DEA Impersonating Medical Board Investigators To Gain Access To Personal Health Records

from the the-constant-hassle-of-minimal-paperwork-thwarted-yet-again! dept

Medical records have long been given an increased expectation of privacy, something that dates back to before the passage of HIPAA. (See also: Hippocratic Oath.) Consultations with doctors -- and the written records resulting from them -- have generally been treated as confidential, seeing as they contain potentially embarrassing/damaging information. Personal health information can be reported to law enforcement for many reasons: suspicion of criminal activity on the health entity's property, suspicion of criminal activity related to an off-site emergency, reporting a death, patients with stabbing/gunshot wounds, or in the case of a serious/immediate threat. Otherwise, HIPAA's rules for law enforcement say personal information can only be released under the following conditions:

To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or an administrative request from a law enforcement official (the administrative request must include a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used).

The bar is set pretty low and the DEA has been taking advantage of it. Jon Cassidy of Watchdog.org is reporting that the agency is rooting around in medical records in hopes of finding patients or health care providers who might be abusing drugs.

The Drug Enforcement Administration has been sifting through hundreds of supposedly private medical files, looking for Texas doctors and patients to prosecute without the use of warrants.

What the DEA is using instead is a blend of impersonation and administrative permission slips sporting the agency's own signature.

Instead, the agents are tricking doctors and nurses into thinking they’re with the Texas Medical Board. When that doesn’t work, they’re sending doctors subpoenas demanding medical records without court approval.

How often is this happening? Apparently it's so close to "all the time" that the DEA doesn't even have an approximate guess. This is what a DEA spokesperson told the Daily Caller.

“It’s not like there’s ten of them. There’s probably thousands — I know there are thousands,” Matt Barden, spokesman for the DEA, told the Daily Caller News Foundation about the DEA’s use of administrative subpoenas.

Early last year, a federal court in Oregon ruled the DEA could not access the state's prescription database without a warrant. Unfortunately, this was due to Oregon's state laws being more restrictive than federal law. A federal judge in Texas reached the opposite conclusion, finding that the DEA's use of administrative subpoenas complied with both HIPAA and state law. This decision is now headed for the Fifth Circuit Court of Appeals, where it is hoped a finding similar to the decision in Oregon will be the end result. But judging from the laws in place, that outcome is doubtful.

While the DEA's use of administrative subpoenas appears to comply with HIPAA's restrictions, its repeated attempts (many of them successful) to access medical records with no paperwork whatsoever seem less likely to stand up to legal scrutiny.

The Dallas-area doctors bringing the lawsuit against the DEA have uncovered plenty of DEA subterfuge. In their case, three DEA agents showed up at their offices with a state medical board investigator. Only the investigator identified herself. The agents remained silent, allowing the nurse to believe they, too, were with the state medical board.

The state medical board may have every right to view medical records without any accompanying paperwork, but that's because this information falls directly under its purview. The DEA, however, is looking to build criminal cases. This brings with it additional Fourth Amendment considerations and, at the very least, should bind it to the minimal restrictions of HIPAA. Apparently, issuing its own permission slips is still too much work and the delivered paperwork might accidentally restrict it to only certain medical records pertaining to certain people. By impersonating medical board members, agents have unrestricted access to whatever they ask for.

As Watchdog's Jon Cassidy points out, patients who'd like their privacy respected may want to seek their prescriptions and refills… elsewhere.

The DEA’s practice of avoiding warrant requirements has produced this absurdity: If you have a prescription for Adderall or OxyContin, you might be safer getting your drugs on the street than through your own doctor.

Street dealers, after all, don’t keep patient records, and they’re afforded more constitutional protections than medical practitioners. That is, cops still need a warrant to search them.

While the latter isn't strictly true in all cases, it's true enough to show how limited the protections of HIPAA actually are. The more disturbing aspect is that the DEA isn't even satisfied with near-instant access to a wealth of medical records provided by administrative subpoenas. It apparently only uses the correct paperwork as Plan B, preferring to mislead medical practitioners by allowing them to believe its agents are investigators working for the state medical board.

Filed Under: 4th amendment, dea, health records, hipaa, impersonation, investigations, medical boards, privacy, warrant

Court Says Government Has To Reveal If It Kept The Data From The DEA's Mass Surveillance Program

from the standing-achieved dept

Back in April, USA Today had a detailed report on a massive DEA phone records surveillance program that pre-dated 9/11 (and the NSA's similar phone records mass collection). The DOJ put an end to the DEA's program after the Snowden revelations when it realized that the government's own defense of why the NSA program was legal would conflict with the DEA program. Specifically, it kept trotting out "terorrism" and "national security" but that didn't apply to the DEA's program, which was actually used much more widely than the NSA's (according to the report, the DEA searched the database as many times in a day as the NSA did in a year). However, a day after this report, Human Rights Watch, represented by the EFF, sued the DEA over the program -- citing both the First and Fourth Amendment as being violated.

As expected, the DEA pulled out the usual defenses to try to get the lawsuit dismissed, including arguing that without direct evidence of surveillance on Human Rights Watch, the organization had no standing. Those arguments were given much more credence by the courts in the pre-Snowden era, but lately the courts have been much more skeptical. And, thus, the district court has (somewhat, narrowly) rejected this argument by the DEA and allowed the EFF to move forward with a bit of discovery, which hopefully will enable it to find out at least some details of the surveillance program.

More specifically, the court ruling by Judge Philip Guitierrez says that HRW has enough standing on the 4th Amendment question, but not on the 1st Amendment question. Specifically, on the 4th Amendment issue, the court finds HRW's claims to be entirely plausible, which is enough to allow discovery.

