A report by the Office of the Inspector General (OIJ) of the U.S. Department of Justice (DOJ) sheds more light on how the Drug Enforcement Agency (DEA) pays workers for airlines, Amtrak, bus companies, and package delivery services to spy on their customers, troll through reservation and shipping records, and finger travelers and senders and recipients of packages to the DEA in exchange for a share of the cash which can be seized and “forfeited” to the government even if no drugs are found and no criminal charges are brought.
This practice was first reported in August 2016 by Brad Heath in USA Today, based on case-by-case review of court filings describing the basis for DEA searches that led to “civil forfeiture” proceedings. And the DOJ OIG had released brief interim summaries of its investigations into DEA relationships with one Amtrak employee and one TSA employee who were paid to inform on travelers.
The new OIG report released last week provides much more detail about the scope of the DEA’s use of travel and transportation staff as paid “confidential sources” to target travelers and parcels for cash seizures on the basis of travel reservations and shipping records. The OIG found that the DEA is paying employees of Amtrak, airlines, bus companies, and other transportation companies millions of dollars for individual tips and copies of entire passenger manifests:
[DEA] Special Agents have various ways of receiving these “tips,” but generally receive the information on a daily basis via email or text message, some of which are sent to government accounts and others to non-government private accounts that are established and controlled by the Special Agents. Additionally, we found that although some Special Agents estimated receiving up to 20 “tips,” or passenger itineraries, per day from their… commercial airline confidential sources, the DEA does not maintain a record of receipt of the totality of the confidential source “tips.”….
[S]ome Agents requested that sources provide them with suspicious travel itineraries that met criteria defined by the Agents, and in some cases requested entire passenger manifests almost daily….
Because of a lack of DEA records, the OIG was unable to determine the number of Amtrak and travel industry personnel secretly being paid to spy for the DEA, the amounts they were paid, or the number of cases in which the DEA based detentions, searches, and seizures on information from Amtrak or travel industry sources. The OIG had to rely on extrapolations from a small sample of cases they reviewed individually.
Most of the cases reviewed by the OIG did not result in criminal convictions. The goal appeared to be to find cash, not to find drugs, and to seize the cash rather than to convict anyone of a crime:
We interviewed DEA Special Agents who used Amtrak ticket agents as confidential sources . These agents told us that these sources provided the DEA with PNR information on a daily basis via email, text, or telephone call…. These Special Agents used the Amtrak tip information to conduct consensual encounters and searches with the goal of seizing currency deemed narcotics proceeds and illegal substances, and making related arrests.
The OIG found that some of these “confidential sources” were paid far more, year after year, than they were likely to have been earning from their travel jobs.
The OIG also found that Federal investigators and prosecutors typically avoided mentioning the use of paid Amtrak and travel industry informers in court filings. In most of the cases reviewed by the OIG, DEA agents and their collaborators in multi-agency “Drug Interdiction Task Forces” used the information they got from Amtrak and travel industry sources as the basis for encounters with travelers that were described as initially “consensual” and thus allegedly didn’t require any basis for suspicion. In an earlier report last year, the OIG criticized these “consensual” encounters, finding that they were conducted “in a manner which could be misleading” and could lead their targets to believe that they were required to answer questions and/or submit to searches.
The OIG report highlights the critical importance of adding access logs to airline, rail, and other passenger name records (PNRs) stored by computerized reservation systems or travel companies themselves, although this issue isn’t mentioned in the report.
CRSs include a “history” in each PNR that logs who made each change, but no major CRS keeps logs of who accesses PNRs. So anyone with access to a PNR can retrieve it, print it out, cut and paste it into an email message, and forward it to anyone else without any record being kept. This includes employees of the airline or other transportation provider, the CRS, or the travel agency if the reservation was made though one (including online travel agencies such as Expedia, Orbitz, etc.).
Even if the defendant in a civil forfeiture case that results from such a “tip” suspects that it resulted from improper use of an Amtrak or industry source, it’s impossible for the v ictim to confirm this unless the source gets caught in the act or their DEA handler confesses. DEA agents and their Amtrak and travel industry collaborators wouldn’t be able to get away with many of the improper practices criticized by the OIG if CRSs included immutable access logs in PNRs, and if those logs were accessible to travelers on request.
We distinguish Amtrak employees from travel industry personnel because Amtrak is a Federally-chartered entity governed by a Board of Directors that includes members appointed by the U.S. President and confirmed by the U.S. Senate. The OIG was concerned — as it should be, we think — that because of Amtrak’s status as a quasi-governmental entity, paying Amtrak employees to conduct searches of Amtrak reservation records without probable cause might be especially likely to result in searches that violate the 4th Amendment to the US Constitution:
These Amtrak employees included train attendants who could identify passengers and their luggage, and ticket agents who could query the Amtrak passenger name records (PNR) system to provide the DEA with passenger travel reservations. According to [DEA] Special Agents, the PNRs provided to the DEA by these confidential sources are computerized printouts of a passenger reservation and are selected by the confidential source based on DEA-developed indicators of suspicious travel such as tickets purchased last minute, tickets purchased with cash, and travel to and from drug trafficking source cities. The PNR information we reviewed generally included passenger name, origin and destination cities, trip itinerary, seat and train car numbers, as well as information related to the purchase of the fare including whether the purchase was made with cash or credit and whether the purchase was made via the telephone or internet. Although we could not review any PNR documentation because it was not maintained in the confidential source files we reviewed, Special Agents told us that confidential sources sometimes also provide passenger dates of birth.
One obvious question is why the DEA paid individual Amtrak and travel industry staff to mine reservation records for suspects, when Amtrak police who participate in DEA Drug Interdiction Task Forces already have a customized “Police GUI” for mining Amtrak reservations, and airlines are already required to provide all flight itineraries and passenger ID information to the government before they can get permission to issue boarding passes. The DEA told OIG auditors that even without any of the government’s supposedly superior profiling and data-mining tools, travel and transportation workers are better at identifying suspects than are DEA agents or other law enforcement personnel. That calls into question the government’s claims about the capabilities of its pre-cogs and profiling algorithms.