Report Shows US Law Enforcement Routinely Engages In Parallel Construction

from the no-solution-in-sight dept

A long report by Human Rights Watch delves into the secretive world behind the evidence given in criminal cases. Multiple law enforcement entities are making use of DEA tips to build cases and secure convictions, but they're burying the original evidence using parallel construction, whitewashing it of possible Fourth Amendment violations.

Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full access to domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of "new" criminal investigations.

The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs -- up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them.

Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence.

Parallel construction also means judges may never evaluate whether government uses of constantly evolving surveillance techniques adhere to the US Constitution and laws adopted by Congress, as is their role in the US system. For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights.

But judges won't be seeing much info on government surveillance means and methods that the government wishes to keep hidden from the public. The DOJ has dodged its evidentiary obligations for years in regards to NSA-derived evidence, despite multiple government agencies having some sort of access to the NSA's collections.

Worse, the courts have encouraged the practice of parallel construction by giving officers free rein to perform pretextual stops. Any real or perceived traffic violation can serve as a pretext for stop meant to discover evidence of some unrelated crime. A 20-year-old Supreme Court decision turned traffic stops into fishing expeditions.

The Supreme Court's Rodriguez decision only slightly mitigates the damage done by the 1996 decision. It holds a traffic stop ends when the stated objective is completed. If an officer stops someone for speeding -- even if the real purpose is to search for evidence of drug trafficking -- the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time.

If more courts were willing to hold officers to the spirit of the decision, pretextual stops would become a very precarious way to obtain evidence. Instead, the courts have generally been willing to continue to give the government considerable leeway during pretextual stops.

This is what keeps the lights on in the DEA's Special Operations Division. Known colloquially as the "Dark Side," the DEA's SOD passes on tips to locals, pointing them at DEA surveillance targets while ensuring these local agencies understand they'll have to find another way to come up with the evidence the DEA has already handed them.

Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.”

This generally leads to pretextual stops, known by a number of unofficial nicknames synonymous with parallel construction:

The documents Ciaramella obtained indicate that the use of “[a] wall off or pretext stop” is an accepted tactic. Human Rights Watch has also identified numerous federal and state judicial decisions in which the government has admitted, after the fact, to having carried out what are known as “whisper,” “wall,” “walled off,” or “wall off” stops. It is unclear how the government decides whether to disclose the fact a traffic stop was pretextual on its own initiative during proceedings: in at least one case Human Rights Watch identified, the disclosure of a “wall stop” was inadvertent (evidence emerged in a New Mexico federal trial that an officer had mentioned a “whisper stop from DEA” to a dispatcher while unaware that he was being recorded). In another case a defendant who had been convicted in Arizona state court only found out the traffic stop in his case was a “whisper stop” requested by the DEA after his conviction, when pertinent records were later disclosed in a California federal court.

"Whisper" refers to federal tipsters who are not to be exposed in court. "Wall stops" refer to building a "wall" between the evidence obtained via the pretextual stop and its true origin via DEA sources. In both cases, nothing about the original evidence can be challenged. Evidence obtained via bulk surveillance or warrantless intercepts remains hidden. The trustworthiness of confidential informants cannot be questioned. It remains walled off from the court and defendants, forcing them to work only with what was derived from a traffic stop that likely would not have happened without the intervention of a government agency whose name never appears in court documents.

To fix the problem of parallel construction, Human Rights Watch suggests a legislative fix. Unfortunately, as solid as the recommendations are, there's roughly a zero percent chance a bill like this would make its way to the president's desk.

Congress should… adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes and consider imposing restrictions accordingly.

To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data. Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities.

The first recommendation would make all government agencies answerable to discovery requests. This is an important fix, and one that would face a less of an uphill battle in Congress. Currently, any agency that has passed on info used in parallel construction can simply claim its not part of the prosecution and is therefore not required to hand over information to the defense. This would force agencies to search for and produce documents related to the origins of the evidence handed over to local agencies. Or would in theory. The DOJ has spent years dodging evidentiary obligations for Section 702 cases (another place parallel construction is a common practice), so it's apparent the Justice Department picks and chooses which statutory requirements it will follow. Another law on the books won't make much of a dent.

As it stands now, the system will allow the government to continue to prosecute people while withholding information pertaining to questionably-obtained evidence. Supreme Court decisions on traffic stops haven't made things much better, even with more recent decisions adding a bit back to citizens' Fourth Amendment protections. The end result is ugly: the government can lie with impunity, making a mockery of the Fourth Amendment in the process.

Filed Under: 4th amendment, dea, due process, evidence, parallel construction
Companies: human rights watch

DHS Expands License Plate Dragnet, Streams Collections To US Law Enforcement Agencies

from the let-the-government-know-your-travel-plans...-as-you-travel! dept

The DHS has provided the public with a Privacy Impact Assessment (PIA) on its use of license plate readers (LPRs). What the document shows is the DHS's hasty abandonment of plans for a national license plate database had little impact on its ability to create a replacement national license plate database. The document deals with border areas primarily, but that shouldn't lead inland drivers to believe they won't be swept up in the collection.

The DHS has multiple partners in its license plate gathering efforts, with the foremost beneficiary being the DEA, as Papers, Please! Reports:

The latest so-called “Privacy Impact Assessment” (PIA) made public by the US Department of Homeland Security, “CBP License Plate Reader Technology“, provides unsurprising but disturbing details about how the US government’s phobias about foreigners and drugs are driving (pun intended) the convergence of border surveillance and dragnet surveillance of the movements of private vehicles within the USA.

The CBP defines the border as anything within 100 miles of the country's physical borders, which also include international airports. Consequently, more than 2/3rds of the nation's population reside in the CBP's so-called "Constitution-free zone." The plate readers discussed in the PIA aren't just the ones drivers and visitors might expect. While the CBP operates many of these at static locations at entry points, other LPRs are mounted on CBP vehicles or hidden in areas the CBP patrols.

The addition of the DEA adds law enforcement to the mix. This means the DHS is intermingling its collection with existing law enforcement databases, allowing it to build an ad hoc national database without having to inform the public or hire a contractor to build one from the ground up.

[T]he DEA has compiled an aggregated database of geotagged and timestamped license plate records purchased from commercial sources, including records of vehicle locations far from what even the DHS considers the “border zone”.

CBP and DEA are already able to query and retrieve data from each other’s LPR databases. A DEA agent can also set a “TECS alert” flag in the DHS database for a specific license plate number, the same way they can for a specific passport number, so that they will be notified automatically whenever that plate is spotted by a DHS camera.

Vanishing from these multiple databases is any form of targeting. The DHS plans to pipe its LPR collection to DEA and other law enforcement agencies as a live feed, allowing agencies on the receiving end to browse the collection at will and/or add it to databases they control.

