Domestic

Surveillance
Overview of the 2015-2016
High School Debate Topic

Resolved: The United States

federal government should
substantially curtail its
domestic surveillance.

Resolved: The United States

federal government should
substantially curtail its
domestic surveillance.

Curtail
Narrow
Reduce/Decrease
to cut short; cut off a part of; abridge; reduce;
diminish (Dictionary.com)

Broad
Restrict
Reduce in extent or quantity; impose a restriction
on (Oxford Dictionary)

Domestic Surveillance
Domestic
of, relating to, or made in your own country
(Merriam-Webster)

Surveillance
the act of carefully watching someone or
something especially in order to prevent or
detect a crime (Merriam-Webster)

Domestic Surveillance
Domestic surveillance is a subset of
intelligence gathering. Intelligence, as it is to be
understood in this context, is information that
meets the stated or understood needs of policy
makers and has been collected, processed and
narrowed to meet those needs. In essence,
domestic surveillance is a means to an end; the
end being intelligence. The intelligence
community best understands domestic
surveillance as the acquisition of
nonpublic information concerning United
States persons (Small, 2008).

Timeline
1919
The State Department establishes the Cipher
Bureau, a precursor to the modern-day National
Security Agency. It was the first peacetime
federal intelligence agency.

1952
President Harry Truman secretly issues a
directive to create the National Security Agency,
which allows the Defense Department to
consolidate surveillance activities after World
War II.

Timeline
1972
The United States v. U.S.
District Court. The Supreme
Court ruled that Fourth
Amendment protections
applies to domestic
surveillance.

1976
Church Committee
investigations. Resulted in
the creation of the Senate
Select Committee on
Intelligence.

Timeline
1978
Foreign Intelligence Surveillance Act (FISA)
Foreign Intelligence Surveillance Court (FISC)

2001
United and Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT
Act)

2008
FISA Amendments Act of 2008

Timeline
2013
Edward Snowden
NSA Revelations

2015
Uniting and Strengthening
America by Fulfilling Rights
and Ending Eavesdropping,
Dragnet-collection and
Online Monitoring Act (USA
FREEDOM Act)

Why Privacy Matters

Privacy
Core advantage
Fundamental
societal value
National Security
State

Right to Privacy
4th Amendment
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.

Supreme Court Decisions

Griswold v. Connecticut (1965)

Golden Age of
Surveillance
We are living in an age
of surveillance (Neil
Richards, Washington
University of Law)
Incremental loss of
privacy
But Ive got nothing to
hide!
Chilling Effect
Freedom/Democracy
Impacts

Patriot Act Cases

Section 203
Section 206
Section 213
Section 215
Title III
Section 505

Section 203
Information Wall
Sections 203(b) and 203(d)
Amended the Federal Rules of Criminal
Procedures regarding grand jury proceedings

Privacy Implications
Sharing intercepted communications without a
court order
Mission Creep/Potential for Abuse

Undermines the Criminal Justice System

Section 203
Counterterrorism
Lack of criteria
Mass, indiscriminate information sharing

Reform Ideas

Require court orders for information acquisition

Narrow terminology
Limit who is involved in information sharing
Increase safeguards

Section 206
Roving Surveillance
FISA Wiretaps
FISA Wiretaps vs. Criminal Wiretaps

Privacy
Intel agencies do not have to specify the target or
location of surveillance
John Doe wiretaps
2005 FBI incident

Reforms
Narrow search requirements
Ascertainment provision

Section 213
Sneak and Peek Searches
Delayed search warrant notifications
Extensive form of domestic surveillance

Counterterrorism vs. Criminal Investigations

Privacy trade-off
4th Amendment concerns

Rate of Use
Substantial increase since 2002

Section 213

Section 213
Reforms
Repeal
Require probable cause
Narrow search requirements/circumstances for
Section 213 searches
Shorten window for judicial authorization
Frequent reporting requirements

Section 215
Metadata Collection
Metadata vs. Content
USA FREEDOM Act Reforms

Scope of the program

Dragnet operation

Counterterrorism
Counter-productive

Privacy
Metadata is very revealing
Misuse/Abuse

Title III
Anti-Terrorism Financing Restrictions
Requires financial institutions to impose strict
anti-money laundering measures
Suspicious Activity Reports
Financial Privacy

