In November, U.S. District Court Judge Susan Illston dealt five consecutive life sentences to Joseph Ortiz, a shot-caller in South San Francisco's 500 Block gang — one in a coterie of Norteño cliques that spun off the 1960s prison gang Nuestra Familia. Ortiz and a group of co-conspirators were charged with two drive-by shootings during one week of December 2010. Their targets were suspected rivals from the Sureño gang. Three people were killed, six others were wounded.
Ortiz pled guilty to the murders and a battery of other charges, including armed robbery of a South San Francisco jewelry store and a 7-Eleven in Pacifica, along with obstruction of justice — he'd fled to Mexico shortly after the shootings but was apprehended in the Bay Area two years later. U.S. District Attorney Melinda Haag then indicted 19 of his associates from the 500 Block and nearby C Street Gang for serving as accessories. By all appearances, one of the Bay Area's most notorious outfits had been snuffed out.
Then the case took an unexpected turn.
Five of Ortiz's alleged associates shuffled into Illston's courtroom on Dec. 20, 2013, wearing Alameda County Jail uniforms and improbably smug expressions. Four were armed with a highly technical argument that could either be a game-changer or a futile Hail Mary pass. They claimed that federal investigators had used a little-known spy program to nail them in a violent gang case. Similar to the NSA's wholesale effort to gather call records from millions of Americans, this one is aimed specifically at drug traffickers and violent criminals. It's harder to condemn, but gets caught in the same ethical snags.
The men standing before Illston were accused gang members; three were charged with murder. Yet they'd also become unlikely torch-bearers for civil liberties.
Investigators had relied on a program called the Hemisphere Project, a partnership between various federal and local law enforcement agencies and AT&T that launched around 2007. The project is employed nationally, but appears to be based in California and deployed for criminal investigations throughout the West Coast, as demonstrated by a series of training slides leaked to The New York Times in September.
Hemisphere spawned from the theory that call patterns resemble a fingerprint — that calling behaviors to certain numbers, at certain times, are so telling that that they can identify a person regardless of what phone number he's using. Mark Eckenwiler, a D.C.-based federal prosecutor who's now a privacy attorney, explains how it might work in the context of an investigation: "We've got Person A and Person B," he says. "A is the target. B is the person he talks to all the time. If A and B don't sync up the changes on their phones — say, A replaces his phone, and B's doesn't change — then between 2 and 4 a.m. when you see B calling some new number, he's probably calling A."
By doing a back-end analysis of scores of phone records at the same time, investigators can trace those patterns and find the thread, even before they procure an official court subpoena (which are often time-consuming, require court authorization, and have to target one phone number at a time). Safer and more efficient than traditional modes of investigation, Hemisphere probes don't require the cops to put a human informant at risk, or bust down the door to a stash house and risk an armed confrontation. It's a way to apply the principle of NSA data sweeps to drug busts, using an intricate paper trail to reveal the hidden connections between criminals.
That might be an easy sell when the cops are taking down bad guys. But attorneys at the American Civil Liberties Union and the Electronic Frontier Foundation argue that it also smacks of an extra-judicial shortcut. That, given wider acceptance, it could erode our constitutional rights.
A small cadre of EFF and ACLU attorneys sat in Illston's court to watch the December gang trial hearing. Some of them had filed friend-of-the-court briefs to denounce Hemisphere in other criminal cases, so they already had a dog in this fight. The 500 Block gang case might not itself be inherently political, but it could have bigger stakes as our desire to lock away criminals bumps up against our expectations of privacy.
That might be a drug investigator's only recourse when he's entering a case blind, Fakhoury says. But he contends it's also a way to cheat defendants out of their right to due process. It's like searching someone's house, finding the evidence you need, and then securing a warrant to return to the house and collect the evidence.
Fakhoury finds that prospect unsettling. "I get that we all want to throw terrorists and bad guys and murderers and drug dealers in jail," he says. "But are we really gonna just let the police do whatever they want?"
And, as judges weigh in differently on the constitutionality of the Hemisphere program, it could wind up undermining the very cases it helped build. Defendants in the U.S. v. Ortiz case sent their own subpoena to Metro PCS, AT&T, and the Hemisphere Project, demanding to see all correspondence between the telecom companies and various law enforcement agencies related to the 500 Block gang. If those documents reveal some kind of handshake deal that allowed prosecutors to obtain records without due process, then down the line, pieces of evidence could get excised.