“CBP intends to provide DEA access to CBP LPR information… through a real-time streaming service.” Each agency will have a complete copy of the data collected by the other, so that they can merge and mine it and use it for “pre-crime” profiling.

The Impact Assessment notes privacy will, yes, be "impacted," but that's the way it goes. Many, many US citizens who have never crossed the border will have their license plate/location data added to multiple law enforcement databases. But what option does the DHS have? Not policing the "border?" Not helping the DEA out with the Drug War? From the PIA [PDF]:

Privacy Risk: There is a risk to individual participation in that individuals do not have an opportunity to consent to CBP’s retention and use of their license plate data.

Mitigation: This risk is not mitigated given the purpose of the collection. Many areas of both public and private property have signage that alerts individuals that the area is under surveillance; however, this signage does not consistently include a description of how and with whom such data may be shared. Moreover, the only way to opt out of such surveillance is to avoid the impacted area, which may pose significant hardships and be generally unrealistic.

As Papers, Please! notes, this PIA is a nice addition to the DHS's collection, but it's supposed to be released prior to roll out and the public is supposed to be notified via the Federal Register about additional collections of personally-identifiable info by government agencies. None of this has happened in a timely manner, making these collections illegal until the assessments are in place and notices properly published. The DHS -- along with its component agencies -- routinely ignore statutory requirements but, to date, not a single agency official has been punished for disobeying the law.

As for US citizens, they can expect this Kudzu-like growth of surveillance to continue, especially around airports or borders, even as the country remains only minimally threatened by terrorist activity or illegal entry into the country.

Filed Under: alpr, dea, dhs, homeland security, law enforcement, license plates, lpr, privacy, surveillance

Court Tells DEA To Stop Pushing Burden Of Proof Back On Claimants In Forfeiture Case

from the procedures-matter dept

The government has lost its claim to money lifted from two men by the DEA at the Cleveland airport. Despite agents being super-sure the money was either drug profits or intended for drug purchases, no charges were brought. But the DEA decided to keep the money -- $31,000 from one and $10,000 from the other -- for itself.

The Sixth Circuit Court of Appeals says not so fast. The decision [PDF] lets the government know it's jumping the gun on claiming sole ownership of this lifted cash. The opinion starts out with a brief description of how the cash-focused Drug Enforcement Agency starts each airport workday.

The parties dispute most of the facts underlying this action. We begin where they find common agreement, drawing these details from the pleadings. On February 24, 2016, Taiwan Wiggins and Dalante Allison (together, "claimants") were each at the Cleveland Hopkins International Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA) was aware of the claimants' itineraries and that each had previous felony drug convictions. The DEA observed them at the airport engaging in conversation before they walked together toward the security checkpoint.

As we've discussed before, the DEA takes great interest in certain travelers -- even going so far as to ask TSA agents to be on the lookout for cash during bag inspections and X-ray screenings. Here, the DEA appeared to hit the jackpot (in more ways than one): traveler with previous convictions and tickets to California. As the multiple law enforcement officers have sworn in multiple court statements, the only reason anyone travels to California is to buy drugs. (Conversely, the only reason to leave California is to go sell the drugs they just purchased.)

The DEA took the cash from the two men, ran a dog past it, and announced the dog said the DEA could keep the money. The government then filed for forfeiture under the theory the money was drug-related. Both men submitted affidavits stating the money was theirs and was seized illegally.

The court took the affidavits and set a date for discovery to see if the men could stake a legal claim to the seized cash; i.e. prove it was legally obtained. The DEA decided to do things out of order. It moved to strike the men's claims. The district court agreed, finding the men had made nothing but "naked assertions of ownership" -- far below the evidentiary standard needed to reclaim the seized cash.

Open-and-shut… or so the DEA thought. The men appealed and the Appeals Court finds the lower court also skipped a step when arriving at its conclusion. As it states during its long discussion of forfeiture proceedings, the lower court shifted the burden of proof to the wrong party at this early stage.

Rule G(5) requires claimants to do no more than identify themselves and state their interest in the property subject to forfeiture. The government, on the contrary, wants claimants to provide additional detail, a position that it attempts to justify as a means to ward off false claims and to give it a starting point to draft its special interrogatories pursuant to Rule G(6). Nowhere in the text of Rule G do we see any support for this approach, and our case law demonstrates why it is not necessary. First, the would-be claimant must demonstrate Article III standing, which, at the pleading stage, necessarily requires that the claimant allege the facts necessary to satisfy Lujan’s “irreducible constitutional minimum of standing.” See Lujan, 504 U.S. at 560. Second, a claimant’s ability to proceed under Rule G, which we have called “statutory standing,” is satisfied through mere compliance with the rule, see Real Props. & Premises, 521 F. App’x at 384, and we see no persuasive reason to import a heightened pleading standard that has no basis in the text. And third, we have held that Rule G’s verification requirement is a built-in preventative measure that limits the danger of false claims. One Men’s Rolex Pearl Master Watch, 357 F. App’x at 627.

As the appeals court points out, the government wants too much too soon, and when it doesn't get it, it wants to take the money and run. But so far, all the court has to work with are competing allegations about the legality of the cash, and the government doesn't get to pretend its claim has more value.

Here, where the government alleged that it took a bundle of cash from a claimant’s suitcase, and each claimant stated that he owned the cash, there is a clear allegation of ownership that satisfies Article III. And the claimant’s making of such a statement is what satisfies Rule G’s statutory standing requirement. Therefore, at least at this stage in the litigation, there was no basis on which the district court could strike the claim.

There is no sympathy for the DEA in the Sixth Circuit:

The government sings a sirens’ song about the value of high pleading standards and the benefits it will receive from forcing claimants to support their claims from the outset of a forfeiture proceeding. But all of the government’s arguments rest on flawed assumptions about the procedural rules governing in rem forfeiture cases.

And if the government doesn't like it, it's welcome to take it up with… the government.

If Congress wishes to add an additional layer of protection to the statutory requirements by having claimants state their interest with specificity, it may. But a panel of our court is not the proper body to do so.

To close things out, the court points out in detail the wrongness of the government's position. The government's assertions suggest inverting what little there is of due process in forfeiture proceedings.

Finally, we note our concern that the government's approach would turn the burden of proof in forfeiture actions on its head. Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the government bears the burden of proving by a preponderance of evidence that the subject of a civil forfeiture action is, in fact, forfeitable. Requiring a forfeiture claimant to explain the nature of his ownership at the pleading stage would be asking the claimant to satisfy the government's burden of proof, or at least go a long way toward doing so.

Back the case goes to the lower court with all the correct steps -- and a modicum of due process -- revived. The government may still be able to retain possession of the seized cash, but it needs to provide at least some evidence it wasn't legally obtained first.

