#11 Law Enforcement Surveillance of Phone Records

by Project Censored
Published: Last Updated on

In cooperation with AT&T, US federal, state, and local law enforcement agencies have been secretly collecting telephone records since 1987 under a program known as Hemisphere, Aaron Mackey and Dave Maass reported for the Electronic Frontier Foundation (EFF). The Hemisphere database contains “trillions” of domestic and international phone call records, and AT&T “adds roughly four billion phone records” each day, including calls from non-AT&T customers “that pass through the company’s switches.”

The call records for individuals include phone numbers dialed, calls received, and each call’s time, date, and length. Furthermore, Mackey and Maass noted, the collected data allows the Drug Enforcement Agency (DEA) and other law enforcement agencies to undertake “complicated traffic analysis” that can “dynamically map people’s social networks and physical locations.” Information gleaned from EFF’s Freedom of Information Act lawsuits suggests that officials collect and analyze this sensitive data “without a warrant or any judicial oversight,” possibly in breach of Fourth Amendment rights. Because Hemisphere permits law enforcement to map personal connections and social networks, Mackey and Maass reported, Hemisphere “also poses acute risks to the First Amendment rights of callers caught in the program’s dragnet.”

In secret documents obtained by EFF, police tout Hemisphere as a “Super Search Engine” and “Google on Steroids.” These descriptions, Mackey and Maass wrote, “confirm EFF’s worst fears that Hemisphere is a mass surveillance program that threatens core civil liberties.”

The Hemisphere program was unknown until 2013, when a presentation about it was “inadvertently released to a privacy activist,” EFF reported. The government and law enforcement agencies have made it their mission to keep this program hidden from the public eye. Police using data collected through Hemisphere were instructed to insure that the program never appeared in the public record. As Mackey and Maass reported, after police obtained private information about someone by using Hemisphere, they would engage in a controversial practice that police call “parallel construction” to obtain the targeted data through traditional subpoenas. (EFF calls this practice “evidence laundering.” See Hanni Fakhoury, “DEA and NSA Team Up to Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Investigations,” Electronic Frontier Foundation, August 6, 2013. For Project Censored’s prior coverage of “parallel construction,” see “ICREACH: The NSA’s Secret Search Engine,” in Censored 2016, pp. 78–79.)

EFF filed Freedom of Information Act requests and sued federal and California law enforcement to access critical information about the Hemisphere surveillance program. The government’s secrecy, as well as discrepancies between how it responded to FOIA requests from EFF and the Electronic Privacy Information Center, highlight “the large power imbalance between the government and FOIA requesters seeking records,” Mackey and Maass reported. They also noted that the Hemisphere program “could not operate without AT&T’s full cooperation.”

In December 2016, Maass reported that a group of AT&T shareholders intended to use the company’s spring shareholder conference to discuss “contradictions” between the Hemisphere program and AT&T’s stated commitment to privacy and civil liberties, and to demand greater transparency about the secret surveillance program.

On the day that Donald Trump was sworn in as president, protests took place a short distance away. Metropolitan Police Department (MPD) officers in Washington, DC, arrested more than two hundred individuals, charging them under felony riot laws and seizing some of their cellphones. AlterNet’s Sarah Lazare and CityLab correspondent George Joseph reported that law enforcement was compelling Facebook, Google, and Apple to turn over data for at least some of the people arrested.

An email from Facebook’s “Law Enforcement Response Team” to a user explained that the user had ten days to produce court documents that would legally prevent Facebook from honoring a request from the District of Columbia US Attorney’s Office for information about their account. Mark Goldstone, a lawyer representing several of the defendants, was quoted as saying that they had received notices from both Apple and Facebook informing them of requests for information by law enforcement. One individual arrested and charged with rioting showed AlterNet a communication from Apple stating that they had received a request from legal authorities requesting data. This defendant told AlterNet, “My phone wasn’t present at the time of arrest and wasn’t taken.” The defendant’s attorney, Goldstone, said, “It’s an outrageous overreach by the government to try to data-mine personal property that wasn’t seized at the demonstration.”

