Here We Go Again: Another Secret Government Program Chips Away at the Fourth Amendment

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

Thanks to Edward Snowden, Americans learned that the National Security Administration was storing call records from the major phone networks to help fight the war on terrorism. Just three months after the NSA information was leaked, Americans learned of yet another government program after a PowerPoint about the program was leaked. This program, entitled “Hemisphere,” focuses on recording and searching domestic conversations between American citizens in order to help fight the war on drugs.

The Hemisphere database is even more extensive than the one used by the NSA and is yet another example of how the government is chipping away at the rights guaranteed by the Fourth Amendment.

Hemisphere

Unlike the NSA program, Hemisphere utilizes data that is stored by AT&T and has call records for every conversation made to or from an AT&T phone. Further, Hemisphere’s database contains call detail records (“CDRs”) going back twenty-six years, while the NSA program only contains records going back five years.[1] The CDRs gathered through Hemisphere contain a range of detailed information, including the numbers involved in the call, the date and time of the call, the length of the call, the billing telephone charged for the call, the call type (voice, SMS),  the route of the call, and the location of the callers.[2]

The Hemisphere program is funded by both the Office of National Drug Control Policy and the Drug Enforcement Administration and has been in use for six years. In essence, the government pays AT&T to keep and store the records. Further, the government pays AT&T employees to sit alongside DEA agents and local detectives so they can quickly provide them with any phone records. The database is more extensive than the NSA program and over 4 billion CDRs are added every day.[3]

The main goal of Hemisphere is to hunt down drug traffickers that utilize burner phones in order to avoid detection.[4] If requested by the DEA, the program searches through call records to find replacement burner phone numbers. The PowerPoint states that “by systematically grading the common calls report and scrutinizing the date ranges, candidates for the replacement phone are ranked by probability.[5]

Although the program is technically unclassified, it has been shrouded in secrecy. Of the 27 pages in the leaked PowerPoint, five pages discuss how to keep the program secret, instructing anyone requesting records through the program to “never refer to Hemisphere in any official document,” and to take “steps to try and keep the program under the radar.”[6] Most alarming, the agents who use the program are trained to “recreate” the investigative trail to effectively cover up and prevent the public, prosecutors, and judges from discovering the use of Hemisphere in an investigation.[7]

The process of searching the Hemisphere database is simple. If a DEA agent wants to access the phone records, all he or she has to do is fill out an administrative subpoena to give to the embedded AT&T employee. From there, the employee searches through the database and pulls the requested records or reports. The whole process takes less than an hour. [8]

Fourth Amendment Concerns/Administrative Subpoenas

The Obama administration has acknowledged the existence of the program but argues that it poses no new privacy issues. In support, the administration points to the fact that (1) records are kept and stored by AT&T, and (2) that a subpoena is needed in order to gain access to the records.[9] However, the administration’s argument is quite misleading.

First, although AT&T stores the records, the administration’s joint participation with AT&T to store records and embed AT&T employees alongside the DEA personnel raises serious state action concerns.[10] The Supreme Court’s decision in Lugar v. Edmondson Oil made it clear that “a private party’s joint participation with the [government] in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’.”[11] More state action concerns arise because AT&T has no independent motive for the seizing, searching, and prolonged storing of CDRs. Instead, the administration incentivizes AT&T by paying for its compliance. [12] Because AT&T is a joint participant in the program, the administration’s argument – that no new privacy issues are implicated because AT&T is storing the data – is inaccurate.

Second, law enforcement can gain access to Hemisphere’s database using only an administrative subpoena.  The use of administrative subpoenas in criminal investigations bypasses the Fourth Amendment’s probable cause requirement – a requirement that protects the privacy rights of both criminal suspects and innocent persons.[13] Traditionally, law enforcement agencies have to obtain a search warrant or a grand jury subpoena in order to obtain private information from a third party.[14] With both a search warrant and a grand jury subpoena, there is an independent review process.[15] But, in the case of administrative subpoenas, a single federal officer need only sign a single piece of paper that lists the information requested.[16] Despite reports from the Justice Department’s Inspector General that administrative subpoena power has been routinely abused, hundreds of thousands of them are issued annually.[17]

The standard for issuing an administrative subpoena is easy to satisfy and only requires that “the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant [to the investigation].”[18] To ensure that law enforcement agencies comply with the lax “reasonableness” standard, the third party that is served the subpoena can challenge the subpoena and have it reviewed by a court.[19] In practice, however, there is no incentive for the subpoenaed third party to challenge the administrative subpoena. First, the third party would face a high burden of proof and would incur substantial litigation costs.[20] Second, there are no consequences for a third party that complies with an unreasonable subpoena. In the particular case of Hemisphere, considering that AT&T is working alongside the DEA and the government is paying for both the embedded employees and the program itself, it would be even less likely that AT&T would challenge unreasonable subpoenas. Therefore, there is no practical safeguard to protect Americans’ call records from unreasonable searches.