Filed Under: 6th circuit, asset forfeiture, burden of proof, dea, forfeiture

DEA Agent Gave Convict Girlfriend Access To Evidence, Classified Info; Received Almost No Punishment

from the above-the-law-and-unaffected-by-useless-internal-policies dept

Routine misconduct by DEA agents? The DEA could not possibly care less. An Inspector General's report released in 2015 in the aftermath of a sex-parties-and-harassment investigation showed 8 of the 14 agents investigated received bonuses and awards while still under investigation, a violation of DEA policy. None of the agents were fired or even demoted. The DEA's unwillingness to address serious misdeeds seriously made it clear DEA agents are nigh un-fireable.

Even minor disciplinary actions tend to be rolled back, as the Inspector General's office reports [PDF]. An agent engaging in plenty of unrelated misconduct found himself stripped of his security clearance, but only momentarily. The list of things the agent did wrong is as impressive as it is disturbing. [h/t Brad Heath]

The DEA Office of Professional Responsibility (DEA OPR) learned about the Special Agent’s misconduct in 2013. The Special Agent admitted to DEA OPR that he had, among other things: carried on an extramarital affair with a woman who was a convicted criminal; allowed her after-hours access to a DEA office, including a drug evidence room; allowed her to listen to recorded telephone calls of subjects of DEA investigations; and had sex with her on numerous occasions in the DEA office and his DEA vehicle.

That the DEA chose not to fire this employee or subject him to something harsher than a (very) temporary suspension of his security clearance is no surprise given the DEA's historical disinterest in disciplining its employees.

Although the OIG found that there were relatively few such allegations reported for fiscal years 2009 through 2012, the report identified significant systemic issues with the components’ processes for handling these important matters that led the OIG to recommend prompt corrective action by the Department.24 Most notably, with respect to the DEA, the OIG found instances where DEA OPR failed to refer allegations involving sexual behavior that raised security concerns to Security Programs, potentially exposing DEA employees to coercion, extortion, and blackmail, all of which create security risks.25 The OIG also found instances where DEA OPR failed to fully investigate allegations of serious sexual misconduct and sexual harassment.

Following the DEA's investigation of the agent, officials decided to strip him of his security clearance. But this was swiftly reversed.

Based on the Special Agent’s misconduct and inconsistent statements, on March 24, 2015, the DEA Security Programs Manager (SPM) suspended the Special Agent’s clearance, rendering him ineligible for access to classified (and, by DEA policy, ineligible for access to DEA sensitive information). However, 3 days later, then-DEA Acting Chief Inspector Herman E. “Chuck” Whaley instructed the SPM to reinstate the Special Agent’s clearance.

Whaley's reasoning: this obviously-untrustworthy employee could be trusted with his security clearance because his long list of violations didn't have national security implications. This call was made despite the agent being unable to say for sure how much classified info he'd allowed his convicted criminal girlfriend to see nor being able to fully recall how often (and for how long) he'd allowed her to roam the DEA's evidence room unattended. Whaley made this decision unilaterally, bypassing the SPM and others charged with controlling security clearances.

The report points out Whaley misunderstood his position within the DEA hierarchy, thus arriving at the mistaken conclusion he could reinstate security clearances without running it by the SPM. But, as the Inspector General points out, the decision was still a terrible one to make, especially in light of all the other information Whaley had access to.

Whaley’s actions also reflected a disregard for the OIG's findings in the several drafts (October 2014, February 2015, March 2015) and final (March 2015) reports regarding the handling of sexual harassment and misconduct allegations by the DEA and other DOJ components. Whaley was familiar with the OIG review, having received a draft report as early as October 2014, and was responsible for revising DEA policy to address this precise issue. Among other things, the OIG report identified security risks created when DEA OPR employees untrained in security adjudications were allowed to determine whether to refer findings of sexual or other misconduct to Security Programs.

Nonetheless in late March 2015, Whaley reviewed DEA OPR’s August 2013 Stentsen investigation, which identified both sexual conduct and potential security concerns (including disclosing DEA sensitive information to unauthorized personnel, using a state law enforcement database for personal reasons, providing a girlfriend with access to the DEA facility after hours, and associating with a criminal), and he did not make any effort to discuss the matter with Cone, ensure that he himself was aware of all the relevant information, or ask whether the Stentsen case warranted closer attention given the findings in the OIG report. Whaley’s lack of leadership in this regard is particularly troubling considering that on March 26 (the day before Whaley instructed Cone to reverse his decision), the OIG publicly released the final report, Congress ordered hearings, and the national media reported the story.

The OIG also finds it worrying Whaley was more concerned about superficialities, rather than ensuring his underling was properly disciplined for his severe misconduct.

Whaley told the OIG that had he known that Stentsen had received notification of his suspension, he would not have directed Cone to reinstate the security clearance essentially because it would have looked unprofessional for DEA to change positions after the fact. Putting aside the suggestion that substantive decisions on security clearances would be impacted by such consideration of appearances, we note that Cone had e-mailed Whaley a copy of the final signed and dated suspension memorandum to Stentsen on March 24 but Whaley was not aware that it had already been sent to Stentsen’s supervisors and served on Stentsen.

It's just more evidence America's law enforcement agencies are far more concerned with external police work than with internal accountability. It also shows the DEA is systemically averse to internal discipline. The scandal referenced earlier made headlines around the nation, but DEA officials still refused to hand out anything more than wrist slaps. And those wrist slaps often came packaged with bonuses, awards, and personnel moves that strongly suggested the DEA was willing to forgive all but the most egregious misconduct, even while under the glare of the national spotlight.

Filed Under: dea, evidence closet, inspector general, misbehavior

Thanks To The DEA And Drug War, Your Prescription Records Have Zero Expectation Of Privacy

from the BUT-HER-OXY dept

How private are your medical records? You'd think they'd be pretty damn private, considering Congress specifically passed a law regulating the disclosure of these sensitive records. Some states feel the same way, extending even greater privacy protections to things like prescription records. Not only are medical entities prevented from passing on sensitive info without patients' consent, local law enforcement agencies aren't allowed to obtain third-party records like prescription data without a warrant.

Seems pretty locked down, but as Leslie Francis and John Francis point out at the Oxford University Press blog, federal law enforcement agencies have undone both Congressional protections and state protections.

Utah’s requirement for a warrant conflicts with the federal Controlled Substances Act (CSA), which permits the DEA to issue administrative subpoenas for information relating to individuals suspected of violations of the CSA. According to a US Department of Justice report, administrative subpoenas may be issued by the agency without judicial oversight and without the showing of probable cause that would be required for a warrant.

When states provide more protections to residents than the federal government's willing to grant, it's often the state laws that lose, especially when controlled substances are involved. Such is the case here, at least so far. The DEA demanded the release of patient info/prescription records without a warrant, something forbidden by Utah law. The state objected to the DEA's records demand. The DEA responded by flexing its considerable federal muscle.

The DEA countered with the Supremacy Clause: valid federal laws are superior to conflicting state laws.

