Privacy Impact File

NotesThis is a privacy impact file- more aff than neg.

At the bottom of each section are the compiled privacy vs security cards from the Freedom Act files, just so it’s all in one place.

These are the compiled cards of Priyanka Gokare and Kavya Chaturvedi.

Aff

Privilege/Discrimination and Surveillance

Surveillance burdens the oppressed- the privileged is able to ignore it. Chaplin 14(Angelina, senior blog editor at The Huffington Post Canada, columnist for the Ottawa Citizen and editor at Progress magazine, “Don't Care About Surveillance? You're Probably White and Middle Class”, 5/20/2014, http://www.huffingtonpost.ca/angelina-chapin/poor-people-surveillance_b_5357615.html, kc)I'll admit it: I have to force myself to care about government surveillance. Intellectually, I get why it's important. The growing power imbalance between government and citizen is messed up. The databases are potential cesspools of discrimination. We'd live in a better world if corporations didn't turn over our private information just because the feds asked.¶ Emotionally, I become more outraged when avocados aren't ripe at the Superstore.¶ My reaction is no anomaly. A study by Canadian Journalists for Free Expression and Nanos found 60 per cent of Canadians would do nothing "if they suspected the government was spying on them."¶ And we know it is.¶ The most recent revelations about Canadian surveillance should keep us up at night. Communications Security Establishment Canada (CSEC) used airport WiFi to track Canadian travellers. At least one telecom company allowed the government to CC itself on our emails and the NSA, the lovely U.S. government agency that can listen to phone calls and collect Americans' Internet activity without court approval , is a big ol' sugar mama to Canada's spy program. And that's just what we know (my friend reading Glenn Greenwald's book is now full-on

paranoid).¶ Yet you'll still hear educated people use "I've got nothing to hide," to explain their apathy. What that really means is " I'm too privileged to be a target ." Low-income people and minorities are already caught in a surveillance tsunami . ¶ Sociologists say that unless you're a tech aficionado,

it's hard to care about government spying that doesn't affect your daily life. For most white, middle-class people, data gathering seems abstract. We can't see it happen and the only manifestation is a targeted ad on our Gmail

that we might dismiss with a "well, that's creepy."¶ For poor people, surveillance is an everyday reality . ¶ Take welfare recipients. To prevent fraud, the government uses eight surveillance tools to police those on Ontario Works, according to a study by Krystle Maki at Queen's University. They range from old-school techniques such as random house visits, snitch lines and drug testingas to a web of databases known as "mashups."¶ Of course we don't want liars to receive government money, but a report to Toronto Social Services found the fraud rate was .003 per cent. Yet on suspicion alone, Eligibility Review Officers (EROs) can search a person's home and take any relevant documents. They can show up at a recipients' workplace, pester their friends and family and access entire databases of information on a suspect.¶ The less fortunate in our society understand the menace of surveillance, but they can't do much about it. The welfare measures are a classic power play: authorities know recipients depend on monthly cheques. They also know the low-income population has little political power. John Gilliom, author of Overseers of the Poor, says that rather than engage with the privacy/surveillance debate, the impoverished speak in an "everyday language of ... fear, anger, resistance, frustration and power" that doesn't often reach Capitol Hill . ¶ But understanding the issues is no panacea. Gilliom found that unionized, skilled workers were among "the most articulate resistors of surveillance." A group of electricians in Seattle spoke about how being forced to take drug tests violated the Fourth Amendment rights. Yet they still didn't have the means to fight back, whether against government surveillance or privacy breaches in general.¶ The affluent are less concerned with intrusions because they can defend themselves in a pinch. "I know that if I get into trouble I can afford to hire a great attorney," says Gilliom, "whereas for someone with a public defender, (privacy invasions) will be very scary and have lots of consequences." Sociologist Christena Nippert-Eng interviewed an African-American whose life was ruined by identity theft. The woman found a cheap attorney who gave her bad advice: declare bankruptcy. As a result she lost her job, all her money and became depressed.¶ It's no surprise that minorities are fearful of authority when they are the most targeted and least able to protect themselves. A study from The Pew Internet and American Life Project found that African-Americans and Hispanics with Internet access were more concerned about online privacy than white people.¶

While privileged populations often laud surveillance measures as a way to fight terrorism,

minorities are burdened by the results . Ask the Middle Eastern man with a beard who gets treated like Maher Arar at the border about his thoughts on privacy. And government infringement is only getting worse. The International Civil Liberties Monitoring Group (ICLMG) issued a report that describes how the more than 17 border control programs now in place are disproportionately aimed at certain ethnic groups.¶ From a social justice perspective, we should care that fellow Canadians are being targeted. But there's also a more selfish reason. As government spying becomes more sinister, privilege is not a get-out-of-surveillance-free card. The "I-have-nothing-to-fear" defence should be qualified with "until I don't." Government has a nasty habit of extending its reach over time. That's a reality none of us should hide from.

Apathy because of privilege leads to more limitations on freedom.Goitein 13(Elizabeth, Co-Director for Liberty & National Security Program at the Brennan Center for Justice, Graduate of Yale Law School, “The Danger of American Apathy on NSA Surveillance”, July 31, 2013, https://www.brennancenter.org/analysis/danger-american-apathy-nsa-surveillance, kc)

The programs also threaten Americans’ privacy . It is disingenuous for officials to characterize the “metadata” being

collected as mere phone numbers. Sophisticated computer programs can glean volumes of sensitive information from this metadata about people’s relationships, activities, and even beliefs . The government knows very well how revealing call records can be; that is why it considers the program so valuable.¶ Serious as they are, these concerns fail to explain fully why Americans should care. After all, this remains a remarkably free country. There are exceptions. Muslim Americans, who are singled out for scrutiny by some law enforcement agencies, have reported harassment by customs officials as well as a chilling of political and religious activity. Outside of these communities, though, few Americans feel any tangible effects from increased surveillance. The

vast majority of law-abiding citizens go about their lives without fear of government persecution.¶ And that may be the

problem . Free societies tend to take their freedom for granted . But our liberties do not derive from the innate trustworthiness of our elected representatives. They derive from laws and institutions put in place for the preservation of liberty. These laws and institutions, some version of which can be found in all democratic societies, are relatively recent innovations in human history. Before their advent, tyrannies and dictatorships were the norm. Even today, in countries without this framework, people are not free.¶ Since 9/11, the laws and institutions created to ensure Americans’ freedom have been weakened – sometimes incrementally, sometimes significantly – at a rapid pace . This is particularly true for

limitations on surveillance , a power that carries tremendous potential for abuse . National Security Letters, a form of administrative subpoena, are now available to collect any information “relevant” to a terrorism investigation, not just information about potential suspects. Customs agents no longer need reasonable suspicion of wrongdoing to search citizens’ laptops at the border. Americans’ international communications are now subject to wiretapping without an individualized court order. The list goes on.¶

African-Americans have always been under surveillance – this outrage is nothing new for themLove 13(David A., Writer and Human Rights Activist, Executive Director of Witness to Innocence, Certificate in International Human Rights Law from the University of Oxford, “History of black surveillance influences African-American attitudes on spying”, June 13, 2013, http://thegrio.com/2013/06/13/history-of-black-surveillance-influences-african-american-attitudes-on-spying/, kc)

And yet, while civil liberties advocates may find this type of surveillance illegal , an unconstitutional invasion of privacy and even grounds to sue the government, African- Americans may not necessarily react with as much outrage.¶ Decades under the microscope¶ It gets

complicated. The black community has decades of experience being monitored, so this type of surveillance is nothing new . Given the long history of being spied upon, many blacks already assume they

are being monitored by the government.¶ Yet, a new poll from Pew Research Center and the Washington Post suggests that blacks may have forgotten about all those years of surveillance, or perhaps have even internalized all of that snooping.¶ According to the Pew survey, 56 percent of people believe the NSA tracking of telephone calls is an acceptable way to fight terrorism. That includes 53 percent of whites, 62 percent of blacks and 63 percent of nonwhites in general.¶ Further, 45 percent of Americans believe the government should intrude even further into our internet activity in order to prevent terrorist attacks, while 52 percent disagree. Meanwhile, 55 percent of blacks believe the feds should go the extra mile if such a move would thwart terrorism. And when asked if it is more important for the government to investigate threats if it intrudes on privacy, or not intrude even if it limits the government’s ability to investigate threats, 62 percent voted for investigating threats. While 60 percent of whites and 67 percent of nonwhites approved of investigations, 75 percent of blacks approved.¶ African-Americans are no strangers to surveillance , as their activities were highly regulated through the slave codes, laws which controlled both slaves and free blacks. The slave patrols, consisting of white slaveholding and non-slaveholding men, were designed to prevent slave rebellions. The patrols were ordered to stop the slaves they found on the road, compel the slaves to produce a pass, and have them prove they were not breaking the law. Slave patrols often descended upon areas where slaves congregated, and could enter plantations without a warrant and search slave quarters for weapons, books, runaways or stolen property.

Fear of dissent fuels destruction of privacy – the impact is authoritarianism and exclusion of minorities and the poorGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)Since 9/11, the destruction of privacy in the USA has been driven by an intensification of the fear of dissent. This fear is paired with a deep-seated suspicion of others, especially those non-white populations who are poor or non-Christian, and anyone who might question American exceptionalism. Such underlying fears sanction social exclusion and promote widespread religious and racial discrimination, fuel the expansion of the punishing state and

have become a unifying thread of the secret regimes of s urveillance . Rather than waging a

war on terrorists, the neoliberal security state wages a war on dissent in the interest of

consolidating class power . Whistleblowers are not only punished by the government; their lives are also turned upside down in the process by private surveillance agencies and major corporations which increasingly share information with the government and do their own spying and damage control. The merging of corporate and state surveillance systems updated with the most sophisticated shared technologies has resulted in illicit counter-intelligence operations, industrial espionage and attacks on pro-democracy movements such as Occupy as well as on other non-violent social movements protesting a range of state and corporate injustices (Boghosian 2013, Price 2014). Those who stand to benefit from massive concentrations of

wealth, power and income harbour a deep fear and suspicion of democracy and have come

to rely on the authoritarian and punishing state to impose forms of civil and social death on

anyone who threatens their power. Indeed, the notion that the US Government should be

used largely to punish rather than nurture or protect its citizens has amplified in recent years .

At least ‘36 states have passed state terrorism statutes, essentially mini-PATRIOT ACTS’

(Geovanis 2014 ), designed primarily to criminalize various forms of dissent. The use of repressive legislation to quell and punish peaceful protests was also on full display in Oklahoma where XL pipeline opponents now face state terrorism charges for ‘dropping glitter inside a building during a peaceful banner drop’ (Geovanis 2014). Law-abiding citizens and ‘those with dissenting views within the law can be singled out for surveillance and placed on wide-ranging watch lists relating to terrorism’ (Ward 2013 ). This type of illegal spying in the

interest of closing down dissent by peaceful protesters has less to do with national security than it has to do with mimicking the abuses and tactics used by the Stasi in East Germany during the cold war.

Psychological impacts

Even the perception of surveillance causes anxiety and stifles individualityMurphy 14(Kate, Deputy Managing Editor at The Nation, “We Want Privacy, but Can’t Stop Sharing”, October 4, 2014, http://www.nytimes.com/2014/10/05/sunday-review/we-want-privacy-but-cant-stop-sharing.html?_r=0,kc) But the history of privacy (loosely defined as freedom from being observed) is one of status. Those who are institutionalized for criminal behavior or ill health, children and the impoverished have less privacy than those who are upstanding, healthy, mature and wealthy. Think of crowded tenements versus mansions behind high hedges.¶ “The implication is that if you don’t have it, you haven’t earned the right or aren’t capable or trustworthy,” said Christena Nippert-Eng, professor of sociology at the Illinois Institute of Technology in Chicago and author of “Islands of Privacy.”¶ So it’s not surprising that privacy research in both online and offline environments has shown that just the perception , let alone the reality, of being watched results in feelings of low self-esteem, depression and anxiety. Whether observed by a

supervisor at work or Facebook friends, people are inclined to conform and demonstrate less individuality and creativity . Their performance of tasks suffers and they have elevated pulse rates and levels of stress hormones.

Surveillance anxiety causes major health problemsVillines 13(Zawn, GoodTherapy.org Correspondent and Freelance Writer, “Watch Out: The Psychological Effects of Mass Surveillance”, September 16, 2013, http://www.goodtherapy.org/blog/watch-out-psychological-effects-of-mass-surveillance-0910137, kc)

You’re not paranoid if they really are out to get you. More than 50 years after Ernest Hemingway committed suicide, we know that Hemingway was being tracked and hounded by the FBI, but this revelation seems less significant in a culture dominated by surveillance.¶ Edward Snowden’s recent revelations about NSA spying have sparked a vigorous public debate, and employers routinely spy on their employees by tracking their email, logging their chats, and checking their Facebooks. Walk down any street or enter any convenience store and the odds are good that there’s a camera filming you. The line between public and private behavior is increasingly blurred. Some people are willing to sacrifice a bit of privacy to feel safer, but what about the psychological effects of all this surveillance ?¶ It makes sense that people

might feel more afraid of their government when they think they’re being watched, but the effects go deeper. One study found that when people identified with a leader, their trust in that leader actually decreased when they found out they were being watched. Another study found that people’s willingness to put up with

surveillance decreases when they realize that they are the ones being watched instead of a mysterious bad guy.¶ A sense of privacy can play a significant role in the control people feel over their lives. We all have private thoughts and behaviors that we’d rather keep under wraps, but mass surveillance makes this much more challenging. A hastily typed email message or unfortunate Facebook update can suddenly

become public knowledge. As far back as 1996, researchers found that people felt a loss of control when they knew they were being watched.¶ The mental health effects don’t end there, though. Researchers have found that as surveillance increases, so does anxiety . Anxiety can lead to a host of health conditions , including high blood pressure, obesity, respiratory problems, gastrointestinal problems, and even cancer.

