EXCLUSIVE — Newly released details about a controversial mass surveillance program shed light on the pitfalls of government data acquisition programs as Congress debates reauthorizing a crucial statute.
The Drug Enforcement Administration collected massive amounts of telephone records for 20 years before the program was shuttered amid the Edward Snowden revelations in 2013. A heavily redacted inspector general’s report into the program was released six years later, a more forthcoming version of which has been obtained by the Washington Examiner.
While the Office of the Inspector General exists to provide oversight of government agencies, among the new details of the DEA program is that it refused to comply with parts of the IG investigation for seven months, apparently without facing consequences.
“It raises fundamental questions about whether you can really trust publicly released Inspector General reports,” Cato Institute senior fellow Patrick Eddington said. “When federal agencies and the law enforcement and intelligence community have the ability to subvert oversight processes, it makes a mockery of what ultimately comes out.”
Eddington filed a Freedom of Information Act request for the full version of the report in 2019 and did not receive a reply until nearly five years later. The newer version, which was shared first with the Washington Examiner, is more forthcoming but still heavily redacted and in two cases includes new redactions that were not withheld from the original version.
The release of the report coincides with Sunshine Week, a nonpartisan collaboration among groups in the journalism, civic, education, government, and private sectors that shines a light on the importance of public records and open government.
The report also comes as Congress debates reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, or FISA, which will expire on April 19 unless renewed. The Biden administration opposes a warrant requirement to access FISA data on U.S. citizens, without which critics say the program is ripe for abuse.
The DEA surveillance report sheds light on the types of abuses that worry government watchdogs.
In the early 1990s, the agency set up a program to collect or exploit bulk data from telephone companies, ostensibly to go after illicit drug operations relying on telecommunications such as “burner” cellphones. But the scope of the program exceeded its mandate and many details of how it operated are still not known.
Among details on the newly released report is that after 2006 DEA began sharing the information it collected with other government agencies for non-drug-related investigations.
“[Former DEA acting Administrator Robert Patterson] said he did not recall any specifics about this decision other than someone had generally decided that once the government is in proper possession of information it can be used for other federal criminal investigations,” reads an excerpt from page 22.
DEA subpoenaed telephone companies in order to obtain their compliance, but the new report reveals that it obtained their voluntary cooperation first and paid for their costs of compliance, saying it was required to do so by law.
Eddington said this detail raises questions about the nature of the relationship between the government and the phone companies who were handing over information about their customers.
“It tells you how nefarious DEA was in terms of how it operates,” he said. “They only went to companies that would voluntarily cooperate, but in order to make them feel better, they gave them subpoenas as legal cover.”
The explosive Edward Snowden revelations led to the DEA program being shut down amid questions about surveillance, privacy, and the legality of bulk collection, yet this, too, raises questions about why those issues were not addressed earlier.
Millions or even billions of data points were collected under the DEA program, the report notes, and the data were often collected without a prior finding that the records were relevant to any specific investigation.
After it was shuttered, the DEA reports that it began issuing subpoenas for call records relating only to individual phone numbers that it determined were relevant to identified investigations, though it is unclear if it still operates under that standard and, if so, how compliance is maintained.
Despite the program ending 11 years ago, the newly released version of the inspector general’s report remains heavily redacted, with full pages left blank in parts.
While this program is no longer operational, Eddington argues that it holds significance in light of the FISA reauthorization debate. He holds that FISA has already been violated repeatedly by multiple presidential administrations since Section 702 was enacted in 2008 and points to abuses of the DEA surveillance program as a cautionary tale.
“This program’s history shows why Congress should go slow on FISA,” Eddington said.
The Washington Examiner has contacted the DEA and Justice Department seeking comment.
Both versions of the report can be found below. New information from the updated version is highlighted in yellow, with new redactions noted in red.