The court ended up agreeing with the DEA: patient info and prescription records aren't afforded additional privacy protections, no matter what HIPAA/state laws have to say about the matter. The court's rationale was that prescription medicine is part of a "closely regulated" industry, which lowers the bar for government access. This lumps pharmacies and hospitals in with pawn shops, gun dealers, and adult filmmakers.

The Francis' point out this reading of close regulation and the DEA's Supremacy assertions is incredibly broad. It proposes nearly no limits to what the government can grab without a warrant. While the court discussed the possibility this should be limited to prescriptions containing controlled substances, it drew no precedential conclusions that may have shortened the government's reach.

And, indeed, there are no court decisions that grant reasonable privacy expectations to records most members of the public feel should be accessed only by them and their healthcare providers. The blog points to the last Supreme Court ruling related to patient privacy -- one that's nearly 40 years old at this point. All the Whalen v. Roe decision did was indicate the Court believed New York state's statutory privacy protections were enough and that there was no need to drag the Fourth Amendment into this. As we can see from the DEA's actions and assertions, statutory privacy protections mean nothing, not if the federal government can step in and override protections put in place by state and local governments.

Filed Under: 4th amendment, dea, drug war, hipaa, law enforcement, medical records, prescriptions, privacy, warrant

DEA Looking To Buy More Malware From Shady Exploit Dealers

from the ends-and-something-about-means dept

The DEA -- like other federal agencies involved in surveillance -- buys and deploys malware and exploits. However, it seems to do better than most at picking out the sketchiest malware purveyors to work with.

When Italian exploit retailer Hacking Team found itself hacked, obtained emails showed the company liked to route around export bans through middlemen to bring the latest in surveillance malware to UN-blacklisted countries with horrendous human rights records. It also, apparently, sold its wares to the DEA -- an agency in a country with only periodic episodes of horrendous human rights violations.

Maybe there's a shortage of exploit sellers, but it would be nice to see a US agency be a bit more selective about who it buys from, rather than jumping into the customer pool with Saudi Arabia, Sudan, and Egypt. But the DEA has done it again. Emails obtained via FOIA by Motherboard show the DEA attempting to get in bed with another questionable malware purveyor.

The Drug Enforcement Administration held a meeting with the US sales arm of NSO Group, a controversial malware company whose products can remotely siphon data from iPhones and other devices, according to internal DEA emails obtained by Motherboard.

The news highlights law enforcement agencies' increased interest in using hacking tools and malware, as well as NSO's efforts to enter the lucrative US market.

The problems with NSO are multitudinous. Not only have its iPhone zero-days been used to target a dissident in the United Arab Emirates, but the Mexican government apparently deployed NSO malware on several occasions, each time with highly-questionable targets.

Privacy International has uncovered NSO malware in operation in Mexico, targeting journalists, lawyers, soda tax supporters [?!]... even children. Some of the targets were investigating government corruption. Others were investigating the mass disappearance of 43 schoolchildren from Iguala, Mexico. The deployment methods were at least as troubling as the demographics of those targeted.

The targets received SMS messages that included links to NSO exploits paired with troubling personal and sexual taunts, messages impersonating official communications by the Embassy of the United States in Mexico, fake AMBER Alerts, warnings of kidnappings, and other threats. The operation also included more mundane tactics, such as messages sending fake bills for phone services and sex-lines. Some targets only received a handful of texts, while others were barraged with dozens of messages over more than one and a half years.

This is what governments are doing with NSO's malware. Certainly NSO can't be expected to prevent end users from using its malware for evil, but it could be more selective about who it sells to. Perhaps the pitch to the DEA was viewed as a step towards legitimacy. But the DEA entertaining offers from NSO should be viewed as a step backwards for an agency that already has a few issues with its malware deployment.

Joseph Cox of Motherboard makes it clear the obtained emails don't show any purchases from NSO. But they do show the agency is interested in its wares. The lack of concerns about the source are par for the course. The DEA can't seem to find the time to deliver required Privacy Impact Assessments for its malware/exploit deployment and routinely thwarts its oversight. Buying from shady dealers is just another component of the DEA way.

Filed Under: dea, exploits, hacking, malware, vulnerabilities

DEA Deploying Powerful Spyware Without Required Privacy Impact Assessments

from the disturbing-pattern-of-noncompliance dept

It's not just the FBI that can't seem to turn in its privacy-related paperwork on time. The FBI has pushed forward with its biometric database rollout -- despite the database being inaccurate, heavily-populated with non-criminals, and without the statutorily-required Privacy Impact Assessment that's supposed to accompany it. As of 2014, it hadn't produced this PIA, one it had promised in 2012. And one that applied to a system that had been in the works since 2008.

Unsurprisingly, another federal law enforcement agency hasn't felt too compelled to produce PIAs for privacy-impacting programs. As Joseph Cox reports for Motherboard, the DEA's privacy paperwork is lagging far behind its intrusive efforts.

[T]he Drug Enforcement Administration did not carry out a Privacy Impact Assessment—a process which is typically designed to understand and minimize the privacy risks with a particular system or technology—when it bought and ultimately used malware from Italian surveillance company Hacking Team.

Hacking Team sells powerful malware and exploits, which very definitely screw with people's privacy expectations -- both the privacy they correctly (or incorrectly) believe they're entitled to as well as their expectations of the government, which is supposed to keep citizens' privacy expectations at the front of its mind. At least, everyone would like to believe the government is equally concerned about citizens' privacy. That's what these assessments are supposed to show: that the government has done what it can to minimize unwarranted intrusions.

But these are simply not to be found, to the surprise of no one.

Privacy experts say the news is consistent with the DEA's repeated failure to complete such assessments around the agency's surveillance operations.

One such privacy hound -- EPIC -- points out the DEA still hasn't handed in a Privacy Impact Assessment on its Hemisphere program. This program put the DEA on the NSA's level: embedded telco employees providing real-time access to millions of phone records. No warrants needed. No privacy assessment needed either, apparently, despite the program being in operation for more than 25 years at the point the DEA inadvertently disclosed it.

Jeramie D. Scott from the Electronic Privacy Information Center (EPIC) pointed to an April letter the organization sent to Congress urging a committee to scrutinize the DEA's compliance with PIAs. In that letter, EPIC highlights that the DEA did not conduct a PIA for its use of the controversial Hemisphere program, in which agents can access AT&T call records without a warrant. EPIC also found through a Freedom of Information Act lawsuit that the DEA had not completed a PIA for the agency's license plate reader database.

But the DEA has an excuse for not completing a PIA on purchased software exploits.

According to the DEA spokesperson, the agency did not carry out a PIA for RCS [Hacking Team's Remote Control Software] because the agency does not produce them for commercial software products.

