The DEA Is Using A Law Created To Give It Access To Landline Records To Gather Data From Encrypted Messaging Services

from the more-things-change,-the-more-they-remain-the-same dept

Everything old is new again. New and still abusable. Thomas Brewster reports for Forbes that the Drug Enforcement Agency (DEA) is taking advantage of a nearly 40-year-old law to obtain information about WhatsApp users.

In Ohio, a just-unsealed government surveillance application reveals that in November 2021, DEA investigators demanded the Facebook-owned messaging company track seven users based in China and Macau. The application reveals the DEA didn’t know the identities of any of the targets, but told WhatsApp to monitor the IP addresses and numbers with which the targeted users were communicating, as well as when and how they were using the app. Such surveillance is done using a technology known as a pen register and under the 1986 Pen Register Act, and doesn't seek any message content, which WhatsApp couldn’t provide anyway, as it is end-to-end encrypted.

Sadly, most people won't care. First, the targets are foreigners, which diminishes (but doesn't completely remove) constitutional protections. Second, the targets are suspected of trafficking in counterfeit drugs, which makes them as good as guilty in the general public's mind. Third, the orders ask for communication metadata, not the communications themselves -- something Brewster points out would be impossible to obtain no matter how the DEA asked for it.

But there are reasons to be concerned. The law is outdated. It was put in place when the primary means of communication was landlines. Since telcos needed connection information for billing, the law assumed phone users were fully aware their communications metadata (which was far more limited in those days) was being collected so they could be billed correctly for phone service.

Technology has changed but the law hasn't. People communicate far more frequently than they did back in the days when it required more of an effort. And yet the law remains unchanged, allowing law enforcement to avoid having to approach anything resembling probable cause to collect metadata on communications.

And it's not just a one-time collection. Orders can be handed out that require companies like WhatsApp to "trap and trace," i.e., collect all metadata from targeted users for weeks or months on end. Law enforcement doesn't have to provide the courts with much to obtain permission to do this. All it needs to do is show it has an interest in the targets and that the information is a third-party record -- something that falls outside of the Fourth Amendment's protections for the most part.

But users of messaging apps likely aren't aware these platforms are collecting data on communications. They may assume entities like WhatsApp collect no info, given that they've been assured the content of their communications are encrypted.

Here's all the government needs to hand over to secure a pen register order:

In the Ohio pen register application, the government wrote explicitly that it only needs to provide three facts to get approval to use a pen register, none of which provide any background on the relevant investigation. They include: the identity of the attorney or the law enforcement officer making the application; the identity of the agency making the application; and a certification from the applicant that “the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”

If this were a lawsuit, a court would admonish the plaintiff for making these sorts of conclusory statements without offering any support for them. But since it's a pen register order, conclusory, unsupported statements are all that are needed to start rooting around in people's metadata.

And while metadata may be far less revealing than the content of communications, it's an absolute lie to say metadata is harmless and unrevealing. The first clue is the government's interest in it. If it was useless data, the DEA wouldn't be trying to obtain it. Gather enough communications metadata and you can start making plenty of inferences about social circles and daily habits. There's an expectation of privacy in this data -- one people assume already exists but has never been recognized by a US federal court. And when asked directly, courts tend to punt on the issue, assuming that if Congress meant to protect people from this level of government intrusion, surely it would have done so already.

The government still loves this law and has no desire to see it taken off the books or neutralized by Supreme Court precedent. And so it continues to exist, demanding nothing more from law enforcement than the ability to copy-paste boilerplate into a pen register request. The (drug) cops have it easier than they claim in public. Nothing stands between them and this metadata, and no one with the power to change it is in any hurry to do so.

Filed Under: 4th amendment, dea, encryption, landlines, pen register, wiretapping

DEA Gives Former Marine Back $86,900 Cops Took From Him During A Nevada Traffic Stop Caught On Body Cam

from the one-of-America's-longest-running-scams dept

Because law enforcement just can't stop taking money from innocent people, here's another roadside shitshow that has resulted in an attempt to force the government to give back money it flat out stole.

This one has a couple of twists. First, it involves body cameras, so the whole depressing farce can actually be watched as it unfolds. The second twist is the federal government, which arrived (via cell phone) to pitch in with the theft.

This is what happened to Stephen Lara, 16-year military veteran and innocent person, as he traveled through Nevada on his way to visit his daughters in California.

On his drive from Texas to California, a Nevada Highway Patrol officer engineered a reason to pull him over, saying that he passed too closely to a tanker truck. The officer who pulled Stephen over complimented his driving but nevertheless prolonged the stop and asked a series of questions about Stephen’s life and travels. Stephen told the officer that his life savings was in the trunk. Another group of officers arrived, and Stephen gave them permission to search his car. They found a backpack with Stephen’s money, just where he said it would be, along with receipts showing all his bank withdrawals. After a debate amongst the officers, which was recorded on body camera footage, they decided to seize his life savings.

That's the short version. That's also the sanitized version. The longer, more excruciating depiction of these events can be seen here:

His motion [PDF] for the return of the $86,900 the NHP took from him goes into greater detail, including the fact that the officers left him stranded on the road without even enough money to finish his trip to California.

It explains the origin of the cash:

Lara made the trip with the $86,900 in cash that is the subject of this motion—his life savings, which he was holding in the hopes of purchasing a house for his daughters. Lara has kept his savings in cash for as long as he can remember, although all his income goes through banks before he withdraws it. Lara took his savings with him on the trip because there had been several property crimes in his parents’ neighborhood, and his parents planned to be out of town for a portion of the time Lara was away; thus, he did not feel comfortable leaving that much money behind.