Surveillance leads to self-censoring. Penny 13

(Laurie, journalist and feminist activist from London, “Laurie Penny on psychology: if you live in a surveillance state for long enough, you create a censor in your head”, June 17, 2013, http://www.newstatesman.com/politics/2013/06/if-you-live-surveillance-state-long-enough-you-create-censor-your-head, kc)

As it is, it has become dramatically easier to watch what people do from day to day on a very intimate level. We knew this before the NSA leaks. We are reminded of it every time we tick the little box that says “I agree”.

The big question is how it changes our everyday behaviour.¶ There is a significant psychological price to being constantly aware of the variety of ways in which your activity might be tracked . To be blunt, it makes you feel crazy. That is why, if you want a quiet life, you shouldn’t make friends with security analysts: they tend to get drunk and describe the ways in which your phone can be turned into a listening device until the skin on the back of your neck starts to crawl, because it’s their job to know about such things. There is a non-zero cost to this sort of awareness.¶ In a choice between paranoid vigilance and easy participation, few choose paranoia . It’s just easier to change your behaviour . A friend who works in computer security told me that “ the most important censorship happens between your head and your keyboard”. Self-censorship is significant in a world where, increasingly, as the tech journalist Quinn Norton observes, “falling in love, going to war and filling out tax forms looks the same: it looks like typing”.¶ There are still ways to operate in private . If I want to have an online conversation or make a

transaction that I’m absolutely sure can’t be snooped on, there are tools I can download, software I can teach myself to use. But it’s a faff, and it can protect you only so far unless you choose to go entirely off-grid , and I’ve been

addicted to Facebook since 2006. It’s far less trouble to modify your behaviour so you don’t ever say anything that might give the wrong impression. It’s easier , in short, to behave .

Prefer our evidence- they ignore psychological data. Chambers 13(Chris, Professor of Cognitive Neuroscience at the School of Psychology at Cardiff University, “NSA and GCHQ: the flawed psychology of government mass surveillance”, August 26, 2013, http://www.theguardian.com/science/head-quarters/2013/aug/26/nsa-gchq-psychology-government-mass-surveillance, kc)As the world's governments march toward universal surveillance, their ignorance of psychology is clear at every step . Even in the 2009 House of Lords report " Surveillance: Citizens and the State " – a document that is critical of surveillance – not a single psychologist is interviewed and, in 130 pages, not a single reference is made to decades of psychological research .¶ We ignore this evidence at our peril . Psychology forewarns us that a future of universal surveillance will be a world bereft of anything

sufficiently interesting to spy on – a beige authoritarian landscape in which we lose the ability to relax, innovate, or take risks. A world in which the definition of "appropriate" thought and behaviour becomes so narrow that even the most pedantic norm violations are met with exclusion or punishment. A world in which we may even surrender our very last line of defence – the ability to look back and ask: Why did we do this to ourselves?

Surveillance destroys autonomy and ethical thought Borland 7(John, Journalist at WIRED and CNET, “Maybe Surveillance Is Bad, After All”, 08/08/07, http://www.wired.com/2007/08/maybe-surveilla/, kc)Philosopher Sandro Gaycken, a PhD student at Germany’s Institut für Wissenschafts- und Technikforschung in Bielefeld, wants to give pro-privacy forces stronger arguments to counter these concerns. Speaking today at the Chaos Communication Camp, he conceded that activists’ justifications for their concerns often fail to resonate with the broad public. Many anti-surveillance arguments are based on vaguely emotional concerns, or appeals to abstract values, as opposed to the hard facts of suicide bombers or commuters killed on the subway.¶ In response, Gaycken argued that there are well-established psychological consequences to being watched , observed consistently in studies . People change, tailoring

their behavior to fit what they believe the observer wants (or in some cases actively rebelling against those

wishes). Now imagine a society where everyone knows they are or may be watched as they walk through the streets, or while surfing online. That – as in societies like Hitler’s Germany or Soviet Russia – will have tangible and widespread psychological consequences, reinforcing conformity, and literally crippling [obstructing] the ability to make autonomous and ethical decisions , he argued.¶

An analogy might be the well-studied population of children with overprotective mothers , the

philosopher said. Studies show that such children tend to be indecisive, dependent on others, have little "ethical competence," and often live suppressed and unhappy lives .

Drones cause psychological trauma and anxiety Owen 13(Taylor, Professor of Digital Media and Global Affairs at the University of British Columbia, “Drones don’t just kill. Their psychological effects are creating enemies”, Mar. 13, 2013, http://www.theglobeandmail.com/globe-debate/drones-dont-just-kill-their-psychological-effects-are-creating-enemies/article9707992/, kc)

This infringement of basic privacy, combined with potential lethality, has a profound psychological effect on those living with drones overhead . There have been a wide range of studies investigating this phenomenon; Living Under Drones, a study conducted in the northern tribal region of Waziristan, is one of the most comprehensive. Taken up at the request of the U.K.-based non-profit group Reprieve, this study was conducted by lawyers and researchers at Stanford University and New York University with help from a local Pakistani non-profit, the Foundation for Fundamental Rights.¶ The findings of this study are truly disturbing . A vast majority of people reported being perpetually scared of drone strikes , day and night . Just the constant noise above makes people experience bouts of emotional trauma and symptoms of anxiety . And these symptoms are more widespread than previously thought – there are reports of men, women, and children too terrified to sleep at night. Medical practitioners have asserted that these anxiety-related disorders amongst the people of Waziristan often manifest themselves in the form of physical illness, ranging from headaches to heart attacks, even suicides.¶ Drone-induced anxieties are having a profound impact on the way these people live their lives . For example, most kids in Waziristan no longer attend school . People avoid daily activities such as

grocery shopping, farming, and driving for fear of drone strikes. One psychiatrist argues that this behaviour is symptomatic of “anticipatory anxiety” – a psychological phenomenon that causes people to worry constantly about their immediate future (this is very common in conflict zones).¶ People experiencing anticipatory anxiety report having emotional breakdowns, running indoors for safety, hiding during the

day, having nightmares, and other anxiety-related problems which dramatically affect their ability to live their lives.

Privacy is key to freedom- surveillance causes stress and kills individualityStanley 12(Jay, Senior Policy Analyst with the ACLU’s Speech, Privacy & Technology Project, “Does Surveillance Affect Us Even When We Can’t Confirm We’re Being Watched? Lessons From Behind the Iron Curtain”, October 15, 2012, https://www.aclu.org/blog/does-surveillance-affect-us-even-when-we-cant-confirm-were-being-watched-lessons-behind-ironz, kc)

Of course, the point is not that the FISA Amendments Act is equivalent to the kind of surveillance that took place behind the Iron Curtain. Rather, it’s that there are things we can learn from the experience of extreme surveillance in Eastern Europe. In particular, that experience makes especially clear a point that the government is trying to obfuscate in this case: the negative effects of surveillance flow not just from direct observation , but equally from uncertainty over whether and when one might be under observation . Even a person who was never actually spied upon could have his or her life drastically curbed by the threat of such spying.¶ That is a dynamic t, hat operates in all

times and places where such a threat is present. The brief also includes a succinct rundown of studies that have shown how perceptions of surveillance (not just surveillance) cause psychological stress and altered behavior:¶ For example , a workplace study conducted statewide in New Jersey found a direct correlation between workers’ perceptions of surveillance and negative sentiments concerning privacy, role in the work place, self-esteem, and workplace communication .… Similarly, a study of seven urban centers in New Zealand supported the conclusion that a perceived lack of privacy is directly associated with psychosomatic stress . ¶

While we are no East Germany, some lessons from that time and place have become newly relevant to us in different ways in our age of high technology. We humans are inherently social animals, keen at all times to know how we are presenting ourselves before the eyes of others. Unless we feel entirely secure in our privacy, we will act in guarded ways —and that

means, to a greater or lesser extent, we will not be free.

Status quo surveillance hampers social expressionGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-19-2015)Surveillance as the order of the day becomes surveillance propped up as the new face of intimacy, exploiting free expression, if not actually eradicating thinking itself. In the age of the self-absorbed self and its mirror image – the selfie – intimacy becomes its opposite, while the exit from privacy becomes symptomatic of a society that gives up on social and historical memory. In a world in which there is less a struggle to resist power than a need to merely survive, consuming, managing and controlling data replaces the difficult task of cultivating friendships. Computer ‘friends’ and services are the new gateway to a debased notion of the social, a gateway in which there is ‘a shift of individual life to conditions in which privacy is impossible, and in which one becomes a permanent site of data-harvesting and surveillance’ (Crary 2013, p. 104). Personal information is more or less willingly given over to social media and other corporate-based websites as people are now designated consumer populations and targeted as

they move from one website to the next, across multiple screens and digital apparatuses. Mobile devices and applications now track people's locations, while Internet providers use social messaging to pry personal information from their users. As Ariel Dorfman (2014) points out, ‘social media users gladly give up their liberty and privacy, invariably for the most benevolent of platitudes and reasons’ – all the while sharing with third-party networking applications not only their online shopping choices, but also their private messages. Meanwhile, physical surveillance of individuals' movement is constant, evident in the ubiquitous presence of video cameras within virtually every public and private space – from streets, commercial establishments and workplaces to the schools our children attend as well as in the myriad scanners placed at the entry points of airports, retail stores, sporting events and so on. The acceptance of a general surveillance culture is on full display in schools that demand that students wear radio chips so they can be tracked (Whitehead 2012). Such anti-democratic projects are now also funded by billionaires like Bill Gates who push for the use of biometric bracelets to monitor students' attentiveness in classrooms (Simon 2012).

Surveillance culture undermines social individualismGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14,

http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)With the foundations of democracy under siege, privacy is no longer viewed as a principled

and cherished civil righ t. On the contrary, privacy has been absorbed and transformed within the purview of a celebrity and market-driven culture in which people publicize themselves and their innermost secrets in order to promote and advance their personal brand. Surveillance and its accompanying culture of fear produce subjects that revel in being watched, turning the practice of surveillance into just another condition for performing the self. Every human act and behaviour is now potential fodder for YouTube, Facebook or some other social network. Privacy has become a curse, an impediment that subverts the endless public display of the self. Zygmunt

Bauman (qtd. in Bauman and Lyon 2013) echoes this sentiment in arguing that: These days, it is not so much the possibility of a betrayal or violation of privacy that frightens us, but the opposite: shutting down the exits. The area of privacy turns into a site of incarceration, the owner of private space being condemned and doomed to stew in his or her own juice; forced into a condition marked by an absence of avid listeners eager to wring out and tear away the secrets from behind the ramparts of privacy, to put them on public display and make them everybody's shared property and a property everybody wishes to share. (p. 28)

AT: Surveillance Atrocities

Surveillance justifies:a. Financial exploitation and discrimination by government officials

Ernst 12 – Julia L. Ernst, Assistant Professor at the University of North Dakota School of Law, LL.M, Georgetown University, J.D., University of Michigan School of Law, B.A., Yale University, 2012 (“ARTICLE: THE CONSTITUTION IN TIMES OF NATIONAL CRISIS: CONTEXTUALIZING POST-SEPTEMBER 11CONSTITUTIONAL RAMIFICATIONS,” LexisNexis Academic, Accessed 07-02-2015)Information is power, especially in the hands of powerful officials. The patterns of misuse for political gain track those for financial gain. First, the officials might use the data in their political dealings. The data may be an inexpensive and effective form of opposition research, and give officials inside information to make them more effective in achieving their political goals. Second,

officials might use the inside information to extract concessions from the targets of surveillance, the way that J. Edgar Hoover apparently used secret files to protect his tenure in office and to influence policy debates. Third,

officials might benefit politically by sharing the data with friendly outside parties. In wiretap scandals

involving the Los Angeles police in the early 1980s, the police allegedly leaked confidential data to allies in right-wing political groups. n90 [*495] The possibility of leaks of this sort reminds us how personal data can be used to discriminate against individuals and groups. The most infamous example is likely the Nazi insistence in the 1930s that Jews give detailed reports of their financial assets . The Nazis then used these reports as part of a

systematic program to seize Jewish assets. n91 More subtly, officials might use control over detailed financial information to favor or disfavor groups in the release of sensitive political data, the administration of regulatory programs, the award of government contracts, or otherwise. As Oscar H. Gandy, Jr. has explained, the "panoptic sort" of modern information systems "is a discriminatory technology that assigns people to groups of winners and losers on the basis of countless bits of personal information that have been collected, stored, processed, and shared through an intelligent network." n92

b. Government snooping chills freedomErnst 12 – Julia L. Ernst, Assistant Professor at the University of North Dakota School of Law, LL.M, Georgetown University, J.D., University of Michigan School of Law, B.A., Yale University, 2012 (“ARTICLE: THE CONSTITUTION IN TIMES OF NATIONAL CRISIS: CONTEXTUALIZING POST-SEPTEMBER 11CONSTITUTIONAL RAMIFICATIONS,” LexisNexis Academic, Accessed 07-02-2015)In addition to financial or political gain from the data, officials might snoop in personal financial records out of prurience or mere curiosity. There have been recurring revelations that IRS employees

have gained unauthorized access to the tax returns of neighbors, celebrities, and others. n93 If officials also get complete access to the purchasing records of individuals, we might recognize the all-too-human temptation to see, for instance, precisely what was bought for a party in the home of a movie star or a prominent Senator. (And we might not be surprised if such details at least occasionally made their way into the supermarket tabloids.) This sort of potential surveillance is chilling, in at least two respects. First , it sends a chill down the spine to think that their every move is subject to this sort of examination by unknown others. Life is less free and carefree when [*496] one's every move is being tracked. Second, the surveillance may chill legitimate and desirable activity that would otherwise take place. For example, if financial records would reveal that a politician has seen a psychiatrist, and that revelation would be politically damaging, then the politician might not seek necessary medical help. As discussed above, courts in interpreting the First Amendment, have often struck down

government controls over the flow of information as "chilling" of protected speech. Similarly, government insistence on tracking personal data can also chill legitimate activities of citizens.

