|Illustration by the Electronic Frontier Foundation.|
A federal judge in Los Angeles has given our clients, Human Rights Watch, the go-ahead to take discovery from the government in our ongoing lawsuit challenging the constitutionality of the DEA’s bulk surveillance program. Friday's decision is rare, and it's a decisive victory—both for HRW and for the general public. EFF is not aware of any other case where discovery has been allowed into a government mass surveillance program. And the order forces the government to answer questions, under oath, about the steps it took to ensure that all illegally collected records have been fully purged from all government systems.
The case stems from the DEA’s disclosure in January of this year that it had secretly collected Americans’ international call records in bulk for over two decades. News reports described the program as massive—sweeping in billions of records of Americans’ calls to more than 100 countries around the globe, including Canada, Mexico, India, and Italy. The DEA relied only on an obscure administrative subpoena statute to obtain the records in bulk. That means, unlike the NSA’s bulk surveillance program, there was no judicial involvement whatsoever. Making matters worse, reports confirm that multiple agencies searched the illegally collected records for all kinds of cases—from terrorism, to drug trafficking, to export violations.
In April, immediately following a lengthy report in USA Today, EFF filed suit on behalf of Human Rights Watch against the DEA, DHS, FBI, and various unnamed agencies. The lawsuit challenges the constitutionality of the program, and seeks to ensure that the program is permanently stopped rather than merely suspended as claimed by DEA. The suit further asks the court to ensure that all illegally collected records are accounted for and destroyed.
The government, instead, asked the judge to dismiss the case. DEA had previously said that it had “suspended” collecting records in bulk in September 2013. Now, it submitted an additional four-paragraph declaration from a DEA agent that said the DEA’s illegally collected records had been “quarantined” and “purged.” That, the government argued, required the court to dismiss the case. The government was trying to sweep two decades worth of unconstitutional activity under the rug with a single, four-paragraph declaration.
We pushed back. We’ve seen enough government double-speak concerning surveillance programs to know that there was more to the story. We argued that the government’s four-paragraph, summary declaration wasn’t enough to establish that all of the billions of records it collected, over a twenty-year span, had been accounted for and purged. Instead, we asked the court to allow HRW to take discovery—basically, a process by which one party to a lawsuit can compel the other side to provide information—from the government about the surveillance program.
Although the court narrowed the scope of the discovery HRW can take, the decision is still a victory. It will provide some much needed insight into the government’s surveillance program and whether or not the government continues to retain and use those illegally collected records. And we'll keep fighting for more information about the program and to ensure that the program is stopped, once and for all.