On Monday, Reuters reported that the Special Operations Division, a secretive unit of the Drug Enforcement Administration is using NSA electronic surveillance data in the War on Drugs, and then deceiving judges and defense lawyers about the source of the evidence when it is used in criminal trials. As various experts quoted by Reuters point out, such deception is a violation of elementary due process.
Julian Sanchez of the Cato Institute has a good post discussing some of the other risks of this kind of “mission creep”:
This should serve as a crucial reminder that you can’t build a massive architecture of surveillance “just for terrorism” and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we’ve seen again and again how—mostly because there just aren’t all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act’s “Sneak and Peek” searches (used almost exclusively in drug rather than terror investigations) to federally funded “fusion centers.”
Such expansive use of surveillance data beyond national security purposes has already occurred in France. In the United States, as Sanchez notes, the New York Times recently reported that many domestic agencies are clamoring to use NSA data for their own purposes:
The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the intelligence community has been agitated in recent years for the opposite reason: frustrated officials outside the security agency say the spy tools are not used widely enough.
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
It’s difficult to believe that the NSA can continue to resist these pressures indefinitely. You might argue that this is no problem, so long as the data is being used to enforce federal law. But in a world where nearly all of us are probably guilty of one federal crime or another, that’s not much of a constraint. Moreover, the more agencies have access to the data, the greater the risk that it will be abused in various ways.
As Sanchez points out, the Reuters report isn’t clear about how much NSA data is being used by the DEA, and under what kinds of safeguards. It’s possible the mission creep here is relatively modest. Even so, it seems there have already been abuses in so far as the DEA has been hiding the origins of the evidence in criminal trials.
The Justice Department has begun an investigation of the DEA’s use of this data, and perhaps that will help curb future abuses. But I am skeptical that it can prevent further mission creep in the long run. Ultimately, the extent of surveillance power exercised by the NSA may be too great to trust any government agency with. And it may also be too dangerous to trust any agency not to share such a “big pot of data” with other agencies that want to get in on the action.