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Lazenby: On “Hemisphere”

This week The New York Times disclosed a previously unreported drug enforcement program that raises real privacy and Fourth Amendment concerns for Americans. The program, dubbed the “Hemisphere Project,” is a collaboration between the Federal Drug Enforcement Administration (DEA), local law enforcement officials and AT&T that began in 2007. Under the project,…

This week The New York Times disclosed a previously unreported drug enforcement program that raises real privacy and Fourth Amendment concerns for Americans. The program, dubbed the “Hemisphere Project,” is a collaboration between the Federal Drug Enforcement Administration (DEA), local law enforcement officials and AT&T that began in 2007.

Under the project, the federal government pays AT&T to embed its employees in drug-fighting units across the nation to provide law enforcement agents with phone records dating as far back as 1987. The data amassed includes every call that comes through an AT&T line – not only those made by AT&T customers – and also pinpoints callers’ locations. The 26-year reach of this collection of records, as well as the fact that location information is included, reveals that Hemisphere is a broader data collection effort than the one conducted by the National Security Administration (NSA), which only stores call data dating back five years.

The program has been shrouded in secrecy and was only revealed after an activist obtained information on it in response to several public information requests sent to local law enforcement agencies. In response, the Obama administration has acknowledged the existence and scale of Hemisphere but said it posed no new privacy concerns and used longstanding routine investigative procedures. If that’s true, however, one has to wonder why the government worked so hard to conceal the program’s existence from the public, instructing law enforcement officials “to never refer to Hemisphere in any official document.”

The administration pointed to the fact that the phone data is stored by AT&T, not the government, to bolster its claim that Americans have nothing to worry about here. Where the data is stored, however, is a distinction without a difference if the government has easy access to the records – and it does. All that is needed for law enforcement to mine the trove of data that AT&T is storing is an “administrative subpoena,” which is issued not by a judge or a grand jury, but by the DEA itself.

The issuing of a subpoena by a federal agency without prior judicial oversight has long been seen by civil liberties advocates as a violation of the Fourth Amendment, which guards against unreasonable searches and seizures. The DEA was granted the authority to issue such subpoenas under the Comprehensive Drug Abuse Prevention and Control Act of 1970, shortly before President Nixon declared America’s now infamously unsuccessful “War on Drugs.”

When government has such easy access to such a large amount of detailed data, it is appropriate to question whether the storage and search of that data is in fact “reasonable.” Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), said “the integration of government agents into the process (of the collection, storage and use of the records) means there are serious Fourth Amendment concerns” with the Hemisphere records retainment program.

The vast scope of the Hemisphere Project, as well as the secrecy surrounding it and the lack of judicial oversight involved, should disturb any American concerned with civil liberties. Additionally, we must ask ourselves if a such an intrusive and far-reaching data-mining program, used solely to perpetuate a failed “War on Drugs,” is the best use of our capital. Supporters of the Hemisphere Project argue that it is a necessary law enforcement tool. If such a tool violates our constitutional rights and wastes our resources in the process, however, it cannot be valid.

amy lazenby

Amy Lazenby is the associate opinion editor at FITSNews. She is a wife, mother of three and small business owner with her husband who splits her time between South Carolina and Georgia. Follow her on Twitter @Mrs_Laz or email her at amy@fitsnews.com.

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32 comments

shifty henry September 3, 2013 at 7:48 am

Right on target, Amy; no one is safe……

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Mike at the Beach September 3, 2013 at 8:10 am

Man…the melodrama just never stops. Let’s see about how long cops have been using mere subpoenas to grab phone data from private phone companies – how about ever since there have been phones and subpoenas. The courts have ruled on this time and time again. This particular stuff is part of a program in HIDTA (High Intensity Drug Trafficking Areas), and is ONLY different from every other cop operation in the country because they could afford to pay AT&T to have an expediter on staff. They get the data quickly; most LE outfits have to wait a week or so.