c. Kills government legitimacy and rule of lawErnst 12 – Julia L. Ernst, Assistant Professor at the University of North Dakota School of Law, LL.M, Georgetown University, J.D., University of Michigan School of Law, B.A., Yale University, 2012 (“ARTICLE: THE CONSTITUTION IN TIMES OF NATIONAL CRISIS: CONTEXTUALIZING POST-SEPTEMBER 11CONSTITUTIONAL RAMIFICATIONS,” LexisNexis Academic, Accessed 07-02-2015)The discussion of financial gain, political gain, and prurience assumed that officials were acting out of self-interest, pursuing their own interests rather than those of their principals, the government, and ultimately the people. Officials also might use financial data in the attempt to achieve what they believe to be good policy. An example might be an over-zealous prosecutor, who might use illegally-obtained financial information entirely in order to convict a criminal, with no thought of personal advancement. An example of this sort of behavior recently surfaced in connection with hundreds of illegal "hand offs" of wiretapped phone conversations in Los Angeles. n94 Although there is no publicly available evidence that law enforcement officials used the information for personal gain, they did violate the rules restricting government surveillance. Those rules emanated from a constitutional or political judgment that the risks to privacy from certain types of surveillance outweighed the benefits of

surveillance. When the government breaks its own privacy rules, there are privacy harms to all those, including the innocent, who were illegally put under surveillance. Citizens may lose trust in the government's general handling of personal information. More broadly, violation of the government's own rules cast doubt on the rule of law and the legitimacy of the government.

d. HackersErnst 12 – Julia L. Ernst, Assistant Professor at the University of North Dakota School of Law, LL.M, Georgetown University, J.D., University of Michigan School of Law, B.A., Yale University, 2012 (“ARTICLE: THE CONSTITUTION IN TIMES OF NATIONAL CRISIS: CONTEXTUALIZING POST-SEPTEMBER 11CONSTITUTIONAL RAMIFICATIONS,” LexisNexis Academic, Accessed 07-02-2015)In weighing the risks posed by UTPs, consider once again the difference between the impregnable vault 600 feet down and a flimsy shack housing data on the surface. Next think about the risks of disclosure when every law enforcement official in the United States has instant access to a category of information, such as arrest records, Currency Transaction Reports, or, in the future, the credit or debit card records of a criminal suspect. Among all the prosecutors, police officers, and clerks with access to such data, there will be some weak links or flimsy shacks. Some of them will seek personal or financial gain from their access to the data . UTPs will have many potential targets as they seek to find a "friendly" insider or a bribable one. Even in the absence of a friendly insider, the government computer systems may not be secure. Skilled hackers may be able to tap the pipelines from the vault to the surface. Even more likely, they may be able to penetrate the

defenses of the surface installation. The Defense Department reports hundreds of thousands of successful intrusions into military computers per year . n95 The actual damage caused by these intrusions is difficult to assess - many of the intrusions are undoubtedly done by teenagers and others who get access to part of a system but do not steal any sensitive data. The possibility of intrusions , nonetheless, is a powerful argument against allowing unlimited government access to sensitive personal information of any kind , including detailed financial information. If every law enforcement official in the country can access the data, then determined UTPs can, too.

e. Mission creepErnst 12 – Julia L. Ernst, Assistant Professor at the University of North Dakota School of Law, LL.M, Georgetown University, J.D., University of Michigan School of Law, B.A., Yale University, 2012 (“ARTICLE: THE CONSTITUTION IN TIMES OF NATIONAL CRISIS: CONTEXTUALIZING POST-SEPTEMBER 11CONSTITUTIONAL RAMIFICATIONS,” LexisNexis Academic, Accessed 07-02-2015)The uses and misuses of data evolve over time. The systems in place in one period can have a powerful effect on what systems will develop in subsequent periods. On the side of favoring government use of personal information, new uses of data may later become desirable once a system for collecting and disseminating the information is already in place. This argument is based on

the idea of economies of scale. Once the costs of the database and infrastructure are already incurred for initial purposes, then additional uses may be cost-justified that would otherwise not have been. [*498] As an example, consider the argument that tax return information should be used by government agencies other than the Internal Revenue Service, in order to reduce the risk that well-off people will fraudulently receive government benefits. The economies of scale argument would point out that costs have already been incurred in the tax system to gather and organize the tax return data. Once those expenditures have already been made, there is a low incremental expense to transfer the data to other federal agencies and perhaps to state and local welfare and other agencies. An efficiency argument can then be made that additional uses of data, such as protecting against welfare fraud, should be authorized where the costs of gathering and organizing the comprehensive tax data would not have been justified solely to protect against welfare fraud. n96 Although the economies of scale argument may be persuasive in some contexts, there are powerful counterarguments. For privacy advocates, the additional uses (and misuses) of data are examples of "mission creep," or a slippery slope down to a complete loss of privacy of highly personal information. Used in the context of the Vietnam War, mission creep refers to the risk that initial and justifiable government actions, such as collecting tax information or having a limited mission in South Vietnam, can evolve into unjustified and potentially tragic actions. If mission creep continues unchecked, tax returns might become essentially public documents. In recognition of this problem, there are federal laws restricting use of tax returns for other purposes. n97 Privacy advocates have a large and probably often justified concern about mission creep. When the Social Security Number ("SSN") was introduced during the New Deal, for instance, promises were made that it would not be used as a national ID card. n98 Over time, however, SSNs have been used for an array of new uses. A proposed rule by the Department of Transportation, pursuant to a 1996 law, would take a major step toward using SSNs as national identity numbers. The proposed rule would mandate that state driver's licenses must contain SSNs to be acceptable for a range of [*499] identification purposes, including boarding an airplane, being eligible for federal benefits, and purchasing a gun. n99 The importance of the mission creep argument is heightened by an examination of the politics of privacy issues. In other countries, privacy laws have been decisively shaped by political mobilization against relatively simple and easily-understood threats to privacy. Prominent examples are the Australian defeat of a national ID card in the 1980s n100 and the German resistance to what were perceived as intrusive census questions in 1983 and 1987. n101 A 1996 law in the United States to create a national medical ID card similarly has met with significant opposition, and the Clinton Administration has stated that it will oppose implementation of such a card, until and unless broad new medical privacy legislation is enacted. n102 In short, there is evidence that the political system may protect privacy relatively robustly when the issue is considered at the threshold, on the up-or-down question of whether an identification card should be created or some other surveillance project put into place. By contrast, a detailed and persuasive report on the American experience shows how difficult it has been for privacy advocates to succeed legislatively in the last two decades on less visible and more complicated privacy issues. n103 If the government (or private sector) already has fifteen uses for a category of data, it may be impossible politically to stop the sixteenth or seventeenth uses, even where those additional uses would never have been approved at the time the data collection system was first instituted. n104 [*500] The historical examples of mission creep and the political history of privacy legislation return us to the "privacy paradox" discussed in the Introduction to this Article. The paradox suggested that, in the long term and taking a broad view, most people are concerned about invasions of privacy that might result from government access to sensitive financial and other records. But in the short

term, when particular uses of data are at stake, the political system and many people prefer to let the information be used rather than to uphold privacy value s. The discussion here of the public choice of privacy legislation suggests important arguments for being cautious about expanding the government's access to personal information .

Impact: War/Collapse

Lack of privacy causes nations to escalate to war or collapseJourard 66(Sidney M., Influential humanistic psychologist specialized in self-disclosure, author of The Transparent Self, created the Self-Disclosure Theory, “Some Psychological Aspects of Privacy”, Spring 1966, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3110&context=lcp, kc)

As society becomes more fully urbanized and institutionalized there are fewer and fewer such private places where a person can simply ‘ be’ rather than ‘ be respectable’ . It appears that it is only the intoxicated or the crazy ones living in locked wards who can be without fear of unforgiving criticism:' "They act that way because they are drunk, or mad." But with the shrinkage of free space where a person can be "off-stage," the frequency of physical breakdown and withdrawal from social roles (mental illness) may be expected to increase . Or, as often happens, an entire nation can sustain its present mode of social organization only if all pent-up tension is transmuted into aggression directed to an external enemy, in organized warfare. More than one society has avoided collapse or revolution by virtue of a well timed war.

Democracy/Tyranny

Surveillance gets sold to the public as harmless and desirablePowles 15(Julia, PhD lawyer & writer about technology law and policy, researches at Cambridge University, “We are citizens, not mere physical masses of data for harvesting;” March 11, 2015, Lexis, kc)

In her lecture Cohen outlined the deal we have struck with the "surveillance-innovation complex", involving a deeply worrying complicity between state and private actors - "a mutually satisfactory game of regulatory arbitrage".¶ Cohen describes how today's information merchants have exploited a narrative valorising "openness" and "participation ", through the particular form of voluntary, public and perpetual sharing of personal information with platforms. This has been the driving factor, she argues, in normalising "a distinctly

Western, democratic type of surveillance society, in which surveillance is conceptualised first and foremost as a matter of efficiency and convenience".¶ Cohen is unapologetic in countering the standard internet preoccupation with totalitarian states and their censorial ambitions, with the experience of Hollywood moguls, who have, over the past two decades, achieved a deep and seemingly permanent rearrangement of information flows, subject to loosely-overseen (and often overreaching) copyright law.¶ Similarly, she is to the point about the symbiosis between state and private actors on surveillance, or about the way that intermediaries structurally enable harassment that reflects and reproduces traditional hierarchies of power. With reference to scandals such as Gamergate and other instances of hate speech and discrimination online, she argues that those who adopt a position of neutrality fail to protect the vulnerable.

Surveillance lends itself to totalitarianism- destroys democracy. Borland 7(John, Journalist at WIRED and CNET, “Maybe Surveillance Is Bad, After All”, 08/08/07, http://www.wired.com/2007/08/maybe-surveilla/, kc)As or more disturbing may be the political implications of having a surveillance infrastructure in place.¶ Many philosophers reject the notion that given technologies are inherently politically neutral , Gaycken said. Surveillance, for example, can be used to support democratic values of freedom, equality, and state neutrality – but its tendency to create a watched and a watching class lends itself better to totalitarianism. In a country such as Germany, which has seen democracy slide into the Nazi state, such a warning resonates strongly.¶ " Surveillance stabilizes totalitarianism, and destabilizes democracy, " Gaycken warned.

Surveillance state provides the tools to stifle democracyGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)

It is worth repeating that Orwell's vision of surveillance and the totalitarian state looks tame next to the emergence of a corporate–private–state surveillance system that wants to tap into every conceivable mode of communication, collect endless amounts of metadata to be banked in vast intelligence storage sites around the country and then use that data to repress any vestige of dissent (Schneier 2013). Phone calls, emails, social networks and almost every other vestige of electronic communication are now being collected and stored by corporate and government organizations such as the NSA and other intelligence agencies. Snowden's exposure of the massive reach of the surveillance state with its biosensors, scanners, face-recognition technologies, miniature drones, high-speed computers, massive data-mining capabilities and other stealth technologies made visible ‘the stark realities of disappearing privacy and diminishing liberties’ (Epstein 2013).

Mass surveillance “war on terror” allows the government to exploit social societyGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)What is clear is that this combination of gathering and sharing information often results in a lethal mix of anti-democratic practices in which surveillance now extends not only to potential saboteurs, but also to all law-abiding citizens . Indeed, the political identity of citizens within a democracy collapses in the presence of new digital technologies with optical scanners that are capable of reducing everybody to mere physical objects of state control . Rather than being defined through one's relations to others and the larger society, citizens are defined increasingly under regimes of surveillance through an amalgam of unlimited biometric information including fingerprints, retina scans, genetic codes and other biological data assembled from technologies once ‘conceived for criminals’ (Agamben 2014). Giorgio Agamben (2014) argues that in a post-9/11 world, ‘ biological identity’ takes primacy over political identity and ‘the unspoken principle which rules our society can be stated like this: every

citizen is a potential terrorist’ . The war on terrorism has become a war of terror turning every social space into a war zone and every member of society into a suspect.

The federal government encourages domestic terrorism to feed authoritarian regimesGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)

Public outrage seems to disappear, with few exceptions, as the state and its corporate allies do little to protect privacy rights, civil liberties and a culture of critical exchange and dissent .

Even worse than shutting down a culture of questioning, the state embraces forms of

domestic terrorism. Violence in this case becomes the preferred antidote to the demanding work of reflection, analysis, dialogue and imagining the points of views of others. The war against dissent waged by secret counter-intelligence agencies is a mode of domestic terrorism in which, as Graeber (2012) has put it, violence has become ‘the preferred weapon of the stupid’ (pp.

116–17). Within this sinister web of secrecy, suspicion, state-sanctioned violence and illegality, the culture of authoritarianism thrive s and poses a dangerous threat to democratic freedoms and rights. It also poses a threat to those outside the USA who in the name of national security are subject to ‘a grand international campaign with drones and special operations forces that is generating potential terrorists at every step’

(Chomsky 2013). Behind this veil of concentrated power and secrecy lies not only a threat to

privacy rights, but the very real threat of violence on both a domestic and global level .

The loss of privacy in democratic nations like the US allows the state to regulate people within the most intimate spaces of private life exceeding anything envisioned in 1984 Giroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-19-2015)It has become increasingly clear that Orwell's representation of the modern state founded on a democratic ideal rooted in the right to privacy has been transformed and mutilated almost beyond recognition. Just as Orwell's fable has morphed over time from a ‘realistic novel’ into a ‘real-life documentary’, and

now into a form of ‘reality TV’, privacy has been radically altered in an age of permanent, non-stop global exchange and circulation. No one, it seems, can escape the global reach of the spy agencies that are scouring mobile phone apps for personal data and intercepting computer and cell phone shipments in order to plant tracking devices and malware into them (Glanz et al. 2014). In this way,

borders no longer provide an obstacle to collecting information and spying on governments, individuals, prominent politicians, corporations and pro-democracy protest groups. Under neoliberalism, it has become clear that every space – both public and private – is now

enclosed within the purview of an authoritarian society that attempts to govern the entirety

of social life.