First, the Government argues that HRW has not pled that it suffered an injury in fact as a result of the Mass Surveillance Program because HRW has not plausibly alleged that its call records were ever collected pursuant to this Program.... The Government contends that HRW’s allegation that “Defendants obtained records of HRW’s communications to the Designated Countries as part of the Mass Surveillance Program,” ..., is insufficient because it lacks supporting factual allegations that render the claim plausible, rather than merely possible.... For example, the Government highlights that the Complaint and the attached Patterson Declaration do not identify the specific U.S. telecommunications companies that received administrative subpoenas under the Program or a time period during which the Government requested and collected call information.... The Court acknowledges that the Complaint does not contain such particularized pleadings as: HRW staff called individuals in Iran using Verizon lines in 2012; the Government issued subpoenas to Verizon for all 2012 Iranian call data; Verizon produced all 2012 Iranian call data to the Government; the Government obtained HRW’s 2012 Iranian call data. However, HRW’s allegation that the Government collected records of its communications to designated foreign countries pursuant to the Mass Surveillance Program is supported by some specific factual allegations that render this allegation plausible, rather than merely possible.

The Patterson Declaration states that the Government compiled a database “consisting of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876.” ... The metadata “related to international phone calls originating in the United Sates and calling [] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.” ... The database could then “be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation.” ... From these factual representations, HRW alleges that the program collected call records for “all, or substantially all” telephone calls originating in the United States and terminating in the “designated countries” since at least 2011....

This allegation that “all, or substantially all” of these calls were collected necessarily embraces the more specific factual allegation that the Government issued subpoenas to all, or substantially all U.S. telecommunications companies to collect these calls.... Moreover, HRW’s allegation that the Government collected call data on “all, or substantially all” calls is plausible. First, the Patterson Declaration did not contain language indicating that the Government targeted only some U.S. telecommunications providers, instead it stated broadly that metadata was “obtained from United States telecommunications service providers.”... Further, because the only criteria for collection were the involvement of certain initiating and receiving countries and the Program’s aim was to create a broad database for criminal investigation queries, it is not implausible that subpoenas would be issued to all U.S. telecommunications companies requesting all qualifying data so that the Government could compile a complete database to better serve the investigative query purpose.

And thus:

In light of the plausible allegation that nearly all such calls were collected pursuant to the Program, the pled facts regarding HRW’s telephone practices support the ultimate allegation that the Government did collect HRW’s call data, as directly alleged in the Complaint.

The government also argued that since the program is over, there's nothing to fight over any way, and there's no standing to seek an injunction since there's nothing to stop. However, the court finds that because the government has not said it destroyed the data, there is at least enough of a reason to move forward to determine if the government retained the data.

Standing over the First Amendment claim is rejected, however, because the complaint did not claim a concrete injury:

The Court does not reach the legal sufficiency of this claimed injury because HRW has not alleged this First Amendment injury with factual sufficiency. Injury in fact requires a harm that is “‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’”... HRW does not provide any factual allegations that indicate that HRW’s chilled communication concern is actual and imminent rather than conjectural. For example, HRW does not allege that any of its contacts know about the Mass Surveillance Program or that they have ever refused to communicate with HRW due to the Government’s retention of collected telephone metadata pursuant to a Program that has been occurring for years. Without alleging any specific supporting facts, HRW’s statement that its “ability to effectively communicate with people inside the Designated Countries” has been burdened is a conclusory allegation that the Court does not accept. Moreover, the allegation that HRW “cannot assure its associates abroad that their communications records will not be shared” is implausible in light of the Patterson Declaration’s attestation that the Government is not currently using or querying the collected information.

Still, the win on standing over the 4th Amendment issue is important, and it will allow discovery to move forward -- but in a fairly limited way, focused on determining if the government did, in fact, retain the records.

The Court agrees that some limited discovery directed toward the Government is warranted because such discovery could possibly provide HRW with jurisdictional evidence suggesting that the Government still possesses HRW’s call records in some form. Accordingly, the Court will allow HRW the opportunity to conduct limited discovery on this issue.

[....] The Court limits the interrogatory topics to the following issues: (1) whether the Government retains call records in repositories other than the purged database; and (2) whether the Government retains Program call records in derivative forms. Accordingly, the Court orders that HRW is permitted to serve no more than five interrogatories on the Government regarding these two issues.

This is fairly narrow, and it's entirely possible that the government may now try to get out of this whole case by simply saying that it has purged all those records. However, at the very least, as the EFF notes, it will let the world know whether or not the government has kept all those phone records.

Filed Under: dea, mass surveillance, phone records, surveillance
Companies: eff, human rights watch

Agency Watchdogs Ask Congress To Roll Back Decision Allowing Agencies To Withhold Documents From Oversight Entities

from the a-new-low-in-sensitivity-training dept

FBI. DEA. NSA. CIA. DHS. TSA. All these acronyms (and more) participate in activities that can (and do) have negative effects on Americans' civil liberties. But that's OK, says the government, because we have oversight. This assertion just simply isn't true. The Snowden leaks proved what oversight existed was beholden to the NSA and frequently put itself between the agency and legislators on the outside of the inner circle in order to keep its secrets protected.

Elsewhere, the entities charged with providing oversight for government agencies -- the various Inspector General's offices -- were finding themselves unable to pursue their duties because the agencies they watched refused to cooperate with their investigations. Michael Horowitz, the DOJ Inspector General, frequently expressed his displeasure with the DEA and FBI, both of which refused to provide him with the documents he was seeking.

Over at the CIA, Inspector General David Buckley performed his investigation of the alleged hacking of Senate staffers' computers. He found the allegations to be true. The CIA responded by discrediting his report and performing its own internal audit, which naturally found the agency to be blameless and the Senate at fault for supposedly abusing its access to CIA documents. Buckley retired. The CIA has yet to replace him.

As if things couldn't get any worse, the Office of Legal Counsel decided the best route for effective oversight was to hand over control to the agencies being overseen. On July 20th, it issued a decision that said Inspectors General needed to seek permission from the agencies under their purview for access to sensitive documents. If the agencies turned them down, too bad. They'd just have to do without.

