U.S. secretly tracked billions of calls for decades
U.S. secretly tracked billions of calls for decades
Brad Heath, USA TODAY 6:25 p.m. EDT April 7, 2015
WASHINGTON — The U.S. government started keeping secret
records of Americans' international telephone calls nearly a decade before the
Sept. 11 terrorist attacks, harvesting billions of calls in a program that
provided a blueprint for the far broader National Security Agency surveillance
that followed.
For more than two decades, the Justice Department and the
Drug Enforcement Administration amassed logs of virtually all telephone calls
from the USA to as many as 116 countries linked to drug trafficking, current
and former officials involved with the operation said. The targeted countries
changed over time but included Canada, Mexico and most of Central and South
America.
Federal investigators used the call records to track drug
cartels' distribution networks in the USA, allowing agents to detect previously
unknown trafficking rings and money handlers. They also used the records to
help rule out foreign ties to the bombing in 1995 of a federal building in
Oklahoma City and to identify U.S. suspects in a wide range of other
investigations.
The Justice Department revealed in January that the DEA
had collected data about calls to "designated foreign countries." But
the history and vast scale of that operation have not been disclosed until now.
The now-discontinued operation, carried out by the DEA's
intelligence arm, was the government's first known effort to gather data on
Americans in bulk, sweeping up records of telephone calls made by millions of
U.S. citizens regardless of whether they were suspected of a crime. It was a
model for the massive phone surveillance system the NSA launched to identify
terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that
the government had intruded too deeply into Americans' privacy after former NSA
contractor Edward Snowden leaked it to the news media two years ago.
More than a dozen current and former law enforcement and
intelligence officials described the details of the Justice Department
operation to USA TODAY. Most did so on the condition of anonymity because they
were not authorized to publicly discuss the intelligence program, part of which
remains classified.
The DEA program did not intercept the content of
Americans' calls, but the records — which numbers were dialed and when —
allowed agents to map suspects' communications and link them to troves of other
police and intelligence data. At first, the drug agency did so with help from
military computers and intelligence analysts.
That data collection was "one of the most important
and effective Federal drug law enforcement initiatives," the Justice
Department said in a 1998 letter to Sprint asking the telecom giant to turn
over its call records. The previously undisclosed letter was signed by the head
of the department's Narcotics and Dangerous Drugs Section, Mary Lee Warren, who
wrote that the operation had "been approved at the highest levels of
Federal law enforcement authority," including then-Attorney General Janet
Reno and her deputy, Eric Holder.
The data collection began in 1992 during the
administration of President George H.W. Bush, nine years before his son,
President George W. Bush, authorized the NSA to gather its own logs of
Americans' phone calls in 2001. It was approved by top Justice Department
officials in four presidential administrations and detailed in occasional
briefings to members of Congress but otherwise had little independent
oversight, according to officials involved with running it.
The DEA used its data collection extensively and in ways
that the NSA is now prohibited from doing. Agents gathered the records without
court approval, searched them more often in a day than the spy agency does in a
year and automatically linked the numbers the agency gathered to large
electronic collections of investigative reports, domestic call records
accumulated by its agents and intelligence data from overseas.
The result was "a treasure trove of very important
information on trafficking," former DEA administrator Thomas Constantine
said in an interview.
The extent of that surveillance alarmed privacy
advocates, who questioned its legality. "This was aimed squarely at
Americans," said Mark Rumold, an attorney with the Electronic Frontier
Foundation. "That's very significant from a constitutional
perspective."
Holder halted the data collection in September 2013 amid
the fallout from Snowden's revelations about other surveillance programs. In
its place, current and former officials said the drug agency sends telecom
companies daily subpoenas for international calling records involving only
phone numbers that agents suspect are linked to the drug trade or other crimes
— sometimes a thousand or more numbers a day.
Tuesday, Justice Department spokesman Patrick Rodenbush
said the DEA "is no longer collecting bulk telephony metadata from U.S.
service providers." A DEA spokesman declined to comment.
