It recently came out that DEA agents have been using NSA data, collected via warrantless wiretaps under the auspices of national security, to investigate drug crimes. Now it’s come to light that the DEA has been for years dipping into an AT&T-run database far more extensive and intrusive than than any NSA program we know of, including PRISM and Boundless Informant.
The story fits into the ongoing news narrative about government surveillance overreach. In fact it goes further. While the NSA has come under fire for keeping the phone number, time and duration of all calls in the United States for up to five years, the DEA program Hemisphere collects all that, plus the locations of callers and has data going back 26 years.
Hemisphere gives the DEA unfettered, unprecedented access to Americans’ call records and has been purposefully kept top-secret. The process seems to be that DEA decides to target someone and they supply their target’s phone number to their AT&T employee and he or she looks back at everyone that person has called, where they were when they called and how long the call lasted, going back 26 years.
However, the real scandal is the way in which this data is collected: without warrants, through what the agency is calling “administrative subpoenas.” In other words, these warrants aren’t approved by a grand jury or a judge, but by the federal agency requesting them. The DEA is writing its own warrants to spy on Americans to gather evidence to make drug arrests.
Wired introduced the administrative subpoena last year, describing it thusly:
With a federal official’s signature… 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 the same article Lawrence Payne, a DEA spokesman, describes an administrative subpoena as having “Obviously, a much, much lower threshold than a search warrant.”
Why this information would be less protected than what is in someone’s home is a question which has not been answered by any of the dozens of federal agencies who now use administrative subpoenas.
As Catherine Crump pointed out for Salon:
Call-detail records are sensitive. Even analysis of a single call can reveal that someone has called a domestic violence or suicide hotline. More call data can be very telling about people’s social networks, as someone called frequently is more likely to be a close friend than someone called rarely. This is not the sort of information the government should access lightly, and certainly not without the supervision of a judge.
A search warrant cannot be issued without probable cause, or the search is considered unreasonable search and seizure. There seems to be no rational basis for excluding this kind of data from that kind of protection. Federal agencies have been asked why they can’t get traditional subpoenas or how often they’re issuing these subpoenas, to no avail.
Excluding data searches from Fourth Amendment scrutiny via administrative subpoenas also increases the chances of a wrongful conviction. Part of the utility of a normal subpoena is that the target then can inform the victim of the search. Administrative subpoenas gag companies like AT&T from telling victims about their surveillance, meaning they cannot fight back, challenge or investigate the evidence against them.
Brian Fallon, a Justice Department spokesman, attempted to justify the program, saying that it “simply streamlines the process of serving the subpoena to the phone company so law enforcement can quickly keep up with drug dealers when they switch phone numbers to try to avoid detection.”
The entire point of a subpoena is to provide a check against law enforcement agencies who would otherwise perform “unreasonable” searches of innocent citizens. Checks such as warrants and subpoenas are set up to be respected, not “streamlined” when they prove inconvenient for federal agents looking to bust drug offenders.