This article was originally published at Just Security.
In late August, the special House committee charged with investigating the Jan. 6th attack on the U.S. Capitol took the first steps toward subpoenaing the communications records of private citizens involved in rallies to protest certification of the election, as well as Republican lawmakers whose role in the events of Jan. 6th has come into question. The committee asked the companies to preserve these records for now. House minority leader Kevin McCarthy reacted with outrage, tweeting: “If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States.” He warned ominously that “a Republican majority will not forget.”
Progressive commentators were quick to point out that McCarthy himself, by threatening reprisal against companies that cooperate with the requests, might be violating the law against obstructing congressional investigations. But underlying McCarthy’s shameful attempt to bully the companies into noncompliance is a legitimate question about the scope of Congress’s authority to obtain private information. Key constitutional safeguards that protect Americans’ privacy against intrusions by the executive branch – such as the requirement to obtain a warrant — are notably absent when it comes to congressional investigations. Nor do the statutory privacy protections Congress has enacted adequately fill the gap. If we acknowledge that Congress, just like the executive branch, is capable of abusing its powers and infringing on the rights of Americans, it follows that Americans need a better way of enforcing those rights than the law currently provides.
This article explains the current legal terrain underlying the committee’s requests, and makes the case that we must develop a different approach—one that more faithfully reflects modern understandings of the Fourth Amendment and expectations of privacy.
The Jan. 6th Committee Requests
To date, the committee has sent 35 letters to telecommunications and social media companies—including Google, Microsoft, and all major cell phone carriers—requesting that they preserve certain records that the committee might need for its work. The letters include lists of the people whose records should be preserved. Although those lists have not been released publicly, the letters describe some of the categories into which the people fall—for instance, “individuals who were listed on permit applications or were otherwise involved in organizing, funding, or speaking at the January 5, 2021, or January 6, 2021, rallies in the District of Columbia relating to objecting to the certification of the electoral college votes.”
In other words, the requests aren’t limited to people who participated in the attack on the Capitol; they sweep in those who were lawfully exercising their right to protest. The letters also reportedly target the records of certain Republican lawmakers who communicated with Trump or were involved in the rallies on Jan. 6.
The committee asked the companies to preserve data of all kinds, including emails, text messages, voice mail messages, location information, and call data records. The requests thus encompass not only non-content information, sometimes known as “metadata,” but also communications content, which ordinarily receives the highest level of constitutional and statutory protection. The requests also include cell site location information, which law enforcement officers must get a warrant to obtain under the Supreme Court’s 2018 decision in Carpenter v. United States.
These preservation requests are likely to be followed by requests to produce at least a subset of the records. Those requests, in turn, will likely be followed—if not accompanied—by committee-issued subpoenas, backed up by potential civil fines and criminal penalties. Although the law allows the companies to produce some of the requested records voluntarily, that is not the case for all of the records (as discussed below); and in any event, holding out for a subpoena is a better customer-relations strategy for the companies.
The Statutory Law
Would it be illegal for the companies to comply with such subpoenas, as McCarthy has alleged?
As a threshold matter, it is well-established that Congress has broad legal authority to issue subpoenas—and to compel compliance with them by initiating civil enforcement or contempt proceedings—in support of its own legislative functions. There is no statute that establishes this authority; rather, the Supreme Court has held that it is a necessary incident to the powers that the Constitution grants to the legislature.
This authority is not limitless, however. It does not override the individual rights set forth in the Constitution, which may be raised as a defense in contempt proceedings. Moreover, Congress can regulate its own exercise of its subpoena authority, as it frequently does through committee rules. Thus, if there is a statute that prohibits companies from disclosing certain information to Congress, such disclosure would be unlawful regardless of whether a congressional committee had issued a subpoena for the information.
