From Electronic Frontier Foundation / Creative Commons-licensed photo with some rights reserved

It was reported a couple months ago that the US Drug Enforcement Administration (DEA) had a secret unit, which was collecting information from informants, intercepts, wiretaps and a huge database of phone records and sending the information to authorities in the country for criminal investigations. However, law enforcement were given instructions on how to conceal how the investigations were started.

According to a Reuters story in August, federal agents were “trained to ‘recreate’ the investigative trail to effectively cover up where the information originated.” This made it impossible for defendants to “know to ask to review potential sources of exculpatory evidence—information that could reveal entrapment, mistakes or biased witnesses,” which likely violated their constitutional right to a fair trial.

The New York Times reported in September that the DEA was operating the Hemisphere Project, which involved a partnership between officials and employees at AT&T. The partnership gives the DEA access to massive database containing the “records of decades of Americans’ phone calls.” The database apparently contains many more records than the National Security Agency’s call records collected under the PATRIOT Act.

Evidence obtained from both of these programs can be kept secret from defense attorneys. Also, in some cases, the origins of evidence never become known to prosecutors or judges involved.

Two groups, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), are challenging the secrecy around these surveillance programs, which they consider unconstitutional. They say refusing to undermines a person’s right to a fair trial. They filed an amicus brief in a drug-related case, Diaz-Rivera.

Linda Lye of the ACLU of Northern California explained this case involves 20 defendants. The investigation leading to their prosecution “relied heavily on cell phone surveillance.” While “the government disclosed to defendants that it acquired records for almost 750,000 phone calls from 643 unique numbers,” it “has not explained how it acquired all of this cell phone data.”

“The government provided the defendants with court orders authorizing the collection of call data from only 52 phones; meaning it acquired call data from 591 numbers not specified in any court order,” Lye stated. “In addition, the government repeatedly obtained new telephone numbers used by the targets of its investigation, just days after they stopped using old phones, and without any real explanation about how it accomplished this feat.”

There is no mention of the Hemisphere Project in the government’s own investigative reports, however, the two groups suspect a program like it was used.

The brief argues the Diaz-Rivera case “involves one or more highly controversial surveillance programs: the National Security Agency’s Mass Cell-Tracking Program and the Hemisphere Project, both of which involve vast databases of Americans’ phone records, as well as so-called “stingray” devices, sophisticated tools that mimic a cell tower and thereby scoop up information from wireless devices in the vicinity.”

Defendants have a right to discovery evidence that would be relevant to a Fourth Amendment motion to suppress, the brief argues. They are entitled to “disclosure of the full extent of the electronic surveillance used in this case, in particular, any reliance on NSA-derived call data, the Hemisphere Project and/or stingrays.”

“The case involved the investigation of a drug trafficking ring in California and the Northwest—exactly the geographic and subject-matter focus of the Hemisphere Project,” according to the groups’ brief. Also, “The government in this investigation was able to quickly identify replacement phones as the targets of its drug investigation discarded old ones…That ability is one of Hemisphere’s ‘unique project features.’”

Furthermore, “consistent with Hemisphere,” the defendants’ “new phone numbers were identified because they were being ‘used by defendants in a similar fashion, with similar calling patterns and similar common callers’ to their old phones.

The ACLU and EFF believe the surveillance is unconstitutional because the Hemisphere Project “sweeps up the records of millions of individuals who are not the subject of any investigation, amassing their call records even though there is no suspicion they have engaged in criminal wrongdoing and analyzing their records without a warrant,” a violation of the First and Fourth Amendment.

The use of “Stingrays” is unconstitutional, according to the groups, because they are used to pinpoint suspects and third parties when they are inside their homes or other private locations and that violates their “reasonable expectations of privacy.” Fourth Amendment privacy rights and First Amendment associational rights are violated by the NSA’s massive call tracking program when it records and aggregates “telephony metadata” making it possible to map out a persons’ relationships with others in their life.

If the government deliberately omits information that could make the success of a motion to suppress evidence possible, that is a violation of a person’s due process rights. Defendants also have a right, under the Fourth Amendment, to challenge any unconstitutional surveillance.

Beyond the rights of defendants, there is a larger issue that is highlighted: keeping the role of these surveillance programs secret in cases prevents a court from being able to review the practices.

“By keeping this information secret, the government, whether intentionally or not, immunizes itself from popular, legislative and legal challenges to its surveillance practices,” the brief concludes. “Because the government seeks court authorization—either statutory orders or probable cause warrants—to engage in location tracking in ex parte [one-sided] proceedings, magistrates reviewing such applications lack the benefit of the adversarial process in deciding these complex legal issues. This has the potential to create serious distortions in the development of surveillance law, by allowing the executive branch excessive authority in ‘making’ the law.”

If the government can hide this information from criminal defendants—as it does when citizens request details through Freedom of Information Act requests, “these practices will escape all court review and the executive will effectively be allowed to make surveillance law unilaterally and secretly.”

Former NSA contractor and whistleblower Edward Snowden understood this dynamic. It played a key role in his decision to take documents and release them to US citizens and the world.

The public should be able to decide whether the operation of these programs are acceptable or not in our society. They need to be able to consider all of the constitutional issues involved. That cannot be done, especially if in court cases their role is being concealed.

But Snowden has helped create a moment where the future of all surveillance is debatable and the ACLU and EFF are taking advantage and righteously building off what he has done by getting involved in cases like Diaz-Rivera.