory that all that matters are the privacy rights of Americans (and not the 95 percent of the planet called “non-Americans”). There were some mildly positive provisions in the USA Freedom Act: the placement of “public advocates” at the FISA court to contest the claims of the government; the prohibition on the NSA holding Americans’ phone records,

requiring instead that they obtain FISA court approval before seeking specific records from the telecoms (which already hold those records for at least 18 months); and reducing the agency’s “contact chaining” analysis from three hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill was a net-positive as a first step toward real reform, but one could also reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded with ambiguities and fundamental inadequacies that it would forestall better options and advocates for real reform should thus root for its defeat. When pro-privacy members of Congress first unveiled the bill many months ago, it was actually a good bill: real reform. But the White House worked very hard— in partnership with the House GOP—to water that bill down so severely that what the House ended up passing over the summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFFto withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me, the most important point from all

of this: the last place one should look to impose limits on the powers of the U.S. government is . . . the U.S. government. Governments don’t walk around trying to figure out how to limit their own power, and that’s particularly true of empires. The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if

all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court—the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger,

while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. Ever since the Snowden reporting began and public opinion (in both the U.S. and globally) began radically changing, the White

House’s strategy has been obvious. It’s vintage Obama: Enact something that is called “reform”—so that he can give a

pretty speech telling the world that he heard and responded to their concerns—but that in actuality changes almost nothing, thus strengthening the very system he can pretend he “changed.” That’s the same tactic as Silicon Valley, which also supported this bill: Be able to point to something called “reform” so they can trick hundreds of millions of current and future users around the world into believing that their communications are now safe if they use Facebook, Google, Skype and the rest. In pretty much every interview I’ve done over the last year, I’ve been asked why there haven’t been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates “U.S. legislative changes” with “meaningful changes.” But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of mass surveillance, at least not fundamentally. Those limitations are going to come from—are now coming from —very different places: 1) Individuals refusing to use internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the U.K.Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that

Silicon Valley companies care in the slightest about people’s privacy rights and civil liberties. As much of the Snowden reporting has proven, these companies don’t care about any of that. Just as the telecoms have been for years, U.S. tech companies were more than happy to eagerly cooperate with the NSA in violating their users’ privacy en masse when they could do so in the dark. But it’s precisely because they can’t do it in the dark any more that things are changing, and significantly. That’s not because these tech companies suddenly discovered their belief in the value of privacy. They haven’t, and it doesn’t take any special insight or brave radicalism to recognize that. That’s obvious. Instead, these changes are taking place because these companies are petrified that the perception of their collaboration with the NSA will harm their future profits, by making them vulnerable to appeals from competing German, Korean, and Brazilian social media companies that people shouldn’t use Facebook or Google because they will hand over that data to the NSA. That—fear of damage to future business prospects—is what is motivating these companies to at least try to convince users of their commitment to privacy. And the more users refuse to use the services of Silicon Valley companies that compromise their privacy—and, conversely, resolve to use only truly pro-privacy companies instead—the stronger that pressure will become. Those who like to claim that nothing has changed from the NSA revelations simply ignore the key facts, including the serious harm to the U.S. tech sector from these disclosures, driven by the newfound knowledge that U.S. companies are complicit in mass surveillance. Obviously, tech companies don’t care at all about privacy, but they care a lot about that. Just yesterday, the messaging service WhatsApp announced that it “will start bringing end-to-end encryption to its 600 million

users,” which “would be the largest implementation of end-to-end encryption ever.” None of this is a silver bullet: the NSA will work hard to circumvent this technology and tech companies are hardly trustworthy, being notoriously close to the U.S. government and often co-opted themselves. But as more individuals demand more privacy protection, the incentives are strong. As The Verge notes about WhatsApp’s new encryption scheme, “‘end-to-end’ means that, unlike messages encrypted by Gmail or Facebook Chat, WhatsApp won’t be able to decrypt the messages itself, even if the company is compelled by law enforcement.” 2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. Brazil is building a new undersea internet infrastructure specifically to avoid U.S. soil and thus NSA access. That same country punished Boeing by denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets in protest over NSA spying. Another powerful country, Germany, has taken the

lead with Brazil in pushing for international institutions and regulatory schemes to place real limits on NSA mass surveillance. U.S. diplomatic relations with numerous key countries have been severely hampered by revelations of mass surveillance. In July, Pew reported that “a new…survey finds widespread global opposition to U.S. eavesdropping and a decline in the view that the U.S. respects the personal freedoms of its people” and that, while the U.S. remains popular in many countries, particularly relative to others such as China, “in nearly all countries polled, majorities oppose monitoring by the U.S. government of emails and phone calls of foreign leaders or their citizens.” After just one year of Snowden reporting, there have been massive drops in the percentage of people who believe “the U.S. government respects personal freedom,” with the biggest drops coming in key countries that saw the most NSA reporting: All of that has significantly increased the costs for the U.S. to continue to subject the world, and the internet, to dragnets of mass surveillance. It has resulted in serious political, diplomatic, and structural impediments to ongoing spying programs. And it has meaningfully altered world opinion on all of these critical questions. 3) U.S. court proceedings. A U.S. federal judge already ruled that the NSA’s domestic bulk collection program likely violates the 4th Amendment, and in doing so, obliterated many of the government’s 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 reasons, 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-liberties-destroying 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. 4) Greater individual demand for, and use of, encryption. In the immediate aftermath of the first Snowden reports, I was contacted by countless leading national security reporters in the U.S., who work with the largest media outlets, seeking an interview with Snowden. But there was a critical problem: despite working every day on highly sensitive matters, none of them knew anything about basic encryption methods, nor did their IT departments. Just a few short months later, well over 50 percent of the journalists who emailed me did so under the protection of PGP encryption. Today, if any journalist emails me without encryption, they do so apologetically and with embarrassment. That is reflective of a much broader change from the Snowden reporting, perhaps the most important one: a significantly increased awareness of the need for encryption and its usage around the world. As Wired reported in May: Early last year—before the Snowden revelations—encrypted traffic accounted for 2.29 percent of all peak hour traffic in North America, according to Sandvine’s report. Now, it spans 3.8 percent. But that’s a small jump compared to other parts of the world. In Europe, encrypted traffic went from 1.47 percent to 6.10 percent, and in Latin America, it increased from 1.8 percent to 10.37 percent. As a result, there are people genuinely devoted to privacy (as opposed to Silicon Valley profit-driven companies) developing all-new, free encryption capabilities. The New York Times recently urged all media outlets to provide default “HTTPS” protection for their sites to protect user privacy (The Intercept is currently only one of three news sites to do so). Increased individual encryption use is a serious impediment to NSA mass surveillance: far stronger than any laws the U.S. Congress might pass. Aside from the genuine difficulty the agency has in cracking well-used encryption products, increased usage presents its own serious problem. Right now, the NSA—based on the warped mindset that anyone who wants to hide what they’re saying from the NSA is probably a Bad Person—views “encryption usage” as one of its key factors in determining who is likely a terrorist. But that only works if 10,000 people around the world use encryption. Once that number increases to 1 million, and then to 10 million, and then to default usage, the NSA will no longer be able to use encryption usage as a sign of Bad People. Rather than being a red flag, encryption will simply be a brick wall: one that individuals have placed between the snooping governments and their online activities. That is a huge change, and it is coming. So let Saxby Chambliss and Susan Collins and Marco Rubio scream into their insular void about ISIS and 9/11 and terrorism. Let Barack Obama, Dianne Feinstein and Nancy Pelosi deceitfully march under a “reform” banner as they do everything possible to protect the NSA from any real limits.

Let the NSA and other national security officials sit smugly in the knowledge that none of the political branches in D.C. can meaningfully limit them even if they wanted to (which they don’t). The changes from the Snowden disclosures are found far from the Kabuki theater of the D.C. political class, and they are unquestionably significant. That does not mean the battle is inevitably won: The U.S. remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and the forces of reform are formidable—not because of anything the U.S. congress is doing, but despite it.

Link – Section 702

Section 702 will be used to circumvent the plan

Nelson ‘15Steven Nelson is a reporter at U.S. News & World Report. “Senate Passes Freedom Act, Ending Patriot Act Provision Lapse” – USNWR – June 2nd - http://www.usnews.com/news/articles/2015/06/02/senate-passes-freedom-act-ending-patriot-act-provision-lapseThe Freedom Act does not revise some of the most significant legal authorities the government uses to conduct surveillance, such as Section 702 of the Foreign Intelligence Surveillance Act, which is used for vast Internet surveillance, and Executive Order 12333, which governs collection of intelligence overseas and, according to whistleblower

John Napier Tye, could be used to override many congressional reforms without court oversight. Section 702

will expire without congressional reauthorization in 2017.