From the NYT piece: “Subpoenaing drug dealers’ phone records is a bread-and-butter tactic in the course of criminal investigations,” Justice Department spokesperson Brian Fallon told the Times. The program “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.

Pretty good description, that. The courts at all levels have okayed this for DECADES. Keep in mind another critical piece of info Lazenby either omitted or doesn’t know – local jurisdictions can apply higher standards, and many do (requiring judge issued search warrants instead). Many solicitors here in SC do this, by the way. The ACLU simply hates it, which means Lazenby will dutifully come on here and parrot their line to the “home crowd” for them. Gripe about the “failed war on drugs” all you like, but tone out the melodrama on all these perceived Orwellianisms. An ACLU temper tantrum does not a Constitutional crisis make.

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Curious September 3, 2013 at 8:44 am

Ah yes, the DOJ justifying “streamlining” the process of serving a subpoena by allowing an agency of the executive branch to have sole authority over whether that subpoena is issued to make things easier for law enforcement. Serving a subpoena to collect information on an American citizen is not supposed to be easy, which is why we usually have judicial or grand jury oversight – it’s that whole checks and balances thing. In this case, that doesn’t apply.

Yes, the courts at all levels have okayed these investigative tactics for decades. They also okayed segregation for a bit longer than a few decades – until they reversed themselves. Also, the fact that local jurisdictions can apply higher standards doesn’t mean that they will.

The fact that the Columbia University law professor quoted in the article – who was also a former federal drug prosecutor who agreed that the govt has been operating this way for decades – said “the program at least touched on an unresolved Fourth Amendment question: whether mere government possession of huge amounts of private data, rather than its actual use, may trespass on the amendment’s requirement that searches be “reasonable.” Even though the data resides with AT&T, the deep interest and involvement of the government in its storage may raise constitutional issues” is troubling to me.

That man’s opinion carries a bit more weight than that of “Mike at the Beach,” who will dutifully come on here and defend law enforcement and the prosecutorial power of the state whenever questions of civil liberties violations are made. A defense of overreaching law enforcement tactics by the DOJ spokesman does not a constitutional program make.

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Mike at the Beach September 3, 2013 at 10:00 am

And the “home crowd” checks in. We’re not weighing the value of opinions here, I was just talking about hyperbole, excitability, and reality. The comparison of historical segregation and the executive branch’s use of subpoenas for information with Fourth Amendment value that is court-recognized as limited is laughable. The only thing I “dutifully defend” here is usually common sense. If the DEA wants to do a black bag gig on my house or tap my phone, they have to get a search warrant (and a special one that’s exceedingly difficult to obtain, no less), but any LE agency which develops reasonable suspicion that I am involved in illegal drug activity can subpoena my data-only phone records. Sorry, I just can’t lose any sleep over that.

All such intrusions are judged on a sliding scale based upon one’s reasonable expectation of privacy. I teach Con law too, and just because I’m not an ACLU fan up at Columbia doesn’t mean I’m wrong. Besides, if we’re “weighing” the value of opinions, I say the SCOTUS’ outweighs your Columbia boy any day. If SCOTUS had ruled against this type of subpopena power in the past, the NYT story would have been a real barn-burner. As reality lies today, not so much. You, Lazenby, and the ACLU can rail against the drug war, intrusions of privacy, and “liberty issues” ’til the cows come home. I only suggest that we don’t tweak the stories to fit your narrative, that’s all. Namaste, friend!

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Blah blah blah September 3, 2013 at 10:06 pm

“but any LE agency which develops reasonable suspicion that I am involved
in illegal drug activity can subpoena my data-only phone records.
Sorry, I just can’t lose any sleep over that.”

Yet another person that thinks the 4th is mere fodder and the drug war winnable.

It’s a perfect example of why the government has become the monster it is.

Let’s all be honest, Mike’s viewpoints are the rule, not the exception.

