While Edward Snowden’s National Security Agency document leaks have been “the story” in the MSM over the past 11 months, it belies heavily-obfuscated realities about the massive level of domestic surveillance in America that is directly funded by the White House (and, thus, may be claimed by the President, “legally” or otherwise, as--and as Marcy Wheeler also notes herein--powers provided under Executive Privilege) in conjunction with the Drug Enforcement Administration, along with at least 15 other federal intelligence/law enforcement agencies, via what is known as: AT&T’s Hemisphere Project.
Perhaps most importantly, after reading this post, I believe most will be hard-pressed not to acknowledge the basic conclusion that the entire NSA “story,” as the public’s followed it, doesn’t even begin to uncover more than a fraction of the overall level of domestic surveillance occurring in America, today.
Aside from a brief period over the course of a few days in early August and, again, in early September 2013, via exclusives from Reuters and the New York Times (SEE links and excerpts, farther down in this post), information about Hemisphere has been deliberately overshadowed by the media’s/blogosphere’s/public’s focus upon the NSA-Snowden document leaks. This truth becomes even more pronounced when one recalls a fact that was disclosed during that brief period of reportorial sunlight on the subject last year: The very mention of the name, “Hemisphere,” in public was, and still is, officially forbidden for/by U.S. law enforcement and intelligence personnel, too.
The Guardian’s Trevor Timm and journalist, blogger and author Marcy Wheeler, over at her Emptywheel blog, have published pieces over the past 10 days that, collectively, revisit last summer’s crucial news coverage concerning Hemisphere. Both articles remind us that the Hemisphere story—while it’s deliberately, as Timm and Wheeler also note, never referenced in released documents and public statements by the administration on the NSA—is, nonetheless joined at the hip with that intelligence agency. And, for all intents and purposes, the very existence of Hemisphere provides a (potentially) very convenient and “perfectly legal” (as long as one ignores certain aspects of the U.S. Constitution) albeit unstated, safe harbor for White House and NSA double-speak on our country’s domestic surveillance realities, too.
Timm’s analysis tells us that what we’re now witnessing is a far more powerful, nefarious and invasive version of a system whose foundations were established by none other than the FBI’s J. Edgar Hoover. It is that new and vastly “improved,” technology-based, Orwellian dystopia, combined with critical information provided by Wheeler’s renowned analysis, especially over the past nine-plus months, since the Hemisphere stories first surfaced, that provides readers with a much clearer picture of “how things work” in our surveillance state. (SEE: “The mentality of J Edgar Hoover’s FBI undergirds today’s surveillance state,” and “DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere.”)
(Diarist’s Note: While I’ve been writing this post for a couple of weeks, I’m reminded, again, about how little the U.S. public knows—compared to the NSA--about the massive surveillance efforts of the White House/FBI/DEA/DHS, et al. This is due to—not one, but—two front-page articles over the past week, in last Thursday’s NY Times, “F.B.I. Informant Is Tied to Cyberattacks Abroad,” and last Wednesday’s Washington Post, “Probe: DHS watchdog cozy with officials, altered reports as he sought top job.” As Wheeler, Timm and others also note, the Hemisphere Project is not just about drug enforcement surveillance, either; it’s about “crime,” in general—everything from state surveillance of social/political dissenters and those committing minor infractions to violent criminals.)