Tech advances make surveillance power hierarchies spillover to culture Giroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth

in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-21-2015)Today, intelligence agencies still operate on the assumption that most individuals unknowingly turn their private lives over to the spying state and corporations. Accordingly, they work hard to appropriate new technologies to serve the interests of a turnkey authoritarian state in which the ‘electronic self’ becomes state property. Rather than defending the public against corporate interests, these agencies encourage lawlessness and use corporate data-mining tactics for their own ends . As Jonathan Schell ( 2013 ) points out, everything that moves is now monitored, along with information that is endlessly amassed and stored by both private and government agencies: Thanks to Snowden, we also know that unknown volumes of like information are being extracted information from Internet and computer companies, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. The first thing to note about these data is that a mere generation ago, they did not exist. They are a new power in our midst, flowing from new technology, waiting to be picked up; and power, as always, creates temptation, especially for the already powerful . Our cellphones track our whereabouts. Our communications pass through centralized servers and are saved and kept for a potential eternity in storage banks, from which they can be recovered and examined. Our purchases and contacts and illnesses and entertainments are tracked and agglomerated. If we are arrested, even our DNA can be taken and stored by the state. Today, alongside each one of us, there exists a second, electronic self, created in part by us, in part by others. This other self has become de facto public property, owned chiefly by immense data-crunching corporations, which use it for commercial purposes. Now government is reaching its hand into those corporations for its own purposes , creating a brand-new domain of the state-corporate complex. The details of our daily lives are now not only on full display, but are also being monitored, collected and stored in data banks waiting to be used for commercial, security or political purposes. What is represented so grippingly in Orwell's text – and remains relevant for us today – is how authoritarianism in its contemporary manifestations no longer depends on raw displays of power, but instead has become omniscient in a regime of suppression and surveillance in which the most cherished notions of agency collapse into unabashed narcissistic exhibitions and confessions of the self. Surveillance feeds on the titillating elements of fear and self-delusion in the interests of producing particular subjects, modes of identification and desires that accept the security state as an overarching power legitimized by a state of exception that is comparable to an unending militarized tyranny (Hardt and Negri 2012).

Serving as willing fodder for the spying state, the self under such conditions becomes not simply the object of surveillance, but a participant and subject in surveillance culture . But Orwell's 1984 looks subdued next to the current parameters, intrusions, technologies and disciplinary apparatuses wielded by the new corporate–government surveillance state . Surveillance has not only become more pervasive , intruding into the most private of spaces and activities in order to collect massive amounts of data, it also permeates and inhabits everyday activities so as to be taken for granted. Surveillance is not everywhere, but its presence has become normalized . Orwell could not have imagined either the intrusive capabilities of the new high-powered digital technologies of surveillance and display, nor could he have envisioned the growing web of political, cultural and economic partnerships between modes of government and corporate sovereignty capable of collecting almost every form of communication in which human beings engage. What is also new in the post-Orwellian world – beyond the powerful technologies used by governments and corporations to spy on people and assess personal information as a way to either attract ready-made customers or sell information to advertising agencies – is the emergence of a widespread regime of surveillance. Intelligence networks now inhabit the world of major corporations such as Disney and the Bank of America as well as the secret domains of the NSA, FBI and 15 other intelligence agencies. As Edward Snowden's revelations about the prism programme made clear, the NSA also

collected personal data from all of the major high-tech giant service providers who according to a senior lawyer for the NSA ‘were fully aware of the surveillance agency's widespread collection of data’ (Ackerman 2014).

Growing surveillance culture undermines the meaning of democracy as a collective ethos and suggests democratic institutions of culture and governance are a wasteGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-22-2015)Yet, the neoliberal authoritarian culture of modernity has also created a social order in which participation in surveillance culture becomes self-generated, aided by a public pedagogy produced and circulated through a machinery of consumption that encourages transforming dreams into data bits. Such bits then move from the sphere of entertainment to the deadly serious and integrated spheres of capital accumulation and policing as they are collected and sold to business and government agencies who track the populace either for commercial purposes or out of fear of a possible threat to established institutions of power. Modernity in this instance has been updated, wired and militarized . The surveillance state with its

immense data-mining capabilities represents a historical rupture from the foundational principles of modernity, with its emphasis on enlightenment, reason and the ideals of justice, equality, freedom and democracy – however flawed. Investment in public goods was once seen as central to a social contract that asserted all citizens should have access to those provisions, resources, institutions and benefits that expanded their sense of agency and social responsibility. But modernity is now driven by the imperatives of a savage neoliberal political and economic system that embrace what Charles Derber and June Sekera (2014) call a ‘public goods deficit’ in which ‘budgetary priorities’ are relentlessly pushed so as to hollow out the welfare state and drastically reduce social provisions as part of a larger neoliberal counter-revolution to lower the taxes of the rich and mega-corporations while selling off public good to private interests. Debates about the meaning and purpose of the public and social good have been co-opted by a politics of fear, relegating notions of the civic good, public sphere and even the very word ‘public’ to the status of a liability, if not a pathology (Cruz 2012, p.

58). The new modernity and its expanding surveillance net subordinates human needs, public goods and justice to the demands of security and commerce – working in tandem to promote the accumulation of capital at all costs. Fear has lost its social connotations and no longer references fear of social

deprivations such as poverty, homelessness, lack of health care and other fundamental conditions of agency. Fear is now personalized, reduced to an atomized fear that revolves around crime, safety, apocalypse and survival. In this instance, as the late Harvard economist John Kenneth Galbraith once warned, modernity now privileges ‘a disgraceful combination of “private opulence and public squalor”’ (qtd. in Derber and Sekera2014). This is not surprising given the basic elements of neoliberal policy, which as Jeremy Gilbert (2013) indicates, include the: privatization of public assets, contraction and centralization of democratic institutions, deregulation of labor markets, reductions in progressive taxation, restrictions on labor organization, labor market deregulation, active encouragement of competitive and entrepreneurial modes of relation across the public and commercial sectors. (pp. 11–12)

Individual rights/Autonomy

Privacy is the top priority – it’s a gateway right that shapes individual autonomy.

PoKempner ‘14Dinah PoKempner is general counsel of Human Rights Watch. Her work has taken her to Cambodia, the Republic of Korea, Vietnam, former Yugoslavia and elsewhere in documenting and analyzing compliance with international humanitarian law, war crimes and violations of civil and political rights. She has written on freedom of expression, peace-keeping operations, international tribunals, U.N. human rights mechanisms, cyber-liberties and security, and refugee law among other human rights topics, and oversees the organization’s positions on international law and policy. A graduate of Yale and Columbia University School of Law and a member of the Council on Foreign Relations, Ms. PoKempner also teaches at Columbia University. “World Report 2014” - World Report 2014 is Human Rights Watch’s 24th annual review of human rights practices around the globe. It summarizes key human rights issues in more than 90 countries and territories worldwide, drawing on events through November 2013. Human Rights Watch is an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all. http://www.hrw.org/world-report/2014In a world where we share our lives on social media and trade immense amounts of personal information for the ease and convenience of online living,

some have questioned whether privacy is a relevant concept. It is not just relevant, but crucial. Indeed,

privacy is a gateway right that affects our ability to exercise almost every other right , not least our freedom to speak and associate with those we choose, make political choices, practice our

religious beliefs, seek medical help, access education, figure out whom we love, and create our family life. It is nothing less than the shelter in which we work out what we think and who we are; a fulcrum of our autonomy as individuals.

Privacy is vital to autonomy and protecting independent thought.PoKempner ‘14Dinah PoKempner is general counsel of Human Rights Watch. Her work has taken her to Cambodia, the Republic of Korea, Vietnam, former Yugoslavia and elsewhere in documenting and analyzing compliance with international humanitarian law, war crimes and violations of civil and political rights. She has written on freedom of expression, peace-keeping operations, international tribunals, U.N. human rights mechanisms, cyber-liberties and security, and refugee law among other human rights topics, and oversees the organization’s positions on international law and policy. A graduate of Yale and Columbia University School of Law and a member of the Council on Foreign Relations, Ms. PoKempner also teaches at Columbia University. “World Report 2014” - World Report 2014 is Human Rights Watch’s 24th annual review of human rights practices around the globe. It summarizes key human rights issues in more than 90 countries and territories worldwide, drawing on events through November 2013. Human Rights Watch is an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all. http://www.hrw.org/world-report/2014Some argue we must simply live with the reality of pervasive online surveillance, and that public expectation of privacy has eroded. But this is neither accurate nor dispositive. Our understanding of

privacy has in fact grown far beyond “a right to be left alone” into a right of personal self-

determination , embracing the right to choose whom we share our personal details with and what identity we project to various communities. When applied to the digital world, privacy gives us some

boundaries against unwanted monitors, and with it the essential freedom for personal development and independent thought.

Surveillance entrenches neoliberalism

Surveillance entrenches capitalism, securitization, and commodification that destroy the public sphereGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-21-2015)It appears a moment has been reached when willful amnesia has taken hold of the larger culture, allowing privacy to be recklessly redefined through the material and ideological registers of a neoliberal order that seeks to unleash casino capitalism's unending desire to turn every relationship into an act of commerce and to make all aspects of daily life visible and subject to market forces. Formerly defended as a key democratic principle that ensures citizens' autonomy from the state, the right to privacy has now been reduced to the right to participate,

anonymously or otherwise, in the seductions of a narcissistic consumer culture. Inhabiting such a zone of historical amnesia means relative indifference to exposing formerly private spheres to data mining and

manipulation , while the concept of privacy itself all but expires under a ‘broad set of panoptic practices’ (Crary 2013, p. 16). When culture loses its power as the bearer of public memory, it produces a social order in which the worst excesses of capitalism are left unchecked and a consumerist ethic ‘makes impossible any shared recognition of common interests or goals’ (Crary 2013, p. 22). In such a world devoid of care, compassion and protection, privacy is no longer connected and resuscitated through its connection to public life, the common good or a vulnerability born of the recognition of the frailty of human life. When individuals succumb to this insidious cultural shift in their daily lives with relative indifference, there is little to prevent widespread collective apathy to the growth of surveillance culture . With surveillance now a growing feature of daily life, it necessitates analysis of a broader regime of surveillance, rather than addressing exclusively the violations committed by the corporate–surveillance state. This is because the surveillance state not only listens, watches and gathers massive amounts of information through data mining, allegedly for the purpose of identifying ‘security threats’, but also supports policies that acculturate the public into accepting the intrusion of

surveillance technologies and privatized, commodified values into all aspects of their lives. In

other words, the most dangerous repercussions of a near total loss of privacy involve more than the unwarranted collecting of information by the government. We must also be attentive to the ways in which being spied on has become not only normalized, but even enticing , as corporations up the pleasurable quotient for consumers who use the new digital technologies and social networks – not least of all by simulating experiences of community. The state and corporate cultural apparatuses now collude to socialize everyone – and perhaps most especially young people – into a regime of security and commodification in which their

identities, values and desires are inextricably tied to a culture of commodified addictions, self-help and social indifference.

Privacy is now associated with secrecy – justifies surveillance and normalizes abusive government practicesGiroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)Privacy has mostly become synonymous with a form of self-generated, non-stop performance – a type of public relations in which privacy is valued only for the way it makes possible the unearthing of secrets, a cult of commodified confessionals and an infusion of narcissistic, self-referencing narratives. All of these activities indirectly serve to expand the pleasure quotient of surveillance, while normalizing practices and modes of repression that Orwell could never have imagined. Where Orwell's characters loathed the intrusion of surveillance, today: We seem to experience no joy in having secrets, unless they are the kinds of secrets likely to enhance our egos by attracting the attention of researchers and editors of TV talk shows, tabloid front pages and

the … covers of glossy magazines …. Everything private is now done, potentially, in public – and is potentially available for public consumption; and remains available for the duration, till the end of time, as the internet ‘can't be made to forget’ anything once recorded on any of its innumerable servers. This erosion of anonymity is a product of pervasive social media services, cheap cell phone cameras, free photo and video Web hosts, and perhaps most important of all, a change in people's views about what ought to be public and what ought to be private.

(Bauman and Lyons2013, p. 33) The loss of privacy, anonymity and confidentiality has had the adverse effect of providing the basis for what Zygmunt Bauman and David Lyons (2013, pp. 13–14) call the undemocratic process of ‘ social sorting ’ in which different populations are subject to differential treatment, whether this means being protected by the state or being subjected to state power. This security regime works against a growing number of individuals and groups, ranging from immigrants and low-income minorities to the chronically unemployed who are considered disposable. Precarity, mobility, flexibility and deregulation all function to disempower large segments of the population who now have to be controlled, if not contained. No longer content to play out its historical role of a modernized panopticon , the

modern state has become a militarized and multilayered source of insecurity, entertainment

and commerce . In addition, this new stage of modernity is driven not only by the need to

watch, but also the will to punish. Under the regime of neoliberal capitalism, the expansion

of government and corporate surveillance measures become synonymous with new forms of

antidemocratic governance and an intensification of material and symbolic violence (Gitlin 2013,

Ferguson et al. 2013). The dynamic of neoliberal modernity, the homogenizing force of the market, a growing regime of repression , and an emerging police state have produced more

sophisticated methods for surveillance and the mass suppression of the most essential tools for dissent and democratic action: ‘the press, political activists, civil rights advocates and conscientious insiders who blow the whistle on corporate malfeasance and government abuse’ (Karlin 2013). Fear, harassment, the crushing of dissent and mass incarceration become

part of a zombie politics in which the machineries of death expand their reach in order to justify a whole new range of injustices and an accompanying culture of cruelty .

The government manipulates history to justify atrocities Giroux 14 – Henry A. Giroux, scholar and holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and the Paulo Freire Chair in Critical Pedagogy at Ryerson University in Toronto, author of Youth in Revolt: Reclaiming a Democratic Future, etc., 2014 (“Totalitarian Paranoia in the Post-Orwellian Surveillance State,” Taylor & Francis Online, May 14, http://www.tandfonline.com/doi/full/10.1080/09502386.2014.917118, Accessed 06-23-2015)Issued as an official response to Snowden, Obama's January 2014 speech on reforms to the NSA serves as a text that not only demands close reading, but also becomes a model illustrating how history

can be manipulated to legitimate the worst violations of privacy and civil rights , if not state- and corporate-based forms of violence. In the speech, Obama uses a reference to Paul Revere and the Sons of

Liberty in order to highlight surveillance as a noble ideal marshalled in the interest of freedom. He thereby provides a historical rationale for the emergence of the massive spying behemoths such as the NSA that now threaten the fabric of US democracy, not just terrorists. Of course, what Obama leaves out is that Paul Revere and his accomplices acted ‘to curtail government power as the main threat to freedom’ (Scheer 2014). Obama provides a sanitized reference to history in order to bleach the surveillance state both of its criminal past and its expansionist ambitions and to convince the American public that, as Michael Ratner ( 2014 ) states, ‘Orwellian surveillance is somehow patriotic’. Other politicians, such as Representative Mike Ford and Senator Dianne Feinstein, are more than willing to label anyone exercising free speech, including legitimate whistleblowers, as traitors, while keeping silent when high-ranking government officials distort the truth, such as when James Clapper Jr., the Director of National Security, lied to a Senate Intelligence Committee.