The Stored Communications Act (SCA) might well be such a law. Absent narrow exceptions that don’t apply here, the statute sets forth the following framework governing the disclosure of customer information by electronic communications service providers and remote computing service providers:
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Under 18 U.S.C. § 2702, providers are prohibited from voluntarily disclosing—
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non-contents information to “any governmental entity”
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communications content to “any person or entity”
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Under 18 U.S.C. § 2703, “a governmental entity” may compel disclosure of—
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certain basic subscriber information, with “an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena”
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more detailed non-contents information, with a court order based on a showing that the records are “relevant and material to an ongoing investigation”
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communications content, with a warrant (although communications stored for more than 180 days can be obtained with a subpoena)
The bottom line is that these provisions allow providers to voluntarily disclose non-contents information to Congress and likely allow Congress to subpoena the information if providers won’t freely release it. But the provisions arguably prohibit providers from voluntarily providing communications content, and they do not allow Congress to obtain such content with a subpoena.
Key to this conclusion, and to the SCA framework in general, is the definition of “governmental entity.” The statute defines this term as “a department or agency of the United States or any State or political subdivision thereof.” “Departments and agencies,” in turn, are creatures of the executive branch, and are defined as such in the statute. Accordingly, the SCA’s prohibition on the voluntary disclosure of non-contents information to “any governmental entity” leaves companies free to turn that same information over to congressional committees. This would include the call data records, geolocation information, and other types of metadata identified in the Jan. 6th committee’s letters.
If the providers won’t voluntarily release the information, Congress could arguably obtain it with a subpoena. A congressional subpoena is not one of the methods of compelled disclosure listed in the SCA. However, Congress’s authority to issue subpoenas does not come from the statute; it comes from the Constitution. As long as the statute doesn’t prohibit disclosure of non-contents information to Congress in the absence of one of the methods of compelled disclosure identified in Section 2703, Congress retains its constitutional authority. As noted above, the SCA does not prohibit disclosure of non-contents information to Congress at all.
This conclusion is consistent with the Senate Select Committee on Intelligence’s (SSCI) analysis of the SCA in its report on Russian interference with the 2016 election. The committee stated that it “was not aware of any congressional committee that had pursued the production of such data” previously, though “other committees have since followed suit in pursuing these requests.” (That said, the Special Committee to Investigate Whitewater Development and Related Matters apparently issued subpoenas to phone companies for phone records in 1996.) Noting that “no court has addressed whether the Stored Communications Act restricts Congress’s independent authority to obtain [non-contents] data as part of a duly authorized investigation,” the committee analyzed the law and concluded that there was no such restriction. It issued subpoenas to several providers, none of whom raised objections.
The SSCI made a point, however, of saying it was seeking only non-contents information. While the SCA bars voluntary disclosure of non-contents information to “any governmental entity,” it prohibits voluntary disclosure of communications content to “any person or entity.” Some have argued that this language should be construed to exclude Congress, given that Congress rarely includes itself in legislation without saying so directly. On that reading, providers could voluntarily disclose the information to Congress but not to executive branch agencies. Were the text any less clear, that would be a sensible interpretation. But such interpretive canons come into play only where a statute’s language is ambiguous. The statute includes no narrowing construction of the word “entity,” and the plain meaning of the word would clearly include the United States legislature. Under any straightforward reading of the law, the SCA thus bars companies from voluntarily disclosing emails, text messages, voice mail, and other forms of content to the Jan. 6th committee.
Indeed, at the same time the SCA gives Congress much freer access than executive branch agencies to non-contents information, it appears to bar Congress almost entirely from obtaining communications content. The SCA explicitly forbids providers from disclosing content to “any person or entity” without an applicable exception (such as consent) or one of the methods of compelled disclosure listed in Section 2703. But only a “governmental entity” can compel disclosure of communications content under Section 2703, and that term is defined to include only executive branch agencies and departments. Moreover, as discussed further below—and as SSCI acknowledged in its Russia report—there are no means by which a congressional committee could procure the warrant that the SCA requires for most communications content.
The incongruous treatment of congressional access to non-contents information and communications content could be read as proof that the SCA was never meant to restrict congressional access in the first place. Once again, though, the lack of ambiguity in the term “any person or entity” is fatal. Where the language Congress has employed is clear, Congress is no more spared from the unintended consequences of its drafting choices than the rest of us. (In that respect, the law places private entities, such as third-party data brokers, in the same strange position as Congress: there is no limit on the non-contents information they can obtain from providers on a voluntary basis, but they have no means at all to obtain communications content.) In this case, lawmakers have apparently recognized that more explicit language would be needed to exempt Congress from the SCA. They have included such language in the Electronic Privacy Act, a bill that has passed the House three times but never been enacted into law.
