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The Drug Enforcement Agency is using data in criminal investigations collected from the NSA, FBI, CIA, IRS, and the Department of Homeland Security, according to a report published by Reuters. The agency, however, has the ability to withhold the origin of that information.
The investigative report cites documents obtained that teach officers how to conceal the origin of the information that led to arrests.
The department responsible for this is referred to as the “Special Operations Division,” and operates from a classified location in Virginia. It is also used for organizations such as the IRS to obtain and cover up tips coming from the DEA.
Members of the DEA have spoken out about the importance of the practice, referring to it as “parallel construction:”
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
The process is valuable for DEA efficiency. However, it spurs concern that the practice may threaten the safe guards of individual rights guaranteed by the Constitution. Obscuring the true nature of an investigation presents uneven challenges for a defense attorney.
When agencies systemically adopt cover-ups, they are granting themselves the power to decide what can be discussed in a case, a brand of government authority that the Founding Fathers specifically attempted to avoid.
The Sixth Amendment states that the accused has the right “to be informed of the nature and cause of the accusation.” Parallel construction obscures this right by selectively choosing what “cause” of the accusation a department is comfortable with relaying at the expense of the accused.
The intersection of law, and law enforcement, in 2013 is highlighted by the fact that technology has outpaced legislation. The Fourth Amendment is a focal point of this debate, yet its language has proved broad enough for implications in cases of digital privacy.
The Fourth Amendment states:
“The right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
According to whistleblower Edward Snowden, the NSA is obtaining personal information without a warrant. Even more alarming is the fact that this information, gathered for anti-terrorism measures, is being spread to non-terror-related task forces.
The grey area being exploited here is the ambiguity over the domain of cyberspace. As far-sighted as the Framers were, they couldn’t quite see the Facebook pokes on the horizon.
If American citizens seek lasting legal protection for their cyber lives, firm and specific protections will need to be implemented.