Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 — Didn't Stop The Attack

from the well,-look-at-that dept

One of the big arguments trotted out repeatedly by surveillance state defenders concerning the NSA’s Section 215 program to collect records on all phone calls is that such a thing “would have prevented 9/11” if it had been in place at the time. Here’s former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks. Here’s Dianne Feinstein making the argument that if we had that phone tracking program before September 11th, we could have stopped the attacks. And here’s former NSA top lawyer and still top NSA supporter Stewart Baker arguing that the program is necessary because the lack of such a program failed to stop 9/11.

Except, it turns out, the feds did have just such a program prior to 9/11 — run by the DEA. As you may recall, back in January it was revealed that the DEA had its own database of phone call metadata of nearly all calls from inside the US to foreign countries. Brad Heath at USA Today came out with a report yesterday that goes into much more detail on the program, showing that it dates back to at least 1992 — meaning that the feds almost certainly had the calls that Feinstein and Mueller pretended the government didn’t have prior to 9/11.

The now-discontinued operation, carried out by the DEA’s intelligence arm, was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans’ privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.

But, you might say, perhaps the DEA didn’t share that info with the NSA. Well… if we go back to some of the NY Times award-winning reporting on the NSA’s surveillance programs from 2007, we see that it actually mentions this DEA program… and notes that the NSA worked with the DEA on it:

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.

That’s from 2007 reporting by James Risen, Eric Liechtblau and Scott Shane. Heath’s reporting fills in some additional gaps:

The data collection began in 1992 during the administration of President George H.W. Bush, nine years before his son, President George W. Bush, authorized the NSA to gather its own logs of Americans’ phone calls in 2001. It was approved by top Justice Department officials in four presidential administrations and detailed in occasional briefings to members of Congress but otherwise had little independent oversight, according to officials involved with running it.

The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.

The result was “a treasure trove of very important information on trafficking,” former DEA administrator Thomas Constantine said in an interview.

The report also shows how the DEA got this info from telcos using the simple process of an administrative subpoena, so there was no court review. Telcos could have protested and gone to court, but the DOJ urged them not to do so:

The DEA obtained those records using administrative subpoenas that allow the agency to collect records “relevant or material to” federal drug investigations. Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge’s approval. “We knew we were stretching the definition,” a former official involved in the process said.

Officials said a few telephone companies were reluctant to provide so much information, but none challenged the subpoenas in court. Those that hesitated received letters from the Justice Department urging them to comply.

After Sprint executives expressed reservations in 1998, for example, Warren, the head of the department’s drug section, responded with a letter telling the company that “the initiative has been determined to be legally appropriate” and that turning over the call data was “appropriate and required by law.” The letter said the data would be used by authorities “to focus scarce investigative resources by means of sophisticated pattern and link analysis.”

And, of course, the DEA kept this whole database of metadata a secret by… using parallel construction:

To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data.

That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers. Reuters said the tips were based on wiretaps, foreign intelligence and a DEA database of telephone calls gathered through routine subpoenas and search warrants.

As a result, “the government short-circuited any debate about the legality and wisdom of putting the call records of millions of innocent people in the hands of the DEA,” American Civil Liberties Union lawyer Patrick Toomey said.

Heath’s report also notes that the NSA metadata collection under Section 215 was very much modeled on the DEA’s collection that began a decade earlier. If there are any differences between the two it seems that the NSA was actually much more restrained in how it used all the phone call metadata.

For one thing, DEA analysts queried their data collection far more often. The NSA said analysts searched its telephone database only about 300 times in 2012; DEA analysts routinely performed that many searches in a day, former officials said.

Again, this DEA program isn’t really a new revelation, but Heath’s reporting sheds a lot more light on how widespread it was and how it was used over the years.

And, also, as we are less than two months away from the big fight over renewing Section 215 of the PATRIOT Act, you can be sure that some surveillance state defender is going to cite 9/11 as a reason why we need to keep the program. Hopefully, people can remind them that it appears we had just such a program (which was even more widely used) at the time, and it did not stop 9/11.

