SAN FRANCISCO (CN) – A public records lawsuit has unearthed new details on the efforts government agents made to keep secret a spying tool that accessed decades of phone records.
To settle a lawsuit with civil liberties watchdog the Electronic Frontier Foundation (EFF), the Justice Department surrendered hundreds of files on its Hemisphere spying project, which pairs AT&T employees with law enforcement agents to track trillions of phone records dating back to 1987.
After settling the lawsuit last month, EFF released a massive trove of files Wednesday.
“The government has worked with AT&T to create this database where there are almost no barriers to law enforcement’s ability to access the information,” EFF attorney Aaron Mackey said in a phone interview Wednesday. “Retention is forever.”
The files show that AT&T urged the government in 2007 not to include the use of Hemisphere information in court filings so the program would stay hidden from the public.
“Obviously the more time[s] information obtained from the unit is used in court filings, whether attributed or not, the more likely the existence of the unit will become more widely known, and we would prefer distribution of that knowledge be limited to the extent possible,” an AT&T lawyer wrote in a May 2007 email.
Six years later, the Drug Enforcement Administration (DEA) instructed agents to exclude Hemisphere data from internal investigation reports, according to a June 2013 email.
To obtain phone records on suspects, DEA agents had to follow two steps – filling out a form and obtaining an administrative subpoena. The Justice Department did not immediately respond to questions about DEA’s process for approving administrative subpoenas on Wednesday.
Mackey said the use of administrative subpoenas presents an inherent conflict of interest because the investigating agency is the same one granting requests to obtain people’s private data.
“There’s no third party overseeing the initial request,” Mackey said, adding that he found no indication that DEA agents were required to state a justification for obtaining phone records in Hemisphere request forms.
According to EFF, the government can also use pattern analysis of data to track people’s social networks, physical locations and movements.
Another document disclosed how many requests for Hemisphere data came from each High Intensity Drug Trafficking Area (HIDTA) office. Created in 1990, HIDTA is a DEA program that assists federal, state and local police with drug enforcement operations.
A previously redacted PowerPoint presentation showed that HIDTA’s Los Angeles regional office issued the most requests for Hemisphere data in 2008, making up nearly 45 percent of all Hemisphere requests. The L.A. office issued 69 requests per month on average in 2008. Of the 835 requests made by the L.A. office that year, more than 90 percent were made with administrative subpoenas and no court oversight, according to the file.
A September 2013 email also shows a government official defending the program after a New York Times article exposed the spying tool that month. The official, whose name was redacted, said the program was nothing more than a “super search engine.” He or she compared it to “Google on Steroids” and said there was nothing improper about keeping the program secret.
“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 unnamed official wrote.
Because the use of Hemisphere data has been excluded as evidence in prosecutions, no known defendants have been able to challenge the constitutionality of the spying program in court. Mackey believes Hemisphere violates First Amendment rights of free expression and association, along with Fourth Amendment protections against unreasonable search and seizure.
Mackey rejects arguments that the government needs this tool to help find and prosecute violent criminals involved in illegal drug rings.
“The argument is we basically have to collect everyone’s records and invade everyone’s privacy to go after the bad guys,” Mackey said. “The government needs to act in a narrower and more focused way to the extent they have justification to target individuals they think are bad actors.”
The DEA and Justice Department did not immediately respond to emails and phone calls requesting comment Wednesday afternoon.
As part of its settlement with the EFF, the Justice Department agreed to pay the watchdog group $160,000 in legal fees.