Updated by Peek 10/2/2015 with impacts

Aerial Surveillance Negative

CounterplansCongress CP 1NCThe United States federal government should [do the plan].The CP has congress do the plan, it solves drones best

Rothfuss 2014 (Ian F [George Mason School of Law]; Student Comment: An Economic Perspective on the Privacy Implications of Domestic Drone Surveillance; 10 J.L. Econ. & Pol'y 441; kdf)

IV. Legislative and Policy Recommendations This section discusses the current policy and legislative recommendations regarding drone surveillance and applies economic analysis to recommend an optimal way forward. Developing new laws and policies to address the privacy threats presented by domestic drone surveillance will involve the difficult balancing of many special interests and the individual privacy rights of U.S. citizens. n147 Therefore, in drafting a legal framework for domestic drone surveillance, Congress should consider economic factors and establish a framework which allows the use of drones with constraints to protect the privacy interests of U.S. citizens. As an objective methodology, these economic perspectives should lead lawmakers and policymakers to enact rules that will efficiently maximize utility while protecting privacy interests. The new framework should address the privacy concerns arising out of the domestic use of drones, while still allowing society to realize the technological benefits. Congress must consider many factors when determining how to best integrate drones into U.S. airspace. n148 In addition, the proposed policies should be compared with the policies in countries such as the United Kingdom, where general surveillance is more commonplace. n149 In July 2012, the Association for Unmanned Vehicle Systems International (AUVSI) issued a code of conduct that attempted to address concerns associated with the deployment of drones. n150 Among other elements, the code of conduct requires industry members to "respect the privacy of individuals" and "comply with all federal, state, and local laws, ordinances, covenants, and restrictions." n151 The code of conduct has been viewed as insufficient since it only lists broad topics, does not discuss specific privacy concerns, and does not elaborate on how the provisions will be enforced. n152 Current recommendations address a number of concerns regarding the widespread deployment of drones in the United States. Among these are recommendations from the American Civil Liberties Union (ACLU) n153 and legislation currently pending in both houses of Congress. n154 The first group of recommendations to consider is usage restrictions. It is generally accepted that drones and other means of surveillance may be used when a warrant has been issued because probable cause exists. Therefore, the focus of [*459] pending legislation and policy recommendations is on when the use of drones should be allowed without a warrant, if at all. The ACLU proposes that drone use should be limited to three purposes: (1) "where there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific instance of criminal wrongdoing or, if the drone will intrude upon reasonable expectations of privacy, where the government has obtained a warrant based on probable cause;" n155 (2) "where there is a geographically confined, time-limited emergency situation in which particular individuals' lives are at risk;" n156 or (3) "for reasonable non-law enforcement purposes . . . where privacy will not be substantially affected." n157 Similarly, both the House and Senate versions of the Preserving Freedom from Unwanted Surveillance Act of 2013 provide for three exceptions to the warrant requirement: (1) "patrol of borders"; (2) "exigent circumstances"; and (3) "high risk" of terrorist attack, as determined by the Secretary of Homeland Security. n158 The definition of exigent circumstances differs in the two bills. The Senate bill defines exigent circumstances to only include action necessary to "prevent imminent danger to life," n159 while the House bill uses a broader definition that also includes "serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence." n160 The broader definition of exigent circumstances in the House of Representatives version of the bill n161 is appropriate since it will give law enforcement more latitude to protect the American people in addition to providing for civil liability n162 as a check against improper use of this authority. The next recommendation is to consider whether there should be an exclusionary rule that would make any evidence gathered without a warrant or other legal authorization inadmissible in a criminal proceeding. The Senate bill also includes an exclusionary rule that would prohibit evidence collected in violation of the Act from being used in criminal prosecution. n163 Exclusionary rules can overdeter criminal investigations. n164 Therefore, unless a compelling case can be made as to why it is necessary, it would be more efficient not to include an exclusionary rule in the legislation. Another consideration is whether drones operating in the United States should be allowed to carry weapons like drones operating overseas which [*460] are used to target enemy combatants. One recommendation is to prohibit law enforcement from arming drones. n165 Drones have the ability to conduct remote precision strikes on suspects, but due process concerns and the dangers resulting from armed unmanned aircraft preclude the viability of this option within the United States. Therefore, domestic drones should be prohibited from carrying weapons of any kind. Congress should enact rules to govern domestic drone use. One recommendation is that Congress should require the Department of Transportation to conduct a Privacy Impact Assessment of the operation of drones domestically. n166 Pending legislation proposes amending the FAA Modernization and Reform Act of 2012 to address drone privacy concerns. n167 With the proper focus on privacy concerns, drones may be deployed domestically while still protecting the privacy of American citizens. In addition, Congress should require a warrant for "extended surveillance of a particular target." n168 As discussed earlier, the Fourth Amendment would not necessarily require a warrant in these situations. Even so, such a requirement extending warrant protections makes sense and will provide a valuable check against law enforcement abuse of the new technology. Congress should require authorization from an independent official for generalized surveillance that collects personally identifiable information such as facial features and license plate numbers. n169 This recommendation would apply to situations where a warrant was not required but personally identifiable information was still being gathered, such as surveillance at a public event. This recommendation should be enacted as a safeguard of the public's privacy interests. To adequately protect privacy interests, Congress should direct that the independent official, vested with decision-making power on applications for general surveillance, be a neutral and detached magistrate who is completely separated from any law enforcement or intelligence agency. As discussed in the previous section, legislation should be crafted to maximize the social utility from the domestic use of drones. The legislation should be structured according to the three levels of scrutiny proposed by Song to ensure that the governmental interest in the surveillance outweighs the disutility or social cost that will result from the loss of privacy. n170 The neutral and detached magistrate discussed above could determine when a sufficient government interest exists to warrant allowing generalized drone surveillance. [*461] Additional policy recommendations include an image retention restriction n171 and a requirement to file a data collection statement to obtain a FAA license to operate a drone. n172 These recommendations should be incorporated into the legislation. Congress should require a data collection statement with applications for a FAA license to operate a drone. A key element of the required data collection statement should address the retention of images and other data obtained. n173 Such a restriction would mandate that all images and other sensory data gathered through surveillance be deleted unless the information serves a valid, legal purpose that requires retention. n174 This restriction is necessary to prevent the government or any other entity from amassing an essentially limitless database of information on the activities of U.S. citizens without a valid and specified purpose. Collectively, enacting these recommendations would prevent widespread, general drone surveillance while allowing drones to be utilized domestically when reasonably warranted to maintain security or protect the interests of American citizens. Therefore, these recommendations would adequately protect the privacy interests of American citizens while allowing law enforcement and other entities to utilize drones to protect our country and serve other worthwhile endeavors.

Congressional leadership goodExpiration of section 215 proves congress is poised to take leadership in limiting executive powers in domestic surveillance

Buttar 15

(Shahid Buttar is a constitutional lawyer, electronic musician, grassroots organizer and executive director of the Bill of Rights Defense Committee. 5/26/15, "Senate Moves to Check Executive Spying Power" pg. online @ www.truth-out.org/news/item/30976-senate-starts-to-rethink-mass-surveillance-checking-executive-spying-power//DM)