There is another federal law that could come into play and that further complicates the statutory analysis: the Telecommunications Act of 1996. This law protects the confidentiality of “customer proprietary network information” (CPNI)—which includes, among other things, phone logs and location information generated when calls are made—in the hands of telecommunications carriers. “Except as provided by law or with the approval of a customer,” carriers may disclose personally identifiable CPNI only in the course of providing telecommunications or related services.
Whether the Telecommunications Act would bar companies from disclosing phone records and certain location information to Congress depends on whether courts would interpret compliance with a congressional subpoena as a disclosure “provided by law.” This language clearly applies to subpoenas issued by law enforcement agencies pursuant to statutory authorization (such as the SCA), and courts have held that it also applies to discovery requests in civil litigation that are authorized by the Federal Rules of Civil Procedure, which have congressional approval through the Rules Enabling Act. But there appears to be no instance in which a court has addressed its application to a congressional subpoena issued pursuant to Congress’s inherent constitutional authority.
The Fourth Amendment
Statutory schemes may supplement, but not replace, the constitutional floor provided by the Fourth Amendment, which prohibits unreasonable searches and seizures. Under modern Fourth Amendment jurisprudence, a search takes place when the government intrudes on a person’s reasonable expectation of privacy, and a warrantless search is presumptively unreasonable unless it falls within an established exception to the warrant requirement. To obtain a warrant, the government must show “probable cause” to a neutral magistrate.
This basic understanding of the Fourth Amendment is familiar to every student of constitutional law. Whether and how it applies to congressional subpoenas, however, is far from clear. As a recent (and prescient) law review article by Aaron Cooper aptly highlights, there is scant case law on the subject, and the most relevant Supreme Court cases predate major relevant developments in Fourth Amendment jurisprudence.
The Supreme Court has not addressed a Fourth Amendment objection to a congressional subpoena since it decided McPhaul v. United States in 1960. (Its recent high-profile ruling in Trump v. Mazars addressed a claim that a congressional subpoena violated the separation of powers, not the Fourth Amendment.) McPhaul involved a subpoena issued by the House Subcommittee on Un-American Activities to Arthur McPhaul, alleged to be the executive secretary of the Civil Rights Congress, which had been declared a “subversive organization” by the Attorney General. The subcommittee sought records and correspondence relating to the organization; McPhaul refused to comply and was found guilty of criminal contempt.
In refusing to overturn McPhaul’s conviction, the Court assumed that a congressional subpoena complies with the Fourth Amendment if it is not too broad, and that it meets this criterion if the scope of the materials sought does not exceed the scope of the investigation. But while this inquiry looks nothing like the modern Fourth Amendment test for a search performed by executive agencies, it was not based in any distinction between Congress and the executive branch. Indeed, the Court cited Oklahoma Press Publishing Co. v. Walling—a 1946 Supreme Court case involving a subpoena issued by the Department of Labor—as the relevant precedent.
Oklahoma Press, in turn, relied primarily on a distinction between “actual searches” and so-called “constructive searches.” An “actual search” takes place where a government official “enter[s] [a person’s] premises against their will, to search them, or to seize or examine their books, records or papers without their assent.” A “constructive search”—as effectuated by a subpoena—commands the recipient to perform the search herself and turn over the requested books, records, or papers. While actual searches require a warrant based on probable cause, the Court articulated the following standard for constructive searches pursuant to subpoenas:
It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. . . .The requirement of “probable cause, supported by oath or affirmation,” literally applicable in the case of a warrant, is satisfied in that of an order for production by the court’s determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in “describing the place to be searched, and the persons or things to be seized,” also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.
In subsequent cases, justices have presented a twofold rationale for distinguishing between “actual” and “constructive” searches and using dramatically different standards to evaluate their constitutionality. First, when government officials are the ones conducting the search, they might encounter large amounts of irrelevant private information in the course of looking for particular records. A subpoena avoids the incidental exposure of personal information that can occur when the government enters onto one’s property. Second, a subpoena gives the subject the opportunity to present objections before complying, whereas a direct search does not.