Obama's appeal to the American people to trust those in the highest positions of government and submit to corporate dominance regarding the use of the mammoth power of the surveillance state makes a mockery out of the legitimate uses of such power, any vestige of critical thought and historical memory. The USA has been lying to its people for over 50 years, and such lies extend from falsifying the reasons for going to war with Vietnam and Iraq to selling arms to Iran in order to fund the reactionary Nicaraguan Contras. Why should anyone trust a government that has condoned torture, spied on at least 35 world leaders, supports indefinite detention, places bugs in thousands of computers all over the world, kills innocent people with drone attacks, enlists the post office to log mail for law enforcement agencies and arbitrarily authorizes targeted assassinations? (Turley 2012, Ball 2013, Nixon 2013, New York Times 2014). Or, for that matter, why should Americans trust a President who instituted the Insider Threat Program, which was designed to get government employees to spy on each other and ‘turn themselves and others in for failing to report breaches’ (Taylor and Landay 2013), which includes ‘any unauthorized disclosure of anything, not just classified materials’? (RazFx Pro 2013).

Hurts Innovation

Intellectual privacy infringements threaten innovation. Rosen 15(Jeffrey, professor of law at The George Washington University and the legal affairs editor of The New Republic, B.A., Harvard University; B.A., Oxford University; J.D., Yale University, “Free speech and privacy in conflict”, March 22, 2015, Lexis, kc)

Richards usefully synthesizes Brandeis's ideas about the importance of freedom of thought into what he calls a "theory of intellectual privacy." Until recently, Richards notes, it was hard for the state to monitor our thoughts in ways that threatened the generation of ideas . But in the Internet age, intellectual surveillance is ubiquitous, cheap and efficient . Accordingly, he argues, the Supreme Court should reconsider doctrines in constitutional law that threaten intellectual privacy and inhibit the

production of new and possibly heretical ideas .¶ Richards's channeling of Brandeis on intellectual privacy

provides invaluable guidance for citizens and judges as they wrestle with questions involving privacy and free speech today. The Supreme Court has yet to resolve whether ubiquitous surveillance that tracks our movements in public violates the Fourth Amendment's objection to unreasonable search and seizure , even if the surveillance doesn't involve physical trespass by government officials. Brandeis would have had no hesitation in saying yes. By menacing our freedom of thought, ubiquitous surveillance poses a threat to self-government.

Surveillance kills business info tracking

Broad surveillance hurts businesses – public perceives data tracking as toxicBruinius 13(Harry, Staff writer, “Why tech giants are now uniting against US surveillance”, December 9, 2013, Lexis, kc)The corporate giants of technology are urging the US government to change its surveillance ways - and leading the way are the primary architects of the social networks now generating a distinctly modern mingling of commerce, selfies, and status updates.¶ On Monday, a coalition of eight companies , including Facebook, Google, and Microsoft, sent an open letter to President Obama and members of Congress , urging them to comply with "established global norms of free expression and privacy." It all but demanded the government work to ensure that all law enforcement and intelligence efforts "are rule-bound, narrowly tailored, transparent, and subject to oversight."¶ The missive suggests that these companies , which were joined by Linkedin, Twitter, and Yahoo, have perceived government surveillance worldwide as a looming threat to the life-blood of their business . Leaks by former National Security Agency contractor Edward Snowden have threatened to confirm customers' worst fears about an industry that relies on monitoring and tracking the behavior of its customers - and convincing them that this kind of corporate surveillance is beneficial.¶ "That's part of their dangerous dance now, since the near-term economic future for all those companies , every single one of them, rests on being able to track and exploit consumer data on the Internet ," says Aram Sinnreich, a digital privacy expert and professor at Rutgers University School of Communication and Information in New Brunswick, N.J. "They're not going to be able to do that if the idea of tracking has become so toxic - thanks to this pervasive government surveillance - that consumers may not be willing to abide it in a commercial context."

Surveillance has become the norm – we are desensitized to encroachments

Alt cause to lack of privacy- the Internet has changed expectations of privacy.Wallman 5(Kathleen, Visiting Research Professor, Georgetown University, former Deputy Assistant to the President for Economic Policy and Counselor and Chief of Staff to the National Economic Council, Deputy Counsel to the President, Chief, J.D., Georgetown University Law Center, “The Tension Between Privacy and Security: An Analysis Based on Coase and Pigou”, Spring, 2005, Lewis, kc)The practical protections of privacy are less well defined and shift with available technology . The most honored and hermetically sealed way of protecting privacy is not to tell anyone, and to make no record of the information for which privacy is sought. At least until means are invented to discover the thoughts in an individual's head, this method is reasonably likely to maintain privacy.¶ But once the information is outside the individual's own head, the gamble begins. Telling someone else a "private" fact compromises its privacy as a practical matter since that confidant may breach trust and tell others. But the extent to which privacy is compromised as a legal matter may depend crucially upon the role of the confidant. Privileges such as the physician-patient privilege and the attorney-client privilege shield disclosures in these contexts from official discovery through legal compulsion. The privilege of the confessional shields the penitent's admissions from discovery. But these privileges are heavily qualified by exceptions and, as developed below, are even more heavily qualified in the post-September 11 environment.¶ A written record of a private fact raises the stakes even higher. Some such written records are made at the option of the individual for whom the fact at issue is private, such as the now famous diary of former Senator Bob Packwood, or the equally famous diary of Joshua Steiner, Treasury aide during the Clinton Administration. n11 Such private writings, in both cases, became the subject of official inquiry when the "right question" popped up during the course of interviews or depositions.¶ Technological developments further challenge privacy. Surveillance cameras , once so novel in the United States that a special deployment of them at a Superbowl

game caused controversy, are now commonplace in urban areas . n12 They have long been a fact of life in other countries such as Great Britain. Satellite photographic surveillance , once the exclusive purview of sovereign entities that could afford to launch and maintain the equipment, is now in the public domain. n13

The age of surveillance is posing huge threats to privacy – justifies abuse and discriminationRichards 13 – Neil M. Richards, Professor of Law at Washington University in St. Louis who teaches about the law of privacy, the Internet, and civil liberties like freedom of speech, author of the book “Intellectual Privacy,” published by Oxford University Press, consultant for companies, law firms, and individuals on issues including information privacy law, data ethics, and appellate litigation in privacy, free speech, and intellectual property cases, May 20, 2013 (“The Dangers of Surveillance,” Harvard Law Review, Accessed 07-02-2015)From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it � �matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated

to the realms of science fiction and failed totalitarian states. But these warnings are no longer science fiction.

The digital technologies that have revolutionized our daily lives have also created minutely

detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases, and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, finding that the respondents’ claim that their communications were likely being monitored was “too speculative.” But � the important point is that our society lacks an understanding of why (and when) government surveillance is harmful.

Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I offer an account of what those harms are and why they matter. I will move beyond the vagueness of �current theories of surveillance to articulate a more coherent understanding and a more workable approach. At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state over-sight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic �between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance. At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public/private divide. Public and private surveillance are simply related parts of the same problem, rather than wholly discrete. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize thatsecret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process before it is authorized. We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

AT: Balance of Powers Checks Abuse

No separation of powers—can’t check abuse by government personnelMcGreal 7 – Paul E. McGreal, Professor of Law at the Southern Illinois University School of Law, Fall 2007 (“ESSAY: Counteracting Ambition: Applying Corporate Compliance and Ethics to the Separation of Powers Concerns with Domestic Surveillance,” LexisNexis Academic, Accessed 07-02-2015)n69 And like data collected by private firms, the government's data will be vulnerable to abuse or attack. n70 Data could be improperly disclosed, either through inadvertence or misconduct of government personnel who handle the data, or through the wrongful acts of those who obtain unauthorized access to the data. n71 Disclosure can cause harm through either embarrassment or the subsequent misuse of the information (for example, identity theft or blackmail). n72 Also, the data could be abused by those with authorized access, n73 as when the government targets its political opponents. n74 And even legitimate use of the data can lead to false positives, such as when an innocent person is mistakenly identified as a terrorist target. n75 The threats posed by domestic surveillance raise serious separation of powers concerns. Recall that when liberty is at issue, n76 first principles counsel that the federal courts should play some role in checking abuses of government power. Here, the judiciary must play some role checking [*1584] the abuses posed by data collection, analysis, and storage.

Programs and courts don’t check – a lack of understanding means they default to what the government tells themMcGreal 7 – Paul E. McGreal, Professor of Law at the Southern Illinois University School of Law, Fall 2007 (“ESSAY: Counteracting Ambition: Applying Corporate Compliance and Ethics to the Separation of Powers Concerns with Domestic Surveillance,” LexisNexis Academic, Accessed 07-02-2015)The remaining question is whether corporate compliance and ethics measures ought to be a safe harbor or a constitutional requirement. Here, Justice Jackson's admonition looms large: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." n170 This counsels a safe harbor approach for three reasons. First, while corporate compliance and ethics programs have proven effective at checking private misconduct, they may not be the only (or even best) measure for checking abuse of government power. Consequently, this Essay's modest proposal ought to proceed modestly,

recognizing the inherent limits of human knowledge. n171 Second, even a safe harbor provides the powerful incentive of a specific outcome - here, constitutionality - whereas alternative measures offer uncertainty. Further, this safe harbor holds the benefit of identifiable criteria that provide concrete guidance for government action. In designing and implementing a compliance and ethics program to protect citizen [*1602] data, the federal government can benchmark against private entities that must perform the same tasks for private customer data. n172 Indeed, in some instances the federal government will be analyzing data obtained from private databases that are themselves legally required to have data security compliance and ethics programs. n173 Third, judges will be more timid in identifying and applying compliance and ethics principles if doing so poses a constitutional bar to government action.

As Judge Posner has written: Judges, knowing little about the needs of national security, are unlikely to oppose their own judgment to that of the executive branch, which is responsible for the defense of the nation. They are especially unlikely to interpose constitutional objections because of the difficulty of amending the Constitution to correct judicial error. n174

Neg

Surveillance Good

Surveillance outweighs and privacy violations are overstretched post-Snowden – solves security threatsGallington 13 -- (Daniel J. Gallington, senior policy and program adviser at the George C. Marshall Institute in Arlington VA, served in senior national policy positions in the Office of the Secretary of Defense, the Department of ?Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence, “The Case for Internet Surveillance,” US News, http://www.usnews.com/opinion/blogs/world-report/2013/09/18/internet-surveillance-is-a-necessary-part-of-national-security, Accessed 07-02-15)If the answer to these questions continues to be yes – and it most likely is – then the recent public debate brought on by Edward Snowden's disclosures is far more mundane, and far less sensational than the media would perhaps like it to be. Also In that case, the real issue set boils down to the following set of key questions, best answered by our Congress – specifically the Intelligence committees working with some other key committees – after a searching inquiry and a series of hearings, as many of them open as possible. Were the established and relevant laws, regulations and procedures complied with? Are the established laws, regulations and procedures up to date for current Internet and other technologies? Is there reason to add new laws, regulations and procedures? Is there a continued requirement – based on public safety – to be able to do intrusive surveillance, including Internet surveillance, against spies, terrorists or criminals? In sum, the idea that we have somehow "betrayed" or "subverted" the Internet (or the telephone for that matter) is – as my mom also used to say – " just plain silly ." Such kinds of inaccurate statements are emotional and intended mostly for an audience with preconceived opinions or that hasn't thought very hard about the dangerous consequences of an Internet totally immune from

surveillance . In fact, it seems time for far less sensationalism – primarily by the media – and far more objectivity. In the final analysis, my mom probably had it right: "Those kind of people, sure".

Efficiency gains from surveillance outweighSwire 99 – Peter P. Swire, Chief Counselor for Privacy—United States Office of Management and Budget, Professor at the Ohio State University College of Law, 1999 (“F. Hodge O'Neal Corporate and Securities Law Symposium: The Modernization of Financial Services Legislation: Article: Financial Privacy and The Theory of High-Tech Government Surveillance,” LexisNexis Academic, Accessed 06-29-2015)In discussing the advantages of allowing flows of financial data to government, the focus has been on preventing or prosecuting illegal behavior. Greater information flows can restrict money laundering, help track deadbeat parents who fail to pay child support, and otherwise reduce the harms to society that inefficient surveillance permit s. An even more general

rationale, however, often exists for providing information to the government - efficiency . Free flows of information, in both the public and private sector, can lead to a variety of efficiency gains. Think, for example, of the burden of filling out government paperwork. Suppose that in an electronic future an individual would never have to provide information more than once to any government. In this technocratic utopia, the record would be entered once and then be available automatically for all authorized uses. With this efficiency in assembling and matching data, there would be far less burden on individuals who wish to apply for government benefits, enter into a contract with any government unit, file a report in connection with environmental or other regulatory programs, or otherwise transfer information to the government. Better coordination might also be possible between governments at the local, state, national, and even international levels. In the private sector, free flows of financial data also create

efficiency gains. From a seller's point of view, detailed information about the buyer allows more efficient provision of goods and services. Detailed information permits "one-to-one" marketing, so buyers get precisely what they most value, and so sellers can avoid unwanted inventory and can produce exactly what buyers want. n87 Ever-expanding computing power and the growth of the Internet mean that the costs of assembling, processing, and communicating personal data continue to fall rapidly. As the private sector develops new means for processing personal information, the information also becomes potentially available to the government. [*493] In the area of information processing, the public and private sectors are linked more closely than is often realized. Any data in private hands are only a subpoena away from the government. The efficiency gains in the private sector mean efficiency gains for law enforcement and the government more generally.

