Comments of the Sunlight Foundation to PCLOB

Notice PCLOB 2014-04, Sunshine Act Meeting

Comments of the Sunlight Foundation to the Privacy and Civil Liberties Oversight Board

regarding Parallel Construction and intelligence sharing activities conducted under Executive Order 12333 and other legal authorities

August 29, 2014

Comments prepared by: Sean Vitka1 Federal Policy Manager Sunlight Foundation Email: [email protected] Address: 1818 N Street NW Suite 300

Washington, DC 20036 Phone: 202.742.1520 ext. 273

1 Joy Wang, an intern at the Sunlight Foundation, contributed to these comments.


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I. The Sunlight Foundation urges the Privacy and Civil Liberties Oversight Board (PCLOB) to investigate Parallel Construction and similar intelligence sharing activities

The Sunlight Foundation is a nonpartisan nonprofit that advocates for open government

globally and uses technology to make government more accountable to all. We do so by creating

tools, open data, policy recommendations, journalism, and grant opportunities that dramatically

expand access to vital government information and increase accountability of public officials.

The Sunlight Foundation is engaged in the ongoing national surveillance debate as it pertains to

government transparency, secret law, and public oversight.

Parallel Construction is a term first publicly reported by Reuters in August 2013.2 The

term is derived from internal documents reviewed by Reuters that reveal guidance on the

deliberate masking and falsification of investigative history in order to erase investigations’

origins.3 According to the report, the Special Operations Division (SOD), a unit of the Drug

Enforcement Administration (DEA), distributes information in partnership with two dozen other

agencies, including the Federal Bureau of Investigations (FBI), Central Intelligence Agency

(CIA), National Security Agency (NSA), and the Department of Homeland Security (DHS).

Information distributed through this partnership has been used to spark domestic, non-national

security related investigations.4 The source of the information that triggers the investigation is

not merely concealed, which is common in both national security and certain other contexts, such

as those involving confidential informants. Instead, as described in the Reuters report: “Agents

are instructed to then use ‘normal investigative techniques to recreate the information provided

2 See John Shiffman & Kristina Cooke, Exclusive: U.S. directs agents to cover up program used to investigate Americans, REUTERS, Aug. 5, 2013, http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805 3 “After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as ‘parallel construction.’” See id. 4 See id.


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by SOD.’”5

II. There is national uncertainty, confusion, and alarm regarding Parallel Construction

In the year since leaks originating from Edward Snowden began, few processes have

remained as opaque to the public as Parallel Construction and other intelligence sharing

activities. Because of how little is known, Parallel Construction’s relationship to intelligence

collected by the Intelligence Community and to other sharing practices is unknown. This has

crippled the public’s ability to engage the issue.

In the initial Reuters report, perceptions of the program were in diametric opposition

depending on the observers’ proximity to the programs. One Harvard Law professor and former

federal judge, Nancy Gertner, told Reuters that she had “never heard of anything like this at all,”

and that “[i]t sounds like they are phonying up investigations.”6 James Felman, a vice chairman

of the criminal justice section of the American Bar Association similarly called it “outrageous”

and “indefensible.”7 Meanwhile, one anonymous senior DEA officials told Reuters that “Parallel

[C]onstruction is a law enforcement technique we use everyday,” and that “It’s decades old, a

bedrock concept.”8 However, “the Department of Justice, which oversees the DEA, declined to

comment.”9

Indeed, this confusion continues to this day, and is inhibiting the ability of the public to

have critical conversations about civil liberties. In August 2014, The Intercept published a

lengthy investigation into ICREACH, another intelligence-sharing program run by the NSA,

5 Id. 6 Id. 7 Id. 8 Id. 9 Id.


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with participation from both the DEA and FBI.10 Reporter Ryan Gallagher found continuing

evidence of this confusion and concern:

“A key question, according to several experts consulted by The Intercept, is whether the FBI, DEA or other domestic agencies have used their access to ICREACH to secretly trigger investigations of Americans through a controversial process known as ‘parallel construction.’”11

The public cannot adequately engage the national surveillance debate without a clear

understanding of how collected intelligence is ultimately shared among domestic law

enforcement and national security agencies and how it is in turn utilized.