Ha! Define "commercial." Just because the DEA can buy exploits and malware from a private company like Hacking Team hardly makes this spyware a "commercial software product." While any number of nations with piss-poor civil rights records can avail themselves of Hacking Team's offerings, your average consumer isn't able to pick up a copy of RCS. Generally speaking, commercial software can be purchased by nearly anyone and a great many people are familiar with the software's functions and capabilities. Remote-control spyware, purchased and deployed in secret, isn't "commercial software."

Nevertheless, the missing DEA PIAs will continue to go missing. There's seemingly no one in the DOJ interested in holding these agencies accountable, and there are very few people above the DOJ interested in holding it accountable either. So, the lack of oversight trickles downhill and agencies become more powerful -- and more of a threat to privacy -- but give nothing back to the community (so to speak).

Filed Under: dea, privacy, privacy impact assessment, spyware

Inspector General Report Shows DEA Covering Up Its Role In A Shooting That Left Four Foreign Citizens Dead

from the civilian-casualties-in-the-war-on-drugs dept

Here's the latest on how we're winning the Drug War, stripped of the DEA's deceit and spin by the Office of the Inspector General. The report [PDF] takes a look at three incidents the DEA was involved with in Honduras during 2012. The DEA's FAST (Foreign-Deployed Advisory and Support Team) team was supposed to help Honduran drug warriors (TRT-- Tactical Response Teams) fight the local drug war. It was only supposed to act in an advisory role, but it took a much more hands-on approach.

A seized boat loaded with cocaine lost power in the middle of a river on its way back to the nearest village. While drifting around awaiting rescue, a passenger boat "made contact" with the seized boat (called a "pipante"). All hell broke loose.

Video recorded by a CBP surveillance plane shows that, following contact, officers in the pipante fired at the passenger boat. The gunfire continued for about 26 seconds, including several seconds when officers in the pipante appear to be shooting at people in the water who had fallen or jumped from the passenger boat.

The spin machine began shortly after this. First, the DEA claimed it wasn't a passenger boat, but rather drug dealers coming to reclaim their stash. Gunshots were fired by people on the boat, according to the joint task force, even though video of the incident showed otherwise. And the DEA apparently felt its advisory role included telling Honduran helicopter door gunners where to shoot.

At least one DEA FAST member observing the encounter from a helicopter directed a Honduran door gunner to fire his machine gun. The door gunner then fired multiple rounds at the passenger boat.

Finally:

No evidence of narcotics was ever found on the passenger boat.

These are ugly facts, but the DEA -- along with the Honduran task force -- did everything they could to prevent these facts from being uncovered. As for the civilians caught in the literal crossfire? Sorry about that. Maybe try moving to a country without a drug war.

FAST and TRT did not conduct a search and rescue mission for individuals from the passenger boat who may have been injured, and instead focused solely on recovering the law enforcement officers stranded in the pipante. After the recovery of the officers and the cocaine from the pipante, the ground team loaded the helicopters and returned to base.

And the DEA might have gotten away with it if too, if it hadn't been for pesky, frightened locals.

Embassy officials soon received reports from Ahuas that innocent civilians had been killed and injured and that there had been abusive police activity in a nearby village.

Not that this evidence (which the OIG report diplomatically refers to as "conflicting") changed the DEA's narrative. It continued to insist police were shot at by passengers on the boat and that it had no involvement in the hail of gunfire that left four dead and four injured. Only when local law enforcement backed up the civilians' stories did the DEA slightly alter its version of the facts.

DEA changed its mind after a local Honduran police report asserted four people were killed (including two pregnant women) and four others were injured after a helicopter with DEA personnel confused cargo in a passenger boat for bales of drugs and opened fire.

It was all a big misunderstanding. Which left innocent people dead. The mere existence of drugs shouldn't be a reason to open fire on other humans. I mean, Honduras isn't the Philippines. And the DEA should be on hand to prevent this sort of thing from happening, not telling door gunmen how much to lead civilian targets in a moving boat.

The DEA's continued lies led to even more obfuscation.

U.S. Ambassador to Honduras Lisa Kubiske authorized State’s Diplomatic Security (DS) to investigate the three incidents after she became frustrated by her inability to obtain information from DEA and concerned the Honduran investigation would not satisfy those interested in the May 11 incident. DEA refused to share information with DS or provide access to relevant personnel.

The DEA then claimed it had already investigated itself and found nothing that said one way or the other that firing on unarmed civilians was against the Drug War rules. But as the OIG points out, the DEA's definition of "investigation" meant handing over a stack of forms to someone unwilling and uninterested in performing an internal investigation.

DOJ OIG found that the resulting investigation was little more than a paper exercise. DEA assigned the matter to a FAST Supervisor who did not conduct any interviews and merely collected written statements from FAST agents – statements we found in a few instances were improperly prepared or omitted material facts, such as the direction given by a FAST member to the Honduran door gunner to fire his machine gun at the passenger boat. The FAST Supervisor did not determine whether weapons checks, as required by DEA procedures, were conducted after the shooting (they were not). He also did not seek to interview or obtain witness statements and reports from FAST’s U.S. and Honduran partners who participated in the operation. We also did not find evidence that he gave any consideration to the accounts of survivors from the passenger boat or local residents of the village.

It then took these alternative facts to its Congressional overseers, hoping to head off any additional scrutiny.

DOJ OIG found that DEA’s misplaced confidence in its assumptions of the events that took place on May 11, and its failure to conduct a thorough post-incident investigation, resulted in DEA making several factual representations to DOJ leadership and to Congress that were inaccurate, incomplete, or based upon unreliable and insufficient information. This included representations regarding the central premises of DEA’s narrative regarding the May 11 incident, namely that individuals in the passenger boat had fired first and Honduran officers returned fire, and that no DEA agents discharged their weapons.

The evidence presented by the DEA to Congress did not include recordings that called into question its depiction of a gunfight (rather than the one-sided bullet hell it actually was). Instead, its narrative before Congress utilized a highly-questionable "Sources of Information" (SOIs).

As we describe in Chapter Five, SOI #2 provided inconsistent accounts of the May 11 incident to DEA over the course of three interviews and admitted to lying to DEA during his/her first interview. Yet, DEA failed to adequately question SOI #2 about his/her multiple versions of events or confront him/her with the inconsistencies between his/her various stories and the May 11 video footage. Further, even after SOI #2 admitted to lying to DEA and providing conflicting accounts, we found no evidence that DEA officials clarified or modified their prior representations to DOJ leadership and Congress.

The tales that began in Honduras grew larger in the telling. With the DEA controlling the investigation and the evidence, Congress heard a story that bore almost no resemblance to the actual incident.

[D]EA officials described information favorable to DEA’s positions while omitting unfavorable information, such as video evidence of TRT officers shooting at people who had fallen or jumped into the water, the inconsistent TRT reporting and TRT gun-planting incident, and the results of a preliminary report from the Honduran National Police that made findings critical of law enforcement actions on May 11. DEA officials also did not disclose the existence or results of the video enhancement and analysis by the DS video analyst who found no evidence indicative of gunfire from the passenger boat. Moreover, DEA continued to inaccurately and incompletely characterize its role in Operation Anvil as being supportive and advisory only.

