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Why We Sued the DEA: Mass Surveillance Still Illegal

DEEPLINKS BLOG
April 8, 2015

We've filed a new lawsuit against the Drug Enforcement Administration (DEA) on behalf our client, Human Rights Watch (HRW), to challenge the DEA’s untargeted collection of billions of international calling records over the course of more than two decades. You may have seen a wonderfully detailed piece of reporting on the program published yesterday by Brad Heath of USA Today. We’ve been working on a lawsuit since the program was initially disclosed to the public in January, and we’re grateful for the renewed attention USA Today’s article brought to the program and the DEA’s mass surveillance program.

Now it’s time to end the program, and bulk surveillance, once and for all.

As we learned from the initial reporting on the program, the DEA used a twisted interpretation of an administrative subpoena statute to collect—en masse—the telephone calling records for massive numbers of calls between the United States and certain foreign countries. What’s more, beginning in the 1990s, the DEA operated the program for decades, completely without court oversight.

USA Today’s report provided even more detail. The article reported that the program began in 1992 and wasn’t limited to calls between the United States and a small number of drug trafficking hotspots. Indeed, we learned yesterday that the list of countries to which Americans’ call data was swept up eventually totaled as many as 116—more than half the nations of the world. Further, that list included not just Iran (as the DEA admitted in a court filing last year) but Italy, Mexico, and even Canada. And as Stewart Baker, the NSA’s former General Counsel admitted in the article, DEA’s database served as a “precursor” for the NSA’s even larger post-9/11 mass collection programs.

Previously, we had seen the DEA’s declaration under oath that the program had been “suspended” as of September 2013, and that the database was “no longer being queried for investigative purposes” (emphasis added).  We’d also seen a Department of Justice official quoted as having said that the information collected had been deleted. But we noted that DEA’s statement under oath contains no such assurance, and indeed the term “suspended” leaves wide open the possibility that collection will resume at any time. And in fact, we learned from USA Today that the DEA asked the Department of Justice for permission to do just that in December 2013.

The disparity between the DEA’s under oath statement—that its collection had been “suspended” and that the resulting database would not be accessed “for investigative purposes”—and the officials’ out-of-court statements—that the program had ended and the data deleted—illustrates the need for this lawsuit. Too often, the government’s public claims about a program’s scope or its status don’t hold up under scrutiny. This lawsuit will ensure that the program is actually terminated—and that it can’t be started again.  It’s also one thing to say that a database has been deleted, but data migrates, especially in law enforcement’s hands. We know that agencies other than the DEA—such as the Department of Homeland Security—had access to the data collected under the program and that they used it for purposes entirely unrelated to the war on drugs. Our lawsuit seeks to root out the data illegally collected by the DEA, wherever that data has gone, and ensure its permanent deletion.

In the end, it doesn’t matter if the agency doing the bulk collection is the DEA, the FBI, or the NSA; and it doesn’t matter if the information collected is the content of communications or metadata—bulk collection of Americans’ records is unconstitutional. And we hope this lawsuit will put an end to the practice, once and for all.  

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