The huge stack of receipts -- which can be seen on the officer's body cam footage -- also explains the origin of the cash, all of which was traceable directly to Lara's bank accounts and from those accounts to the sources of income.

The traffic stop was obviously pretextual. The officer who pulled him over didn't even bother following up on the alleged violation (following too closely) and went directly into asking a bunch of questions about drugs, contraband, cash, etc. Lara was upfront about the cash. He even gave the officer permission to search the vehicle.

When the trooper saw the cash, he called in another officer to help him seize it. And that officer brought a dog, which made everything ok.

Then, a sergeant from NHP arrived. He had Lara’s money placed in a nearby field and instructed the officer who pulled Lara over to have his dog search for it. The dog found the money and purportedly alerted to the presence of drugs. The sergeant then ordered that the money be seized. At Lara’s urging, the officers inspected his ATM receipts and even took pictures. The money, bundled together using his daughter’s hair ties, was placed in an evidence bag. Although no DEA agent was present, Lara was given a receipt telling him to contact a DEA agent. Lara was then told he was free to go.

The drug dog was the permission slip -- the thing that told the officers they could ignore all the documentation bundled with the cash. Of course it would alert on cash. Almost all cash in circulation has drug residue on it. And it's not like this fact isn't well known.

The other permission slip was the DEA agent. Although the agent was never on the scene, he was on the phone with the trooper (these conversations can be heard in the body cam recordings). The NHP trooper sought a federal adoption of the seizure via the DEA, making it easier to avoid state limitations or restrictions on cash seizures.

The money was taken from Lara on February 19, 2021. Calls to DEA were unfruitful but finally forced the agency to issue a notice of seizure on April 5, 2021. As the Institute for Justice (which is representing Lara) pointed out, this delay violated federal civil asset forfeiture law. The DEA had 90 days to either give the money back or proceed with the forfeiture. It chose to do neither.

But even if the DEA had done what it was supposed to, this would still be bullshit. There was likely no legal basis for the stop. There was no reason for the extended questioning. And there was definitely no reason -- given the complete lack of suspicion expressed by any officer involved that Lara was involved in anything illegal -- for the NHP and DEA to walk off with Lara's money.

The good news is public pressure works. The Institute for Justice has been instrumental in forcing the DEA to hand back money it has stolen from innocent people. The problem is, of course, that not every case gets this sort of effective representation. And in many cases, the amount is big enough to matter to the people it's taken from, but not big enough to justify spending the amount of money needed to force the government to return ill-gotten gains.

In this case, it worked. Shortly before Lara's story went national, the DEA agreed to return his money to him. Along with the IJ, Lara is suing to have the Nevada's forfeiture laws found unconstitutional. But beyond the return of the money, securing a copy of footage of the stop is a crucial win. It shows exactly how these stops unfold and the machinations of law enforcement officers to take cash from people they allege are criminals, but who are apparently not criminal enough to charge with any crimes.

Filed Under: body camera, civil asset forfeiture, dea, legalized theft, nevada, nevada highway patrol, police, stealing money, stephen lara

DEA Racks Up Two Forfeiture Losses In One Week, Returns $100,000 In Stolen Cash To Victims

from the real-loser-here-is-still-US-citizens-and-their-tax-dollars dept

In the past week, the federal government has twice(!) been forced to return money it stole from travelers just because it could. In both cases, American citizens were trying to board domestic flights at US airports. And in both cases, despite it not being illegal to carry large amounts of cash on domestic flights, the government decided the cash had to have been illegally obtained, and moved forward with forfeiture proceedings.

The first case involves 58-year-old Kermit Warren, a New Orleans native who was accosted by federal agents at the Columbus, Ohio airport. Warren had $30,000 on him which he had planned to use to buy a tow truck for his scrap metal business. Unfortunately, the sale fell through, forcing him to purchase a one-way flight back home.

Warren's cash caught the eye of a TSA screener. Screeners are supposed to look for threats to transportation security (that's right in the agency name) and/or contraband. US currency is not contraband but it is definitely on the TSA's radar, thanks to the DEA's purported "anti-drug" efforts. The DEA actually pays screeners to search for cash. Screeners have responded by locating cash far more frequently than explosives or contraband.

The TSA alerted the DEA. Agents showed up and questioned Warren. They didn't like his answers -- some of which were untruthful (he falsely claimed to be a retired cop). But it really wouldn't have mattered what Warren's answers were. The DEA wanted the cash and even sworn affidavits from multiple family members and business associates wouldn't have changed what happened next.

The DEA brought in a drug dog as a seizure permission slip. The dog (completely unsurprisingly) "alerted" on the money, having "detected" the odor of drugs. Almost all cash in circulation has drug residue on it. That should not be considered probable cause, much less reasonable suspicion. Despite making vague allegations Warren was involved in the illicit drug trade, the DEA let him go. But it kept the money.

Warren fought back, a move the government clearly didn't anticipate. It lost spectacularly.

[P]rosecutors eventually backed down after Warren’s lawyers presented them with several pieces of exonerating evidence, including text messages with the owner of the truck and financial documents showing his income over the years.

In addition to returning all of the seized money – $28,180 – prosecutors agreed to dismiss the case against him with prejudice, meaning they cannot go after the money at a later date.

However, it wasn't a total loss for the government. It managed to deter any future losses from this case by getting Warren to agree not to sue agents for violating his rights.

As part of the deal, Warren agreed not to pursue legal action against the government.

And, even though the government agreed to return his money, it still hasn't. Apparently it needs a few more weeks to find the money it took from him. On top of that, the government has no apology for stealing a citizen's cash and then sticking him with the burden of proof. All the government needs is an unproven allegation to take cash, which is completely the opposite of the way the judicial system is supposed to work.