With one level of oversight thwarted, the DEA started fending off the Inspector General's office.

DEA failed to timely produce numerous responsive e-mails of certain senior DEA officials connected to Operation Anvil, without justification. While DEA promptly produced responsive e-mails of non-Senior Executive Service (SES) employees, it initially refused to produce to the DOJ OIG responsive e-mails of SES employees despite the fact that the OIG was entitled to access the material pursuant to the Inspector General Act. Only after lengthy discussions over a 4- month period were some of those e-mails of SES employees finally produced to the OIG. Others were not produced until as much as 11 months after we asked for them.

Second, while DEA produced a large number of documents in response to our requests, it omitted certain highly relevant reports and statements related to the specific issues of our review. For example, none of the eight document productions provided us with the initial witness statement of the only percipient DEA witness in the boat during the May 11 drug interdiction that resulted in the deaths of four individuals, even though this statement was clearly within the scope of our requests.

This is how we fight the Drug War. With lies and cover-ups and press releases touting the number of kilograms seized while making no mention of the collateral damage. And this is why Congressional oversight is mostly useless. It can't compel the DEA to tell the truth. All it can do is wait for the truth to come out, which is years after the fact and often the result of other entities: whistleblowers, Inspector General investigations, FOIA requesters, etc. As long as the fight is viewed as a "good" one, agency sins will be forgiven and politicians will continue to believe internal policy changes are anywhere near as substantial as internal culture changes.

Filed Under: coverup, dea, drug war, fast, honduras, inspector general, murder

MySpace Tries To Play Dead To Avoid Lawsuits

from the hide-and-seek dept

Yes, let's get this out of the way already, so you don't need to make this joke in the comments: as a social network, MySpace is considered pretty damn dead already. It lost its cool many, many years ago. And I do still love to point out this 2007 article suggesting that MySpace's dominant position in the social networking market was almost impossible to crack (that didn't age well). But that's not what this post is about. You see, MySpace, still does exist -- you can even visit it and double their traffic for the day. Even as the punchline in bad jokes, MySpace exists and (believe it or not) Time Inc. actually owns it, having bought the company, Viant, that owned it previously.

This story, however, is about how, soon after Time took over MySpace, its lawyers literally tried to hide the company from a plaintiff (and the court) by having the company play dead -- even though it was very much alive. I'm not exaggerating. Time Inc. appeared to play a bunch of legal shenanigans to pretend that MySpace no longer existed, even as the company kept operating -- to the point that Viant's CEO was publicly hyping MySpace. Hell, months after Time Inc. tried to pretend MySpace was dead, Time's CEO was talking up how amazing MySpace was in the press.

The background here: years ago, a guy named Stephen Aguiar was arrested and convicted for drug distribution. He's in prison, serving 25 years. Sometime after his conviction he discovered that some of the evidence against him, that was supplied by MySpace (way back when MySpace was still a big thing), quite likely violated the Stored Communications Act.

Additional background: We've written about the Stored Communications Act before. It's a part of the Electronic Communications Privacy Act (ECPA) that controls what kind of electronic information can be given up without a warrant. As we've also discussed for years, ECPA is woefully out of date for a variety of reasons including the fact that it says that all communications stored on a server for more than 180 days should be considered abandoned and no longer need a warrant to access. But communications less than 180 days do require a warrant.

Back to Aguiar. In late 2013 he discovered that back in 2009, the DEA sent an administrative subpoena to MySpace, under the Stored Communications Act, asking for certain content related to his MySpace account. An administrative subpoena is not a warrant. As we've described in the past, it's basically a fishing expedition by law enforcement, in which they send an official looking document asking for information they may not actually have the rights to. MySpace, back in 2009, apparently had lawyers who fell for this and handed over basically all of Aguiar's account info, despite at least some of it being protected under the SCA and requiring an actual warrant (which would require probable cause and a judge's review).

Thus, in 2014, he sued MySpace for violating the Stored Communications Act, representing himself (pro se). At this point, MySpace was owned by Viant and it hired some lawyers to defend the case. All well and good. But, within weeks of Time Inc. buying Viant, something sketchy started happening. Without telling anyone, Time claims that it changed the name of its "MySpace LLC" subsidiary to "Legacy Vision LLC." Then, it "transferred" all of MySpace's assets to Viant. Four days later, it registered a brand new company... also called MySpace LLC. While this was happening, Time/MySpace basically told no one about this. The people operating MySpace had no idea and nothing changed. Even the lawyers who were representing MySpace in the case knew nothing about it and continued to represent the company for months -- only to be told about six months later that the company they were representing stopped existing months earlier.

Prior to this MySpace had moved to dismiss the lawsuit, and was denied. So the case was supposed to move forward and MySpace was supposed to file an answer to the complaint. Except... it didn't. It didn't do anything at all. The magistrate judge, Patrick Walsh, demanded that the lawyer representing MySpace, Jane Rheinheimer, show up in court leading to a hearing last December with a fairly incredible transcript. Some excerpts:

RHEINHEIMER: My name is Jane Rheinheimer, I’m former counsel, well, counsel for the former MySpace LLC.

THE COURT: Okay. And who’s the representative from MySpace or Legacy?

RHEINHEIMER: There is none, your honor.

THE COURT: Why not?

RHEINHEIMER: Neither MySpace nor Legacy Vision LLC exists as an operating entity anymore, your honor.

THE COURT: Well that sounds like a lawyer talking, like as an operating an entity. Somebody signed a change in the name change in the spring.

RHEINHEIMER: It’s my understanding, your honor. And- My understanding is that Legacy Vision LLC currently exists only in name with the secretary of state. There is no management; there is no employees; there is no asset; there is no anything; there is no operating entity there, your honor.

Got that? There's a sneaky game being played here. Effectively, it appears that Time is claiming that the MySpace that was sued became Legacy Vision, but that Legacy Vision shut down and isn't operating at all. And that this operating MySpace is someone else entirely. The judge was... not impressed, leading to this crazy exchange between the judge and Aguiar (again, representing himself in court, where the judge is helping by explaining what's going on):

THE COURT: Okay. All right, Mr. Aguiar, what do you want to do?

AGUIAR: I’m kind of out of my area of expertise, your honor. My understanding was that the name changed in March. Weren’t the parties obligated to notify either me or the court?

THE COURT: Of course they were. This is middle school stuff, right?

AGUIAR: Right.

THE COURT: This is how four year olds play hide-and-go seek. When you tell them to go hide and go seek, they cover their eyes, and they think you can’t see them, right?

AGUIAR: Right.

