In Neal Stephenson's brilliant Cryptonomicon, a protagonist works for a shadowy Allied unit called "Detachment 2702." Detachment 2702 creates elaborate fake evidence to offer explanations of how the Allies learned of German movements, thus concealing that the Allies had cracked the Enigma code. Though fictional, the Detachment is based on actual World War II tactics. The Allies did things like send spotter planes to places they knew German ships would be to fortuitously "spot" them, and reportedly sent a fake radio message of congratulations to a non-existent spy to suggest a source for other intelligence.
You expect the government to use secret surveillance and disinformation campaigns against a wartime enemy. You probably don't expect the government to use secret surveillance and disinformation campaigns in court against its own citizens.
This week a crack legal team from the Electronic Frontier Foundation sued the Drug Enforcement Administration over the "Mass Surveillance Program," which the complaint describes like this:
23. The Program consists of Defendants’ bulk collection, retention, search, use, and dissemination of call records for all, or substantially all, telephone calls originating in the United States and terminating in the Designated Countries. The Mass Surveillance Program maintains information about millions of calls made by Americans, including Plaintiff HRW.
24. The information collected as part of the Mass Surveillance Program includes: the initiating telephone number; the receiving telephone number; the date, time, and duration of call; and the method by which the call was billed.
This isn't new. In 2013 Reuters broke a story about the DEA's practices. Reuters showed that the DEA was not only maintaining a massive database of call metadata; it had a unit devoted to creating and directing disinformation about the database even as it was used to generate leads in domestic criminal matters. The DEA's Special Operations Division shared database information with criminal investigators and instructed them to conceal the source of the information:
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
. . .
But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.
A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.
In other words, Special Operations Division would give criminal investigators information and they would then create a separate path to the same information — just like Detachment 2702. It works, in part, because the Supreme Court has allowed the government to conceal its actual reasons for doing things if it can articulate some post-hoc acceptable reason. For instance, the Court helpfully ruled that law enforcement's subjective reasons for pulling over a car don't matter so long as they can articulate some objective basis for the stop, like a traffic violation — even though the traffic violation is only a pretext.
Why is a 2013 revelation hitting the courts — and the news — again in 2015? In part it's because of the prosecution of Shantia Hassanshahi, who is being prosecuted in federal court in Washington D.C. for prohibited trading with Iran. Hassanshahi suspected — correctly — that the genesis of his case was a secret government database. He moved to suppress the evidence against him, arguing that the feds only knew to investigate him because they found metadata of calls from his number to Iran in an illegally collected and maintained database.
The feds, naturally, opposed the motion. They asserted that the database in question was perfectly constitutional, for reasons they weren't going to go into right now. This is what I have previously called the Canadian Girlfriend school of legal argumentation. Rather than describe and defend the database, the feds said that even if the database is unconstitutional, here they developed alternative leads and sources to investigate Hassanshahi and it is those leads that led to his indictment. In other words, they argued exactly what Reuters determined that feds were trained to argue.
The judge denied the motion, agreeing that the feds had shown that the eventual search of Hassanshahi's computer was sufficiently attenuated from the database search. Put another way, the court bought that the feds could recreate, and had recreated, a sufficiently different path to the evidence. But the judge showed some admirable independence and dropped a footnote:
The Government’s silence regarding the nature of the law enforcement database has made the Court’s analysis more complex than it should be. Although the Court still concludes that the attenuation exception applies in large part based on the “unlawful lead” line of cases, the Court will order that the Government provide the Court with an ex parte declaration summarizing the contours of the mysterious law enforcement database used by HSI, including any limitations on how and when the database may be used.
The government complied with a brief response talking about the secrecy of the information and a declaration from a DEA agent confirming the basics: there is a DEA database of metadata amassed through administrative subpoenas to providers:
This database [REDACTED] consisted of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876. This metadata related to international telephone calls originating in the United States and calling_ designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities. This metadata consisted exclusively of the initiating telephone number; the receiving telephone number; the date, time, and duration of the call ; and the method by which the call was billed. No subscriber infonnation or other personal identifying information was included in this database. No communication content was included in this database.
Note how this works. The DEA got the data via subpoena — but not via subpoena about any particular case, suspect, or evidence. Rather, the DEA built up the database with general administrative subpoenas for phone data, then delved into it later as they pleased.
The agent's declaration also disclosed that the DEA shut down the database in 2013 — after the Reuters story broke, in other words.
The EFF's suit might force the government to articulate why it thinks it is allowed to use administrative subpoenas to amass vast databases of our metadata without any specific suspicion or need. I think that if the government thought it had a particularly great argument, they wouldn't have closed the program in 2013. But the EFF's case won't force them to justify lying to criminal defendants and their counsel and engaging in deliberate disinformation about the source of evidence. Hassanshahi was able to have a judge evaluate his Fourth Amendment claim because his attorneys suspected — correctly — that the source of his case was a query of calls to Iran. But in many run-of-the-mill cases, there may be no indication that the database was the impetus of the case. As the Reuters investigation found:
One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.
"I was pissed," the prosecutor said. "Lying about where the information came from is a bad start if you're trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court." The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.
A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.
Why do I need to know if the feds are lying about how they came to suspect my client? Many reasons. First, I can't pursue my client's Fourth Amendment claims about the database if I don't know it's involved. Second, I won't know to investigate the calls and numbers in question, which might lead to all sorts of helpful information. Third, my entire grasp of the facts and players will be distorted by the false trail, which may fundamentally alter my defense tactics. Finally, the program normalizes lying, and I can expect to see more lies.
What should you take away from this?
1. Your government is watching you in ways you may not suspect.
2. Your government lies to you — both generally, and in specific instances (like criminal prosecutions) where it has the greatest duty to be truthful.
3. The government tells you that aggressive surveillance is necessary to protect you from terrorists, but uses the surveillance data to prosecute domestic crimes, and lies about the surveillance.
4. The War on Drugs means never having to say you are sorry.
Last 5 posts by Ken White
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