What Happened? Congressional allies of the intelligence agencies failed to muster enough votes to extend Section 215 in the face of opposition, including a dramatic bipartisan filibuster initiated by Sen. Rand Paul (R-Kentucky). The Freedom Act, proposed as a compromise after negotiation with the administration (which launched a failed 11th-hour blitz to ram it through) fell three votes short of the required minimum to force a vote. Senate Majority Leader Mitch McConnell (R-Kentucky) then tried to force votes on a short-term reauthorization without proposed reforms, which several senators from both parties flatly rejected. While the Freedom Act would have imposed some limits on domestic spying, the compromise it embodied was profoundly unambitious. The bill was built in relative secret, without nearly enough public input, and ignored most of the issues raised by the Snowden disclosures two years ago. Having failed to sustain either the proposed compromise or several short-term reauthorization attempts proposed by the Senate majority leader, Congress need not waste further time considering whether to resuscitate Section 215. A federal appellate court recently ruled that its prior incarnation was illegal, anyway, reducing another potential vote to bickering over "yesterday's news." The political shift indicates a direction for future reform. Who Wins and Who Loses? The most obvious losers are the NSA and FBI. After 15 years of breaking already permissive laws, yet not congressional blank checks, the agencies must finally start complying with constitutional limits. Within the agencies, senior leaders of the intelligence establishment also emerge looking like clowns. Section 215 survived this long only because agency officials - including Director of National Intelligence James Clapper and former NSA Director Michael Hayden - lied under oath to evade oversight. The Senate's decision to end a program that senators learned about from whistleblowers, instead of those officials, further discredits their legacies. Even if they remain above the law by evading the prosecution for perjury sought by multiple members of Congress, their careers will be defined by congressional and judicial rejection of illegal programs they built in secret. To the extent intelligence officials are clowns, the many congressional leaders from both parties who supported them are stooges. Establishment Democrats and Republicans alike uncritically accepted lies, deferred to them and went along with the Beltway consensus - in sharp contrast to their populist colleagues who proved willing to uphold their oath of office to "defend the Constitution against all enemies, foreign and domestic." Several winners also emerged from this drama. Congressional rejection of mass spying vindicates several principles at once, including transparency, oversight, checks and balances, the separation of powers and constitutional rights enshrined in the First and Fourth Amendments. Each of those values is cherished across the political continuum, making them especially powerful during a presidential election year. Senator Paul is another clear winner. He demonstrated leadership, surged among the crowded GOP field of 2016 presidential hopefuls and effectively seized control of the Senate from the majority leader. With its senators leading both the surveillance/secrecy/corruption caucus, as well as the competing constitutional/privacy/accountability caucus, Kentucky could also claim victory. The US Constitution may be the most important winner. By proxy, "We the People of the United States" actually scored two victories at once. Narrowly, the expiration of Patriot Act Section 215 advances Fourth Amendment privacy interests. Even though mass surveillance will continue for now under other legal authorities, one program through which our government monitors phone calls and tracks everyone's behavior, regardless of wrongdoing, will end. More broadly, this vote begins a long-overdue process of limiting executive powers, expanded during a period of seeming emergency, which grew entrenched despite proving ineffective as well as constitutionally offensive. In this sense, congressional assertiveness supports democracy in a long-running battle to avoid the erosion from within foreseen by both Alexis de Tocqueville and President and Supreme Allied Commander Dwight Eisenhower. What Comes Next? With reformers having triumphed in Congress, the debate over surveillance reform must expand. Further reforms are necessary to enable an adversarial process and greater transparency at the secret Foreign Intelligence Surveillance Court, and also to limit other legal authorities - like Executive Order 12333 and FISA Section 702 - used to justify unconstitutional domestic surveillance. It's a good thing that a bipartisan measure, the Surveillance State Repeal Act (HR 1466), is poised to do exactly that. Rep. Mark Pocan (D-Wisconsin) and Rep. Thomas Massie (R-Kentucky) introduced the SSRA to force the agencies to justify the expansion of any powers from a constitutional baseline, rather than one contrived by a decade of executive lies. Congress has long abandoned its role of checking and balancing runaway executive power, but the Senate's recent vote suggests an overdue awakening. Members should heed the political wind, and embrace bipartisan calls for aggressive limits as the starting point for comprehensive surveillance reform.

Congress Solves Congress best to regulate drones – previous experience

Farber 14 (Hillary B., J.D., Associate Professor of Law at the University of Massachusetts’ School of Law, “Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Development, 64 Syracuse L. Rev. 1, pg. 27-30, 2014)

IV. Efforts to Regulate on the Federal Level The FAA Modernization and Reform Act of 2012 directs the FAA to promulgate regulations so airways can accommodate drones by 2015. n156 It is estimated that, by end of this decade, 30,000 drones will be operating in national airspace. n157 The FAA has selected six test sites to conduct research on how to safely integrate drones into the airspace. The six public entities include Griffiss International Airport in New York, Virginia Polytechnic Institute and State University (Virginia Tech), the University of Alaska, the State of Nevada, the North Dakota Department of Commerce, and Texas A&M University - Corpus Christi. n158Drone flights from these test sites are expected to begin by [*28] June 2014 and end in 2017. n159 The public and some members of Congress have called upon the FAA to establish a privacy policy as part of its mission to integrate drones into domestic airspace. n160 While the FAA maintains its chief mission is to ensure safety and efficiency of all aviation systems, it has responded in part by instituting privacy requirements for all test sites. n161 Regulation is imperative if there is any promise of curtailing the slow demise of a citizen's right to privacy in the face of these powerful, aerial observers. In light of inadequate Fourth Amendment protections, privacy violations could occur without redress if Congress does not act soon. Congressional regulation in the face of technological advancement is not without precedent. Congress has preemptively acted to address privacy issues in response to government surveillance of communication in transit (wiretapping), n162 communications in storage such as emails, n163 bank records, n164 and health records. n165 As one scholar commented, "with the Electronic Communication Privacy Act of 1986, Congress was protecting people's emails before most people knew what email was". n166 Possibly the most comprehensive and promising piece of legislation in Congress is the Drone Aircraft Privacy and Transparency [*29] Act, introduced in March 2013 by Senator Edward Markey. n167 The bill proposes strict guidelines for the collection and retention of information gathered by drones. The legislation would prohibit the FAA from issuing drones licenses unless the application includes a data collection statement disclosing who will operate the drone, where thedrone will be flown, the flight path, the type of data to be collected, how the data will be used, how long the data will be retained, and whether information will be shared with third parties. n168 Moreover, all this information will be available in a publicly searchable database, along with disclosures of any data security breaches suffered by a licensee and the times and locations of all drone flights. n169 The act further requires law enforcement agencies to file a data minimization statement that explains how the agency will minimize the collection and retention of data unrelated to the criminal investigation. n170 This adds a layer of transparency to the certification process, which has been veiled in a shroud of secrecy. It also elevates the privacy concerns beyond those of ordinary citizens to a federal regulatory agency. Privacy rights groups support this legislation as a significant step toward safeguarding privacy threatened by pervasive aerial surveillance. n171 At present, law enforcement agencies are deploying drones without any established privacy guidelines in place, and information pertaining to drone data has been virtually impossible to obtain despite Freedom of Information Act lawsuits filed by privacy rights groups. n172 The Drone Aircraft and Transparency Act is not the only attempt to regulate drone deployment at the federal level. In 2012, Senator Rand Paul introduced the Preserving Freedom from Unwanted SurveillanceAct, which called for a sweeping prohibition of drone usage for surveillance by any person or entity affiliated with the U.S. government. n173 Paul reintroduced the bill in May 2013. n174 The [*30] legislation currently resides in the Senate Judiciary Committee. n175

Congress’ oversight on wiretapping in the past indicates its expertise in regulating surveillance

Kerr ’04, professor of law at George Washington Law (Orin, professor of law at the George Washington University Law School, scholar in the subjects of computer crime law and internet surveillance, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution”, Vol. 102, No. 5 (Mar., 2004), pp. 801-888, cl)

This Part explores the history of wiretapping law and concludes that this account overstates the impact of the Fourth Amendment and understates the role of legislative privacy protections. To be sure, Katz and Berger remain good law, and modern wiretapping law reflects their influence. But from its inception in the mid-nineteenth century through the present, wiretapping law has remained a primarily statutory field governed by statutory commands. Indeed, it turns out that very few cases in the history of wiretapping law have ruled that a wiretapping practice violated the Fourth Amendment. Despite the big splash of Berger and Katz, later courts generally have declined to extend privacy against wiretapping beyond statutory commands. Fourth Amendment decisions may have affected the shape of legislation in important ways, but legislation rather than the Fourth Amendment has provided the primary protection against invasions of privacy from wiretapping. To some extent, this is not exactly news: pick up any practitioner’s treatise on wiretapping law and you will find that it is concerned primarily with statutory law.224 At the same time, the extent to which courts have refused to regulate wiretapping practices via judicial standards post-Katz is quite surprising. Wiretapping law is more legislative and less constitutional than most people realize. This Part examines the history of wiretapping law, with a focus on the source of legal protections. I divide the history of wiretapping law into four periods: first, pre-1934, including the period before and during the National Prohibition Act;225 second, from 1934 until 1967; third, from 1967 to 1968, involving the critical period of Berger v. New York, 226 Katz v. United States, 227 and the enactment of the federal Wiretap Act; and fourth, the period post-1968, which is the modern era following Katz. I argue that within each period, statutory protections rather than constitutional limits have been the primary regulators of wiretapping law and practice. I conclude by suggesting that the statutory regulation of wiretapping may be more the rule than the exception. While commentators have focused their attention on constitutional decisions, Congress has passed dozens of statutory laws that regulate law enforcement practices implicating new technologies. If wiretapping law provides a case study of whether courts or legislatures take the lead role in regulating privacy in new technologies, that case study suggests that Congress plays the lead, not the courts.

