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  (Source: DEA)
Government says there's nothing to worry about as AT&T is storing everything

According to government documents published by The New York Times, the U.S. Drug Enforcement Agency (DEA) has access on metadata on virtually every long distance call passing through AT&T, Inc.'s (T) network, since 1987.  An estimated 4 billion records (one call sometimes generates multiple records) are estimated to be added to the federally funded AT&T databases a day; over a trillion records are estimated to be added yearly.  And possibly tens of trillions of records --- mostly from law-abiding Americans -- may reside in the agency's carefully maintained databases.

And you thought the U.S. National Security Agency (NSA) was bad.

I. Crafting the Nation's Most Ambitious Phone Record Mining Project

Dubbed the The Hemisphere Project, the project's roots stretch back to AT&T's decision to store call data records (CDRs) on all its long distance and international call starting in 1987.  

In 2007 -- under the leadership of President George W. Bush -- Hemisphere activated and began not only processing through AT&T's backlog of stored CDRs, but also recording data on all new calls passing through the phone network, including local calls.


Intended as a joint effort between local and federal authorities, the project's goal was to hunt down large-scale drug dealers by scouring the phone records of the nation, at the cost of pretty much everyone's privacy.  That cost -- and the government's gains -- have become much bigger as cell phone use boomed and metadata of call records became a virtual tracking database of where Americans went on a daily basis.

Indeed cell phones were a key motivation of the DEA's efforts; the program was designed as a tool to counter the use of cheap, disposable mobile phones (so called "burner" devices).  Such phones are often used by drug dealers, as depicted on TV drug dramas like Breaking Bad.

II. AT&T the Perfect Partner

"Big brother", aka the DEA, decided that AT&T was the most cost-effective route to watching the maximum number of Americans.  Not only does AT&T's own landline and cellular traffic pass through the carrier, but AT&T is also responsible for routing much of the remaining traffic through its nationwide network of cables and switches.  All of that third-party traffic would also be captured, with AT&T's kind assistance.

AT&T glass
AT&T proved eager to help the government for the right price. [Image Source: Reuters]

With AT&T's help, the DEA created a program of massive ubiquitous surveillance that even modern efforts have not matched in terms of storage term, according to the report.  The New York Times writes:

The scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act. The N.S.A. stores the data for nearly all calls in the United States, including phone numbers and time and duration of calls, for five years.

The program has been active for the last half decade in the Atlanta, Georgia; Los Angeles, California; and Houston, Texas areas.  In 2012 Washington state was added to the program.  Requests in the program also reportedly were served to police departments in Hawaii, Nevada, Arizona, and Oregon.

And the government vowed to keep the program out of the public eye, writing:

All requestors are instructed to never refer to Hemisphere in any official document.  If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

Ultimately, the program was outed by Drew Hendricks, a peace activist in Port Hadlock, Wash., who followed up on his suspicions by filing Freedom of Information Act (FOIA) of 1966 (5 U.S.C. § 552) lawsuits against various West Coast police agencies until one finally coughed up a 27-slide PowerPoint deck revealing details of Hemisphere.

III. Program May Explain AT&T's Rumored "Room 641a" in S.F., Calif. 

The program may have been nearly outed not long after its inception via a 2007-era whistleblower-report supporting a lawsuit filed against the federal government by the Electronic Frontier Foundation, an expert witness suggested that the surveillance efforts were alive and well.  The witness in a court deposition wrote that the NSA had worked with AT&T, Inc. (T), the second largest wireless carrier in the country on a program to "vacuum up" phone traffic, internet traffic, emails, and more without warrant.

In that report, a retired 22-year AT&T technician, Mark Klein, recalls "that the NSA set up a system that vacuumed up Internet and phone-call data from ordinary Americans with the cooperation of AT&T" and that "contrary to the government's depiction of its surveillance program as aimed at overseas terrorists . . . much of the data sent through AT&T to the NSA was purely domestic."