The second case involves the same elements: a US airport, a domestic flight, some cash, the TSA, the DEA, unsubstantiated claims about drug dealing, and the theft of tens of thousands of dollars from an innocent citizen.

On January 7, 2020, [New York filmmaker Keddins Etienne] was flying from John F. Kennedy International Airport to California, where he planned to work on two projects: a documentary about the impact of forest fires on cannabis producers in Mendocino County and a remake of Takeshi Kitano's 2000 film Brother, about a Japanese gangster who flees to Los Angeles after his boss is killed in a battle with another Yakuza clan. Etienne had lined up interviews for the documentary, and he had about $69,000, mostly in hundreds and fifties, to hire crew members, rent equipment, and cover other expenses.

Because his work would take him to some "shady places," Etienne says, he stashed the money inside an old, broken Xbox that he put in his carry-on bag. "I didn't want anyone to suspect that I had any type of cash on me," he says. "I was hiding the money from the usual suspects, so to speak." Instead, the money was snatched by a DEA agent, Antonio LoGrande, who arrived at the Transportation Security Administration (TSA) checkpoint where Etienne was screened after Etienne told a TSA officer what was inside the Xbox.

Agent LoGrande then made some coy remarks ("You know what this looks like, right?") and then sent Etienne packing, albeit without the cash he had packed.

Etienne fought back. He secured the representation of longtime TSA critic/current lawyer Jon Corbett, who started the process of recovering the stolen money. The government fought back as well, digging through Etienne's bank accounts, apparently in hopes of finding transactions to hang a "structuring" charge on, since it was unable to find anything linking the seized cash to illegal sources.

The DEA also offered to give Etienne some of his money back if he would just walk away from the forfeiture after the feds took their 10% skim ($6,852) off the top. Etienne and Corbett rejected this offer, maintaining their original assertion that the government was entirely in the wrong. Shortly before the deadline to move forward with its forfeiture, the government decided to return all of Etienne's money to him -- eight months after it helped itself to his cash at an airport checkpoint.

Unlike the Warren case, the government wasn't able to talk Etienne into not suing the government over this bullshit forfeiture. The government tried to escape from that, too, but -- for once -- the attempt to dodge a civil rights lawsuit failed. DEA Agent LoGrande argued he should be immunized from the suit by qualified immunity, but federal judge Frederic Block wasn't willing to entertain the government's specious rationalizing.

According to Corbett, Block "made it clear that he did not like the government's position at all" and "basically told the government that they really want to consider settling." Through mediation, the government agreed in August to pay Etienne an additional $15,000, a bit more than the $13,749 in "legal fees and costs" that the lawsuit said he "spent defending against the abusive process instituted against him."

With two failures in one week, you'd hope the government might be slightly deterred from seizing people's cash just because they tried to board a plane while carrying it. But it's likely this will have no effect at all. First off, the government is taking money that belongs to citizens and, at best, occasionally returning the same amount it seized. The percentage of cases that end with the government shelling out for legal fees is probably less than a rounding error. And even when the government is forced to pay for screwing over US citizens, it's US citizens who end up picking up the tab.

At no point is the government playing with its own money, so without intercession from Congress or court precedent finding forfeitures completely unmoored from criminal charges unconstitutional, the TSA and DEA will engage in business as usual. And that "business" does nothing to make travelers more secure or curtail the buying and selling of illicit drugs.

Filed Under: asset forfeiture, cash, civil asset forfeiture, dea, jon corbett, keddins etienne, kermit warren, legalized theft, tsa

DOJ Says Federal Agents Will Start Wearing Body Cameras

from the beware-the-asterisk-tho dept

At long last, Department of Justice agencies are joining the 21st century. Years after many local law enforcement agencies (with budgets that amount to rounding errors for DOJ components) have adopted body cameras, the DOJ is finally getting into the act.

Today, the Department of Justice announced the launch of the first phase of its Body-Worn Camera Program that requires department law enforcement personnel use body-worn cameras (BWCs) during pre-planned law enforcement operations. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Phoenix and Detroit Field Divisions began using BWCs today during these pre-planned operations. Over the course of the next several weeks, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI) and the U.S. Marshals Service (USMS) will begin the first phase of their BWC programs. The department’s plans include a phased implementation of BWCs, and rely upon Congress to secure the necessary funding to equip agents nationwide with BWCs.

Caveats, mfers. Caveats. "Pre-planned operations." Let's hope this makes up the bulk of federal law enforcement's interactions with the general public. This means that while federal agents may be wearing body cameras, they won't be using them to record off-the-cuff convos/searches/seizures/arrests that may come up during day-to-day business.

It's a start. It's a start years after the fact. While local cops were obtaining cameras, the DOJ -- as recently as 2015 -- was saying it would not do business with any cop shops rolling cameras during joint operations.

The obvious solution for cops seeking federal help during investigations would be to uninvite agencies unwilling to roll with rolling cameras. But it probably never worked out this way. Given law enforcement's love of opacity, local cops probably loved having a reason to remove their cameras while doing citizens dirty with their federal partners.

It took another five years before the DOJ agreed to allow federal agents tag along on raids and investigations involving local officers wearing body cameras. Now, less than a year into Attorney General Merrick Garland's leadership, federal agents have been ordered to start wearing body cameras.

Keep these public-facing, super-enthusiastic statements in mind when the lawsuits and investigations start rolling in, accusing federal officers of copying their local level compatriots by "forgetting" to activate cameras or being unable to retrieve recorded footage when demanded by plaintiffs in civil rights lawsuits or defendants in criminal trials.