The IGs -- representing 72 government agencies -- have sent a letter to Congress asking them to overturn the OLC's decision. (via Unredacted)

Despite the unequivocal language of Section 6(a) of the IG Act, the OLC opinion concludes that it does not entitle the DOJ-IG to obtain independent access to grand jury, wiretap, and credit information in the DOJ’s possession that is necessary for the DOJ-IG to perform its work. Indeed, the OLC opinion concludes that such records cannot be obtained by the DOJ-IG pursuant to the IG Act, and can only be obtained in certain – but not all – circumstances through provisions in the specific laws related to those records. Further, the opinion provides that only the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is enshrined in the IG Act on its head.

The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access. Similarly, the Department of Commerce denied its Inspector General (Commerce-IG) access to agency records that were needed for the Commerce-IG to complete an audit of agency operations because agency counsel had concluded, based on guidance that agency counsel said came from OLC, that it might be a violation of another federal statute to make the records available to its Inspector General. As a result, the Commerce-IG could not complete its audit.

In other words, things were already bad. Now, they're impossible. These agencies were already doing everything they could to thwart their oversight. Now, the OLC has given them permission to stonewall every single investigation that requires the access to "sensitive" agency documents -- which would be a great majority of them.

The letter goes on to point out that the OLC's decision creates a smokescreen that will have serious repercussions for years to come.

Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General's independent access may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency's activities. It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.

The OLC's decision is astounding, and should be undone as swiftly as possible. There's a lot of room for abuse in many agencies, and one of the only things acting as a check against this are the IGs. The assurances that there is sufficient oversight are hollow. There was very little oversight to begin with. With this determination in place, there's almost none. The denied access can likely be challenged, but time is often of the essence, and weeks or months of discussion over the release of documents can put a lot of space between badly-behaving agencies and whatever scandal they're attempting to ride out.

The OLC had decided government agencies shouldn't be accountable to the public, and its excuse is "security." It's being left up to agencies to decide what information is too "sensitive" to share with their overseers. And it will be evidence of screwups, quasi-legal activities and other abuses of power that receive this label first.

Filed Under: cia, dea, dhs, doj, fbi, inspector general, inspectors general, nsa, office of legal counsel, olc, transparency, tsa, watchdogs

DEA's Confidential Informant Program Basically Being Run With No Oversight Whatsoever

from the 'do-what-thou-wilt;-that-it-the-whole-of-the-policy' dept

DOJ Inspector General Michael Horowitz's report on the DEA's use of confidential informants has been published. (We're still an unknown amount of time away for his report on the agency's use of administrative subpoenas.) And it's still incomplete. Horowitz has been fighting the FBI and DEA every step of the way, as both agencies have proven not only unwilling to turn over needed documents, but thoroughly resistant to DOJ intervention or threats against their collective wallets.

The opening of the OIG report gives some insight into the months of DEA interference and recalcitrance.

Our audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA, including attempts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after we initiated this review, the OIG only has been able to conduct a limited review of the DEA’s Confidential Source Program.

This makes the concluding sentences of this same paragraph seem particularly hopeless.

Nevertheless, we have uncovered several significant issues related to the DEA’s management of its Confidential Source Program that we believe require the prompt attention of DOJ and DEA leadership, as identified in this report. We will continue to audit the DEA’s Confidential Source Program to more fully assess the DEA’s management and oversight of its confidential sources.

If you can't get the DEA to turn over existing documents, it's highly unlikely Horowitz's recommendations will be implemented with any expedience. The DEA has already shown complete disdain for its oversight. Putting this in print won't change that.

The problems begin with the DEA apparently cherry-picking which Attorney General guidelines it will follow when dealing with confidential sources. Rather than add the guidelines as its own section of the DEA's policies, the DEA instead chose to fold in certain recommendations. This has created two sets of policies -- the DEA's and the (supposedly overriding) AG's. It hasn't gone well… at least in terms of cohesiveness. But it has worked out perfectly if you consider "thwarting oversight" to be an essential part of drug enforcement.

The DEA’s differing policies have resulted in DEA personnel being able to use high-risk individuals as confidential sources without the level of review as would otherwise be required by the AG Guidelines for high-level and privileged or media-affiliated sources. These categories include individuals who are part of drug trafficking organization leadership, as well as individuals who are lawyers, doctors, or journalists. The AG Guidelines provide a special approval distinction for these individuals because the use of them as confidential sources poses an increased risk to the public and DEA and creates potential legal implications for DOJ. The exemption of the DEA from these requirements results in a relative lack of DEA and DOJ oversight…

And what has this lack of oversight led to? All sorts of fun stuff. The DEA has shown little interest in thoroughly reviewing its informants' "conduct authorization." By failing to stay current on what informants can commit what criminal acts, illegal activities are occurring with the implicit approval of the agency -- whether or not they contribute to ongoing investigations.

These sources may be committing not-directly-approved Otherwise Illegal Activity (OIA - yes, it's an official DEA term) for years after they've contributed to any DEA investigations. The DEA is also apparently unwilling to keep its sources' files up-to-date, meaning it could be years before the agency cuts a useless source loose. This lack of attention has resulted in DEA sources becoming the subject of other law enforcement agencies' investigations.

In some cases, the DEA continued to use, for up to 6 years without any DOJ intervention, individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.

While committing criminal acts in the service of the Drug War, these sources were also availing themselves of additional taxpayer funds -- again without proper oversight -- in the form of federal benefits.

We estimated that, in just the 1-year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million.

The DEA's oversight-dodging is more than just its ad hoc meshing of pertinent rules. It also involves using a completely different categorization process for its informants. Certain informants working with other federal agencies are designated "high level" and must be directly approved by the DOJ and US Attorney's Office. The DEA avoids this outside approval process by using its own rubric, which doesn't contain the "high level" designation and appears to have very flexible sitpulations. This includes policies pertaining to informants whose communications may fall under the heading of "privileged."