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Mike at the Beach September 3, 2013 at 10:21 pm

While we’re being honest and all that, you must have pulled my opinion on the “drug war” and the Fourth Amendment out of your own ass, because I neither commented directly nor inferred as to my opinion on those topics. Some writers (Lazenby included) misstate facts and carefully shape the narrative to fit their worldview. A few of us here simply call her on it and explain the actual law. This is why you are right in one respect – my “opinion” as stated here IS the rule. Not because I say so, but because every major court in the land says so. That majority rule through a democratic republic thing must irk the shit out of you.

Blah blah blah September 3, 2013 at 10:55 pm

“because I neither commented directly nor inferred as to my opinion on those topic”

“Sorry, I just can’t lose any sleep over that”

Mike at the Beach September 3, 2013 at 11:25 pm

Really, dude? That’s where you sourced yourself? The fact that law enforcement is utilizing a widely known, decades-old, totally legal law enforcement tactic should keep me up at night? That in no way tells you where I am in regard to what you are calling the “drug war.” I just understand the law; you need a hobby.

Blah blah blah September 3, 2013 at 11:36 pm

“That in no way tells you where I am in regard to what you are calling the “drug war.””

Sure partner, sure.

I’m sure your nuanced view includes some sound reasoning from both sides of the topic on both the drug war. But if you don’t share your opinions then they aren’t really worth much are they?

It’s really very simple, in the end you are either “for” the drug war, or against.

Mike at the Beach September 3, 2013 at 11:49 pm

Either “for” the “drug war” or “against?” The fact that you even use the term “drug war” would make me guess that you’re pretty much a one-issue pony. There’s so much fail in your premise that an issue as complex as your “drug war” must be adopted from one side or the other in toto that I just don’t want to argue with you about it. Good luck.

Blah blah blah September 4, 2013 at 12:00 am

There’s no arguing, except by you. You offer no opinion so you are right, there’s no point in discussing it with you.

HD September 3, 2013 at 9:12 am

Ms. Lazenby’s understanding of the 4th Amendment approximates that of her understanding of the 6th Amendment. She understands neither very well.

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Amy Brandstadter Lazenby September 3, 2013 at 9:48 am

Please, “HD,” tell me what I don’t understand.

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Philip Branton September 3, 2013 at 12:27 pm

Well, HD, if you don’t mind……….Mrs Lazenby here is the 4th amendment that HD references:

The Fourth Amendment (Amendment IV) is an amendment to the United States Constitution and part of the Bill of Rights. It prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. It was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British Government and a major source of tension in pre-Revolutionary America. The Fourth Amendment was introduced in Congress in 1789 by James Madison, along with the other amendments in the Bill of Rights, in response to Anti-Federalist objections to the new Constitution.

and here is the 6th Amendment….

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Mr. HD states that you ( Amy ) understands neither very well and then you ( Amy ) ask HD what you do not understand.

Well……Amy, you fail to understand that Mr. James Madison understood the “Art of War” better than you and that ALL governments try to deceive their citizens..!! Are we not told that God knows every hair on our “hemisphere” bodies..? Well, just how many governments throughout history have acted like GOD..?

Amy……..how would you have written for “Pharaoh Fitsnews”…? We highly wager that HD would have a good guess..!!

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YallCalmDown September 3, 2013 at 12:29 pm

Branton, stop bringing your crazy to serious questions.

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HD September 3, 2013 at 2:59 pm

Sure: The 6th Amendment’s guarantee of the right to confront one’s accusers applies to those who testify in a judicial proceeding. It only applies in the case of confidential informants under extraordinarily limited situations. Your previous column on this subject makes it clear that you don’t understand this.

The 4th Amendment doesn’t apply to the retention of information by private entities (most particularly where its retention has been agreed to by the businesses customers). In neither the NYT article nor your column is there any specificity as to the information being retained by ATT or subpoenaed by the government. Is there a reasonable expectation of privacy in the information? If you don’t know what the information is, how can you possibly know whether you should be outraged? See what I mean?

