EFF Wins FOIA Lawsuit Against DEA, Forces The Release Of More Info About Its Hemisphere Program

from the creeping-transparency dept

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.

AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.

More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.

The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.

Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

Operation Hemisphere was initiated after 9/11 and is the name of an AT&T pointing mechanism to give the requester telephonic information that crosses through AT&T towers/switches. When all other means are exhausted in trying to locate a replacement number, a Hemisphere request may be submitted. Similar to ETS information, Hemisphere information is not to be used in 6s, affidavits, etc.

When such information is needed, the requestor submits a special subpoena issued to AT&T and send it to the Op. Hemisphere POC, who then forwards it to the Hemisphere representative in Los Angeles. The response often determines whether or not the agent or analyst will perform a parallel construction.

It also shows the DEA attempting to disavow ownership of the program it spearheaded and recommended to local law enforcement agencies. In response to Rep. Darrell Issa's inquiries about the program -- prompted by the 2013 New York Times reporting -- the DEA tried to claim it had no control of the program and could not discuss it with Congressional oversight.

However, I would note that we will NOT be able to brief on Hemisphere-this is NOT a DEA program. It was created by and is currently managed by ONDCP. I don't want to push you oft: but Hemisphere is not in our wheelhouse.

This is from Erik Akers of the DEA, making the incredulous assertion a program used hundreds of times by the DEA is not "in the DEA's wheelhouse." Akers pushes it back on the Office of National Drug Control Policy, which doesn't appear to be empowered to create and deploy surveillance programs. Here's what the ONDCP can do, according to the federal government's own website.

A component of the Executive Office of the President, ONDCP was created by the Anti-Drug Abuse Act of 1988. The ONDCP Director is the principal advisor to the President on drug control issues. ONDCP coordinates the drug control activities and related funding of 16 Federal Departments and Agencies. Each year, ONDCP produces the annual National Drug Control Strategy, which outlines Administration efforts for the Nation to reduce illicit drug use, manufacturing and trafficking; drug-related crime and violence; and drug-related health consequences. ONDCP also leads the development of the consolidated Federal drug control budget, which is published annually in the National Drug Control Strategy: Budget and Performance Summary.

The ONDCP is advisory. It may provide legal guidance when crafting programs, but there's nothing in the office's duties that includes creating and engaging in surveillance/collection programs. It may serve as the administrative body above the nation's HIDTA (High-Intensity Drug Trafficking Area) activities, but it's not the agency that approaches telcos and demands call records. The DEA does that. To pretend it doesn't is laughable, but that's exactly what the DEA did when its program was exposed by journalists.

The Los Angeles HIDTA -- which oversees roughly a third of the nation -- put out this statement to participants in the Hemisphere program, again in response to 2013's exposure of the program. In it, the HIDTA claims the program is legal, super-powerful, nothing like the NSA, and somehow entitled to secrecy because the DEA and US law enforcement have nothing to hide.

IF HIDTA in general decides to put out some edict to not allow your agents/detectives to utilize this ''tool" it would give the impression to the "common man" .. . jury standards ... that we collectively did something WRONG ... which as we all know is the furthest from the truth.

Hemi is nothing more than AT&T's "Super Search Engine" ... "Google on Steroids" as it were .. . A software record search system developed to reach into AT&T's numerous stove-piped databases; coupled with Analysts who knows what we (law enforcement) is asking for as well how to interpret their confusing raw record data once retrieved ... And all is done through legally approved documents (Admin Subpoena for Feds, Court Orders by State/Locals). That's it ... Nothing more, nothing less ... Period.

Additionally, from a legal perspective ... this system was scrutinized by Corporate Attorneys, Local, State and Federal Prosecutors, US DOJ, FBI and DEA General Counsel Attorneys, and Judges as well ... ALL OF WHOM concur that Hemi is a legal tool ... and nothing MORE than just a "tool."

As far as "keeping it a secret" per se (an issue raised in the articles based on one of the slides) ... Our rational has been simple and truly hasn't changed since the beginning of Sir Robert Peel and the origins of today's "Modern Day Law Enforcement" ... we were attempting to NOT educate the Cartel Attorneys et al on the systems and practices we law enforcement professionals legally have available at our disposal (Key word LEGALLY!)