Legislative rule creation ensures up to date rules that the courts cannot provide in regards to privacy

Kerr ’04, professor of law at George Washington Law (Orin, professor of law at the George Washington University Law School, scholar in the subjects of computer crime law and internet surveillance, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution”, Vol. 102, No. 5 (Mar., 2004), pp. 801-888, cl)

In this part, I will argue that such enthusiasm for judicial solutions overlooks significant institutional limitations of judicial rulemaking. Courts tend to be poorly suited to generate effective rules regulating criminal investigations involving new technologies. In contrast, legislatures possess a significant institutional advantage in this area over courts. While courts have successfully created rules that establish important privacy rights in many areas, it is difficult for judges to fashion lasting guidance when technologies are new and rapidly changing. Th e context of judicial decisionmaking often leaves the law surprisingly unclear. Courts lack the institutional capacity to easily grasp the privacy implications of new technologies they encounter. Judges cannot readily understand how the technologies may develop, cannot easily appreciate context, and often cannot even recognize whether the facts of the case before them raise privacy implications that happen to be typical or atypical. Judicially created rules also lack necessary flexibility; they cannot change quickly and cannot test various regulatory approaches. As a result, judicially created rules regulating government investigations tend to become quickly outdated or uncertain as technology changes. The context of legislative rule-creation offers significantly better prospects for the generation of balanced, nuanced, and effective investigative rules involving new technologies. In light of these institutional realities, courts should place a thumb on the scale in favor of judicial deference to legislative privacy protections

AT: Congress FailsCongress already has expertise in drones—The Consumer Drone Safety Act is regulating drones now

Dillow 6/23

(Clay Dillow [contributing to Fortune since 2013, writing frequently about technology, aerospace, and defense], 6/23/15, "Is Congress' new drone safety act an innovation killer?," Fortune, fortune.com/2015/06/23/congress-drone-safety/, MX)

The proposed Consumer Drone Safety Act calls for more guidelines about when and where drones can fly in the U.S. With a wealth of aerospace engineering talent located in the south and Silicon Valley’s software programming talent up north, California has quietly grown into a hub for the growing U.S. drone industry. But, some in the industry are worried that a bill put forth by California’s own Sen. Dianne Feinstein could push the brakes on innovation by placing onerous restrictions on consumer drone technologies. Under pressure from Feinstein, the FAA recently released data showing 190 incidents during a nine-month period in 2014 where unauthorized drones were sighted by members of the general aviation community operating in areas where they were not authorized. Of those, some two dozen were reportedly described as close shaves, where a mid-air collision was narrowly avoided. In response, Sen. Feinstein has introduced the Consumer Drone Safety Act, which would create stricter federal laws governing consumer drone operations and require safety features to be incorporated into new consumer drones. “If we don’t act now, it’s only a matter of time before we have a tragedy on our hands,” Senator Feinstein said in a statement. While many industry advocates dispute the meaningfulness of the FAA’s incident data, they’re more concerned about the fallout from what they see as legislative overkill. “There’s potential for this to turn into a rather draconian set of limits on both the user and the manufacturer,” says Brendan Schulman, head of the Unmanned Aircraft Systems practice at New York City-based law firm Kramer Levin Naftalis & Frankel. At issue for Feinstein, it seems, is the fact that while the FAA has moved to heavily restrict and regulate drones flown for commercial purposes, drones flown recreationally are governed more or less by a set of non-regulatory best practices, rather than by federal law. The Consumer Drone Safety Act aims to create federal regulations regarding when, where, and how consumer drones can be operated, as well as require that new safety technologies be built into all new drones. These include collision-avoidance technology, transponders that signal a drones location to air traffic controllers and other aircraft, and geo-fencing—technology that creates a GPS virtual fence around no-fly zones that would prevent the drone from entering areas near airports or other restricted airspace. The bill also calls for “anti-tampering” safeguards that would prevent users from modifying consumer drones after they are purchased. However, some of these technologies are already emerging from within the industry. Geo-fencing technology is already built into the latest iteration of Shenzhen, China-based DJI’s popular consumer drones, which make up more than half of the consumer drone marketplace. Startups like AirMap provide consumer and commercial drone operators alike with a bevy of information about restricted airspaces and other localized regulations based on where an aircraft is flying. Still other technologies—like collision avoidance or so-called “sense and avoid” technologies—are still being developed by drone manufacturers, creating something of a cart-before-the-horse problem for manufacturers and regulators should the Consumer Drone Safety Act be passed into law. Besides questions about technological feasibility, industry advocates also worry that such a policy would kill innovation in a new industry that’s predicted to be worth tens of billions to American companies over the next decade. “If you were to incorporate all of these technologies on consumer drones, I don’t know if they would be affordable anymore,” Schulman says. “And that’s going to put a lot of these new startups out of business.” These startups range from any number of small, crowdfunded drone makers to growing commercial ventures with millions in venture backing and revenues like DJI, France-based Parrot, or Silicon Valley’s own 3D Robotics (3DR). For a company like 3DR that has staked its business model on an open platform that encourages users to tinker with its products’ software and hardware, the bill’s anti-tampering provisions are doubly damaging. Such restrictions would drive up development and manufacturing costs as well as stifle innovation among the company’s users. The onus to create safe consumer drones does fall on the industry, says Jesse Kallman, director of business development and regulatory affairs for Airware, a San Francisco-based startup focused on the software side of commercial drones. But, in many respects, the industry is already doing many of the things the bill mandates without subjecting itself to burdensome—and somewhat misguided—technology imperatives. “I think a lot of the responsibility does fall on the manufacturers, and we do need to think about safety from the very beginning and bake it into the product,” Kallman says. “So, I think there are benefits to this bill in terms of creating a safety mentality.” But, he adds, there are several aspects of the bill that are going to be tough to implement and enforce, especially for the FAA whose budget and manpower are already stretched very thin. The larger problem, he says, is the wide availability of the technology and the relatively narrow scope of opportunities for new users to educate themselves. “It’s a new market, it’s really easy to get your hands on this stuff, and users aren’t educated,” Kallman says. “Education is the biggest thing we can do for the industry. Imposing a bunch of technology restrictions doesn’t make sense in a lot of cases.” Some of the technologies that the bill would require manufacturers include in their products are still in their infancy, says Lisa Ellman, Co-Chair of the Global UAS Practice at the Washington, D.C. office of law firm Hogan Lovells. The legal expert, who also was a one-time policy advisor to the Obama administration says, that the bill, if passed, could derail the development of the very technologies it’s pressing the industry for. This type of disconnect between government officials and the industry, perhaps, best embodies the ongoing regulatory conflict that’s taking place in the drone industry these days. The drone industry has formed its own lobbying group, the Small UAV Coalition, which includes such deep-pocketed backers as Amazon and Google (Airware, Airmap, DJI, and 3DR are all also members) to represent its side of the argument on Capitol Hill. How effective the industry is at pushing pro-regulation legislators like Sen. Feinstein toward a middle ground will have a lot of impact on what the future U.S. drone industry looks like.

AT: Courts bestEmpirics prove—stare decisis prevents the judicial branch from making resolute decisions

Kerr ’04, professor of law at George Washington Law (Orin, professor of law at the George Washington University Law School, scholar in the subjects of computer crime law and internet surveillance, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution”, Vol. 102, No. 5 (Mar., 2004), pp. 801-888, cl)

A second difference between judicial and legislative rulemaking concerns their operative constraints. Judicial rulemaking is limited by strong stare decisis norms that limit the ability of judicial rules to change quickly; in contrast, legislatures enjoy wide-ranging discretion to enact new rules. The difference favors legislatures when technology is in flux because the privacy implications of particular rules can fluctuate as technology advances. To ensure that the law maintains its intended balance, it needs mechanisms that can adapt to technological change. Legislatures are up to the task; courts generally are not. Legislatures can experiment with different rules and make frequent amendments; they can place restrictions on both public and private actors; and they can even “sunset” rules so that they apply only for a particular period of time. The courts cannot. As a result, Fourth Amendment rules will tend to lack the flexibility that a regulatory response to new technologies may require. The statutory framework that governs Internet privacy demonstrates the flexibility and creative potential of legislative approaches. Congress enacted the Electronic Communications Privacy Act (“ECPA”) in 1986 to regulate the privacy of Internet communications.424 Since that time, Congress has amended the framework no less than eleven times: once in 1988, 425 twice in 1994,426 three times in 1996,427 once 1998, 428 twice in 2001, 429 and twice in 2002. 430 Some of those changes were only minor technical amendments, while others were more significant alterations to the statutory scheme. Moreover, the structure of Congress’s statutory Internet privacy laws demonstrates how legislative rules can impose creative and flexible regulatory regimes involving new technologies. For example, Congress opted to regulate both public and private parties to best protect privacy. This would be difficult if not impossible under the Fourth Amendment, which regulates only the government and private parties acting on the government’s behalf.431 But ECPA recognizes that private parties acting on their own can pose a serious threat to Internet privacy: if America Online can look through the e-mails of its 30 million subscribers and disclose the evidence to the police without restriction, this would gut Internet privacy protections. The Fourth Amendment does not restrict this disclosure, but ECPA does:432 in addition to restricting the ability of law enforcement to order private ISPs to disclose communications to law enforcement,433 the law also restricts the ability of private ISPs to disclose communications to law enforcement voluntarily.

