Earlier this year, Human Rights Watch learned that the United States Drug Enforcement Administration had, since 1992, been running a mass surveillance operation that collected records from US telephone calls to more than 100 countries. This program, a precursor to post 9/11 National Security Agency mass surveillance, used an “expansive interpretation” of authority to issue administrative subpoenas with no judicial oversight. The result: Domestic law enforcement agencies were able to access an enormous database of private citizens’ information with relatively little cause and even share some of its contents with foreign law enforcement agencies.
Perhaps conscious of the dubious legality of this program, the government claimed in January 2015 that they had dismantled it in 2013. We’ve heard the government make claims about how limited or lawful its surveillance is before, only to be surprised at its interpretation of the limits and the law. So just to be certain, Human Rights Watch sued, with the help of the Electronic Frontier Foundation, to ensure that our sensitive call records and vulnerable sources and contacts were not lingering in some database, along with those of millions of Americans and their contacts abroad.
Today we can declare victory and voluntarily dismiss our case. When the government challenged our standing to sue, the court, in an all-too-rare decision, ordered the government to respond to our questions under penalty of perjury (read the response here). We learned that only one database was used to store the call records collected; that while the program was operational, call records were deleted automatically after two years; and that the database was removed from use in August 2013 and destroyed by January 2015.
Not every record is gone, though. Although we have confirmed that the database containing Americans’ records in bulk has been destroyed, the government retains some records, in other formats, obtained through earlier searches of the database. But the government’s retention policy for these records was haphazard, which may make it difficult for criminal defendants to know when investigations relied on such illegally gathered evidence. And we know that bulk phone records collection may be continuing under various other legal authorities, even after the USA Freedom Act ended such nationwide collection under Section 215 of the Patriot Act.
But we can celebrate a small victory for transparency and legality today, and hope for further victories to come.