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.

And thus:

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.

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Companies: eff, human rights watch

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Comments on “Court Says Government Has To Reveal If It Kept The Data From The DEA's Mass Surveillance Program”

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Anonymous Coward says:

“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.”

Even if the Government purged those records it won’t purge those records before giving a copy of all those records to someone somewhere that is outside the US jurisdiction so that they can then retrieve them again at a later as and when they need to do so.

Anonymous Coward says:

and you dont think the government might lie then? i very much doubt if they’ll admit to still having the records, but rest assured, if they had them, they still have them, are still looking through them and still making up terrorist plots to try to justify what they’ve done, what they’re doing and what they intend to do! and you can bet your ass it wont be any good to the people! like everything else, they are too slow to catch any bad events, more than anything, because they have too much to look through. secondly because even those robbing banks keep in touch in ways that cant be fathomed out and they’re only after a bit of cash! what chance is there, truly, in catching those who want to inflict maximum damage and maximum harm? almost none! but the governments and security forces already know that so fill our heads with bullshit so they can carry on spying on us so as to find out what we just earned on the side, what we just sold without telling anyone, what we just bought ‘that had fell off a lorry’, what info has been picked up on so-and-so, was he a rogue politician, was he insider trading, was he doing things underhand, taking bribes, everything is being done to know as much as possible about us! and turning the country into a Police State while they’re doing it!!

Coyne Tibbets (profile) says:

I hit you in the face last week, but I'm not hitting you now, no problem

I hate how the courts are dodging around what was probably literally trillions of violations of civil rights. Look at the theory here, by HRW, government and court:

It’s like the victim argues, “You’re hitting me in the face now, and I want you to stop.” The perp responds, “I might have hit you in the face last month, but you have no actual proof I’m hitting you in the face right now.” Then the oh-so-helpful court responds, “Since the perp didn’t actually prove he wasn’t hitting the victim in the face right now, the victim’s case can proceed.”

The dumbest arguments I’ve ever heard. What about the bruises for last month’s beating: when does the victim get recompense for those?

tqk (profile) says:

Re: I hit you in the face last week, but I'm not hitting you now, no problem

What about the bruises for last month’s beating: when does the victim get recompense for those?

“Those bruises could have happened any number of ways, and in fact we’ve surveillance records from last month showing the victim was associating with some fairly unsavory characters. However, you may not see them because national security.

“How about the seventh, do you have surveillance records for the day I’m alleging you beat me up?”

“We can neither confirm nor deny … national security.

Anonymous Coward says:

I’m curious if the US government kept the phone records too. Even if they say no, I’ll still think they’re lying. If Clapper is willing to lie to Congress under oath, I don’t see why representatives of the DOJ wouldn’t do the same to a judge under oath.

At the very least they’ll be extremely misleading by saying things such as, “Not under this program”. While secretly doing it under a different program.

Anonymous Coward says:

"Yes we deleted it..."

“and we will be happy to delete it again the next time you ask us for a copy.”

IMHO the issue here is really one of agency of state. The surveillance is a symptom of a larger problem.

We are past the point where it is reasonable to assume that the issuers of warrants are even ABLE, to know what they are asking for. So AT&T claiming warrant compliance is a foregone conclusion. The surveillance is taking place on behalf of the agent, NOT the state, because the agent isn’t (at least in some cases) being given adequate instruction to actually effect a search.

Subsequently they are under their own cognition, not the states. So it is either private surveillance (a criminal act), OR agency of state, making AT&T subject to civil litigation under constitutional law.

You are working for the state, or your aren’t. The right to civil and criminal protection by the law, is COMPLETELY different depending on which the case is. If the court endows both sets of protections to AT&T, then several of the rights afforded defendants by the Constitution become unavailable, and the court ceases to be a court governed by the Constitution of the United States. No habeas corpus == no jurisdiction.

So it doesn’t matter who said what, or deleted what when. AT&T is either liable for civil damages, or subject to criminal charges. If they are free from both, then they are sovereign. We don’t abide kings and queens in this country, even those hiding behind the corporate vail.

GEMont (profile) says:

Re: "Yes we deleted it..."

Subsequently they are under their own cognition, not the states. So it is either private surveillance (a criminal act), OR agency of state, making AT&T subject to civil litigation under constitutional law.

Just curious.

Does that kind of legal action still apply during war, where the War Measures Act normally trumps domestic laws??

ie. War on Drugs. War on Terrorists.

These are real wars – to the USG – and could be used to initiate such war-time measures.

One would assume that the establishment of War Measures Law would have to be kept secret from the public of course, if the enemy happens to also be the public – which in both cases – Drugs and Terrorists – happens to be the case.

tqk (profile) says:

Re: Re: "Yes we deleted it..."

One would assume that the establishment of War Measures Law would have to be kept secret from the public of course …

That would explain a lot of things. If Congress or Obama secretly invoked War Measures, the Constitution has been suspended. If Obama invoked it, then Congress has to confirm it within so many days, and if they can do that in secret, we’ve been living under martial law since 9/11. Game over.

Except, aren’t elections suspended in State of War too? So, what’s up with all that presidential campaigning going on?

GEMont (profile) says:

Re: Re: Re: "Yes we deleted it..."

Except, aren’t elections suspended in State of War too? So, what’s up with all that presidential campaigning going on?

