DEA Used NSA Data to Spy on Millions...
DEA Never Checked If Its Massive Surveillance Operations
Are Legal, Watchdog Says
By Jack Corrigan MARCH 28, 2019
The administration “failed to conduct a comprehensive
legal analysis” of three NSA-style bulk data collection programs, according to
the Justice Department Inspector General.
The Drug Enforcement Administration skirted numerous
legal checks on a trio of bulk data collection programs dating back to the
early 1990s, according to an internal watchdog.
In a heavily redacted, 144-page report published
Thursday, the Justice Department Inspector General revealed the administration
failed to fully assess the legal basis for three massive international
surveillance operations that ran largely unchecked from 1992 to 2013. Two of
the programs remain active in some form today.
Under one initiative, which investigators called “Program
A,” the administration used “non-target specific” subpoenas to force multiple
telecom providers to provide metadata on every phone call made from the U.S. to
as many as 116 countries with “a nexus to drugs.” Investigators found some
companies also provided the officials with data on all calls made between those
foreign countries.
The administration also conducted two other bulk
surveillance programs during that time without assessing their legality,
investigators found. Under “Program B,” officials used similarly sweeping
subpoenas to collect information on anyone who purchased specific products from
participating vendors. Through “Program C,” DEA purchased telephone metadata
for targets of ongoing investigations through a contractor for a separate
government agency.
Program B ran from 2008 to 2013, and Program C began in
2007 and remains active today, according to the IG.
Investigators found the administration “failed to conduct
a comprehensive legal analysis” of actions under all three programs. Previous
court rulings have called into question the use of the sweeping subpoenas under
programs A and B, they said. According to the report, the FBI also raised
concerns about the legality of the operations.
“We also found the absence of a robust legal review
troubling because the DEA utilized the bulk data collected ... on an unknown
number of occasions in support of investigations by non-DEA federal agencies
that had no apparent connection to specific drug investigations,” the IG added.
“This utilization raised significant legal questions” because the
administration justified its actions by saying the information “was ‘relevant
or material’ to a drug investigation.”
The administration also never clearly determined whether
its existing subpoena authority extended to the data provided through Program
C, investigators said. The IG also found proof that DEA officials exploited
certain investigative practices to keep prosecutors from sharing evidence with
defendants.
DEA significantly scaled back Program A after Edward
Snowden revealed the existence of similar sweeping surveillance programs at the
National Security Agency, according to investigators. In 2014, the administration
started subpoenaing metadata on calls made from phone numbers specifically tied
to federal investigations. This more narrow surveillance program remains active
today, the IG said.
Under target-specific data collection operations, DEA
officials must provide “reasonable articulable suspicion" that the target
is involved in drug activity, but investigators found there were few safeguards
to ensure they did so. The administration set no specific standards of proof
for issuing subpoenas, and officials often justified data collection using
“generic” and “cursory” explanations, the IG found.
“The information provided [in subpoena documents] often
lacks specificity sufficient to establish the particularized facts or basis for
connecting the target number to a drug investigation, even if such review had
occurred,” investigators said. They added the administration’s auditing process
also did little to assess the relevance of the subpoenas it issued.
Additionally, the DEA lacked any policies governing how
long data collected under Program B could be stored, according to the IG. The
information still resides on its servers today, and officials have no final
plan for getting rid of it, investigators said.
The IG began reviewing DEA’s bulk data collection
programs in 2013, but according to investigators, the administration “took many
actions that hindered the OIG's access to information available to it that the
OIG was plainly authorized to obtain.”
Though the programs have been largely curtailed or
discontinued altogether, investigators noted there’s nothing to prevent the
administration from launching similar operations in the future. The IG made 16
recommendations that would help ensure future programs are conducted
“appropriately and consistently with the law … civil rights and civil
liberties.”
“DEA is committed to ensuring its practices comply with
all Department of Justice policies and procedures and continue to be vetted
through a rigorous legal review,” DEA Spokesperson Katherine Pfaff said in a
statement to Nextgov. “The DEA agrees with the OIG’s recommendation ... and has
already begun enhancing these processes.”
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