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Human Rights Watch Sues US Government Over DEA’s Massive Surveillance Program Which Chills Their Work

Human Rights Watch has sued the United States government over a massive surveillance program that intercepted billions of Americans’ international phone call records and was operated by the Drug Enforcement Agency for more than two decades.

The lawsuit names one hundred unidentified officials or employees involved in operating the program as defendants. It also names the Department of Homeland Security, FBI and Justice Department, as well as its heads, as defendants in the case.

Because the human rights organization’s staff uses US telecommunications services to communicate with “victims of, or witnesses to, human rights abuses” in countries targeted, the lawsuit argues that the government collected call records that show the “numbers called by HRW and its staff, the date, time and duration of the calls,” and “the metadata by which calls were billed.”

Such information, collected and stored in bulk, makes it provides the government “with the network of HRW’s sources, colleagues and associates within the called designated countries.” The government is able to identify all of HRW’s telephone contacts.

This is an alleged violation of Human Rights Watch’s First Amendment and Fourth Amendment rights.

A report from USA Today on April 7 brought renewed attention to this surveillance, which the DEA used to fabricate evidence against criminals through “parallel construction.” The DEA relied on tips from intelligence data and, after uncovering evidence, would oftentimes use traffic stops to cover up how the investigation started. And, while the government maintains it helped uncover drug trafficking rings and money handlers, the authorities used the intelligence data for ordinary policing in the United States and kept evidence of the program out of the courts so it was not subject to any legal scrutiny.

The Justice Department confirmed the existence of this program in a criminal case in January. It revealed one of the countries where calls were targeted was Iran. The case did not involve drug trafficking but rather a violation of export goods restrictions.

It also announced that the program was ended in September 2013 after NSA whistleblower Edward Snowden brought widespread attention to US government surveillance with his disclosures, including the NSA’s similar bulk collection program under Section 215 of the PATRIOT Act. However, there has been no announcement to indicate the information collected, including data on HRW’s calls, was purged.

EFF points out, “Even if the government never attempted to identify HRW’s contacts and associates within the designated countries, the fact that the government collects this information in the first place—and the fact that this information remains within the defendants’ possession to this day—substantially burdens HRW’s ability to effectively communicate with people inside the designated countries. This burden, in turn, hinders HRW’s ability to effectively engage in its advocacy for global human rights.”

The human rights organization “cannot assure its associates that their communications records will not be shared with American law enforcement or the government of another country.” It is burdened by the fact that the government has created “permanent” records of telephone communications.

The Justice Department has refused to disclose the full list of countries targeted and its reasoning primarily involves protecting future law enforcement cooperation in similar programs.

Dinah PoKempner, general counsel for HRW, commented on the lawsuit, “At Human Rights Watch we work with people who are sometimes in life or death situations, where speaking out can make them a target. Whom we communicate with and when is often extraordinarily sensitive—and it’s information that we wouldn’t turn over to the government lightly.”

“Such surveillance effectively chills the use of telephones to collect human rights information in some of the world’s most dangerous situations, in some of the world’s most dangerous countries,” PoKempner added.

Nate Cardozo, an EFF staff attorney, suggests, “Too often, the government’s public claims about a program’s scope or its status don’t hold up under scrutiny. This lawsuit will ensure that the program is actually terminated—and that it can’t be started again.”

He acknowledges that a database can be deleted while the data itself migrates somewhere else, especially when in the control of a law enforcement agency.”

“We know that agencies other than the DEA—such as the Department of Homeland Security—had access to the data collected under the program and that they used it for purposes entirely unrelated to the war on drugs. Our lawsuit seeks to root out the data illegally collected by the DEA, wherever that data has gone, and ensure its permanent deletion.”

Through the lawsuit, HRW and EFF hope to not only end the massive surveillance program once and for all but also establish that bulk collection of any Americans’ data is entirely unconstitutional.

Below is a copy of the filed complaint.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."