Another person arrested, a journalist swept up in the mass arrest who had his phone taken, sent AlterNet a screenshot of his Google account, showing that, once his password-protected phone was in MPD custody, there had been almost immediate activity on his Google account. George Joseph of CityLab documented similar activity in the case of an unidentified medic who was also arrested. Joseph reported on January 24, 2017 that a screenshot of Google account activity suggested that “police began mining information from the captured cellphones almost immediately after the arrests.”

Lazare reported that Google, Apple, and Facebook, as well as the MPD and the US Attorney’s Office, all declined to comment for AlterNet’s story.

It was unclear what legal instrument law enforcement used to compel the three companies to turn over information on their customers. Different legal instruments grant various degrees of power. A National Security letter would require no court order while a 2703(d) court order allows access to metadata about communications and possibly location. The information to be turned over could range from a relatively small, targeted cache, to everything a user has in the iCloud, photos taken, and messages and emails received and sent.

This story is critically important for several reasons. Mark Goldstone has defended protesters in the Washington, DC, area for more than thirty years. He emphasized to AlterNet that he had never heard of a case in which mobile phones were seized at protests, and was unaware of previous cases in which protestors faced felony riot charges. Unlike the usual misdemeanor charge, a felony riot charge carries a penalty of up to ten years in prison and fines up to $25,000. “We’re in a dangerous new world,” Goldstone said. Evidence that MPD officers accessed arrested individuals’ phones and Google accounts begs the question, did the police break the law? Specifically, their actions during Trump’s inauguration seem to violate the Supreme Court’s ruling in Riley v. California. In that 2014 decision, the Court ruled 9–0 that “officers must generally secure a warrant before conducting such a search.” In combination, the threats of felony riot charges and cellphone seizures are likely to have a chilling effect on citizens exercising their First Amendment right to assembly.

Citizens’ First and Fourth Amendment rights are further threatened as local, state, and federal law enforcement are increasingly equipped with both cellphone interception devices and cellphone extraction devices. CityLab’s George Joseph has reported that the fifty largest police departments in the US have invested heavily in military-grade surveillance tools. One device, called a Dirtbox in honor of the company that produces the devices, Digital Receiver Technology (DRT), can track and receive data from almost ten thousand phones at once.

In May 2017, the Guardian reported that, since Trump was elected, more than twenty states have proposed bills that would “crack down” on protests and demonstrations, in ways that UN experts have described as “criminalizing peaceful protests.” In March 2017, the Guardian reported that David Kaye and Maina Kiai, special rapporteurs on the freedom of expression and freedom of peaceful assembly, respectively, from the UN’s Office of the High Commissioner for Human Rights, submitted a report to the US State Department, documenting the “worrying trend” in state legislation restricting the rights to freedom of peaceful assembly and freedom of expression in the US.

Aaron Mackey and Dave Maass, “Law Enforcement’s Secret ‘Super Search Engine’ Amasses Trillions of Phone Records for Decades,” Electronic Frontier Foundation, November 29, 2016, https://www.eff.org/deeplinks/2016/11/law-enforcements-secret-super-search-engine-amasses-trillions-phone-records.

George Joseph, “Are Police Searching Inauguration Protesters’ Phones?,” CityLab, January 24, 2017, https://www.citylab.com/equity/2017/01/are-police-searching-inauguration-protesters-phones/514244/.

George Joseph, “Inauguration Protesters Targeted for Facebook Searches,” CityLab, February 3, 2017, http://www.citylab.com/crime/2017/02/inauguration-protesters-targeted-for-facebook-searches/515517/.

George Joseph, “Cellphone Spy Tools Have Flooded Local Police Departments,” CityLab, February 8, 2017, https://www.citylab.com/equity/2017/02/cellphone-spy-tools-have-flooded-local-police-departments/512543/.

Sarah Lazare, “Law Enforcement Using Facebook and Apple to Data-Mine Accounts of Trump Protest Arrestees,” AlterNet, February 22, 2017, http://www.alternet.org/activism/law-enforcement-using-facebook-and-apple-data-mine-accounts-trump-protest-arrestees-0.

Student Researchers: Samantha Bosnich (Sonoma State University) and Tom Field (Diablo Valley College)

Faculty Evaluators: Peter Phillips (Sonoma State University) and Mickey Huff (Diablo Valley College)