NSA – legal loopholes

NSA abuses legal loopholes

ByZACK WHITTAKER CBS NEWSJune 30, 2014, 4:02 PM“Legal loopholes could allow wider NSA surveillance, researchers say” http://www.cbsnews.com/news/legal-loopholes-could-let-nsa-surveillance-circumvent-fourth-amendment-researchers-say/

NEW YORK -- Secret loopholes exist that could allow the National Security Agency to bypass Fourth Amendment protections to conduct massive domestic surveillance on U.S. citizens, according to leading academics. The research paper released Monday by researchers at Harvard and Boston University details how the U.S. government could "conduct largely unrestrained surveillance on Americans by collecting their network traffic abroad," despite constitutional protections against warrantless searches. One of the paper's authors, Axel Arnbak of Harvard University's Berkman Center for Internet & Society, told CBS News that U.S. surveillance laws presume Internet traffic is non-American when it is collected from overseas. "The loopholes in current surveillance laws and today's Internet technology may leave American communications as vulnerable to surveillance, and as unprotected as the internet traffic of foreigners," Arnbak said. Although Americans are afforded constitutional protections against unwarranted searches of their emails, documents, social networking data, and other cloud-stored data while it's stored or in-transit on U.S. soil, the researchers note these same protections do not exist when American data leaves the country. Furthermore, they suggest that Internet traffic can be "deliberately manipulated" to push American data outside of the country. Although the researchers say they "do not intend to speculate" about whether any U.S. intelligence agencies are actually doing

this, they say it could provide a loophole for vacuuming up vast amounts of U.S. citizen data for intelligence purposes, thus "circumventing constitutional and statutory safeguards seeking to protect the privacy of Americans," they warned. Play VIDEO Snowden: NSA programs "uncontrolled and dangerous" The academic paper lands just over a year since the Edward Snowden revelations first came to light, outlining the massive scope of U.S. government surveillance, under the justification of preventing terrorism. Although the classified programs that make up the NSA's data acquisition arsenal have only recently been disclosed over the past year, the laws that govern them have been under close scrutiny for years. The paper only adds fuel to the fire of the intelligence agency's alleged spying capabilities, which have been heavily criticized by civil liberties and privacy groups alike. "The fix has to come from the law -- the same laws that apply to Internet traffic collected domestically should also apply to traffic that is collected abroad," the paper's co-author, Sharon Goldberg of Boston University's Computer Science Department, said. While the researchers do not say

whether these loopholes are being actively exploited -- saying their aim is solely to broaden the understanding of the current legal framework -- the current legislation as it stands "opens the door for unrestrained surveillance," they write. Since the September 11 terrorist attacks, the subsequent introduction of the Patriot Act allowed certain kinds of data to be collected to help in the fight against terrorism -- so-called "metadata," such as the time and date

of phone calls and emails sent, including phone numbers and email addresses themselves. But the contents of those phone calls or emails require a warrant. The classified documents leaked by Edward Snowden showed that while the public laws have been in

effect for years or even decades, the U.S. government has used secret and classified interpretations

of these laws for wider intelligence gathering outside the statutes' text. The Obama administration previously said

there had been Congressional and Judicial oversight of these surveillance laws -- notably Section 215 of the Patriot Act, which authorized the collection of Americans' phone records; and Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorized the controversial PRISM program to access non-U.S.

residents' emails, social networking, and cloud-stored data. But the researchers behind this new study say that the lesser-known Executive Order (EO) 12333, which remains solely the domain of the Executive Branch -- along with United States Signals Intelligence Directive (USSID) 18, designed to regulate the collection of American's data from surveillance conducted on foreign soil -- can be used as a legal basis for vast and near-unrestricted domestic surveillance on Americans. Play VIDEO Inside the NSA The legal provisions offered under EO 12333, which the researchers say "explicitly allows for intentional targeting of U.S. persons" for surveillance purposes when FISA protections do not apply, was the basis of the authority that reportedly allowed the NSA to tap into the fiber cables that connected Google and Yahoo's overseas to U.S. data centers. An estimated 180 million user records, regardless of citizenship, were collected from Google and Yahoo data centers each month, according to the leaked documents. The program, known as Operation MUSCULAR, was authorized because the collection was carried out overseas and not on U.S. soil, the researchers say. The paper also said

surveillance can also be carried out across the wider Internet by routing network traffic overseas so it no longer falls within the protection of the Fourth Amendment. However, an NSA spokesperson denied that either EO 12333 or USSID 18 "authorizes targeting of U.S. persons for electronic surveillance by routing their communications outside of the U.S.," in an emailed statement to CBS News. "Absent limited exception (for example, in an emergency), the Foreign Intelligence Surveillance Act requires that we get a court order to target any U.S.

person anywhere in the world for electronic surveillance. In order to get such an order, we have to establish, to the satisfaction of a federal judge, probable cause to believe that the U.S. person is an agent of a foreign power," the spokesperson said. The report highlights a fundamental fact about Internet traffic: Data takes the quickest route possible rather than staying solely within a country's borders. Data between two U.S. servers located within the U.S. can still sometimes be routed outside of the U.S. Although this is normal, the researchers warn data can be deliberately routed abroad by manipulating the Internet's core protocols -- notably the Border Gateway Protocol (BGP), which determines how Internet traffic is routed between individual networks; and the Domain Name Service (DNS), which converts website addresses to numerical network addresses. If the NSA took advantage of the loophole by pushing Internet traffic outside of the U.S., it would have enough time to capture the data while it is outside the reach of constitutional protection. The researchers rebuffed the NSA's statement in an email: "We argue that these loopholes exist when surveillance is conducted abroad and when the authorities don't 'intentionally target a U.S. person'. There are several situations in which you don't 'target a U.S. person', but Internet traffic of many Americans can in fact be affected." "We cannot tell whether these loopholes are exploited on a large scale, but operation MUSCULAR seems to find its legal and technical basis in them." Mark M. Jaycox, a legislative analyst at the Electronic Frontier Foundation (EFF), said: "If you are intentionally spying on a U.S. person, the government must go to the FISA Court," he said. "That's the way the law is supposed to operate." Describing how the NSA says it never "intentionally collects" U.S. information, he warned the agency's foreign data dragnet would inevitably include U.S. data. "The NSA is an intelligence organization -- it's going to be targeting foreigners. But it's the way that its targeting millions of foreigners, and millions of foreign communications that will eventually pick up U.S. persons' data and information. And once that data has been collected, it must be destroyed." "It's a question the NSA can't reconcile, so they lean heavily on saying they never 'intentionally collect' the U.S. person information," he said A recent primer on EO 12333 written by the privacy group said the order "mandates rules for spying... on anyone within the United States." The group also notes because the order remains inside the Executive Branch, the Obama administration could "repeal or modify" it at will. The American Civil Liberties Union said in a post on its website that the U.S. government interprets USSID 18 to "permit it to sweep up Americans' international communications without any court order and with little oversight." Patrick Toomey, staff attorney at the American Civil Liberties Union's National Security Project, said: "Today, Americans' communications increasingly travel the globe -- and privacy protections must reliably follow. This academic paper raises key questions about whether our current legal regime meets that standard, or whether it allows the NSA to vacuum up Americans' private data simply by moving its operations offshore." He added that there should be a uniform set of laws that protect Americans' privacy regardless of where they are in the world, and that Congressional oversight of all rules governing surveillance is needed for comprehensive reforms. The ACLU has also filed a Freedom of Information lawsuit with a federal court in New York, questioning "whether it [EO 12333] appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance." Although there is no direct evidence yet to suggest the NSA has exploited this loophole, network monitoring firm Renesys observed two "route hijacking" events in June and November 2013 that led Internet traffic to be redirected through Belarus and Iceland on separate occasions. These events are virtually unnoticeable to the ordinary Internet user, but the side effect is that U.S. data may be readable by foreign governments traveling through their country's infrastructure. It also could allow the NSA to capture that data by treating it as foreign data. These legal and technical loopholes can allow "largely unrestrained surveillance on Americans communications," the researchers wrote. The NSA, whose job it is to produce intelligence from overseas targets, said for the first time in August 2013 that it derives much of its "foundational authority" for its operations from EO 12333. Recent Snowden disclosures shed new light on understanding the capabilities of the executive order. It was also recently revealed that Snowden himself questioned the legal authority of EO 12333, according to one declassified email exchange released by the Director of National Intelligence James Clapper. According to John Schindler, a former NSA chief analyst, speaking to The Washington Post in October, the sole aim of the NSA's "platoon" of lawyers' is to figure out "how to stay within the law and maximize collection by exploiting every loophole." "It's fair to say the rules are less restrictive under [EO] 12333 than they are under FISA," he added. FISA expanded the NSA's powers allowing it to obtain foreign intelligence -- including economic and political surveillance of foreign governments, companies, news outlets and citizens. But the amended law in 2008 also restricted what can be collected on U.S. citizens. The so-called "targeting" and "minimization" procedures, which remain classified but were reported as a result of the Snowden leaks, were introduced to ensure any data inadvertently collected on U.S. citizens from overseas would not be used in investigations. These were later criticized following subsequent leaks which suggested the rules on collecting U.S. persons' data were more relaxed than the statute led the public to believe. U.S. intelligence agencies can only do so much with U.S. data, therefore they have a "strong incentive to conduct surveillance abroad," the researchers say, because legal protections under the Fourth Amendment and FISA do not apply

outside U.S. territory. "Programs under EO 12333 may collect startling amounts of sensitive data on both foreigners and Americans," the paper summarizes, "without any meaningful congressional or judiciary involvement."

NSA has “platoons” of lawyers used to find loop holes.

Arbbak and Goldberg, 14(Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance on Americans by Collecting Network Traffic Abroad Working Paper. Last updated June 27, 20 14 . Axel Arnbak and Sharon Goldberg https://www.petsymposium.org/2014/papers/Arnbak.pdf)2.3.2 Weak Legal Protections for Americans under EO 12333. Section 1.1 of EO 12333 provides that electronic surveillance should consider U.S. persons rights. The details are further specified in the underlying documentation, in particular in the heavily redacted USSID 18. In the Washington Post, a former N.S.A. chief analyst provided some background on the interplay between FISA and EO 12333 [17]: “Look, NSA has platoons of lawyers, and their entire

job is figuring out how to stay within the law and maximize collection by exploiting every loophole,” he said. “It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA,” the Foreign Intelligence Surveillance Act. In spite of the redactions in USSID 18, we can make several new contributions to our collective understanding how legal protection for U.S. persons indeed are less restrictive under EO 12333.

Link - EO12333

Plan can’t solve – it won’t stop collection under EO 12333.EPIC ‘14(internally quotes former Obama State Department official, John Napier Tye – who had access to programs conducted under EO 1233 authorities. Tye served as section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014. The Electronic Privacy Information Center or “EPIC” - is a public interest research center in Washington, D.C… EPIC routinely participates as amicus curiae before federal and state courts in cases concerning the protection of privacy. Members of the EPIC Advisory Board are expert in issues of domestic surveillance. “Executive Order 12333” – last footnote of this piece is from July, 2014 – page was last updated in 2015 - https://epic.org/privacy/surveillance/12333/)EPIC has a long-standing interest in public oversight of government surveillance, including activities conducted under Executive Order 12333. As Professor Francesca Bignami has explained, "[t]he NSA's original mandate was considerably elaborated and extended in Executive Order 12,333, promulgated by President Reagan in

1981." EPIC has tracked the government's reliance on EO 12333, particularly the reliance on Section 1:12(b)(13), which authorizes the NSA to provide

"such administrative and technical support activities within and outside the United States as are necessary to perform the functions

described in sections (1) through (12) above, including procurement." This provision appears to have opened the door for the NSA's broad and unwarranted surveillance of U.S. and foreign citizens. Executive Order 12333 was signed by President Ronald

Reagan on December 4, 1981. It established broad new surveillance authorities for the intelligence community, outside the scope of public law. EO 12333 has been amended three times. It was amended by EO 13284 on January 23, 2003 and was then amended by EO 13555 on August 27, 2004. EO 13555 was subtitled "Strengthened Management of the Intelligence Community" and reflected the fact that the Director of National Intelligence (DNI) now existed as the head of the intelligence community, rather than the CIA which had previously served as the titular head of the IC. EO 13555 partially supplemented and superseded EO 12333. On July 30, 2008, President George W. Bush signed EO 13470, which further supplemented and superseded EO 12333 to strengthen the role of the Director of

National Intelligence. Since the Snowden revaluations there has been a great deal of discussion regarding the activities of the IC community, but relatively little attention has been paid to EO 12333. EO 12333 often serves an alternate basis of authority for

surveillance activities , above and beyond Section 215 and 702. As Bruce Schneier has emphasized, "Be careful when

someone from the intelligence community uses the caveat "not under this program ," or "not under

this authority"; almost certainly it means that whatever it is they're denying is done under some other program or authority. So when[NSA General Counsel Raj] De said that companies knew about NSA collection under Section 702, it doesn't mean they knew about the other collection programs." Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, has said in August 2013 that, "The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal

authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee's focus on those activities." In July 2014, a former Obama State Department official, John Napier Tye, wrote an Op-Ed in the Washington Post calling for greater scrutiny of EO 12333. Tye noted that "based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215." Structure of EO 12333 EO 12333 is divided into three parts (this describes the current EO 12333 as amended). The first part is the bulk of the order, describing the overall goals, directions, duties, and responsibilities of U.S. intelligence efforts. The second part applies to the actual conduct of intelligence activities and includes a prohibition on assassination. The third part consists of general provisions and includes general definitions, implementation, and the requirement of compliance with congressional oversight. Part 1: Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts 1:1 Goals 1.2 The National Security Council 1.3 Director of National Intelligence 1.4 The Intelligence Community 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies 1.6 Heads of Elements of the Intelligence Community 1.7 Intelligence Community Elements a) The Central Intelligence Agency b) The Defense Intelligence Agency c) The National Security Agency d) National Reconnaissance Office e) The National Geospatial-Intelligence Agency f) The Intelligence and Counterintelligence Elements of the Army, Navy, Air Force, and Marine Corps g) Intelligence Elements of the Federal Bureau of Investigation h) The Intelligence and Counterintelligence Elements of the Coast Guard i) The Bureau of Intelligence and Research, Department of State; The Office of Intelligence and Analysis, Department of the Treasury; The Office of National Security Intelligence, Drug Enforcement Administration; The Office of Intelligence and Analysis, Department of Homeland Security; and the Office of Intelligence and Counterintelligence, Department of Energy. j) The Office of the Director of National Intelligence. 1.8 Department of State 1.9 The Department of the Treasury 1.10 The Department of Defense 1.11 The Department of Homeland Security 1.12 The Department of Energy 1.13 The Federal Bureau of Investigation Part 2: Conduct of Intelligence Activities 2.1 Need 2.2. Purpose 2.3 Collection of Information 2.4 Collection Techniques 2.5 Attorney General Approval 2.6 Assistance to Law Enforcement and Other Civil Authorities 2.7 Contracting 2.8 Consistency With Other Laws 2.9 Undisclosed Participation in Organizations Within the United States 2.10 Human Experimentation 2.11 Prohibition on Assassination 2.12 Indirect Participation 2.13 Limitation on Covert Action Part 3: General Provisions 3.1 Congressional Oversight 3.2 Implementation 3.3 Procedures 3.4 References and Transition 3.5 Definitions 3.6 Revocation 3.7 General Provisions EPIC's Interest In 2012, EPIC sought and obtained from the Office of the Director of National Intelligence the guidelines for the National Counterterrorism Center (NCTC). The NCTC is a part of the intelligence community, which operates under the authority of EO 12333. EPIC has stressed through its comments, statements, and testimony that U.S. intelligence agencies should not exercise broad authority without oversight. Executive Order 12333 is such a case, an order that has never been subject to meaningful oversight by either courts or Congress. Senator Dianne Feinstein, the Chair of the Senate Intelligence Committee, referring to EO 12333, has said, "I don't think privacy protections are built into it. It's an executive policy. The executive controls intelligence

in the country." Ronald Reagan executed the order in 1981. Executive Order 12333 authorizes the collection of not only

metadata, but of the actual communications of US citizens , so long as the communications are collected "incidentally." These communications can then be held for five years, as described by a document that the

Director of National Intelligence recently declassified. The NSA has used Executive Order 12333 to justify, among other things, the interception of unencrypted data between Google and Yahoo data centers. None of the currently proposed reforms address the over-broad surveillance authorities established by Executive Order 12333. EPIC has long urged PCLOB to move beyond their Section 215 and Section 702 investigations and examine the scope of information under EO 12333 and the need for greater public oversight. As EPIC Advisory Board member Steven Aftergood has noted, "If they deviated from their own rules, how would it be discovered? I am not satisfied that they have an answer to that question."

Legislative change to US PATRIOT Act does nothing-Circumvented by XO 12333

By John Napier Tye July 18, 2014 John Napier Tye served as section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014. He is now a legal director of Avaaz, a global advocacy organization. http://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.” But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did. Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them. Public debate about the bulk collection of U.S. citizens’ data by the NSA has focused largely on Section 215 of the Patriot Act, through which the government obtains court orders to compel American telecommunications companies to turn over phone data. But Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333. From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215. Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls. Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333. Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained. “Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity. “Incidental collection” might need its own power plant. A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United

States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain.

The same is true for most purely domestic communications. Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress.

None of the reforms that Obama announced earlier this year will affect such collection. Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data. The attorney general, rather than a court, must approve “minimization procedures” for handling the data of U.S. persons that is collected under 12333, to protect their rights. I do not know the details of those procedures. But the director of national intelligence recently declassified a document (United States Signals Intelligence Directive 18) showing that U.S. agencies may retain such data for five years. Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA. I am not the first person with knowledge of classified activities to publicly voice concerns about the collection and retention of communications by U.S. persons under 12333. The president’s own Review Group on Intelligence and Communication Technologies, in Recommendation 12 of its public report, addressed the matter. But the review group coded its references in a way that masked the true nature of the problem. At first glance, Recommendation 12 appears to concern Section 702 of the FISA Amendments Act, which authorizes collection inside the United States against foreign targets outside the United States. Although the recommendation does not explicitly mention Executive Order 12333, it does refer to “any other authority.” A member of the review group confirmed to me that this reference was written deliberately to include Executive Order 12333. Recommendation 12 urges that all data of U.S. persons incidentally collected under such authorities be immediately purged unless it has foreign intelligence value or is necessary to prevent serious harm. The review group further recommended that a U.S. person’s incidentally collected data never be used in criminal proceedings against that person, and that the government refrain from searching communications by U.S. persons unless it obtains a warrant or unless such searching is necessary to prevent serious harm. The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees. In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes. All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper. Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of

U.S. person data that cannot be collected overseas under 12333. Proposals for replacing Section 215 collection are currently being debated in Congress. We need a similar debate about Executive Order 12333. The order as used today threatens our democracy. There is no good reason that U.S. citizens should receive weaker privacy and oversight protections simply because their communications are collected outside, not inside, our borders. I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of U.S. intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material. When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment. I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

Link – Single Branch

Single branch approaches fail — the NSA is so powerful it requires all three branches to control it.BloombergBusiness 14 — BloombergBusiness, Byline David Lerman, 2014 (“U.S. Spy Agency Reports Improper Surveillance of Americans,” BloombergBusiness Online, December 24th, Available Online at http://www.bloomberg.com/news/articles/2014-12-24/spy-agency-to-release-reports-documenting-surveillance-errors, Accessed 06-05-2015) “The government conducts sweeping surveillance under this authority -— surveillance that increasingly puts Americans’ data in the hands of the NSA,” Patrick C. Toomey, staff attorney with the ACLU’s National Security Project, said in an e-mail.No Oversight“Despite that fact, this spying is conducted almost entirely in secret and without legislative or

judicial oversight ,” he said.

