Privacy SOS

Drug war agency collected billions of US call records without any court oversight—and your local cops can get your records, too

In just the latest evidence that the drug war is the primary driver of the surveillance state in the US, we've recently learned that the nation's federal law enforcement agency tasked with fighting the war on drugs was sucking up billions of records of our communications long before the NSA started doing it.

USA Today reports:

The U.S. government started keeping secret records of Americans' international telephone calls nearly a decade before the Sept. 11 terrorist attacks, harvesting billions of calls in a program that provided a blueprint for the far broader National Security Agency surveillance that followed.

For more than two decades, the Justice Department and the Drug Enforcement Administration amassed logs of virtually all telephone calls from the USA to as many as 116 countries linked to drug trafficking, current and former officials involved with the operation said. The targeted countries changed over time but included Canada, Mexico and most of Central and South America.

The DEA used "administrative subpoenas" to obtain the records in bulk. As USA Today reports, "Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge's approval." Since the subpoena regime does not require any external oversight or approval, law enforcement agencies can file as many as they want, demanding whatever they want, without any fear that a judge or surveillance target will challenge the legality of the search. (Heath reports that when phone companies tried to buck the DEA's outrageous demands, the Department of Justice leaned on them until they relented.)

Today across the United States, state and local prosecutors also use administrative subpoenas to obtain our call records, banking and credit records, and IP addresses, among other things, all without any judicial oversight. Here in Massachusetts, local prosecutors used an administrative subpoena to force Twitter to reveal the identity of a user who criticized the police—despite the fact that the Twitter user had not violated any state law.

Under US surveillance law, the content of communications is generally (although not always) protected by a probable cause warrant requirement. In other words, law enforcement must show a judge probable cause that you're involved in criminal activity before getting a warrant allowing them to search your closet or Gmail inbox. But the information Gmail collects about who you contact, where you go, and what kinds of websites you visit, among other details, are generally not protected by the gold standard of American justice, the warrant.

For these details about our lives, cops generally only need a prosecutor to write them a subpoena. As the DEA and NSA surveillance scandals show, that's incredibly dangerous when taken to its extreme conclusion. But even one inappropriate search using a subpoena is one too many, in part because today, metadata is just as valuable as content.

A decade and a half into the 21st century, it's becoming clear as day that the distinction in the law between metadata—information about our communications and activities—and content isn't useful or tenable. Michael Hayden famously said, "We kill people based on metadata." Big data collection and powerful algorithms make possible a kind of total information awareness surveillance we never before thought possible. And in most circumstances, cops can get their hands on all the information they need to produce extremely revealing insights about ordinary people without even going to a judge.

It's time for legislatures and courts to recognize that the distinction between metadata and content is dying out with the landline phone, and change the law to protect our privacy accordingly. The DEA's collection of billions of our phone records is extreme, but in the sense that a law enforcement agency used subpoena power to obtain private records without any court approval, it's extremely common.

Live in Massachusetts? Take action to modernize electronic privacy law.

© 2021 ACLU of Massachusetts.