Other DEA headquarters’ officials acknowledged that Special Agents are permitted to establish as a confidential source a privileged or media-affiliated status individual, such as a doctor or lawyer, to obtain information not related to the source’s employment. In these cases, the DEA’s legal staff would review the proposed utilization of the privileged or media-affiliated individual to ensure there is not a breach of privilege. However, this requirement and process is not included in the DEA Special Agents Manual section on confidential sources. Thus, the DEA solely relies on the discretion and judgment of its special agents to identify occupations that necessitate additional review and seek that from DEA legal staff.

The agency's approval of Otherwise Illegal Activities is similarly flawed, again allowing the agency to avoid oversight. (As well as any perception of the DEA as a competent, well-run crime-fighting machine.) For a drug-targeting agency, it certainly takes a very hands-off approach to drug-related activity.

[T]he DEA Special Agents Manual section on sensitive activities explicitly excludes drug buys and other routine confidential source activities, and the DEA Special Agents Manual section on confidential sources does not provide detail on the process for using confidential sources to perform illegal acts such as drug buys, does not require SAC approval for larger drug deals, and does not reach smaller ones…

These inadequate DEA policies and procedures related to OIA greatly increase the risk to the DEA, the U.S. government, and the public from the involvement of DEA confidential sources in OIA. DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA.

This lackadaisical approach is likely costing the DEA drug busts. Because it shows almost no interest in policing approved criminal activity, it could find itself struggling when attempting to prosecute former informants or their conspirators.

And its own internal oversight policies are a complete joke. No matter what the policies state, actual review of informants' files has long been nothing more than a swift rubber-stamping. Up until the OIG started looking into its confidential source program in 2012, the DEA, for the most part, spent only 15-30 seconds examining each confidential source file.


On top of all this, there's a strain of unearned credibility given to the DEA and the sources it employs by other government agencies. Despite a complete lack of documentation, claims submitted to the Department of Labor seeking compensation for injuries or death were routinely approved.

The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered.

The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source.

In addition, the DOL considered anything the DEA forwarded to it to be perfectly accurate, resulting in "disabled" confidential sources drawing paychecks from both the DEA and the DOL for years at a time.

Considering what's in the report, it's of little surprise the agency fought Inspector General Horowitz for as long as it did. And it's still fighting. This report is based on an incomplete survey of pertinent files. The DEA is still holding some stuff back, claiming it needs to protect the sources it can't be bothered to keep an eye on.

Filed Under: confidential informant, dea, oversight

TSA Asks America To LOL At Traveler Who Had $75,000 Taken From Him By Federal Agents

from the the-4chan-of-government-agencies dept

The TSA runs a fairly entertaining Instagram account, if you're the sort of person who is impressed by pictures of weapons seized from stupid passengers. That would be the extent of its social media prowess. Its blog is pretty much a 50/50 mix of Yet Another Thing You Can't Take Onboard and Blogger Bob defending the TSA's latest gaffe.

One of the TSA's official Twitter flacks tried to loft a lighthearted "hey, look at this thing we came across!" tweet. She couldn't have picked a worse "thing" to highlight, considering the ongoing outrage over civil asset forfeiture.

For those who can't see the embed, the tweet says:

If you had $75,000, is this how you'd transport it? Just asking! TSA @ #RIC spotted this traveler's preferred method

Pictured was someone's carry-on bag, opened to expose the cash contained in it.

First: should the TSA be broadcasting the contents of someone's luggage -- especially considering the contents are a large amount of cash -- along with broadcasting the airport where it was discovered and the baggage's appearance? There may not be any recognizable privacy violations here, but it's certainly bad form. And it does no favors to the person carrying it.

Second: unless the traveler was attempting to take the money out of the country without reporting it to Customs, it's none of the TSA's business how a traveler carries money from place to place. It may be careless, but it is not illegal and it is certainly not something government agencies should spend too much time obsessing over. (But of course they will, because travelers' cash can quickly become the government's cash, thanks to civil asset forfeiture.)

Third: the TSA's public interest in this member of the public's cash is flat-out unseemly. Not only does the tweet portray the unnamed person as some sort of idiot/criminal (or both!), but it led many to the obvious assumption that this cash was seized.

But, you know, LOL #otherpeoplesmoney and all that.

The foregone conclusion that this money had been seized was (momentarily) dispelled by another tweet from the TSAmedia_Lisa account.

TSA didn't seize/confiscate/take it. It alarmed the x-ray machine as an unknown and we spotted it. It's just a curiosity

So, somehow a passenger managed to walk through airport security with a large amount of cash and managed to still be in possession of it on the DEPARTURE side of the checkpoint?

No. This is AMERICA, land of the somewhat free and home of the brave drug warrior.

A followup email to the Washington Post's Chris Ingraham proved TSAmedia_Lisa's (Farbstein) response was technically true and completely disingenuous.

Asked about the incident via e-mail, Farbstein said that "the carry-on bag of the passenger alarmed because of the large unknown bulk in his carry-on bag. When TSA officers opened the bag to determine what had caused the alarm, the money was sitting inside. Quite unusual. TSA alerted the airport police, who were investigating."

It seems the police didn't just "investigate." They worked with another federal agency to take the money:

In this case, the cash was seized by a federal agency, most likely the Drug Enforcement Administration, according to Richmond airport spokesman Troy Bell. "I don't believe the person was issued a summons or a citation," he said. "The traveler was allowed to continue on his way."

So Farbstein's claim about how it was "just a curiosity" is completely bogus. Not only was the photograph and putting it on social media a questionable invasion of privacy, but then they handed it off to another federal agency to take the money... and then the TSA clearly implied the opposite on social media once the story blew up.