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Amy Brandstadter Lazenby September 3, 2013 at 3:20 pm

As I stated in my previous column re: the Sixth Amendment, the reason the system of parallel construction has
worked for so long is because defendants, confronted with a massive
unknown that they are unable to challenge in court, often plead guilty
prior to trial, making the need to disclose the source of an
investigation moot. When citizens are intimidated into not testifying because of parallel construction, or when they are only able to confront confidential informants under extraordinary circumstances, that is the denial of one’s right to confront his accuser.

As to the Fourth Amendment concern here, the specificity of the information subpoenaed by the government is caller identification (by phone number) and location information – I made that clear, as did the NYT article. There is a reasonable expectation of privacy that is not being met when 26 years of phone data (that includes caller identification and location information) is being stored by an entity that cooperates fully with the DEA by allowing its employees to be embedded with law enforcement units as directed by the DEA and complying with administrative subpoenas issued by the DEA with no judicial oversight. Legal scholars agree that the deep involvement of the government in the storage and use of the data raises Fourth Amendment concerns.

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HD September 3, 2013 at 5:37 pm

No, it isn’t. 6th Amendment jurisprudence is long-standing and clear. A criminal may just have to wonder how law enforcement found out he was a criminal. He doesn’t have a constitutional right to the answer. He has a constitutional right to confront and cross examine the witnesses the government intends to use to prove it.

You and your “many” legal scholars are simply wrong if you think that the 4th Amendment is implicated in any serious way in the retention of phone records by the phone company. Taking steps to facilitate the transfer of subpoenaed records to law enforcement doesn’t change that.

If I’m wrong, the courts will say so eventually. For now, I’m not wrong.

Mike at the Beach September 3, 2013 at 7:33 pm

Although I truly welcome you into the fray (since you obviously stayed awake during both years of Con Law), let me warn you: Lazenby doesn’t let facts (jurisprudential or otherwise) get in the way of a good government conspiracy. Tens of thousands of criminal appeals annually, and yet strangely enough the law is what it is. All of those judges and panels, yet not a one has seen her conspiracies. I’m afraid she wants so that it were different that it colors her judgment a bit.

Mike at the Beach September 3, 2013 at 7:28 pm

Once again, you throw your “confronted with a massive unknown that they are unable to challenge in court” canard out there. You are either being disingenuous, or you just don’t get it. We beat this poor horse to death after your ACLU “drug war” sycophancy, again when you the railed against the DEA’s SOD, and finally here we are…again. The law on this couldn’t be much clearer (or older), and the fact that you keep describing these mysterious unknowns that intimidate folks into pleading guilty in federal court is just bizarre. It’s simply not true. As I explained before, the laborious and extremely thorough prosecutorial process is what “scares” these defendants into a plea. The government has never, EVER been required to describe in detail (or at all) from whence their hunch or initial info stemmed. They must, however, maintain absolute transparency through the discovery process in regard to every single shred of evidence they intend to present at trial (or even may consider), and likewise on ANY piece of exculpatory evidence. What a catastrophe your dream system would be if ever implemented, at least for citizens who would like to exercise their right NOT to become involved.

Upstate Lawyer September 3, 2013 at 5:50 pm

You are denied an effective confrontation and cross examination if background information remains hidden.

As to the 4th amendment, it is invoked if the gathering of information is done with governmental direction – which appears to be the case here. And of course there is a ROP with phone information. Hell, i’ve tried to get phone information before for a client and was told I needed a subpoena.

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HD September 3, 2013 at 6:22 pm

Not according to decades of 6th Amendment jurisprudence.

Of course the “gathering” of the information is done at government direction – we like to call it “a subpoena” or “a warrant.” The retention and storage of the records may or may not be done at government request – that doesn’t matter, since the government doesn’t get it until it’s subpoenaed (or warrant is issued).

CNSYD September 3, 2013 at 10:30 am

and how did government “work so hard to conceal” this program. Not notifying you constitutes concealment? Are you totally aware of ALL government programs? Why not? Poke your long nose elsewhere.

