Late last month, a special committee of Congress investigating the deadly January 6 attack on the U.S. Capitol requested 35 social media and telecommunications companies to suspend communications from hundreds of people who may be linked to the attack to keep a possible review.
It is a broad request that includes the records of Republican Congressmen, including House Minority Leader Kevin McCarthy. McCarthy has threatened retaliation if companies comply with the backup request, which could be the first step in which the US House of Representatives selection committee ultimately issues a subpoena of all communications.
To better understand these developments and where they could potentially lead, UVA Today reached out to Tom Haley, an expert on data protection law and the federal judicial system. Haley joined the faculty of the University of Virginia School of Law in 2020.
Q. Can you just explain the situation to our readers?
A. So there are two different tracks. There is a group of companies that have received the maintenance requests [from the committee]which includes the social media companies as well as many telecommunications and other companies. These companies are not yet being asked to give anything to the committee. All they are told is, “Look, we’re investigating this. We’ll be interested in documents we think you have. We’ll be interested in documents that we think you have.” Therefore, please do not delete anything that you could otherwise delete in the normal course of business. “
Then there is a smaller group of social media companies that have received actual requests for documents.
The big difference is that the documents you are currently asking for are not individuals. It’s about election interference, misinformation and disinformation about the 2020 elections; about how the algorithms on these platforms might have played into things; and … everything these companies did in response to the January 6 elections or uprising. The committee asks you to basically abandon these documents now.
Q. What are the legal stakes?
A. The legal stake is not that high. In principle, there are not many legal obstacles to the type of information sought, and certainly not to the request for retention. In civil litigation, this is a very common thing that you see in disputes. You submit the maintenance request, and a company or individual has an obligation to do so. So it’s no big deal just having to suspend the deletion of this information.
If the committee comes back and asks for some of these documents to be presented, it will be a little more difficult. Still, there is not much in the law that would provide a basis for refusing to provide the information. And I think the question also arises as to what obstacles there are that could even be reduced in the context of a subpoena to Congress, since Congress has fairly extensive powers over what it can ask, as long as it involves legislative activity or potential legislative activity Action is activity.
Q. Republican minority leader Kevin McCarthy hopes to become the next House Speaker if his party wins a majority in the 2022 elections. He tweeted a threat to the companies subpoenaed, saying that “a Republican majority will not be forgotten” if the companies release information. How do you see things play out as this whole process progresses?
A. It’s a disturbing statement because it’s basically a threat against these companies that they should break the law. You have an obligation to respond to these subpoenas, and if there is no legal basis for refusing to provide information – which to my knowledge there is no such basis – then he is effectively saying, “Break the law. Despise Congress or we’ll do something when we come back to power. ”There is an“ or else ”implied. I think it’s worrying to see a big party leader basically threatening people to break the law. Sounds a bit like a disability [of justice].
And there are even stronger statements. I’ve seen Marjorie Taylor Greene, a Georgia Congresswoman, say if these telecommunications companies comply, “They’re going to be closed. And that’s a promise. ”And that’s not the kind of thing an elected leader would want to say about keeping the law.
Q. How have companies reacted so far? And what about the companies that specialize in encrypting messages?
A. There are many companies that have basically said nothing, as far as I can tell so far. I’ve seen Reddit, Snapchat, and Discord all say they’ll stick to it. On Facebook and Google, what I’ve seen of them is more like, “We’re going to work with the committee here.” They didn’t just say, “We want to turn everything around.”
The only company I’ve seen so far that has said it doesn’t stick to it is Proton Technologies. You are a Swiss company that, among other things, is an email provider. And so they have declared that they are forbidden under Swiss law to pass on the information that they are asked for. And interestingly for them – and I think this is true for some of the companies that have received these requests – they cannot really give up the content of the communication because their fame is that they offer encrypted email services and design them have it in such a way that they have no way of decrypting the emails. So Congress is free to ask them about this content, but unless they have a way to break this encryption it won’t do them any good.
Congress passed the maintenance requests. sent [the encrypted messaging apps] Signal and to Telegram, and there it is the same. Basically the whole reason for these services is that they are encrypted and no one can see what you are saying. So Congress is unlikely to get much out of these requests.
Q. Is this action new or is there a precedent?
A. I don’t think Congress does this that often. But we’ve had the great battle for just the last couple of years [former President Donald] Trump’s tax returns and the subpoenas from Congress for it. And then there were also the state procedures that applied for them separately.
There are Supreme Court precedents as to the power of Congress to issue subpoenas and the source of that power and any restrictions. I am not personally aware of congressional subpoenas against technology companies, although I would not be surprised if there have been a few or are being added in other contexts. For example, there is a great deal of interest in the monopoly side and antitrust law.
We may see some movement there from Congress, but it’s more common to see it from the Justice Department or other executive actors. In this area, the various tech companies – some of them – receive hundreds of thousands of subpoenas from either the US government or state law enforcement agencies. It’s just one thing they are dealing with all the time. For the bigger ones, I’m sure they have a very well-oiled machine in terms of how they handle it and how they react. Some companies now have transparency reports that they produce quarterly or annually. They’ll say, ‘Look, we’ve got so many subpoenas from the state or the federal government, and we’ve objected to so many, and we’ve given up information on so many. So the people who use these services have at least one way to see how often this happens.
Q. With your expertise in data protection law and in federal courts, do you have any other considerations that you would like to share?
A. It will be interesting to see how that plays out. I think it seems inevitable that these retention requests will be turned into requests for specific information. And it can take a long time to figure out what they requested and what they got and where they are going with it.
It will also be interesting and enlightening to see how the Republican Party continues to react here – and what it actually does when it gets a majority in 2022.
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