A privacy-rights defender is calling on AT&T to shut down a telephone spy operation it has rented out to police agencies, because it accesses “trillions” of private telephone records.
“AT&T and the police tried to keep Hemisphere secret. They failed,” wrote Adam Schwartz Friday on the website for the Electronic Frontier Foundation.
“The time has come to end the Hemisphere program. As a matter of constitutional law and basic privacy principals, the police should not be allowed, without case-by-case judicial oversight, to scrutinize our social relationships with a database of trillions of phone records.”
Privacy groups previously have complained about analysis of individuals’ telephone records, which can reveal personal details such as appointments at Planned Parenthood or calls to a local political party or a psychiatrist.
The New York Times exposed the Hemisphere program in 2013, and EFF later sued state and federal law enforcement agencies for more details.
The Daily Beast reported that while such detailed investigations of personal phone records sometimes can help in criminal investigations, the setup of Hemisphere raised red flags.
For example, the program was set up to be secret, and both corporate and police officials tried to keep it that way, much like another program, the Stingray, which collects all cell phone calls in certain areas for the police.
When it first was uncovered, the Justice Department described Hemisphere as a “counter-narcotics” tool, the Times said.
But the new report said it is simply a product of AT&T that is marketed and sold “at a cost of millions of dollars per year to taxpayers” that gives police access to “the company’s massive trove of data.”
The new concerns are being raised in light of AT&T’s attempts to acquire Time Warner.
“AT&T has a unique power to extract information from its metadata because it retains so much of it. The company owns more than three-quarters of U.S. landline switches, and the second largest share of the nation’s wireless infrastructure and cellphone towers, behind Verizon,” the report said. “AT&T retains its cell tower data going back to July 2008, longer than other providers. Verizon holds records for a year and Sprint for 18 months.”
Schwartz said AT&T is currently adding 4 billion call records to Hemisphere on a daily basis.
And he pointed out AT&T’s requirement when investigators access the system: “[T]he government agency agrees not to use the data as evidence in any judicial or administrative proceedings unless there is no other available and admissible probative evidence. The government agency shall make every effort to insure that information provided by the Contractor is non-attributable to AT&T if the data is provided to a third-party.
“What do police do with the Hemisphere evidence that they cannot talk about? According to a Hemisphere training document, police must ‘wall off’ that evidence, and then recreate it with a traditional subpoena. Police call this ‘parallel construction.’ EFF calls it ‘evidence laundering.'” Schwartz wrote.
He said there are many problems.
“First, this secrecy hides Hemisphere from democratic oversight. Hemisphere enables police to map our intimate social relationships by data-mining massive amounts of our call records, usually without a warrant. Yet because of Hemisphere’s secrecy, judges cannot rule on whether the program violates the Fourth Amendment. Legislators cannot oversee the program and enact appropriate legislation. Voters cannot hold their elected officials accountable. Everyone is in the dark, except for a small number of law enforcement and corporate executives, who unilaterally decided to impose this highly intrusive program on the rest of us.
“Second, this secrecy deprives criminal defendants of their constitutional right to a fair trial. Under Brady v. Maryland, police must disclose favorable evidence to the defense. When police hide their sources of evidence, the accused cannot challenge the quality or veracity of the government’s investigation, or seek out favorable information still in the government’s possession. Moreover, hiding evidence from individuals who are prosecuted as a result of such surveillance is antithetical to our fundamental right to an open criminal justice system.
“Third, the new revelation clarifies AT&T’s role in the Hemisphere program. AT&T suggests that all it is doing is passively responding to lawful government demands for information about its customers. In fact, AT&T actively imposes secrecy on police who wish to use AT&T’s Hemisphere program. AT&T’s motives for imposing this secrecy are not presently known. Perhaps AT&T is seeking to avoid public scrutiny of its Hemisphere business model, which earns millions of dollars from police officials in exchange for access to private phone records that AT&T retains for many years longer than its competitors do.”
He concluded: “We must fully expose Hemisphere to the light of public scrutiny. … Looking forward, we must stop the police and their corporate suppliers from unilaterally and secretly deploying new surveillance technologies in the first place.”