Letter from Dallas

Brian Owsley teaches constitutional law at the University of North Texas at Dallas College of Law. Here he tries very generously to make sense of a United States Congressman’s threat to ruin any telecommunications company that dares comply with a lawful order to turn over his and other lawmakers’ telephone records that could implicate them and the scrote to whom they abased themselves in the 6 January insurrection against the United States of America.

(Professor Owsley is a much, much nicer man than I am.)

House Minority Leader Kevin McCarthy is extremely unhappy because the House select committee investigating the January Sixth attack on the United States Capitol Building requested that telecommunications providers preserve his telephone records for that day along with other Republican lawmakers. Although it is known that he spoke with President Trump several times as the attacks were occurring, it is unclear the precise times or for how long. Moreover, it is unknown whether he spoke with individuals who participated in the attacks either that day or in the days leading up to January Sixth. Regarding the committee’s request, McCarthy made a couple of intriguing statements.

First, McCarthy recently complained that “Adam Schiff, Bennie Thompson, and Nancy Pelosi’s attempts to strong-arm private companies to turn over individuals’ private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians.” Second, he threatened that “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.”

The first statement demonstrates that McCarthy does not understand that telecommunications providers routinely provide this type of information daily to law enforcement officials. In light of the fact that the select committee only requested preservation of records as opposed to provision of any records yet, McCarthy’s concern is a bit premature. Regardless of the timing of providing any records, there are a couple of federal laws that would authorize the release of his cell phone records.

The Pen Register Act is part of the Electronic Communications Privacy Act, which Congress enacted in 1986. A pen register is a record of all outgoing calls from a specific telephone number, which is often requested in tandem with a trap-and-trace device that is a record of all incoming calls to a specific telephone number. Congress established a very low standard for law enforcement officers to obtain such information. They only needed to certify the information sought was “relevant to an ongoing criminal investigation.” Regarding the January Sixth attack, members of the select committee need only demonstrate that the investigation concerns criminal conduct in a situation that has already resulted in charges against over five hundred people for various violations of federal law. In other words, a list of McCarthy’s outgoing and incoming telephone calls is readily obtainable pursuant to the Pen Register Act.

Additionally, the Stored Communications Act is also part of the Electronic Communications Privacy Act, authorizing law enforcement officers to obtain subscriber or customer information from electronic communications service providers, including telecommunications companies. Specifically, the statute authorizes such providers to release a subscriber’s name; mailing address; the dates and times of telephone calls along with the length of such calls; and the telephone’s unique identifier numbers when they received a valid request. In order to obtain this subscriber information from a provider, law enforcement officers need only obtain a court order after establishing “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” Although this standard is higher than the standard mandated by the Pen Register Act, it does not create much of a burden for law enforcement.

With these two acts as a basis for the select committee to obtain telephone information that it asked telecommunications providers to preserve, we come to McCarthy’s second statement threatening consequences against any company providing such information. Addressing McCarthy’s threat, it is a little unclear what law he is referencing. As both the Stored Communications Act and Pen Register Act establish, telecommunications providers must provide this information when provided a court order based on relatively low standards. Furthermore, there is not much one can do if law enforcement officers adhere to these statutes and obtain court orders for the information. The Pen Register Act outlines criminal penalties making unauthorized obtaining of this information a misdemeanor. Similarly, the Stored Communications Act also makes it a felony for individuals who obtain the subscriber information in an unauthorized manner, but that would not apply to persons who obtain a court order for the information.

If officials obtaining the information adhere to the procedures outlined by the statutes, then it is unlikely that McCarthy’s legal threat has any basis. Instead, it appears that he was more likely threatening retaliation against these telecommunications providers. For example, McCarthy asserted that “If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.” This threat of retaliation is comparable to his Republican colleague Representative Marjorie Taylor Greene who threatened to “shut down” these providers if they provide January Sixth records to the select committee. In Greene’s defense, as a new member of Congress, she has never voted for the Patriot Act and other federal laws supporting such electronic surveillance like McCarthy has on every occasion.

With McCarthy’s newfound interest in privacy concerns related to governmental electronic surveillance, it may present an opening for reform of both criminal statutes. As an initial matter, in Smith v. Maryland, the Supreme Court held that information like a person’s pen register data is not protected by the Fourth Amendment because people do not have a reasonable expectation of privacy in the information that they willingly provided to a third party. Here, McCarthy willingly provided the phone company the numbers that he dialed as well as the calls that he received. This legal fiction that people using a telephone or in this case a cell phone willingly give their personal information to a third party—the phone company—has been the law of the land since 1979.

In light of the Smith v. Maryland decision, individual privacy has been undermined for over forty years. However, instead of the low standards of these two statutes, Congress could enact new standards with bipartisan support requiring that law enforcement officials obtain such records only after obtaining a search warrant from a magistrate judge based on probable cause. Such a standard would align the provision of such information with the standard outlined by the Fourth Amendment. It is doubtful that Congress can act quickly enough to protect McCarthy, Greene, and their colleagues, but they can work to strengthen privacy protection for all of us.