This sounds like a lot of people being forced to smile at gun camera-point:

“ATF welcomes the use of body worn cameras by our agents,” said Acting Director Marvin G. Richardson of the ATF. “The department’s policy reflects ATF’s commitment to transparency as we work to reduce firearm violence in our communities.”

“The Drug Enforcement Administration is committed to the safety and security of the people we serve, our agents, and task force officers,” said Administrator Anne Milgram of the DEA. “We welcome the addition of body worn cameras and appreciate the enhanced transparency and assurance they provide to the public and to law enforcement officers working hard to keep our communities safe and healthy.”

“The FBI remains committed to meeting the need for transparency,” said FBI Director Christopher Wray. “Phasing in the use of BWCs is another important way for us to meet that need.”

Hahahahahahahahahaaaaaaaaaaaaaaa...

OK.

Let's break this down.

The ATF welcomes no additional "transparency." Never has. Never will. And its efforts to "reduce firearm violence" are pretty much entrapment that targets impoverished minorities who the ATF feels will be much easier to bully into lengthy sentences.

The DEA doesn't care about the people it serves. It only cares about racking up incredibly cheap wins in a war it has been losing since its inception. Elvis Presely was given a Bureau of Narcotics and Dangerous Drugs (the DEA predecessor) badge by Richard M. Nixon. Talk about setting yourself up for failure. The DEA does not keep communities safe and healthy. It cannot pretend otherwise.

And fuck the FBI. "Committed to meeting the need for transparency." Really? It's been almost 1,200 days since the FBI promised to correct its count of encrypted devices in its possession -- a number it had overstated by at least 5,000 devices during its neverending agitation against allowing innocent citizens to protect their devices and communications from outsiders. That's just one refutation of the FBI's allegiance to "transparency. " The rest of it is contained in the agency's litigious refusal to hand over documents in response to public records requests.

The FBI not-so-secretly wishes it was the CIA, if not the NSA itself. It does not care about transparency. And it will accept these cameras begrudgingly, ensuring they're turned off any time agents perform a "custodial interview" or engage in anything it considers to be national security related.

While it's great the DOJ says body cams are go, the actual implementation may be far less underwhelming than the GO TEAM TRANSPARENCY enthusiasm expressed in these public-facing statements. These agencies have operated under the public accountability radar for years. The addition of cameras won't change that much.

But let's not let our cynicism be used against us. They should have these cameras. And when footage goes missing or unrecorded in close cases, the benefit of doubt should be awarded to the non-moving (read: non-prosecutorial) party. If this happens often enough, we might finally see some meaningful deployment of cameras -- one that ensures officers are accountable to the people paying their paychecks.

Filed Under: atf, body cameras, dea, doj, fbi, transparency

Man Sues Multiple DOJ Agencies For Failing To Return Seized Cash They Told Him They Had No Interest In Keeping

from the I'm-sorry-sir-but-the-system-is-only-programmed-to-receive dept

Civil asset forfeiture remains a garbage government theft operation. Always has been. Always will be. The government can just take stuff, make up a reason for taking it, and then hope a system that's deliberately complicated and expensive will prevent citizens from trying to reclaim their property.

In some cases, they can't even be bothered to make up a better reason than "government policy." And even when it's decided it's not going to keep the property, it still makes it almost impossible for its owner to retrieve it.

That's what has happened to Alaska resident Willie Cooks. The government took $60,000 from him at the Fairbanks Airport and, despite claiming it doesn't intend to pursue a forfeiture, has held onto the money for nearly 16 months.

Cooks is suing [PDF] to get his money back. The only reason it was taken from him was because he chose, perhaps unwisely, to carry it with him on a flight to Las Vegas, Nevada. That's where both the TSA and the DEA got involved.

Heading through the checkpoint, Cooks was stopped by the TSA. The TSA saw Cooks' money and informed the Airport Police Department. The APD questioned Cooks, took his money, and turned it over to the DEA. Why did all of this happen? Because policy.

Upon information and belief, TSA follows a practice, policy, or standard operating procedure of seizing, or causing to be seized by state or federal agencies, cash carried by travelers in an amount of $10,000.00 USD or more.

This policy makes only a limited amount of sense for international flights where travelers are required to declare amounts over $10,000. It makes no sense for a domestic flight from Fairbanks, Alaska, to Las Vegas, Nevada.

And the DEA took the money because that's also what it does (apparently automatically) when it comes across a certain amount of cash.

Upon information and belief, the DEA follows a practice, policy, or standard operating procedure of seizing, or causing to be seized by state or federal agencies, cash carried by travelers in an amount of $5,000.00 USD or more without reasonable suspicion or probable cause to believe that any crime has been committed.

Cooks was not arrested. Nor was he even accused of committing any criminal act. His money was carried away by the DEA and a long run of government fuckery began.

On March 24, 2020 -- the day after the money was seized -- Cooks (via his lawyer) requested the money be returned. On May 11, the DEA issued a notice of seizure and the initiation of its forfeiture proceedings. Roughly two weeks later, Cooks submitted a claim form to the DEA.

On June 11, the DEA sent Cooks a response acknowledging his claim and saying "the matter has been referred to the judicial district noted above." There was no judicial district noted above. Cooks and his counsel tried to figure out what district was handling this but ran into dead ends. The few people they were actually able to reach provided no information or guidance.

No further information was discovered or provided by the government until January 28, 2021 when the US Attorney's Office of Alaska informed Cooks there were no pending civil or criminal forfeiture cases related to the seized $60,000. The Attorney's Office told Cooks to call the DEA to get his money back. After figuring out the DEA's Fairbanks office was no longer operative, Cooks got in touch with the DEA special agent in charge of his case who told him to call the US Attorney's Office to get his money back.