HARVESTING DATA TO BATTLE CARTELS
The DEA began assembling a data-gathering program in the
1980s as the government searched for new ways to battle Colombian drug cartels.
Neither informants nor undercover agents had been enough to crack the cartels'
infrastructure. So the agency's intelligence arm turned its attention to the
groups' communication networks.
Calling records – often called "toll records" –
offered one way to do that. Toll records are comparable to what appears on a
phone bill – the numbers a person dialed, the date and time of the call, its
duration and how it was paid for. By then, DEA agents had decades of experience
gathering toll records of people they suspected were linked to drug
trafficking, albeit one person at a time. In the late 1980s and early 1990s,
officials said the agency had little way to make sense of the data their agents
accumulated and almost no ability to use them to ferret out new cartel connections.
Some agents used legal pads.
"We were drowning in toll records," a former
intelligence official said.
The DEA asked the Pentagon for help. The military
responded with a pair of supercomputers and intelligence analysts who had
experience tracking the communication patterns of Soviet military units.
"What they discovered was that the incident of a communication was perhaps
as important as the content of a communication," a former Justice
Department official said.
The military installed the supercomputers on the fifth
floor of the DEA's headquarters, across from a shopping mall in Arlington, Va.
The system they built ultimately allowed the drug agency
to stitch together huge collections of data to map trafficking and money
laundering networks both overseas and within the USA. It allowed agents to link
the call records its agents gathered domestically with calling data the DEA and
intelligence agencies had acquired outside the USA. (In some cases, officials
said the DEA paid employees of foreign telecom firms for copies of call logs
and subscriber lists.) And it eventually allowed agents to cross-reference all
of that against investigative reports from the DEA, FBI and Customs Service.
The result "produced major international
investigations that allowed us to take some big people," Constantine said,
though he said he could not identify particular cases.
In 1989, President George H.W. Bush proposed in his first
prime-time address using "sophisticated intelligence-gathering and Defense
Department technology" to disrupt drug trafficking. Three years later,
when violent crime rates were at record highs, the drug agency intensified its
intelligence push, launching a "kingpin strategy" to attack drug
cartels by going after their finances, leadership and communication.
THE START OF BULK COLLECTION
In 1992, in the last months of Bush's administration,
Attorney General William Barr and his chief criminal prosecutor, Robert
Mueller, gave the DEA permission to collect a much larger set of phone data to
feed into that intelligence operation.
Instead of simply asking phone companies for records
about calls made by people suspected of drug crimes, the Justice Department
began ordering telephone companies to turn over lists of all phone calls from
the USA to countries where the government determined drug traffickers operated,
current and former officials said.
Barr and Mueller declined to comment, as did Barr's
deputy, George Terwilliger III, though Terwilliger said, "It has been
apparent for a long time in both the law enforcement and intelligence worlds that
there is a tremendous value and need to collect certain metadata to support
legitimate investigations."
The data collection was known within the agency as USTO
(a play on the fact that it tracked calls from the U.S. to other countries).
The DEA obtained those records using administrative
subpoenas that allow the agency to collect records "relevant or material
to" federal drug investigations. Officials acknowledged it was an
expansive interpretation of that authority but one that was not likely to be challenged
because unlike search warrants, DEA subpoenas do not require a judge's
approval. "We knew we were stretching the definition," a former
official involved in the process said.
Officials said a few telephone companies were reluctant
to provide so much information, but none challenged the subpoenas in court.
Those that hesitated received letters from the Justice Department urging them
to comply.
After Sprint executives expressed reservations in 1998,
for example, Warren, the head of the department's drug section, responded with
a letter telling the company that "the initiative has been determined to
be legally appropriate" and that turning over the call data was
"appropriate and required by law." The letter said the data would be
used by authorities "to focus scarce investigative resources by means of
sophisticated pattern and link analysis."
The letter did not name other telecom firms providing
records to the DEA but did tell executives that "the arrangement with
Sprint being sought by the DEA is by no means unique to Sprint" and that
"major service providers have been eager to support and assist law
enforcement within appropriate bounds." Former officials said the
operation included records from AT&T and other telecom companies.