The reports show greater oversight by all three branches of government is needed , Toomey added.

FISA

The FISA courts have completely strayed from their original mandates and no longer “abide by the rules”.Elizabeth Goitein and Faiza Patel 15 (Goitein served as counsel to Sen. Russell Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee. Patel serves as co-director of the Brennan Center for Justice’s Liberty and National Security Program. What went wrong WITH THE FISA Court “Constitutional Concerns : Article III Concerns” https://www.brennancenter.org/sites/default/files/analysis/What_Went_%20Wrong_With_The_FISA_Court.pdf)

The FISA Court’s original role was to assess the sufficiency of the government’s factual showing in

individual cases. The court had to find probable cause that the target of the proposed electronic surveillance was a foreign power or agent of a foreign power, and that a

foreign power or its agent was using the telephone or other facility to be intercepted. While the standard applied by the court was not a particularly high bar — and falls short of what is required for a normal criminal warrant — the original law focused the court’s analysis and limited the pool of cases the government could bring before the court. The pool was further

cabined by the technological limitations on, and relatively low demand for, international communications. Today, under Section 702 of the FAA, the

court is no longer tasked with assessing the sufficiency of the government’s factual showing in

individual cases that arise within a limited pool . Instead, it reviews broad targeting and minimization procedures that the

government will apply to tens of thousands of cases involving hundreds of millions of

communications, if not more, each year. 178 The court then approves or rejects the procedures based on a facial analysis of whether they comport with

the statute and the Fourth Amendment. Similarly, under Section 215, the FISA Court has endorsed a form of “programmatic

surveillance” in which it may approve procedures for obtaining and searching telephone records

without reviewing individual searches (although it currently reviews these searches pursuant to the administration’s request).179 These developments,

compounded by the secrecy and lack of adversarial process that mark the court’s proceedings, have critical implications for the constitutional legitimacy of the court. Lack of

adversary process in a proceeding that bears no relationship to a traditional warrant application is

inconsistent with Article III. Moreover, the court’s facial review of agency procedures cannot shed light on their constitutionality in specific cases.

Amendments meant to redirect the FISA court’s powers toward their original purpose have been ineffective and lead to more unwarranted abuses of the surveillance system.

Arnbak and Goldberg 14 (Axel Arnbak is a cybersecurity and information law researcher at the Institute for Information Law, University of Amsterdam. Sharon Goldberg is an associate professor in the Computer Science Department at Boston University. Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance on Americans by Collecting Network Traffic Abroad “2.2.1 Overview of the Second Regulatory Regime under FISA.” https://www.petsymposium.org/2014/papers/Arnbak.pdf)

2.2.1 Overview of the Second Regulatory Regime under FISA. FISA and the FISA Court were introduced in 1978 by U.S.

Congress , in response to domestic surveillance overreach and the reform proposals by the Church Committee [33]. In

2008 , FISA was amended and significantly broadened by U.S. Congress with the FISA Amendments Act

(‘FAA’). The FAA introduced section 702, which allows for warrantless surveillance of foreign communications conducted on U.S. soil, as long as these operations do not ‘intentionally target U.S. persons’. That is, s. 702 does not require warrants to be issued for a specific case based on a

particularized probable cause. Instead, the FISA Court approves of generalized ‘targeting’ and ‘minimization’ procedures on any data that is collected; these procedures are intended to mediate U.S. person privacy concerns, and have remained classified until recently [32].

For years, FISA and especially its s. 702 have been criticized for providing legal loopholes for warrantless

political and economic surveillance on U.S. lawyers, NGOs, journalists and corporations communicating internationally through

U.S. Internet companies [33]; the media reports in December 2005, around warrantless wiretapping in bulk from the

Internet backbone at an AT&T switch [28], have highlighted some of this tension. Nonetheless, U.S. Congress passed FAA after the AT&T revelations and extended the validity of the FAA for another five years on 31

December 2012, one day before the sunset deadline. Two months later, on 26 February 2013 in the case ‘Clapper v. Amnesty

International’, the U.S. Supreme Court denied several U.S. organizations a right to claim that the privacy of their international communications was violated by s. 702 on procedural grounds . In what appeared to be

the final ruling on the constitutionality of s. 702 for the foreseeable future, a 5-4 majority argued that these

organizations were merely ‘speculating’, and could not prove that their communications had actually

been intercepted [6]. Justice Breyer, on behalf of the minority, noted in his dissent that s. 702 prohibits

the same applicants to actually gain knowledge of the surveillance itself because of national security

secrecy , and that the broad authorities probably existed for a reason. The political debate and the issue of legal standing have shifted

considerably since June 2013, when it became clear that s. 702 indeed serves as the legal basis for many operations, among

them ‘UPSTREAM’ and ‘PRISM’ [13]. Moreover, several of the classified targeting and minimization procedures under s. 702 have 5 been leaked or declassified [2, 3]. Both revelations have spurred the N.S.A. to confirm that a principle use of s. 702 is compelling assistance from U.S. Internet companies for warrantless surveillance [5, p. 4]. This new dynamic enables a unique insight into classified and generous interpretations of the legal provisions in FISA made by the intelligence community and the FISA Court [13]. Before we dive into the details of FISA, we mention that FISA also contains s. 703 and s. 704, that regulate surveillance intentionally targeting U.S. persons located abroad. These sections are outside the scope of this paper, since our focus is on surveillance operations on Americans located in the U.S., with surveillance conducted on foreign soil. As an aside, Donohue has observed that the warrant requirements in these sections have been circumvented by applying s. 702 criteria to the collection phase, and then seeing whether collected data is of use for further processing after the fact [13, p.26].

Subpoenas

Subpoenas are ignored by everybody- No consequences whatsoever

Greenwald, 08 Glenn Greenwald is a journalist and a constitutional lawyer. http://www.salon.com/2008/01/23/contempt_3/

Back in July of last year — more than six months ago — the Senate and House Judiciary Committees were investigating the U.S. attorneys scandal and, as part of that investigation, they issued subpoenas to current Bush Chief of Staff

Josh Bolton and former White House counsel Harriet Miers, “compelling” them to appear before the Committee to answer questions. While some Bush officials testified but cited “executive privilege” as a grounds for refusing to answer specific questions, both Miers and Bolton simply refused to show up at all — literally just ignored the

subpoena as though it were an invitation. In the wake of that brazen contempt for Congress, all sorts of melodramatic denunciations and

bold threats issued from Democratic leaders in Congress. Senate Majority Leader Harry M. Reid (D-Nev.) called it “an outrageous abuse of executive privilege” and said: “The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law.” Sen. Charles E. Schumer (N.Y.) said the administration is “hastening a constitutional crisis,” and Rep. Henry A. Waxman (D-Calif.) said the position “makes a mockery of the ideal that no one is above the law.” Wow; those are tough words: “hastening a constitutional crisis.” “The White House must stop stonewalling.” “No one, including the president, is above the law.” Since the White House announced to the world that it considered Congress’ subpoenas to be laughable and worthless, what has happened? Exactly what Miers and Bolton knew would happen if they ignored the subpoenas: absolutely nothing of any consequence. Both Committees voted to issue contempt citations to the two officials, but Harry Reid and Nancy Pelosi — for months and months — have refused to bring the matter to the floor for a full vote, a requirement for a witness to be held in contempt. A new article yesterday by The Politico‘s John Bresnahan reports that Pelosi and Reid plan more of the same: House Democrats will postpone votes on criminal contempt citations against White House chief of staff Joshua Bolten and former White House counsel Harriet Miers, while congressional leaders work with President Bush on a bipartisan stimulus package to fend off an economic downturn, according to party leaders and leadership aides. Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would “step on their message” of bipartisan unity in the midst of the stimulus package talks. . . . “Right now, we’re focused on working in a bipartisan fashion on [the] stimulus,” said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves. Brendan Daly, a spokesman for House Speaker Nancy Pelosi (D-Calif.), said “no decision has been made” as to when a criminal contempt vote would be held by the House. The Judiciary Committee approved contempt citations against Bolten and Miers on July 25, but Pelosi has yet to bring the measures to the floor. . . . White House aides have dismissed the prospect of a contempt battle with the Democratic-controlled Congress as a distraction from more pressing work, such as dealing with the war in Iraq and the nation’s sagging economy. Just as is true for the FISA and telecom immunity capitulation and so many others over the last 12 months, the self-serving claim is made that Pelosi personally so very much favors voting on the contempt citation but, sadly, the votes just aren’t there in the Democratic caucus. When Congress allows its own subpoena and oversight powers

literally to be ignored and scoffed at, the damage to our system of checks and balances can’t be overstated. The whole premise

of our system of government is that executive lawbreaking and presidential corruption is checked primarily by Congressional oversight. If Congress can’t or won’t compel the disclosure of information, then it can’t investigate anything, and the President has no meaningful checks on his behavior. It’s really just that simple. The oversight function of Congress is and always has been at least as vital to the functioning of our political system as its law-making functions. In his chapter he entitled On the Proper Function of Representative Bodies, John Stuart Mill explained why: Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts: to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors.

