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DEA Turning Probable Cause into a Lost Cause

by Douglas Ankney

For over 20 years, the Drug Enforcement Agency (“DEA”) has run multiple bulk records collections. According to a report from the Inspector General (“IG”), the DEA targeted phone calls placed to “drug nexus” countries. (Almost anywhere in or out of the country is defined as a drug nexus. Similar to racial profiling, it is nation profiling.) Armed with this flimsy connection, the DEA then subpoenaed private companies to provide data from phone records on calls placed to those drug nexus countries. The subpoenas were non-targeted: meaning there was no identified probable cause. It is comparable to getting subpoenas for the records of checking accounts of everyone who lives on Elm Street because drugs are sometimes sold on Elm Street. This was called “Program A.”

Program B was similar. Non-targeted subpoenas were handed to specified vendors to gather data on purchases which were then cross-referenced with the DEA's bulk records database to identify targets to investigate. Most troubling with this approach is there is supposed to be an identified target to investigate - based on probable cause - before any records are collected and searched.

Under Program C, the DEA issued non-targeted subpoenas to telephone companies. The companies then searched their own databases to find connections of interest to the DEA, providing only the results of those limited searches.

But none of these programs was strictly legal. Most notably, the IG report stated “the DEA typically did not require more particularization than a single conclusory sentence, and did not explicitly require the documentation or certification that the [subpoena] request was relevant to a drug investigation....”

When filling out the boilerplate subpoena issuance form, the DEA agents simply clicked on a pull-down menu that listed a variety of choices for issuance, such as confidential informant, other ongoing investigation, etc. and selected one.



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