AT: Court Sets precedent Legislative processes generate more informed rules than the court’s closed environment

Kerr ’04, professor of law at George Washington Law (Orin, professor of law at the George Washington University Law School, scholar in the subjects of computer crime law and internet surveillance, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution”, Vol. 102, No. 5 (Mar., 2004), pp. 801-888, cl)

The limitations of judicial rulemaking in the Fourth Amendment context are illustrated by two recent cases applying the Fourth Amendment to computers. Let’s start with United States v. Bach. 465 Bach raised a constitutional challenge to the law enforcement practice of faxing search warrants to ISPs for information on their servers.466 Rather than execute the search at the ISP, the police in Bach ordered the ISP that possessed the information to collect the evidence on its own and send it to law enforcement.467 The defendant argued that the Fourth Amendment required law enforcement to be physically present at the ISP (in this case, the California-based ISP Yahoo!) to execute the warrant themselves, or at least to oversee the process. According to the defendant, merely faxing the warrant to Yahoo! threatened privacy because it granted too much discretion to Yahoo! employees who could easily exceed the scope of the warrant… To be sure, legislative rulemaking is not a panacea. At the same time, the information environment of legislative rulemaking is superior to that of judicial rulemaking in the context of developing technologies. Legislatures can receive input from a wide range of sources, and can use these inputs to generate well-informed rules. The open legislative process and the accompanying public scrutiny tend to ferret out rules that are particularly unbalanced, and often lead to amendments that temper proposed rules that go too far in either direction. For example, Congress generally legislates in the area of high-tech privacy only after holding extensive hearings in which experts testify and comment on various technologies and regulatory strategies.483 Legislators typically ask both the Justice Department and civil liberties groups for comment, and consider objections from both sources before voting on legislation. The legislature can also amend proposed rules in response to concerns of the public, media coverage, or any experts the legislature wishes to consult. 484 Given this environment, the legislative process tends to generate more informed rules governing developing technologies than is likely to result from the closed environment of the judicial process.

AT: CP Doesn’t solve 4th Amend Establishing limits on drones is the only method to revitalize the fourth amendment

San Pedro 2014 (Victoria [J.D. Candidate, Stetson University College of Law]; STUDENT WORK: DRONE LEGISLATION: KEEPING AN EYE ON LAW ENFORCEMENT'S LATEST SURVEILLANCE TECHNOLOGY; 43 Stetson L. Rev. 679; kdf)

V. CONCLUSION AND RECOMMENDATIONS With the ubiquity of drone licenses among American law enforcement agencies, n288 the drag-net surveillance that was once a laughable concept n289 is now a reality. n290 While state statutes and proposed federal legislation attempt to limit law enforcement's ability to use drones in surveillance efforts, those proposals and statutes do not adequately address the duration of the sur-veillance or the sophistication of the technology used by law enforcement to enhance drone capabilities. Therefore, by requir-ing a warrant and restricting law enforcement from conducting drone surveillance for a period lasting longer than twenty-four hours, the proposed legislation will best address the issues left open by Fourth Amendment jurisprudence. [*720] Further, including the exigent circumstances language into the legislation will allow law enforcement agencies to better understand the circumstances that would permit the use of a drone. Because the courts have addressed exigent circumstances on numerous occasions, n291 law enforcement agencies may already have protocols and officer training dealing with exigent cir-cumstances. Rather than drafting legislation that attempts to describe a circumstance meriting the use of a drone, n292 using the exigent circumstances language will allow law enforcement agen-cies to comply with Fourth Amendment jurisprudence already defined by the Court. Similarly, legislation imposing a time restriction on the dura-tion of the surveillance will provide law enforcement agencies with a bright-line rule that facilitates application across the board. Since the current Fourth Amendment jurisprudence provides that one does not have a reasonable expectation of pri-vacy from all observations of one's property, n293 this statutory lan-guage will provide a reasonable expectation of privacy from prolonged observations of one's property. This proposal would comply with current Fourth Amendment jurisprudence regarding fly-over aerial observations and would also be consistent with the mosaic theory. n294 Further, this proposal limits law enforcement's ability to use any form of drone technology. Given that the technological advancements in this field will likely continue to progress at a rapid pace, any proposed legislation should incorporate an objective standard defining the permissible level of technology or an outright prohibition on the use of all drone surveillance. In this way, we can align the use of this form of technology with Fourth Amendment protections. Rather than providing vague standards, such as technology that is not in general public use, the general restriction provides a bright-line rule to law enforcement agencies. [*721] Therefore, this proposal would allow law enforcement to be exempt from the warrant requirement for exigent circumstances, while also allowing them to obtain a warrant from a neutral and detached magistrate when law enforcement intends to conduct long-term surveillance, thereby ensuring that law enforcement agencies comply with the warrant requirement of the Fourth Amendment and respect citizens' privacy rights.

AT: SOP Add on Legislative reform is key to ensure effective jurisdiction over the executive— congress is a pre-requisite to court action

Divoll 12

(Vicki Divoll is a lawyer and national security expert based in Washington D.C. Until 2012, Divoll taught United States Government and Constitutional Develo, 3/25/12, "Targeted killings: Who's checking the executive branch?" pg. online @ articles.latimes.com/2012/mar/25/opinion/la-oe-divoll-congress-and-targeted-assassinations-20120325//DM)

The courts have recognized repeatedly that in order to perform its basic constitutional responsibilities, Congress can and must acquire information from the president and the departments and agencies of the executive branch. The fact that the memo is highly classified is no excuse, nor is it likely to fit within the very narrow doctrine of executive privilege, as enunciated by the Supreme Court. So Leahy would be within his rights to be piqued. But is Congress getting or not getting this memo really the point here? Holder has publicly outlined the memo's bottom line, and he has likely given more detail in closed session committee briefings. But shouldn't Leahy ask his own legion of lawyers, who are at least as competent as those in the executive branch, to assess the state of the law for him? Here, in a nutshell, is what they would probably find: First, the Supreme Court has not ruled (yet) that the due process clause of the Constitution prohibits the executive branch, without judicial review, from targeting and killing an American outside a war zone. Second, there are no statutes on the books that prevent the president from ordering such an action. Third, any executive orders or other policy statements that might be interpreted to preclude such a killing do not bind the president. Finally, it may be that the justification of self-defense is sufficiently strong to answer the moral and ethical questions, (although we do not know the details of the administration's position). So, Sen. Leahy, now you can stop asking for memos that you neither need nor are likely to obtain, and get to work. In the 1970s, Congress did just that, taking a hard look at the excessive intelligence activities of agencies within the executive branch. It did not like what it found, nor did the American people. Months of hearings by select committees of the House and the Senate resulted in new laws limiting, most notably, the power of the executive branch to target American citizens. Back then we were outraged that our phones could be tapped without a judge's order, so Congress enacted the Foreign Intelligence Surveillance Act of 1978 to require judicial oversight. Regarding targeted killing, pressure from Congress got President Ford to issue an executive order prohibiting assassinations altogether, though we were killing only foreigners in those days. So now we are targeting not just the phones but the lives of Americans, and there is no constitutional doctrine, statute or executive order addressing the issue. This is where the framers would have expected the legislature to take a good, hard look. The framers — political realists one and all — would not be surprised, however, by the deafening silence on this issue from Capitol Hill. Presumably, the Republican majority in the House is in favor of the aggressive policy, and the Democratic majority in the Senate may be reluctant to lead the charge against a policy embraced by one of its own in the White House. But Leahy wants to do something, so he is checking the oversight box by publicly asking for memos, rather than holding hearings to examine whether, once again, we may need legislation to curb executive branch excesses. In the 1970s, Congress enacted the safeguard of judicial review before the executive could conduct electronic surveillance of Americans, and noncitizens, inside the United States, not trusting the executive to make those decisions on its own. And in 2008, the law was amended to protect Americans' phones and email overseas too. Leahy should redirect his attention from asking for memoranda from the Justice Department to focus his committee's energy on the real issue facing Congress: Should the president of the United States be able to order the killing of an American citizen with no review outside his own executive branch advisors? Even if Leahy trusts this president to tread cautiously with such enormous, unchecked power, what about the next one, or the one after that?

