DEA Documents Show How the Targeting of Suspects Widens to Include the Innocent

​In internal documents unearthed by a PPSA Freedom of Information Act (FOIA) request, the Drug Enforcement Administration (DEA) implicitly admits it searches the cellphones of innocent people who may be lumped in with the guilty.
 
One such document was a template for a search warrant affidavit used when DEA seeks to surveil its targets using cell-site simulators, also known as stingrays. The affidavit template commendably advises: “At a minimum, it is necessary to establish probable cause to believe that the suspect is likely to be carrying the Target Cellular Device, and that records about that cellular device’s use will be pertinent to the investigation.”
 
So far, so good.
 
Then the affidavit template advises that it is “often” the case that the Targeted Cellular Device is carried by someone who is “also” a suspect. Thus, the template contemplates two categories of searches – suspects and those who may not be suspects. This might mean, for example, that a suspected drug dealer’s phone, if used by his teenage daughter, could subject her communications to a search.
 
The DEA is thus led, as is so often the case in surveillance, by the robustness of modern technology that combines the privacy rights of the innocent in investigations of suspects of a crime. If the probable cause justification violates the privacy of people who are “often” suspects, what does this mean to those who are somehow adjacent to a suspect?
 
Other documents obtained in FOIA responses from the DEA showed eight instances in recent years in which it waived the Fourth Amendment requirement for a probable cause warrant for the use of cell-site simulators for cellphone surveillance.
 
These searches of cellphones were performed under “exigent” circumstances. These are emergencies in which law enforcement must move immediately – typically, the abduction of a child, a mass shooter ready to act, or a terrorist on the verge of a mass casualty attack. PPSA supports the need for law enforcement to be free to move forward in such emergencies. Congressional oversight would benefit, however, if the DEA offered categories of justification for these exceptions so we can be assured that they were genuine emergencies.
 
A final note: PPSA had to pull teeth to get the DEA to respond to our FOIA request, which it is required to do by law. We asked for responsive records on “exigent” and “emergency” circumstances in 2023. DEA waited a year to respond. Its response in February, however, was a denial, citing FOIA’s “Exemption 2” – which permits withholding records related solely to an agency’s internal personnel rules and practices. But PPSA did not ask for HR records and practices. Courts have held that “Exemption 2 is not subject to … a genuine and significant public interest,” which certainly describes the surveillance practices of the DEA.
 
To get a response to our FOIA request, PPSA had to appeal to the Office of Information Policy (OIP) of the Department of Justice. OIP overruled the DEA, which subsequently produced the records we quote here. Such grudging responses to the Freedom of Information Act by the DEA force us to look at its practices through a glass darkly. Perhaps the next Congress will take our insights as guidance to direct the DEA to be more forthcoming about its surveillance practices and how they impact the American people.

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