A spokesman for AT&T declined to comment. Sprint
spokeswoman Stephanie Vinge Walsh said only that "we do comply with all
state and federal laws regarding law enforcement subpoenas."
Agents said that when the data collection began, they
sought to limit its use mainly to drug investigations and turned away requests
for access from the FBI and the NSA. They allowed searches of the data in
terrorism cases, including the bombing of a federal building in Oklahoma City
that killed 168 people in 1995, helping to rule out theories linking the attack
to foreign terrorists. They allowed even broader use after Sept. 11, 2001. The
DEA's public disclosure of its program in January came in the case of a man
charged with violating U.S. export restrictions by trying to send electrical
equipment to Iran.
At first, officials said the DEA gathered records only of
calls to a handful of countries, focusing on Colombian drug cartels and their
supply lines. Its reach grew quickly, and by the late 1990s, the DEA was
logging "a massive number of calls," said a former intelligence
official who supervised the program.
Former officials said they could not recall the complete
list of countries included in USTO, and the coverage changed over time. The
Justice Department and DEA added countries to the list if officials could
establish that they were home to outfits that produced or trafficked drugs or
were involved in money laundering or other drug-related crimes.
The Justice Department warned when it disclosed the
program in January that the list of countries should remain secret "to
protect against any disruption to prospective law enforcement
cooperation."
At its peak, the operation gathered data on calls to 116
countries, an official involved in reviewing the list said. Two other officials
said they did not recall the precise number of countries, but it was more than
100. That gave the collection a considerable sweep; the U.S. government
recognizes a total of 195 countries.
At one time or another, officials said, the data
collection covered most of the countries in Central and South America and the
Caribbean, as well as others in western Africa, Europe and Asia. It included
Afghanistan, Pakistan, Iran, Italy, Mexico and Canada.
The DEA often — though not always — notified foreign
governments it was collecting call records, in part to make sure its agents
would not be expelled if the program was discovered. In some cases, the DEA
provided some of that information to foreign law enforcement agencies to help
them build their own investigations, officials said.
The DEA did not have a real-time connection to phone
companies' data; instead, the companies regularly provided copies of their call
logs, first on computer disks and later over a private network. Agents who used
the system said the numbers they saw were seldom more than a few days old.
The database did not include callers' names or other
identifying data. Officials said agents often were able to identify individuals
associated with telephone numbers flagged by the analysis, either by
cross-referencing them against other databases or by sending follow-up requests
to the phone companies.
To keep the program secret, the DEA sought not to use the
information as evidence in criminal prosecutions or in its justification for
warrants or other searches. Instead, its Special Operations Division passed the
data to field agents as tips to help them find new targets or focus existing
investigations, a process approved by Justice Department lawyers. Many of those
tips were classified because the DEA phone searches drew on other intelligence
data.
That practice sparked a furor when the Reuters news
agency reported in 2013 that the DEA trained agents to conceal the sources of
those tips from judges and defense lawyers. Reuters said the tips were based on
wiretaps, foreign intelligence and a DEA database of telephone calls gathered
through routine subpoenas and search warrants.
As a result, "the government short-circuited any
debate about the legality and wisdom of putting the call records of millions of
innocent people in the hands of the DEA," American Civil Liberties Union
lawyer Patrick Toomey said.
Listen to Brad Heath detail his investigation into
decades of bulk data collection in the audio player below:
A BLUEPRINT FOR BROADER SURVEILLANCE
The NSA began collecting its own data on Americans' phone
calls within months of Sept. 11, 2001, as a way to identify potential
terrorists within the USA. At first, it did so without court approval. In 2006,
after The New York Times and USA TODAY began reporting on the surveillance
program, President George W. Bush's administration brought it under the Foreign
Intelligence Surveillance Act, which allows the government to use secret court
orders to get access to records relevant to national security investigations.
Unlike the DEA, the NSA also gathered logs of calls within the USA.
