Brad Heath

USA TODAY

WASHINGTON — The Drug Enforcement Administration has ordered its agents to seek input from federal prosecutors before tapping Americans’ phone calls or text messages, months after it came under fire for a vast and legally questionable eavesdropping program in the Los Angeles suburbs.

The rules are a significant change for the drug agency, which had dramatically increased its use of wiretaps over the past decade by seeking authorization from state judges and prosecutors who were willing to approve the surveillance more quickly and with less scrutiny. By 2014, the DEA sent more than 60% of its wiretap applications to state courts, largely bypassing Justice Department lawyers.

The change was part of a wide-ranging review DEA Administrator Chuck Rosenberg ordered after he took office last year. A spokesman for the drug agency, Russ Baer, said the review identified “deficiencies” in how some agents sought approval for wiretaps.

“This is one of several areas the acting administrator looked at and said we can do better,” Baer said.

An investigation last year by USA TODAY and The Desert Sun found that the DEA and prosecutors in Riverside County, Calif., outside Los Angeles, had built a wiretapping program that secretly intercepted millions of calls and text messages based on the approval of a single state-court judge. Justice Department lawyers had warned agents that the surveillance — which at its peak accounted for nearly a fifth of all U.S. wiretaps — likely violated a federal law.

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Under the new rules, DEA agents now must consult with federal prosecutors before seeking a wiretap regardless of whether they want the surveillance approved in state or federal court. And they must get approval from a senior DEA official before they can ask a state court to approve the eavesdropping. The goal, Baer said, is to move more of the agency’s surveillance requests to federal court.

“That’s significant,” said Brian Butler, a defense lawyer in Louisville who is challenging the legality of the DEA’s Riverside wiretaps in a marijuana trafficking case there. “With federal courts, there’s a significant amount of scrutiny on something before you get a wiretap, and there’s a lot of layers of protection for privacy that don’t exist in state court."

Earlier this year, Butler argued to suppress Riverside wiretaps in a Kentucky drug case, insisting they had come from a “rogue” county that approved “illegal wiretaps with astounding frequency.” Last week, Kentucky U.S. District Court Judge David Hale ruled the wiretap evidence could stay, but said in an order that the “sheer volume” of Riverside wiretaps “suggests that that constitutional requirements cannot have been met.”

Still, some privacy advocates questioned whether the new rules would be enough to curb questionable eavesdropping. “It’s form over substance. Nothing’s really going to change,” said Stephanie Lacambra, a staff attorney for the Electronic Frontier Foundation, a privacy rights group that has been critical of the DEA’s wiretap practices.

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Wiretaps are considered so intrusive that federal law requires approval from a senior Justice Department official before agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on state court wiretaps, even when sought by federal agents.

On paper, agents’ choice of state or federal court shouldn’t matter. Federal law sets a minimum standard for all wiretaps, whether approved by state judges or federal ones. In practice, though, the differences can be significant. Justice Department lawyers warned agents, for example, that the wire authorizations being approved by the Riverside County Superior Court frequently fell short of what the federal law required.