We now have information that the NSA may not have been the government agency which has snooped the most on Americans. The New York Times has revealed information on a previously secret operation by the DEA which began under George Bush and continued during the Obama administration:
For at least six years, law enforcement officials working on a counternarcotics program have had routine access, using subpoenas, to an enormous AT&T database that contains the records of decades of Americans’ phone calls — parallel to but covering a far longer time than the National Security Agency’s hotly disputed collection of phone call logs.
The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.
The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987.
The project comes to light at a time of vigorous public debate over the proper limits on government surveillance and on the relationship between government agencies and communications companies. It offers the most significant look to date at the use of such large-scale data for law enforcement, rather than for national security.
The scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act. The N.S.A. stores the data for nearly all calls in the United States, including phone numbers and time and duration of calls, for five years.
Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.
The slides were given to The New York Times by Drew Hendricks, a peace activist in Port Hadlock, Wash. He said he had received the PowerPoint presentation, which is unclassified but marked “Law enforcement sensitive,” in response to a series of public information requests to West Coast police agencies.
The program was started in 2007, according to the slides, and has been carried out in great secrecy.
“All requestors are instructed to never refer to Hemisphere in any official document,” one slide says. A search of the Nexis database found no reference to the program in news reports or Congressional hearings.
The ACLU has reasonable speculation as to why this program was kept so secret: “I’d speculate that one reason for the secrecy of the program is that it would be very hard to justify it to the public or the courts.”
Yes, very hard to justify. Any potential benefits here are far less significant than NSA surveillance which at least (other than for some reported cases of misuse) is directed at al Qaeda, which is far more significant than the targets of DEA investigations. If anything, the DEA’s perceived need to violate the rights of Americans in this manner is just one more reason why the drug war must be ended.
The Obama administration finds this helpful, apparently without consideration of the civil liberties concerns:
The Obama administration acknowledged the extraordinary scale of the Hemisphere database and the unusual embedding of AT&T employees in government drug units in three states.
But they said the project, which has proved especially useful in finding criminals who discard cellphones frequently to thwart government tracking, employed routine investigative procedures used in criminal cases for decades and posed no novel privacy issues.
Crucially, they said, the phone data is stored by AT&T, and not by the government as in the N.S.A. program. It is queried for phone numbers of interest mainly using what are called “administrative subpoenas,” those issued not by a grand jury or a judge but by a federal agency, in this case the D.E.A.
Brian Fallon, a Justice Department spokesman, said in a statement that “subpoenaing drug dealers’ phone records is a bread-and-butter tactic in the course of criminal investigations.”
James Joyner has posted more on this use of “administrative subpoenas” with references including this post at Wired from just over a year ago:
Meet the administrative subpoena (.pdf): With a federal official’s signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers — virtually all businesses — are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.
In fact, there are roughly 335 federal statutes on the books (.pdf) passed by Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena, according to interviews and government reports. (.pdf)
“I think this is out of control. What has happened is, unfortunately, these statutes have been on the books for many, many years and the courts have acquiesced,” said Joe Evans, the utility’s attorney.
Anecdotal evidence suggests that federal officials from a broad spectrum of government agencies issue them hundreds of thousands of times annually. But none of the agencies are required to disclose fully how often they utilize them — meaning there is little, if any, oversight of this tactic that’s increasingly used in the war on drugs, the war on terror and, seemingly, the war on Americans’ constitutional rights to be free from unreasonable government trespass into their lives.
That’s despite proof that FBI agents given such powers under the Patriot Act quickly began to abuse them and illegally collected Americans’ communications records, including those of reporters. Two scathing reports from the Justice Department’s Inspector General uncovered routine and pervasive illegal use of administrative subpoenas by FBI anti-terrorism agents given nearly carte blanche authority to demand records about Americans’ communications with no supervision.
There are known risks to privacy rights going beyond what Edward Snowden released regarding the NSA. This information came out in response to public information requests. How much information about other abuses is out there which nobody knew enough to request, and how much is kept secret and unavailable under such requests?