Pubdate: Mon, 02 Sep 2013
Source: New York Times (NY)
Copyright: 2013 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Authors: Scott Shane and Colin Moynihan
Related: Synopsis of the Hemisphere Project 
http://www.nytimes.com/interactive/2013/09/02/us/hemisphere-project.html

DRUG AGENTS USE VAST PHONE TROVE, ECLIPSING N.S.A.'S

For at least six years, law enforcement officials working on a 
counternarcotics program have had routine access, using subpoenas, to 
an enormous AT&T database that contains the records of decades of 
Americans' phone calls - parallel to but covering a far longer time 
than the National Security Agency's hotly disputed collection of 
phone call logs.

The Hemisphere Project, a partnership between federal and local drug 
officials and AT&T that has not previously been reported, involves an 
extremely close association between the government and the 
telecommunications giant.

The government pays AT&T to place its employees in drug-fighting 
units around the country. Those employees sit alongside Drug 
Enforcement Administration agents and local detectives and supply 
them with the phone data from as far back as 1987.

The project comes to light at a time of vigorous public debate over 
the proper limits on government surveillance and on the relationship 
between government agencies and communications companies. It offers 
the most significant look to date at the use of such large-scale data 
for law enforcement, rather than for national security.

The scale and longevity of the data storage appears to be unmatched 
by other government programs, including the N.S.A.'s gathering of 
phone call logs under the Patriot Act. The N.S.A. stores the data for 
nearly all calls in the United States, including phone numbers and 
time and duration of calls, for five years.

Hemisphere covers every call that passes through an AT&T switch - not 
just those made by AT&T customers - and includes calls dating back 26 
years, according to Hemisphere training slides bearing the logo of 
the White House Office of National Drug Control Policy. Some four 
billion call records are added to the database every day, the slides 
say; technical specialists say a single call may generate more than 
one record. Unlike the N.S.A. data, the Hemisphere data includes 
information on the locations of callers.

The slides were given to The New York Times by Drew Hendricks, a 
peace activist in Port Hadlock, Wash. He said he had received the 
PowerPoint presentation, which is unclassified but marked "Law 
enforcement sensitive," in response to a series of public information 
requests to West Coast police agencies.

The program was started in 2007, according to the slides, and has 
been carried out in great secrecy.

"All requestors are instructed to never refer to Hemisphere in any 
official document," one slide says. A search of the Nexis database 
found no reference to the program in news reports or Congressional hearings.

The Obama administration acknowledged the extraordinary scale of the 
Hemisphere database and the unusual embedding of AT&T employees in 
government drug units in three states.

But they said the project, which has proved especially useful in 
finding criminals who discard cellphones frequently to thwart 
government tracking, employed routine investigative procedures used 
in criminal cases for decades and posed no novel privacy issues.

Crucially, they said, the phone data is stored by AT&T, and not by 
the government as in the N.S.A. program. It is queried for phone 
numbers of interest mainly using what are called "administrative 
subpoenas," those issued not by a grand jury or a judge but by a 
federal agency, in this case the D.E.A.

Brian Fallon, a Justice Department spokesman, said in a statement 
that "subpoenaing drug dealers' phone records is a bread-and-butter 
tactic in the course of criminal investigations."

Mr. Fallon said that "the records are maintained at all times by the 
phone company, not the government," and that Hemisphere "simply 
streamlines the process of serving the subpoena to the phone company 
so law enforcement can quickly keep up with drug dealers when they 
switch phone numbers to try to avoid detection."

He said that the program was paid for by the D.E.A. and the White 
House drug policy office but that the cost was not immediately available.

Officials said four AT&T employees are now working in what is called 
the High Intensity Drug Trafficking Area program, which brings 
together D.E.A. and local investigators - two in the program's 
Atlanta office and one each in Houston and Los Angeles.

Daniel C. Richman, a law professor at Columbia, said he sympathized 
with the government's argument that it needs such voluminous data to 
catch criminals in the era of disposable cellphones.

"Is this a massive change in the way the government operates? No," 
said Mr. Richman, who worked as a federal drug prosecutor in 
Manhattan in the early 1990s. "Actually you could say that it's a 
desperate effort by the government to catch up."

But Mr. Richman said the program at least touched on an unresolved 
Fourth Amendment question: whether mere government possession of huge 
amounts of private data, rather than its actual use, may trespass on 
the amendment's requirement that searches be "reasonable." Even 
though the data resides with AT&T, the deep interest and involvement 
of the government in its storage may raise constitutional issues, he said.

Jameel Jaffer, deputy legal director of the American Civil Liberties 
Union, said the 27-slide PowerPoint presentation, evidently updated 
this year to train AT&T employees for the program, "certainly raises 
profound privacy concerns."

"I'd speculate that one reason for the secrecy of the program is that 
it would be very hard to justify it to the public or the courts," he said.

Mr. Jaffer said that while the database remained in AT&T's 
possession, "the integration of government agents into the process 
means there are serious Fourth Amendment concerns."

Mr. Hendricks filed the public records requests while assisting other 
activists who have filed a federal lawsuit saying that a civilian 
intelligence analyst at an Army base near Tacoma infiltrated and 
spied on antiwar groups. (Federal officials confirmed that the slides 
are authentic.)

Mark A. Siegel, a spokesman for AT&T, declined to answer more than a 
dozen detailed questions, including ones about what percentage of 
phone calls made in the United States were covered by Hemisphere, the 
size of the Hemisphere database, whether the AT&T employees working 
on Hemisphere had security clearances and whether the company has 
conducted any legal review of the program

"While we cannot comment on any particular matter, we, like all other 
companies, must respond to valid subpoenas issued by law 
enforcement," Mr. Siegel wrote in an e-mail.

Representatives from Verizon, Sprint and T-Mobile all declined to 
comment on Sunday in response to questions about whether their 
companies were aware of Hemisphere or participated in that program or 
similar ones. A federal law enforcement official said that the 
Hemisphere Project was "singular" and that he knew of no comparable 
program involving other phone companies.

The PowerPoint slides outline several "success stories" highlighting 
the program's achievements and showing that it is used in 
investigating a range of crimes, not just drug violations. The slides 
emphasize the program's value in tracing suspects who use replacement 
phones, sometimes called "burner" phones, who switch phone numbers or 
who are otherwise difficult to locate or identify.

In March 2013, for instance, Hemisphere found the new phone number 
and location of a man who impersonated a general at a San Diego Navy 
base and then ran over a Navy intelligence agent. A month earlier the 
program helped catch a South Carolina woman who had made a series of 
bomb threats.

And in Seattle in 2011, the document says, Hemisphere tracked drug 
dealers who were rotating prepaid phones, leading to the seizure of 
136 kilos of cocaine and $2.2 million.
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MAP posted-by: Jay Bergstrom