Court Says Government Has To Reveal If It Kept The Data From The DEA's Mass Surveillance Program
from the standing-achieved dept
Back in April, USA Today had a detailed report on a massive DEA phone records surveillance program that pre-dated 9/11 (and the NSA’s similar phone records mass collection). The DOJ put an end to the DEA’s program after the Snowden revelations when it realized that the government’s own defense of why the NSA program was legal would conflict with the DEA program. Specifically, it kept trotting out “terorrism” and “national security” but that didn’t apply to the DEA’s program, which was actually used much more widely than the NSA’s (according to the report, the DEA searched the database as many times in a day as the NSA did in a year). However, a day after this report, Human Rights Watch, represented by the EFF, sued the DEA over the program — citing both the First and Fourth Amendment as being violated.
As expected, the DEA pulled out the usual defenses to try to get the lawsuit dismissed, including arguing that without direct evidence of surveillance on Human Rights Watch, the organization had no standing. Those arguments were given much more credence by the courts in the pre-Snowden era, but lately the courts have been much more skeptical. And, thus, the district court has (somewhat, narrowly) rejected this argument by the DEA and allowed the EFF to move forward with a bit of discovery, which hopefully will enable it to find out at least some details of the surveillance program.
More specifically, the court ruling by Judge Philip Guitierrez says that HRW has enough standing on the 4th Amendment question, but not on the 1st Amendment question. Specifically, on the 4th Amendment issue, the court finds HRW’s claims to be entirely plausible, which is enough to allow discovery.
First, the Government argues that HRW has not pled that it suffered an injury in fact as a result of the Mass Surveillance Program because HRW has not plausibly alleged that its call records were ever collected pursuant to this Program…. The Government contends that HRW?s allegation that ?Defendants obtained records of HRW?s communications to the Designated Countries as part of the Mass Surveillance Program,? …, is insufficient because it lacks supporting factual allegations that render the claim plausible, rather than merely possible…. For example, the Government highlights that the Complaint and the attached Patterson Declaration do not identify the specific U.S. telecommunications companies that received administrative subpoenas under the Program or a time period during which the Government requested and collected call information…. The Court acknowledges that the Complaint does not contain such particularized pleadings as: HRW staff called individuals in Iran using Verizon lines in 2012; the Government issued subpoenas to Verizon for all 2012 Iranian call data; Verizon produced all 2012 Iranian call data to the Government; the Government obtained HRW?s 2012 Iranian call data. However, HRW?s allegation that the Government collected records of its communications to designated foreign countries pursuant to the Mass Surveillance Program is supported by some specific factual allegations that render this allegation plausible, rather than merely possible.
The Patterson Declaration states that the Government compiled a database ?consisting of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876.? … The metadata ?related to international phone calls originating in the United Sates and calling  designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.? … The database could then ?be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation.? … From these factual representations, HRW alleges that the program collected call records for ?all, or substantially all? telephone calls originating in the United States and terminating in the ?designated countries? since at least 2011….
This allegation that ?all, or substantially all? of these calls were collected necessarily embraces the more specific factual allegation that the Government issued subpoenas to all, or substantially all U.S. telecommunications companies to collect these calls…. Moreover, HRW?s allegation that the Government collected call data on ?all, or substantially all? calls is plausible. First, the Patterson Declaration did not contain language indicating that the Government targeted only some U.S. telecommunications providers, instead it stated broadly that metadata was ?obtained from United States telecommunications service providers.?… Further, because the only criteria for collection were the involvement of certain initiating and receiving countries and the Program?s aim was to create a broad database for criminal investigation queries, it is not implausible that subpoenas would be issued to all U.S. telecommunications companies requesting all qualifying data so that the Government could compile a complete database to better serve the investigative query purpose.
In light of the plausible allegation that nearly all such calls were collected pursuant to the Program, the pled facts regarding HRW?s telephone practices support the ultimate allegation that the Government did collect HRW?s call data, as directly alleged in the Complaint.
The government also argued that since the program is over, there’s nothing to fight over any way, and there’s no standing to seek an injunction since there’s nothing to stop. However, the court finds that because the government has not said it destroyed the data, there is at least enough of a reason to move forward to determine if the government retained the data.
Standing over the First Amendment claim is rejected, however, because the complaint did not claim a concrete injury:
The Court does not reach the legal sufficiency of this claimed injury because HRW has not alleged this First Amendment injury with factual sufficiency. Injury in fact requires a harm that is ??concrete? and ?actual or imminent,? not ?conjectural? or ?hypothetical.??… HRW does not provide any factual allegations that indicate that HRW?s chilled communication concern is actual and imminent rather than conjectural. For example, HRW does not allege that any of its contacts know about the Mass Surveillance Program or that they have ever refused to communicate with HRW due to the Government?s retention of collected telephone metadata pursuant to a Program that has been occurring for years. Without alleging any specific supporting facts, HRW?s statement that its ?ability to effectively communicate with people inside the Designated Countries? has been burdened is a conclusory allegation that the Court does not accept. Moreover, the allegation that HRW ?cannot assure its associates abroad that their communications records will not be shared? is implausible in light of the Patterson Declaration?s attestation that the Government is not currently using or querying the collected information.
Still, the win on standing over the 4th Amendment issue is important, and it will allow discovery to move forward — but in a fairly limited way, focused on determining if the government did, in fact, retain the records.
The Court agrees that some limited discovery directed toward the Government is warranted because such discovery could possibly provide HRW with jurisdictional evidence suggesting that the Government still possesses HRW?s call records in some form. Accordingly, the Court will allow HRW the opportunity to conduct limited discovery on this issue.
[….] The Court limits the interrogatory topics to the following issues: (1) whether the Government retains call records in repositories other than the purged database; and (2) whether the Government retains Program call records in derivative forms. Accordingly, the Court orders that HRW is permitted to serve no more than five interrogatories on the Government regarding these two issues.
This is fairly narrow, and it’s entirely possible that the government may now try to get out of this whole case by simply saying that it has purged all those records. However, at the very least, as the EFF notes, it will let the world know whether or not the government has kept all those phone records.