Sacrificing Privacy to Fight the War on Drugs

The bigger question is whether catching more drug dealers using Hemisphere justifies the erosion of Fourth Amendment freedoms. The government’s NSA program was justified in part by focusing on foreign targets for national security purposes. By doing so, the government could prevent the death of its citizens, at home or abroad, from potential terrorist attacks. In the case of the Hemisphere program, the focus is on American citizens in an effort to fight the infamous war on drugs.

The war on drugs has already led to new interpretations of the Fourth Amendment that stretch the limits of the Constitution.[21] Forty-two years and over one trillion dollars later, the United States is no closer to winning the war on drugs.  Changes in penalties and law enforcement tactics have not had a significant effect on drug use,[22] and the multi-million dollar Hemisphere project has not changed the outcome during the six years it has been active.[23] Hemisphere has only succeeded at eroding Fourth Amendment protections while bloating the federal budget.

Conclusion

The Hemisphere program is yet another governmental overreach that infringes on citizens’ Fourth Amendment freedoms. By allowing the warrantless search of CDRs, the DEA is able to search the private data of citizens without a practical form of judicial review. By doing so, the DEA can glean sensitive information, such as whether someone has called the domestic violence or suicide hotline, who are the person’s closest associates, and where the person was located during their conversation. Although searching CDRs may be compelling for national security purposes, Hemisphere’s use of the information in the war on drugs is neither compelling nor effective enough to justify its constitutional shortcomings.


[1]Scott Shane & Colin Moynihan, Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s, The New York Times (Sept. 1, 2013), http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html?_r=0.

[2] Johanna Zmud, Martin Lee-Gosselin, Marcella Munizaga, & Juan Antonio Carrasco, Transportation Survey Methods: Best Practice for Decision Making 760 (2013).

[3] Shane & Moynihan, supra note 1.

[4] Jason Mick, DEA and AT&T: Storing Your Phone Calls, 4 Billion Per Day Since 2007, Daily Tech (Sept. 3, 2013, 8:08 AM), http://www.dailytech.com/DEA+and+ATT+Storing+Your+Phone+Calls+4+Billion+Per+Day+Since+2007/article33290.htm.

[5] Synopsis of the Hemisphere Project, The New York Times (Sept. 1, 2013), http://www.nytimes.com/interactive/2013/09/02/us/hemisphere-project.html, at 7.

[6] Id. at 8-12.

[7]John Shiffman & Kristina Cooke, Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans, Reuters (Aug. 5, 2013, 3:25 PM), http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.

[8] Synopsis of Hemisphere Project, supra note 5, at 3, 11.

[9] See id.; See Amy Lazenby, Lazenby on Hemisphere, Fits News (Sept. 33, 2013, 7:38 AM), http://www.fitsnews.com/2013/09/03/lazenby-on-hemisphere/.

[10]See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941 (1982).

[11] Id. (emphasis added).

[12] See Greco v. Halliburton Co., 674 F.Supp. 1447 (D.Wyo. 1987)(Although a government regulation compelled the company to conduct urinalysis testing on its employees, the compulsion was not state conduct because the company had a private motive “to help provide for the safety and security of employees and others affected by the Company’s operation.”).

[13] Risa Berkower, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 Fordham L. Rev. 2251, 2252-253 (2005).

[14] Id. at 2251, 2254.

[15] See id. at 2255, 2557.

[16] David Kravets, We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena, Wired (Aug. 28, 2012, 6:00 AM), http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/.

[17] Id.

[18] Berkower, supra note 13, at 2260.

[19] Id. at 2262.

[20] Id. at 2275.

[21] Paul Finkelman, The Second Casualty of War: Civil Liberties and the War on Drugs, 66 S. Cal. L. Rev. 1389, 1410 (1993).

[22] Charles H. Whitebread, Freeing Ourselves from the Prohibition Idea in the Twenty-First Century, 33 Suffolk U. L. Rev. 235, 246-48 (2000).

[23] Serena Dai, Spending Money on the Drug War Really Isn’t Lowering Drug Use, The Atlantic Wire (Oct. 24, 2012), http://www.theatlanticwire.com/national/2012/10/spending-money-drug-war-really-isnt-lowering-drug-use/58322/.

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One response to “Here We Go Again: Another Secret Government Program Chips Away at the Fourth Amendment

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