It's not entirely clear which "federal agency" took the money, but a good guess is that the DEA is likely in possession of this "curiosity" now, thanks to its willingness to troll mass transportation departure points in search of "guilty" money.

Also ridiculous is the airport spokesperson noting that the traveler was allowed to "continue on his way," $75,000 lighter. As if that makes everything OK? If this money is completely unrelated to criminal activity, the government has just stolen money from one of its citizens. If it is linked to criminal activity, the traveler is probably in for a world of hurt if it belonged (or was owed) to someone else. Either way, the citizen loses, the government wins and the TSA badly mishandles another social media interaction.

So, the TSA's attempt at cheery lightheartedness did nothing more than once again expose its dark, humorless center. The tweet may as well have read "If you had $75,000, you don't have it any more! Just saying! #freemoney" One of the nation's most tone deaf agencies continues to prove it simply won't be outdone in this category. And the trickle of details confirmed what everyone was thinking the moment this picture hit the internet: that the person carrying that money was last in possession of it shortly before the photo was taken. The government gets its man money and the TSA delivers the news as a punchline at the expense [pretty much literally] of some random traveler whose misfortune is the government's gain.

Filed Under: asset seizure, cash, dea, public shaming, tsa

Nail Salon Owner Sues For Return Of Life Savings Seized By DEA Agents At Airport

from the law-abiding-citizens-don't-carry-cash dept

Here's something you see all too rarely -- not because the government's civil asset forfeiture programs aren't routinely abused -- but because it's a good way to spend lots of money fighting a losing battle.

Vu Do, owner of two nail salons in New York City, is trying to retrieve nearly $44,000 -- his life savings which he had put together over twenty years -- taken from him by the DEA at the JFK airport. The complaint points out that Do has run two legitimate businesses in NYC for several years, and not once has he been arrested or even charged for violations of controlled substances laws.

Nevertheless, the DEA took all of Do's money under the assumption that he's involved in the drug business, despite being more than willing to let him go without even a citation. Do had planned to take his money to California to help his financially-struggling siblings out, but ran into the DEA first.

Then there's this:

The Plaintiff did not know that it was a violation of Federal regulations to carry cash in excess of $5,000 at the time of the seizure.

There's a good reason for not knowing this. There is no federal regulation prohibiting citizens from walking around (or boarding planes) with any amount of cash. Asset forfeiture laws make this practice unwise, but nothing in federal law says Do was forbidden from boarding a plane with his $44,000.

There are reporting requirements for any amount over $10,000 in cash traveling in or out of the country, but nothing says travelers can't go from state-to-state with their own money. They don't even have to report it. They will, obviously, experience more scrutiny from the TSA, but it's not illegal to do what this salon owner did.

So, why is this in here? It could be that Do performed his own research and came to the wrong conclusions. But that doesn't explain why his legal representation didn't point this out to him or remove it from the complaint. My guess is it's either an oversight (by his lawyer) or him just repeating what a TSA/DEA agent told him en route to the seizure of his money.

The DEA can easily bleed Do dry, or at the very least make it a break even scenario. Trying to get the government to return seized property is about as straightforward as engaging in quantum mechanics with a headful of acid. (Or firing a teacher in New York City.) This chart, part of the Heritage Foundation's new PDF discussing the many abuses of civil asset forfeiture, shows exactly how much work -- and how much can go wrong in the process -- it takes to get your stolen property back. (via Reason) [click through for a larger version]


According to this chart, Do has no shot at reclaiming his money. He had a certain amount of time to challenge this seizure (until April 30, according to the DEA's administrative seizure notice) and his June 17 lawsuit falls well outside that time limit. Not being "timely" is pretty much an instant loss.

If so, that's 20 years worth of savings headed towards ensuring the DEA has the funding to keep seizing cash from travelers. Despite its best efforts, an actual drug trafficker will occasionally stumble into the agency's sticky grasp, inadvertently legitimizing the whole crooked program. I can't imagine the DEA looks forward to encounters with actual criminals, seeing as it involves arrests and a whole bunch of additional paperwork. Cash is king. And as long as asset forfeiture programs remain in effect, government agencies will prefer the easy busts of "guilty" money over the more legitimate effort of removing criminals from the streets.

Filed Under: asset forfeiture, dea, jfk, vu do

Because The 4th Amendment Only Kicks In After The Fact, 'Reasonable Suspicion' Will Always Be Anything But

from the mere-existence-deemed-suspicious-by-law-enforcement-officials dept

A few weeks ago, we wrote about a young man who had $16,000 "forfeited" to DEA agents while riding an Amtrak train -- under the legal theory that the money was somehow involved in drug trafficking. (Not the guy carrying it. He was released without being charged -- just his money.) Maybe if the man had been more careful not to appear "suspicious," he and his money might have made it to California intact.

But how can you not look "suspicious" while riding Amtrak?

• Unusual nervousness of traveler
• Unusual calmness or straight ahead stare
• Looking around while making telephone call(s)
• Position among passengers disembarking (ahead of, or lagging behind passengers)
• Carrying little or no luggage
• Purchase of tickets in cash
• Purchase tickets immediately prior to boarding

Too calm is suspicious. Too nervous is likewise suspicious. The straight ahead stare that's too suspicious to be deployed is undercut by looking around while using the phone. You can't win. You may as well turn yourself in (and any cash you're carrying) before boarding, rather than risk setting off law enforcement's "sixth sense" that basically turns anyone not in a law enforcement uniform into a potential suspect.

Law enforcement needs "reasonable suspicion" before it can move forward with patdowns, searches, questioning, etc. If it can't establish that, everything past that point runs the risk of nullifying any evidence obtained or arrests effected. But it's such a low bar, and it varies from officer to officer, not to mention from locality to locality (and even from agency to agency). Suspicion is hard to articulate, but "reasonable suspicion" is tied to the word "reasonable." The above list is clearly far from "reasonable."