Additional convolution followed.

According to March 10, 2021, e-mail correspondence between AUSA Ryan Tansey and AUSA Kelly Cavanaugh, the US Attorney’s Office advised the DEA “to give the money back.” The e-mail correspondence revealed that the DEA claimed it no longer had control of the money and that the United States Marshals needed to be authorized to release the funds.

On March 11, 2021, AUSA Tansey advised the United States Marshals Service (USMS) that the USAO declined forfeiture and to “please return the funds.”

The funds were not returned. Meanwhile, everyone in the government keep getting paid for not doing the one thing requested of them.

On April 1, 2021, the USMS e-mailed AUSA Tansey stating, “Have you had any success in acquiring the letter Amy Welch mentioned that she received from DEA indicating funds would be returned to Mr. Cooks? I have an ACH form from him, but with no instruction in CATS to return these funds and DEA having no knowledge of the letter I cannot proceed so we were hoping she’d have a copy to provide.”

On April 12, 2021, Mr. Cooks responded to the USMS’s e-mail, attaching the prior communications from AUSA Tansey to the USMS to “please return the funds” and AUSA Cavanaugh’s e-mail to the USMS “We need to return it to the claimant. We did not pursue forfeiture.”

More nothing continued to happen. On April 28, Cooks emailed the AUSA and the Marshals Service asking for an update. He got one. The Marshals Service had now decided it was the DEA's problem to sort out.

On May 5, 2021, the USMS indicated “We are working to get these funds returned to you as soon as possible, but at this time we do not have the required documentation from the DEA yet.”

On May 25, the Marshals Service decided Cooks needed to fill out another set of forms to get his money back. He completed the new paperwork and returned it to the Marshals Service that same day. Another month passed with no return of his funds. Cooks approached the USMS again and (again) was told the problem was the DEA.

On June 22, 2021, the USMS responded “I have yet to receive official instruction from DEA instructing this return. I am still working with them to try and obtain this as there were a few hold ups on their end that have to be solved first.”

This was followed by messages from two AUSAs claiming no one in the US Attorney's office had CATS access so they were unable to speed this up. That's as inexplicable as the original seizure. CATS isn't something new and rare. CATS (Consolidated Asset Tracking System) has been in use since 1993 and is used by all DOJ components, including the DEA, US Marshals Service, and the DOJ's multiple US Attorneys Offices.

So, the government has held onto Cooks' money for 16 months despite clearly stating it has no interest in keeping it. Maybe this is just the side effects of the bureaucratic ineptitude often seen in sprawling organizations whose reach exceeds their grasp. Or maybe this is just the DEA hoping that if it ignores this long enough, it will be able to keep the money it already said it was going to return. Whatever the underlying reason, it's 100% bullshit. Hopefully the court will see this for what it is -- a government-ordained heist that didn't go quite as planned -- and get Cooks back his money along with some monetary damages for the rights violations and the months of screwing around by multiple government agencies.

Filed Under: civil asset forfeiture, dea, doj, legalized theft, tsa, willie cooks

Judge Says DEA, TSA Can Continue To Be Sued For Stealing Cash From Airline Passengers

from the only-so-long-a-criminal-enterprise-can-remain-successful dept

The DEA's love for taking cash from travelers has gotten it sued. Again. In August 2019, DEA agents -- working with TSA agents -- took more than $80,000 from Rebecca Brown, who was carrying her father's (Terry Rolin) savings through an airport on her way home to put it in a bank account he could use to pay for dental work and truck repairs.

Working under the assumption that the mere existence of cash is illegal, the DEA and TSA lifted the cash from Rebecca Brown, claiming it was "suspicious." A lawsuit followed in January 2020. Shortly after the filing of the lawsuit, the DEA agreed to return the $82,000 it stole from the retiree and his daughter.

The lawsuit, however, continues. The Institute for Justice is representing multiple plaintiffs who've had their cash taken by the TSA and DEA. This return of funds helps Rebecca and her father, but it doesn't stop the DEA and TSA from continuing to declare nearly any amount of cash "suspicious" before taking it from travelers.

Earlier this year, the magistrate judge [PDF] taking the first crack at the case recommended the agencies not be allowed to exit the lawsuit. The government argued the plaintiffs had no standing because traveling with cash is a personal choice -- one that can be made at any time to give rise to claims of possible future injury. Yes, it's a stupid argument. And here it is:

The Government Defendants do not dispute that injuries attendant on seizure of one’s person, effects or cash would be concrete and particularized, or that the prospect of such injuries would be redressible by injunctive relief. Instead, the Government Defendants argue that no injury to Plaintiffs is imminent or likely because Plaintiffs do not allege plans to travel with large sums of cash; and that Plaintiffs cannot “manufacture” standing by “choosing” to refrain from traveling with a large amount of cash.

But "choosing to refrain" would be the wise choice, given the government's predilection for taking cash from travelers without even bothering to conjure up credible probable cause. The court points out where the government's arguments go wrong, starting with the apparent pattern and practice of stealing cash from people passing through airports.

If we accept the premise (as we must at the pleading stage) that TSA and DEA have adopted policies or practices of seizing large sums of cash discovered in TSA screenings, then it is a reasonable inference that if Plaintiffs were to resume domestic air travel with large sums of cash, there would be an imminent, substantial risk that their persons, effects and cash would be subjected to seizure by the TSA and the DEA.