Only new legislation solves

Only new legislation solves

Albright, 15(Logan, “Executive Spying Goes Further than the Patriot Act,” 26 May 2015, http://www.freedomworks.org/content/executive-spying-goes-further-patriot-act)On Sunday, the Senate will vote on reauthorizing Section 215 of the Patriot Act, the controversial section that allows the bulk collection of telephone metadata. Actually, it doesn’t allow it, according to the 2nd Circuit Court of Appeals, but everyone is still acting like it does and framing the debate accordingly.¶ Some people are pushing for the House-passed USA Freedom Act, which purports to end bulk surveillance, while others want to sunset Section 215 altogether, in the hopes of pulling the rug out from NSA spies. What few people want to acknowledge, however, with the notable exception of Sen. Rand Paul, is that Section 215 is only a small piece of a larger mass-surveillance puzzle. It could go away tomorrow, and law enforcement agencies could still scoop up your data – not just metadata, but actual content – with legal impunity.¶ How, you ask? Through the use of Executive Order 12333. This order was first issued in 1981, but due to the secretive nature of executive regulation the extent to which it has been used has not been known until recently. In 2014, whistleblower John Napier Tye revealed to the Washington Post that this order allows the collection and retention of “incidentally collected” of U.S. citizens, even those who are under no suspicion of wrongdoing.¶ What this means is that, when the NSA sweeps up a large amount of data in bulk in the course of an investigation, anything they happen to collect is fair game for them to store indefinitely. What they do with that data next remains unclear, but there seems little point in retaining it if there is no intention to search the records at some point. ¶ The order doesn’t just apply to the NSA. It also covers the FBI, the CIA, and the Office of Terrorism and Financial Intelligence. So while the NSA makes a convenient target for reform due to its high name ID and relative unpopularity, it is a mistake to pretend that it is the only agency committing privacy abuses.¶ Since 12333 is not a statute on the books, but rather a direct order from the nation’s chief executive, it is not subject to the same scrutiny, either public or congressional, as actual laws like the Patriot Act. It cannot be repealed, because there is no law to repeal. The only way to stop the bulk spying authorized under the order is with affirmative legislation forbidding the government from collecting and storing the data of innocent people.¶ There are several proposed bills that would do this. The Surveillance State Repeal Act bans bulk spying under Executive Order 12333, and the End Warrantless Surveillance of Americans Act goes even further, forbidding the use of any executive orders to authorize bulk spying without a specific warrant. FreedomWorks has issued letters of support for both bills.¶ The current debate on the Patriot Act is important, but Americans need to realize that the government’s ability to spy on them at will goes much deeper, and will take a lot more effort to root out and end.

AT: Liberty Mpx

Can’t solve liberty impacts without repealing XO 12333

Meinrath, 15(Sascha, “Opinion: Meaningful Surveillance Reform Must Prioritize Civil Liberties, 24 March 2015, http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/0324/Opinion-Meaningful-surveillance-reform-must-prioritize-civil-liberties)The Surveillance repeal act is clear, concise, and accessible (the latest version is less than 10 pages long), and rolls back some of the worst constitutional abuses with a hard reset of the US government’s surveillance powers.¶ The proposal enables a much-needed debate about how to effectively stop terrorism, ensure national security, and preserve the civil liberties that are the heart of American democracy. As Alexis de Tocqueville wrote over 150 years ago, “What good does it do me, after all, if an ever-watchful authority keeps an eye out to ensure that my pleasures will be tranquil and races ahead of me to ward off all danger, sparing me the need even to think about such things, if that authority, even as it removes the smallest thorns from my path, is also absolute master of my liberty.”¶ Even while the repeal act is being debated, surveillance reformers have the opportunity to strictly limit the scope of the Patriot Act by refusing "clean" reauthorization of Section 215 of the bill, which has been interpreted to authorize the National Security Agency’s mass surveillance of telephone records, and, as Sen. Ron Wyden (D) of Oregon recently revealed, even more surveillance than is publicly known.¶ FreedomWorks policy analyst Jason Pye argues that sunsetting 215 is also crucial for the US tech industry, which is being shut out of business abroad in light of weak protections for data stored in the US. Informed decisions would be greatly aided by the public release of the mandatory Department of Justice report on how Section 215 is being used, which, despite a mandate to create twice-yearly reports, the last public release was nine years ago. As government surveillance expert and watchdog, Marcy Wheeler, points out, we shouldn’t reauthorize an invasive surveillance law if even the most minimal oversight procedures aren’t currently being followed.¶ Legislative fixes are

essential, but insufficient to rein in mass surveillance. To restore civil liberties we need to address the use of

Executive Order 12333 , which has been interpreted by the intelligence community to authorize many of their programs. The good news is that the Obama administration, with the flick of a pen, has the authority to unilaterally revoke this facet surveillance regime; we just need a bold administration that leads by example. ¶ The problems of our current mass surveillance regime extend into the judiciary as well – with the rubber-stamping of key activities by secret courts initially intended to oversee the intelligence community. As recently declassified documents have shown , the secret FISA Court has issued rulings that are almost always in favor of the intelligence community, even while acknowledging that that same intelligence community has been systematically misleading the FISA Court . And since the FISA Court issues rulings in secret – the kind of activity rightfully condemned when used by regimes like Iran and North Korea –we often don’t learn about the myriad abuses that are occurring (and certainly, even today, only know a subset of the abuses that may be ongoing).¶ While a “collect-it-all” mentality may seem wise upon first blush, as Pat Eddington at the Cato Institute has noted, retrospective analyses have repeatedly confirmed that the Intelligence Community missed known connections that predicted terrorist attacks within the US. In essence, systematically violating our civil liberties in the name of security has undermined the former without accomplishing the latter. ¶ The Internet is global, and as a global leader, the US helps set the standards for acceptable behavior. Mass domestic and foreign spying legitimates the same behavior by other regimes while simultaneously creating a perverse incentive to create a more fractured global communications system . In the long run, international rules and agreements are needed to prevent a 21st century cybersiege where the information and communications of US citizens is actively vacuumed up by dozens of nations all around the globe.¶ It’s time for the US to start acting like the ethical Internet steward that it once was. The Surveillance State Repeal Act makes a giant step toward protecting our civil liberties and restoring global trust.

AT: Congress Checks

Congress only pretends to oversee surveillance activities — they willingly allow the intelligence community to lie to them and the FISA court.Eddington 15 — Patrick G. Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute, and an assistant professor in the Security Studies Program at Georgetown University, 2015 (“NSA Surveillance Programs Are a Cancer on the Constitution,” Reason.com, May 28th, Available Online at http://reason.com/archives/2015/05/28/snowden-nsa-usa-freedom, Accessed 06-05-2015)When the House Judiciary Committee considered the USA Freedom Act in May 2015—one of the few bills introduced in response to Snowden’s revelations—committee chairman Rep. Bob Goodlatte of Virginia claimed the committee had conducted "aggressive" oversight of the issue through a total of three hearings.As ProPublica noted, Snowden exposed literally dozens of NSA programs and activities that have a direct impact on the constitutional rights of Americans living at home or abroad. The House Judiciary Committee’s three hearings did not even scratch the surface of those programs. The Senate Judiciary Committee under then-chairman Patrick Leahy of Vermont conducted a worthwhile examination of government surveillance programs in March 2013. It stands out for its singular moment in which Senator Ron Wyden caught Director of National Intelligence James Clapper in a falsehood about the scope of government surveillance against Americans. Snowden’s revelations helped highlight just how disingenuous Clapper and other U.S. intelligence community officials had been on the issue,

not just with Congress but with the FISA court as well.Yet none of those revelations moved the Senate to create a select committee to investigate the full scope of post-9/11 surveillance programs, and the Senate Intelligence Committee has been far more a defender of these programs than an overseer of them. The House Intelligence Committee’s public record on this issue is also dismal, with only a single public hearing in the months after Snowden’s revelations that discussed almost purely cosmetic changes to U.S. surveillance authorities.Indeed, when reform-minded House members not on the House Intelligence Committee have attempted to get information on these programs, they have been blocked from doing so—including in periods leading up to PATRIOT Act reauthorization votes. House reformers have also been stymied in their efforts to rein in or even end dubious surveillance activities, largely through the efforts of the House GOP leadership to restrict the terms and scope of the surveillance reform debate.

