Drug War Using American Phone Records More Than Terror War
Prism ain’t got nothin’ on the Hemisphere Project.
NYT (“Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s“):
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.
At first blush, this seems like an outrageous violation of the rights of American citizens. Unlike the NSA program, this is aimed primarily at conversations between American citizens, not foreign nationals. And, whatever one might think of the wars on drugs and terror, it’s easier to make a case for pushing the envelope for the latter; al Qaeda is actively trying to kill Americans. (Also: Note the start date. It began under the previous, Republican administration and has continued under the present, Democratic administration.)
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.”
Mr. Fallon said that “the records are maintained at all times by the phone company, not the government,” and that Hemisphere “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.”
I must plead ignorance here: I had not previously been aware that there was such a thing as an administrative subpoena. The very concept is alien to me, in that the whole point of the 4th Amendment is to provide a judicial check on the power of the executive. How can an agency grant itself a subpoena? And recall that even the NSA can’t do that; it has to go to the FISA Court, which is staffed by sitting Article III judges.
But, in fact, Congress granted DEA authority to issue administrative subpoenas under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and gave the FBI the same power when investigating health care fraud cases under the Health Insurance Portability and Accountability Act of 1996. A 2006 Congressional Research Service report, “Administrative Subpoenas in Criminal Investigations: A Sketch,” [PDF] explains,
Administrative subpoena authority is the power vested in various administrativeagencies to compel testimony or the production of documents or both in aid of the agencies’ performance of their duties. Both the President and Members of Congresshave called for statutory adjustments relating to the use of administrative subpoenas in criminal investigations. One lower federal court has found the sweeping gag orders andlack of judicial review that mark one of the national security letter practices constitutionally defective. Proponents of expanded use emphasize the effectiveness ofadministrative subpoenas as an investigative tool and question the logic of its availability in drug and health care fraud cases but not in terrorism cases. Critics suggest that it is little more than a constitutionally suspect “trophy” power, easily abused and of little legitimate use.
Traditionally, administrative subpoenas have been used in non-criminal cases, i.e. by regulatory agencies:
Administrative agencies have long held the power to issue subpoenas and subpoenas duces tecum in aid of the agency’s adjudicative and investigative functions. There are now over 300 instances where federal agencies have been granted administrative subpoena power in form or another. The statute granting the power ordinarily describes the circumstances under which it may be exercised: the scope of the authority, enforcement procedures, and sometimes limitations on dissemination of the information subpoenaed. In some instances, the statute may grant the power to issue subpoena duces tecum, but explicitly or implicitly deny the agency authority to compel testimony. The statute may authorize use of the subpoena power in conjunction with an agency’s investigations or its administrative hearings or both. Authority is usually conferred upon a tribunal or upon the head of the agency. Although some statutes preclude or limit delegation, agency heads are usually free to delegate such authority and to authorize its redelegation thereafter within the agency. Failure to comply with an administrative subpoena may pave the way for denial of a license or permit or some similar adverse administrative decision in the matter to which the issuance of the subpoena was originally related. In most instances, however, administrative agencies
ultimately rely upon the courts to enforce their subpoenas. Generally, the statute that grants the subpoena power will spell out the procedure for its enforcement.
In an early examination of the questions, the Supreme Court held that the Fourth Amendment did not preclude enforcement of an administrative subpoena issued by the
Wage and Hour Administration notwithstanding the want of probable cause. Neither the Fourth Amendment nor the unclaimed Fifth Amendment privilege against self incrimination were thought to pose any substantial obstacle to subpoena enforcement. Soon thereafter a second case echoed the same message — the Fourth Amendment does not demand a great deal of administrative subpoenas addressed to corporate entities; a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. But it is sufficient if the inquiry is within the authority of agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement that the disclosure sought shall not be unreasonable.
This strikes me as perfectly reasonable. There’s no obvious reason to get the judiciary involved in routine regulatory matter and there are numerous oversights built into the system. The Fourth and Fifth Amendments are primarily about protecting citizens from government power in criminal matters, where life, liberty, and property are at risk.
The earliest of the three federal statutes (21 U.S.C. 876) used extensively for criminal investigative purposes appeared with little fanfare as part of the 1970 Controlled
Substances Act, and empowers the Attorney General to issue subpoenas “in any investigation relating to his functions” under the act. In spite of its spacious language, the
legislative history of section 876, emphasizes the value of the subpoena power for administrative purposes — its utility in assigning and reassigning substances to the act’s
various schedules and in regulating the activities of physicians, pharmacists, and the pharmaceutical industry — rather than as a criminal law enforcement tool. Nevertheless, the Attorney General has delegated the authority to issue subpoenas under section 876 to both administrative and criminal law enforcement personnel, and the courts have approved its use in inquiries conducted exclusively for purposes of criminal investigation. Section 876 authorizes both testimonial subpoenas and subpoenas duces tecum. It provides for judicial enforcement; failure to comply with the court’s order to obey the subpoena is punishable as contempt of court; it contains no explicit prohibition on disclosure.
This is much more obviously problematic. David Kravets, writing for Wired a year ago (“We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena“), explains,
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 andgovernment reports. (.pdf)
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.
But the administrative subpoena doesn’t just apply to utility records and drug cases. Congress has spread the authority across a huge swath of the U.S. government, for investigating everything from hazardous waste disposal, the environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism, securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits, vegetables, livestock and crops.
Some of the stranger statutes authorizing administrative subpoenas involve the Agriculture Department’s power to investigate breaches of the Floral Research and Consumer Information Act and the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act. The Commerce Department has administrative subpoena power for enforcing laws relating to the Atlantic tuna and the Northern Pacific halibut. It also has those powers when it comes to enforcing the National Weather Modification Act of 1976, requiring “any person to submit a report before, during, or after that person may engage in any weather modification attempt or activity.”
In a 2002 government report, the Commerce Department said it had not used its administrative subpoena powers to enforce the National Weather Modification Act “in the recent past.” (.pdf) Susan Horowitz, a Commerce Department spokeswoman, urged Wired to send in a FOIA in a bid to obtain data surrounding how often it issues administrative subpoenas.
Lacking in all of these administrative subpoenas is Fourth Amendment scrutiny — in other words, judicial oversight. That’s because probable cause — the warrant standard — does not apply to the administrative subpoena. Often, the receiving party is gagged from disclosing them to the actual targets, who could, if notified, ask a judge to quash it.
And even when they are challenged in court, judges defer to Congress — the Fourth Amendment notwithstanding.
That’s maddening but, alas, not completely surprising. The courts have in recent years been exceedingly deferential to Congress—and to the Executive, for that matter—on matters of public safety.
Back to the NYT report on the Hemisphere Project:
Daniel C. Richman, a law professor at Columbia, said he sympathized with the government’s argument that it needs such voluminous data to catch criminals in the era of disposable cellphones.
“Is this a massive change in the way the government operates? No,” said Mr. Richman, who worked as a federal drug prosecutor in Manhattan in the early 1990s. “Actually you could say that it’s a desperate effort by the government to catch up.”
But Mr. Richman said the program at least touched on an unresolved Fourth Amendment question: whether mere government possession of huge amounts of private data, rather than its actual use, may trespass on the amendment’s requirement that searches be “reasonable.” Even though the data resides with AT&T, the deep interest and involvement of the government in its storage may raise constitutional issues, he said.
Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said the 27-slide PowerPoint presentation, evidently updated this year to train AT&T employees for the program, “certainly raises profound privacy concerns.”
“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,” he said.
Mr. Jaffer said that while the database remained in AT&T’s possession, “the integration of government agents into the process means there are serious Fourth Amendment concerns.”