Documents Show DEA Running Ever-Increasing Number Of Wiretap Applications Through Friendlier Local Courts

It looks like the DEA has upped the amount of surveillance it's performing, most likely not as a result of increasing drug trafficking, but more likely due to other contributing factors. According to information obtained through a USA Today FOIA request, 2014 was a record year for DEA wiretapping -- another in a decade-long string of consecutive "record years." (A slight, probably-Snowden-related dip in requests notwithstanding.)

The DEA conducted 11,681 electronic intercepts in the fiscal year that ended in September. Ten years earlier, the drug agency conducted 3,394.

At first glance, it would appear that the DEA is simply being more aggressive in its drug enforcement efforts. But more likely this is a sign that the DEA is just getting better at streamlining its wiretapping request procedures. To begin with, it appears the DEA doesn't feel federal courts need to be involved in federal investigations -- at least not when local courts will perform the same function but faster and with fewer questions asked.

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.

Not only does this allow DEA agents to more easily obtain permission to deploy wiretaps, but its "BUY LOCAL!" plan allows it to dodge additional scrutiny from the DOJ. While state courts are supposed to adhere to DOJ guidelines while approving wiretaps, it appears smaller courts are less likely to challenge DEA requests.

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.

As USA Today's Brad Heath points out, the DEA seems to love Riverside County. Judges there approved more wiretap applications than any other jurisdiction in the country, leading to the applications routed through it doubling from 2013 to 2014.

The DEA, however, claims there's no venue shopping or DOJ-ducking going on here. It's all just part of the magical complicated world of drug enforcement.

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.

That all sounds very plausible, but still doesn't explain why the DEA is running so many joint operations out of Riverside County. Be that as it may, the uptick in requests can also be attributed to the agency's long-running parallel construction schemes, which may now include communications gathered with the assistance of purchased exploits and malware. While many judges may be a bit hesitant to sign off on man-in-the-middle attacks to implant spyware on cellphones, they're perfectly happy to John Hancock normal law enforcement methods like wiretaps that achieve the same end.

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