September 10, 2001
The Honorable Patrick J. Leahy, Chairman
Senate Judiciary Committee
United States Senate
433 Russell Office Building
Washington, DC 20510
Re: Nomination of John Walters
Dear Chairman Leahy, Senator Hatch and Members of the Senate Judiciary Committee:
We are part of a broad coalition of groups concerned that the war on drugs has degraded our privacy and civil liberties. We respectfully ask that the members of Committee consider raising the following privacy and civil liberties issues in connection with the nomination of John Walters to be the Director of the Office of National Drug Control Policy (Office of the White House). We intend by issuing this letter to signal neither support nor opposition to Mr. Walters’ nomination. Rather, we are issuing this letter to urge members of the Committee to explore these issues in connection with Mr. Walters’ nomination. As we set forth below, these issues include the use of new surveillance and investigative technologies, including the Carnivore/DCS1000 and Echelon systems, the “Know Your Customer” proposal of the Financial Action Task Force, asset forfeiture abuses, wiretaps and the drug war’s sometimes corrupting influence on law enforcement itself.
Rapid advances in technology have unfortunately brought with them new opportunities for the invasion of privacy in the form of programs like Carnivore, a system designed to allow the FBI to sift through vast quantities of internet communications, or “Know Your Customer,” -a proposed regulation requiring banks to collect personal financial information about their customers, “profile” them, and report “suspicious activities” to the Government. The misguided drug war is often a driving force behind these initiatives. “Know Your Customer” was prompted largely to further the drug war by combating drug-related money laundering. The FBI claims that Carnivore helps in narcotic investigations. We are concerned that “profiling,” including racial profiling, appears to be an accepted component of the federal government’s war on drugs. As noted by Georgetown University Law Professor David Cole, characteristics
of “drug courier profiles” used by U.S. Customs at airports have included:
*Arrived late at night
*Arrived early in the morning
*Arrived in afternoon
*One of first to deplane
*One of last to deplane
*Deplaned in the middle
*Bought coach ticket
*Bought first class ticket
*Used one-way ticket
*Used round-trip ticket
*Traveled with a companion
*Wore expensive clothing
*Suspect was Hispanic
*Suspect was black female
In short, everyone anywhere at any time could fit the profile of a drug courier according to U.S. Customs officials. Court records confirm that highway patrol officers both in California and in New Jersey were taught to profile automobile drivers using minority status as an excuse to stop them, search their car, and in some cases, find drugs, a process known as racial profiling. In fact, civil rights organizations have charged that the DEA’s own Operation Pipeline actually trains state and local law enforcement agents to engage in racial profiling.
The extent to which our drug policy drives government surveillance and invasion of privacy is especially clear in the case of wiretaps. Three quarters of all wiretaps are authorized for narcotics investigations. The Administrative Office of the United States Courts reports that annually approximately 80 percent of conversations intercepted on wiretaps are innocent communications.
In addition to government surveillance, there has been an increasing effort to have private businesses monitor their customers in order to fight the drug war. In the case of the “Know Your Customer” proposal now being resurrected by the FATF, the government attempts to force customer monitoring through regulation. More and more often, the DEA is using financial incentives to induce businesses to report personal information about their customers to the government. This undermines both consumer privacy and businesses’ relationships with their customers. In April, the Albuquerque Journal reported that Amtrak was providing access to its ticketing database to the Drug Enforcement Administration. Amtrak provided agents with information such as passengers’ last names, their destinations, their method of payment, and whether they were going on a round trip or only one-way. In return, Amtrak was given 10% of anything the government seized. Although controversy led Amtrak to discontinue the DEA’s computer access, the company still provides information gleaned from the ticketing system to law enforcement officers and continues to receive a portion of assets seized on trains by agents.
The Amtrak case demonstrates the degree to which forfeiture laws are giving an incentive for law enforcement and private businesses to focus on seizing property supposedly related to drug crimes. The system is still very susceptible to abuse and one does not have to be convicted of a crime before their property is taken. Before the passage of the Civil Asset Forfeiture Act of 2000, which addressed some of the more egregious abuses, eighty percent of people who had property forfeited were never charged with a crime. While this number will likely become lower because of the reforms, the abuse of forfeiture laws continues.
As reports (some of which were initiated by members of this Committee) have shown, the war on drugs has had a corrupting influence on the professionalism of law enforcement; one March 1999 GAO report described the problem as a “serious and continuing threat.”
We urge you to raise these issues with Mr. Walters and ask for assurances that he will reform the conduct of the drug war in order to address these problems and ensure that drug policies respect the privacy and other civil liberties of all Americans.
If you have any questions or would like to discuss these issues further, please contact J. Bradley Jansen.