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Guest Poster September 3, 2013 at 10:42 am

Yeah, I think hiding govt programs like Hemisphere and the NSA snooping until someone forces government’s hand or leaks info that reveals their existence is pretty much the point here.

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CNSYD September 3, 2013 at 4:13 pm

when are leaks permitted that harm national security? how do you know whether national security is involved? do you sit in on the daily WH briefings? who has the most “inside” info, Lazenby or the NSC?

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Mike at the Beach September 3, 2013 at 7:34 pm

My guess would be that she’s a big fan of Assange, Manning, Snowden, et al. Keep our anti-drug and counter-terr tactics a secret? Crazy talk…

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Curious September 3, 2013 at 11:59 pm

And my guess, based on your posts, is that you are big fan of government – especially law enforcement – regardless of whether police tactics violate civil liberties. You’re one of those “If you’re not doing anything wrong, you don’t have anything to worry about” folks, am I right? Yeah, I am.

EJB September 3, 2013 at 10:35 am

Over the many years the government has made statements about the need to do different things to catch the bad guys. They keep milking us for more money and degrading our rights and liberties, just a little – very little ;), then we find out that they have programs like this and the NSA overreach and they still can’t prevent the Boston Marathon bombing, the underwear bomber, the tennis shoe bomber and the SUV that was parked in Times Square and discovered by accident to be a bomb. I believe in giving police a fair bit of latitude and I have previously stated cops should be allowed to use Tasers far more liberally than they now can but at what point do we as concerned citizens say “you have way more than you need for the stated purpose and you must scale back and deactivate”? I do believe it is time to evaluate where these programs are and what is truly needed versus just wanted for “just in case”.

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Upstate Lawyer September 3, 2013 at 12:05 pm

Make no mistake about it – the administrative subpoena does a complete end around the 4th amendment. The 4th amendment requires specific information to be provided under oath to a court which then must decide if there is probable cause to intrude upon someone’s home, car, or business. Administrative subpoenas have been around for 100 years, and originally used to help corporate regulators. The standards for them are much lower than required by the 4th amendment. I’m not aware that SCOTUS has approved the use of administrative subpoenas in the criminal conviction of an individual. This is not a case of being “excited.” If the DEA can avoid the requirements of obtaining a judicial warrant, then why even have a 4th amendment.

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Curious September 3, 2013 at 12:09 pm

Here’s a good article on the disturbing, unchecked rise of the administrative subpoena: http://www.wired.com/threatlevel/2012/08/administrative-subpoenas/

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Nobody September 3, 2013 at 10:01 pm

” Administrative subpoenas have been around for 100 years, and originally used to help corporate regulators”

Yea, well once that door is opened it’s just a matter of time before it’s opened further.

I once made a “corporate regulator” go get an administrative warrant, I made him sit in my office while I read it 2 months later.

After reading it I informed him that I had proof based on his warrant that they were violating their own policies.

He didn’t believe me and snatched the warrant out of my hands to read the offending paragraph.

I told him I thought we should go ahead and appear before a judge together so he can explain why his agency made a habit of violating their own rules.

lol, he told me that if I let him in he would make sure there was no “regulating” going on and the whole matter would go away.

I did, and it did. That was six or seven years ago and they’ve never been back.

The whole system is corrupt and rotten to the core.

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Philip Branton September 3, 2013 at 1:47 pm

Dear Amy Lazenby……

When you read this article, what is it telling you..?

http://www.breitbart.com/Big-Government/2013/09/02/South-Carolina-Tea-Partiers-target-Lindsey-Graham-with-classic-car-contest

Amy, my friend, you need to really have a heart to heart with Nancy Mace and tell her start wearing BLACK..!!

How would wearing black be a conversation starter with all these car owners? Is a funeral for Senator Graham the same color as OIL..?

Amy, does this persona actually question her Citadel roots..??

This is simply nuts….

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