Even when pushed, Congress only cursorily investigates surveillance — their desire to conceal domestic spying transgressions means they won’t meaningfully implement the laws.Eddington 15 — Patrick G. Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute, and an assistant professor in the Security Studies Program at Georgetown University, 2015 (“NSA Surveillance Programs Are a Cancer on the Constitution,” Reason.com, May 28th, Available Online at http://reason.com/archives/2015/05/28/snowden-nsa-usa-freedom, Accessed 06-05-2015)The failure of existing committees to properly probe Snowden’s revelations, the active efforts by previous House Intelligence Committee leadership to impede inquiries by individual House members, and the efforts of House and Senate leaders to truncate any meaningful debate over these surveillance powers—all of these actions make it appear that Congressional leaders are engaged in a

process designed to conceal the U.S. intelligence community’s domestic spying transgressions rather than educate the public on them and their implications for our democracy.

Congress still unwilling to enforce surveillance law — USA Freedom Act is a ruse.US News and World Report 15 — US News and World Report, Byline Joseph P. Williams, 2015 (“Last Call: Don’t Think the USA Freedom Act Will Stop Government Snooping,” US News, June 3 rd, Available Online at http://www.usnews.com/news/blogs/washington-whispers/2015/06/03/last-call-dont-think-the-usa-freedom-act-will-stop-government-snooping, Accessed 06-08-2015)One Nation, Under Surveillance: Armchair privacy activists cheered when the Senate swatted away Majority Leader Mitch McConnell's attempt to roll back Patriot Act reforms that would have allowed the National Security Agency to continue spying on who you call and when. But upon further review, writes the Washington Post's Paul Waldman, the new USA Freedom Act really doesn't do much to change the overall, post-9/11 surveillance situation. Aside from putting in some minor speed bumps – requiring AT&T or Sprint, say, to collect the info, and making the NSA ask permission from a judge before getting their mitts on it – the government still has broad powers to track personal data, probably will come up with other ways to do it besides phone records, and both Democrats and Republicans generally seem

OK with that . And unless another Edward Snowden comes down the pike to spill the beans on government technological spycraft, don't expect Congress or the next occupant of the White House to change things.

Impact – Turns Internet Freedom and Relations

Future circumventions tanks US relations with key countries & destroys internet hegemonyGreenwald 2014 (Glenn [Constitutional lawyer- patriot]; CONGRESS IS IRRELEVANT ON MASS SURVEILLANCE. HERE’S WHAT MATTERS INSTEAD; Nov 19; https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/; kdf)**Chart omitted 2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. Brazil is building a new undersea internet infrastructure specifically to avoid U.S. soil and thus NSA access. That same country punished Boeing by denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets in protest over NSA spying. Another powerful country, Germany, has taken the lead with Brazil in pushing for international institutions and regulatory schemes to place real limits on NSA mass surveillance. U.S.

diplomatic relations with numerous key countries have been severely hampered by revelations of mass surveillance. In July, Pew reported that “a new…survey finds widespread global opposition to U.S. eavesdropping and a decline in the view that the U.S. respects the personal freedoms of its people” and that, while the U.S. remains popular in many countries, particularly relative to others such as China, “in nearly all countries polled, majorities oppose monitoring by the U.S. government of emails and phone calls of foreign leaders or their citizens.” After just one year of Snowden reporting, there have been massive drops in the percentage of people who believe “the U.S. government respects personal freedom,” with the biggest drops coming in key countries that saw the most NSA reporting: All of that has significantly increased the costs for the U.S. to continue to subject the world, and the internet, to dragnets of mass surveillance. It has resulted in serious political, diplomatic, and structural impediments to ongoing spying programs. And it has meaningfully altered world opinion on all of these critical questions.

Impact – More Surveillance

The plan will be used as a rouse to expand the power of intelligence groups – empirics Groll 2015 (Elias [assistant editor at Foreign Policy]; Congress May Have Passed the Freedom Act, But Mass Surveillance Is Alive and Well; Jun 4; foreignpolicy.com/2015/06/04/congress-may-have-passed-the-freedom-act-but-mass-surveillance-is-alive-and-well/; kdf)One useful way to think about the USA Freedom Act that President Barack Obama signed into law on Tuesday night is as a lightning-rod for the National Security Agency. By changing the way the NSA examines domestic phone records, the agency is now able to make the argument that it has undergone significant reforms in the aftermath of the Edward Snowden revelations. By giving up the authority to collect all American phone records, the agency has paid a small price — and gotten rid of a program that it had come to consider a burden, anyway — to keep its most important authorities intact. The full measure of those powers were on prominent display in the New York Times on

Thursday, when the paper reported that the agency has expanded its “warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking.” The NSA, the paper

reported, has also partnered with the FBI to provide federal investigators with intelligence about computer intrusions carried out by foreign powers, according to documents provided by Snowden. There is no evidence of

outright wrongdoing in Thursday’s reports, but they signal another expansion of the NSA’s authorities to collect

data on the Internet. Sen. Patrick Leahy, the Vermont Democrat and ranking member of the Judiciary Committee, said Thursday’s report “underscores the critical importance of placing reasonable and commonsense limits on government surveillance in order to protect the privacy of Americans” and that “Congress should have an open, transparent and honest debate about how to protect both our national security and our privacy.” Jonathan Mayer, a cybersecurity researcher, told the Times that FBI use of NSA data to combat cybercrime threatens to conflate the latter’s intelligence gathering role with the former’s law enforcement mandate. “That’s a major policy decision about how to structure cybersecurity in the U.S. and not a conversation that has been had in public,” he said. In short, the Times report, which was published in conjunction with ProPublica, reveals that the NSA has directed some of its most powerful tools toward cracking down on state-sponsored hackers online. The agency now has the power to search the data streams it has access to for snippets of code and other identifying information to spot hackers and track their activities. It is doing so by relying on one of its most important tools: Its position atop the global Internet infrastructure. The NSA has risen to become the world’s most powerful intelligence agency in no small part because a huge amount of the world’s Internet traffic flows through the United States. Fiber optic cables carry large amounts of Internet data from one part of the world to another, and when that traffic arrives in the United States, the NSA is there to have a look at it. Section 702 of the FISA Amendments Act governs parts of the NSA’s relationship with U.S. telecommunications companies, and it is through such companies that the NSA is able to access enormous troves of data for terrorism and foreign intelligence purposes. Privacy activists are concerned that such collection activities potentially hoover up the communications of ordinary Americans, and Thursday’s revelation that the FBI is now allowed to partake of some data collected from telecom activities is likely to add to those concerns. According to the Times and ProPublica, the FBI’s access to such data — which is routed to a data center in Quantico, Virginia — is focused on foreign hackers trying to penetrate U.S. data systems. That’s a mission that’s central to the U.S. government’s obligations to combat cybercrime, but the contention of rights activists is that that effort has become far too reliant on the tools of mass data collection. Thursday’s reports signal just how far these activists have to go if they hope to rein in the NSA’s powers.

Empirically, the plan makes surveillance worse because it provides cover for circumventionVladeck 2015 (Stephen [Prof of Law @ American U]; Forget the Patriot Act-Here are the privacy violations you should be worried about; June 1; foreignpolicy.com/2015/06/01/section-215-patriot-act-expires-surveillance-continues-fisa-court-metadata/; kdf)The Obama administration, along with a number of more moderate members of Congress, took more of a middle road, calling for the fairly modest reforms provided by the USA Freedom Act, which would replace the phone records program with a somewhat less open-ended (and somewhat better regulated) series of authorities for the government to obtain and review similar data — and which the House of Representatives overwhelmingly passed on May 13. But whatever the merits of the competing sides in this debate, the larger problem is that this conversation has missed the forest for a very small

— and largely irrelevant — tree. In fact, from the perspective of individual privacy rights, the phone

records program is much less problematic than the government’s other authorities to conduct mass surveillance under

Executive Order 12333 and the 2008 FISA Amendments Act. And so, in focusing on how to “fix” Section 215, we’ve given short shrift to the far more significant problems raised by these other authorities — and, just as

importantly, the broader lessons we should be taking away from the surveillance reform conversation that Snowden started.

Aff

General

Reform will snowball Patel 6/25/2015 (Faiza [co-director of the Brennan Center’s Liberty and National Security Program]; When will surveillance reform stop being just 'cool'?; www.brennancenter.org/blog/when-will-surveillance-reform-stop-being-just-‘cool’Last week, former National Security Agency Director Michael Hayden declared that he was “cool” with the recently enacted USA Freedom Act, which reined in government bulk collection of Americans’ phone records. His characterization of that program as “little” is no doubt accurate. Information from the archive of documents released by NSA whistleblower Edward Snowden has revealed many other programs that pose equal or greater risks to Americans’ privacy. But Hayden is too quick to assume

that the phone records program will be the only reform. The passage of the USA Freedom Act is the first curtailment

of intelligence authorities since the 9/11 attacks and should mark the beginning — not the end — of reform. It’s no surprise that Congress chose to tackle the phone record program first. It is relatively straightforward for people to understand, and its goal of amassing a vast database of information about Americans is patently difficult to square with our constitutional values. Two review boards found it to be of minimal counterterrorism value, and a federal appeals court declared it illegal. Even the intelligence community and the president were amenable to reform. But

Congress is well aware that this reform is insufficient. Many of the votes against the act in the House and Senate came from lawmakers who believe it didn’t go far enough.

Circumvention won’t happen if surveillance is prohibitedAckerman, 15 --- American national security reporter and blogger, national security editor for the Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform; Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to circumvent congressional authority,” Lexis)

Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that NSA lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for director of national intelligence, James Clapper, said during a public appearance last month that creating a banned bulk surveillance program was " not going to happen ".