And that's not the government's dumbest argument. Here's the magistrate judge's appraisal of that one -- an appraisal that was presumably prefaced with a facepalm:

Finally, the Government Defendants argue that Plaintiffs’ choices to refrain from traveling with large sums of cash cannot be attributable to the TSA’s and DEA’s Seizure Policies, because the Plaintiffs were undeterred by those policies before they became aware of them. This is clearly a non-sequitur. It is hardly surprising that one would take steps to guard against a risk after, rather than before, becoming aware of it.

Love it. The government is basically arguing it should not be deterred from taking cash from passengers no matter what actions travelers take. Travel without cash? Well, you're just manufacturing injury. Travel with cash? Well, you're aware we might take it so you can't get all litigious when we do.

The government also -- unbelievably -- argued its own policies are unconstitutional. But, it claimed, the plaintiffs failed to prove these obviously unconstitutional policies exist.

The Government Defendants do not dispute that the Seizure Policies, if established, would be ultra vires and unconstitutional. However, they assert that the FAC does not plausibly plead the existence of such policies or practices under the standards of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Government Defendants characterize Plaintiffs’ allegations as “merely a conclusion – effectively, a recitation of the elements of Plaintiffs’ claim”; “at best, an ‘amorphous description’” of “actions by individual TSA screeners in particular cases” involving a “handful of individual travelers.”

Possibly, says the magistrate. But the plaintiffs have brought far more than conclusory arguments. From what's alleged, the TSA detains people who have "large amounts" of cash and the DEA is always on hand to swoop in and take it.

First, Plaintiffs relate dozens of incidents of travelers being detained by the TSA after completion of security screening, and/or then being detained by the DEA, for the purpose of seizing the travelers’ currency. That is more than a “handful”.

Second, Plaintiffs identify TSA Operations and Management Directives, Operating Procedures and other TSA documents that direct TSA Screeners who encounter travelers with cash in excess of $10,000 to investigate (“[c]onduct the procedures for checking travel documents”), to notify law enforcement, and to ask the travelers to “remain accessible”.

Third, Plaintiffs allege that in April, 2009 TSA stated on its website that passengers’ required cooperation with the TSA screening process includes “answering questions about . . . why they are carrying a large sum of cash”; that it was “standard practice for TSA Screeners to ‘ask a passenger who is carrying a large sum of cash to account for the money’”; and that such investigations for the purpose of “detecting ‘signs of criminal activity’” were among the “principal duties of TSA Screeners”.

Get all of that? Great, there's more. The plaintiffs are basically bouncing the DEA/TSA's lifeless head off the concrete at this point:

Fourth, Plaintiffs allege that the DEA runs a national interdiction program called “Operation Jetway” which seizes tens of millions of dollars per year from travelers at every major commercial airport, and which provides standardized training and data collection and analysis.

Fifth, the Plaintiffs allege that a 2017 Department of Justice Inspector General’s Report found that most DEA seizures reviewed were unrelated to investigations, posing a risk that DEA “is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”

And sixth, Plaintiffs allege that DEA interdiction agents have testified that they were trained by the DEA to regard travelers’ cash in excess of $5,000 as presumptively subject to seizure. Again, considering the factual allegations in the light most favorable to Plaintiffs, it is reasonably inferable that the DEA adopted policies and practices governing seizure of cash at airports, and that the DEA agents’ persistent practice of detaining travelers and seizing their cash based solely on its amount is consistent with and revelatory of the agency’s policy.

And so, given all the plausible allegations against the government, the magistrate recommended the TSA and DEA not be allowed to exit the lawsuit via their motion to dismiss. But -- as can be inferred from the title of the document -- it's only a "report" and (most importantly) "recommendation."

The good news is the federal judge handling the case has adopted the magistrate's R&R. As the Institute for Justice reports, the government will still have to deal with this putative class action lawsuit -- one that targets the DEA's well-known love of taking cash from people, as well as the TSA's aiding and abetting of this so-called legal theft.

U.S. District Court Judge Marilyn Horan yesterday rejected the government’s motion to dismiss the plaintiffs’ three class action claims. Those claims are 1) that the TSA exceeds its statutory authority by detaining travelers and their cash after the security screening has ended; 2) that the TSA violates the Fourth Amendment by detaining travelers and their cash without reasonable suspicion of criminality; and 3) that the DEA violates the Fourth Amendment by detaining travelers without reasonable suspicion and seizing their cash without probable cause.

More lawsuits for all involved! That's great news. If nothing else, it may force the DEA to reckon with its unjustified greed and the TSA to reckon with one aspect of its overall awfulness. And if everything goes right, it may provide another clip of judicial ammo to attack civil asset forfeiture.

Filed Under: asset forfeiture, cash, dea, legalized theft, rebecca brown, stealing, tsa

Appeals Court Says Handing Out A Free Sample Of Drugs Isn't A 'Conspiracy'

from the do-better,-drug-warriors dept

Our nation's preeminent drug warriors rolled the dice on turning less than a half-gram of drugs into a lengthy prison sentence. They lost. The Sixth Circuit Court of Appeals isn't amused by the machinations of DEA agents (and federal prosecutors) who tried to turn a freebie sample into a drug trafficking conspiracy.

The opinion [PDF] opens with the Appeals Court showing just how permissive and expansive drug conspiracy statutes are.

Our court has long interpreted the drug-conspiracy statute, 21 U.S.C. § 846, to prohibit two individuals from knowingly reaching an agreement to distribute drugs.

Any two individuals. Pretty fucking open-ended. If you want a conspiracy, it doesn't take much to find one.

This conspiracy test could be read to cover every drug transaction between a willing seller and a willing buyer, even those for the buyer’s personal use. After all, the seller has agreed with the buyer to “distribute” drugs between them.

