DEA Insiders Warned About Legality of Phone Tracking Program. Their Concerns Were Kept Secret.
Civil liberties advocates, however, were not convinced about that the data collection program — which let the DEA see who you called, and who they called too — was aboveboard.
Now, the advocates are learning more than a decade later that they had a clutch of surprising allies: DEA officials on the inside — whose internal alarms were kept secret.
Watchdog findings released last week show that government officials had privately raised questions about the program for years — including a high-ranking DEA agent who expressed 'major' concerns. The FBI even halted its own agents' access to the database for months.
The DEA's 'Hemisphere' project went ahead despite the apprehensions — and continues to this day.
With new details about the program coming to light, the civil liberties advocates in Washington, including those in Congress are again raising their concerns. One watchdog group said the latest revelations show that the program was flawed from the beginning.
'There should have been no question from the very start that this program needed a proper legal analysis, to determine whether there was the authority for the government to obtain this type of information in bulk through administrative subpoenas,' said Jeramie Scott, a senior counsel at the Electronic Privacy Information Center. 'It's a real failure of oversight and accountability that years went by without a proper legal analysis.'
When the DEA's program was made public, it immediately drew comparisons to the National Security Agency's domestic phone call database revealed by Edward Snowden.
The key details of the DEA program were shocking to civil liberties advocates: AT&T had made billions of phone call records available to the agency and other law enforcement agencies in exchange for payment.
Those records did not include the content of calls, but they did include metadata information on the time, and information on the number called, according to the Electronic Frontier Foundation. The data extended far beyond AT&T's own customers, since most calls pass through AT&T's switches at some point.
The 'Hemisphere' project could provide call data not just about who a target was communicating with, but also so called 'two-hop' data on who that second person was in phone contact with as well.
Authorities could request the call records by sending a request to AT&T — without a court order required — and the company asked the government to keep the program secret. The DEA even sought to cover up the program's existence by sending traditional subpoenas later on in cases headed for court, a process known as 'parallel construction.'
The program is also administered by regional anti-drug offices using money provided by the White House Office of National Drug Control Policy, a convoluted structure that Sen. Ron Wyden, D-Ore., said in 2023 has allowed it to skip a mandatory federal privacy review.
When the program was revealed by the New York Times in 2013, the Justice Department downplayed civil liberties concerns. It argued that the program was no different from the long-standing practice of subpoenaing individual phone providers.
Critics, though, said the program had vast differences. 'Hemisphere' produced information in hours instead of months; it included 'two-hop' data about the people who had interacted with a target phone number's calling partners; and it could provide analysis in response to a request for 'advanced' information.
The 'advanced' products from AT&T appear to have involved the ability to uncover location data on cellphones, and to identify possible replacement phone numbers for so-called drop or burner phones, according to Electronic Privacy Information Center's Scott.
Scott, whose nonprofit sued the government for records on the program, said the search for drop phones likely involved analysis on AT&T's part, taking it for legal purposes a far step beyond the typical 'business records' that can be obtained by administrative subpoenas.
The 'advanced' searches in particular appear to have raised internal concerns, according to portions of a 2019 report from the Justice Department's Office of Inspector General that were just made public last week.
The Justice Department released the new version of that report six years after its original publication, after prodding from Wyden and Rep. Andy Biggs, R-Ariz.
The new version shows that legal questions were raised about the 'Hemisphere' program at least four times. In 2007, the same year it started, a DEA supervisor asked the agency's Office of Chief Counsel for 'assurance' that the program had legal approval.
The legal office started reviewing the program, sending back to agents a request for more information on the 'geographic' data it produced. The legal analysis, however, petered out without reaching a conclusion, according to the newly revealed portions of the inspector general report. There was 'no evidence,' the report said, that the DEA's lawyers 'substantively addressed the issue raised in the memorandum at a later date.'
In February 2008, a DEA special agent in charge expressed 'major concerns' about the way the program was being used in an email to senior DEA officials. That email did produce a formal memorandum approved by agency lawyers with a data request protocol, but the memorandum was never distributed to DEA employees in the field.
In August 2010, the FBI's top lawyer contacted the DEA with concerns about the 'Hemisphere' program. What the FBI discovered apparently alarmed it enough to completely suspend use of the program later that month.
Discussions over the legality of the program's 'advanced' product continued for months, drawing in other agencies that employed the phone database including the Justice Department's Bureau of Alcohol, Tobacco, Firearms, and Explosives as well as the Department of Homeland Security.
The FBI eventually reinstated its agents' access but limited the kind of information they could request. The exact nature of that self-imposed limit remains redacted in the latest version of the inspector general report.
Scott said it was notable that the FBI curbed its agents' access to certain analyses when other agencies such as the DEA plowed ahead.
'The DEA had less qualms about using advanced products that the FBI seemed to think were legally questionable,' he said.
From September 2012 to January 2013, one of the DEA's in-house lawyers conducted a draft analysis of the 'Hemisphere' program that concluded it was on solid legal footing. Yet this analysis was never finalized or distributed, the inspector general report says.
While the revelation of the DEA program in September 2013 caused widespread alarm among civil liberties advocates, it never spurred meaningful restrictions.
Instead, as Wyden detailed in a November 2023 letter to then-Attorney General Merrick Garland, the program continued after fits and starts 'under a new generic sounding program name, 'Data Analytical Services.''
By releasing the unredacted portions of the report, the Trump administration appears to have taken a step forward on transparency, but it is unclear whether it will follow through with reforms. (The White House did not respond to a request for comment.)
In Congress, Wyden, Biggs, and other members have for years pushed a government surveillance reform act that would tackle a wide range of concerns. Among other policy changes, it would require regular inspector general reports on 'Hemisphere.'
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