Operation Hemisphere – How the Government Avoids the 4th Amendment

This article is the first of a two-part series concerning federal law enforcement in the United States.  Presently I am concerned with a federal program named Hemisphere, and what it means to American civil liberties.

Under Hemisphere, federal law enforcement agencies embed officials of various telephone companies into their operations.   The telephone contractors can then provide customer information and data along to the respective agency on the authority of a federal subpoena.

In this article I am going to explain why this is a violation of the Fourth Amendment. I contend that the program amounts to nothing more than a word game that eases the burden on law enforcement and places our civil liberties in jeopardy.

Acting as Agents

Law enforcement agencies are not allowed to use private companies to act as their agents as a way to circumvent the Constitution.  Let me present an example to help illustrate the case.  Suppose a private shipping company believes they have a suspicious package coming through their system.  The private company reserves the right to open any package it deems suspicious or questionable.  These are administrative guidelines enumerated by the company.  They do not need a warrant or probable cause because they are a private company and not acting on behalf of the government.  If the shipping company notifies law enforcement officials to alert them that they have a package that may contain drugs or contraband, and law enforcement officials instruct the company to open the package, they are now acting as an agent of the government.  The search is then subject to the provisions enumerated in the Fourth Amendment.

In the case of Hemisphere, the telephone contractors are dangerously close to being agents of the government.  The government is utilizing a private company to gather information it would otherwise not be to obtain.  Law enforcement officials claim that they serve the contractors with administrative and grand jury subpoenas.   I would be shocked if a majority of the subpoenas were not administrative in nature.  Administrative subpoenas have the potential to vex the requirements of the Fourth Amendment.

Administrative Subpoenas

The problem with administrative subpoenas is that there is no prior judicial oversight.  In many instances, law enforcement officials (usually the Special Agent in Charge – SAC) signs the subpoena and it is served on the company.  This is different than a subpoena demanding someone appear in court.  The administrative subpoenas utilized in Hemisphere, and other operations, are used to search and gather information or data.

This is not equivalent to making application for a search warrant before a judge or magistrate.  In essence, law enforcement decides it wants information and signs a piece of paper demanding a private company provide said information.  There is no supporting probable cause affixed to the affidavit.

The Bottom Line

We have learned that NSA is gathering phone and communication documentation on millions of subscribers in America.  Now, we are learning that the FBI, Homeland Security, and DEA are embedding contractors from phone companies into their operations and utilizing administrative subpoenas to gain access to, and search, additional data.

If law enforcement officials obtained legitimate search warrants or subpoenas based upon probable cause, issued by magistrate of the court, I would have no problem with the program.  However, to try and claim that these contractors are not acting as agents of the state is disingenuous.  To consider administrative subpoenas equivalent to search warrants is to make a huge mistake.

Tomorrow I am going to look at the cost of some of these programs and allow you to determine if the money is being allocated properly.