The Human Rights Watch challenge to the DEA metadata program

Human Rights Watch v. DEA, et al., Case No.:2-15-cv-2573 (C.D. Cal. filed Apr. 7, 2015)

This action brought by the Electronic Frontier Foundation on behalf of Human Rights Watch (“HRW”) sought a declaration that the collection, retention, search, use and dissemination of HRW’s international call records under the DEA’s bulk telephony metadata program violated its rights under the First and Fourth Amendments. 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 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 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.

Based on the government’s disclosures that the DEA was  not used for investigatory purposes after August 2013 and was deleted by January 2015, HRW voluntarily dismissed the lawsuit on December 14, 2015. From the government’s discovery responses (available here and here), HRW and EFF had also learned that the DEA’s database was the only government database used to stored the records the DEA collected of Americans’ overseas phone calls. The database was searched only on “reasonable articulable suspicion” that a particular number was related to an ongoing criminal investigation, and records were automatically deleted after they were held for two years.

Despite the deletion of the DEA’s bulk database, the government admittedly retains records obtained in response to database queries. Further, the DEA’s policy, during the program’s operation, of destroying reports of queries of the bulk database is likely to prevent criminal defendants from learning that the database was used to generate evidence against them. Although the DEA no longer engages in bulk collection of domestic calls overseas, it may still be operating a bulk database of purely overseas calls.



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