But it's not quite as expansive as the DEA officers involved in this case thought it was. There are a few judicial limits.

Yet we have also long held that a buyer-seller agreement alone does not establish a “conspiracy” under § 846.

And it's definitely not so expansive that it can cover what happened here. When the focus of the prosecution shifts to someone who was only incidental to the primary investigation, it's pretty difficult to continue pretending there's a "conspiracy."

The government presented overwhelming evidence that Aaron Reels operated a drug distribution scheme. The problem? Reels was not on trial. William Wheat was. And the evidence against Wheat showed essentially that he once gave Reels a .3-gram free “sample” of heroin—a sample that led to no further exchanges between them.

Whoops. The DEA had an actual drug trafficker in its grasp. But then it decided it also wanted the guy who spritzed a local dealer with some smack from the sample bottle. This is a recipe for losses, dismissals, and evidence suppression.

The government alleged that Wheat agreed with Reels to distribute heroin, and a jury convicted him of a drug conspiracy. We conclude, however, that insufficient evidence supports this conviction. The logic underlying our buyer-seller exception extends to Wheat’s agreement to distribute a sample to Reels. And the government did not present enough additional evidence of a broader agreement between Wheat and Reels to distribute heroin to third parties.

But not every charge is dismissed. The guy handing out the .3-gram "supply" of heroin made the mistake of using something everyone uses multiple times per day.

At the same time, Wheat used his phone to arrange the exchange of the sample. So the government more than sufficiently proved that he used a “communication facility” to facilitate a drug felony.

Sure, that's a much shorter sentence. But, come on: if it wasn't a "conspiracy," how can a "felony" be "facilitated" by the use of a phone to discuss a sample? The court giveth. And taketh. At the end of all of this, there's a person facing a few years in prison for handing out a sample.

I'm not sure what we're paying Cleveland-area DEA agents, but this arrest, indictment, and (partial) conviction doesn't appear to justify their salary.

The two arranged to meet at a Circle K gas station the next day. While there, Wheat gave Reels a free “sample” of about .3 grams of heroin. Samples are often exchanged between drug dealers who do not know each other well to help potential purchasers decide whether to buy from potential sellers. Testimony in this case suggested that the .3 grams would otherwise cost about $20 to $40 on the Cleveland drug market.

Yes, the DEA took down the actual drug dealer as well, but it couldn't resist trying to turn a free sample into a drug conspiracy worth years of imprisonment at taxpayer expense -- all over $20-40-worth of drugs. Good lord. The court calls bullshit:

Measured against these standards, Wheat’s conspiracy conviction cannot stand. To be sure, the government presented a “slam-dunk” case that Wheat committed a crime: He distributed a heroin sample to Reels in violation of 21 U.S.C. § 841(a)(1).

Maybe a case could be made for a lesser charge. But the DEA and federal prosecutors chose to go large.

But it did not charge Wheat with distributing to Reels; it charged him with conspiring with Reels.

Good luck talking a jury into that, says the court:

This evidence would allow a rational jury to conclude that Wheat and Reels negotiated a future drug deal, not that they agreed on one.

And the government's arguments actually makes its case worse:

As the government’s expert explained, drug sellers give samples to buyers to see if they “like[] the drugs” and help them decide whether “to purchase more.” It is not all that unlike Costco offering customers, say, a free taquito sample. Would anyone infer (beyond a reasonable doubt, no less) that a customer has agreed to buy a bulk package of taquitos merely from the decision to try the sample?

The government’s expert added that Reels had been “shopping around” for samples from several sources, “just like if you were buying a car, you are going to go get the best price and the best car for your dollar, and that’s exactly what he’s doing here[.]” Does his receipt of the other samples show an agreement to buy from the other sources too? [...]

In short, “[p]roof of mere negotiations” does not prove a conspiracy. And the government identifies “nothing but speculation” that the parties ever passed this negotiations phase.

This is some supremely lazy work by the DEA. And the work done by prosecutors to pursue this losing effort is nothing more than blowing tax dollars on charges that are both opportunistic and vindictive. The DEA already had a solid bust involving an actual drug trafficker. Then it got greedy and decided to pounce on someone who may have been doing nothing more than working a side hustle to support his own habit. That's the government seeking to take away anything from 5-40 years from someone's life just because they handed out a free sample of heroin to a known drug dealer who was already targeted by the DEA.

That's not a drug war victory. That's not going to keep massive amounts of drugs off the street. It's just federal prosecutors inflicting pain because they can.

Filed Under: 6th circuit, conspiracy, dea, drug war

DEA Ditches Location Data Vendor Currently Being Investigated By Congress

from the convenient-corrective? dept

The Supreme Court ruled that law enforcement agencies needed a warrant to obtain cell site location info. The ability to turn third parties (like telcos) into proxy long-term tracking devices concerned the court, which decided this wasn't permissible under the Fourth Amendment. Every American carries a cellphone. But just because they do doesn't mean they agree the government should be able to track their movements with them.

No problem, said federal law enforcement agencies. We'll just get the same data from new sources -- ones not specifically mentioned in the Carpenter decision. Data brokers harvesting location data from phone apps sell access to government agencies, allowing them to bypass the warrant requirement.

This new source of data location has become a concern for some legislators, which have demanded answers from agencies like the IRS and CBP about their acquisition and use of this data. One company -- Venntel -- is currently facing a Congressional investigation of its data selling practices. This hasn't stopped CBP from buying data to track immigrants. But it has perhaps led to one agency -- one with a long history of bulk collection violations -- to ditch its contract with Venntell. Joseph Cox fills in the details at Motherboard.

