Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s
By SCOTT SHANE and COLIN MOYNIHAN
Published: September 1, 2013,http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html?_r=0
For at least six years, law enforcement officials working on a
counternarcotics program have had routine access, using subpoenas, to an
enormous AT&T database that contains the records of decades of
Americans’ phone calls — parallel to but covering a far longer time than
the National Security Agency’s hotly disputed collection of phone call logs.
Edouard H.R.Gluck/Associated Press
A New York training site for the High Intensity Drug
Trafficking Area program, which includes federal and local
investigators. AT&T employees are embedded in the program in three
states.
Multimedia
Cliff Owen/Associated Press
Jameel Jaffer of the A.C.L.U. says a slide
presentation on the Hemisphere Project raises “profound privacy
concerns.”
The Hemisphere Project, a partnership between federal and local drug
officials and AT&T that has not previously been reported, involves
an extremely close association between the government and the
telecommunications giant.
The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987.
The project comes to light at a time of vigorous public debate over the
proper limits on government surveillance and on the relationship between
government agencies and communications companies. It offers the most
significant look to date at the use of such large-scale data for law
enforcement, rather than for national security.
The scale and longevity of the data storage appears to be unmatched by
other government programs, including the N.S.A.’s gathering of phone
call logs under the Patriot Act.
The N.S.A. stores the data for nearly all calls in the United States,
including phone numbers and time and duration of calls, for five years.
Hemisphere covers every call that passes through an AT&T switch —
not just those made by AT&T customers — and includes calls dating
back 26 years, according to Hemisphere training slides bearing the logo
of the White House Office of National Drug Control Policy. Some four
billion call records are added to the database every day, the slides
say; technical specialists say a single call may generate more than one
record. Unlike the N.S.A. data, the Hemisphere data includes information
on the locations of callers.
The slides
were given to The New York Times by Drew Hendricks, a peace activist in
Port Hadlock, Wash. He said he had received the PowerPoint
presentation, which is unclassified but marked “Law enforcement
sensitive,” in response to a series of public information requests to
West Coast police agencies.
The program was started in 2007, according to the slides, and has been carried out in great secrecy.
“All requestors are instructed to never refer to Hemisphere in any official document,” one slide says. A search of the Nexis database found no reference to the program in news reports or Congressional hearings.
The Obama administration acknowledged the extraordinary scale of the
Hemisphere database and the unusual embedding of AT&T employees in
government drug units in three states.
But they said the project, which has proved especially useful in finding
criminals who discard cellphones frequently to thwart government
tracking, employed routine investigative procedures used in criminal
cases for decades and posed no novel privacy issues.
Crucially, they said, the phone data is stored by AT&T, and not by
the government as in the N.S.A. program. It is queried for phone numbers
of interest mainly using what are called “administrative subpoenas,”
those issued not by a grand jury or a judge but by a federal agency, in
this case the D.E.A.
Brian Fallon, a Justice Department spokesman, said in a statement that
“subpoenaing drug dealers’ phone records is a bread-and-butter tactic in
the course of criminal investigations.”
Mr. Fallon said that “the records are maintained at all times by the
phone company, not the government,” and that Hemisphere “simply
streamlines the process of serving the subpoena to the phone company so
law enforcement can quickly keep up with drug dealers when they switch
phone numbers to try to avoid detection.”
He said that the program was paid for by the D.E.A. and the White House
drug policy office but that the cost was not immediately available.
Officials said four AT&T employees are now working in what is called
the High Intensity Drug Trafficking Area program, which brings together
D.E.A. and local investigators — two in the program’s Atlanta office
and one each in Houston and Los Angeles.
Daniel C. Richman, a law professor at Columbia, said he sympathized with
the government’s argument that it needs such voluminous data to catch
criminals in the era of disposable cellphones.
“Is this a massive change in the way the government operates? No,” said
Mr. Richman, who worked as a federal drug prosecutor in Manhattan in the
early 1990s. “Actually you could say that it’s a desperate effort by
the government to catch up.”
(Page 2 of 2)
But Mr. Richman said the program at least touched on an unresolved
Fourth Amendment question: whether mere government possession of huge
amounts of private data, rather than its actual use, may trespass on the
amendment’s requirement that searches be “reasonable.” Even though the
data resides with AT&T, the deep interest and involvement of the
government in its storage may raise constitutional issues, he said.
Jameel Jaffer, deputy legal director of the American Civil Liberties
Union, said the 27-slide PowerPoint presentation, evidently updated this
year to train AT&T employees for the program, “certainly raises
profound privacy concerns.”
“I’d speculate that one reason for the secrecy of the program is that it
would be very hard to justify it to the public or the courts,” he said.
Mr. Jaffer said that while the database remained in AT&T’s
possession, “the integration of government agents into the process means
there are serious Fourth Amendment concerns.”
Mr. Hendricks filed the public records requests while assisting other
activists who have filed a federal lawsuit saying that a civilian
intelligence analyst at an Army base near Tacoma infiltrated and spied
on antiwar groups. (Federal officials confirmed that the slides are
authentic.)
Mark A. Siegel, a spokesman for AT&T, declined to answer more than a
dozen detailed questions, including ones about what percentage of phone
calls made in the United States were covered by Hemisphere, the size of
the Hemisphere database, whether the AT&T employees working on
Hemisphere had security clearances and whether the company has conducted
any legal review of the program
“While we cannot comment on any particular matter, we, like all other
companies, must respond to valid subpoenas issued by law enforcement,”
Mr. Siegel wrote in an e-mail.
Representatives from Verizon, Sprint and T-Mobile all declined to
comment on Sunday in response to questions about whether their companies
were aware of Hemisphere or participated in that program or similar
ones. A federal law enforcement official said that the Hemisphere
Project was “singular” and that he knew of no comparable program
involving other phone companies.
The PowerPoint slides outline several “success stories”
highlighting the program’s achievements and showing that it is used in
investigating a range of crimes, not just drug violations. The slides
emphasize the program’s value in tracing suspects who use replacement
phones, sometimes called “burner” phones, who switch phone numbers or
who are otherwise difficult to locate or identify.
In March 2013, for instance, Hemisphere found the new phone number and
location of a man who impersonated a general at a San Diego Navy base
and then ran over a Navy intelligence agent. A month earlier the program
helped catch a South Carolina woman who had made a series of bomb
threats.
And in Seattle in 2011, the document says, Hemisphere tracked drug
dealers who were rotating prepaid phones, leading to the seizure of 136
kilos of cocaine and $2.2 million.
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