FAA CP1NC CPCounterplan- The United States federal government should amend the FAA Modernization and Reform Act by mandating interagency cooperation to create a Memorandum of Understanding that clarifies responsibilities, recommends permissible use guidelines, and creates accountability for the privacy implications of drone use.

Counterplan key to solve privacy

Hendriksen 13 (Patrice Hendriksen is an associate at Goodwin Proctor LLP and an executive editor for The George Washington Law Review, “Unmanned and Unchecked: Confronting the Unmanned Aircraft System Privacy Threat Through Interagency Coordination,” Published December 2013, George Washington Law Review, Volume 82:207, http://www.gwlr.org/wp-content/uploads/2014/02/GWN105.pdf, SZ)

To address the UAS privacy gap, Congress should amend the FAA Modernization and Reform Act of 2012 to require creation of an MOU addressing the privacy issues implicated by rapid UAS integration in the national airspace system. The proposed amendment requires participation of three primary stakeholders—the FAA, DOJ, and DHS—and permits their discretionary consultation with other interested agencies.223 The FAA is well versed as the primary actor in UAS integration already. Of the remaining interested agencies, the DOJ has the closest connection to the crux of the issue: the use of UASs by law enforcement.224 DHS has demonstrated a vested interest in and developing expertise regarding the privacy implications of government UAS operations.225 Interagency coordination preserves the current lead status of the FAA while bringing in additional interested agencies to offer their expertise on the issue. A congressionally mandated MOU provides an appropriate vehicle to accomplish this goal: it is flexible enough to respond to the constantly evolving status of UASs and can be structured to create accountability among involved agencies. Substantively, the mandated MOU should clarify jurisdictional lines among agencies, require interagency communication, and recommend substantive guidelines for permissible UAS operations. Further, the amendment should call for the MOU’s timely revision, defined to reflect the FAA’s timeline for integration. Stakeholders agree that developing guidelines for permissible UAS uses ahead of their widespread adoption may preclude abuse.226 This proposal ensures that privacy constraints develop in step with the problem itself by evolving in response to the FAA’s already established integration timeline.227 Finally, to further promote the accountability of member agencies under this amendment, the agencies should publish the MOU and submit a report of the resulting plan to relevant congressional committees for consideration.

Plan can’t solve- tech is too sophisticated- Counterplan provides only way to solve

Hendriksen 13 (Patrice Hendriksen is an associate at Goodwin Proctor LLP and an executive editor for The George Washington Law Review, “Unmanned and Unchecked: Confronting the Unmanned Aircraft System Privacy Threat Through Interagency Coordination,” Published December 2013, George Washington Law Review, Volume 82:207, http://www.gwlr.org/wp-content/uploads/2014/02/GWN105.pdf, SZ)

Complete UAS integration into the domestic airspace is a steadily approaching reality. As law enforcement surveillance missions increase, so does the threat to citizens’ Fourth Amendment and related privacy rights. However, sophisticated UAS technology can be constrained by neither existing Fourth Amendment jurisprudence nor the current statutory scheme. Additionally, legislative and single-agency solutions fail to address the complex nature of UAS use. Congress should revise the FAA Modernization and Reform Act of 2012 to require coordination between the FAA and other agencies invested in UAS privacy issues though an MOU that clarifies jurisdictional bounds, assigns responsibilities, and creates accountability for the privacy “gap” in UAS integration. Such an amendment would respond to the complex and changing nature of the UAS privacy issue and take the much-needed initial step of assigning responsibility for its resolution.

Overview

The counterplan solves for the entirety of the plan. Solves for privacy concerns without linking to the . Solves best by mandating interagency cooperation to create a Memorandum of Understanding. This creates an efficient guaranteed way to solve clarifying responsibilities, recommends permissible use guidelines, and creates accountability for the privacy implications of drone use. The CP would change the FAA Modernization and Reform Act to solve for privacy concerns. The FAA is key to solve because it is the primary agency regulating drone use. Ext. CP SolvencyExt. 1NC Hendriksen evidence- Counterplan key to solve privacy. By mandating cooperation, a Memorandum of Understanding will be formed that solves for all concerns about drone use Privacy is an increasing concern- Counterplan is only way to solve

Hendriksen 13 (Patrice Hendriksen is an associate at Goodwin Proctor LLP and an executive editor for The George Washington Law Review, “Unmanned and Unchecked: Confronting the Unmanned Aircraft System Privacy Threat Through Interagency Coordination,” Published December 2013, George Washington Law Review, Volume 82:207, http://www.gwlr.org/wp-content/uploads/2014/02/GWN105.pdf, SZ)

Unmanned aircraft systems (“UASs”), popularly known as “drones,” are an evolving technology that provides a tempting alternative to more traditional law enforcement surveillance methods. Their presence in the national airspace is a quickly approaching reality. The Federal Aviation Administration (“FAA”) is the primary agency regulating UAS use, but its reach extends to safety, not privacy. The FAA must integrate UASs into the national airspace by 2015. UAS technology and its market are also changing. Models are becoming smaller, faster, and less expensive to build and operate. There will likely be 30,000 UASs in our skies by 2030, with law enforcement agencies representing their most significant future users. Domestic UAS surveillance operations implicate the Fourth Amendment right to freedom from unreasonable searches and other privacy interests. UASs have great potential to violate citizens’ “reasonable expectations of privacy” as explained by the Supreme Court in aerial surveillance and sense-enhancing technology cases because the technology lacks certain practical boundaries that formerly constrained traditional surveillance. This Note proposes that Congress amend the FAA Modernization and Reform Act to mandate interagency coordination among UAS federal stake-holders. Congress should require these stakeholders to create a Memorandum of Understanding that clarifies responsibilities, recommends permissible use guidelines, and creates accountability for the privacy implications of UAS integration. Such an amendment will effectively address the complexity of UAS operations and close the privacy gap that exists under the law today.

AT: Plan solves better/AT: Courts keyWarrants are insufficient to solve- the FAA has the greatest authority over drones

Hendriksen 13 (Patrice Hendriksen is an associate at Goodwin Proctor LLP and an executive editor for The George Washington Law Review, “Unmanned and Unchecked: Confronting the Unmanned Aircraft System Privacy Threat Through Interagency Coordination,” Published December 2013, George Washington Law Review, Volume 82:207, http://www.gwlr.org/wp-content/uploads/2014/02/GWN105.pdf, SZ)

The proposed statutory amendment is necessary because neither existing case law nor the current statutory regime places adequate limitations on domestic UAS surveillance by law enforcement. Courts have not yet applied the Fourth Amendment to UAS surveillance,166 and when they do, the degree to which UAS use will be circumscribed is difficult to predict.167 Moreover, even if the courts that ultimately confront this issue do provide meaningful protections from UAS abuse, those protections will come too late, after UASs have become more prevalent. UAS stakeholders agree that developing usage guidelines before UASs become more popular may prevent abuses by law enforcement and a negative public perception of UASs.168 Waiting for courts to speak on the issue opens the door for such abuses to occur in the meantime. Legislative guidance is also lacking. As Justice Alito suggested in Jones, legislative or regulatory action may better safeguard privacy interests from new technology than courts of law.169 Legislatures can respond to public attitudes, draw appropriately detailed lines, and balance comprehensive public interests.170 Congress has not yet spoken directly on UAS privacy issues. Under the current statutory regime, the FAA apparently has the greatest authority over UASs due to its general responsibility to regulate the national airspace, and its specific charge to facilitate the safe integration of UASs into the airspace under the FAA Modernization and Reform Act of 2012.171 Some UAS stakeholders have already urged the FAA to incorporate privacy concerns into its UAS rulemaking procedures.172 FAA officials have rejected the call to address privacy, explaining that it is outside the FAA’s mission of aviation safety.173 Despite the FAA’s earlier protest, however, in November 2013, the agency released Final Privacy Requirements for its six UAS test sites.174 Rather than prescribing substantive privacy policies for test site operators, the requirements mandate that operators develop their own privacy and data retention policies and comply with applicable privacy law.175

AT: Perm do bothIf we prove that the counterplan solves the aff and avoids the net-benefit, we only need to win a risk of the DA to prove the perm would cause the impacts of the DA.