AT: Privilege/Discrimination and Surveillance

Bulk collection is better than targeted searches- uses an objective approach instead of racial profiling.Jamali 6-1(Naveed, Former American spy in Russia and technology manager in the US Navy, “What if Rand Paul were Muslim? The white, privileged assumptions behind his Patriot Act “principles””, June 1, 2015, http://www.salon.com/2015/06/01/what_if_rand_paul_were_muslim_the_white_privileged_assumptions_behind_his_patriot_act_principles/, kc)

Ancestry bias, which is not confined to Russian intelligence operatives but is widespread, makes me a staunch supporter of any method or system that brings an objective approach to identifying potential spies and terrorists. As an intelligence professional I’ve been taught to be aware of my natural bias when analyzing information. I’ve been encouraged to not draw conclusions first and then look for information to support a claim, but, rather, to let the information dictate the conclusion. Which is why I have no qualms about taking a wide-net, mass-data approach rather than selectively profiling based on background or heritage. I see no point in removing a powerful tool that encourages an evidence-based approach to intelligence gathering . ¶ Perhaps to those like Sen. Rand Paul who’ve never had to fight assumptions based on one’s ethnicity or the color of one’s skin, the thought of cell phone data being pooled and analyzed is disconcerting . However, as someone who regularly puts up with extra scrutiny , whether

it’s at an airport or a shopping mall, I welcome the leveling of the playing field that bulk data collection brings. I urge our governmen t not to follow the Russian method of profiling, but, instead, to use bulk data collection to arrive at objective analyses.

AT: Psychological

Surveillance leads to more accountability- people become more willing to help othersPlaue 12(Noah, Agency Strategist at Google, Business Insider Contributor, “Surveillance Cameras Reverse The 'Bystander Effect'”, June 25, 2012, http://www.businessinsider.com/surveillance-cameras-in-cities-reverse-bystander-effect-2012-6, kc)Surveillance cameras may not necessarily deter crime, but they do influence how we respond to people in distress. ¶ New research from VU University Amsterdam shows that when there are cameras around, people are more likely to assist strangers in need of help , reports The Atlantic Cities' Eric Jaffe.¶ The report seeks to reverse the "bystander effect," where people are more likely to ignore needy individuals when others are around because they feel they can defer responsibility .¶ For the study, Marco Van Bommel and his team created a fake online support forum where subjects were asked to respond to posts about severe emotional distress. When the participants thought they were being watched by a webcam, they were significantly more likely to offer support to the post than when they were not. ¶ The study, which purports to be the first to consistently show a reversal in the bystander effect, comes in the wake of global reports from San Francisco to London that installing surveillance cameras in urban areas does not decrease crime.¶ However, this new research could inspire city officials across the globe to continue to pursue camera placement . ¶ The reasoning behind the results is that when we think we are being watched, we are sensitive to our own reputation and society's perception of us .

Public Perception

The public is only mildly concernedDukeman 14(Ryan, European Union Program Undergraduate Fellow at Princeton University, “Surprisingly mild reaction to NSA surveillance”, February 11, 2014, http://dailyprincetonian.com/opinion/2014/02/surprisingly-mild-reaction-to-nsa-surveillance/, kc)

One of the legacies 2013 will leave behind, as Andrea Peterson wrote recently in The Washington Post, is that it was “the year that proved your paranoid friend right.” Since January of last year, we’ve learned that the National Security Agency is collecting massive amounts of phone call metadata , emails, location information of cell phones and is even listening to Xbox Live. Shocking as this obviously was to me, as a citizen of the country of “We the People,” one founded on civil liberties, what was perhaps more shocking was how mild the reaction of many Americans was . While polls showed that a small majority of U.S. citizens opposed the NSA’s collection of phone and Internet usage data, after months of reassurances by the President that the programs would be reformed and used responsibly, the numbers seem to have changed (or at least, the story seems to be dying down).¶ The problem here is that a story like this shouldn’t ever go away , not until the sought reforms are accomplished or at least until we as a society reach an informed consensus about the core issues at stake. Every day that we wait, every day that such programs are allowed to continue without public scrutiny or reform, is a day in which rights are unduly sacrificed without the informed consent of the public.

Privacy is already dead- companies surveil more than the government and will not change Gillmor 14(Dan, Professor of Digital Media Literacy and Entrepreneurship at Arizona State University, “As we sweat government surveillance, companies like Google collect our data”, April 18, 2014, http://www.theguardian.com/commentisfree/2014/apr/18/corporations-google-should-not-sell-customer-data, kc)

As security expert Bruce Schneier (a friend) has archly observed, "Surveillance is the business model of the internet." I don't expect this to change unless and until external realities force a change – and I'm

not holding my breath.¶ Instead, the depressing news just seems to be getting worse. Google confirmed this week what many people had assumed: even if you're not a Gmail user, your email to someone who does use their services will be scanned by the all-seeing search and the advertising company's increasingly smart machines. The company updated their terms of service to read:¶ Our automated systems analyze your content (including e-mails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.¶ My system doesn't do this to your email when you send me a message. I pay a web-hosting company that keeps my email on a server that isn't optimized for data collection and analysis. I would use Gmail for my email, if Google would let me pay for service that didn't "analyze (my) content" apart from filtering out spam and malware. Google doesn't offer that option, as far as I can tell, and that's a shame – if not, given its clout, a small scandal.¶ Also this week, Advertising Age, a top trade journal for the ad industry, reported that tech companies led by Google, Microsoft, Apple and Facebook are moving swiftly to fix what they plainly see as a bug in the system : It's more difficult to spy on us as effectively when we use our mobile devices than when we're typing and clicking away on our laptops. Here's a particularly creepy quote in the story, courtesy of a mobile advertising executive:¶ The universal ID today in the world is your Facebook log-in. This industry-wide challenge of mobile tracking has sort of quietly been solved, without a lot of

fanfare.¶ Facebook may be getting the message that people don't trust it, which shouldn't be surprising given the company's long record of bending its rules to give users less privacy. CEO Mark Zuckerberg told the New York Times' Farhad Manjoo that many upcoming products and services wouldn't even use the name "Facebook," as the company pushes further and further into its users' lives. The report concluded:¶ If the new plan succeeds, then, one day large swaths of Facebook may not look like Facebook — and may not even bear the name Facebook. It will be everywhere, but you may not know it.¶ Maybe. But Facebook will know you. And like Google, Facebook won't let me pay for its otherwise excellent service, something I'd gladly do if it would agree not to spy on me.¶ Barring that, what I do to employ countermeasures wherever possible, and to make choices in the services I use – such as relying more and more on the DuckDuckGo search engine. DuckDuckGo isn't as likely to give me the results I want as easily as Google, but it has proved to be good enough for most purposes.¶ But in a week when news organizations (like this one) won Pulitzer prizes for revealing vast abuses of surveillance by the government, one might hope that corporations would show even the slightest sign of retreating from their longstanding practices that, if conducted by the government, would give most citizens pause.

The public doesn’t feel strongly about surveillance.Rieff 13(David, Author with focus on immigration, international conflict, and humanitarianism, “Why Nobody Cares About the Surveillance State”, August 22, 2013, http://foreignpolicy.com/2013/08/22/why-nobody-cares-about-the-surveillance-state/, kc)

And yet, apart from some voices from the antiwar left and the libertarian right, the reaction from this deceived public has been strangely muted . Polls taken this summer have shown the public almost evenly split on whether the seemingly unlimited scope of these surveillance programs was doing more harm than good . Unlike on issues such as immigration and abortion, much of the public outrage presupposed by news coverage of the scandal does not, in reality, seem to exist.¶ It is true that the revelations have caused at least some on the mainstream right, both in Congress and in conservative publications like National Review, to describe the NSA’s activities as a fundamental attack on the rights of citizens. For their part, mainstream Democrats find themselves in the uncomfortable position of either defending what many of them view as indefensible or causing trouble for a beleaguered president who seems increasingly out of his depth on most questions of national security and foreign policy.¶ The press can certainly be depended on to pursue the story, not least because of a certain “guild” anger over the detention recently of Guardian journalist Glenn Greenwald’s partner, David Miranda, by British police at London’s Heathrow Airport, and the British government’s decision to force the Guardian to destroy the disks it had containing Snowden’s data — in the paper’s London office with two officials from CGHQ, the British equivalent of the NSA, looking on. But while the surveillance scandal has both engaged and enraged the elites, when all is said and done, the general public does not seem nearly as concerned.¶ Why? In an age dominated by various kinds of techno-utopianism — the conviction that networking technologies are politically and socially emancipatory and that massive data collection will unleash both efficiency in business and innovation in science — the idea that Big Data might be your enemy is antithetical to everything we have been encouraged to believe. A soon-to-be-attained critical mass of algorithms and data has been portrayed as allowing individuals to customize the choices they make throughout their lives. Now, the data sets and algorithms that were supposed to set us free seem instead to have been turned against us.

Facebook proves- consumers have “privacy fatigue”- don’t care about privacy anymoreHuffington Post 11

(Huffington Post, “Facebook Users Experience Privacy Fatigue”, 03/11/2011, http://www.huffingtonpost.co.uk/2011/11/03/facebook-users-privacy-fatigue_n_1073131.html, kc)

Facebook Users Experience Privacy Fatigue -- Facebook users are struggling to keep up with the "dizzying" number of changes to privacy settings made by the social network, a survey has found.¶ Almost half (48%) of those questioned by consumer magazine Which? Computing confessed they had failed to keep track of all the security changes that had been introduced, while almost a fifth (19%) said they had never altered their privacy settings.¶ Despite concerns about the amount of personal information being published by users of the website, many could be suffering "privacy fatigue", the magazine suggested.¶ Although Facebook has introduced a slew of changes over the past two years, respondents had on average changed their privacy settings just twice .¶ Rob Reid, scientific policy adviser for Which?, said: "Many Facebook users have never changed their privacy settings and those who have do it far less often than Facebook makes changes.¶ "This may reflect a disregard or lack of awareness for privacy or, more worryingly, privacy fatigue stimulated by the dizzying number of changes."¶ Which? Computing interviewed 953 people in September about their Facebook use.

Public apathy about privacy violations. Kelly 13(Heather, Technology Reporter for CNNMoney, Writer/Producer at CNN Digital, Degree in Journalism from NYU, “Some shrug at NSA snooping: Privacy's already dead”, June 10, 2013, http://www.cnn.com/2013/06/07/tech/web/nsa-internet-privacy, kc) A series of revelations about the National Security Agency's surveillance programs sparked outrage among many this week, including the expected privacy activists and civil libertarians.¶ But there seems to be a gap between the roiling anger online and the attitudes of other people , especially younger ones, who think it's just not that big a deal.¶ It's the rare issue that crosses party lines in terms of outrage, apathy and even ignorance. When interviewing people

about the topic in downtown San Francisco, we found a number of people of all ages who had not heard the news, and more than one who asked what the NSA was . ¶ The rest had various reasons for not being terribly concerned.¶ Privacy is already dead ¶ When the news broke on Wednesday, a number of people responded online by saying an extensive government surveillance program wasn't surprising and just confirmed what they already knew.¶ The lack of shock wasn't limited to savvy technologists who have been following reports from organizations like the Electronic Frontier Foundation, or EFF, that cover possible monitoring going back to 2007. Many people already assumed that information online was easily accessible by corporations and the government . ¶ A

survey conducted by the Allstate/National Journal Heartland Monitor just days before the NSA news broke found that 85% of Americans already believed their phone calls, e-mails and online activity were being monitored.¶ Allen Trember from San Luis Obispo, California, said he knew when he started using the Internet that his information wasn't going to be private, but still lamented that privacy no longer exists.¶ "I don't like it, but what can I do about it?" he said. "I'm just glad that we have as much freedom as we do."

Surveillance unpopular

Politicians lose votesChambers 13(Chris, Professor of Cognitive Neuroscience at the School of Psychology at Cardiff University, “NSA and GCHQ: the flawed psychology of government mass surveillance”, August 26, 2013, http://www.theguardian.com/science/head-quarters/2013/aug/26/nsa-gchq-psychology-government-mass-surveillance, kc)

Security chiefs may believe that surveillance gives them greater control over the populace, but is this truly the case? The answer is complicated. A recent study found that if members of a team felt a common social identity with their leader then surveillance in fact reduced the leader's influence by fostering resentment and distrust. However, if they saw their leader as belonging to a social outgroup then surveillance increased the leader's

power.¶ This pattern is interesting because it places politicians and the security services at loggerheads. For politicians to succeed in a democracy they must be seen as part of the same ingroup as their electorate . We see this in force most strongly during election time, when politicians go to great pains to

emphasise their grass roots connections with the community. But by supporting mass surveillance, politicians then undermine this relationship . ¶ The security services, on the other hand, have the opposite motivation. For them, mutual distrust is par for the course, so it is better to maintain a social distance from the public. That way they are guaranteed to be perceived as an outgroup, which – the evidence suggests – increases the influence they can wield through surveillance.¶ There are two ways to resolve this conflict between the motivations of elected representatives and security services . One is to embrace totalitarianism , breaking all bonds of social identity between politicians and the electorate. In this (unpalatable) scenario, democracy converts to a police state in which all parts of government are seen by the populace as an outgroup. An alternative is to put an end to mass surveillance , forcing the security services to fall in line with the parts of government that value liberty.