Two stories (of many) we've covered illustrate the huge gap between what the public views as "reasonable" in terms of suspicion, and what those outside of that realm -- namely the courts -- find to be "reasonable."

Asserting your rights isn't inherently suspicious, but law enforcement has attempted to paint it as such when trying to hold onto a drug possession bust. The government has also tried to make the assertion that password-protected files on a laptop were suspicious enough to prompt further searches, but this reasoning was shot down by the court.

A 2006 National Institute for Justice report detailed some behavior officers find suspicious -- as noted during 132 hours of ride-alongs with 182 police officers.

• All black clothing, regardless of race of person wearing them.
• Nervousness, refusal to look directly at officers, "fidgeting"
• Mismatch of ethnicity (whites in a black neighborhood and vice versa)

The vague notions of "reasonable suspicion" have evolved over the past decade as law enforcement agencies increasingly view themselves as integral parts of the War on Terror. Asset forfeiture laws haven't helped, especially considering assets can be seized based on nothing more than an officer's "suspicion" the assets may be tied to illegal enterprises. (And, it must be noted, the Fourth Amendment -- despite its language about "seizures" has almost no bearing on most asset forfeiture proceedings. And due process -- the Sixth Amendment -- is often ignored as well.) Hence, this sort of thing, as detailed by the Denver Police Dept.:

Business patrons or individuals who carry large amounts of cash.

That alone is supposed to be "suspicious activity" -- something that nicely dovetails into the perverse incentives of asset forfeiture laws. Cash is suspicious and must be seized before it can do further harm, whether or not the person carrying it is ever determined to be involved in criminal activity.

Even worse -- following a list of terrorist-related activities to look out for (chemical purchases, questions about building security, etc.) -- is the assertion that looking slightly out of place is inherently suspicious.

Anyone attempting to appear ‘normal’ in their behavior, such as portraying themselves as a student or tourist.

Some alleged "terrorists" are nothing more than people who aren't entirely comfortable in their new environments.

The list of "reasonable" suspicions is neverending. The following are from cases where courts actually stepped up to call officers out on their "reasonable suspicion" claims.

(US vs. Davis, 2013)
There was no reasonable suspicion for defendant’s stop for allegedly being nervous and only allegedly walking away from the officers after making eye contact with one and saying “shit.”

(State vs. Fontaine, Ohio, 2013)
We agree with the trial court that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.

(State vs. Richardson, 2010)
While Officer Eastwood did observe an “unusual bulge,” this fact standing alone did not provide the independent basis of reasonable suspicion that Baldwin requires, especially in light of Richardson’s immediate compliance and Officer Eastwood’s prior peaceful exchanges with Richardson.

(Schneider vs. State, 2015)
Here, although Officer Wiens testified that he would conduct a stop in the event of a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his experience, car thieves would change the color of a vehicle after it had been stolen or that a discrepancy in color was indicative of any type of criminal conduct. There was, therefore, no evidence before the circuit court that a color discrepancy was indicative of any criminal activity that would possibly allow otherwise innocent behavior to give rise to a reasonable suspicion of criminal activity.

It is clear, based on the testimony at the suppression hearing, that Officer Wiens was acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the time he initiated the traffic stop.

(Parker vs. Town of Woodworth, 2015)
The issue is simple: Can a police officer conduct an investigatory stop and detain citizens otherwise legally operating motor vehicles on the public highways or private roads in this State solely because past crimes or suspicious activities have occurred in the area where motorists are traveling? The answer is not even close: “No.” There simply is no “check-em-out” exception to this Constitutional prohibition. [...] Officer Godwin could articulate nothing to establish a particularized and objective basis for suspecting Parker of criminal activity.

(US v. Thompson , 2015)
The combination of air fresheners, two phones, only one visible bag, referring to military friends to a stranger by rank and last name, clean construction gear, and no hotel reservation do not rise to more “inchoate and unparticularized suspicion or hunch.”

This is a very small sampling. Dozens more can be found here.

Police may find the courts to be too narrow in their definition of "reasonable suspicion." It's not that every case where a search is thrown out is linked to a bad cop abusing his or her power. It's that the courts don't see the situation the way cops do. This doesn't make the courts wrong, but it does explain why it's so pervasive, despite dozens of rulings finding in favor of those illegally searched.

In a case where "reasonable suspicion" was nothing more than a person being in what was termed a "high-crime area" by the police officer, the court had this to say about the law enforcement mindset:

But here, an officer’s confident body language and tone of voice are not enough to prove a high-crime claim. Allowing such a finding solely through unsubstantiated testimony (no matter how confidently stated) would give police the power to transform “any area into a high crime area based on their unadorned personal experiences.” United States v. Montero-Camargo, 208 F.3d 1122, 1143 (9th Cir. 2000) (Kozinski, J., concurring). Yet those experiences can exaggerate the criminality of an area because “[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.” Id. This is natural--even expected--because police “are trained to detect criminal activity”; they view “the world with suspicious eyes.” Id. But seeing some crime does not automatically make a place a high-crime area.

That's the disconnect. People who aren't committing crimes wonder why they're being hassled by police officers. This is why. "Reasonable suspicion" is subjective and that determination is placed completely in the hands of those who can easily abuse it, and who are in the business of finding and detaining suspicious people. The remedy is the courts, which isn't much of a remedy at all, when you have to be arrested, held and possibly charged before you can avail yourself of your Fourth Amendment rights.

In a recent Ohio Supreme Court case, this unfortunate limitation is called out. The "reasonable suspicion" prompting the illegal search and arrest was based on little more than the "suspect" not making eye contact with a police officer.

