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From: Nicole Bailey Date: September 4, 2013 Subject: NSA Defense I. ARGUMENTS AGAINST MONITORING IN AMERICA a.

Argument 1: violates U.S. Constitutions 4th Amendment protection against unreasonable searches and seizures and/or the 1st Amendment i. Defense A: metadata being collected is not seized unreasonably and does not include any free speech in the form of content 1. The information acquired does not include the content of any communications or the name of any subscriber (only numbers, call time, call duration)1 2. Section 215 of the Patriot Act authorizes data collection when there are reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism2 a. Relevant does not mean that data will be collected only around suspected terrorists, but that the data collected will aid in FBI investigations of international terrorism and that storing this data is necessary for certain analytic tools used to accomplish this objective2 b. This standard of relevance is a simple and well established standard of law3 ii. Defense B: NSA database is not searched unreasonably 1. it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism 2 2. All queries must have a reasonable, articulable suspicion of being associated with a particular foreign terrorist organization2 a. In the case of a U.S. citizen, this suspicion cannot be based only on activities protected by the First Amendment2 b. Argument 2: the NSA will not stop at telephone records i. Defense A: Communication metadata is unique in that the connections between individual data points is significant for terrorism investigations; other business records (e.g., medical, library, bookstore) could not be collected under this same authority2 ii. Defense B: No reasonable expectation that this information is private when already accessible to Google/Facebook/your smartphone/GPS service/etc. (several have made this argument, including the DOJ2) II. ARGUMENTS AGAINST MONITORING OVERSEAS a. Argument 1: the NSA has no authority to monitor overseas i. Defense A: NSA collection authority legally stems from Executive Order 12333 and FISA, and FISA Section 702 allows the targeting of non-U.S. persons outside the U.S.4
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Press Gaggle by Deputy Principal Press Secretary Josh Earnest and Secretary of Education Arne Duncan en Route. Mooresville, NC, 6/62013. http://www.whitehouse.gov/the-press-office/2013/06/06/press-gaggle-deputyprincipal-press-secretary-josh-earnest-and-secretary 2 Administration White Paper. Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act. August 9, 2013. (Department of Justice) http://www.scribd.com/doc/159213398/Administration-White-PaperSection-215 3 USA Patriot Terrorism Prevention Reauthorization Act of 2005Conference ReportPart 1. (Senator Jon Kyl; March 2, 2006) http://votesmart.org/public-statement/158673/usa-patriot-terrorism-prevention-reauthorization-actof-2005-conference-report-part-i#.Uid0rmRgaqR

b. Argument 2: monitoring allies reduces U.S. credibility i. Defense A: this is normal national intelligence behavior; everyone does it (according to Kerry & Obama on multiple occasions)5 ii. Concession: the recent leaks have hurt diplomatic relations with the EU, UN, and other allies or at least given those relationships bad press; and it is not clear that the regular legal justifications apply to bugging embassies c. Argument 3: the NSAs power has been abused overseas (e.g., listening to calls for humanitarian aid workers or soldiers) i. Defense A: Whistleblowers with the insider knowledge to expose cases of listening in on humanitarian or soldier calls generally admit the usefulness of the NSA program in stopping terrorist attacks they do not really oppose the NSA as a whole, but believe the institution needs to be more strict and rigorous 1. Examples: Kinne and Faulk6 III. ARGUMENTS AGAINST THE NSA IN GENERAL a. Argument 1: NSA has no oversight or accountability/the power could be abused i. Defense A: many other parts of government do have oversight 1. Obama administration legally can make these requests under the Patriot Act with approval of a FISA court (1); the collection methods are fully and repeatedly briefed with Congress (2); and overseen by DOJ (3); that makes 3 different sources of oversight not including the other agency counsels, inspectors general, and legally mandated Congressional reports7 ii. Defense B: safeguards built into the program8 1. Access to the information is controlled7 2. Analysts must complete required training as security professionals7 3. Five-year limit on retention of raw data7 4. Every 90 days FISC orders must be renewed7 b. Argument 2: NSA has overstepped its bounds in the past i. Defense A: Past errors are statistically insignificant 1. NSA looks at .00004% of the worlds Internet traffic to carry out its mission4 2. WashPo reporter Barton Gellman reported 2,776 errors but even Gellman acknowledged the error rate is very low in percentage terms in response to a data driven article that estimated the error rate to be .0000000001%9 ii. Defense B: Despite past problems, oversight agencies were satisfied with resolution 1. Foreign Intelligence Surveillance Court authorized the program 34 times under the orders of 14 different judges7 2. Congress reauthorized Section 215 twice, which under precedent (Lorillard v. Pons) means they approve the administrative/judicial interpretation, and they
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The National Security Agency: Missions, Authorities, Oversight and Partnerships. (NSA; 9 August 2013) http://www.nsa.gov/public_info/_files/speeches_testimonies/2013_08_09_the_nsa_story.pdf 5 One example from Obama speech (DailyMail): http://www.dailymail.co.uk/video/news/video-1013909/Obamaspying-accusations-Everybody-doing-it.html 6 Exclusive: Inside Account of U.S. Eavesdropping on Americans. (ABC News; Oct. 9, 2008) http://abcnews.go.com/Blotter/exclusive-inside-account-us-eavesdropping-americans/story?id=5987804 7 Press Gaggle by Deputy Principal Press Secretary Josh Earnest and Secretary of Education Arne Duncan en Route. Mooresville, NC, 6/62013. http://www.whitehouse.gov/the-press-office/2013/06/06/press-gaggle-deputyprincipal-press-secretary-josh-earnest-and-secretary 8 Administration White Paper. Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act. August 9, 2013. (Department of Justice) http://www.scribd.com/doc/159213398/Administration-White-PaperSection-215 9 Data-driven analysis debunks claims that NSA is out of control (Special Report). (ZDNet; August 19, 2013) http://www.zdnet.com/data-driven-analysis-debunks-claims-that-nsa-is-out-of-control-special-report-7000019522/

were aware of the telephone metadata program when they reauthorized because the House and Senate Intelligence Committees had received and made accessible to the rest of Congress a report from the Attorney General explaining this interpretation prior to reauthorization7 c. Argument 3: chance of NSA preventing a terrorist attack is miniscule compared to the widespread privacy violation of collecting information i. Defense A: Chance of NSA abusing data collection is miniscule compared to the widespread benefit of counterterrorism ii. Defense B: the intelligence circuit is a well-oiled machine where the NSA is crucial 1. Certificates for NSA collection overseas are an example of the interagency cooperation needed, subject to approval from the FISA Court, the Attorney General, and the Director of National Intelligence10 2. NSA partners with intelligence agencies in over 30 countries and strengthens mutually beneficial alliances10

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The National Security Agency: Missions, Authorities, Oversight and Partnerships. (NSA; 9 August 2013) http://www.nsa.gov/public_info/_files/speeches_testimonies/2013_08_09_the_nsa_story.pdf

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