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.

Filed Under: dea, foia, hemisphere, parallel construction, surveillance
Companies: at&t, eff


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  • identicon
    Tin-Foil-Hat, 27 Dec 2018 @ 11:54am

    I'm Shocked

    When they say "nation of laws" they mean for you not them. When someone is aquitted because of a "technicality", technicality is usually a euphemism for "government broke the law." In addition to the illegal collection of data they are committing perjury but so what? Everyone is a criminal when everything is illegal. It's only a matter of time before you violate a law and if they are committing technicalities when you do it you're going to be held accountable and ignorance of the law is no excuse for you, not them.

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 27 Dec 2018 @ 4:07pm

      Re: I'm Shocked

      When someone is aquitted because of a "technicality", technicality is usually a euphemism for "government broke the law."

      No, it's a euphemism for "The law worked the way it was supposed to and we don't like it!"

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Dec 2018 @ 7:47am

      Re: I'm Shocked

      Well, they have been well educated. As their apparent patron said "Show me the man and I’ll find you the crime."

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Dec 2018 @ 3:10pm

    'If it's not yours, and it's not theirs, then it's gone.'

    In their desperate attempt to protect their precious spying program they seem to have shot their own argument in the back by making two contradictory statements.

    If the DEA isn't running the program, and it is instead being run by an agency that doesn't have the legal right to run a program like that, then no, it is not a legal program.

    At the point the DEA tried the 'not ours' card congress should have called in the head of the ONDCP, and when they tried to continue the game of hot-potato by claiming that they had nothing to do with it the response should have been to completely defund it as a program operating with no-one to oversee it and hold accountable.

    Semi-related, but 'parallel construction' really should be called what is is: Evidence Laundering. It's taking evidence that would not legally stand up in court and constructing a lie about a legal source, no different(if not worse given who's doing it) than taking 'dirty' money and running it through legal businesses to hide it's source.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2018 @ 4:27pm

    The emphasis on how legal it is comes off like a restaurant telling customers how safe and non-poisonous its food is.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Dec 2018 @ 5:16pm

      'Can' does not automatically equal 'should'

      Not to mention rather irrelevant. You don't have to look very hard through history to see that a whole lot of very bad things were 'legal' at the time, so the fact that they keep insisting that the program is fine because it's legal, rather than on it's merits, is rather telling.

      If someone changed the law to make it legal for them to peek through bedroom windows they would not be any less of a creep for actually doing so.

      reply to this | link to this | view in chronology ]

  • identicon
    mrdoghead, 30 Dec 2018 @ 1:08pm

    Crime

    Certain government agencies do fine work. Most, in fact, do fine work. The DEA is not one of those. Its policies and interventions routinely fail. Minor successes here usually come with unintended harms, and even minor successes are rare.

    Fearful politicians have failed to oversee this expertise-hostile gang for decades. The department's roots in racism and fear-mongering and lawlessness are well documented. Surveillance has always been part of the deal, with the sole purpose, in too many cases, of filling jails, advancing management careers, and settling scores with people someone or other finds annoying or inconvenient.

    Good people have tried to change that place, with little advancement to show for the effort. This is one of the rare agencies that would be better off closed for good.

    Just saying. Not to be negative or anything.

    reply to this | link to this | view in chronology ]


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