Congressional investigative subpoenas to third-party telecommunications companies go back at least as far as the 1970s, when the House Committee on Interstate and Foreign Commerce demanded information from AT&T in the Committee’s investigation of wiretapping practices by the Federal Bureau of Investigation. That subpoena sought letters the FBI had sent AT&T that identified telephone numbers, addresses, or numerical designations of phone lines targeted for wiretapping.
Both House and Senate investigative committees also have subpoenaed and obtained communications records of private parties maintained by third-party telecommunications providers. The Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters in 1995 subpoenaed residential phone records of the Chief of Staff to First Lady Hillary Clinton. The House Committee on Government Reform in its 1997-98 inquiry into campaign finance practices obtained phone records of several individuals. The Senate Select Committee on Intelligence in its 2018 review of Russian efforts to influence the 2016 election subpoenaed and obtained phone records from telecommunications providers. The House Permanent Select Committee on Intelligence in 2019 obtained phone records from telecommunications providers relating to the investigation of then-President Trump’s conduct relating to withholding funds from Ukraine. Further, the House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “January 6th Committee”) in its 2021-2022 inquiry subpoenaed phone records from telecommunications providers.
To date, direct legal challenges to Congress regarding subpoenas for telecommunications records have failed because of immunity from civil lawsuits provided to Congress under the Speech or Debate clause of the Constitution and the sovereign immunity doctrine. For example, a federal district court in 2022 ruled that the Speech or Debate clause barred the court from reviewing the lawsuit by former Trump Administration White House Chief of Staff Mark Meadows challenging subpoenas from the House Select Committee to Investigate the January 6th Attack on the United States Capitol to Verizon for Meadows’ communications records and to Meadows for documents and testimony. In a case in the 9th Circuit in 2022, Ward v. Thompson, the court relied on sovereign immunity to dismiss a lawsuit against the January 6th Committee by the chair of the Arizona Republican Party.
The outcome can be different, however, when the lawsuit is directed at a third party, such as a telecommunications company, that possesses the records sought by Congress. In the AT&T case mentioned above, the Department of Justice sued AT&T to enjoin compliance with the House Interstate and Foreign Commerce Committee’s demand to AT&T for FBI letters to the company identifying wiretapping targets. The court rejected the claim by the House as an intervenor that the Speech or Debate clause barred judicial review of this subpoena. Underscoring that Congress was not a defendant in that case, the court stated that while the Speech or Debate clause protects legislators from executive and judicial harassment, it “does not and was not intended to immunize congressional investigatory actions from judicial review.” Since then, lawsuits against third parties seeking to prevent the third parties from complying with congressional subpoenas have been allowed to proceed. A recent example is Trump v. Mazars, the Supreme Court case where President Trump sought to stop his accounting firm from responding to congressional subpoenas.
The federal law that governs whether telecommunication providers need to comply with requests for subscriber records is the 1986 Stored Communications Act (SCA). This law imposes different disclosure requirements regarding subscriber “content,” such as the substance of a subscriber’s text communications, and noncontent metadata, such as subscriber phone numbers or the dates and duration of subscriber communications. The SCA prohibits provider disclosure of content to any person, and it prohibits disclosure of noncontent information to a “governmental entity.” Exceptions in the law create specific procedures under which a “governmental entity” may compel providers to disclose content and noncontent information. The definition of “governmental entity,” however, does not include Congress. Congressional committees have taken the position that at a minimum this law allows telecommunication providers to disclose noncontent information, such as call logs, to Congress.
In Ward v. Thompson, which was decided in favor of the January 6th Committee on the basis of sovereign immunity, the chair of the Arizona Republican Party during the 2020 presidential election argued that disclosure of subpoenaed call records would violate her First Amendment rights of association. The 9th Circuit addressed the plaintiff’s First Amendment argument in the context of analyzing whether the sovereign immunity doctrine barred the lawsuit against the Committee. The court concluded that there was “little to suggest that disclosing Ward’s phone records to the Committee will affect protected associational activity” and that the more stringent First Amendment review standard sought by the plaintiff would therefore not apply. Further, it stated that even if the more exacting standard did apply, the subpoena would meet that standard because there was a substantial relationship between the disclosures required by the subpoena and the important investigative interests of the Committee, and the subpoena was narrowly tailored to that requirement.
A 2018 Supreme Court ruling in Carpenter v. United States articulated an additional limitation regarding disclosure of information known as “cell site” information that shows the historic location of subscriber calls. This case involved a claim by a criminal defendant that the FBI had violated his Fourth Amendment rights by obtaining cell site information from his telecommunications provider without a warrant. The Supreme Court agreed with the defendant, holding that while the FBI had obtained a court order for the records under SCA procedures requiring a showing that the records were “relevant and material to an ongoing investigation,” the acquisition of the cell site records constituted a Fourth Amendment search that required a warrant supported by “probable cause.” Whether this limitation would apply to Congress has not been addressed by any court.