"The whole notion that NSA is just evilly determined to read the law in a fashion contrary to its intent is bullshit, of the sort that the Guardian and the left - but I repeat myself - have fallen in love with. The interpretation of 215 that supported the bulk collection program was creative but not beyond reason, and it was upheld by many judges," said the former NSA general counsel Stewart Baker, referring to Section 215 of the Patriot Act.

This is the section that permits US law enforcement and surveillance agencies to collect business records and expired at midnight, almost two years after the whistleblower Edward Snowden revealed to the Guardian that the Patriot Act was secretly being used to justify the collection of phone records from millions of Americans.

With one exception, the judges that upheld the interpretation sat on the non-adversarial Fisa court, a body that approves nearly all government surveillance requests and modifies about a quarter of them substantially. The exception was reversed by the second circuit court of appeals.

Baker, speaking before the Senate voted, predicted: "I don't think anyone at NSA is going to invest in looking for ways to defy congressional intent if USA Freedom is adopted."

Reformed Freedom Act Solves Circumvention

Independently, plan’s language makes circumvention far tougher than the status quo

Shackford ‘15Scott Shackford is an associate editor at Reason. This article is internally quoting Mark Jaycox, a legislative analyst for the Electronic Frontier Foundation - “Is the USA Freedom Act the Best We Can Expect Right Now?” - Reason - 5/20 http://reason.com/blog/2015/05/20/is-the-usa-freedom-act-the-best-we-can-e

It doesn't appear to be easy to support the USA Freedom Act. The Act's full real name is the " Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online

Monitoring Act." Knowing the full name of the act helps explain why privacy supporters aren't shouting from the rafters over the legislation, even if they

are supporting it. As is the case with many other bills with elaborate names, the USA Freedom Act doesn't actually do what its name states. The USA Freedom Act (H.R. 2048) is Congress' response to the public revelation and the following outrage that the National Security Agency ( NSA ) has been for years secretly collecting mass amounts of domestic metadata from virtually all

Americans as part of its goal of sniffing out terrorists. It has been doing so under the aegis of Section 215 of the PATRIOT Act, which

allows the NSA and FBI to collect all sorts of data and records that are relevant to an ongoing investigation. But the NSA and the Foreign Intelligence Surveillance (FISA) Court that oversaw approval of records collection requests took a very, very wide view of what was "relevant," and that included, among other things, the phone records of every single American. There was an awareness among privacy

experts that this was happening, but because the entire process was classified, the ability for anybody, even members of Congress,

to do much about it was limited. Then Edward Snowden came around and released information showing how remarkably expansive the NSA surveillance actually was. This all came as a surprise to Rep. James Sensenbrenner (R-Wis.), who introduced the PATRIOT Act in

2001. He said it was never his intent to authorize mass collection of the data of Americans in the first place. The USA Freedom Act, which

Sensenbrenner has also sponsored, is intended to reform these procedures. But what the USA Freedom Act actually does is fairly modest compared to the amount of surveillance authority the NSA had claimed for itself. It will end

the bulk collection of phone metadata collection under Section 215, but that's not the only avenue by which the federal government claims authority to collect huge

amounts of private information. Furthermore, right now we're seeing the third attempt to get the act passed, and the strength of the reforms has been watered down along the way. Indeed, some of the reforms called for in the act (storing the telecommunications data with the companies rather than the government and requiring the government to request it) came from former NSA Director Keith Alexander. The support of the Obama Administration has itself given some pause, due to its role in fighting lawsuits against the program and the blatant deception of current Director of Intelligence James Clapper before the Senate

about the existence of mass phone record collection. What the USA Freedom Act is intended to do is end mass domestic data collection through Section 215, as well as in the secretive National Security Letters, and require "specific selection terms" to limit mass records requests. It also reforms the FISA court to designate several independent advisors to the court to help provide "legal arguments that advance the protection of individual privacy and civil liberties," making the FISA court a slightly more

adversarial place rather than the apparent rubber stamp factory it had been. It will also mandate a declassification review process for FISA court decisions. But it's

also really hard to try to gauge the impact of the bill as written , and that's coloring

perceptions of its value. Making the situation more complicated is a federal court ruling that is actually friendly to privacy reformers. On

May 7, the Second Circuit Court of Appeals ruled that Section 215 never actually authorized the NSA to engage in mass phone metadata collection in the first place. The court ruled that the NSA had stretched the definition of "relevance" and "investigation" too far by scooping up pretty much everything and storing it just in case it might be useful later. But the court also did not demand any immediate changes, partly because it knew Congress was already working on legislation to deal with the pending sunsetting of Section 215, which expires June 1. This ruling prompted some rethinking of the USA Freedom Act by the Electronic Frontier Foundation (EFF). The group had previously endorsed each iteration of the act, increasingly reluctantly as it was watered down with each session. In response to the court ruling, though, EFF withdrew its support and went neutral, calling for legislators to now strengthen the act. Mark Jaycox, a legislative analyst for EFF who has been writing about the USA Freedom Act, still has positive things to say about it, but doesn't want Congress to settle for less than it has to. It's the first reform of NSA surveillance since the

1970s. There should be more to it. " The USA Freedom Act should be stronger," Jaycox says. "Congress should be pushing for

more control for themselves and more for the public." EFF would like Congress to return to the first iteration of the act that called for a stronger adversarial position within the FISA court, not just an adviser. They want Congress to address other authorizations used to justify bulk metadata collection, not just Section 215 and National Security Letters. They

want better "minimization" procedures to make sure information that isn't directly connected to an investigation is properly purged. And they want to remove an "emergency exception" that allows the government to snoop on any "non-United States person" for 72 hours without any court authorization at all. Given that the court ruling determined that the NSA had

been operating outside of the law's intent, should we be concerned that any attempt to partly rein in surveillance powers without completely eliminating them will ultimately lead back to more abuse? Who gets to decide what a "specific selection term" is? The same people who determined that every single phone record of every American was "relevant" to investigating potential terrorist attacks on Americans?

Jaycox is aware that this abuse concern helps feed the belief the USA Freedom Act doesn't go nearly far enough. "We've seen the intelligence community and the administration stretch definitions," Jaycox says. "We've seen them come up to the line and cross it completely. Section 215 is an example. I think that's where the hesitancy comes from." It's the FISA court that was supposed to stand in the way of the NSA abusing the language, but that clearly didn't happen. Congress can legislate words to be as narrow as they like, Jaycox notes, "But at the end of the day it's going to be a judge that's reviewing these orders." And thus, there's the push for more transparency and declassification of FISA court decisions, in the hopes of making it more clear how the judges themselves are interpreting the law. The modest reforms weren't enough for some privacy-minded House members like Rep. Justin Amash (R-Mich.), Rep. Thomas Massie (R-Ky.), and Rep. Jared Polis (D-Colo.). They all voted no. Amash later explained on Facebook that he feared passing the USA Freedom Act in the wake of the court ruling would have the impact of authorizing bulk data collection rather than restricting it: "H.R. 2048 falls woefully short of reining in the mass collection of Americans' data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the

Fourth Amendment to the Constitution. Americans, and members of Congress, should demand that Congress instead pass the original , bipartisan version of the USA FREEDOM Act from 2013, which strengthened—not weakened—Section 215's relevance standard to end bulk collection , while still allowing the government the flexibility it needs to pursue genuine threats against the United States." And this morning Amash posted a letter signed by him and 58 others in the House who voted no, explaining that their opposition to the USA Freedom Act was tha the surveillance reforms did not go far enough

Plan restores strong language – that’s sufficient to end circumvention.

Granick ‘14Jennifer Granick is the Director of Civil Liberties at the Stanford Center for Internet and Society. Jennifer was the Civil Liberties Director at the Electronic Frontier Foundation. Jennifer practices, speaks and writes about computer crime and security, electronic surveillance, consumer privacy, data protection, copyright, trademark and the Digital Millennium Copyright Act. From 2001 to 2007, Jennifer was Executive Director of CIS and taught Cyberlaw, Computer Crime Law, Internet intermediary liability, and Internet law and policy. Before teaching at Stanford, Jennifer earned her law degree from University of California, Hastings College of the Law and her undergraduate degree from the New College of the University of South Florida. “USA Freedom Act: Oh, Well. Whatever. Nevermind.” – Just Security - May 21, 2014 http://justsecurity.org/10675/usa-freedom-act-oh-well-whatever-nevermind/

The initially promising USA Freedom Act could have ended the previously secret government practices of collecting

Americans’ calling records, internet transactional information and who knows what else in bulk. Today’s version would allow

broad collection to continue under the guise of reform. The initial version of the bill would have reinforced existing statutory language requiring a showing of “relevance to an authorized investigation” before agents can get an order requiring production of business records, dialing and routing

information, and other data, and would have added other limits to ensure massive collection would stop . It also would

have implemented mild reforms to content surveillance under section 702 of the F ISA A mendments A ct, stopping “back door” searches for Americans’ communications. Last week, a Managers’ Amendment watered those provisions down, substituting new language that would allow agents to use a “specific selection term”

as the “basis for production”. The bill defined “specific selection term” as something that “uniquely describe[s] a person, entity, or account.” Given the intelligence community’s success at getting FISA judges to reinterpret obvious language—e.g. “relevance”—in counter-intuitive ways, people wondered what this new language might mean. There’s deep public mistrust for the intelligence community and for the FISA court, which conspired to allow bulk collection under spurious legal justifications for years. Worse, there’s deep public mistrust for the law itself, since the intelligence community’s “nuanced” definitions of normal words have made the public realize that they do not understand the meaning of words like “relevance”, “collection”, “bulk”, or “target”.

