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This article origin­ally appeared in Just Secur­ity

Recent news reports that the Trump Depart­ment of Justice secretly subpoenaed the commu­nic­a­tions records of lawmakers and journ­al­ists have provoked wide­spread outrage, and rightly so. Such actions threaten the inde­pend­ence of the press and under­mine the separ­a­tion of powers. Here, moreover, the publicly avail­able inform­a­tion clearly suggests that the goal was to target polit­ical oppon­ents of the pres­id­ent in the legis­lat­ive branch and perceived enemies in the media.

In response, the Biden admin­is­tra­tion has pledged to issue regu­la­tions limit­ing the Depart­ment’s abil­ity to subpoena report­ers’ records and to strengthen policies against obtain­ing lawmakers’ data. But those solu­tions miss the bigger picture. What enabled the Depart­ment’s actions is the law’s fail­ure to recog­nize the inher­ent sens­it­iv­ity of commu­nic­a­tions inform­a­tion. It would be a mistake to settle for a policy that protects only a select few, while leav­ing the rest of us—in­clud­ing polit­ical activ­ists and communit­ies of color, who are frequently targets of unwar­ran­ted govern­ment scru­tiny—vul­ner­able to govern­mental intru­sions on our own consti­tu­tional rights.

Commu­nic­a­tions records were last at the center of public debate when Edward Snowden revealed that the National Secur­ity Agency (NSA) was collect­ing Amer­ic­ans’ phone records in bulk. The NSA relied on Section 215 of the USA PATRIOT Act, which author­izes collec­tion of any tangible thing as long as the Foreign Intel­li­gence Surveil­lance Court (FISC) agrees it is “relev­ant” to a foreign intel­li­gence invest­ig­a­tion. The relev­ance stand­ard is one of the lowest thresholds in law, requir­ing no show­ing that the person whose records are sought is suspec­ted of crim­inal activ­ity or other wrong­do­ing. The govern­ment’s inter­pret­a­tion of “relev­ance,” endorsed by the FISC, encom­passed the phone records of every person in the coun­try based on the theory that relev­ant records were buried within all the irrel­ev­ant ones.

For many, the Snowden disclos­ures were a crash course in the sens­it­iv­ity of phone records. Experts explained that the seem­ingly innoc­u­ous lists of origin­at­ing and termin­at­ing phone numbers, dates, and times disguised a wealth of highly personal inform­a­tion. Using digital tools, govern­ment agen­cies can analyze the data and deduce a person’s asso­ci­ations, activ­it­ies, and even beliefs. In some cases, we learned this so-called “metadata” can be more reveal­ing than the commu­nic­a­tions’ content. For instance, if a person calls a suicide preven­tion hotline multiple times and hangs up before saying anything, the content is nonex­ist­ent—but the fact of the calls is highly reveal­ing.

Congress ended the bulk collec­tion program in 2015, and the public focus moved onto other privacy concerns, such as the govern­ment’s collec­tion of geoloca­tion inform­a­tion and web brows­ing history.  But Congress never revoked the govern­ment’s author­ity to collect “relev­ant” commu­nic­a­tions records. Although the govern­ment must now specify its target, it can still obtain the target’s records without demon­strat­ing any wrong­do­ing. It can also rely on several other author­it­ies that provide access to the same or similar inform­a­tion on a low “relev­ance” show­ing, includ­ing pen-register/trap-and-trace author­it­ies and so-called “2703(d) orders.”

In the case of the Trump admin­is­tra­tion’s collec­tion of lawmakers’ and journ­al­ists’ commu­nic­a­tions records, the govern­ment invoked one of the broad­est author­it­ies it has: the grand jury subpoena. The word “jury” is often asso­ci­ated with robust protec­tion against govern­ment over­reach. The juries that render verdicts in crim­inal trials—“petit juries”—are indeed designed to provide such protec­tion. They alone have the power to convict the defend­ant, and they alone decide whether the govern­ment has met its burden of prov­ing guilt beyond a reas­on­able doubt.

Grand juries, however­—and grand jury subpoenas in partic­u­lar—are another matter. The purpose of the grand jury is to determ­ine whether prob­able cause exists to bring crim­inal charges. No evid­ence of crim­inal activ­ity is neces­sary to convene a federal grand jury; the stand­ard is merely whether “the public interest so requires.”

Once a grand jury is convened, the prosec­utor may issue subpoenas for “any books, papers, docu­ments, data, or other objects.” In most instances, the prosec­utor can take this action without the jurors’ approval or involve­ment. No show­ing—not even a show­ing of relev­ance—is required. Instead, a subpoenaed person or entity may move to quash the subpoena; a court will grant that motion only if the mater­i­als sought are clearly irrel­ev­ant to the invest­ig­a­tion, or if the request is too vague or would impose an undue burden.

As potent as they are, grand jury subpoenas cannot be used to circum­vent the Fourth Amend­ment or laws passed by Congress. The govern­ment may not obtain the content of commu­nic­a­tions with a grand jury subpoena; a warrant is required under Supreme Court case law as well as vari­ous stat­utory provi­sions.

But the law is notori­ously slow to catch up with tech­no­logy. Take the geoloca­tion inform­a­tion that is constantly registered by cell phones and trans­mit­ted to service providers. Over time, a compre­hens­ive record of a person’s precise loca­tion through­out the day can reveal extraordin­ar­ily sens­it­ive inform­a­tion. Yet for many years, the law allowed the govern­ment to obtain this data with only a “relev­ance” show­ing. It was not until 2018 that the Supreme Court, in Carpenter v. United Statesheld that the govern­ment must obtain a warrant to compel produc­tion of histor­ical cell site loca­tion inform­a­tion.

The battle over geoloca­tion inform­a­tion contin­ues. Congress has not incor­por­ated Carpenter into its privacy laws, and the govern­ment argues that it can evade the warrant require­ment by buying the data rather than compel­ling its produc­tion. But the current focus on geoloca­tion inform­a­tion obscures the fact that we never fixed the commu­nic­a­tions metadata prob­lem. Commu­nic­a­tions records, just like loca­tion records, can reveal a person’s activ­it­ies and beliefs. Indeed, a primary reason the Supreme Court considered geoloca­tion inform­a­tion to be so sens­it­ive is that it can be used to ascer­tain a person’s asso­ci­ations. Commu­nic­a­tions records provide that same inform­a­tion more directly.

Decades ago, the Supreme Court held that the govern­ment did not need a warrant when tapping a phone wire to ascer­tain who was placing calls to a partic­u­lar person. In light of tech­no­lo­gical advances that radic­ally change the stakes of such collec­tion, the Court might yet rethink (or distin­guish) that decision. In the mean­time, though, Congress should act to protect commu­nic­a­tions records with a stat­utory warrant require­ment. And it should estab­lish this protec­tion for all people in this coun­try—not just lawmakers and journ­al­ists.

After all, one reason why the recent news was so shock­ing is that invest­ig­a­tions of lawmakers and journ­al­ists are rare. Unfor­tu­nately, the same cannot be said for govern­ment scru­tiny of Black Lives Matter protest­ersenvir­on­mental activ­istsMuslim Amer­ic­ans who are simply prac­ti­cing their reli­gion, and count­less people of color who are swept up in the crim­inal justice system because of their race or ethni­city. The consti­tu­tional rights of these indi­vidu­als are every bit as import­ant—not only to the people who hold them, but to the proper func­tion­ing of our demo­cracy—as those of lawmakers and journ­al­ists.