The War On Drugs is a war on your privacy

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Two years ago this month, in June of 2013, Edward Snowden disclosed massive amounts of information about the NSA’s mass spying apparatus, permanently changing the global conversation on surveillance and privacy. This was on my mind when I met with my friend Andy Greenberg over drinks last week. A few days prior to our meeting, the Patriot Act surveillance provisions expired, ending the NSA’a authority to collect bulk telephone metadata on American citizens. And one week earlier, Ross Ulbricht, creator of the Silk Road website, was sentenced to life in prison.

I knew all of these topics were somehow related, if not directly, at least theoretically; in a six-degrees sort of way. And I was hoping Andy—who is a great go-to source at the forefront of the technological war on, well, everything—could help inspire some direction for an article discussing just that. A senior writer at Wired and author of the book “This Machine Kills Secrets“, Greenberg’s feature interview with Ulbricht represents the last time the former Dread Pirate Roberts would speak to the press as a free man.

Having recently flown back from San Francisco for an unrelated story, Andy takes a sip of his beer, lets out a long sigh, and as if already prepared with a reply, turns to me and says, “You know what angle I would take?”

“What?” I ask.

“Everyone worries about the NSA, but it’s the DEA that shows the future of domestic surveillance.”

An important angle to be sure, and one that Andy—along with many of his colleagues—has covered extensively, though not nearly with the mainstream coverage of the Snowden revelations. Just a few months ago, Greenberg reported that in 2013 the Department of Justice offered a detailed account of how many domestic warrants for wiretaps were sought, and for what crime being investigated. “A staggering 88 percent of the 3,576 reported wiretaps were for narcotics.” That’s over 3,200 cases. The next closest was for homicide and assault at 132 wiretaps. Nearly a 25-to-1 ratio. Is the average American really that much less-concerned with being murdered than the threat of narcotics being sold outside of a pharmacy?

Andy Greenberg Author
Andy Greenberg. Photo via Epix.

“If this hasn’t caused the same backlash as the NSA’s surveillance, it’s probably because the average American thinks drug dealers are criminals who deserve to be surveilled,” Greenberg says, searching for an explanation. “I’d argue that even if you do side with the drug war (will anyone who has been awake in the last several decades actually admit to supporting the drug war?) you should still see drug dealers as canaries in the coal mine: You can watch them to figure out a lot about how the rest of us will be spied on sooner or later.”

A quick look around the internet would argue “sooner or later” is an outdated term.

One of the more damaging forms of surveillance exposed in the Edward Snowden NSA leaks was the use of a secret U.S. Drug Enforcement Administration branch to collect the personal information of suspected drug dealers. As reported by Reuters in August of 2013, the Special Operations Division—or “SOD” (noticing a naming trend here)—is comprised of two dozen partner agencies, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security, and has been collecting information from “intelligence intercepts, wiretaps, informants and a massive database of telephone records” and disseminating the data to authorities across the nation to “help them launch criminal investigations of Americans.”

Created in 1994 to combat Latin American drug cartels, much of the SOD’s work was classified, and its precise location in Virginia was never revealed. The documents reviewed by Reuters were marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential. Even more concerning, the documents “specifically direct agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Not only is the method by which the information they’ve uncovered to be kept secret, agents are expected to literally cover them up: “Agents are instructed to then use ‘normal investigative techniques to recreate the information provided by SOD.'” In other words, lying. Under oath.

I think you can say that the DEA, and more broadly the War on Drugs in every law enforcement agency, has actually pushed the legal limits of domestic surveillance more than the NSA.

The fact that the DEA, and more specifically, the War on Drugs have been pushing the limits of what constitutes legal surveillance should not surprise many, but the clear gap in the lack of attention it receives compared to its acronym’d brother the NSA, still boggles the mind. Shouldn’t the most ardent liberals and progressives see this as a misuse of taxpayer dollars? Why isn’t the Tea Party up in arms over this obvious infringement of our constitutional rights? At the least it seems like a controversial gold-mine for the media, no matter which side of the aisle they reside.

“The media talks about what people care about, and people care about themselves,” Greenberg tells me as I fail to grasp any logical reasoning for a lack of outrage. “The majority of Americans haven’t been targeted by drug war surveillance—or at least think they haven’t, even though the DEA was collecting the phone records of every international phone call in the country for years—so major media doesn’t often cover it.”

Still, it was this same threat of collecting the personal phone records of everyday, innocent citizens that created such a stir in regards to the NSA’s mass surveillance and metadata collection programs. Viewers of The Wire know how tangled within our political system the War on Drugs has become, and the conspiracy theorist in me can’t help but point to the correlation between the two agencies, which seem intrinsically tied at the hip. But does it go beyond that? Could the War on Drugs be a front for agencies like the NSA, in the sense that they use the fear of drugs to expand laws with very little resistance?