The plan and CP are incompatible – the perm would include the warrants which would link to OR they sever the plan and makes going for the counterplan impossible, unique reason to vote negative

McNeal 2014 (Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)

Conclusion The emergence of unmanned aerial vehicles in domestic skies raises understandable privacy concerns that require careful and sometimes creative solutions. The smartest and most effective solution is to adopt a property rights approach that does not disrupt the status quo. Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency, and data retention procedures will create the most effective and clear legislative package. Legislators should reject alarmist calls that suggest we are on the verge of an Orwellian police state.[73] In 1985, the ACLU argued in an amicus brief filed in California v. Ciraolo that police observation from an airplane was “invasive modern technology” and upholding the search of Ciraolo’s yard would “alter society’s very concept of privacy.” Later, in 1988, the ACLU argued in Florida v. Riley that allowing police surveillance by helicopter was “Orwellian” and “would expose all Americans, their homes and effects, to highly intrusive snooping by government agents...” In a different context in 2004 (before the advent of the iPhone) police in Boston were going to use Blackberry phones to access public databases (the equivalent of Googling). Privacy advocates decried the use of these handheld phones as “mass scrutiny of the lives and activities of innocent people,” and “a violation of the core democratic principle that the government should not be permitted to violate a person’s privacy, unless it has a reason to believe that he or she is involved in wrongdoing.”[74] Reactionary claims such as these get the public’s attention and are easy to make, but have the predicted harms come true? Is the sky truly falling? We should be careful to not craft hasty legislation based on emotionally charged rhetoric. Outright bans on the use of drones and broadly worded warrant requirements that function as the equivalent of an outright ban do little to protect privacy or public safety and in some instances will only serve to protect criminal wrongdoing. Legislators should instead enact legislation that maintains the current balance between legitimate surveillance and individuals’ privacy rights. The best way to achieve that goal is to follow a property centric approach, coupled with limits on pervasive surveillance, enhanced transparency measures, and data protection procedures.

AT: Perm do CPPerm do the CP is illegitimate- they are severing out of the warrants of the plan. This is a voting issue for fairness and education.The plan links to the net benefit whereas the counterplan avoids the link. Proves the Counterplan is competitive. Policy precision is unique in the instance of drones- proves competition

Yang 2014 (Y. Douglas [JD Boston U]; BIG BROTHER'S GROWN WINGS: THE DOMESTIC PROLIFERATION OF DRONE SURVEILLANCE AND THE LAW'S RESPONSE; 23 B.U. Pub. Int. L.J. 343; kdf)

IV. Conclusion Drones present a revolutionary problem that requires both the Judiciary and legislatures to modify their approaches to regulating and controlling government surveillance. n309 Upholding the spirit of the Fourth Amendment, a spirit that embodies notions of privacy and security from unwarranted government intervention, n310 requires that society at least attempt to maintain a similar degree of privacy with drones that people enjoyed without drones. The Supreme Court's framework for analyzing Fourth Amendment questions underlines the difficulty and sheer magnitude of this task, however. n311 Over the course numerous terms, the Supreme Court has oscillated between the rigid interpretations of Olmstead, to practical yet indeterminate constructions of privacy in Katz, and back to a mixture of both in Jones. n312 Even when discussing narrowly tailored issues such as aerial surveillance, the Court struggles to maintain a firm footing as to what constitutes a "search," and what does not. n313 Nonetheless, the Supreme Court's framework provides useful guidance for forming a solution that answers how society can successfully assimilate drone surveillance into the American landscape without further deteriorating individual privacy rights and expectations. Beyond the Supreme Court's guidance, the various federal and state legislative responses to the rise of drone surveillance provide yet another insight into how drone surveillance should be treated. n314 Analyzing legislative responses generally yields a much closer view of how the general public views drone use, [*388] simply because "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way." n315 The near-ubiquitous warrant requirements among both the federal and state proposals clearly indicate that the legislatures intend to restrict drone use above and beyond the Supreme Court's baseline rules. n316 Nevertheless, neither the Supreme Court nor the various legislative proposals properly address how to define and restrict drone surveillance; the Court simply has not addressed the limits of drone use as of yet, and the legislatures have misapplied warrant requirements to drones when such requirements are too broad, too blunt, and unreasonably restrictive. n317 To effectively address the privacy issues that surround drone surveillance, one needs to apply a new approach that is founded on legal precedent and embraces a balance between society's interest in effective law enforcement and the individual's interest in personal privacy. Instead of applying a near-universal warrant requirement, courts and legislatures should look to bright-line rules that are more precise, attuned, and reasonable, while affording a similar level of protection that an ordinary person enjoys today. n318 This Note presents six bright-line rules to assist legislatures and courts in their determinations of how drone surveillance should be regulated. n319 Each of the six rules restates the Supreme Court's understanding of the Fourth Amendment, yet simultaneously incorporate suggestions from various federal and state legislative proposals that addressed the public's concerns. n320 As the world of privacy law and the Fourth Amendment wander into the uncertain caverns of drone surveillance, this Note aims to shed some light onto the right path forward. While society may currently see drones as an unknown entity, society may soon find a path that preserves its fundamental values and security, while enabling genuine law enforcement work to carry out its duty to protect us all.

McNeal CP1NCThe United States federal government should limit the persistent use of aerial surveillance, require law enforcement agents to delete impertinent information after 48 hours, and mandate that aerial surveillance occur at least 350 feet above the ground.

The CP is preferable to the warrant-based logic of the aff

McNeal 2014 (Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)

While warrants are appealing to privacy advocates, the enactment of overly broad restrictions on drone use can curtail non-invasive, beneficial uses of drones. Legislators should reject a warrant-based, technology centric approach as it is unworkable and counterproductive. Instead, legislators should follow a property rights centric approach, coupled with limits on persistent surveillance, data retention procedures, transparency and accountability measures and a recognition of the possibility that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance. This paper makes five core recommendations: Legislators should follow a property rights approach to aerial surveillance. This approach provides landowners with the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level. Such an approach may solve most public and private harms associated with drones. Legislators should craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the government may surveil a specific individual. Such legislation can address the potential harm of persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft. Legislators should adopt data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance. After a legislatively determined period of time, all stored data should be deleted. Legislators should enact transparency and accountability measures, requiring government agencies to publish on a regular basis information about the use of aerial surveillance devices (both manned and unmanned). Legislators should recognize that technology such as geofencing and auto-redaction, may make aerial surveillance by drones more protective of privacy than human surveillance.

Overview

We are counterplanning out of the affirmatives warrant requirements because those provisions uniquely make it difficult to prevent terror attacks. Our McNeal evidence says that the best approach to drones is to require transparency on data collection, erasing impertinent information, and making to so drones have to fly in higher airspace. This solves the privacy advantage because it ensures that only information pertinent to investigations is kept and puts drones under the same laws as helicopter surveillance. We solve the drone warfare advantage because the counterplan would send the same signal internationally as the plan by not allowing for the weaponization of domestic drones. Lastly, we avoid the link to the terrorism disad because instead of grounding drones, we allow for the constant collection of evidence that could be vital in preventing a looming attack.

AT: Perm Do Both1. If we prove that the counterplan solves the aff and avoids the net-benefit, we only need to win a risk of the DA to prove the perm would cause terrorism

2. The aff and CP are incompatible – the perm would include the baggage of warrants OR they sever the plan and makes going negative impossible, unique reason to vote negative

McNeal 2014 (Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)

Conclusion The emergence of unmanned aerial vehicles in domestic skies raises understandable privacy concerns that require careful and sometimes creative solutions. The smartest and most effective solution is to adopt a property rights approach that does not disrupt the status quo. Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency, and data retention procedures will create the most effective and clear legislative package. Legislators should reject alarmist calls that suggest we are on the verge of an Orwellian police state.[73] In 1985, the ACLU argued in an amicus brief filed in California v. Ciraolo that police observation from an airplane was “invasive modern technology” and upholding the search of Ciraolo’s yard would “alter society’s very concept of privacy.” Later, in 1988, the ACLU argued in Florida v. Riley that allowing police surveillance by helicopter was “Orwellian” and “would expose all Americans, their homes and effects, to highly intrusive snooping by government agents...” In a different context in 2004 (before the advent of the iPhone) police in Boston were going to use Blackberry phones to access public databases (the equivalent of Googling). Privacy advocates decried the use of these handheld phones as “mass scrutiny of the lives and activities of innocent people,” and “a violation of the core democratic principle that the government should not be permitted to violate a person’s privacy, unless it has a reason to believe that he or she is involved in wrongdoing.”[74] Reactionary claims such as these get the public’s attention and are easy to make, but have the predicted harms come true? Is the sky truly falling? We should be careful to not craft hasty legislation based on emotionally charged rhetoric. Outright bans on the use of drones and broadly worded warrant requirements that function as the equivalent of an outright ban do little to protect privacy or public safety and in some instances will only serve to protect criminal wrongdoing. Legislators should instead enact legislation that maintains the current balance between legitimate surveillance and individuals’ privacy rights. The best way to achieve that goal is to follow a property centric approach, coupled with limits on pervasive surveillance, enhanced transparency measures, and data protection procedures.