Counterterrorism Effectiveness
Hard to track
Difficult to prevent

Title III
Organized Crime
Bulk cash smuggling
Mexican DTOs

Reforms
Increase judicial scrutiny

Section 505
National Security Letters
Allows the FBI to subpoena business records
Gag order

Privacy
Scope of NSLs
High use rate
Misuse/Abuse

Reforms
Impact of the USA FREEDOM Act
Presidents Review Group on Intelligence and
Communications Technologies

FISA
Section 702
FAA of 2008
Domestic surveillance couched as foreign
surveillance

Poor government oversight

Substantial NSA discretion
Millions of Americans swept up by Sec. 702
searches
Current Reforms/FISC Ineffective

FISC and Section 702

Article III
Lack of adversary process
Cases and Controversies

Fourth Amendment
Special Needs doctrine
Incidental Collection/Minimization
Requirements

Implications of
Sec. 702
Privacy
Incidental collection
Backdoor searches
Content Collection/Storage

PRISM
NSA program
Privacy
Internet/Cloud Computing

Leaked Information

FISA Reform
Counterterrorism
Questionable effectiveness

Section 702 Reform

Close the backdoor loophole

FISC Reform
Extends beyond Section 702
Privacy Advocate

NSA Reform
Rogue Agency

NSA Surveillance Programs

Metadata (Section 215)
PRISM/Electronic Content Collection (Section
702)
Project Bullrun

Project Bullrun
Data Decryption Program
NSA considers this its most important program
Private Sector Collaboration/Coercion

Privacy
War on encryption

Cybersecurity
Weakens cybersecurity
Increases cybercrime
Malware

DEA License Plate

Database
National License Plate Recognition Initiative
Started in 2008
Program is expanding

Privacy
2/3 of the population lives in border zone as defined by the
DEA
Catalogues a substantial amount of information
Lacks judicial oversight

Civil Asset Forfeiture

Reforms
End the program
Prohibit cooperation between the DEA and local/state agencies
Reduce storage time

Postal Service Metadata

Collection
Metadata Collection
Mail Isolation Control and
Tracking Program
Mail Covers

Frequent Use
Misuse/Abuse
Reforms
Judicial Oversight

Drones
Drone Surveillance
FAA Modernization and
Reform Act of 2012
Advanced surveillance
technology

Lack of privacy
safeguards
Public Safety
Reforms
FAA Guidelines
Congressional
regulations

Border Surveillance
Surveillance operations
Drones
Border Patrol Border Zone

Privacy/Rights Concerns
Checkpoints/roving patrols/warrantless searches
Misuse/Abuse

Border Militarization
Low intensity war zone

Reforms
Reduce the 100 mile rule

Surveillance of Muslim
Communities
Informant Networks
Ineffective system
Newburgh four

Racist
Hurts intelligence gathering
Discourages cooperation

Privacy
Reforms
Restrict use of informants

Critical Affs
Foucault
Security
Anti-blackness
Genealogy

Michel Foucault
French philosopher
Influential theories on
power and knowledge

Surveillance
Disciplinary Power
Biopower

Panopticism

Panopticon Design

Foucault & Domestic

Surveillance
Relationship to the topic
Abundance of ways to deploy Foucault on this
topic
Metadata/Content Collection
Drones

Resources
Michel Foucault, Discipline & Punish: The Birth
of the Prison
William Staples, Everyday Surveillance:
Vigilance and Visibility in Postmodern Life

Security
You have no civil liberties
if you are dead Sen. Pat
Roberts

Risk Exaggeration

Threat Construction/SelfFulfilling Prophecies

Anti-blackness
History of surveilling communities of color
FBI
COINTELPRO
Civil Rights Movement

Baltimore surveillance
Fleet of FBI surveillance planes

Disproportionate Surveillance
Government Aid
Traffic Surveillance

Genealogy
Genealogical
Investigation
Origin of the American
Surveillance State
Colonial practices in the
Philippines
Shaped our surveillance
policies throughout the
20th Century and
beyond

Homework
Last Week Tonight with John Oliver
(Surveillance)
https://www.youtube.com/watch?v=
XEVlyP4_11M

Citizenfour (Documentary)
Podcasts
The End of Privacy (NPR TED Radio Hour)
How the NSA Works (Stuff You Should Know)

No Place to Hide: Edward Snowden, the NSA,

and the U.S. Surveillance State (Book by
Glenn Greenwald)