Cyber Security Insight

DEA Sued for Unconstitutional Phone Surveillance

The Electronic Frontier Foundation this week filed a complaint against the U.S. Drug Enforcement Administration for secretly collecting data on all telephone calls to as many as 116 countries, possibly going back to the 1990s.

The suit was filed on behalf of Human Rights Watch.

Many of the calls were made to countries certified under Section 706[1] of the U.S. Foreign Relations Authorization Act as being heavily involved in the drug trade. The president has to renew this certification annually.

“I’m sure there’s a case that could be made that monitoring Americans’ international telephone calls might reduce drug trafficking,” said EFF staff attorney Mark Rumold.

However, mass collection breaches the protections of the First and Fourth Amendments, he told the E-Commerce Times.

The Gist of the Complaint

The lawsuit, Human Rights Watch v. Drug Enforcement Administration, et al., was filed in the U.S. District Court for the Central District of California.

The named defendants, in addition to the DEA, are the Federal Bureau of Investigation, the U.S. Department of Justice, the U.S. Department of Homeland Security and their heads, the United States of America, and up to 100 John Does.

The mass surveillance program initiated by the defendants allegedly collected phone numbers involved in calls; the date, time and duration of the calls; and the method by which calls were billed.

The DEA obtained call records by subpoenaing U.S. telecommunications service providers under Title 21 of the U.S. Criminal Code without any particularized suspicion of wrongdoing. The program was not subject to any judicial oversight or authorization, the complaint alleges.

That law pretty much gives the Attorney General a blank check in investigations concerning controlled substances, listed chemicals, tableting machines or encapsulating machines.

The bulk call metadata is stored in one or more databases, searchable by DEA staff, as well as by officers and employees of the DHS and the FBI, and by John Does 1-100, according to the EFF.

Use of the databases is not restricted to investigations of illegal drug trafficking or production, the suit maintains. For example, the DHS searched them while investigating possible violations of export and trade laws.

Why not keep tabs on such communications in the hope of discovering information that might help law enforcement connect the dots some day?

“Using such reasoning is extremely tenuous,” argued attorney Yasha Heidari of Heidari Power Law Group.

“If we follow this line of logic, there’s absolutely nothing to stop the DEA, or any other government agency, from monitoring and collecting the data of every single individual,” he told the E-Commerce Times.

The mass surveillance program came to light in January when Robert Patterson, a DEA assistant special agent in charge, filed a declaration in the U.S. district court for the District of Columbia in response to a December 1 order by that court.

Patterson declared that the program was suspended in 2013 and no longer was being queried for investigatory purposes, and that information no longer was being collected in bulk.

“These new revelations are a reminder of how little we still know about the government’s surveillance activities — including dragnet programs that operated for decades in secret,” ACLU staff attorney Patrick Toomey told the E-Commerce Times.

Where the Lawsuit’s Power Lies

The EFF’s constitutional argument is the most powerful, Heidari said.

“I suspect the government will argue it did not specifically target Americans and so its actions do not require constitutional scrutiny,” he suggested. “The Constitution only protects U.S. citizens.”

The lawsuit aims to ensure the DEA’s bulk collection program is terminated and cannot be restarted, said EFF’s Rumold.

Human Rights Watch also is “seeking the destruction of all HRW’s call records from the government’s files,” he added, “wherever they may be stored.”

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