According to a report recently released by the Office of Inspector General of the United States Department of Justice, the United States Drug Enforcement Administration (DEA) is continuing to operate its mass surveillance program which collects billions of call detail records of Americans and foreigners every day. The DEA’s mass surveillance program is known as the Hemisphere Project, but is referred to in the Inspector General’s report as Program C. The Hemisphere Project has been operating since 2006 and is a partnership between the DEA and the world’s largest telecommunications corporation, AT&T. The metadata of calls includes information such as the phone numbers, IMSI and IMEI numbers, dates and times, length of calls, and locations of callers. The DEA is able to go back over phone call metadata going back all the way to calls made in 1987.
It should be noted that the DEA is also able to access the content of many phone calls through access to NSA databases, as sharing of intelligence collected under Executive Order 12333 with domestic law enforcement agencies was expanded in January of 2017 by then-President Obama just weeks before leaving office. The Hemisphere Project is funded by the DEA and the United States Office of National Drug Control Policy, or ONDCP, and is operated by the Office of National Drug Control Policy’s enforcement program known as the High Intensity Drug Trafficking Area, or HIDTA. Call detail records for all calls which pass through AT&T switches are collected for the Hemisphere Project, including call detail records of calls from other cellular providers or telecommunications networks. The bulk collection of call detail records is acquired from AT&T through a DEA administrative subpoena, which bypasses any judicial oversight.
For years privacy advocates have been calling the Hemisphere Project an illegal and unconstitutional surveillance program, but now even the Office of Inspector General is raising concerns that the DEA’s mass surveillance program may not be entirely lawful. “We found that Program C [the Hemisphere Project] raised different kinds of challenging legal issues that the DEA also failed to fully assess. We found that the DEA failed to formalize a complete and adequate legal assessment regarding its use of Program C to obtain reports and other advanced analytical information to ensure such use was lawful and appropriate under its administrative subpoena authority, 21 U.S.C. § 876(a), and the Electronic Communications Privacy Act, 18 U.S.C. § 2703(c)(2),” the Office of Inspector General’s report concluded in its findings on sufficiency of legal reviews of the Hemisphere Project. However, the report goes on to say that they did not find anything “inherently inappropriate” in law enforcement’s use of parallel construction to hide the unlawful source of information that sparked a criminal investigation. However, the Office of Inspector General does believe that the Department of Justice and other agencies should undertake a comprehensive review of their parallel construction practices.
The administration set no specific standards of proof for issuing subpoenas, and officials often justified data collection using “generic” and “cursory” explanations, the IG found.“The information provided [in subpoena documents] often lacks specificity sufficient to establish the particularized facts or basis for connecting the target number to a drug investigation, even if such review had occurred,” investigators said.
The DEA and ONDCP’s joint Hemisphere Project appears to collect more call detail records than the NSA’s call detail records program that was operating under the authority of the USA FREEDOM Act, and previously under the USA PATRIOT Act. In fact, the NSA is said to have stopped using its call detail records collection program which operated under the USA FREEDOM Act. It is not known definitively if other telecommunications companies such as Verizon, Sprint, and T-Mobile operate similar programs to assist law enforcement’s mass surveillance operation such as AT&T does, though those corporations have refused to comment when previously asked.
The Office of Inspector issued 16 recommendations to the DEA to address issues and concerns brought up during their review. Among the 16 recommendations are a recommendation that the DEA make a rigorous legal assessment to specifically address whether 21 U.S.C. § 876(a) addresses the use of non-targeted administrative subpoenas for bulk collection of records. The Office of Inspector General also recommended that the DEA issue a final legal opinion and updated policy on the Hemisphere Project and its permissible uses. The report also discusses another bulk records collection program conducted by multiple federal agencies but headed by the DEA. That program operated from the 1990s until mid-2013 and also used “non-target specific” administrative subpoenas to amass huge numbers of phone records.