Privacy concept has evolved

Epistemological bias exaggerates privacy literature Strahilevitz 13 (Lior, Law Professor at University of Chicago Law School, JD Recipient from Yale Law School, Executive Editor of the Yale Law Journal, “Toward A Positive Theory Of Privacy Law”, 03/07/13, http://www.law.uchicago.edu/Lawecon/index.html, kc) A positive account of American privacy law requires us to be sensitive to the personalities of Americans consumers. We must not ignore the personalities of American privacy law scholars either. People who care a great deal about their personal privacy , and the privacy rights of others, tend to be drawn toward writing about privacy law . 127 People who have little concern for their own privacy are unlikely to become privacy scholars. Recall that the 20 percent of the population Alan Westin described as “privacy unconcerned ” not only do not value their own privacy highly but also tend to have a very difficult time understanding why anyone would value their privacy — they simply do not grasp why privacy might be a big deal to some people. 128 The danger that selection effects among privacy scholars will render privacy scholarship “out of touch” with realities on the ground is everpresent, though the robust exchange of ideas that exists among scholars, industry lawyers, and regulators in privacy is a welcome and important corrective.129 This Article has tried to supplement the existing literature by pointing to both the material upsides and downsides of privacy protection in various contexts, so that scholars will have a firmer grasp on the political and path-dependency dynamics that shape privacy law. Along the way, it has emphasized the new challenges presented in an era of Big Data. In particular, it has hypothesized that when industry or government employ Big Data, they are subjecting consumers to refined personality tests. And whereas personality discrimination in employment has long been accepted, its widespread use in the pricing and delivery of mass-market goods and services is an important new issue. Understanding who wins and who loses from this increased reliance on personality discrimination is vital as we seek to predict how the law will react.

Privacy is a fluid term- we cannot be constrained to just the aff’s definition. Wittes 11(Benjamin, senior fellow in Governance Studies at The Brookings Institution. He co-founded and is the editor-in-chief of the Lawfare blog, “Databuse: Digital Privacy and the Mosaic”, April 1, 2011, http://www.brookings.edu/research/papers/2011/04/01-databuse-wittes, kc) In this paper, I explore the possibility that technology’s advance and the proliferation of personal data in the hands of third parties has left us with a conceptually outmoded debate , whose reliance on the concept of privacy does not usefully guide the public policy questions we face. And I propose a different vocabulary for that debate—a concept I call “databuse.” When I say here that privacy has become obsolete , to be clear , I do not mean this in the crude sense that we have as a society abandoned privacy in the way that, say, we have abandoned once-held moral anxieties about lending money for interest. Nor do I mean that we have moved beyond privacy in the sense that we moved beyond the need for a constitutional protection against the peacetime quartering of soldiers in private houses without the owner’s consent.[3] Privacy still represents a deep value in our society and in any society committed to liberalism.¶ Rather, I mean to propose something more precise, and more subtle: that the concept of privacy as we have traditionally understood it in law no longer describes well or completely the actual value at stake in the set of issues we continue to argue in privacy’s name. The notion of privacy was always vague and hard to pin down as an operational matter in law. But this problem has grown dramatically worse as a result of the proliferation of data about all of us and the ability to analyze and cross-reference that data systematically and instantly. To put the matter bluntly, the concept of privacy will no longer bear the weight we are placing upon it . And because the term covers such a huge range of ground, its imprecision with respect to these new problems creates great indeterminacy as to what the value we are trying to protect really is , whether it is gaining or losing ground, and whether that is a good thing or a bad.

AT: metadata violates the Constitution

NSA surveillance doesn’t violate the Constitution Wittes ‘13(Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution. He co-founded and is the editor-in-chief of the Lawfare blog, , “Five In-Your-Face Thoughts in Defense of the NSA”, Lawfare – 9/9/13 www.lawfareblog.com/2013/09/five-in-your-face-thoughts-in-defense-of-the-nsa/, kc)Many critics of the NSA elide this point by insist ing that the Constitution —specifically, on the Fourth Amendment— forbids such activity , even if the statute purports to permit it. But the constitutional law here actually doesn’t get them very far. The doctrine is quite permissive with respect to data held in the hands of third parties , and it’s almost-infinitely permissive with respect to collection against non-U.S. persons overseas. The result is that rote invocations of the Constitution as some kind of trump card against the big bad intelligence agency that wants to collect data generally falls flat , no matter how emotionally satisfying it may be to people who choose not to understand law.¶ Let me put this point as simply as I can: The NSA can collect a gargantuan quantity of telephone and internet data without violating any statutory or constitutional law . And nearly all of the current debate involves activity that either clearly or arguably falls on the legal side of the line. To the extent that people argue against the legality of what the NSA is doing, they generally arguing that the courts should have ruled other than the way they did . But in our society, that’s not what defines an agency’s legal authority .

Constitutional protection doesn’t solve privacySchlanger 15 -- (Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, “Intelligence legalism and the national security agency’s civil liberties gap,” Harvard National Security Journal, http://harvardnsj.org/wp-content/uploads/2015/02/Schlanger.pdf, Accessed 06-29-15)Consider, first, the Constitution, as interpreted by the courts. Those who answer charges of surveillance overreach by

emphasizing the constitutionality of the contested conduct—which is to say, nearly every federal official who has

defended the NSA in recent months—are essentially arguing that constitutional law sets not individual rights minima, but rather, perhaps even definitionally, the right civil liberties policy. If this were correct, optimal policy could be implemented by a robust compliance infrastructure. The best civil liberties path might, for example, be simply to augment judicial review, perhaps by cutting through the large variety of litigation barriers (including doctrines of ripeness, finality, standing, justiciability, state secrets, and limits on inferred private rights of action) that often impede judicial supervision. The problem is that to assume, as this view does, that “constitutional” and “good” are the same is to mistake the role of constitutional law.267 The distance between “constitutional” and “good” is a matter of both method and purpose. Methodologically, many of the constitutional considerations—precedent, text, framers’ intent, and so on— are irrelevant to policy evaluation. Courts may well also “lack the institutional capacity to easily grasp the privacy implications of new technologies they encounter,” as Orin Kerr has argued at length.268 But

even when courts include policy analysis in their decision-making, constitutional decisions at least purport to be more about “can” than about “should.” That is why Fourth Amendment caselaw, notwithstanding its policy-heavy reasonableness inquiry, is formulated to give the government a good deal of leeway269—both for mistakes270 and for differences of opinion.271 Indeed, it is only to be expected that courts are likely to err on the side of nonintervention in constitutional cases. The

remedial rigor that is at least the symbolic entailment of a right must on the margin discourage rights declaration 272 ; declaring something to be a “right” ups the stakes considerably, discouraging partial solutions. So while constitutional law and court enforcement of it sometimes advance individual liberty with

respect to particular issue or in some cases, there is likely to be considerable distance between optimal policy and the constitutional floor. To quote one summary, again by Orin Kerr, “we should not expect the Fourth Amendment alone to provide adequate protections against invasions of privacy made possible by law enforcement use of new technologies. . . . Additional privacy protections are needed to fill the gap between the protections that a reasonable person might want and what the Fourth Amendment actually provides.”273

Rights focus stifles more radical challenges Schlanger 15 -- (Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, “Intelligence legalism and the national security agency’s civil liberties gap,” Harvard National Security Journal, http://harvardnsj.org/wp-content/uploads/2015/02/Schlanger.pdf, Accessed 06-29-15)Theorists and observers in a variety of fields have developed the broad critique that law and its concomitant rights orientation may have the counterintuitive impact of decreasing the welfare of the purported rights holders—or, in a more modest version of the point, may ameliorate some prevalent set of harms but undermine more ambitious efforts. Focusing particularly on litigation, they argue that it is inherently a timid enterprise, and yet it crowds out other more muscular approaches.317 Even with respect to out-of-court rights

orientation, or “legalization,” scholars have offered the insight that formalizing/legalistic approaches can come with real costs to their intended beneficiaries, depending on the context. 318 The issue is whether, in a particular institutional setting, these possibilities have materialized. In this Section, I examine two pathways by which intelligence legalism tends to impair the prospects of a softer civil-liberties protective policy. 1. Intelligence Legalism Crowds Out Interest Balancing This Article demonstrates the high salience of rights in this realm. Several related mechanisms convert that high salience into a devaluation of interests: First, rights occupy the “liberty” field because of the practical issue of attention bandwidth, which potentially applies both to agencies and advocates. After all, even large organizations have limited capacity.319 NSA compliance is such an enormous task that little room remains for more conceptual weighing of interests and options. Recall that of the dozen-plus offices I described in Part II, just two—the Civil Liberties and Privacy Office at the NSA, and the Privacy and Civil Liberties Oversight Board—are currently playing a policy rather than strictly a compliance role. They are also, not coincidentally, the two newest and two smallest of the offices listed. I think, though, that this bandwidth issue is driven by a more conceptual, less practical, factor: that rights talk hides the necessity of policy judgments and, by its purity, diverts attention from that messier field. Morton Horwitz explains the point: A . . . troubling aspect of rights discourse is that its focus on fundamental, inherent, inalienable or natural rights is a way of obscuring or distorting the reality of the social construction of rights and duties. It shifts discussion away from the always disputable issue of what is or is not socially desirable. Rights discourse . . . wishes us to believe instead that the recognition of rights is not a question of social choice at all, as if in the normative and constitutional realm rights have the same force as the law of gravity.320 Mary Dudziak makes a similar claim in her recent discussion of law and drone warfare, “In this context, law . . . does not aid judgment, but diverts our attention from morality, diplomacy, humanity, and responsibility in the use of force, and especially from the bloody mess left on the ground.”321 Even in Fourth Amendment jurisprudence, an area of constitutional doctrine

explicitly imbued with policy considerations, we talk about rights as if they are somehow scientific, to be deduced rather than debated. The discussion that must accompany policy claims pales in prestige and importance by comparison. And from the perspective of their beneficiaries, judicially enforceable rights, with their promise of supremacy over competing interests, are shiny and magnetic. This is why the assertion of rights can be such a powerful organizing tool322—even if those rights don’t turn out to change much on the ground. As Rich Ford has written, “Rights are a secular religion for many Americans.”323 Or to quote Alan Freeman’s classic article about civil rights, “Rights consciousness can offer sustenance to a political movement, however alienated, indeterminate or reified rights may be.”324 It is the purity, the apparent apolitical nature, of rights that makes them nearly the only coin available. By comparison with judicially enforceable rights, other methods of advancing individual liberty look feeble, contingent, jury-rigged. An accusation of illegality becomes the required first bid for any policy discussion, and a refutation of that accusation

ends play. This dynamic is very much in evidence in the response to the PCLOB’s 702 report, described above. Rights discourse stunts needed policy discourse.325

AT: privacy rights K2 Policymaking

Privacy’s unclear impact restricts policymaking. Solove 6(Daniel J. Solove is an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School. He is one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on how privacy relates with information technology. He has written 9 books and more than 50 law review articles. “A Taxonomy Of Privacy”, January 2006, https://www.law.upenn.edu/journals/lawreview/articles/volume154/issue3/Solove154U.Pa.L.Rev.477(2006).pdf, kc)

Often, privacy problems are merely stated in knee-jerk form : “That violates¶ my privacy!” When we contemplate an invasion of privacy–-such as¶ having our personal information gathered by companies in databases–-

we¶ instinctively recoil. Many discussions of privacy appeal to people’s fears¶ and anxieties.9¶ What commentators often fail to do , however, is translate ¶ those instincts into a reasoned, well-articulated account of why privacy¶ problems are harmful. When people claim that privacy should be protected,¶ it is unclear precisely

what they mean. This lack of clarity creates a difficulty¶ when making policy or resolving a case because lawmakers and¶ judges cannot easily articulate the privacy harm . The interests on the other¶

side-–free speech, efficient consumer transactions, and security-–are often¶ much more readily articulated. Courts and policymakers frequently struggle¶ in recognizing privacy interests, and when this occurs, cases are dismissed¶ or laws are not passed. The result is that privacy is not balanced against ¶ countervailing interests.

Concerns about privacy prevent policymaking. Wittes 11(Benjamin, senior fellow in Governance Studies at The Brookings Institution. He co-founded and is the editor-in-chief of the Lawfare blog, “Databuse: Digital Privacy and the Mosaic”, April 1, 2011, http://www.brookings.edu/research/papers/2011/04/01-databuse-wittes, kc) We debate mosaic issues in the language of privacy because privacy is the only word we've got. It is not , however , the value we are implementing in fact as a society or the value that we really expect as individuals from the companies and governments with which we interact . That value is something else —something that lacks a name in common parlance but amounts to an expectation against hostile,

deceptive, or negligent use and handling of data we entrust to third parties. It is an expectation that our data will work for us, not against us, and that while our interests won't always be congruent with those who hold the tiles of our

mosaics, the custodians of our tiles owe us consideration—at least to do us no harm.¶ This is not privacy. It is something else. The sooner we accept that in discussing these issues , we are not operating inside of Brandeis's privacy framework but, rather, engaging in the very project he undertook—that is, imagining new legal categories for new surveillance challenges wrought by technology—the sooner we will confront them effectively and in a fashion that satisfies the many competing interests at stake in the mosaic .

Efficiency gains from surveillance outweighSwire 99 – Peter P. Swire, Chief Counselor for Privacy—United States Office of Management and Budget, Professor at the Ohio State University College of Law, 1999 (“F. Hodge O'Neal Corporate and Securities Law Symposium: The Modernization of Financial Services Legislation: Article: Financial Privacy and The Theory of High-Tech Government Surveillance,” LexisNexis Academic, Accessed 06-29-2015)In discussing the advantages of allowing flows of financial data to government, the focus has been on preventing or prosecuting illegal behavior. Greater information flows can restrict money

laundering, help track deadbeat parents who fail to pay child support, and otherwise reduce

the harms to society that inefficient surveillance permit s. An even more general rationale,

however, often exists for providing information to the government - efficiency . Free flows of information, in both the public and private sector, can lead to a variety of efficiency gains. Think, for example, of the burden of filling out government paperwork. Suppose that in an electronic future an individual would never have to provide information more than once to any government. In this technocratic utopia, the record would be entered once and then be available automatically for all authorized uses.

With this efficiency in assembling and matching data, there would be far less burden on individuals who wish to apply for government benefits, enter into a contract with any government unit, file a report in connection with

environmental or other regulatory programs, or otherwise transfer information to the government. Better coordination might also be possible between governments at the local, state, national, and even international levels. In the private sector, free flows of financial data also create efficiency gains. From a seller's point of view, detailed information about the buyer allows more efficient provision of goods and services. Detailed information permits "one-to-one" marketing, so buyers get precisely what they most value, and so sellers can avoid unwanted inventory and can produce exactly what buyers want. n87 Ever-expanding computing power and the growth of the Internet mean that the costs of assembling, processing, and communicating personal data continue to fall rapidly. As the private sector develops new means for processing personal information, the information also becomes potentially available to the government. [*493] In the area of information

processing, the public and private sectors are linked more closely than is often realized. Any data in private hands are only a subpoena away from the government. The efficiency gains in the private sector mean efficiency gains for law enforcement and the government more generally.

