Data Sweeps in Drug Cases Face Challenge
'Hemisphere' Effort Involves AT&T Workers Placed at Narcotics-Intelligence Centers
By Zusha Elinson
Nov. 23, 2013
SAN FRANCISCO--Defense attorneys in a criminal case here accuse the government of using a secretive program to illegally tap into massive amounts of phone-call data, in what could be the first legal test of the antidrug initiative.
The program, called Hemisphere, involves AT&T Inc. employees who are placed at three U.S. narcotics-intelligence centers around the U.S., where they can respond immediately to subpoenas for phone data of suspected drug traffickers, according to a senior law-enforcement official familiar with the program.
Lawyers in a case in U.S. District Court here argue that the program violates Fourth Amendment protections against unreasonable searches. In another case here, the government has disclosed the use of the program, say people familiar with that case.
Beginning with revelations about National Security Agency surveillance this past summer, the government has come under scrutiny for the ways it secretly looks into phone records and Internet communications. The NSA isn't involved in the Hemisphere program.
Obama administration officials say Hemisphere, first described by the New York Times in September, simply speeds up traditional methods for authorities to obtain phone records.
Rafael Lemaitre, spokesman for the White House Office of National Drug Control Policy, said the program "entails seeking court orders or subpoenas for a suspect's phone records, which is an ordinary, bread-and-butter tactic" in criminal investigations.
"Hemisphere simply streamlines law enforcement's process of serving the subpoenas to the phone company so law enforcement can quickly keep up with suspects when they switch phone numbers to try to avoid detection," Mr. Lemaitre said.
In a criminal proceeding involving South San Francisco gang members charged with a triple murder and other offenses, the defense received documents under the discovery process that identify Hemisphere and involve phone records from AT&T, said people familiar with the case who spoke on the condition of anonymity because the documents have yet to be disclosed publicly. Defense lawyers are now seeking to suppress wiretap evidence in the case.
A spokeswoman for the U.S. attorney's office for the Northern District of California, which is handling the case, declined to comment.
In a separate cocaine- and methamphetamine-trafficking case, defense lawyers want to know how investigators obtained information on 700,000 phone calls and more than 100,000 points of location data.
In that case, the defense lawyers say they believe the government investigation was aided by Hemisphere or other surveillance programs, and that the government failed to disclose that information. They said in court filings that investigators displayed an "uncanny ability" to find new phone numbers as suspects repeatedly changed theirs, and that government affidavits say only that the numbers were obtained through "sources of information" and "common calling patterns."
"The overwhelming majority of the call data obtained by the government in this case cannot be tracked to a valid court order, subpoena or warrant that would permit the government to obtain it," defense attorneys wrote in a motion to compel the government to disclose the sources of its electronic surveillance.
Federal prosecutors said in a court filing earlier this month in the drug case that the defense's assumption that investigators "must have used the 'alleged programs' is entirely speculative."
They argued that "even if such programs were used, no Fourth Amendment protections would have been implicated," in part because the "defendant likely lacks standing to raise such a challenge," since the phones at issue were subscribed to under false names such as "James Bond."
The prosecutors said that some of the phone records were obtained with so-called pen-trap orders on suspects' phones, which allow investigators to capture numbers that are entered or received. The others were obtained from Drug Enforcement Administration "administrative subpoenas" to phone companies.
Attorneys from the American Civil Liberties Union and the Electronic Frontier Foundation, a digital-privacy advocacy group, have filed a friend-of-the-court brief on behalf of the defense in the drug-trafficking case.
The two groups argue that Hemisphere violates Fourth Amendment protections against unreasonable search and seizure by sweeping up and analyzing phone-call data of individuals who aren't criminal suspects. They say the database searches raise constitutional concerns because the AT&T employees work so closely with the government.
The groups say in the filing that it would be the first opportunity they are aware of for the "judiciary to assess the constitutionality of Hemisphere."
Mark Siegel, a spokesman for AT&T, said, "While we cannot comment on any particular matter, we, like all other companies, must respond to valid subpoenas issued by law enforcement."
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