EFF Wins FOIA Lawsuit Against DEA, Forces The Release Of More Info About Its Hemisphere Program

from the creeping-transparency dept

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.

AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.

More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.

The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.

Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

Operation Hemisphere was initiated after 9/11 and is the name of an AT&T pointing mechanism to give the requester telephonic information that crosses through AT&T towers/switches. When all other means are exhausted in trying to locate a replacement number, a Hemisphere request may be submitted. Similar to ETS information, Hemisphere information is not to be used in 6s, affidavits, etc. When such information is needed, the requestor submits a special subpoena issued to AT&T and send it to the Op. Hemisphere POC, who then forwards it to the Hemisphere representative in Los Angeles. The response often determines whether or not the agent or analyst will perform a parallel construction.

It also shows the DEA attempting to disavow ownership of the program it spearheaded and recommended to local law enforcement agencies. In response to Rep. Darrell Issa's inquiries about the program -- prompted by the 2013 New York Times reporting -- the DEA tried to claim it had no control of the program and could not discuss it with Congressional oversight.

However, I would note that we will NOT be able to brief on Hemisphere-this is NOT a DEA program. It was created by and is currently managed by ONDCP. I don't want to push you oft: but Hemisphere is not in our wheelhouse.

This is from Erik Akers of the DEA, making the incredulous assertion a program used hundreds of times by the DEA is not "in the DEA's wheelhouse." Akers pushes it back on the Office of National Drug Control Policy, which doesn't appear to be empowered to create and deploy surveillance programs. Here's what the ONDCP can do, according to the federal government's own website.

A component of the Executive Office of the President, ONDCP was created by the Anti-Drug Abuse Act of 1988. The ONDCP Director is the principal advisor to the President on drug control issues. ONDCP coordinates the drug control activities and related funding of 16 Federal Departments and Agencies. Each year, ONDCP produces the annual National Drug Control Strategy, which outlines Administration efforts for the Nation to reduce illicit drug use, manufacturing and trafficking; drug-related crime and violence; and drug-related health consequences. ONDCP also leads the development of the consolidated Federal drug control budget, which is published annually in the National Drug Control Strategy: Budget and Performance Summary.

The ONDCP is advisory. It may provide legal guidance when crafting programs, but there's nothing in the office's duties that includes creating and engaging in surveillance/collection programs. It may serve as the administrative body above the nation's HIDTA (High-Intensity Drug Trafficking Area) activities, but it's not the agency that approaches telcos and demands call records. The DEA does that. To pretend it doesn't is laughable, but that's exactly what the DEA did when its program was exposed by journalists.

The Los Angeles HIDTA -- which oversees roughly a third of the nation -- put out this statement to participants in the Hemisphere program, again in response to 2013's exposure of the program. In it, the HIDTA claims the program is legal, super-powerful, nothing like the NSA, and somehow entitled to secrecy because the DEA and US law enforcement have nothing to hide.

IF HIDTA in general decides to put out some edict to not allow your agents/detectives to utilize this ''tool" it would give the impression to the "common man" .. . jury standards ... that we collectively did something WRONG ... which as we all know is the furthest from the truth. Hemi is nothing more than AT&T's "Super Search Engine" ... "Google on Steroids" as it were .. . A software record search system developed to reach into AT&T's numerous stove-piped databases; coupled with Analysts who knows what we (law enforcement) is asking for as well how to interpret their confusing raw record data once retrieved ... And all is done through legally approved documents (Admin Subpoena for Feds, Court Orders by State/Locals). That's it ... Nothing more, nothing less ... Period. Additionally, from a legal perspective ... this system was scrutinized by Corporate Attorneys, Local, State and Federal Prosecutors, US DOJ, FBI and DEA General Counsel Attorneys, and Judges as well ... ALL OF WHOM concur that Hemi is a legal tool ... and nothing MORE than just a "tool." As far as "keeping it a secret" per se (an issue raised in the articles based on one of the slides) ... Our rational has been simple and truly hasn't changed since the beginning of Sir Robert Peel and the origins of today's "Modern Day Law Enforcement" ... we were attempting to NOT educate the Cartel Attorneys et al on the systems and practices we law enforcement professionals legally have available at our disposal (Key word LEGALLY!) The article "likens" the Hemisphere Project with the NSA Project ... In short, they're apples & oranges. To access Hemisphere a law enforcement officer/agent must have PC specific to their search request, then must provide either a Federal Admin Subpoena or have a judge sign a Court Order in the case of state/local investigators. This is in total contrast to the blanket Patriot Act search methods used by NSA.

To sum up: the DEA doesn't want to talk about a program it claims it doesn't control. The DEA redacted tons of info about a program that's completely legal and it shouldn't have to justify to the American public, while simultaneously hiding the use of the program from criminal defendants and judges. It is not the NSA, the DEA claims, while engaging in many of the NSA's tactics, like parallel construction and Glomar-esque non-denial denials of the program's existence.

Over in the private sector, AT&T decided it was more DEA than telco to engage in the program, turning a decent profit on unchecked surveillance and benefiting from the legal immunity extended to private sector participants in government surveillance programs. More details will likely emerge, but it's unlikely to uncover some previously-withheld justification that makes the DEA's use of "Google on steroids" phone record searches acceptable.

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Filed Under: dea, foia, hemisphere, parallel construction, surveillance

Companies: at&t, eff