The officer in this case was cruising a Kroger parking lot using the license plate scanner. She approached defendant because he was suspicious, but, on cross, could not identify any potential crime at all. The stop was without reasonable suspicion, and the trial court correctly suppressed the evidence. [Not looking at a police officer was considered suspicious. ¶10. How many cases have said that staring at a police officer is suspicious? Apparently some form of acknowledgment is required in this city.]

The footing for reasonable suspicion constantly shifts. The assertions made in defense of bogus searches and busts are similarly ethereal. The "hunch" always remains, but when pressed for something factual and tangible, there's nothing there.

The decision quotes a 1948 ruling that clearly defines the Fourth Amendment's purpose in relation to searches.

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

Which is why the courts must sort this out. We've already seen what the Fourth Amendment looks like in the hands of police officers. It's an obstacle, at best, and it's more commonly viewed as an enemy of police work rather than a necessary check against abuses of power.

The court also examines the nexus of the Fourth Amendment and the oft-applied "good faith exception." In this too, the officer is found wanting.

The exclusionary rule has existed for a century to broadly protect our rights to be free from unlawful search and seizure. We find no basis for applying a good-faith exception under these admittedly subjective circumstances. '[G]ood faith on the part of the arresting officers is not enough.' If subjective good faith created an exception to the exclusionary rule, enforcement of the Fourth Amendment for people to be "secure in their persons, houses, papers, and effects," would be at the discretion of the police.

Furthermore, quoting Justice Robert H. Jackson (who presided over the Nuremberg Trials), the court notes that it is there to provide relief in the case of law enforcement overreach, but its offerings are purely defensive, far from comprehensive and well after the fact :

Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we courts do nothing, and about which we never hear.

In short: the remedy exists, but it can't prevent bogus arrests and illegal searches. On one hand, you have inherently suspicious cops far too often finding the Fourth Amendment's protections inferior to their well-honed sixth senses. On the other, you have the victims of these violations attempting to avail themselves of rights that have already been violated. In the middle, you have the courts, which can provide a much more reasonable look at "reasonable suspicion," but are also prone to extending the protections of immunity and "good faith" exceptions to far too many officers.

Unlike other rights, the government is only too happy to violate first and deal with the fallout later. Government agencies are generally wary of stifling free speech and legislators often hesitant to propose or back gun control laws, but the Fourth Amendment is one the government seldom seems worried about violating. Whatever consequences it faces for these violations are often months removed from the incident and far from guaranteed. Because of that -- and the general law enforcement mindset brought on by the realities of the job -- "reasonable suspicion" will always be anything but "reasonable."

Filed Under: 4th amendment, asset forfeiture, dea, police, reasonable suspicion, seizure

Legislators Strip Funding For Warrantless Use Of Stingrays By FBI, Take Money From The DEA To Buy Bodycams

from the CATCH-AN-IMSI-FUNDRAISER!-TIX-3/$5!! dept

The passage of appropriations bills is a seemingly casual process in which any legislator can attempt to hitch his or her hobbyhorse to it as it makes its way slowly to a vote. (And then to a government shutdown.) "Rob Peter/Pay Paul" amendments are offered for quick floor votes, adding millions to one program while siphoning the equivalent amount from another. Other amendments are simply of the "Rob Peter" variety, in which funding is stripped from programs or activities a legislator doesn't agree with.

Given the recent legislative activity surrounding US surveillance programs and the ongoing exposure of the FBI's tactics and technology, it's somewhat unsurprising that lawmakers are taking a shot at defunding some of the more questionable efforts. Darrell Issa, for example, offered an amendment stating that if the FBI wants to deploy its Stingray devices without a warrant, it will need to hold a bake sale to pay for it.

The amendment prohibits funding for federal law enforcement to conduct non-court-ordered “stingray” operations that collect bulk electronic data from individuals. The amendment was adopted on a voice vote.

This is of some import, although the FBI now claims it gets a warrant before deploying Stingrays. It will probably edge around this defunding by claiming it doesn't use Stingrays to collect data in bulk (sort of true, if used for their intended purpose and with proper minimization) or by pointing at its exemptions to its self-imposed warrant requirements, which are big enough you could fly a single-engine plane bristling with antennas and cameras through them.

In addition to other surveillance-targeting amendments, like defunding of any future NIST/NSA partnerships to backdoor encryption and the FBI/DOJ's use of backdoor surveillance via wiretapping laws, other interesting amendments were proposed and passed.

Rep. Gosar (R-AZ) – The amendment increases funding for the DOJ Office of the Inspector General by $1.7 million, offset by a reduction to the DOJ General Administration – Salaries and Expenses account.

Michael Horowitz -- the Inspector General for the DOJ -- has been battling the FBI and DEA for months now over the release of documents his office has requested. So far, the battle has been futile, but some additional funding will help ensure his office will continue to try to hold the DOJ's agencies accountable for their misconduct and failures. If nothing else, Horowitz has been both dogged and vocal while performing his oversight duties -- something that very obviously hasn't endeared him to the agencies he polices. I see no reason not to give this man, and his office, more funding.

Rep. Castro (D-TX) – The amendment increases the Community Trust Initiative, which provides grants for police body cameras, by $10 million, offset by a reduction to the DEA Salaries and Expenses account.

Body cameras are no panacea, but they're definitely better than taking no action at all. The best part about this is that it forces the DEA to fund a program many law enforcement agencies are hesitant to adopt. The ironic part is that the worst behavior in law enforcement (i.e., abuse of no-knock warrants, asset forfeiture) is tied to the Drug War. True accountability is still little more than a starry-eyed ideal, but taking $10 million from the DEA for this program is definitely a better use of that money.

Rep. Grayson (D-FL) – The amendment prohibits funding to compel a journalist or reporter to testify about information or sources that they regard to be confidential.