III. Any information that can be used to influence domestic prosecution necessarily impacts the rights of United States Persons

Parallel Construction is empowered by intelligence sharing activities such as ICREACH

and DICE, an enormous intelligence database operated by SOD that is involved in both

international and domestic investigations. According to the Reuters report,

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.12

Indeed, according to Reuters, the cross-jurisdiction nature of such databases seems to be

a deliberate feature of the systems:

The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't

10 See Ryan Gallagher, The Surveillance Engine: How the NSA Built Its Own Secret Google, THE INTERCEPT, Aug. 25, 2014, https://firstlook.org/theintercept/2014/08/25/icreach-nsa-cia-secret-google-crisscross-proton/ 11 Id. 12 See Shiffman, supra note 2.


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accidentally try to arrest each other.13

This intelligence sharing is extremely dangerous to the civil liberties of United States

Persons. Parallel Construction and similar masking techniques create a permeable barrier

whereby information collected under national security authorities can secretly become the basis

for domestic prosecution. Successful masking, in turn, renders both the information sharing and

the process of disguising investigations’ origins uncontestable. Regardless of the legal authority

under which information sharing and masking is conducted, it directly affects the privacy and

civil liberties of United States Persons.

IV. Parallel Construction falls within PCLOB’s jurisdiction because guidance and intelligence allegedly originates from surveillance focused on national security

One former federal prosecutor described the illusory nature of these programs’ legal

authorities to Reuters, referencing the alleged uses of shared information in domestic drug

prosecutions: “’You can't game the system,’ said former federal prosecutor Henry E. Hockeimer

Jr. ‘You can't create this subterfuge. These are drug crimes, not national security cases. If you

don't draw the line here, where do you draw it?’”14 However, what the public does know about

Parallel Construction confirms that it involves sharing, at a minimum, across the CIA, DEA,

FBI, and NSA.15

Based on the lack of discussion of Parallel Construction and possible other masking

processes in leaked and unclassified documents, it is unclear whether these processes have been

reviewed by the Foreign Intelligence Surveillance Court (FISC). Considering that Parallel

Construction is an investigatory and prosecutorial technique, and is therefore principally

concerned with how intelligence is used rather than collected, it may be independent from 13 Id. 14 Id. 15 See id.


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surveillance authorization procedures under the Foreign Intelligence Surveillance Act and its

amending statutes. The principal remaining known legal authority for intelligence collection and

sharing is Executive Order 12333, which PCLOB now seeks comment on.

V. Other oversight avenues, including courts, are unable to adequately investigate

It is critical that PCLOB investigate Parallel Construction and any similar intelligence

sharing and masking techniques conducted under any intelligence-gathering authority. While

PCLOB is uniquely positioned to review information that is otherwise unavailable to the public,

the importance of PCLOB’s position is underscored here due to the apparent breakdown of

public oversight.

a. Parallel Construction allegedly involves deceiving courts and prosecutors

Parallel Construction is immune to adversarial oversight if it successfully masks or

withholds the source of information on which a prosecution is based, however the existing

information strongly indicates that this history is also withheld from courts and prosecutors:

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."16

One federal prosecutor described to Reuters being lied to about the source of information

by a DEA agent. Instead of receiving the incriminating intelligence from an informant, as the

prosecutor was originally told, “a DEA supervisor intervened and revealed that the tip had

actually come through the SOD and from an NSA intercept.”17 The prosecutor decided not to file

16 Id. 17 Id.


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charges.18

Parallel Construction’s apparently deliberate misleading of both Defendants and the

courts imperils both basic concepts of due process, right to a fair trial, and oversight by the

public and the courts. If there is any accuracy to the existing reports on Parallel Construction

with regards to withholding investigatory origins from prosecutors and courts, the only source of

information on the subject will be either more leaks or information made public through the

Privacy and Civil Liberties Oversight Board.

VI. Conclusion

For the reasons described above, it is imperative that PCLOB investigate and publish all

government guidance on Parallel Construction and any similar processes conducted to falsify or

obscure intelligence sharing processes.

Respectfully submitted, Sean Vitka Federal Policy Manager Sunlight Foundation [email protected] 1818 N Street NW Suite 300

Washington, DC 20036

August 29, 2014

18 Id.

Comments of the Sunlight Foundation to PCLOB

Documents

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