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Drug Agents Have an NSA-Style Spying Problem

Ezekiel Edwards,
Former Special Counsel,
ACLU Criminal Law Reform Project
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September 4, 2013

Over the last few months, we’ve been bombarded with revelation after revelation about the NSA’s unprecedented spying on Americans. But, according to The New York Times, the NSA’s untethered snooping is eclipsed by the agents fighting in a war that began long before 9/11: the costly and failed War on Drugs.

The Drug Enforcement Administration’s secret Hemisphere Project, news of which broke this week, allows drug law enforcement agencies broad access to billions of AT&T phone records going back a quarter century—to 1987. As The New York Times explained, “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.”

Our government’s mass telephonic data-mining has sparked immense and deserved outrage. But to those who have been targeted by the War on Drugs for the last several decades, the Hemisphere Project is only one in a long line of privacy-invading tactics employed by the U.S. government. Many other intrusions – such as the thousands of unconstitutional stops-and-frisks of people of color in cities across the country, the countless doors kicked in by police in search of drugs, the seizure and forfeiture of property of people never convicted of a crime – are representative of the kinds of common corporal intrusions that have been endured by many Americans, disproportionately of color, long before many post 9/11-era invasions of privacy became commonplace for all Americans.

Further, since 9/11, there has been an increasingly entrenched relationship between overreaching national security programs and domestic drug law enforcement policies. Each has fed on the other: the long-running drug war provided useful surveillance blueprints for the massive domestic spying programs that have sprouted up since 9/11. At the same time, domestic drug law enforcement agencies have seized upon the dismantling of basic constitutional protections over the past decade – in the name of national security – and pointed the resulting weapons toward America’s own citizens.

It should not surprise us then that the Hemisphere Project is only the latest disclosure of mission creep. We found out last month that the DEA secretly uses NSA surveillance data against Americans as part of its drug investigations – and then conceals its reliance on this foreign intelligence information. This practice jeopardizes the right to a fair trial for anyone facing criminal prosecution based on evidence derived from that surveillance data. Or consider “sneak and peek” warrants, in which law enforcement enters a home or office when no one is present and conducts a search of the premises, without giving notice to the occupant beforehand. Provisions allowing for these warrants were included in the Patriot Act after government officials said they are necessary to fight terrorism, but 76% of “sneak and peeks” were used in drug investigations in 2010. (And that is no anomaly: from 2006-2009, 1,618 sneak and peek warrants were used in drug cases, 22 in fraud cases, and 15 in terrorism investigations). Further, the use of GPS tracking devices, aerial surveillance, and the militarization of police – often justified by national security needs – are instead often coopted as highly destructive components of our domestic drug war.

In keeping with the clandestine nature of our government’s various spying programs, the DEA had delineated a series of steps to “keep the program under the radar” by instructing “all requestors … to never refer to Hemisphere in any official document” and “‘walling off’ the information the government obtains from Hemisphere.” This is all in the name of enforcing drug prohibition, a 40-year failure that has cost billions, led to the unnecessary incarceration of millions of Americans, and failed to make a significant dent in the use, availability, or potency of drugs.

Why has the DEA kept this surreptitious surveillance program in the shadows? Because, as with so many of government surveillance programs, Hemisphere 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. Like the N.S.A.’s mass call-tracking program, such extensive and unlimited data gathering, particularly reaching back decades, allows the government to construct incredibly detailed and invasive pictures of our past and present lives.

Simply put, under the tired guise of protecting Americans from drugs, the U.S. government has secretly targeted and invaded the life and privacy of millions of its own citizens. The U.S. should be ending the War on Drugs, not expanding it by secretly outsourcing widespread surveillance.

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