THE COURT: So MySpace changed its name to Legacy and they’re like, “There’s no more MySpace, Court.” Okay, here’s what I’m going to do. I’m adding Legacy. I’m going to give you a default... and you can do what you want with it. All right?

In other words, the court was making it clear that it wasn't buying this game. Of course, that same transcript included the court refusing to let MySpace's former lawyer withdraw from the case, even as she was pointing out that she no longer has a client to pay her, because her "client" claims the company no longer exists:

THE COURT: We’ll be entering the default and you make your motion for default judgment. Ms. Rheinheimer, I understand you’re in a tough spot, but your request to withdraw as counsel is denied, okay? Corporations cannot proceed in the federal court without a lawyer and there’s no good reason for you to be off this case. I think it’s just gamesmanship that’s going on with Legacy and MySpace and Mr. Lee, and I’m not letting you off. We’re going forward. He’s going to file a motion for default judgment and if you don’t want to fight that, don’t fight it. I’ll enter the default judgment, okay? And you can go back…

RHEINHEIMER: Very well, your honor. There is no entity to pay me. I have no way of, I have no way of getting paid. There is noth…

THE COURT: I want to tell you I’ve been in this- as a law clerk, I worked at DOJ at the US attorney’s office and I’ve been a Judge for 15 years. I want to tell you what I understand what’s always been the practice since 1984, when I externed for Judge Layton at the federal district court in Chicago. We’re not here, we’re not bill collectors. The fact that you can’t get paid, the rules don’t provide ‘you have to represent your client diligently unless you client is not paying you’. And our local rules don’t require, don’t allow you to get out from under a case because your client isn’t paying you. That’s something you have to- I’m not in the middle of those negotiations. You need to call up Mr. Lee and say, “Hey Judge Walsh is leaving me on this case. I need to get paid.” And I think you should get paid, okay? I’m on your side there, but you’re not flipping the district court upside down because you’re not getting paid. All right?

Soon after this, a few things happened. First, the "new" MySpace got angry at being added to this case, and hired some new lawyers who filed to "intervene" in the case (even though they should already be in the case as it's the same MySpace) in order to try to fight the ruling. The filing is a work of art if legal bullshit were an artform. It insists that MySpace LLC is some totally unrelated company to the MySpace LLC in the lawsuit and acts positively shocked that anyone might think they are the same:

Plaintiff’s Motion constitutes his latest attempt to obtain a default judgment against a company that: (1) never had any dealings with Plaintiff; (2) was never named as a party to this lawsuit; (3) did not exist until well after the conduct complained of in Plaintiff’s complaint occurred; and (4) is both factually and legally a separate entity from the “Myspace LLC” identified in Plaintiff’s complaint which Plaintiff admits now operates under the name Legacy Vision LLC (hereinafter “Judgment Debtor”).

In a separate filing, MySpace attempts to argue that when Time bought Viant/MySpace it structured a complicated agreement in which it was buying the assets, not the liabilities -- and thus the complicated shell corporation and asset movement was really about fulfilling that agreement.

Second, Aguiar got legal representation from lawyer Caleb Mason, who some of you may recognize as a partner of Ken "Popehat" White's. Mason then opposed the intervention and detailed much of the history I summarized above -- including pointing out that despite the name changes and new corporations, MySpace hasn't changed. The same lawyer who accepted service for the original lawsuit is still VP of legal affairs. The same lawyer representing the firm now represented the firm earlier in other cases. The same CEO of Viant/MySpace is still CEO of Viant/MySpace (now a Time Inc. subsidiary).

Third, the original MySpace/Viant lawyer filed a declaration to the court more or less burning MySpace/Viant for telling her to stop doing anything on the case in September way after all the shell games happened, and then completely ignoring her every time she tried to contact them about things moving forward in the case (including the court refusing to let her withdraw):

As is set forth in more detail in the Motion to Withdraw and Declaration of Jane A. Rheinheimer which is filed concurrently with the instant Declaration of Inability to File Opposition or Notice of Non- Opposition, all communication from Viant, Inc. and/or MYSPACE, LLC has ceased. I was advised by the previous corporate counsel for Viant, Inc. on September 16, 2016, that my firm’s services would no longer be required in connection with this matter. Additional written communications from my office on September 16, December 20, December 21, December 22, December 27, and December 29, 2016 and January 10, January 31, February 1, and February 3, 2017 have gone unanswered. I have sent corporate counsel copies of all pleadings, motions, and minute orders of this Court. All of these communications were sent via electronic mail, none of which have been returned.

Given all that, a few days ago the judge, James Otero, ruled in the case... and to say that he's less than pleased with Time Inc./MySpace's games here would be an understatement. The ruling denies "MySpace LLC"'s request to intervene, because the judge notes it was already a party to the case and just chose to ignore it. All the maneuvering is written off as "gamesmanship and evasion." This is the kind of thing you generally don't want to hear a judge saying about your actions in a case:

The Court agrees that this is not a run-of-the-mill motion for default judgment. Although it claims otherwise, MySpace has been actively opposing the motion and has concealed material information or otherwise muddied its representations to the Court.

As for the claim that Time only bought the assets and not the liabilities, the court isn't buying it:

Through a complicated series of transactions not previously disclosed to the Court, Proposed Intervenor argues that a Time, Inc. subsidiary transferred MySpace's assets–but none of its liabilities–to Proposed Intervenor, which currently operates under the same.... MySpace fails to provide any documentation to support these purported transactions.

Also, as to the claims in MySpace's attempt to "intervene" that MySpace LLC didn't exist prior to all of this, the judge points out, wryly, some oddities if that's the case:

A search of "MySpace LLC" on the California Secretary of State website reveals that it has the same address as the headquarters of Time, Inc., the parent company of Viant.... A search of "Legacy Vision LLC" on the website shows that Legacy Vision filed a Statement of Information on November 2, 2015–four months before Defendant MySpace allegedly changed its name to Legacy Vision–with the following information: the limited liability company name is listed as "MYSPACE LLC"; the manager of the entity is "Viant Technology Inc."; and the "AUTH PERSON" who completed the form was Timothy C. Vanderhook, Chief Executive Officer of MySpace LLC and Viant Technology LLC.... "Viant Technology Inc." is listed as the "Manager" of Legacy Vision, and has an address that matches that of Viant Technology LLC's headquarters in Irvine, California....

Moreover, Proposed Intervenor's counsel, LTL Attorneys LLP ("LTL"), was counsel of record for MySpace LLC in another action in the District of Delaware, captioned FO2GO LLC v. MySpace LLC, No. CV 15-00095 RGA (the "Delaware Action"), filed January 27, 2015.... In other words, assuming Proposed Intervenor did not exist until March 2016, it was somehow represented by the same firm over a year before.