AT: Perm do the CPPolicy precision is unique in the instance of drones – the perm would sever out of the warrant provision of the 1ac, voting issues for education and fairness

Yang 2014 (Y. Douglas [JD Boston U]; BIG BROTHER'S GROWN WINGS: THE DOMESTIC PROLIFERATION OF DRONE SURVEILLANCE AND THE LAW'S RESPONSE; 23 B.U. Pub. Int. L.J. 343; kdf)

IV. Conclusion Drones present a revolutionary problem that requires both the Judiciary and legislatures to modify their approaches to regulating and controlling government surveillance. n309 Upholding the spirit of the Fourth Amendment, a spirit that embodies notions of privacy and security from unwarranted government intervention, n310 requires that society at least attempt to maintain a similar degree of privacy with drones that people enjoyed without drones. The Supreme Court's framework for analyzing Fourth Amendment questions underlines the difficulty and sheer magnitude of this task, however. n311 Over the course numerous terms, the Supreme Court has oscillated between the rigid interpretations of Olmstead, to practical yet indeterminate constructions of privacy in Katz, and back to a mixture of both in Jones. n312 Even when discussing narrowly tailored issues such as aerial surveillance, the Court struggles to maintain a firm footing as to what constitutes a "search," and what does not. n313 Nonetheless, the Supreme Court's framework provides useful guidance for forming a solution that answers how society can successfully assimilate drone surveillance into the American landscape without further deteriorating individual privacy rights and expectations. Beyond the Supreme Court's guidance, the various federal and state legislative responses to the rise of drone surveillance provide yet another insight into how drone surveillance should be treated. n314 Analyzing legislative responses generally yields a much closer view of how the general public views drone use, [*388] simply because "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way." n315 The near-ubiquitous warrant requirements among both the federal and state proposals clearly indicate that the legislatures intend to restrict drone use above and beyond the Supreme Court's baseline rules. n316 Nevertheless, neither the Supreme Court nor the various legislative proposals properly address how to define and restrict drone surveillance; the Court simply has not addressed the limits of drone use as of yet, and the legislatures have misapplied warrant requirements to drones when such requirements are too broad, too blunt, and unreasonably restrictive. n317 To effectively address the privacy issues that surround drone surveillance, one needs to apply a new approach that is founded on legal precedent and embraces a balance between society's interest in effective law enforcement and the individual's interest in personal privacy. Instead of applying a near-universal warrant requirement, courts and legislatures should look to bright-line rules that are more precise, attuned, and reasonable, while affording a similar level of protection that an ordinary person enjoys today. n318 This Note presents six bright-line rules to assist legislatures and courts in their determinations of how drone surveillance should be regulated. n319 Each of the six rules restates the Supreme Court's understanding of the Fourth Amendment, yet simultaneously incorporate suggestions from various federal and state legislative proposals that addressed the public's concerns. n320 As the world of privacy law and the Fourth Amendment wander into the uncertain caverns of drone surveillance, this Note aims to shed some light onto the right path forward. While society may currently see drones as an unknown entity, society may soon find a path that preserves its fundamental values and security, while enabling genuine law enforcement work to carry out its duty to protect us all.

AT: Exigent circumstances solve the NB /AT: Perm do the CPExigent circumstances don’t solve the net-benefit, prefer our evidence because it cites the same sources as the 1AC authors

McNeal 2014 (Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)

Legislators should reject broadly worded use restrictions. Some jurisdictions have enacted limitations on how information gathered from drones may be used. Legislators should reject these broadly worded use restrictions that prohibit the use of any evidence gathered by drones in nearly any proceeding. Such restrictions exceed the parameters of the Fourth Amendment and in some circumstances may only serve to protect criminals while not deterring governmental wrongdoing. For example, the Alameda County California Sheriff’s Department proposed the use of small drones for: crime scene documentation, EOD missions, HAZMAT response, search and rescue, public safety and life preservation missions, disaster response, fire prevention, and documentation of a felony when such documentation is premised upon probable cause.[53] Linda Lyle, a privacy advocate with the ACLU criticized the proposal, stating: “If the sheriff wants a drone for search and rescue then the policy should say he can only use it for search and rescue...Unfortunately under his policy he can deploy a drone for search and rescue, but then use the data for untold other purposes. That is a huge loophole, it’s an exception that swallows the rule.”[54] Her points mirror the ACLU’s position in their December 2011 white paper where they state that drone use is acceptable so long as “the surveillance will not be used for secondary law enforcement purposes.”[55] It is also similar to the language used in other proposals prohibiting the use of information gathered by a drone “as evidence against an individual in any trial, hearing or other proceeding....”[56] A simple hypothetical can help to illustrate the problem with this approach. Imagine that law enforcement uses a drone to search for a lost hiker in a state park. This is a search and rescue mission that fits within the public safety, emergency, or exigency exceptions in most legislative proposals aimed at controlling drone usage. However, imagine that during the course of the search the drone observed a man stabbing a woman to death in the park. That collection was entirely inadvertent, and as such suppressing the videotape of the stabbing would not serve to deter the police from using drones in the future as they were not searching for an unrelated stabbing crime, they were searching for a lost hiker. Yet, that evidence under the blanket use restrictions found in various proposals circulating in state legislatures, Congress, and under the ACLU’s “secondary law enforcement purposes” standard would need to be suppressed.[57] Suppressing secondarily gathered evidence doesn’t protect privacy (as inadvertent discovery can’t be deterred); it merely protects a criminal who if observed from a helicopter, an airplane, or from the ground would face evidence of his crime, but under broadly worded drone focused privacy bills may be more difficult to prosecute. It is difficult to see what public policy goal is furthered by suppressing evidence of a crime merely because the evidence was gathered from a drone instead of a helicopter. Do legislators really want to be in the position of making it harder to punish perpetrators of violent crime? If the discovery were genuinely inadvertent, there is little to no deterrent value that justifies suppressing such evidence.

AT: CP doesn’t solve 4th AmendmentThey say that the counterplan doesn’t solve the privacy advantage, but McNeal disagrees – by mandating drones to be at least 350 feet off the ground there is no reason they can look into bedroom windows and by requiring law enforcement agencies to delete impertinent data every 48 hours ensures that they cannot aggregate data about our lives. Furthermore, the counterplan requires law enforcement agencies to report on a regular basis how they are using drones providing the counterplan with verification.

Beyond all of this – they simply over-hype how drone surveillance occurs – that’s the McNeal evidence I read on the perm and on the case debate.