Under normal circumstances, where the enemy was a foreign government military, that would hold true, but in the case of the War on Drugs and the War on Terrorists, both of the natural “enemy forces” created by these 2 wars, are actually unknown private citizens – or “the general public” – and thus, as a part of the War Effort, it would behoove the USG to maintain the facade of elections in order to keep the “enemy” from ascertaining that a war against it was underway and that the constitution that normally protected it from such clandestine assaults by its own government, had been suspended, because… fore-warned = fore-armed, and allowing the public to become aware of these things, would in effect, aid and abet the enemy – allowing them to fight back, legally.

This would also explain the new federal designation of the American general public as the “Adversary”, since it would allow classification of the public as the legal enemy in a legal war in secret documents, while maintaining the public pretense that the US public was not the “enemy”, simply by calling it something that means the enemy, but is not “literally” the same word. Plausible Denial.

Remember, the Billionaires running the fed these days are using word definitions to allow all sorts of nasty and naughty shenanigans to be carried out legally. This would simply be one more tricky word game, designed to create legality where it would otherwise not exist.

And remember too, staying one step ahead of the enemy in war is almost by definition, the single most important aspect of any war effort, next to the actual defeat of the enemy – thus the ongoing and escalating CIAF BINSA, (5-I) surveillance of the world’s public makes complete sense as well, in this scenario.

In this case however, the USG (5-I) cannot actually “defeat” the enemy, since the members of the Corporate Club Med we call government, would then lose the very source of their vast incomes, once the “enemy” was destroyed and nobody was left to work in their factories, pay their monthly rents, or shop till they drop in their stores.

In this case, full or partial enslavement of at least a large portion of the world’s population, would be the desired outcome of the war effort, since that would also allow the Kings of Industry and Commerce that populate the halls of political power, to employ that sector of the public at little or no cost, escalating their business profits exponentially.

Fascism loves slavery, or as they consider it, a self-replacing, legally under-paid/unpaid labor pool.

They like child labor almost as much as slavery, which is of course, why most 5-I nation’s manufacturing factories are now located in foreign countries where slaves and children are legally available as cheap labor.

GEMont (profile) says:

Re: Re: Re:2 "Yes we deleted it..."


Should Controlled AI be perfected – which seems very likely according to recent reports – and Subservient Robotics allow the creation of a work-force that proves to be the equivalent to, or better than human laborers, most of the above becomes moot, and plan B them becomes the game plan – the simple eradication of that portion of the population that least supports the wealth of the Rulers – the very poor that make up the vast majority of today’s cheap labor pool, but which spends the least on real goods and services.

The only thing that Fascism loves better than slavery and child labor, is Cost-Free Labor, that needs neither housing nor food, and self replicates on demand, precisely the needed units, to order, and which carries out its duties, unsupervised and eternally.

This is Corporate Utopia.

GEMont (profile) says:

Did Washington chop down a cherry tree...or was it an apple tree?

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.

Ummm – unless the USG… you know…. lies… and says the records were destroyed, even though they were not destroyed…. because to tell the truth about all the records they keep would, ummm…. expose law enforcement tactics and methods to terrorists, druggies, bad-men and miscreants of all sorts, totally negating American National Security and leading to the deaths of millions of babies, children, pretty girls and bunnies all over the world.

You know, Standard Operating Procedure for any organization, such as the USG and its Agents, that answers to only the Donot Law, during times of War (On Drugs, On Terrorists).

Do Not Admit to Anything, Ever.


TOPDOG (profile) says:

The D.E.A. and F.D.A. have become the U.S. equivalent of Gestapo S.S.. The D.E.A. was a bad idea to start with and has only gotten worse ever sense. States are able to do their job. They don’t need the D.E.A. I don’t need the D.E.A. You don’t need the D.E.A. .Nobody needs the D.E.A. They are misappropriating and commandeering billions of dollars of public funds that America can no longer justify..Their funding needs to be cut by,at least, ninety-five to ninty-nine percent and all need to be restructured to a much smaller and much more restrained gang of Authoritarian sociopaths.. This is a group of renegade law enforcement completely out-of-control .and way over-the-top.They are using the war on drugs as a smokescreen and a ruse to subvert our Civil and Human rights and increasingly more as a ruse to seize cash and property in their war on the American people.Also, through gross incompetence, have made it nearly impossible for a pain sufferer to get treatment without being thrown in jail.
mismanagement and unwise misuse of their responsibility has,nearly, completely destroyed the science and research of anything they don’t approve of. If society is to survive these people must go. The drug war is just a ruse for an Authoritarian power grab. Other country’s that allow easy access to pain medication do not have a major drug problem. It is these government villains here who are orchestrating this farce.

GEMont (profile) says:

Re: Re:

It is these government villains here who are orchestrating this farce.

A government is traditionally composed of a nations wealthiest and thus, most esteemed members.

And what is probably going to be the hardest part to swallow, is that you have barely scratched the surface of the con-game that is the present day US, Canada, New Zealand, Britain, Australia Crime Syndicate.

The White English Global Mafia.

But at least you, and many more as well have finally started to see through the Hollywood Haze and the Legal Lobotomy that has made up most of the last century of American History.

I hope its enough and in time. Fascism almost always wins, because nobody can believe such a bald faced crime is possible, until its too late.

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