The court further calls out attempts by this MySpace to also pretend that Viant Technology LLC and Viant Technology Inc. are somehow different companies (they are not). It goes on and on along these lines, including pointing out that the company had a legal obligation to update the court and the plaintiff in the case to changes in ownership to the defendant -- and eventually orders MySpace to pay Aguiar $1,000 for violating his rights under the SCA, but also to pay nearly $75,000 in Aguiar's legal fees.

What a mess. This kind of bullshit gamesmanship — having Time Inc. pretend that MySpace is dead just to avoid a court case — is the reason lawyers (especially corporate lawyers) have such a bad reputation among so many people. Thankfully it's not always so easy to get away with.

Filed Under: caleb mason, corporate lawyers, dea, ecpa, shell corporations, stephen aguiar, stored communications act
Companies: legacy vision, myspace, time, viant

Report Says DEA Doesn't Even Know If The Billions In Cash It Seizes Is Having Any Impact On Criminal Activity

from the also:-doesn't-seem-to-care dept

The DOJ's Inspector General has just released its latest report [PDF] on federal civil asset forfeiture. It's not pretty and it confirms many of the criticisms of the program. Law enforcement agencies -- including the DEA, which is responsible for nearly 80% of the $28 billion of forfeited assets over the past decade -- claim the program is key in the dismantling of criminal organizations.

However, the facts don't back up this claim.

The report opens by pointing out agencies involved in civil forfeiture seem completely uninterested in the actual pursuit of criminals. One multimillion dollar seizure resulted in nothing more than millions of dollars being seized. Any criminals associated with the cash are presumably still out there committing criminal acts.

Based on intelligence collected from the money laundering operations, other federal law enforcement agencies conducted additional investigative work which, according to the task force, resulted in the arrest of 84 individuals and the seizure of approximately $49 million. The OIG found that the BHPD received over $6 million in revenue derived, in part, from equitable sharing payments related to these seizures. However, according to a task force official, the task force did not file a single criminal indictment related to its money laundering investigative operations.

From which the OIG can only draw this conclusion:

Such outcomes can raise questions about whether seizures are intended to serve legitimate law enforcement interests or to bolster law enforcement budgets.

The report focuses on the DEA, as it's responsible for most of the forfeitures. Again, the claim that forfeiture is an effective crime-fighting tool isn't backed up by any data the DEA has on hand. In fact, the DEA seems uninterested in self-assessment or anything else that might undermine its claims of crime-fighting effectiveness. As the OIG points out, the DEA has no idea whether civil asset forfeiture actually works.

We found that the Department and its investigative components do not use aggregate data to evaluate fully and oversee their seizure operations, or to determine whether seizures benefit criminal investigations or the extent to which they may pose potential risks to civil liberties. The Department and its components can determine how often seizure and forfeiture advance or relate to criminal investigations only through a manual, case-by-case review of component case management systems

As is noted here, the DEA is not only uninterested in quantifying the results of forfeiture, but has expressed zero concern about potential civil liberties violations. The DEA basically doesn't know if forfeiture is good or evil. All it cares about is the money. It is so focused on seizing cash, it's set up a network of informants in airports, trains stations, bus deposts, and post offices who do little more than notify the agency any time they come across currency.

The DEA also does little to justify the initiation of seizures. The report notes nearly every seizure examined began with something barely approaching reasonable suspicion.

[W]e found that 85 of the 100 seizures occurred as a result of interdiction operations at transportation facilities, such as airports, parcel distribution centers, train stations, and bus terminals, or as a result of a highway interdiction or traffic stop. All but 6 of the 85 encounters or situations that led to interdiction seizures were initiated on the observations and immediate judgment of DEA agents and task force officers absent any pre-existing intelligence of a specific drug crime (the remaining six were based on preexisting intelligence).

Further, a majority of the seizures examined were seemingly carried out for no other reason than to seize cash.

[T]he DEA could verify that only 44 of the 100 seizures, and only 29 of the 85 interdiction seizures, had (1) advanced or been related to ongoing investigations, (2) resulted in the initiation of new investigations, (3) led to arrests, or (4) led to prosecutions.

Another seizure detailed in the report backs up the OIG's conclusions: the DEA is interested in cash and little else.

After Transportation Security Administration agents discovered U.S. currency artfully concealed in a manufactured compartment within the pulley of a checked bag, a task force officer assigned to a DEA group responded with a drug dog to assess the bag. The dog positively alerted to the presence of a controlled substance, and the group seized $70,460 concealed in the bag and its pulley. According to the DEA’s documentation, the group that effected the seizure had no immediate way to contact the traveler who had checked the bag; the traveler already had boarded the plane and the ticket had not been purchased through the airline. No effort was made to alert law enforcement in the arrival airport to stop and speak with the passenger claiming the bag; rather, a DEA agent placed a receipt for the currency and DEA contact information inside the bag and the airline sent the bag to its final destination.

The person who had purchased the ticket was different from the traveler but shared the same address. The DEA sent a notice of seizure to the address; but, after receiving no response, the DEA took no further action, such as following up, in person, at the known address to interview the traveler or the person who purchased the ticket. CATS records indicate that this seizure did not receive any petitions or claims and that it ultimately resulted in an administrative forfeiture of $70,460 to the federal government.

This is a repeated pattern with DEA forfeitures, and the OIG doesn't care for it.

Even accepting that the circumstances surrounding the discovery of this large volume of concealed currency justified law enforcement suspicion and seizure, we find it troubling that the DEA would make an administrative forfeiture without attempting to advance an investigation, especially considering that the DEA had opportunities to contact the potential owners of the currency instead of simply providing written notice of the seizure.

The OIG recommends all DOJ law enforcement components (but especially the DEA) engage in better recordkeeping and do more to assess whether seizures are actually having an impact on criminal activity. The DEA has rejected this recommendation. It would rather continue in the same fashion it has for years: lots of seizures, few arrests, and even fewer convictions. As the DEA sees it, the OIG's negative report is the result of the Inspector General being unable to grasp the complexities of the Drug War.

The Criminal Division’s response to the formal draft of our report (attached as Appendix 4) suggests that the OIG does not fully appreciate the importance of asset seizure and forfeiture in addressing our nation’s crime and illegal drug problems.

The OIG begs to differ, pointing out that a "well-run" program can be effective in fighting criminal activity. The problem here is that the program isn't well-run, especially in the DEA's case. The DEA can't demonstrate why forfeiture is effective, but claims it's the OIG that can't handle the "complexities" of the program. What the DEA wants is the same level of oversight it's had for years: nearly none. Periodic reviews by the Inspector General keep pointing to problems and indicators of abuse. Each one is greeted by DOJ Criminal Division indifference. The component agencies care little for the rights of Americans, especially if they're carrying seizable cash.

It's an ends-justifies-the-means situation, but the DEA doesn't even care whether the "ends" are even being met. It just likes the "means," which pads its ample budget and allows the government to seize billions in cash with minimal effort.

Filed Under: asset forfeiture, dea, stealing