Should law enforcement have the right to buy personal metadata for cases not involving national security?
AT&T’s Unprecedented data privacy breach
Project Hemisphere is a for-profit mass surveillance program created by AT&T for the purpose of collecting phone metadata such as phone calls, Skype calls, and text messages. These are then packaged into leads to sell to law enforcement agencies including the Drug Enforcement Agency (DEA). Information is obtained and used with an administrative subpoena, but without a search warrant.
Does this data privacy issue impact only AT&T customers? Unfortunately, no, you cannot breathe a sigh of relief if you are with a different carrier. Records include those made to or from AT&T network plus any that touched an AT&T switch. To put it in perspective, approximately 75% of the switches in the United States belong to AT&T so it’s likely that your personal number has been collected, stored and possibly analyzed.
Wait… what? How?
The data mining under the mantle of Project Hemisphere was first reported by The New York Times in 2013, yet is relatively unknown to most people. Interestingly, it collects information on a greater scale than its better known cousin, the NSA’s phone log collection, revealed by Edward Snowden. However, many of the program details remain scant, including program safeguards to protect the privacy of individual citizens.
What is known is that the program has an extraordinary scale and employs an unusual tactic. Embedded AT&T employees work in government drug units, such as the DEA, to track drug dealers who typically discard cell phones to avoid detection by law enforcement. From there, the phone data is stored by AT&T, not by the government and it is queried for phone numbers of interest through an administrative subpoena. The DEA has the power to issue “administrative subpoenas” without involvement of a court, which reduces oversight protections of a grand jury or judge.
That data is then reverse engineered to discover potential criminal acts which would otherwise be difficult to detect. The information obtained by the DEA is used to catch drug dealers, helping agents do their regular job faster. Law enforcement defends the program, claiming it is not attempting to listen to the content of calls, but rather collecting “metadata” showing locations, numbers called and call length. DEA agents point out that surveillance conducted in this fashion helps catch drug dealers who may be using so called “burner phones” to evade capture.
Your 4th Amendment rights and data privacy
Legal scholars have wrestled with how changes in technology over time affect our constitutional rights against illegal search and seizure.
Policing was once reactive; it’s the idea of catching a criminal after he or she committed an illegal act to bring justice. However, modern technology allows the focus to be more proactive; stopping dealers from distributing the illegal drugs, preventing them from distributing the drugs on a larger scale or catching criminals who distributed drugs, but who are otherwise undetected.
The question that most often is debated is how much is enough? What is the right balance of data privacy? Project Hemisphere was first reported by the New York Times in 2013, but yet is relatively unknown to many people. The program effectively monitors private citizens where no known crime has occurred, a significant violation of personal privacy.
This is not an issue of debating time sensitive terror threats which could easily justify extreme measures to protect the public. This is the DEA, searching through your personal phone records, looking for garden-variety drug dealers.
Why This Matters
Surveillance, such as that performed within Project Hemisphere, is shrouded with secrecy and ultimately raises questions on person information protection. It also creates a chain reaction.
- If surveillance orders such as these are kept secret, it is hard to know if they are ever improper.
- Because criminal defendants, attorneys, and judges are kept in the dark about what evidence was used to initially discovery a potentially criminal act, they cannot meaningfully challenge a privacy breach if it is wrongly issued.
With the secretive nature of this program, we may never know exactly how government agencies, such as the DEA, are using your personal information.
What are your thoughts? Do you think the government, secretly tracking phone numbers, violates your right to be free from warrantless searches? Or is the trade-off worth it despite the invasion of your data privacy?
Do you have a question regarding your rights as it relates to a possible illegal search or seizure? Contact Columbus, Ohio criminal defense trial attorney Joe Edwards at 614-309-0243. Attorney Edwards has over 25 years of experience representing individuals charged at the state and federal levels.