Lower courts have continued to cite Oklahoma Press and McPhaul in the small number of cases addressing legislative subpoenas, and the Supreme Court has cited it in reviewing administrative subpoenas. It’s not clear, however, why the reasoning of Oklahoma Press and McPhaul should survive Katz v. United States, the watershed 1967 case in which the Court redefined the scope of Fourth Amendment privacy rights. In Katz, the Court held that a trespass on private property is not required for a government “search,” and that a search takes place any time the government intrudes on a reasonable expectation of privacy. Under this analysis, Fourth Amendment rights should turn on the nature of the information being sought and whether the target of the search treated the information as private. It should be irrelevant whether the search exposes other private matters to the government’s view, or whether there is an opportunity to object before the search takes place.
What’s more, even if the reasoning of Oklahoma Press somehow survives Katz, it’s difficult to see how it could survive Carpenter. Carpenter involved one type of “constructive search”: an order to produce records issued to a third party. The physical act of searching for responsive records was to be performed by the cell phone service company that received the order rather than the government itself, and the company had the opportunity to lodge objections. Yet the Court found that people have a reasonable expectation of privacy in their location over time, and that police officers therefore need a warrant to compel companies to turn over customers’ historical cell site location information.
In his dissent, Justice Alito argued that the Court’s decision effectively erased the line between actual and constructive searches and posed an existential threat to investigative subpoena authority. The majority, however, dismissed Alito’s concern, noting that “the Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.” Put differently, subpoenas are insufficient only “when the Government obtains the modern-day equivalent of an individual’s own ‘papers’ or ‘effects.’”
By contrast, the majority noted, Alito’s strict embrace of the actual-versus-constructive-search distinction would eviscerate the warrant requirement: “If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected under the Fourth Amendment requirement.” As Justice Gorsuch pointed out (albeit in dissent), “No one thinks the government can evade [the] prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for ‘all letters sent by John Smith.’”
In short, when it comes to historical cell site location records, at least—as well as any other categories of information that the Court might recognize as the modern-day equivalents of “papers” or “effects”—the highly permissive Fourth Amendment standard for subpoenas articulated in Oklahoma Press should not govern a legal analysis of the Jan. 6 committees’ subpoenas.
What standard should apply?
It does not follow, however, that courts should or will require Congress to meet the same standard as police departments when seeking to obtain the type of information specified in the Jan. 6 committee’s preservation letters. Congress’s purpose in conducting investigations is—or at least should be—very different from the purpose underlying police or FBI investigations. Indeed, it would violate the separation of powers for Congress to conduct law enforcement investigations. If Congress is doing its job and not usurping that of the executive branch, it will rarely be armed with probable cause to suspect private citizens of criminal activity. And even if it had such evidence, there are no means by which Congress can come before a judge and apply for a warrant.
But which way do these observations cut? The fact that Congress cannot comply with a warrant requirement could be seen as proof that Congress should not have the power to conduct searches of Fourth Amendment-protected information at all. The Court has made clear that “Congress has no ‘general’ power to inquire into private affairs and compel disclosures.” Congress’s power of inquiry must always be in service of its legislative function. Does Congress really need access to individuals’ communications content, geolocation information, or other sensitive personal information to legislate effectively? In his Mazars dissent, Justice Thomas answered that question in the negative: “I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.”
Moreover, even though Congress’s functions are markedly different from those of the executive branch, the concerns animating the Fourth Amendment apply to both in full measure. The amendment’s drafters sought to protect against invasive fishing expeditions (i.e., “general warrants”) designed to harass, embarrass, and persecute political opponents and to suppress ideological dissent. As the facts of McPhaul make painfully clear, Congress is every bit as likely as the executive branch to abuse its power of inquiry for such purposes. Although the Red Scare is behind us, other scares have taken its place and will continue to arise. Sadly, it is not difficult to envision a future congressional committee subpoenaing the communications and location information of Black Lives Matter activists as part of a supposed investigation into Antifa. Indeed, a current example of legislative subpoena abuse can be found at the state level: A committee of the Republican-led legislature of Pennsylvania recently voted to subpoena the personal information of millions of voters as part of an investigation into (widely debunked) claims of “voter fraud” in the 2020 presidential election.