The article "likens" the Hemisphere Project with the NSA Project ... In short, they're apples & oranges. To access Hemisphere a law enforcement officer/agent must have PC specific to their search request, then must provide either a Federal Admin Subpoena or have a judge sign a Court Order in the case of state/local investigators. This is in total contrast to the blanket Patriot Act search methods used by NSA.

To sum up: the DEA doesn't want to talk about a program it claims it doesn't control. The DEA redacted tons of info about a program that's completely legal and it shouldn't have to justify to the American public, while simultaneously hiding the use of the program from criminal defendants and judges. It is not the NSA, the DEA claims, while engaging in many of the NSA's tactics, like parallel construction and Glomar-esque non-denial denials of the program's existence.

Over in the private sector, AT&T decided it was more DEA than telco to engage in the program, turning a decent profit on unchecked surveillance and benefiting from the legal immunity extended to private sector participants in government surveillance programs. More details will likely emerge, but it's unlikely to uncover some previously-withheld justification that makes the DEA's use of "Google on steroids" phone record searches acceptable.

Filed Under: dea, foia, hemisphere, parallel construction, surveillance
Companies: at&t, eff

Court Says Government Needs Better Excuses If It Wants To Keep Hiding DEA Surveillance Docs

from the even-these-bare-bones-are-barely-there dept

The EFF has won a small battle in a larger war against the US government for its continued withholding of documents related to its Hemisphere program. Files on this custom-built AT&T/DEA surveillance system have already made their way into the hands of the public. Contrary to the government's claims about other methods (warrants, subpoenas) taking too long to obtain phone records, previously-released documents showed AT&T employees worked directly alongside agents in DEA offices to perform instantaneous searches for records.

The EFF is seeking information not included in the Powerpoint presentation already produced by the DEA. It's looking for records on court cases where evidence derived from the program was submitted, communications between the government and AT&T concerning the program, communications between government agencies about the Hemisphere program, and Congressional briefings related to the side-by-side surveillance effort.

The government has refused to turn over much of what's been requested for a variety of reasons, the main one being infamous FOIA exemption b(5). The government has other reasons for withholding information, but this is its favorite. The court, however, finds that most of its arguments amount to little more than "because." From the opinion [PDF]:

Ultimately, the Government's declaration is too vague: it does not indicate even generally what sorts of legal issues are presented in these e-mails, nor does not explain what “features” of the Hemisphere program are at issue. That the communications were between an attorney and agency employees does not establish the documents are protected under the attorney client privilege; without more about what “features” or “legal issues” are discussed or why they might be confidential in nature, the Government has not raised enough facts to show that Document 1 may be protected by the privilege.

As for another disputed document, the court has this to say:

The Government is essentially asking the Court to presume that because it uses the word “subpoenas” and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document.

Yet another disputed document:

[T]he Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains “confidential legal advice,” again, this merely states the element without explaining the basis of that confidentiality.

The review of documents concludes with the court pointing out that the government's sole justification for its bare minimum explanations works against it:

Finally, while the Government argues its generalized descriptions are sufficiently specific to show the documents contain “confidential legal advice,” it relies only on cases that demonstrate how its support in this case is lacking. [...] The Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements.

The court remains less than impressed with the government's lack of effort throughout the remainder of the opinion. It's as if the government assumed the court would rubber-stamp its bare-bones assertions.

[T]he Government makes no further reference to any current or foreseeable litigation in either its supporting declarations or Vaughn Index or provide other context that would allow the Court make a de novo review of the Government's work product assertions. Again, the Government cannot satisfy its burden of proof by relying on a mere recitation of the elements.

[...]

Nor does the Government meet its burden merely by referring to law enforcement efforts.

[...]

The Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation.

[...]

[T]he Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions.

[...]

None of the Government's evidence suggests that exposing these documents would interfere with law enforcement proceedings.

The court also finds the government cannot withhold information related to cities Hemisphere was deployed in or agencies involved under FOIA exemptions. As the court sees it, the fearful assertions made by the government have no basis in observed reality.

