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Analysis

Congressional Access to Americans’ Private Communications

What the committee investigating the Capitol riot does will set a precedent for future congressional probes, with serious implications for privacy rights.

Last Updated: October 1, 2021
Published: September 28, 2021

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: 

  • Under 18 U.S.C. § 2702, providers are prohib­ited from volun­tar­ily disclos­ing— 

  • non-contents inform­a­tion to “any govern­mental entity” 

  • commu­nic­a­tions content to “any person or entity” 

  • 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” 

  • more detailed non-contents inform­a­tion, with a court order based on a show­ing that the records are “relev­ant and mater­ial to an ongo­ing invest­ig­a­tion” 

  • 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.