Furthermore, Heath’s reporting shows that once the program disappeared, while the DEA claims it missed the program, it was quickly able to build a more reasonable followup by just targeting specific numbers:

The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas ? sometimes listing more than a thousand numbers ? to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.

In other words, targeted surveillance, rather than mass surveillance. As many have been arguing for years, there’s no reason why the NSA can’t adopt a similar program. So don’t believe the intelligence community and its apologists when they wrongly insist that such a mass surveillance program is necessary.

Filed Under: , , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 — Didn't Stop The Attack”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Doesn’t matter. Even if an attack happens every year, and we increase their powers every year after they fail to predict and stop that attack, they will still use the excuse that they need “more powers”. And they still won’t stop the attacks…because it’s just not possible to stop something like that without also going into millions of false positives:


Michael (profile) says:

That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers.

At this point, don’t we have a responsibility to just release everyone that the DEA has jailed in the past decade because we cannot determine if their evidence was obtained legally?

I’m not a big fan of releasing criminals, but our criminal justice system is not supposed to work the way it has been.

pixelpusher220 (profile) says:

Re: Re:

Indeed. I’m amazed at how the fact that the government has been falsifying evidence as a policy hasn’t basically brought every single government case to its knees.

If we know the policy is to lie…how exactly can anything offered up as evidence be trusted?

I just can’t see how this isn’t viewed as a fundamental threat to our system of government.

Anonymous Coward says:

To be fair

To be fair, the program was set up to detect drug trafficking, not terrorism, so it’s possible the system might work to identify terrorists if set up properly for that purpose. The risks to civil liberties are too great for this to be worth doing, but there is still a chance it might work.

Anonymous Anonymous Coward says:

Re: To be fair

Two questions.

How effective has the program been in drug trafficking (detection isn’t an appropriate barometer, that’s not winning that war, and neither is incarceration of low level dealers or for that matter users)?

How does one define an algorithm to detect something that has never happened before?

beltorak (profile) says:

Re: Re: To be fair

I don’t think we can answer how effective it is in drug trafficking, since we all know the DEA has a vested interest in keeping that criminal enterprise alive, and even participates from time to time.

I don’t think I can reasonably argue that the NSA et al has a vested interest in keeping terrorists around to fly planes into our buildings. I’m not quite that jaded yet. I could be wrong of course….

Anonymous Coward says:

Re: Re: To be fair

The best proxy I can think of would be a spike in the price relative to inflation coupled with a significant increase in the mass of drugs seized. If the mass of drugs seized and the spike in price happen simultaneously, it’s likely the price spike is the result of drug enforcement efforts.

This “success” would be a strange thing though. The more expensive drugs become, the more people a junkie has to rob to feed their habit. This increases my chances of being robbed. Fuck that.

tqk (profile) says:

Re: To be fair

To be fair, the program was set up to detect drug trafficking, not terrorism …

They’ve known that terrorists had been using drug trafficking to finance their operations for a long time. Unfortunately, as was learned soon after 9/11, the LEOs were engaging in turf wars (attempting to maximize their particular agency’s funding) and not sharing intel with each other (except when forced to do so, or when it served some PR purpose).

Ambrellite (profile) says:

It's the status quo already

To those who complain that stories like these are old news, remember that we only know how the government has abused its spying capabilities for decades because we’re only told decades after the fact. This story is no exception. From the USAToday story: “More than a dozen current and former law enforcement and intelligence officials described the details of the Justice Department operation to USA TODAY. Most did so on the condition of anonymity because they were not authorized to publicly discuss the intelligence program, part of which remains classified.”

A controlled leak, just to offer the public a semblance of transparency while ensuring that any public outrage will take place within the context of decades-long practices whose secrecy and long duration effectively enshrines the policies as the status quo without accounting for the financial and human costs.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...