In October, four of the defendants in U.S. v. Ortiz — Whipple, Victor Flores, Benjamin Campos-Gonzalez, and Armando Acosta — subpoenaed Metro PCS, the Hemisphere Project, and the Los Angeles Clearing House to produce copies of all communication with law enforcement. Leung objected, contending that the defendants' attorneys — along with the EFF and the ACLU — were trying to use this case as a vehicle to gather more information about Hemisphere, so they could "turn it into a cause celebré."

But Judge Illston sided with the defendants.

The irony of a secret program being described as a "heads up" certainly wasn't lost on Lye, who attended the hearing as a spectator. "I loved that part," she exclaimed to an elevator full of listeners.


Washington peace activist Drew Hendricks was on a little fishing expedition of his own when he discovered the Hemisphere Project and decided to leak it to The New York Times. A long-time whistleblower who studies the mechanics of government surveillance partly from a sense of social obligation and partly out of curiosity, Hendricks was digging into a different government spying program — one used to track the movements of activists and protest leaders — when he stumbled upon Hemisphere. A "relatively inexperienced" public records officer sent the Hemisphere Project training slides by accident, attached to an e-mail that was being passed between gang investigators in the western states, Hendricks says.

The e-mail wasn't ostensibly related to the public-records search in question; it just got caught in a very wide net. But Hendricks says that when he read the missive, his interest was piqued.

The Hemisphere slides initially struck him as some kind of "special operation" protocol. "I thought it was special ops because it had a lot of the same language that law enforcement use when it's advising itself on how to keep stuff secret from judges," he explains. "Like the evidence used to make warrants."

But it turned out this was a new breed of procedural bypass, already 6 years old, but hitherto unreported. And Hendricks isn't convinced that it will remain solely a tool to bust gangs or narcotics rings. Nor does he think it will stay sealed off from the political realm.

"Keep in mind the FBI did something very similar to this in the 1950s, when J. Edgar Hoover was still in charge," Hendricks says, referring to one of the most famous historical periods of warrantless wiretapping. "They've definitely moved stuff off the books in the past."

It's conceivable that history could repeat itself. After all, Hendricks points out, the gang investigators who were distributing the Hemisphere slides were closely related to an Organized Crime Intelligence Unit in Washington, which passes around dossiers of known activists, Hendricks says. "Including people who aren't convicted of acts of political violence — just protest organizers who were seen by authorities as key figures who needed to be stopped."


Even if the program hasn't yet been directed at protest organizers, it seems to be routinely used, and so far unquestioned, in criminal proceedings. Just as advertisers meticulously track our browsing habits online through thousands of data point, governments pursue justice through oceans of information. And they now have the tools to paddle through it.

In fact, U.S. v. Ortiz isn't the only criminal case in San Francisco that's being stymied by a questionable phone records search. Just two floors down, in the same federal courthouse, the 20 co-defendants in U.S. v. Diaz-Rivera are accused of transporting and distributing bulk amounts of cocaine and methamphetamine from San Francisco to Seattle. To indict them, the government tracked more than 700,000 phone calls from about 600 different phone numbers, tracing their date, time, the direction from which they hit the cellphone tower, and sometimes, the approximate location of the phone.

Yet prosecutors from the U.S. Attorney's office only produced court orders for 52 of the phone numbers in question, according to a brief filed by the EFF and the ACLU.

In this case, the defense doesn't have any paper trail to show that San Francisco cops and DEA agents were communicating with AT&T before any subpoena was issued — they just see a lot of gaps in the record. "Ideally," Fakhoury says, "you should be able to draw a line between every phone record, and every order or subpoena — so that every piece of data has a request attached to it."

At a December hearing, prosecuting attorney Syed Waqar Hasib argued that it would be pointless — and extremely laborious — for the U.S. Attorney's office to produce administrative subpoenas for all 600 phone numbers. Yet he grudgingly agreed to pull together a complete record if the judge ordered one. (In January, Judge Elizabeth Laporte ordered the prosecution to provide subpoenas for five to 10 phone numbers.) Fakhoury and Lye believe his reluctance is just a cover-up. They think the prosecution knowingly built its case on evidence procured through Hemisphere and other controversial surveillance programs, such as "stingray" devices that act like miniature cellphone towers, scooping up information from wireless devices in the vicinity.

In an amicus brief filed in October, Fakhoury and Lye lay out their reasons for suspecting Hemisphere was deployed in U.S. v. Diaz-Rivera. The drug-trafficking ring in question spanned California and the Northwest — "exactly the geographic and subject-matter focus of the Hemisphere project," they write — and most of the 700,000 call data records procured have no subpoena attached. But the real clincher, they say, is that in this investigation, federal agents quickly identified burner phones as targets — suggesting they did the kind of back-end phone records analysis that's enabled by the Hemisphere Project.

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5 comments
trai_dep
trai_dep

What is VERY key about this article is - like every other policing "innovation" tried out on the worst-of-the-worst™ in "extremely limited" situations, it will inevitably become the routine go-to tool in law enforcement's quiver.


You can't invest millions without trying to amortize its costs. You can't justify these vast sums for "only" less than a score of worst-of-the-worst™ bad guys. You can't get additional funds - or even keep an existing program running at current levels - without new worst-of-the-worst™ bad guys to target. Or even, meh-of-the-meh college protesters, former Occupiers or folks unsure whether gentrification should be allowed to be an unrestrained hurricane stripping San Francisco's soul bare with nary a complaint or picket.


Remember a decade past when we'd see armored police using military tactics and armored personnel carriers to perform the simplest tasks and think, "What a horrible country; lucky it's not here."? Now everyone -or someone's grandmother next door - potentially abusing a Medical Marijuana permit faces these full-throttle, military-grade tactics. Same with Asset Forfeiture laws. Coming soon, same with aerial drones. Etc. 


Today it's a bunch of crack-dealing, meth-slinging murderers. The very same Hemisphere technology will DEFINITELY be used for the next protest, the next net-based defense of the next Edward Snowden or the next peaceful demonstration suggesting perhaps - just perhaps - the needs and concerns of us 99% might also be considered when setting policies and enacting laws.


Nip it now, before it's you in its crosshairs.

UntilSomeoneGetsHurt
UntilSomeoneGetsHurt

This technology successfully helped send three SF murderers to prison for life... They are detailed in a previous story by the SFWeekly entitled "The Dark Prince".  The whole story can be found at Until Someone Gets Hurt dot com.  If it helps puts the bad guys away, then I say use it!!!

Federale
Federale topcommenter

LOL, liberals and immigrant drug gangs working together to spread drugs and crime.  

Prachi Singh
Prachi Singh

Arpan Bajaj I thought this was you for a sec hahah

 
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