The DEA Bypasses Federal Oversight to Better Snoop on Us All

Agents turn to local judges and prosecutors to get permission more quickly.


Broken windows policing

Reason has written extensively in our coverage of police asset forfeiture about how local law enforcement agencies bypass state restrictions by turning to the Department of Justice's looser federal sharing program. Doing so allows some law enforcement agencies to keep more of the money and property they seize.

It seems as though the Drug Enforcement Administration (DEA) has reversed this dynamic, all in the name of more easily snooping on people. USA Today has determined that the DEA has drastically increased its use of electronic surveillance over the past decade by deliberately bypassing its own federal oversight and turning to local prosecutors. The Department of Justice (DOJ) has tougher requirements to permit eavesdropping than states and local judges:

The DEA conducted 11,681 electronic intercepts in the fiscal year that ended in September. Ten years earlier, the drug agency conducted 3,394.

Most of that ramped-up surveillance was never reviewed by federal judges or Justice Department lawyers, who typically are responsible for examining federal agents' eavesdropping requests. Instead, DEA agents now take 60% of those requests directly to local prosecutors and judges from New York to California, who current and former officials say often approve them more quickly and easily.

Drug investigations account for the vast majority of U.S. wiretaps, and much of that surveillance is carried out by the DEA. Privacy advocates expressed concern that the drug agency had expanded its surveillance without going through internal Justice Department reviews, which often are more demanding than federal law requires.

Wiretaps — which allow the police to listen in on phone calls and other electronic communications — are considered so sensitive that federal law requires approval from a senior Justice Department official before agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on state court wiretaps, even when they are sought by federal agents.

A DEA spokesperson insisted their agents weren't trying to bypass oversight, but rather the states and local prosecutors have gotten more willing to participate in wiretap investigations and bring in local police to assist. Also, DEA agents still have to follow federal safeguards for wiretapping, even if they don't go through the DOJ or federal judges for approval.

It occurs to me to go back to my initial comparison to federal asset forfeiture rules. By bringing in local police to assist, whatever these cases are must almost certainly then become joint operations, which means the police can then use the federal program to try to seize and keep more of whatever they find in these investigations.

The USA Today piece does not attempt to look at or correlate these investigations with participation in the federal Equitable Sharing Program, but there has been a similar increase in law enforcement agencies turning to the federal program for civil asset forfeiture. The story notes increases in turning to local courts for wiretap approval in Southern California, a doubling in Riverside.  In April, the Drug Policy Alliance released a report showing that revenue California cities have seen from participating in the federal asset forfeiture reform has tripled over the same time frame covered as this USA Today report, while revenue from state asset forfeiture has remained the same. No doubt local prosecutors and law enforcement agencies are thrilled to help the DEA with their wiretapping. There's quite the financial incentive involved.