The Electronic Frontier Foundation is accusing the Drug Enforcement Agency of improperly withholding documents in a court case that hopes to reveal details about the government’s controversial surveillance program known as Hemisphere. The EFF, which is suing the DEA as part of a Freedom of Information Act (FOIA) request, is demanding the agency turn over documents that have been withheld or have been highly redacted.
“The DEA has refused to comply with its FOIA obligations to disclose important details about the Hemisphere program. We believe DEA has improperly withheld these records,” said Aaron Mackey, a Frank Stanton legal fellow at the EFF.
Separately, the EFF also said it has uncovered new documents as part of its FOIA lawsuits tied to Hemisphere that it claims illustrate a cavalier attitude by law enforcement over the regular searching of trillions of AT&T phone records.
“We were taken aback by how Hemisphere is being described as a ‘Google on steroids’ or ‘super search engine.’ This makes plain that Hemisphere is being used as a massive surveillance tool. And also illustrates that law enforcement’s use of Hemisphere has become benign to them,” Mackey said.
Hemisphere is a secretive surveillance program that has been used over the past decade by law enforcement. It was first revealed in 2013 by an investigative report by the New York Times. The program allows law enforcement to search trillions of AT&T phone records without a warrant as part of investigations. Hemisphere phone record data reveals incoming and outgoing calls, caller geographic locations and call times. According to an October report by the Daily Beast, the program involves a private-public partnership with AT&T.
The EFF and other civil liberties groups such as the Electronic Privacy Information Center assert Hemisphere violates U.S. citizens’ Fourth and First Amendment protections against unreasonable search and free speech. They maintain it’s too easy for innocent people to get caught in the program’s dragnet.
“Hemisphere allows police to see a person’s associations, shedding light on their personal connections and political and social networks,” wrote Mackey and co-author Dave Maas, investigative researcher with the EFF, in an update to its legal battles last week. “We know that law enforcement officials have subjected Black Lives Matter activists to automated social media monitoring, and subjected attendees at gun shows to surveillance by automated license plate readers. Government officials can easily use Hemisphere in similar ways.”
The DEA did not reply to a request for interview for this story.
The EFF, ACLU, and EPIC have all expressed concerns that Hemisphere is unconstitutionally invasive. EFF and EPIC both have sued the DEA seeking more information on the program, with little success. A second FOIA suit against the California Attorney General by the EFF is currently on hold as the courts wait for the federal court’s decision in the matter of the EFF and the DEA.
Last month the EFF filed a request in federal court demanding the DEA provide records in question as soon as possible. “There are 259 pages of records at issue in this case,” Mackey told Threatpost. “The DEA has withheld more than 100 of those pages in full, and many of the remaining 159 pages are redacted to the point of not having any useful information on them.”
The DEA, according to the EFF, explained it needs to shield the identities of confidential informants. In other instances, the government simply refused to share documents on the grounds doing so would undermine the effectiveness of law enforcement or national security.
But the EFF isn’t buying that excuse entirely. It argues in a nearly identical FIOA suit by EPIC against the DEA the government was inconsistent about what documents were shared with EPIC versus EFF. Mackey said the DEA is treating the EFF and EPIC’s request differently. Out of 161 pages common to both lawsuits, the government claimed more than twice as many legal reasons to withhold pages from the EFF.
“The government has yet to explain why it treated the exact same information so differently in EFF’s and EPIC’s respective FOIA requests. Absent any explanation, the disparate treatment appears highly arbitrary,” Mackey said.
He said the EFF naturally respects the government’s need to claim exemptions. However, “in this case, we have reason to doubt DEA’s claims because of their inconsistencies and the weak legal arguments they have made in support of some of the documents they have withheld,” Mackey said.