Reformed Section 215

Reformed Section 215 would also end all available programs that could lead to circumvention

Ackerman 15 — Spencer Ackerman, national security editor for Guardian US, former senior writer for Wired, won the 2012 National Magazine Award for Digital Reporting, 2015 (“Fears NSA will seek to undermine surveillance reform,” The Guardian, June 1st, Available Online at http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law, Accessed 06-08-2015)Jameel Jaffer, the deputy legal director of the ACLU, expressed confidence that the second circuit court of appeals’ decision last month would effectively step into the breach. The panel found that legal authorities permitting the collection of data “relevant” to an investigation cannot allow the government to gather data in bulk – setting a potentially prohibitive precedent for other bulk-collection programs.“We don’t know what kinds of bulk-collection programs the government still has in place, but in the past it’s used authorities other than Section 215 to conduct bulk collection of internet metadata, phone records, and financial records. If similar programs are still in place, the ruling will force the government to reconsider them, and probably to end them,” said Jaffer, whose organization brought the suit that the second circuit considered

AT: Non-Compliance

Noncompliance isn’t a reason not to do the plan — the real problems are the laws that authorize the surveillance.Jaffer 13 — Jameel Jaffer, ACLU Deputy Legal Director and Director of ACLU Center for Democracy, 2013 (“"There Have Been Some Compliance Incidents": NSA Violates Surveillance Rules Multiple Times a Day,” ACLU Blog, August 16th, Available Online at https://www.aclu.org/blog/there-have-been-some-compliance-incidents-nsa-violates-surveillance-rules-multiple-times-day?redirect=blog/national-security/nsa-privacy-violations-even-more-frequent-we-imagined, Accessed 06-05-2015)One final note: The NSA's noncompliance incidents are a big deal, but we shouldn't let them become

a distraction . The far bigger problem is with the law itself, which gives the NSA almost unchecked authority to monitor Americans' international calls and emails. The problem arises, in other words, not just from the NSA's non-compliance with the law, but from its compliance with it.

The NSA and FBI will now have to abide by Congressional mandate — the era of looking the other way on surveillance has ended.Buttar 15 — Shahid Buttar, constitutional lawyer and executive director of the Bill of Rights Defense Committee, 2015 (“Senate Moves to Check Executive Spying Power,” The Progressive, May 27 th, Available Online at http://progressive.org/news/2015/05/188151/senate-moves-check-executive-spying-power, Accessed 06-07-2015)The political shift indicates a direction for future reform.Who Wins and Who Loses?The most obvious losers are the NSA and FBI. After 15 years of breaking already permissive laws, yet not congressional blank checks, the agencies must finally start complying with constitutional limits .Within the agencies, senior leaders of the intelligence establishment also emerge looking like clowns. Section 215 survived this long only because agency officials—including Director of National Intelligence James Clapper and former NSA Director Michael Hayden—lied under oath to evade oversight. The Senate's decision to end a program that senators learned about from whistleblowers, instead of those officials, further discredits their legacies.Even if they remain above the law by evading the prosecution for perjury sought by multiple members of Congress, their careers will be defined by congressional and judicial rejection of illegal programs they built in secret.To the extent intelligence officials are clowns, the many congressional leaders from both parties who supported them are stooges. Establishment Democrats and Republicans alike uncritically accepted lies, deferred to them and went along with the Beltway consensus - in sharp contrast to their populist colleagues who proved willing to uphold their oath of office to "defend the Constitution against all enemies, foreign and domestic."Several winners also emerged from this drama.Congressional rejection of mass spying vindicates several principles at once, including transparency, oversight, checks and balances, the separation of powers and constitutional rights enshrined in the First and Fourth Amendments. Each of those values is cherished across the political continuum, making them especially powerful during a presidential election year.Senator Paul is another clear winner. He demonstrated leadership, surged among the crowded GOP field of 2016 presidential hopefuls and effectively seized control of the Senate from the majority leader. With

its senators leading both the surveillance/secrecy/corruption caucus, as well as the competing constitutional/privacy/accountability caucus, Kentucky could also claim victory.The US Constitution may be the most important winner. By proxy, "We the People of the United States" actually scored two victories at once.Narrowly, the expiration of Patriot Act Section 215 advances Fourth Amendment privacy interests. Even though mass surveillance will continue for now under other legal authorities, one program through which our government monitors phone calls and tracks everyone's behavior, regardless of wrongdoing, will end.More broadly, this vote begins a long-overdue process of limiting executive powers , expanded during a period of seeming emergency, which grew entrenched despite proving ineffective as well as constitutionally offensive. In this sense, congressional assertiveness supports democracy in a long-running battle to avoid the erosion from within foreseen by both Alexis de Tocqueville and President and Supreme Allied Commander Dwight Eisenhower.What Comes Next?With reformers having triumphed in Congress, the debate over surveillance reform must expand. Further reforms are necessary to enable an adversarial process and greater transparency at the secret Foreign Intelligence Surveillance Court, and also to limit other legal authorities - like Executive Order 12333 and FISA Section 702 - used to justify unconstitutional domestic surveillance.It's a good thing that a bipartisan measure, the Surveillance State Repeal Act (HR 1466), is poised to do exactly that. Rep. Mark Pocan (D-Wisconsin) and Rep. Thomas Massie (R-Kentucky) introduced the SSRA to force the agencies to justify the expansion of any powers from a constitutional baseline, rather than one contrived by a decade of executive lies.Congress has long abandoned its role of checking and balancing runaway executive power, but the Senate's recent vote suggests an overdue awakening . Members should heed the political wind, and embrace bipartisan calls for aggressive limits as the starting point for comprehensive surveillance reform.

NSA noncompliance is genuine error, not deliberate avoidance — and mistaken surveillance data is purged.BloombergBusiness 14 — BloombergBusiness, Byline David Lerman, 2014 (“U.S. Spy Agency Reports Improper Surveillance of Americans,” BloombergBusiness Online, December 24th, Available Online at http://www.bloomberg.com/news/articles/2014-12-24/spy-agency-to-release-reports-documenting-surveillance-errors, Accessed 06-05-2015)After foreign intelligence is acquired, “it must be analyzed to remove or mask certain protected categories of information, including U.S. person information, unless specific exceptions apply,” the NSA said in a statement before posting the documents.The extent of that collection has never been clear.The agency said today it has multiple layers of checks in place to prevent further errors in intelligence gathering and retention.“The vast majority of compliance incidents involve unintentional technical or human error ,” NSA said in its executive summary. “NSA goes to great lengths to ensure compliance with the Constitution, laws and regulations.”Report ViolationsThe intelligence community is required to report potential violations to the oversight board, as well as the Office of the Director of National Intelligence.

In some cases, surveillance of foreign targets continued even when those targets were in the U.S., although such “non-compliant data” were later purged, according to the reports released today.Some analysts sent intelligence information to other analysts who weren’t authorized to receive it, according to the documents. That information was deleted from recipients’ files when discovered.

Congress will Check Circumvention

Congress is prepared to enforce surveillance legislation Buffalo News 15 — Buffalo News Editorial Board, 2015 (“Freedom Act recognizes privacy rights without endangering national security,” Buffalo News, June 5th, Available Online at http://www.buffalonews.com/opinion/buffalo-news-editorials/freedom-act-recognizes-privacy-rights-without-endangering-national-security-20150605, Accessed 06-08-2015)The ensuing debate was appropriately loud and passionate. The main problems with the program were determined to be its secrecy and lack of sufficient oversight to ensure that the NSA was not overstepping its legal bounds. The collection of metadata, itself, was also troubling, even though the NSA wasn’t listening to the content of calls. Rather the agency was analyzing the data and attempting to match it with known or suspected terrorist activities. In that, there may be value. The sifting of data can still take place, as long as the NSA gets a court order to access records held by the phone companies.The continuing need for aggressive government action against terrorism should, at this point, go without saying. The important point was to determine how government surveillance should work, not whether it was needed. It was also true, though, that the Patriot Act was passed during the post-9/11 fever that gripped the country, including government. Nearly 14 years later, it was time to consider the issue at least somewhat more dispassionately.The change seems to be a plausible one, though the test of that is yet to come. The United States has not suffered a single foreign-born terrorist attack since 2001 and it is fair to conclude that the telephone surveillance program may have played some role in that.The Patriot Act escaped close scrutiny until the Snowden revelations. That’s just one of the reasons that the USA Freedom Act needs to be closely monitored. Congress needs to satisfy itself that the NSA and any other agencies involved are complying with the new law , which President Obama signed on Tuesday night, but it also needs to verify with those agencies that the law is doing the job intended and in a way that serves the legitimate interests of national security.Still, it’s good to see that Congress was able to evaluate the Patriot Act in a way that was inclusive of all interested parties and to produce what looks like a workable compromise. It’s what Congress is

supposed to do and what it hasn’t done for far too long.