Cousin of NSA Surveillance Program Draws Broad Privacy Concerns

Though the monitoring of domestic telephone logs by the National Security Agency has drawn more fire from critics, a recently exposed cousin of that program run by the Drug Enforcement Administration is raising broad privacy concerns among civil liberties groups.

In the Sept. 1 piece “Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s,” The New York Times detailed DEA’s so-called Hemisphere Project, a six-year-old, previously secret federal and local law enforcement partnership with communications giant AT&T that allows agents probing suspected drug law violators access to phone records going back to 1987. The project is directed by the White House Office of National Drug Control Policy.

That revelation followed an Aug. 5 exclusive story by Reuters revealing that a DEA unit called the Special Operations Division has been “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”

Though the cases are not national security-related, Reuters said a review of documents showed that “law enforcement agents have been directed to conceal how such investigations truly begin -- not only from defense lawyers but also sometimes from prosecutors and judges.”

A DEA spokeswoman referred inquiries to the Justice Department, which did not respond to repeated queries. Nor did the White House.

But the Obama administration’s rationale for the program, Justice spokesman Brian Fallon told the Times, is that it provides a tool useful in tracking criminals who discard cellphones frequently and that it takes advantage of long-standard investigative procedures that do not unduly threaten citizen privacy. Most important, the spokesman said, the records are kept by AT&T, not the federal government, which accesses them through “administrative subpoena.”

But the DEA’s approach is troublesome to the civil liberties groups interviewed by Government Executive.

“This is pretty much what we had suspected all along, a natural result when you have this kind of intelligence gathering run amok,” said Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation based in San Francisco. “Once one agency gets access to this information, it makes sense for other agencies to say, ‘Hey, we need access too,’ ”

The invocation of “national security” has a “high-end value in our country,” Fakhoury added, “but when DEA does it, the compelling justification is absent.”

Eric E. Sterling, the president of the nonprofit Criminal Justice Policy Foundation and onetime counsel to the House Judiciary Committee, said the project’s embedding of AT&T and the fact that records go back to the 1980s make “the dragnet of possibilities shocking.” Sterling conjured the image of a citizen who hires a roofer or a maid without checking the worker’s immigration status, and perhaps the roofer has a drug conviction, or he buys a new cellphone with a phone number formerly used by a drug dealer.

“This surveillance is terribly dangerous to society because of a kind of reaction that people have that they could be investigated,” he said. It threatens people who, perhaps 20 years ago in college organized rave parties, or provided marijuana to a fraternity brother, he added. The policy pressures citizens “to say, ‘I’ll keep my mouth shut because I don’t want to be seen as criticizing the government.’ So they won’t sign a petition or write their member of Congress or join an organization because it’s asking for trouble if they stick their neck out,” he said. 

Sterling argued that “this price is measurably high compared to ostensible benefits it generates in capturing offenders.”

Equally harsh was Ezekiel Edwards of the ACLU’s Criminal Law Reform Project, who published an essay last week accusing the DEA of concealing the existence of the Hemisphere Project because it “raises serious constitutional questions. There is a strong argument that it is unreasonable under the Fourth Amendment for the government to outsource the automatic collection and storage of millions of Americans' phone records without any individualized suspicion and without court approval or oversight—simply so that law enforcement agencies have easy and immediate access in the future.” 

Edwards was also critical of the DEA’s use of NSA’s foreign intelligence information in its domestic drug investigations. “This practice jeopardizes the right to a fair trial for anyone facing criminal prosecution based on evidence derived from that surveillance data,” he wrote.