Police abuse, not privacy concerns, are the real issue – the CP resolves them

Reid 2014 (Melanie [Associate Professor of Law, Lincoln Memorial University-Duncan School of Law]; GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION; 20 Rich. J.L. & Tech. 9; kdf)

VI. THE REAL FEAR BEHIND DRONE USE: GOVERNMENT ABUSE P77 If privacy is not the real concern behind drone use, perhaps it is the fear of law enforcement abuse. If law enforcement uses drone technology to target particular areas of the community and randomly "search for crime," is there another way to keep law enforcement in check than to say drone use automatically triggers the Fourth Amendment and requires a warrant? General crime monitoring has never been considered an acceptable practice by the Court. n242 Drones should be used only for investigations of specific targets, not merely to "look for crime." Citizens of the United States do not want to become citizens of the next Soviet Union where agents and drones randomly patrol for criminal or anti-state activity. Citizens fear that regular drone flights might inadvertently collect data from a whole range of individuals unrelated to a specific investigation. P78 The answer lies not in requiring a warrant or a particular exception to the warrant requirement, but in requiring law enforcement to seek a court order similar to that required for a pen register under 18 U.S.C § 2703. n243 To obtain such a court order, law enforcement officials would need to demonstrate specific and articulable facts indicating that the data is relevant to an ongoing criminal investigation. This would prevent law enforcement from using drones to randomly search for crime in a particular area. The order would specify the identity, if known, of the person who is the subject of the criminal investigation and whom law enforcement would like to surveil and describe the particularized need for the information that can be gathered with the drone. n244 P79 The order also should contain language requiring law enforcement to discard any information collected by the drone that is not relevant to the scope of the investigation within twenty-four to forty-eighty hours. This requirement would alleviate any concerns that the government would collect this information for other nefarious purposes in the future. Being that it is a court order, this requirement would have teeth as long as magistrates signing these orders follow up and demand that law enforcement demonstrate that they in fact have complied with the order and destroyed any irrelevant information. If a law enforcement officer fails to comply, a variety of sanctions could be used to demand compliance. Sanctions even as severe as jail time would cause any law enforcement agent to comply fully. P80 The court order also should include a penalty for disclosing to unauthorized persons data obtained from a drone, thereby limiting exposure of the information to government personnel working on the particular case, similar to grand jury secrecy requirements under the Federal Rule of Criminal Procedure 6(e). n245 Under Federal Rule of Criminal Procedure 6(e)(7), "[a] knowing violation of Rule 6 . . . may be punished as a contempt of court." n246 Moreover, if the drone is flown outside the FAA regulated navigable airspace and views activity not within the public's vantage point, penalties should also be in place to punish those individuals in violation of strict flight guidelines provided in the court order. Punishing individual agents with contempt of court holds both law enforcement and judges accountable and likely will serve as a more effective means to prevent government abuse than requiring warrants prior to drone flights. P81 The requirement of a court order similar to that found pursuant to 18 U.S.C. § 2703 eliminates the charade of fitting drone use within the Fourth Amendment context. Instead, it mandates a standard similar to that required for any information the government requests via a court order, such as a request for a pen register. n247 While the Supreme Court deemed a pen register to be outside the Fourth Amendment, Congress later passed 18 U.S.C. § 2703 to provide some protections against governmental abuse. n248 Drone use does not give rise to privacy issues; it gives rise to concerns of government abuse and should follow the pen register precedent. n249 P82 The U.S. Constitution contains no express right to privacy, but the Fourth Amendment provides certain guarantees for the privacy of the person and possessions. n250 The "liberty" guarantee of the Fourteenth Amendment has been broadly interpreted to guarantee a fairly broad right of privacy and privacy issues. n251 The Court can address the possible infringement on these undefined privacy issues by focusing on the legality of drone surveillance through the prism of "reasonable" use. If law enforcement utilizes the drone to collect data that is relevant to a particular, ongoing investigation, then the drone use is reasonable. n252 The greater the intrusiveness of the investigatory tool, the greater the possibility that tool will move into the "search" category of the Fourth Amendment, at which point the tool becomes unreasonable without a warrant. n253 Therefore, a drone that hovers around bedroom windows and takes photographs of the lady of the house taking her daily sauna would be intrusive and unreasonable and would constitute a "search" under the Fourth Amendment (as would a drone with thermal imaging or x-ray capabilities), and a warrant is required. However, if the lady of the house chooses to walk outside and tend to her garden in her front yard, she must come to terms with the fact that prying eyes may be watching--whether it be realtors, Hollywood filmmakers, or law enforcement. The tool used in public areas is reasonable and can be utilized without a warrant. It would be reasonable for any of these actors to come across the gardener in the process of conducting their own drone projects. If law enforcement requested the utilization of a drone via a § 2703 court order to assist them in the surveillance of a real-time drug transaction and happen upon the lady of the house tending her marijuana garden, then it would be reasonable for the government to use that evidence against her in a criminal prosecution. n254 Language in the court order should allow for the subsequent use of this type of information. Once outside, the lady of the house takes the risk that her actions will be seen; our zones of privacy where a warrant is required have traditionally been reserved for our indoor activities. P83 Our right to privacy stems from our desire to be free from governmental interference in our daily lives. In the Fourth Amendment context, we have a right to be free from unreasonable searches and seizures and a right to be free from governmental abuse. However, these protections do not extend to any limitation on law enforcement's use of drone surveillance in public areas for a specific purpose. There is no realistic expectation of privacy when a drone passes over one's house or car or observes our activity in public. We gave up the luxury of privacy in public places long ago. P84 Drone use by law enforcement must be limited but not unduly subjected to Fourth Amendment scrutiny, as drones should not constitute a "search." To limit the temptation to use drones to "look for crime," law enforcement could be subject to the court order process prior to utilizing a drone in an investigation. P85 In my opinion, in the following scenarios drone use by law enforcement might fall closer towards a "search" under the Fourth Amendment and a warrant would most likely be required: (1) The drone is flown outside FAA navigable airspace for aircraft and helicopters (below 400 feet); (2) The drone collects information emanating from within the home (similar to thermal imaging or infrared sensors that detect movement); (3) Law enforcement uses highly sophisticated technology that is not commercially available (e.g., automated license plate readers or facial recognition technology); (4) The drone hovers around a particular area which may constitute a long-term sustained monitoring as mentioned in Jones, and a reasonable expectation of privacy is triggered; or (5) The drone hovers and creates an undue amount of wind, noise, dust, or threat of injury that could constitute a "trespass." P86 Fourth Amendment cases invoking the Katz or Jones doctrines all touch upon the nature of the technology used (does it permit the government to "see" what would otherwise be invisible to the naked eye, even in daylight, from a lawful vantage point) and the nature of the place being observed (is it an open field, the curtilage of a home, commercial property as in Dow Chemical, or the interior of a home?). n255 The more a drone operates outside of FAA guidelines and the more a drone causes undue dust, noise, and wind, the more the drone operation will constitute a trespass and the Fourth Amendment is triggered. The more a drone uses highly sophisticated technology not available for public use or collects information from inside the home, the more the drone operation will constitute a "search" under the Fourth Amendment as citizens will have a reasonable expectation of privacy in the area and activities being observed. P87 Therefore, drones that fly within FAA navigable airspace, observing private property below that can be seen by the public in an aircraft, and using commercially available cameras or enhanced sensory technology, would fall outside Fourth Amendment protections and should be regulated via court order as previously suggested.

AT: Doesn’t solve Drone Warfare advantage There is nothing intrinsic about requiring the cops to get warrants in the US being key to get other countries to reign in their drone use. To whatever extend the aff solves for drones abroad, the restrictions that the counterplan mandates would do the same because we prevent domestic drone weaponization too.

AT: Doesn’t Solve EconThe cp’s limits on where drones can fly stimulates the industry

Rule 2015 (Troy A [Associate prof of law @ Sandra Day O'Connor college of law]; Airspace in the age of drones; 95 B.U.L. Rev. 155; kdf)

Conclusion Innovations in the domestic drone industry are making it possible for citizens to access low-altitude airspace like never before. Although these technological advances have the potential to greatly benefit humankind, they [*208] are also creating new and unprecedented conflicts involving the space through which they fly. Prior to the advent of modern drones, there was no pressing need to precisely define the scope of landowners' property interests in low-altitude airspace. Unfortunately, as a growing flock of domestic drones stands ready for takeoff, ambiguous airspace rights laws are now threatening to impede the growth of an important new industry. In the midst of these pressures, principles of microeconomics and property theory call for new laws giving landowners more definite rights to exclude drones from the airspace directly above their land. These exclusion rights would be most effective if they were treated as equivalent to rights that landowners have long enjoyed in surface land and if they extended all the way up to the navigable airspace line where the public highway for air travel begins. Laws establishing such rights would create a simple "exclusion" regime for low-altitude airspace that is better suited to handle aerial trespass and takings questions involving domestic drones. They could also be an integral part of a broader system of new federal, state, and local laws tailored to drones' unique characteristics. By enacting clear and efficient drone laws, policymakers can help to ensure that the sky is the limit for the domestic drone industry in the twenty-first century.

AT: CP Links to the terror DAThere is a key distinction between the aff and the counterplan – they make it more onerous for drones to collect data that will prevent a terror attack. The CP allows for constant surveillance but only keeps the data that is useful in solving terror – that’s multiple pieces of McNeal evidence. At worse for us, the CP links to the NB less than the aff does.

AT: Separation of Powers Add-onDomestic spying isn’t an issue of Separat