The Government asserts this information “could be used by criminals to disrupt law enforcement operations or obtain unauthorized access to information about such operations.” But the Government does not explain how criminals could do this by using information about the cities and states where Hemisphere. EFF also notes that the public already knows that Hemisphere has regional centers in Atlanta, Houston, and Los Angeles, but the Government presents no evidence suggesting criminals have used this publicly available information to disrupt law enforcement operations or obtain unauthorized access to information.

The same goes for the names of the telecommunications companies the DEA worked in concert with to obtain telephone records.

[T]he Government asserts criminals could use this information to “tailor or adapt their activities to evade apprehension,” or “to attack facilities involved in the Hemisphere program.” In response, EFF argues the public has known for two and a half years—that is, since The New York Times‟ 2013 article on it—that AT&T supports Hemisphere, and the Government has not shown or even argued that criminals have ever attempted to use this information to evade or disrupt Hemisphere.

The Court agrees with EFF that the Government has not provided facts showing why it is likely criminals would use the identities of the companies that are instrumental to Hemisphere to evade or attack Hemisphere-related facilities.

The next step is an in camera review of the documents by the court to determine whether or not there's anything in these documents the government is justified in withholding. So far, the court appears unconvinced the government is engaged in anything more than opacity for opacity's sake. If the review goes as badly for the government as its FOIA lawsuit defense has, a lot more information on the Hemisphere program should be headed our way.

Filed Under: b5, dea, foia, hemisphere, surveillance
Companies: at&t, eff

DEA Gets Unchecked Access To Call Records; Taught To Lie About Where They Got Them

from the your-due-process-is-no-match-for-our-Drug-War dept

Shortly after the Snowden leaks began exposing the NSA's massive collection efforts, the New York Times uncovered the DEA's direct access to AT&T telecom switches (via non-government employee "analysts" working for AT&T), from which it and other law enforcement agencies were able to gather phone call and location data.

Unlike the NSA's bulk records programs (which are limited to holding five years worth of data), the Hemisphere database stretches back to 1987 and advertises instant access to "10 years of records." And unlike the NSA's program, there's not even the slightest bit of oversight. All law enforcement needs to run a search of the Hemisphere database is an administrative subpoena -- a piece of paper roughly equivalent to calling up Hemisphere analysts and asking them to run a few numbers. Administrative subpoenas are only subject to the oversight of the agency issuing them.

It's highly unlikely these administrative subpoenas are stored (where they could be accessed as public records) considering the constant emphasis placed on parallel construction in the documents obtained by Dustin Slaughter of MuckRock -- documents it took the DEA ten months to turn over.

Unlike the documents obtained by the New York Times (possibly inadvertently), these do contain a few redactions, including some apparent success stories compiled at the end of the presentation. But like the earlier documents, the documents show that the DEA and law enforcement have unchecked access to a database that agents and officers are never allowed to talk about -- not even inside a courtroom.

It is expected that all Hemisphere requests will be paralleled with a subpoena for CDRs from the official carrier for evidentiary purposes.

It's spelled out more explicitly on a later slide, listed under "Official Reporting."

DO NOT mention Hemisphere in any official reports or court documents.

Judging from the request date, it would appear that this version of the Hemisphere presentation possibly precedes the New York Times' version. However, this one does not name the cooperating telco, although that appears to be a deliberate choice of the person writing the presentation, rather than due to redaction. At one point the document declares Hemisphere can access records "regardless of carrier," but later clarifies that it will only gather info that crosses certain telecom switches -- most likely AT&T's. Additional subpoenas will be needed to gather info from other carriers, as well as to obtain subscriber information linked to searched numbers. This small limitation plays right into the DEA's insistence that Hemisphere be "walled off" from defendants, court systems and the public.

If exigent circumstances make parallel construction difficult, Hemisphere analysts (non-government liaisons within the telco) will "continue to work with the investigator throughout the entire prosecution process in order to ensure the integrity of Hemisphere and the case at hand." Analysts are allowed to advise investigators on report writing, presentations to prosecutors and issues occurring during the trial phase. The word "integrity" seems out of place when it describes non-government employees assisting government agencies in hiding the origin of evidence from other government agencies.