First, a little intro/info (there’s more, farther down below) about AT&T’s Hemisphere Project, from the Wiki…
The Hemisphere Project, also called simply Hemisphere, is a mass surveillance program conducted by US telephone company AT&T and paid for by the White House Office of National Drug Control Policy and the Drug Enforcement Administration.[1]
AT&T employees work alongside the DEA and local law enforcement agencies at High Intensity Drug Trafficking Area offices in Los Angeles, Atlanta, and Houston,[2] where they supply officials with metadata from a database of telephone calls dating back to 1987.[1] The information is handed over in response to subpoenas, rather than search warrants. The DEA has the power to issue "administrative subpoenas" without involvement of a court.[3] Call detail records are collected for all calls handled by AT&T's switches, not only calls placed by AT&T customers.[4] The records include the caller's location and number around four billion per day.[5] A telephone call may create more than one entry in the database.[1]
The program began in 2007 or earlier, but did not become public until 2013, when activist Drew Hendricks found a Powerpoint file about it among materials turned over in response to a FOIA request. Marked as "law enforcement sensitive", the file gives examples of suspects said to have been found with Hemisphere data. Several of the suspects given as examples were wanted in connection to crimes unrelated to drugs, such as making bomb threats, impersonating a military officer, and theft from a jewelry store.[1][6]
The White House said that the data raises no privacy concerns, a statement contradicted by Jameel Jaffer of the ACLU, who said he would "speculate that one reason for the secrecy of the program is that it would be very hard to justify it to the public or the courts."[3][7]
The program was likened to proposals made by legislators after the disclosure of PRISM, in particular one by Representative Adam Schiff who had called for a "look at changing the telephone metadata program by having phone companies retain their own data, rather of [sic] the government."[8] …
So, why is this “old” news about Hemisphere being brought up again? (Timm and Wheeler explain below.) However, a few basic facts should be brought front and center before delving into their stories…
First of all, when one reads both the headline and story of any article on the subject, such as this March 24th NY Times’ piece by Charlie Savage, “Obama to Call for End to N.S.A.’s Bulk Data Collection,” it should be noted that there’s absolutely no mention of the F.B.I., let alone “Hemisphere,” which, technically does not even fall under the purview of the NSA. Furthermore, the reality in America, today, is that the majority of bulk surveillance data is already being captured and managed by the private sector (but, again, if we’re told this they’d have to shoot us…or, something…).
Second, as noted above, Hemisphere collects four billion (complete) AT&T network “records” per day in the U.S.; and, those records consist of virtually all data that passes through AT&T network switches here (AT&T switches are also used around the globe; four billion records are captured via U.S.-based switches), regardless of its country of origination and/or intended destination.
Third, much, if not all, domestic telco/telecom firms’ “data” passes through an AT&T switch in this country at one point or another, and that’s without respect to whatever network from which that data may have originated (i.e.: most of the data from all the major telco/telecom players in this country—Verizon, Sprint, etc.--at one point or another, ends up being processed through an AT&T network switch).
Fourth, it’s critical to remember another inconvenient reality upon which I’ve focused for quite awhile: Whenever one hears or reads the word “data” or “metadata” in a story about our surveillance state, we now know—even moreso than when the original Hemisphere stories appeared in the press for the first time, last August and early September--beyond any doubt, that “metadata is content.” (SEE: HERE, HERE, HERE, HERE, HERE, HERE, and HERE. Please note that the preceding seven links contain articles that have appeared mostly in the MSM from just the past four months. I’ve documented in at least another dozen posts—all citing highly credible sources--over the past couple of years here, that this has been public knowledge for well over a decade.)
A little more background from Marcy Wheeler, three months ago, on “The Corporate Store,” which is comprised, in large part, of data acquired via the AT&T Hemisphere Project…
The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle
Published January 25, 2014 | By emptywheel
I’m increasingly convinced that for seven months, we’ve been distracted by a shiny object, the phone dragnet, the database recording all or almost all of the phone-based relationships in the US over the last five years. We were never wrong to discuss the dangers of the dragnet. It is the equivalent of a nuclear bomb, just waiting to go off. But I’m quite certain the NatSec establishment decided in the days after Edward Snowden’s leaks to intensify focus on the actual construction of the dragnet — the collection of phone records and the limits on access to the initial database (what they call the collection store) of them — to distract us away from the true family jewels.
A shiny object.
All that time, I increasingly believe, we should have been talking about the corporate store, the database where queries from the collection store are kept for an undisclosed (and possibly indefinite) period of time. Once records get put in that database, I’ve noted repeatedly, they are subject to “the full range of [NSA's] analytic tradecraft.”…
…
…[Ed.: Online and commercial] profiles are not the only thing included in NSA’s “full range of analytic tradecraft.”
We also know — because James Clapper told us this very early on in this process – the metadata helps the NSA pick and locate which content to read. The head of NSA’s Signals Intelligence Division, Theresa Shea, said this more plainly in court filings last year.