On the other hand, some might argue that a more flexible Fourth Amendment standard is appropriate when government actors conduct searches for reasons other than law enforcement. The Supreme Court has recognized a “special needs” exception to the warrant requirement, which applies under “exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” The exception originally applied in circumstances where criminal activity was simply not at issue—such as building inspections to ensure fire safety—and where neutral criteria for the searches were in place to avoid abuses of discretion. But almost any law enforcement action can be framed in terms of some non-law-enforcement benefit, and the exception has expanded to include highly discretionary activities that look very much like law enforcement—such as warrantless searches of probationers’ homes.
Even in cases involving special needs, however, courts must ask whether the search is “reasonable” under the Fourth Amendment—an analysis that requires balancing the government’s interest in conducting the search against the privacy interests of the affected individuals. This is a much more demanding standard than the one set forth in Oklahoma Press and McPhaul. In Senate Select Committee on Ethics v. Packwood, a district court took that approach in reviewing a congressional committee’s subpoena for a lawmaker’s diaries. Without expressly distinguishing McPhaul or applying the “special needs” doctrine to congressional investigations, the court held that it must “balanc[e] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” It upheld the subpoena in part because the committee had agreed to elaborate procedures designed to shield various types of personal or privileged information in the diaries.
When it comes to requests for the private papers of public officials, additional factors come into play. In Mazars, the Court held that the principle of separation of powers requires courts to scrutinize a congressional subpoena for executive officials’ private records more closely. Although a congressional subpoena for fellow lawmakers’ private records does not raise the same separation-of-powers issue, it does create a similar potential for politically-motivated abuses. This factor arguably heightens the lawmakers’ interest in privacy. By the same token, however, Congress has a particularly weighty interest in keeping its own house in order. That interest is likely at its pinnacle when the investigation involves an alleged attempt by members to interfere with Congress’s own constitutional role in certifying the results of a presidential election.
Perhaps more courts will follow Select Senate Committee’s lead going forward and adopt a balancing test. But it would be a mistake to wait for the Supreme Court to explain how to map modern Fourth Amendment jurisprudence onto congressional subpoenas. For one thing, Congress has long recognized that people have strong privacy interests in certain types of information that still do not receive Fourth Amendment protection, including financial and credit reports and medical records. Congress has passed laws that restrict the disclosure of such information to executive branch entities, but in many cases (such as non-contents information under the SCA) it has given itself much freer access. The Jan. 6 preservation letters should prompt a conversation about whether Congress ought to impose some limits on its own access to such records.
Moreover, the validity of congressional subpoenas is an issue that rarely comes before the courts. It could be many years before the Supreme Court clarifies the law. And when it does so, there is no guarantee that the Fourth Amendment test it articulates will provide sufficient privacy protections as a matter of policy. We might well conclude, as a society, that the SCA’s current bar on companies disclosing communications content to Congress either voluntarily or under subpoena is the best way to protect against abuse, even if an outright bar is not required by the Fourth Amendment. And we might want to extend that bar to include geolocation information and other particularly sensitive types of records, or at least create a higher bar for their disclosure. For instance, Congress could prohibit itself from acquiring such information unless it were necessary for a compelling legislative purpose and a sufficient substitute could not be acquired through other means. It could also place strict limits on its own handling of the information to mitigate the intrusion on privacy.
Of course, if Congress were to legislate right now, it would be more likely to dismantle existing restrictions on disclosures to Congress than to preserve or strengthen them. That’s all the more reason to put pressure on lawmakers in the other direction. Those who support the Jan. 6 committee’s investigation (and I include myself in that category) will be tempted to champion the broadest possible powers of inquiry. But those powers must be balanced against the constitutional rights of private citizens, and what the Jan. 6 committee does now will set a precedent for future congressional investigations. A rule that allows Congress unfettered access to the emails, text messages, and geolocation information of protest organizers will serve none of us well in the long run.