Cross-referencing what's been redacted in this one with the unredacted document published earlier, it appears as though the DEA is trying to (belatedly) hide the fact that its Hemisphere can also search IMSI and IMEI data (for wireless connections). Although this document states (after a long redaction) that Hemisphere does not collect subscriber information, that's only partially true. As of July 2012, subscriber information for AT&T customers can be obtained from the database. This information may have been redacted or it may be that this presentation pre-dates this added ability.

What this shows is that the DEA has access to loads of information and a policy of "parallel construction in all things." Tons of other government agencies, including the NSA, FBI and CIA are funneling information to the DEA and instructing it to hide the origin. The DEA then demands law enforcement agencies around the nation to do the same thing. This stacks the deck against defendants, who are "walled off" from the chain of evidence, preventing them from challenging sources, methods or the integrity of the evidence itself.

Filed Under: call records, dea, drug war, embedded employees, hemisphere, lies, parallel construction

AT&T Has Employees Embedded In The Gov't Providing Near Realtime Searches On Nearly Every Phone Call

from the forget-the-nsa dept

We've obviously been talking plenty about how the big telcos appear to provide tremendous amounts of data to the NSA -- including, basically, call records on every single call ever made. We also discussed how the DEA appears to be getting secret info from the NSA and other intelligence agencies, via its Special Operations Division (SOD), and is then told to effectively launder where it got it's tips from. However, over the weekend, the NY Times broke a huge story about a program called Hemisphere, set up by AT&T and the DEA, such that the DEA and a variety of other law enforcement agencies (including some at state level) have near real-time access to data on every single call that touches an AT&T switch (which goes way beyond cases where one of the parties on the call has an account with AT&T). And this database goes back to 1987 (unlike the NSA which claims to delete most data beyond five years, which may or may not be true). Also, unlike the NSA, this Hemisphere database includes location info.

Oh, and making it even crazier: the government is paying AT&T to have a bunch of AT&T employees embedded with the DEA so that they can respond to requests to search this database faster. The government insists this is no big deal (of course) in part because the "database" is not actually held by the feds, but rather by AT&T. But, really, does that distinction really matter when the AT&T employees who can query it are basically DEA employees -- paid by the US government, working with DEA units? In order to query Hemisphere, the DEA and other agencies apparently just need an administrative subpoena, which is the equivalent of saying the DEA just needs to ask for it. There's no review or oversight by a court or anything.

Furthermore, this seems to totally decimate the argument that the NSA and its defenders were making a few weeks ago, claiming that with the dragnet collection of metadata on all phone calls, it was necessary for the NSA to store this data, because it would take way too long to have the telcos do the searches for the government. They seem to have conveniently left out that there was already a program in place whereby law enforcement folks could walk over to the next cubicle and get the AT&T employee paid for by the government run a search for them with no real oversight.

Also, as with the SOD "leads" it appears that those in law enforcement making use of Hemisphere data are told to launder the use of the database. The PowerPoint presentation (which was revealed -- perhaps accidentally -- in response to a FOIA request) talks about "protecting the program," which includes telling people who use the program "to never refer to Hemisphere in any official document." It also explains how to "wall off" Hemisphere by using the information gleaned via the program to then seek a more regular subpoena for a specific carrier's records. Basically, they use Hemisphere to find out key information and then tell law enforcement to use a different kind of subpoena to pretend the info came out of something different.

Furthermore, it appears they've been expanding the list of law enforcement people who can make use of Hemisphere. Washington state began allowing law enforcement in Washington to make use of Hemisphere, and they seem pretty excited about expanding such access to this massive database -- which adds 4 billion call records every day. While the program is considered "unclassified," the NY Times notes that it does not appear to have ever been mentioned publicly.

The tool is apparently quite good at locating people who are using burner phones and connecting various dots when people abandon one phone and pick up another. Obviously, you can see why such info might be valuable to law enforcement -- especially the Drug Enforcement Agency -- but there are serious questions about whether or not having access to all that data with so little oversight is actually legal. If you thought the NSA's "metadata" database was big, this is much bigger. And almost no one even seemed to know it existed.

Filed Under: burner phones, dea, embedded employees, hemisphere, location info, metadata, phone calls, privacy
Companies: at&t