At question are the practices of the DEA's Special Operations Division (SOD), which works with two dozen partner agencies, including the CIA, National Security Agency, Internal Revenue Service and Department of Homeland Security. The DEA unit reportedly has been passing NSA-furnished counterterrorism surveillance -- including wiretap information, tips and telephone records -- to other agencies, some of which are using it as part of criminal investigations unrelated to espionage, terrorism or nuclear proliferation.
The DEA is part of the Department of Justice, which this week launched a related investigation. "The department is looking into the issues raised by the story," said a department spokesman via email.
The information-sharing -- and obfuscation -- revelations also have lead to an outcry from civil rights and privacy experts, who said the practice likely violates Fourth Amendment protections against unreasonable search and seizure. "This is really bad. The surveillance state is closer than most of us think," said Bruce Schneier, chief security technology officer of BT, in a blog post.
Here are six related concerns:
1. Leaked NSA Operating Guidelines Grant Broad Latitude.
The information-sharing guidelines for the NSA's surveillance programs were first published in June, after being leaked by NSA whistleblower Edward Snowden.
In general, the guidelines require agency analysts to practice minimization techniques to ensure that they're not analyzing information about U.S. citizens. But the guidelines give them broad leeway to share "inadvertently" collected domestic communications. In addition, the NSA can retain -- for up to six months -- communications that don't contain "foreign intelligence information" but that are "reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed," and allow them to share this information with law enforcement agencies, typically the FBI. At that point, the bureau could attempt to obtain a probable-cause warrant from a judge.
But some legal experts have said that this information-sharing arrangement violates the Constitution. "The NSA intercepts, whether they are mail covers, metadata or what have you, are in essence general warrants," Denver-based criminal defense attorney Harold Haddon told the San Francisco Chronicle. But using those warrants as part of a criminal investigation "is a bright-line Fourth Amendment violation."
2. Spooks Say Intelligence Can't Be Ordered Up.
U.S. intelligence officials have defended the sharing as involving information that NSA happens to discover, rather than seeks out on behalf of law enforcement agencies. "We can't task the collection of information for those purposes, and the Department of Justice can't ask us to collect evidence of that kind of a crime," Robert Litt, general counsel for the Office of the Director of National Intelligence, recently told an audience at the Brookings Institution, reported the San Francisco Chronicle.
But his detailing of the practice suggested that information is shared for many more types of crimes than might have been suggested at first. "If the intelligence agency uncovers evidence of any crime ranging from sexual abuse to [the Foreign Corrupt Practices Act], they tend to turn that information over to the Department of Justice," Litt said. "But the Department of Justice cannot task the intelligence community to do that."