This week in the impeachment proceedings in the House of Representatives, Rep. Adam Schiff, D-Calif., the chairman of the House Intelligence Committee, released his report on the inquiry to date. The report included records of telephone calls of President Trump’s personal attorney, Rudy Giuliani, and another man, Lev Parnas, who was reportedly assisting Giuliani in his investigation of alleged activities in Ukraine or by Ukrainians to interfere in the 2016 election. These records included calls allegedly with Devin Nunes, R-Calif., the ranking minority member on the Intelligence Committee, and John Solomon, a prominent journalist.
Americans began querying how Schiff could have obtained the phone call records for the report. Some speculated that a secret warrant had been sought for them, that someone at the carrier (AT&T) had leaked them, that the National Security Agency had been tasked with obtaining them, or that a federal agency had issued a “natsec” letter to acquire them for the intelligence committee.
In reality, the government can obtain these records without taking any such extraordinary measures — and no judge even need be involved for Congress to get them. It can simply send a subpoena to the carrier.
This seemingly astonishing explanation exists because under current law, these records are not protected by any warrant requirement. First, based on Supreme Court precedent, obtaining these records is not a “search” under the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures by the government.
In Smith v. Maryland, 442 U.S. 735 (1979), the court said Americans did not have a reasonable expectation of privacy in the information showing who they spoke to on the telephone because the phone company possessed that information. With no reasonable expectation of privacy in that information, the court concluded police didn’t need a warrant to obtain it.
In those days, police did so by putting a “pen register” on the line, which recorded the phone numbers of incoming and outgoing calls. Nowadays, of course, the phone company keeps these records electronically.
The ECPA Doesn’t Hinder Congress
In response to Smith, Congress addressed the issue of obtaining pen register information (in modern verbiage “phone call log information”) in criminal prosecutions through the Electronic Communications Privacy Act (ECPA), enacted in 1986. The ECPA, however, also does not impose a warrant requirement or necessitate probable cause to get information. Rather, a prosecutor need only “certify” to the federal court that the records are “relevant to an ongoing criminal investigation.”
The ECPA also provides for a “gag” order to prevent the carrier from disclosing the records request. Thus, court orders for phone call log information are routinely obtained in federal criminal cases. The people whose records have been obtained rarely ever find out unless the case goes to trial, and often not even then, unless they are the defendant.
Even the modest protections of the ECPA, however, do not apply to Congress’ efforts to obtain phone call log information. In fact, virtually no federal statute applies to Congress, so it is not unusual that the ECPA doesn’t either. Rather, Congress, as a separate, co-equal branch of the federal government, has the power to issue its own subpoenas to compel the production of records and information.
There are very few limitations on this power. The Supreme Court has repeatedly refused to limit this subpoena power, saying the separation of powers principle gives it little basis on which to challenge Congress’ ability to carry out its responsibilities, including by investigation.
One of the few grounds for challenging a congressional subpoena is whether Congress has the constitutional power to investigate the issue at hand and whether the materials it seeks through the subpoena are within that authority. The courts interpret these questions broadly and liberally, however, and in favor of finding rather than denying both that Congress has jurisdiction to investigate and that materials are rationally related to investigations.
If the subpoena is appropriate in terms of congressional power to investigate and it is not procedurally defective in some way, the only other legal bar to enforcing a congressional subpoena is the assertion of a constitutional privilege or right. The Bill of Rights applies as fully to Congress as it does to the executive branch, and thus the Fourth Amendment can be raised as a bar to a congressional subpoena. But, as the Supreme Court ruled in Smith that the Fourth Amendment doesn’t apply to phone call log information, it doesn’t protect against disclosure of these records.
Vast Government Reach in Electronic Communication
In reality, there is likely no legal basis under current law to successfully challenge a subpoena for phone call log information, except perhaps discrimination on the basis of race, religion, sex, and the like, if such discrimination could be shown factually, which does not seem to be the case in this situation. Even the fact that Giuliani is the president’s attorney doesn’t alter this conclusion.
Courts readily conclude there is no attorney-client privileged information in phone call log information, and in any event, no federal court has yet held that Congress must respect the attorney-client privilege in a challenge to a congressional subpoena, because attorney-client privilege is a common law rule rather than a constitutional one.
All of this leads to the reality that under current law, Congress can obtain phone call log information — who called or was called, at what time, and for how long — simply by sending its own subpoena to the phone company handling the account. This does not include the content of the call itself (what was said), however, which requires a wire-tapping warrant, at least by the executive branch.
However, vast federal government reach into electronic communications doesn’t stop there. Note that the ECPA deems all emails more than 180 days old and stored on an electronic server to be “abandoned.” That determination is important because under Fourth Amendment law, any “abandoned” property doesn’t require a warrant for the government to obtain it. So in addition to obtaining Americans’ phone call log information, the federal government can also get all their old emails from service providers simply through a certified request to a judge by the executive branch or by a congressional subpoena.
The Status Quo Needs to Change
The only solutions for changing the status quo seem to be for the Supreme Court to reverse Smith and conclude that the Fourth Amendment protects these records, for Congress to pass a new law that requires a warrant for these types of records and makes itself subject to that law, or for Congress to incorporate a warrant requirement in its rules for obtaining such records.
In all likelihood, there is probably little political will for the latter two solutions. Unless the American people can persuade Congress to limit access to phone log and email records, a legal challenge to Smith may be the only avenue for changing the status quo, which exists regardless of whether Americans deem it an unreasonable intrusion on their privacy.
It is difficult to assess how receptive the court would be to such a challenge. In recent years, however, the court has begun to issue rulings that are more protective of individuals’ right of privacy regarding personal cell phones and other modern technology.
For instance, in Carpenter v. United States last year, the court held that cell phone location records could not be obtained by certification under the ECPA, but required a warrant. In 2012, the court ruled in United States v. Jones that tracking a person’s car by GPS required a warrant. It may be that the court would be receptive at this point to revisiting its -40-year-old conclusion in Smith that Americans do not have a reasonable expectation of privacy in who they talk to on their phones.
Leslie McAdoo Gordon is the principal of McAdoo Gordon & Associates, P.C., founded in 2003. She graduated cum laude from the Georgetown University Law Center in 1996, and is licensed to practice law in Maryland, Virginia, the District of Columbia, and numerous federal trial and appellate courts, including the U.S. Supreme Court. Prior to entering the field of law, Leslie McAdoo Gordon served as a Special Agent for the Department of Defense, Defense Investigative Service (now the Defense Counterintelligence and Security Agency).
