DEA eavesdropping tripled, bypassed federal courts

WASHINGTON — The U.S. Drug Enforcement Administration more than tripled its use of wiretaps and other types of electronic eavesdropping over the past decade, largely bypassing federal courts and Justice Department lawyers in the process, newly obtained records show.

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.

"That law exists to make sure that wiretap authority is not abused, that it's only used when totally appropriate," said Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. "That's a burden. And if there's a way to get around that burden, the agents are going to try to get around it."

USA TODAY obtained the DEA's wiretapping statistics under the Freedom of Information Act. The figures include every order authorizing or extending electronic eavesdropping. Some orders could be counted more than once, if they include the collection of both voice calls and text messages, for example.

DEA Spokesman Joseph Moses said agents' increased use of wiretaps reflects "the proliferation of communication devices and methods" used by the drug traffickers. He said the wiretaps have been critical for agents to penetrate the networks high-level traffickers use to control their operations.

The legal safeguards for wiretaps are supposed to be the same in both state and federal courts. To tap into communications, police must persuade prosecutors and a judge that they have probable cause to think that the communications will contain evidence of a crime, and that they have no other way to build their case. But how judges and prosecutors interpret those requirements can vary among jurisdictions.

"Within Justice, it was a rigorous standard," said Stephen T'Kach, a former lawyer in the Justice Department office responsible for approving wiretaps. "In the states, you have 50 different standards for what's going to be enough."

Moses said DEA agents were "making no attempt to circumvent federal legal standards and protections by instead pursuing state wiretap authorizations." Instead, he said, the rapid growth of state-authorized eavesdropping reflects local prosecutors' increased willingness to take on complex wiretap investigations, which often involve teams of local police and federal agents. At the same time, he said, some federal prosecutors "may be unable to support wire intercept investigations due to manpower or other resource considerations," so agents take their cases to state officials rather than see them dropped.

The DEA records do not indicate which state courts have approved the ramped-up surveillance, but state court records and statistics compiled by the federal courts' administrative office offer some indications.

For example, judges in the Los Angeles suburb of Riverside, Calif., authorized more wiretaps in 2013 than any other jurisdiction in the country and significantly more than any federal court, according to records compiled by the Administrative Office of the U.S. Courts. The number of wiretaps approved there nearly doubled between 2013 and 2014, to 602, according to California's attorney general.

John Hall, a spokesman for Riverside County's district attorney, said he could not comment on whether the office had approved wiretaps for federal investigators because the applications often are sealed. Court records there show prosecutors submitted some wiretap applications at the request of the DEA.

State court judges in Buffalo and San Diego also approved DEA wiretap requests, according to court records.

"There was always some heartburn in Justice when DEA was going into state courts," T'Kach said. That was tempered, he said, because state wiretap laws must include all of the safeguards federal law requires, and there was no suggestion that evidence gathered through state-court wires was being thrown out of court later.

How often that happens is difficult to measure. Agents said many of the cases in which state judges authorize wiretaps end up being prosecuted in state courts, where challenges to wiretap evidence are less common. According to records the district attorney submitted to California's attorney general, for example, only about 2% of the 1,400 wiretaps authorized in Riverside County over the past five years were later challenged in state court.

Follow investigative reporter Brad Heath on Twitter at @bradheath.