In the early 1980s, the old, pre-Cingular AT&T came out with an ad campaign urging us to "reach out and touch someone” to market its long distance products. It seems that today’s AT&T has been helping the government access its enormous database of phone records – dating back 26 years with 4 billion call records being added everyday – to reach out and touch nearly everyone. And it only takes a couple of degrees of separation to be within that reach.
According to a recent New York Times report, the government pays AT&T to “place its employees in drug-fighting units around the country” and provide the Drug Enforcement Administration and local detectives with phone data – including location data – going “as far back as 1987.” The secretive project is called “Hemisphere,” and it is not limited to calls placed by AT&T customers but every call that passes through an AT&T switch. (http://nyti.ms/19b5nj7) At press time, there is no indication of any similar partnerships between the DEA and other cellular carriers.
Law enforcement has long faced the problem of catching up with those in the drug trade who frequently switch their phones to hide their use for illegal activities. While a “burner” phone can simply be discarded, that same person who uses multiple phones still has habits and patterns that can be valuable in investigations such as calling the same number at specific times or from the same location. These patterns discerned from phone data can help law enforcement detect phone use for drug activities, and this data access is one of the few options the authorities have in combatting burner phones. But as with other large-scale data surveillance initiatives, it appears too easy for law-abiding phone users to get caught up in the data collection. Further, the program is long on secrecy and short on known provisions to protect innocent phone users such assurances that the Fourth Amendment of the Constitution isn’t violated.
The Fourth Amendment protects against unreasonable searches and seizures. While the DEA can obtain phone call records via “administrative subpoenas,” a common practice that doesn’t involve a judge, Hemisphere relies on unchecked access to a private, third party’s data with help from that third party to cull and curate data pertaining to its end users, which can be considered a step beyond reasonable. And because Hemisphere relies on “parallel construction” to then get information from other sources in order to cover its secret tracks, it would be “impossible for criminal defendants to know that they were subjected to scrutiny though the program,” according to ACLU staff attorney Catherine Crump. “As a result, defendants have no opportunity to test the legality of these investigative tactics — and, just as troublingly, no court will have the chance to weigh in on the program’s validity.” (http://bit.ly/1ahd7Vi)
Hemisphere begs the question of how much freedom we’re willing to trade to be more secure – in this case, from the problems associated with illegal drugs. There isn’t much law enforcement can do to tackle the burner problem, but with billions of new records being collected daily and few of those calls being associated with the drug trade the risk-versus-reward of further eroded privacy and a possible end-run around the Fourth Amendment must be scrutinized by citizens (and consumers). And thanks to the recent revelations about the NSA’s record-gathering practices, one must re-think what other government agencies are doing – and the lengths they are going to – to learn about private and largely law-abiding citizens. Almost daily, we’re finding out anything’s possible.