The similarities between the NSA program and the DEA
operation established a decade earlier are striking – too much so to have been
a coincidence, people familiar with the programs said. Former NSA general
counsel Stewart Baker said, "It's very hard to see (the DEA operation) as
anything other than the precursor" to the NSA's terrorist surveillance.
Both operations relied on an expansive interpretation of
the word "relevant," for example — one that allowed the government to
collect vast amounts of information on the premise that some tiny fraction of
it would be useful to investigators. Both used similar internal safeguards,
requiring analysts to certify that they had "reasonable articulable
suspicion" – a comparatively low legal threshold – that a phone number was
linked to a drug or intelligence case before they could query the records.
"The foundation of the NSA program was a mirror
image of what we were doing," said a former Justice Department official
who helped oversee the surveillance. That official said he and others briefed
NSA lawyers several times on the particulars of their surveillance program. Two
former DEA officials also said the NSA had been briefed on the operation. The
NSA declined to comment.
There were also significant differences.
For one thing, DEA analysts queried their data collection
far more often. The NSA said analysts searched its telephone database only
about 300 times in 2012; DEA analysts routinely performed that many searches in
a day, former officials said. Beyond that, NSA analysts must have approval from
a judge on the Foreign Intelligence Surveillance Court each time they want to
search their own collection of phone metadata, and they do not automatically
cross-reference it with other intelligence files.
Sen. Patrick Leahy, D-Vt., then the chairman of the
Senate Judiciary Committee, complained last year to Holder that the DEA had
been gathering phone data "in bulk" without judicial oversight.
Officials said the DEA's database was disclosed to judges only occasionally, in
classified hearings.
For two decades, it was never reviewed by the Justice
Department's own inspector general, which told Congress it is now looking into
the DEA's bulk data collections.
A SMALLER SCALE COLLECTION
Holder pulled the plug on the phone data collection in
September 2013.
That summer, Snowden leaked a remarkable series of
classified documents detailing some of the government's most prized
surveillance secrets, including the NSA's logging of domestic phone calls and
Internet traffic. Reuters and The New York Times raised questions about the
drug agency's own access to phone records.
Officials said the Justice Department told the DEA that
it had determined it could not continue both surveillance programs,
particularly because part of its justification for sweeping NSA surveillance
was that it served national security interests, not ordinary policing. Eight
months after USTO was halted, for example, department lawyers defended the spy
agency's phone dragnet in court partly on the grounds that it "serves
special governmental needs above and beyond normal law enforcement."
Three months after USTO was shut down, a review panel
commissioned by President Obama urged Congress to bar the NSA from gathering
telephone data on Americans in bulk. Not long after that, Obama instructed the
NSA to get permission from the surveillance court before querying its phone
data collection, a step the drug agency never was required to take.
The DEA stopped searching USTO in September 2013. Not
long after that, it purged the database.
"It was made abundantly clear that they couldn't
defend both programs," a former Justice Department official said. Others
said Holder's message was more direct. "He said he didn't think we should
have that information," a former DEA official said.
By then, agents said USTO was suffering from diminishing
returns. More criminals — especially the sophisticated cartel operatives the
agency targeted — were communicating on Internet messaging systems that are
harder for law enforcement to track.
Still, the shutdown took a toll, officials said. "It
has had a major impact on investigations," one former DEA official said.
The DEA asked the Justice Department to restart the
surveillance program in December 2013. It withdrew that request when agents
came up with a new solution. Every day, the agency assembles a list of the
telephone numbers its agents suspect may be tied to drug trafficking. Each day,
it sends electronic subpoenas — sometimes listing more than a thousand numbers
— to telephone companies seeking logs of international telephone calls linked
to those numbers, two official familiar with the program said.
The data collection that results is more targeted but
slower and more expensive. Agents said it takes a day or more to pull together
communication profiles that used to take minutes.
The White House proposed a similar approach for the NSA's
telephone surveillance program, which is set to expire June 1. That approach
would halt the NSA's bulk data collection but would give the spy agency the
power to force companies to turn over records linked to particular telephone
numbers, subject to a court order.
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