Yet another mass government surveillance program has been exposed. This time, it’s Data Analytical Services (DAS), formerly known as “Hemisphere,” a massive domestic surveillance program that allows any law enforcement agent (local, state, or federal) to search through trillions of records retained by telecommunications giant AT&T. Law enforcement agents can retrieve geolocation information and the calling records (not recordings of the calls) of the targeted person and those they have communicated with without a warrant or court order. To retrieve these records, agents need to file an administrative subpoena, a much lower legal standard that agencies issue themselves. Oftentimes, agents will order a “community of interest” subpoena, a dragnet surveillance tactic that targets a nexus of individuals
The scope of DAS is striking. It casts a wider dragnet than the telephone metadata program operated by the NSA, which was shuttered in 2014 after its collection was deemed illegal by the U.S. Second Circuit Court of Appeals. This is the program that Edward Snowden revealed to the American public in 2013.
DAS was first disclosed by the New York Times in 2013 as Hemisphere. Since then, law enforcement agents have been instructed to never “refer to Hemisphere in any official document” to maintain its secrecy. Practices like parallel construction, in which the government hides illegal methods of surveillance by fabricating an ostensibly legal evidentiary path, ensured that Hemisphere would not see the light of day or the scrutiny of the court.
Call records collected under Hemisphere are metadata. They are comprised of phone call locations, times, participants, and lengths while excluding the content of the calls themselves. Nonetheless, this mosaic of information is ripe for pattern analysis, enabling law enforcement officers to track one’s personal lives and physical locations. Under the Supreme Court’s ruling in Carpenter v. United States, historic cell site location information should be accessed only with a warrant based on probable cause.
DAS involves an obscure and convoluted funding arrangement. The program is maintained under an affiliated program called HIDTA, or “high-intensity drug trafficking area,” funded by the White House’s Office of National Drug Control Policy (ONDCP). HIDTAs are geographically designated areas in the U.S. that display high rates of drug trafficking. There are 33 in total, and they include Los Angeles, New York, Miami, and the entire U.S.-Mexico border. The White House has provided at least $6.1 million to the DAS program since 2013, and $280 million to HIDTA in 2020 alone. It remains to be discovered how much HIDTA funding goes to AT&T to support its collection of Americans’ phone records.
Funding for Hemisphere was suspended by former U.S. president Barack Obama in 2o13. Even though discretionary funding was held for three years, records obtained by WIRED indicate that individual law enforcement organizations were permitted to contract with AT&T to maintain access to its phone records. Funding was halted again in 2021, but resumed in 2022 under president Joe Biden. This was after the Supreme Court’s holding in Carpenter v. United States, which made it clear that Americans have a reasonable expectation of privacy in their location data.
These massive loopholes that enable even local police to engage in warrantless mass surveillance of Americans’ phone records cannot be preserved. Although there’s more than enough evidence that we need comprehensive government surveillance reform, this bombshell report on DAS should signal a strong message to the White House: Stop opposing meaningful FISA reform and support legislators’ efforts to pass the bipartisan Government Surveillance Reform Act (GSRA).
The GSRA would be the perfect solution to mass surveillance programs like DAS/Hemisphere.
S. 501 and S. 502 of the GSRA would strengthen provisions under the Electronic Communications Privacy Act (ECPA) to protect phone records and location information. It would require law enforcement to obtain a warrant under the Stored Communications Act before obtaining historical location information or search query records from online service providers (e.g., a cell phone provider like AT&T). This would eliminate the ability of law enforcement to obtain cell phone records with a mere administrative subpoena, requiring at least a court order certified with judicial oversight.
S. 402 of the GSRA requires the Department of Justice Inspector General to conduct reviews of all HIDTA surveillance programs within six months after enactment and subsequently every five years. This transparency requirement would eliminate the ability of law enforcement to keep programs like DAS secretive because they would have to divulge information about surveillance programs that are federally funded.
Sec. 204 clarifies proper notice requirements for FISA derived information and evidence. Any information that would not have been found if not for electronic surveillance, a physical search, or other means of surveillance “regardless of any claim that the information or evidence is attenuated from the surveillance… or was subsequently re-obtained through other means” must be disclosed with proper notice.
This provision explicitly deals with parallel construction without employing the term. It precludes law enforcement from building alternative evidentiary chains that would be legally admissible in a court of law without disclosing the original source of the evidence in their possession. It eliminates the process altogether.
Other provisions in the GSRA ensure that Americans would be protected from warrantless surveillance conducted under FISA Section 702, EO 12333, or through data-broker loopholes. The GSRA provides for heightened judicial oversight of government surveillance, and outlines pathways for citizens to seek civil damages for potential or actual violations of their privacy under government surveillance powers (See S. 210).
See our press release on DAS below: