Regulatory Reform

DEA Data Collection Program Served as Model for NSA Program

“The wicked flee when no man pursues,” according to the book of Proverbs. USA Today recently reported that the United States Drug Enforcement Agency maintained a domestic wiretapping program operating outside the auspices of judicial review, and then tried quietly to shut the program down after Edward Snowden revealed a similar program administered by the National Security Agency (NSA).

The DEA started its program long before Congress passed the Patriot Act. It started well before the popularization of cell phones. In fact, the DEA launched the program under President George H.W. Bush in 1992. In 1992, the United States was engaged in a “war” against violent crime, drugs, and drug trafficking. The government needed a “‘sophisticated intelligence-gathering and Defense Department technology’ to disrupt drug trafficking.”

Unlike the NSA’s program, which focuses on national security issues, the DEA’s program was focused mostly on preventing domestic crime, specifically drug trafficking. Because the program focused on domestic crime prevention, its opponents argue that it should have been subject to stringent Constitutional oversight. The tactics employed by the federal government, though, were designed to circumvent any stringent Constitutional oversight.

The federal government subpoenaed from telecommunications companies all telephone records made from the United States to countries where suspected drug cartels operated. By subpoenaing telephone records instead of applying for warrants, the DEA circumvented courts and ignored the Fourth Amendment.

Subpoenas differ from warrants in that they do not require a judge’s review and signature. The government completes and sends a subpoena to a company demanding certain information, such as telephonic metadata (phone numbers calling a designated number, the length of the call, the number of times called, and so on). Unless phone companies challenge subpoenas in court, it must comply with the government’s demand.

Because of these differences, subpoenas allowed the government to strong-arm phone companies into complying with the requests.  The government correctly gambled that the companies did not want the publicity or to invest the resources necessary to fight the subpoenas.

The DEA sought to capture data from calls originating in the United States placed to countries with drug operations. Phone records obtained through the subpoenas only captured a call’s metadata—phone numbers, duration of calls, and frequency of calls. The DEA did not record conversations, or other substantive information.

Information gleaned from the metadata, though, can (and likely did) form the basis for search warrants—whether those warrants were sought from state courts, federal district courts, or even the Foreign Intelligence Surveillance Court. Once the DEA obtained warrants based on its data collection program, it could start sharing information with other law enforcement agencies.

On the state and local level, the DEA’s information may have formed the basis of investigations, traffic stops, arrests and ultimately prosecutions. Rather than reveal the underlying source of the information, the DEA instructed local and state law enforcement agencies to create other scenarios explaining the arrest to defense attorneys and the court.

The DEA decided to close the program down shortly after Edward Snowden revealed a similar, and more expansive program, administered by the National Security Agency. Overall, the DEA’s program lasted over 20 years and spanned four Presidential administrations.

What began as a small program ended up collecting data on billions of phone calls. It serves as an example of government actions to consider as U.S. citizens increasingly value their privacy, particularly privacy from the prying eyes of government.

In Depth: Regulatory Reform

In his first inaugural address, Thomas Jefferson said that “the sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry.” Sadly, governments – both federal and state – have ignored this axiom and…

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