Section 215 bulk telephony metadata complements other counterterrorist-related collection sources by serving as a significant enabler for NSA intelligence analysis. It assists the NSA in applying limited linguistic resources available to the counterterrorism mission against links that have the highest probability of connection to terrorist targets. Put another way, while Section 215 does not contain content, analysis of the Section 215 metadata can help the NSA prioritize for content analysis communications of non-U.S. persons which it acquires under other authorities. Such persons are of heightened interest if they are in a communication network with persons located in the U.S. Thus, Section 215 metadata can provide the means for steering and applying content analysis so that the U.S. Government gains the best possible understanding of terrorist target actions and intentions. [my emphasis]
The NSA prioritizes reading the content that involves US persons. And the NSA finds it, and decides what to read, using the queries that get dumped into the corporate store (presumably, they do some analytical tradecraft to narrow down which particular conversations involving US persons they want to read)…
…
…The NSA is not only permitted to access all of this to see what Americans are saying, but in all but the domestically collected upstream content, it can go access the content by searching on the US person identifier, not the foreign interlocutor, without establishing even Reasonable Articulable Suspicion that it pertains to terrorism (though the analyst does have to claim it serves foreign intelligence purpose). That’s important because lots of this content-collection is not tied to a specific terrorist suspect (it can be tied to a geographical area, for example), so the NSA can hypothetically get to US person content without ever having reason to believe it has any tie to terrorism.
In other words, all the things NSA’s defenders have been insisting the dragnet doesn’t do — it doesn’t provide content, it doesn’t allow unaudited searches, NSA doesn’t know identities, NSA doesn’t data mine it, NSA doesn’t develop dossiers on it, even James Clapper’s claim that NSA doesn’t voyeuristically troll through people’s porn habits — every single one is potentially true for the results of queries run three hops off an identifier with just Reasonable Articulable Suspicion of some tie to terrorism (or Iran). Everything the defenders say the phone dragnet is not, the corporate store is…
And, as Wheeler reminded us ten days ago, much (if not the majority) of this Corporate Store
content, while it may be heavily utilized by the NSA and roughly 15 other U.S. intelligence/law enforcement organizations, is coming from a program directly funded by the White House: the AT&T Hemisphere Project.
Furthermore, this program is only tangentially connected to the Edward Snowden NSA document leaks story, since it was brought to the public’s attention due to the filing of a Freedom of Information Act Request by Washington state peace activist Drew Hendricks. (There’s more on Hendricks farther down in this post.)
# # #
DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere
Published April 18, 2014 | By emptywheel
As I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.
Of particular interest is this investigation.
Administrative Subpoenas
The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.
The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.
The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.
Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.
Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.
Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.
And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
[snip]
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods.
“Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
Marcy continues on to explain how DoJ I.G. Horowitz is
complaining that he cannot get grand jury information. She then informs us that the
only people that may approve that are Attorney General Holder and Deputy Attorney General James Cole.
She reminds us that the “…NYT reported in its story on Hemisphere, the actual database is not funded by DEA, but rather by the White House Drug Czar (ONDCP) under the High Intensity Drug Trafficking Area program.
Mr. Fallon said that “the records are maintained at all times by the phone company, not the government,” and that Hemisphere “simply streamlines the process of serving the subpoena to the phone company so law enforcement can quickly keep up with drug dealers when they switch phone numbers to try to avoid detection.”
He said that the program was paid for by the D.E.A. and the White House drug policy office but that the cost was not immediately available.
Officials said four AT&T employees are now working in what is called the High Intensity Drug Trafficking Area program, which brings together D.E.A. and local investigators — two in the program’s Atlanta office and one each in Houston and Los Angeles.
It’s here where Wheeler comes right out and states that:
“This has always seemed like a ploy to put the program — which parallels earlier dragnet efforts done solely on Executive authority — in the White House, where it is immune from FOIA and even Congressional oversight.”
I can well imagine DEA arguing that Horowitz cannot touch anything having to do with HIDTA (and therefore with Hemisphere) because it is a White House, not DEA, program. (Note, in Horowitz’ testimony he said, in addition to his difficulties getting grand jury information, “We have had similar issues raised regarding our access to some other categories of documents.”) Horowitz’s investigation of the “legal authority” for the program may well be stymied by claims of Executive Privilege too.
(Bold type is diarist's emphasis.)
# # #
The day after Marcy Wheeler’s post appeared, the Guardian’s Trevor Timm provided somewhat of a macro/historical view of the same subject matter, referencing various aspects of the Hemisphere program while not mentioning it by name, as he reminds readers of a few other facts…
The mentality of J Edgar Hoover’s FBI undergirds today’s surveillance state
People forget that the FBI is the NSA's primary partner in domestic spying, which allows them to work in secret
Trevor Timm
theguardian.com, Saturday 19 April 2014 10.00 EDT
…Everyone seems to forget that the FBI is the NSA's primary partner in the latter's domestic spying operations and that, in fact, the NSA's job would be impossible without them. Whenever you see a company deny giving any data to the NSA remember: It's because it's not the NSA asking (or demanding) the information of them, it's the FBI. They use the same Patriot Act authorities that the NSA does, and yet we have almost no idea what they do with it.