The Drug Enforcement Administration abruptly cancelled its contract with Venntel, a U.S. contractor that sells location data harvested from ordinary apps installed on people’s phones around the world.

The news signals that although Venntel's smartphone location data may be popular with some federal agencies, including Customs and Border Protection (CBP) which Motherboard found spent nearly half a million dollars to access the data, other law enforcement bodies may have less use for such technology.

As Cox's report suggests, this may not be an indicator of reluctance to engage with a vendor currently under investigation. Instead, it may indicate some agencies find the harvested data less useful than others. The data CBP accesses allows it to track people's movements on both sides of the border, which is far more useful than scattershot data that may not deliver anything of value to DEA agents seeking to make a drug bust.

The DEA's cancellation was rather abrupt, suggesting it didn't feel like paying for something it didn't see itself using.

Keith Chu, communications director for the office of Senator Ron Wyden, described to Motherboard a conversation that his office had with the DEA.

"On DEA, they told our office: '[The Venntel contract was] terminated on our end before the first 30 days of the one year period of performance after determining it would not fit our needs,'" Chu said.

Then again, the DEA may have just cancelled this contract temporarily. The company is being investigated by Wyden and the senator has asked a lot of questions agencies may not feel like answering. Perhaps the DEA may re-engage when the heat dies down. Or it may seek to obtain this data from a different broker -- one not currently targeted by a Congressional investigation. Given the restraints on collecting location data from service providers, any parallel source of data is still preferable to seeking a warrant.

If it's not useful now, there's a chance it will be in the future. That's why Congress needs to act. And if it doesn't, the courts need to examine this data collection under the constraints of the Carpenter decision and decide whether it's ok for law enforcement to dodge warrant requirements that would seem to apply to ANY tracking of individuals, even if the data is sourced from third party data brokers.

Filed Under: 4th amendment, cbp, congress, dea, irs, location info, privacy
Companies: venntel

DEA Wants In On The Fun, Asks DOJ To Give It Permission To Surveil George Floyd Protests

from the GTFO-drug-warriors dept

I thought there was still a Drug War being fought in this county. I guess it's not as important as billions of annual budget dollars would indicate it is. When the going has gotten mildly tougher for US law enforcement agencies, the DEA is there to help out by placing people engaged in First Amendment activities under surveillance.

The demonstrations over George Floyd's death at the hands of Minneapolis police officers have provoked all sorts of responses from government entities. The DEA's is one of the worst. As usual, it's FOIA terrorist Jason Leopold who's managed to obtain a document the DEA probably didn't want shared publicly.

The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd, according to a two-page memorandum obtained by BuzzFeed News.

Floyd’s death “has spawned widespread protests across the nation, which, in some instances, have included violence and looting,” the DEA memo says. “Police agencies in certain areas of the country have struggled to maintain and/or restore order.” The memo requests the extraordinary powers on a temporary basis, and on Sunday afternoon a senior Justice Department official signed off.

The DEA has always been able to engage in domestic surveillance. Most of its targets reside in the United States. Domestic surveillance to engage in drug-related investigations isn't really the problem here. (This is not to say the DEA's surveillance efforts aren't problematic.) This is the DOJ saying it's okay for an agency that's supposed to be shutting down drug operations to start snooping on protesters. Even if there has been some criminal activity occurring during demonstrations, in recent days this has been the exception, rather than the rule.

The memo [PDF] notes that the law says the DEA's law enforcement powers are supposed to be limited to drug enforcement activity. But there's always a loophole. And that's what the DOJ is using. The memo admits the "federal crimes being committed in the wake of Mr. Floyd's death are largely not drug-related," but says the Attorney General can re-task the DEA as the DOJ sees fit. That's how the DOJ sees it. No further details are discussed in the memo. And the DOJ has nothing to say about what percentage of observed federal crimes to date might have anything to do with drugs.

It appears no one in the DOJ felt the DEA's assistance was necessary. In other words, the DOJ did not ask the DEA if it would be willing to expend its resources surveilling protests for non-drug-related crime. The DEA asked to do this, suggesting it has some underutilized resources that should be budgeted out of the agency when the next appropriations bill comes up for a vote.

It doesn't appear many DEA agents think they should be involved in surveilling protests. The DEA only needed 25 volunteers to do god knows what with their drug investigation expertise. It couldn't get them -- not without stripping the tasking of its voluntary nature.

Two sources knowledgeable about the deployment said 15 people from the DEA’s elite Special Response Team and 10 special agents were chosen. Not all 25 volunteered, the sources said.

Kruskall’s email did not describe what specific tasks the detachment would be given. It added that if insufficient numbers of agents volunteered, others would be assigned the job. According to the sources, fewer than 25 agents raised their hands [when asked to volunteer].

Leopold's DEA sources aren't happy with the DEA's actions. Three people who spoke with Leopold said they were "troubled" by the DEA's desire to send agents to surveil people engaged in protected speech.

And they're correct. The DEA has no business engaging in "covert surveillance" of protests, especially when there's no evidence pointing to drug-related federal crimes being committed. The agency also shouldn't be sending non-volunteers out to help handle protests by "intervening" on regular law enforcement's behalf or arresting protesters for allegedly engaging in criminal acts.

The DEA saw an opportunity to engage in mission creep, if only for a limited time. A DOJ less in thrall to hypocritical "rule of law" notions would have rejected this naked attempt to put DEA boots on First Amendment ground. But that isn't the DOJ we have at the moment. And now we have at least 25 DEA agents burning through tax dollars for absolutely no reason whatsoever. Defund the DEA.

Filed Under: 1st amendment, 4th amendment, dea, doj, george floyd, protesters, protests, surveillance