The Drug Enforcement Agency (DEA) appears to be taking a cue from the National Security Agency (NSA) in its surveillance practices.
The DEA has reportedly been using a secret phone surveillance program called “Hemisphere,” which allows agents to access billions of phone records without having to obtain a court order, according to The Intercept.
Insiders in the agency have raised concerns about the program, which was launched in 2007. However, the DEA appears to have hidden statements from those who argued that the program could be abused in a way that violates civil liberties.
When the DEA’s program was made public, it immediately drew comparisons to the National Security Agency’s domestic phone call database revealed by Edward Snowden.
The key details of the DEA program were shocking to civil liberties advocates: AT&T had made billions of phone call records available to the agency and other law enforcement agencies in exchange for payment.
Those records did not include the content of calls, but they did include metadata information on the time, and information on the number called, according to the Electronic Frontier Foundation. The data extended far beyond AT&T’s own customers, since most calls pass through AT&T’s switches at some point.
The “Hemisphere” project could provide call data not just about who a target was communicating with, but also so called “two-hop” data on who that second person was in phone contact with as well.
Authorities could request the call records by sending a request to AT&T — without a court order required — and the company asked the government to keep the program secret. The DEA even sought to cover up the program’s existence by sending traditional subpoenas later on in cases headed for court, a process known as “parallel construction.”
A newly unredacted 2019 Justice Department report reveals that concerns over the constitutionality of the program were raised at least four times by other officials. A DEA supervisor requested “assurance” that the program was legal, but the agency’s lawyers did not come to a final conclusion.
A DEA special agent expressed “major concerns” about the program in a 2008 email to senior officials. This led to the drafting of a formal memorandum. However, it was never distributed to field agents.
The program appears to have sparked controversy among officials in other agencies as well. The FBI suspended its use of the database in 2010. Jeramie Scott of the Electronic Privacy Information Center told The Intercept that “The DEA had less qualms about using advanced products that the FBI seemed to think were legally questionable.”
When even the FBI, which has repeatedly abused FISA to spy on American citizens, takes issue with such a program, then it’s probably not legitimate.
AT&T assisted the government with the program by providing call metadata, which included “two-hop” data, which reveals not only who a target has contacted, but also who those contacts have communicated with. DEA agents could access the database without judicial oversight.
“There should have been no question from the very start that this program needed a proper legal analysis,” Scott said.
The Justice Department downplayed concerns about the program when it was finally revealed in 2013. They contended that it was similar to other longstanding methods. But opponents pointed out that “Hemisphere” provided more expansive and robust data collection than the usual subpoena-based investigations.
Sen. Ron Wyden (D-OR) noted that the program was never ended even after an outcry from civil liberties advocates and lawmakers. Instead, the senator noted that it was simply rebranded under a “new generic sounding program name, ‘Data Analytical Services,’” in a letter to then-Attorney General Merrick Garland.
Wyden and Rep. Andy Biggs (R-AZ) have been pushing for more government surveillance reforms, but have failed to bring about any serious restrictions on federal agencies. “It’s a real failure of oversight and accountability that years went by without a proper legal analysis,” Scott insisted.
After the furor over Snowden’s exposure of the NSA died down, it appears the federal government once again began allowing officials to surveil American citizens without a warrant or court approval. There are likely several other programs similar to Hemisphere that are flying under the radar.
Unfortunately, with the exception of civil liberties advocates and some members of Congress, there isn’t much curiosity about this issue, which means these agencies will continue to get away with violating our constitutional rights.
Perhaps this is a job for the Department of Government Efficiency (DOGE). Indeed, I wish this initiative was less about making the government more efficient and more about rooting out the type of corrupt practices detailed in The Intercept’s article.
Cutting waste and spending is wonderful. But at some point, the very real concerns about the surveillance state must be addressed.
