The FBI’s use of congressional cellphone data in their investigation of the Capitol attack raises complex constitutional issues.
Soon after the January 6th attack on the Capitol, the FBI took swift action to secure electronic records and phone data tied to individuals present at the scene, some of which were associated with members of Congress. This has raised potential legal concerns, as the FBI has used emergency powers and other methods to collect a large amount of private data and communications beyond what was publicly shared on social media. In some cases, emergency orders that don’t require court approval were utilized to gather actual communications from individuals identified at the crime scene. Additionally, cellphone data “dumps” from towers in the area were examined to create a map of those present, which enabled investigators to trace call records, but not communication content, from the phones.
The FBI’s cell phone data collection efforts include numerous records from members of Congress and their staff who were present at the Capitol on the day President Joe Biden’s election victory was confirmed. The agency is using the data to identify visitors to the Capitol by searching for cell towers and phones that ping off cell sites in the area. The information is also being employed to create links between suspects, some of whom allegedly include members of Congress. Reports suggest that Capitol Police are investigating claims that lawmakers assisted rioters in gaining access to the Capitol, although Republican officials deny this. The involvement of senior public corruption officials in the Justice Department’s task force indicates a focus on public officials such as members of Congress and the Capitol Police, according to a retired FBI official.
The FBI has encountered challenges in acquiring records of members of Congress due to the speech or debate clause of the Constitution. This clause protects the legislative work of Congress from interference by the executive branch. In 2007, a court ruled that the FBI had improperly seized material from a congressional office in a corruption case against former Representative William Jefferson.
Senator Sheldon Whitehouse has warned against the involvement of the Justice Department in investigating the January 6 attack, at least with regards to members of Congress. According to the senator, separation of powers principles and the speech and debate clause limit the executive branch’s ability to investigate members of Congress. Thus, the responsibility of disciplining members of Congress falls upon the houses of Congress. Senator Whitehouse has asked the Senate ethics panel to investigate certain members’ behavior, including whether they coordinated or conspired with, aided and abetted, or gave aid and comfort to the insurrectionists. The Senate ethics committee is tasked with answering these questions.
It is not clear whether the collection of cellphone records from members of Congress on the day of the riots might conflict with that protection, because there is far less legal protection for noncontent data. “That is an interesting and thorny question. I think it depends on the nature of the phone call: Were they calling other members to discuss legislative business, or was it for another purpose?” said Daniel Schuman, policy director for Demand Progress, an advocacy group focused on internet freedom and progressive policy changes.
Congressional law expert Michael Stern said that while speech or debate privileges are generally narrowly construed when it comes to criminal investigations, such issues have often become subject to intense political conflict in the past. “In the House, it’s often become a partisan fight historically when someone’s under investigation, and the other party says you should disclose everything, and the party that wants to protect it says, ‘No, no, there’s institutional concerns here, we can’t let the FBI come in and roughshod over everything,’” Stern said.
Federal authorities have used the emergency orders in combination with signed court orders under the so-called pen/trap exception to the Stored Communications Act to try to determine who was present at the time that the Capitol was breached, the source said. In some cases, the Justice Department has used these and other “hybrid” court orders to collect actual content from cellphones, like text messages and other communications, in building cases against the rioters.
Telecom providers have been cooperative in turning over data related to the January 6th attack on the Capitol. Sources say that no one wants to seem on the wrong side of the insurrection, which has turned the Capitol into a crime scene. As a response to the attack, the FBI is legally expedited under national emergency policies to collect electronic data related to the event. While this seems sensible, there are concerns. Michael German, a former FBI agent who is now with the Brennan Center for Justice’s Liberty and National Security Program, suggests that the wide collection of data will create a massive amount of information that will make it difficult to distinguish between those who committed violent acts and those engaged in nonviolent civil disobedience. Essentially, investigators will be sorting through piles of data that are not useful. While the vast majority of people whose cellphone data will be collected in this manner are completely innocent, they are nevertheless added to the suspect list created through bulk collection, and the future consequences they might face are unknown.
Senator Mark Warner from Virginia sent a letter to 11 major cellphone and internet companies, including AT&T, T-Mobile, Verizon, Apple, and Facebook, two days after the riot at the U.S. Capitol on January 6th, urging them to preserve content and metadata associated with the event. While some of the telecommunication providers questioned Senator Warner’s authority to make the request, many of them still chose to preserve data due to the large scale of violence. The FBI has not commented on specific investigative tools but acknowledged receiving over 200,000 tips from the public to identify rioters. The bureau stated that it conducts investigations according to legal requirements and established policies. Any questions regarding investigative methods were referred to the FBI by the Justice Department.