The alleged interception took place at a shadowy site dubbed "Room 641a" at an AT&T facility in San Francisco, California.  The room allegedly used splitters to duplicate and record every single communication for the region over fiber optic lines.  The facility was reportedly just one of multiple such facilities across the country.  Mr. Klein said he believed that virtually every major telecom/internet service provider was involved in the scheme and that virtually every form of digital communication was being recorded, based on his own first-hand experience.

But ultimately the sweeping surveillance project would remain largely secret for the next decade until Mr. Hendricks' document score.

(AT&T refused to comment on the effort in detail.)

IV. Obama Administration -- Sacrificing Due Process is Worth it to Keep Drugs Off the Streets

Now out in the open, current President Barack Obama's administration is defending the effort, while acknowledging that its scope is unusually broad.  The Obama administration says that citizens should not be alarmed as AT&T -- not the government -- is storing the records that the government occasionally peruses.

The program highlights the use of "administrative subpoenas" -- subpoenas not from a judge or grand jury, but from a law enforcement agency.  While these kind of subpoenas -- orders to hand over records or face prosecution -- are secret and warrantless, the Obama administration insists that there's no harm in eliminating American's Constitutional right to due process, as long as it safeguards the nation against "criminals".

DEA Police Raid
Obama's DOJ says there's no harm in throwing away Constitutional freedoms to take the kinds drugs that President Obama used to use off the streets. [Image Source: AP]

Comments U.S. Department of Justice (DOJ) spokesperson Brian Fallon:

[S]ubpoenaing drug dealers’ phone records is a bread-and-butter tactic in the course of criminal investigations.  [T]he records are maintained at all times by the phone company, not the government, [and Hemisphere] simply streamlines the process of serving the subpoena to the phone company so law enforcement can quickly keep up with drug dealers when they switch phone numbers to try to avoid detection.

(The DOJ is the parent agency of the DEA)

The DEA slide deck defends the program, saying it was crucial in multiple high profile busts.  Among them was a bust of a drug distribution ring in Washington who were using rotating prepaid phones to cover their tracks.  During the bust DEA agents seized 136 kilograms of cocaine (street value of around $10M USD) and $2.2M USD.

While the DEA was responsible for roughly half of requests in its "war on drugs", nearly half of the federal-level requests involved a different kind of "war" -- the U.S. Department of Homeland Security's (DHS) "war on terror".  Past audits have consistently revealed that federal agents often break the law when given such overreaching privileges, but typically face no serious consequences for these illegal actions.

V. Is Privacy the Greatest Cost of the Nation's Eternal "War on Drugs"?

Despite these "successes" in the "war on drugs" Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), warns that the program raised "profound privacy concerns," despite the fact that AT&T was the one storing the searchable data.  Turning the government's line "there's nothing to worry about if you have nothing to hid" back on it, he comments, "I’d speculate that one reason for the secrecy of the program is that it would be very hard to justify it to the public or the courts."

America incarcerates more of its population than any other nation in the world -- nearly 1 percent (~2 million) of the population -- at a projected cost of $80B USD or more [source] in 2010.  Of those incarcerated, 70 percent were imprisoned [source] for non-violent crimes, with nearly half of those serving prison time having lost their liberty due to non-violent drug offenses [source].  One in eight (roughly 1 out of every 800 Americans) are imprisoned for marijuana offenses, according to the U.S. Bureau of Justice Statistics (BJS).

Experts estimate that the U.S. loses almost $50B USD [source] in potential tax revenue by outlawing marijuana -- roughly $2T USD over the forty years of the war on drugs.  Combined with the net cost, that works out to roughly $3T USD -- enough to pay off a significant chunk of the U.S. national debt [source].

But for all the economic losses  in the war on drugs -- as with the "war on terror" -- the greatest loss of all may be the privacy of law abiding Americans.