Nearly a decade before the September 11 attacks, the DEA and the Justice Department amassed logs of virtually every international telephone call from the USA to as many as 116 countries linked to drug trafficking. As the countries the DEA targeted changed, so did those they were able to obtain phone records for, including both of our neighbors, Canada and Mexico. In the years since, the number of electronic intercepts the DEA has conducted has tripled.

According to U.S. Today, the “now-discontinued operation, carried out by the DEA’s intelligence arm, was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks.”

Likely more than coincidental, the controversial data collection began in 1992, during the presidency of Bush Senior, nine years before his son authorized the NSA to gather its own logs of Americans’ phone calls, including domestic. The U.S. Today continued:

The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.

“To be clear, I don’t think the DEA is a front for the NSA,” Greenberg says, “but I think you can say that the DEA, and more broadly the War on Drugs in every law enforcement agency, has actually pushed the legal limits of domestic surveillance more than the NSA. If you look at the history of how legal precedents for acceptable surveillance are set in this country, almost every new kind of surveillance from GPS tracking to drones to thermal imaging of people’s homes to look for grow lamps—and of course the mass collection of phone metadata—has been first tested out in the drug war.”

Which brings us back to the Silk Road. While identifying Ross Ulbricht as the figurehead of the black market website has never been questioned—his own miscues posting on public forums led investigators to name him using a simple Google search—what we don’t know, as Greenberg points out, is how the FBI found the Silk Road server and IP address, which was protected by the cryptographic anonymity software Tor.

“The FBI has said in court documents that an error in the Silk Road’s configuration of Tor revealed that IP address,” Greenberg explains. “But their description of that discovery didn’t make a lot of sense, and when the security community and Ulbricht’s defense started asking questions the FBI has mostly refused to say more. Instead, the prosecution in Ulbricht’s case switched to a totally different argument: One of those arguments was that even if the FBI had completely broken Tor’s protections—without a warrant, mind you—that would be ok since the Silk Road server was in Iceland, not America. But the notion that American privacy rights don’t apply to Americans’ data when it’s stored in a foreign country is pretty troubling.”

Troubling indeed, since most Americans have no idea the location of the server of any given site they search and shop on. Furthermore, there are sites similar to the Silk Road in places like Russia and China—locations of international importance to the United States’ economic and security interests—where illegal drugs are bought and sold online without any real consequences. The fact it was homegrown and eventually included a murder-for-hire scheme likely doomed the Silk Road, but the conversation of wiretapping and national security take a weird turn when you consider the American public is seemingly under more scrutiny than our perceived enemies.

“I don’t think anyone thinks that browsing a site outside the US lets the NSA legally start monitoring you,” Greenberg says. “But I do think the prosecution’s statements in the Silk Road case do kind of imply that argument, which is pretty crazy.”

As Greenberg pointed out in his April Wired piece, drug-related surveillance is far more domestic in its focus. Which means if you want to know your personal privacy rights, and lack thereof, you should pay very close attention to the precedents set by the American judicial system with regards to drug cases. In that same story, Electronic Frontier Foundation defense attorney Hanni Fakhoury noted that, “just about every major Fourth Amendment case in the last 30 years [has] been a drug case.” (Fakhoury cited five specific cases which you can read here.)

While conservatives point to the War on Drugs providing insight into larger crimes and further corruption (see: Stop & Frisk), those speculations are easily disproven by surging drug use and prison sentences. The prison population has quadrupled since 1980, mostly due to mandatory sentencing that became popular during the Nancy Reagan, D.A.R.E. days, and illicit drug use (and gun ownership) is at an all-time high. All of this has left the American public feeling disenfranchised about the impact of the War on Drugs, with our trust in Big Brother ever waning.

“I hope that Americans are figuring out that surveillance is a bigger threat to democracy than drugs,” Greenberg says, offering a glass-half-full explanation. “Maybe I’m being overly optimistic, but I think they’re starting to come to that conclusion.”

Like most philosophical questions, a conclusion is probably not on the horizon. A proverbial “cat and mouse” game of one-upmanship will continue to exist between criminals and law enforcement. (“I like the description of internet security as a Red Queen race, where you have to run just to stay in place,” Greenberg says.) The rotating door of surveillance and privacy technologies will keep spinning, but at least for the time being it would seem as though the populous shares Greenberg’s optimism. Snowden’s leaks revealed that surveillance technologies have gotten way more sophisticated than those governing our privacy, and time has helped re-brand the man from traitor to hero in many Americans’ eyes. Still, the case of the Silk Road, and the DEA’s unfettered use of surveillance are reminders that the complicated, tech-driven impact of with U.S. government spying will continue to expand.

“Surveillance and privacy are locked in a kind of evolutionary struggle between predator and prey,” Greenberg concludes. “And that’s a game that doesn’t end.”