This is interesting, especially in light of the DOJ's efforts to compel New York Times journalist James Risen to reveal his sources. There's more to it than just the summation of this amendment, but it's far too much to cover here. (Hint: define "journalist." Once again, the government wants to be able to make that determination, probably on a case-by-case basis.)

Rep. Luetkemeyer (R-MO) – The amendment prohibits funding for DOJ’s “Operation Chokepoint.”

If this sticks, Team America: Morality Police™ will have to hold Bitcoin auctions or whatever if it wishes to keep porn performers and other blacklisted undesirables from availing themselves of bank services.

The attendant downside to these easily-passed amendments is that they can just as easily be deleted before the appropriation bill's final passage, especially if those targeted are able to apply enough pressure to block the bill's package with these intact.

Filed Under: appropriations, bodycams, congress, darrell issa, dea, fbi, stingrays

Documents Show DEA Running Ever-Increasing Number Of Wiretap Applications Through Friendlier Local Courts

from the why-be-accountable-when-you-can-be-efficient? dept

It looks like the DEA has upped the amount of surveillance it's performing, most likely not as a result of increasing drug trafficking, but more likely due to other contributing factors. According to information obtained through a USA Today FOIA request, 2014 was a record year for DEA wiretapping -- another in a decade-long string of consecutive "record years." (A slight, probably-Snowden-related dip in requests notwithstanding.)

The DEA conducted 11,681 electronic intercepts in the fiscal year that ended in September. Ten years earlier, the drug agency conducted 3,394.

At first glance, it would appear that the DEA is simply being more aggressive in its drug enforcement efforts. But more likely this is a sign that the DEA is just getting better at streamlining its wiretapping request procedures. To begin with, it appears the DEA doesn't feel federal courts need to be involved in federal investigations -- at least not when local courts will perform the same function but faster and with fewer questions asked.

DEA agents now take 60% of those requests directly to local prosecutors and judges from New York to California, who current and former officials say often approve them more quickly and easily.

Not only does this allow DEA agents to more easily obtain permission to deploy wiretaps, but its "BUY LOCAL!" plan allows it to dodge additional scrutiny from the DOJ. While state courts are supposed to adhere to DOJ guidelines while approving wiretaps, it appears smaller courts are less likely to challenge DEA requests.

Agents said many of the cases in which state judges authorize wiretaps end up being prosecuted in state courts, where challenges to wiretap evidence are less common. According to records the district attorney submitted to California's attorney general, for example, only about 2% of the 1,400 wiretaps authorized in Riverside County over the past five years were later challenged in state court.

As USA Today's Brad Heath points out, the DEA seems to love Riverside County. Judges there approved more wiretap applications than any other jurisdiction in the country, leading to the applications routed through it doubling from 2013 to 2014.

The DEA, however, claims there's no venue shopping or DOJ-ducking going on here. It's all just part of the magical complicated world of drug enforcement.

Moses said DEA agents were "making no attempt to circumvent federal legal standards and protections by instead pursuing state wiretap authorizations." Instead, he said, the rapid growth of state-authorized eavesdropping reflects local prosecutors' increased willingness to take on complex wiretap investigations, which often involve teams of local police and federal agents. At the same time, he said, some federal prosecutors "may be unable to support wire intercept investigations due to manpower or other resource considerations," so agents take their cases to state officials rather than see them dropped.

That all sounds very plausible, but still doesn't explain why the DEA is running so many joint operations out of Riverside County. Be that as it may, the uptick in requests can also be attributed to the agency's long-running parallel construction schemes, which may now include communications gathered with the assistance of purchased exploits and malware. While many judges may be a bit hesitant to sign off on man-in-the-middle attacks to implant spyware on cellphones, they're perfectly happy to John Hancock normal law enforcement methods like wiretaps that achieve the same end.

Filed Under: dea, jurisdiction shopping, roving, surveillance, wiretaps

House Overwehelmingly Passes Amendments Blocking Funding For Undermining Encryption

from the closing-the-backdoor dept

As we've been saying, the passage of the USA Freedom Act is just a small first step in the long road to real surveillance reform. On Wednesday, the House took another small step, voting overwhelmingly in favor of an amendment to an appropriations bill put forth by Rep. Thomas Massie that blocks funding to the National Institute of Science and Technology (NIST) for working with the NSA or CIA to undermine or backdoor encryption. This appears to be quite similar to part of the similar amendment last year that banned both this kind of NIST coordination, but also the NSA's use of backdoor searches under Section 702. As far as I can tell, this new amendment does not include that latter bit. Either way, this amendment passed 383 to 43.

It appears that another amendment, put forth by Rep. Ted Poe also passed by voice vote and it would block the use of funds from the DOJ/FBI from being used "to mandate or request that a person alter the product or service of the person to permit electronic surveillance of any user or service" except in cases required under existing wiretapping law.

Both of these are very big deals, and the fact that they passed so easily suggests that the House is nowhere near done on pushing for real surveillance reform. Of course, whether or not these actually go anywhere is another story. As you may recall, after passing overwhelmingly last year, under pressure to get a big omnibus bill done at the end of the year, the House leadership agreed to drop those provisions under pressure from the intelligence community.

Also, one other interesting amendment also appears to have passed easily by voice vote, which is an amendment put forth by Jared Polis, and would make it clear that the DEA cannot do bulk collection under its subpoena authority. As was detailed a few weeks ago, for many years, the DEA had been using this authority to collect tons of phone records, and the program only ended once the administration realized that the claims it was using in support of the NSA's bulk collection didn't apply to the DEA's collection, and thus they couldn't really continue it. Polis's amendment means that this particular loophole is closed for good (not that others might still be open...).

Again, all three of these may not survive all the way into law, but it does show that there's still a very strong interest in the House to continue pushing back against surveillance abuse.

Filed Under: backdooring encryption, bulk collection, cia, dea, doj, encryption, fbi, jared polis, nist, nsa, subpoenas, ted poe, thomas massie