DEA Discloses Bulk Surveillance of Americans’ International Phone Calls

Update (1/21/2014): The ACLU has filed a Freedom of Information Act request demanding that the DEA and other federal agencies release further information to the public about this database. The recent revelation of the DEA’s bulk phone records program is a crucial part of an ongoing debate regarding the government’s collection of Americans’ private information in massive government databases. Yet the public has little information about the program beyond the spare details contained in the recently filed declaration. This request seeks to fill those gaps in knowledge.

The Drug Enforcement Administration acknowledged yesterday yet another government program involving the bulk collection of Americans’ call records. In a three-page court filing in a criminal case long shrouded in secrecy, the DEA said that – up until September 2013 – it collected en masse information about U.S. calls made to and from certain countries.

The only country named in the filing is Iran, but the DEA stated that the program encompassed a number of foreign countries “that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.” The total number of countries covered by the program remains secret. Yet the filing raises the prospect that the DEA has been collecting a record of every call to Mexico, the Bahamas, Iran, Afghanistan, and dozens of other countries on the theory that all those calls are “relevant” to the DEA’s international drug-trafficking investigations. (Consider the fact that the DEA currently maintains foreign offices in 67 countries.)

The disclosure underscores how the government has extended its use of bulk collection far beyond the NSA and the national security context, into ordinary law enforcement. And it shows how a strained and untenable theory of “relevance” has been used to justify the surveillance of millions of innocent Americans using laws that were never written for that purpose.

The DEA database represents the fourth government program involving bulk collection of call records disclosed to date. The other bulk-collection programs are:

• Under Section 215 of the Patriot Act, the NSA collects call records in bulk from a number of major U.S. telecommunications providers. These phone records can be queried in terrorism investigations with the approval of the secretive Foreign Intelligence Surveillance Court, and in any investigation where the government has obtained a FISA order for electronic surveillance. The results of those queries – which may together comprise millions of call records – are pooled in a shadow database that may be searched and analyzed without any FISA court supervision, and for a far wider range of purposes. The ACLU is challenging the NSA’s bulk collection of Americans’ call records in a number of cases around the country.
• Under Executive Order 12,333, the NSA collects as many as 5 billion phone records each day, according to a report in The Washington Post. Those phone records are collected outside the United States, but may be queried for telephone contacts within the United States under certain procedures. A number of other federal agencies may be able to search the database containing these aggregated phone records using ICREACH, an NSA-built interface designed to facilitate searches of information gathered under Executive Order 12,333.
• Using the Hemisphere Program, law enforcement agents have access to a database of call records reaching back as far as 1987, as reported by The New York Times. AT&T provides access to the phone records, but the database is not limited to AT&T customers. Instead, AT&T collects information on all calls crossing its network, whether or not they originate with an AT&T subscriber. This program is the subject of litigation in at least one criminal case, in which the ACLU and EFF filed an amicus brief.

The proliferation of these bulk-collection programs exposes the breadth and danger of the government’s legal theories. In defending the NSA’s bulk collection of phone records under Section 215, the government has repeatedly attempted to explain away the fact that its legal theories would allow bulk collection in contexts far removed from national security and terrorism, making Americans’ financial records, prescription records, and other information vulnerable to government surveillance in ordinary criminal investigations.

The new DEA program belies the government’s claims. It shows that the NSA’s use of Section 215 is only the tip of the iceberg when it comes to the bulk collection of information about innocent Americans.

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