Focus on privacy precludes policy and personal security issues altogether- there’s no middle ground.Wittes 11(Benjamin, senior fellow in Governance Studies at The Brookings Institution. He co-founded and is the editor-in-chief of the Lawfare blog, “Databuse: Digital Privacy and the Mosaic”, April 1, 2011, http://www.brookings.edu/research/papers/2011/04/01-databuse-wittes, kc) Finally, a focus on harms would counsel much greater policy attention to certain mosaic data issues than does a traditional privacy analysis . Specifically, a harms focus would give a higher salience to the many identity-authentication and personal-security issues raised by the mosaic —the threats of identity theft and stalking that have grown up alongside the mosaic, for example. These issues are strangely undervalued in privacy advocacy. The Web site of the Electronic Privacy Information Center, for example, has sections for “hot policy issues”—which include “body scanners,” “cloud computing,” “Iraqi biometric ID system,” “social networking privacy,” “national ID,” and “smart grid.” EPIC does not include issues like identity theft.[35] Run a search on the term “identity theft” on the Web site of the Center for Democracy and Technology, and only scattered references arise. The site has a section devoted to “spyware”—the most recent entry under which dates from 2008.[36] And a section devoted to “identity management” is chiefly concerned with the privacy impact of identity authentication schemes, not the privacy impact of the activities that necessitate those schemes.[37] When privacy advocates discuss personal security matters, they often do so as a kind of afterthought. In his book, The Digital Person, Solove’s discussion of identity theft is brief and buried in the sixth chapter; it appears only after far lengthier discussions of the dehumanizing effects of “digital dossiers.”[38] While Solove terms identity theft “a privacy problem that resembles a Kafkaesque nightmare,” it isn’t the core privacy problem with which he concerns himself. For many people, the personal security issues associated with the mosaic seem somehow outside of the realm of real privacy altogether.

Balance of Power Checks

Courts can check privacy violations with compliance and ethics programs – empirics proveMcGreal 7 – Paul E. McGreal, Professor of Law at the Southern Illinois University School of Law, Fall 2007 (“ESSAY: Counteracting Ambition: Applying Corporate Compliance and Ethics to the Separation of Powers Concerns with Domestic Surveillance,” LexisNexis Academic, Accessed 07-02-2015)A common objection to greater judicial review of federal antiterrorism measures and defense of greater judicial deference to the President and Congress is the courts' comparative lack of expertise in the area. n162 As Judge Posner has put it, "judges aren't supposed to know much about national security." n163 Eric Posner and Adrian Vermeule have also stated that the "novelty of the threats and of the necessary responses makes judicial routines and evolved legal rules seem inapposite, even obstructive." n164 One need not dispute these claims to endorse this Essay's proposal. n165 First, as discussed above, strong consensus exists among regulators and private firms about the essential components of an effective compliance and ethics program. Of course, there is discussion and debate regarding some details, such as whether the corporate compliance officer

ought to report through the organization's legal department or directly to the CEO or a board committee. But courts can apply the consensus standards and give deference where consensus runs out. Second, we know that evaluating compliance and ethics programs is not beyond judicial competence because

courts already do so in several contexts . As discussed above, the United States Sentencing Guidelines [*1601] direct federal courts to assess the effectiveness of a corporate defendant's compliance and ethics program as a mitigating factor in criminal sentencing. n166 In federal sexual harassment and civil rights cases, federal courts assess a corporate defendant's compliance and ethics program in litigating a defense to vicarious liability. n167 Under state corporate law, recent decisions from the Delaware Supreme Court suggest that that state's courts will now assess whether a corporate board has adhered to compliance best practices in ruling on a motion to dismiss claims against directors. n168 And courts and agencies are increasingly incorporating compliance and ethics efforts into legal tests. n169 It is far too late

in the day to claim that evaluating compliance and ethics programs is beyond judicial

competence

Security > Privacy

Collective Security outweighs personal security. Personal security is not irrelevant – but collective security entails the personal interest of many people, each of whom matter. Our opponent violently ignores the means of collective security to get to the end of narrower interests. Himma ‘7Kenneth - Associate Professor of Philosophy, Seattle Pacific University. The author holds JD and PhD and was formerly a Lecturer at the University of Washington in Department of Philosophy, the Information School, and the Law School. “Privacy vs. Security: Why Privacy is Not an Absolute Value or Right”. San Diego Law Review, Vol. 44, p. 859, 2007. Available at SSRN: http://ssrn.com/abstract=994458

As it turns out, the concept of security is ambiguous as between two interpretations. My interest in personal security extends no further than my

having an interest in my own security. Accordingly, my interest in personal security is concerned with my being protected

from violent acts of assault and theft, but is indifferent with respect to other people being protected from such acts. My interest in collective security is an interest I have in the continuing existence of the social group I inhabit as providing an environment in which I and other people are free from the threats of violence and theft, and hence, which provides necessary, though not sufficient, prerequisites for the possibility of leading a meaningful human life. My interest in “national security,” of course, is an interest in collective security—in particular, an interest in the continuing existence of the national group to which I belong. There is, of course, an obvious relation between the two: if I live in a society that lacks collective security, then it is highly probable that I will also lack personal security. If people everywhere are rioting, then my individual, or personal, well-being is threatened—to some extent—even if I am sitting at home with all the doors bolted shut. If I feel I have to sit in a “safe room” to escape the direct threat to my security, then I am no longer leading a meaningful, flourishing life. For all practical purposes, my life is organized around defending myself from attacks on my life—surely not a desirable state of affairs for any practically rational being.

It might be that some persons are so selfish that they care about collective security only insofar as it impacts their own security, but I would be surprised—at the risk of overestimating the capacity for

human empathy—if this were generally true. There is no doubt that there are many people with pathological psychological conditions who care only about their own interests and would hence care about collective security only because it bears on their personal security; for these people, the interests of other people count for nothing. But most people who share a communal life with us in society form social bonds—bonds that extend to people we have never met in virtue of their being a member of the same tribe or community. Although the empathetic bonds extended to those solely in virtue of tribe membership will be considerably weaker than those extended in virtue of the development of mutually satisfying personal relationships, they are significant bonds. Most of us who watched the floodwaters rise on people clinging for life on their roofs in New Orleans in the

aftermath of Hurricane Katrina cared very deeply about what was happening to them. We care, of course, about our own security, but we also care a great deal about the security of our community —and not just because it bears on our safety and security. I believe that morality protects some of these interests in collective and personal security to such an extent that they rise to the level of a right. Nevertheless, it is not at all clear how to draw the line between those interests not covered by a right to security and those interests covered by a

right to security—and I cannot attempt to do so here. The point I want to make here is that I am perfectly comfortable assuming our

moral interests in privacy rise to the level of a right that a legitimate state is obligated to protect as a precondition of its

legitimacy, and that, as I will show from a number of vantage points, the same is true of the right to security. In addition, I

will provide a number of arguments—some of them grounded in individual morality and some grounded in major

approaches to theorizing about the conditions a state must satisfy to be morally legitimate—that the right to security trumps

the right to privacy when the two come into conflict.

We don’t invert the error. Out author doesn’t think security is absolute – just that it tends to outweigh privacy.Himma ‘7Kenneth - Associate Professor of Philosophy, Seattle Pacific University. The author holds JD and PhD and was formerly a Lecturer at the University of Washington in Department of Philosophy, the Information School, and the Law School. “Privacy vs. Security: Why Privacy is Not an Absolute Value or Right”. San Diego Law Review, Vol. 44, p. 859, 2007. Available at SSRN: http://ssrn.com/abstract=994458

The meaning of the claim that security trumps privacy is not immediately obvious. At the outset, this much has been clear: if it is true that security trumps privacy, then it is also

true that privacy is not an absolute right. Since the slogan that security trumps privacy entails that when security and privacy are in some sort of direct conflict, security defeats privacy, it follows that privacy is not absolute.24 But, quite frankly, this does not tell us much; the claim that privacy is nonabsolute does not tell us anything about how it should be weighed

against other nonabsolute rights, and I do not wish to claim that security is an absolute right because I think this thesis is as counterintuitive as the thesis that privacy is an absolute right . If it were true, for example,

that security was an absolute right, and privacy necessarily yields in the event of any conflict at all, then it would follow that it is morally justifiable for the state to sacrifice all interests in privacy if necessary to achieve just the slightest gain in security. I take this to be so obviously false as to constitute a counterexample to the claim that security is absolute, at

least relative to privacy. The claim that security trumps privacy is meant to express the more intuitive, but admittedly vague,

idea that security and privacy are commensurable values and that, as a general matter, security is a more important value from the standpoint of morality than privacy. This does not commit me to the claim that all values are commensurable; perhaps there are two values that simply cannot be weighed against one another. But it does commit me to the claim that there is a hierarchy of commensurable morally protected interests and rights, which include security, privacy, and perhaps others, and that security has a higher position in the hierarchy than privacy. Indeed, I am tempted to think that security interests—construed to include freedom from grievous threats to well-being, which include death, grievous bodily injury, and financial damage sufficiently extensive to threaten the satisfaction of basic needs and hence survival of a person—are at the top of the moral hierarchy, encompassing as they do the rights to life and physical preservation.

Security interests come first – they turn privacy interests.Himma ‘7Kenneth - Associate Professor of Philosophy, Seattle Pacific University. The author holds JD and PhD and was formerly a Lecturer at the University of Washington in Department of Philosophy, the Information School, and the Law School. “Privacy vs. Security: Why Privacy is Not an Absolute Value or Right”. San Diego Law Review, Vol. 44, p. 859, 2007. Available at SSRN: http://ssrn.com/abstract=994458

The last argument I wish to make in this essay will be brief because it is extremely well known and has been made in a variety of academic and

nonacademic contexts. The basic point here is that no right not involving security can be meaningfully exercised in the absence of efficacious protection of security. The right to property means nothing if the law fails to protect against threats to life

and bodily security. Likewise, the right to privacy has little value if one feels constrained to remain in one’s home

because it is so unsafe to venture away that one significantly risks death or grievous bodily injury. This is not mere ly

a matter of describing common subjective preferences; this is rather an objective fact about privacy and security interests. If security interests are not adequately protected, citizens will simply not have much by way of privacy interests to protect. While it is true, of course, that people have privacy interests in

what goes on inside the confines of their home, they also have legitimate privacy interests in a variety of public contexts that cannot be meaningfully exercised if one is afraid to venture out into those contexts

because of significant threats to individual and collective security—such as would be the case if terrorist attacks became highly probable in those contexts. It is true, of course, that to say that X is a prerequisite for exercising a particular right Y does not obviously entail that X is morally more important than Y, but this is a reasonable conclusion to draw. If it is true that Y is meaningless in the absence of X, then it seems clear

that X deserves, as a moral matter, more stringent protection than Y does. Since privacy interests lack significance in the absence of adequate protection of security interests, it seems reasonable to infer that security interests deserve, as a moral matter, more stringent protection than privacy interests. In this essay, I have argued that the moral interest in or right to privacy is not absolute and is sometimes outweighed by the moral interest in or right to security. I have done so from two points of view. First, at the beginning of the essay, I have sketched intuitions to that effect, which I assume are widely shared among persons in cultures like ours. Second, I have argued that all the mainstream approaches to normative theories of state legitimacy presuppose, assert, or imply that privacy is

less important from the standpoint of political morality than security. Accordingly, under ordinary intuitions and each of these theories,

security interests trump, or outweigh, privacy interests when the two come into conflict.

Collective security outweighs. Most people want to place security before individual privacy.Himma ‘7

Kenneth - Associate Professor of Philosophy, Seattle Pacific University. The author holds JD and PhD and was formerly a Lecturer at the University of Washington in Department of Philosophy, the Information School, and the Law School. “Privacy vs. Security: Why Privacy is Not an Absolute Value or Right”. San Diego Law Review, Vol. 44, p. 859, 2007. Available at SSRN: http://ssrn.com/abstract=994458It is fairly easy to see, however, that my intuitions are widely shared in the U nited S tates . As an empirical matter, citizens in the United States frequently indicate a willingness to trade privacy for enhanced security. For example, a Harris poll conducted on October 4, 2004, three years after the attacks of 9/11, produced the following

results: Two-thirds (67%) percent favor “closer monitoring of banking and credit card transactions” up slightly from 64 percent in February (and down from 81 percent in September 2001). • Six in ten (60%) favor “adoption of a national I.D. system for all U.S.

citizens” up from February’s 56 percent (down from 68% in September 2001). • Those who favor “law enforcement monitoring of Internet discussions” [have] increased significantly from 50 percent earlier this year to a current 59 percent. This is only somewhat lower than the 63 percent who felt this way in September 2001. • Those who favor “expanded government monitoring of cell phones and email” have risen to 39 percent, with 56 percent opposed. In February this year, a somewhat lower 36 percent minority favored this. 83 percent continue to favor “stronger document and physical security checks for travelers,” basically unchanged since February (93% in September 2001). • 82 percent continue to support “expanded undercover activity to penetrate groups under suspicion,” up from 80 percent in the February poll (93% in

September 2001). • 60 percent continue to support “expanded camera surveillance on streets and in public places,” virtually unchanged since February (63% in September 2001).25 One might be tempted to argue that these results should not be taken as typical because the poll was taken only three years after the 9/11 attacks, and people have become somewhat more critical of late of the government’s

efforts to combat terrorism that implicate privacy. But the claim is not that the people always favor enhanced security measures even when they impinge on privacy interests; the claim is rather that when people are convinced that they face a credible deadly threat of some sort—that is, one that satisfies some threshold level of probability

for success—they are generally willing to sacrifice privacy interests, even important ones, to reduce the probability of success. Criticisms of recent measures primarily express the view that they impinge upon privacy without significantly reducing the probability of a terrorist attack on U.S. soil. That, unlike the poll results described above, tells us nothing about common intuitions regarding how to balance security and privacy as a general matter.