In fact, the FBI has gone to extreme lengths to just keep their surveillance methods a secret from the public, just like the NSA. And the more we learn, the scarier it gets…
…
…Foreign Policy's Shane Harris reported last year, the FBI "carries out its own signals intelligence operations and is trying to collect huge amounts of email and Internet data from U.S. companies – an operation that the NSA once conducted, was reprimanded for, and says it abandoned." The FBI's activities include trying to convince "telecom carriers and Internet service providers to install [port readers] on their networks so that the government can collect large volumes of data about emails and Internet traffic."
We also know they routinely get cell phone location information without a warrant. (If you want to see how your cell phone location information reveals almost every detail of your life, watch this amazing ACLU video.) We also know they're using Stingray devices, which are fake cell phone towers that vacuum up all cell phone activity in a particular area.
We know that the FBI is still issuing thousands of oversight-free National Security Letters a year, despite multiple government reports detailing systematic abuse, and a federal court ruling that they are unconstitutional last year. (The ruling was put on hold pending appeal.)…
Timm also referred to a
Wired article in 2012, wherein the magazine
“…discovered FBI training materials in 2012 that told agents they had the ‘ability to bend or suspend the law and impinge on freedoms of others,’ in national security cases. The materials were quickly withdrawn when they became public.”
Towards the end of the article, Timm notes: “All of this leads to why a comprehensive report released by ACLU late in 2013 called the FBI a ‘secret domestic intelligence agency’ that ‘regularly overstepped the law, infringing on Americans' constitutional rights while overzealously pursuing its domestic security mission.’"
# # #
It goes without saying, but I will, that this post describes some fairly massive instances where it's self-evident that the public is still—ten months after the Snowden-NSA document leaks’ story first went public—very much in the dark about the extent of this country’s downright Orwellian, domestic surveillance efforts. And, indeed, this obfuscation is directly due to deliberate government misdirection, from the top down, on the matter.
Perhaps, it’s one of the reasons why President Obama just appointed W. Neil Eggleston, arguably, the top legal expert in the nation on executive privilege, as his Chief White House Counsel?
# # #
Here’s more on the AT&T Hemisphere Project from last August and September…
Hemisphere Slide Show
ScribD
Published by Andrew Charles Hendricks
This is a Powerpoint presentation about a DEA program known as Hemisphere, which is apparently a special program in cooperation with AT&T to use their switches to gain information and call records for query by Law Enforcement. The original document was created in Atlanta in late August, 2008 and this version was updated in June 2013 and passed around in an email system. It was acquired a month later through a Public Records Act Request in Washington State.
Several things about the program stand out, especially on Pages 8 through 12, concerning the attempted secrecy around the Program, and attribution of its data to subsequent requests and court orders. This is in direct parallel to the DEA "Special Operations Division" programs of an apparently similar nature.
The document claims this program began in September, 2007. "Hemisphere is most often used by DEA and DHS in the Northwest HIDTA to identify replacement/additional phones."
"All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena."
Seattle Hemisphere Info by Andrew Charles Hendricks
More on the slide show, above, via the link and the intro to the NY Times’ story on Hemisphere, just below…
Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s
By SCOTT SHANE and COLIN MOYNIHAN
New York Times
Published: September 1, 2013
For at least six years, law enforcement officials working on a counternarcotics program have had routine access, using subpoenas, to an enormous AT&T database that contains the records of decades of Americans’ phone calls — parallel to but covering a far longer time than the National Security Agency’s hotly disputed collection of phone call logs.
The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.
The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987…
…
…The slides were given to The New York Times by Drew Hendricks, a peace activist in Port Hadlock, Wash. He said he had received the PowerPoint presentation, which is unclassified but marked “Law enforcement sensitive,” in response to a series of public information requests to West Coast police agencies.
The program was started in 2007, according to the slides, and has been carried out in great secrecy.
“All requestors are instructed to never refer to Hemisphere in any official document,” one slide says. A search of the Nexis database found no reference to the program in news reports or Congressional hearings…
And, it’s this Reuters’ exclusive that first provided the public with any information about Hemisphere, this past August, more than six years after the highly classified program commenced…
Exclusive: U.S. directs agents to cover up program used to investigate Americans
By John Shiffman and Kristina Cooke
Reuters
WASHINGTON Mon Aug 5, 2013 3:25pm EDT
(Reuters) - A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.
"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.
"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."…
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