{"id":6249,"date":"2019-04-02T09:11:03","date_gmt":"2019-04-02T09:11:03","guid":{"rendered":"http:\/\/ncjolt.org\/?p=6249"},"modified":"2020-10-15T14:29:45","modified_gmt":"2020-10-15T14:29:45","slug":"the-dea-spent-five-years-secretly-collecting-bulk-surveillance-data-was-it-legal-2","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/the-dea-spent-five-years-secretly-collecting-bulk-surveillance-data-was-it-legal-2\/","title":{"rendered":"The DEA Spent Five Years Secretly Collecting Bulk Surveillance Data – Was it Legal?"},"content":{"rendered":"\n

A new report<\/a>\nreleased by the Office of the Inspector General (OIG) details a previously\nsecret surveillance operation conducted by the DEA from 2008 to 2013. The\nprogram, which \u201ctook steps to hide the effort<\/a> from defendants and courts,\u201d\nsought to identify potential drug traffickers by issuing administrative\nsubpoenas to vendors in order to gain information, including names and\naddresses, about people who purchased money-counting machines. However, this is\nnot the first time that the DEA has come under fire for collecting bulk\npersonal information.<\/p>\n\n\n

In 2015,\nwhen it filed a Freedom of Information Act request to gain information about the\nDEA\u2019s collection of bulk surveillance data on calls made to and from foreign\ncountries, the ACLU asserted<\/a> that the federal government had\n\u201cextended its use of bulk collection far beyond the NSA and the national\nsecurity context, into ordinary law enforcement . . . [using] a strained and\nuntenable theory of \u2018relevance\u2019 . . . to justify the surveillance of millions\nof innocent Americans using laws that were never written for that purpose.\u201d\nThis conception of relevance came from the DEA\u2019s own defense of its\nsurveillance activities, which it claimed only targeted calls between the\nUnited States and specific foreign countries \u201cthat were determined to have a demonstrated nexus<\/a> to international drug trafficking\nand related criminal activities.\u201d The DEA reported<\/a> that it ceased collecting the bulk\ncall information in September of 2013. <\/p>\n\n\n

However, the\nDEA had been collecting the call data since the 1990s and did not disclose its\nactions until it was ordered to do so<\/a> by a federal judge \u2013 after the DEA\nused information it had collected to bring criminal charges against a man for\nviolating export restrictions in sending goods to Iran. After the surveillance\nprogram became public knowledge, several lawsuits were filed against the DEA, including one<\/a> brought by Human Rights Watch.\nWhat remained unknown in 2015 was the fact that the DEA had engaged in other\nbulk data collection programs of questionable legality at the same time that\nthe agency was monitoring phone calls. <\/p>\n\n\n

The OIG\u2019s\nrecent, heavily redacted report concludes investigations into three DEA surveillance programs<\/a>, one of which is the foreign \u201ctelephone metadata<\/a>\u201d that the DEA stopped collecting in 2013. Another<\/a>\nis the subpoenaed information about purchasers of money-counters. From 2008 to\n2013, the DEA used administrative subpoenas to create a database<\/a> of personal information that it\nargued was relevant to its drug enforcement operations. <\/p>\n\n\n

Importantly,\nboth the telephone metadata program as well was the data collection pertaining\nto purchases of money-counters ceased in 2013 \u201camid the uproar<\/a> over the disclosures by the [NSA] contractor\nEdward Snowden,\u201d according to the OIG report<\/a>.\nPerhaps the DEA was hesitant to continue collecting the data in the wake of\nSnowden\u2019s whistleblowing because the agency doubted the legality of its own\nactions \u2013 or perhaps it simply feared public backlash. Either way, the OIG found<\/a>\nin its report that the DEA \u201cfailed to conduct a comprehensive legal analysis\u201d\nof its own authority to collect the purchase data. However, the DEA did rely on\nits delegated authority to issue administrative subpoenas under 21 U.S.C. \u00a7 876(a)<\/a> to justify the program.<\/p>\n\n\n

The OIG criticized<\/a> the DEA\u2019s failure to consider \u201cany of several published court decisions available at the time . . . clearly suggesting potential challenges to the validity of the DEA\u2019s use of Section 876(a)\u201d despite indications that the DEA was \u201caware of the existence of case law casting doubt on the use of administrative subpoenas to collect bulk data for exploratory purposes.\u201d <\/p>\n\n\n

What the report suggests<\/a> is that the DEA intentionally did not look at anything in the law that would lead the agency to question the validity of its own program.<\/p><\/blockquote>\n\n\n

What the DEA did do was cite a number of cases \u201cin support of an argument that the \u2018relevant or material\u2019 standard under 21 U.S.C. \u00a7 876(a) is extremely broad<\/a> and permits requests for the products of large collections of records\u201d in a reinstatement memo prepared after the program\u2019s termination. However, it does not appear that the program was ever reinstated. <\/p>\n\n\n

What is\nclear is that other federal agencies, especially the F.B.I.<\/a>, had misgiving about using the data\ncollected by the DEA. After the DEA submitted the metadata to a joint operations hub<\/a> in 2013 so that different law\nenforcement agencies could use the collected information in their drug and\norganized crime investigations, the F.B.I \u201cquestioned whether the data had been\nlawfully acquired\u201d and \u201cbanned its officials from gaining access to it.\u201d  <\/p>\n\n\n

Human\nRights Watch has condemned<\/a> this latest iteration of the DEA\u2019s\nbulk surveillance, arguing that \u201cit was an abuse to suck Americans\u2019 names into\na database that would be analyzed to identify criminal suspects, based solely\nupon their purchase of a lawful product.\u201d The OIG report<\/a> did not make a definitive finding\nthat the DEA\u2019s actions were illegal, but did provide recommendations to ensure\nlegality in any surveillance programs moving forward \u2013 to protect against the\nkinds of abuse of power that many believe the agency has already committed. <\/p>\n\n\n

Sam Taylor, 1 April 2019<\/p>\n","protected":false},"excerpt":{"rendered":"

A new report released by the Office of the Inspector General (OIG) details a previously secret surveillance operation conducted by the DEA from 2008 to 2013. The program, which \u201ctook steps to hide the effort from defendants and courts,\u201d sought to identify potential drug traffickers by issuing administrative subpoenas to vendors in order to gain …<\/a><\/p>\n","protected":false},"author":1,"featured_media":6244,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6249"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=6249"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6249\/revisions"}],"predecessor-version":[{"id":6825,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6249\/revisions\/6825"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/6244"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=6249"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=6249"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=6249"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}