The revelation of the DEA metadata program

On January 15, 2015 in United States v. Hassanshahi, Criminal No.: 13-274 (RC) (D.D.C.), the government revealed that starting in 1992, the United States Justice Department and Drug Enforcement Agency (DEA) had amassed metadata on all telephone calls from the United States to as many as 116 of the 195 countries recognized by the US. The records had been obtained by the DEA without prior judicial approval through administrative subpoenas on telecommunications companies, and the DEA had linked the records to call records acquired outside the United States and to investigative reports from the DEA, FBI, and Customs Service. The DEA program was the model for the NSA’s bulk telephony metadata program, but while agents reportedly searched the NSA database 300 times in 2012, as many searches of the DEA database were routinely made in a single day.

See the April 8, 2015 entry in Adina Schwartz and Aidan Booth, “International Chronicle of Surveillance Events -2015,” for discussion of and links to news reports on the DEA program.

On April 7, 2015, the Electronic Frontier Foundation (“EFF”) filed an action on behalf of Human Rights Watch (“HRW”) seeking a declaration that the collection, retention, search, use and dissemination of its international call records under the DEA’s bulk telephony metadata program had violated its rights under the First and Fourth Amendments. Human Rights Watch v. DEA, et al., Case No.:2-15-cv-2573 (C.D. Cal. filed Apr. 7, 2015). Despite the DEA’s claim that it had terminated its bulk telephony metadata program in September 2013, HRW sought a permanent injunction against the operation of the program and an order that all records of its calls collected under the program be purged from all government systems.

On August 14, 2015, federal district judge Philip S. Gutierrez issued an Order in response to the government’s motion to dismiss the complaint in Human Rights Watch v. DEA for lack of standing and the plaintiff’s motion for expedited discovery. The Court reasoned that the retention of HRW’s metadata in the DEA’s database “is the only Government conduct available to support HRW’s argument that the Government is injuring it such that HRW has standing to bring its Fourth and First Amendment claims.” At p.10. The judge recognized that this claim to standing was called into severe doubt by the assertion, in a Declaration accompanying the government’s motion to dismiss, that the DEA had purged all metadata from its database and abolished the database before HRW filed its complaint. Nonetheless, the Court granted discovery to HRW for the purpose of establishing standing, limited to no more than five interrogatories dealing solely with whether (i) the metadata that the DEA had collected was currently contained in databases other than the one that the DEA had purged and (ii) the metadata was currently held by the government in derivative forms. Pending discovery, the government’s motion to dismiss was held in abeyance.

 

Leave a Reply