Sources: DEA via The New York Times, The New York Times

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Fruit of the poison tree
By danjw1 on 9/3/2013 9:28:57 AM , Rating: 3
Every investigation that this started is now "fruit of the poison tree", thus everyone in jail from one of these investigations should be let loose. Between this and NSA sharing data with the DEA, that is a lot of criminals the the federal government is going to have to defend keeping in jail. That is going to end up costing tax payers lots of money.

RE: Fruit of the poison tree
By flatrock on 9/3/2013 10:58:39 AM , Rating: 5
Someone with the proper legal background needs to do a decent report on the legal history surrounding these programs.

To point out a couple issues. The Pen Register Act allows law enforcement to collect such metadata with a court order which is issued in response to law enforcement asserting that the information obtained will likely be relevant to an ongoing criminal investigation. THEY DON"T NEED ANYTHING RESEMBLING PROBABLE CAUSE.

This appears to be the result of the Supreme Court Case Smith v. Maryland in which they determined that the use of a pen register doesn't constitute a search under the Fourth Amendment. They ruled that when you disclosed the information to the phone company you gave up your expectation of privacy.

The requirement for a court order comes from the Electronic Communications Privacy Act back in 1986. I think the Patriot Act may have allowed for Administrative Orders instead of a court order, but it's not really a significant difference the court is legally required to pretty much rubber stamp such requests anyway.

The big issue with the NSA program is that they were collecting all the data regardless of if it was relevant to an investigation. That may not be legal, but considering Smith v. Maryland I think it was reasonable for the government to believe that it was constitutional (as defined by the Supreme Court).

The DEA program is likely both legal and constitutional.

We live in a different world than the way things were in 1986. Such metadata can easily be used with other available data to significantly infringe on people's privacy. I think the Supreme Court needs to take another look at the issues and rule if this is a search or not.

I also think we need to take a close look at updating the Electronic Communications Privacy Act.

I also think that all the people who are surprised by these programs should have been paying a lot closer attention over the last couple decades. The details of the programs are new, but the framework has been there for a long time, and while it may not have been obvious how widespread the use of such data has been, it shouldn't be a surprise unless this is the first time you've shown any interest in electronic privacy.

Even now that it has been getting lots of public attention very few people have a clue about the legal and constitutional framework these programs have been built upon.

If you think the programs as a whole will be ruled illegal, or the Supreme Court will stop them I suspect you are going to be sadly disappointed. They courts may demand some changes, and there will be some incidents where the law wasn't properly followed that they will attempt to address, but that is part or the expected process of gathering intelligence data and working to do so within legal confines.

RE: Fruit of the poison tree
By Jeffk464 on 9/3/2013 12:43:48 PM , Rating: 3
I'm seriously thinking of going back to a house phone and ditching the cell phone. Its the ultimate big brother device.

RE: Fruit of the poison tree
By Samus on 9/3/2013 1:11:46 PM , Rating: 3
Just get VOIP with some small-time SIP provider like OnSIP.

If you are really paranoid, get an offshore VOIP service and use a VPN or proxy to it. But you'll have a delay.

Either way, you can do all the prevention you want, but if you call someone with AT&T, no matter what service you have, the call is being logged.

RE: Fruit of the poison tree
By Jeffk464 on 9/3/2013 8:43:36 PM , Rating: 2
Its as much the location data as the phone calls. Big brother stores everywhere you have been and at what time through your cell phone.

RE: Fruit of the poison tree
By Jeffk464 on 9/3/2013 12:41:20 PM , Rating: 3
DEA, what the F does that have to do with stopping terrorism. The rise of the police state is upon us.

RE: Fruit of the poison tree
By mmatis on 9/4/2013 8:29:52 AM , Rating: 2
Won't cost the taxpayers a penny. This country's "Legal" system is so corrupt that this will be judged acceptable. Or do you think the FedPigs will not take this all the way to the Supremes should any lower court dare rule against them?

"There is a single light of science, and to brighten it anywhere is to brighten it everywhere." -- Isaac Asimov

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