FBI Seized Congressional Cellphone
Records Related to Capitol Attack
The inclusion of congressional phone data in
the FBI investigation raises thorny
constitutional questions.
By Ken KlippensteinEric Lichtblau
February 25, 2021 "Information
Clearing House" - -
"The
Intercept"
- - Within hours of the
storming of the Capitol on January 6, the
FBI began securing thousands of phone and
electronic records connected to people at
the scene of the rioting — including some
related to members of Congress, raising
potentially thorny legal questions.
Using special emergency powers and other
measures, the FBI has collected reams of
private cellphone data and communications
that go beyond the videos that rioters
shared widely on social media, according to
two sources with knowledge of the collection
effort.
In the hours and days after the Capitol
riot, the FBI relied in some cases on
emergency orders that do not require court
authorization in order to quickly secure
actual communications from people who were
identified at the crime scene. Investigators
have also relied on data “dumps” from
cellphone towers in the area to provide a
map of who was there, allowing them to trace
call records — but not content — from the
phones.
The cellphone data includes many records from
the members of Congress and staff members who
were at the Capitol that day to certify
President Joe Biden’s election victory. The FBI
is “searching cell towers and phones pinging off
cell sites in the area to determine visitors to
the Capitol,” a recently retired senior FBI
official told The Intercept. The data is also
being used to map links between suspects, which
include members of Congress, they also said.
(Capitol Police are
reportedly investigating whether lawmakers
helped rioters gain access to the Capitol as
several Democrats have alleged they did, though
Republican officials deny this.)
The Justice
Department has
publicly said that its task force includes
senior public corruption officials. That
involvement “indicates a focus on public
officials, i.e. Capitol Police and members of
Congress,” the retired FBI official said.
In recent years, the FBI has had to tread
lightly in seeking any records of members of
Congress due to protections under the
Constitution’s speech or debate clause, which
shields the legislative work of Congress from
executive branch interference. The legal
minefield grew out of a 2007 corruption case
against former Rep. William Jefferson, D-La.,
when an appeals court ruled that the FBI had
improperly seized material from his
congressional office.
On January 11, Sen. Sheldon Whitehouse, D-R.I., released
a statement warning against the Justice
Department getting involved in the investigation
of the attack, at least regarding members of
Congress, asserting that the Senate should
oversee the matter. Asked to elaborate,
Whitehouse, a former federal prosecutor, told
The Intercept: “Separation of powers principles
generally, and the speech and debate clause
particularly, restrict the executive branch’s
ability to investigate members of Congress.
That’s why the Constitution puts the houses of
Congress in charge of disciplining their
members. In the case of the January 6
insurrection, I’ve asked the Senate ethics panel
to take a hard look at certain members’
behavior, including whether they coordinated or
conspired with, aided and abetted, or gave aid
and comfort to the insurrectionists. Those
questions demand answers and the Senate ethics
committee has the job to answer them.”
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.
The collection effort has been met with little
resistance from telecom providers asked to turn over
voluminous data on the activity that day. “No one
wants to be on the wrong side of the insurrection,”
a source involved in the collection effort said.
“This is now the scene of the crime.”
Michael German, a former FBI agent who is a
fellow at the Brennan Center for Justice’s Liberty
and National Security Program, said that the January
6 attack on the Capitol “certainly seems to fit” the
type of national emergency that would allow the FBI
to legally expedite its collection of electronic
data. But he said that the wide collection of such
data from the event “reflects a flawed approach that
will inundate investigators with volumes of data
that isn’t necessarily helpful to distinguish who
committed violence at the Capitol versus those who
were engaging in nonviolent civil disobedience. And
meanwhile the vast majority of people whose
cellphone data will be collected in this manner are
completely innocent of engaging in any criminal
activity but will remain in the suspect pool that is
created with any bulk collection program where the
future consequences they might face are unknown.”
In a
letter sent two days after the riot to 11 major
cellphone and internet companies, including AT&T,
T-Mobile, Verizon, Apple, and Facebook, Sen. Mark
Warner, D-Va., urged the companies to “immediately
preserve content and associated meta-data connected
to” the riot. Some of the telecommunications
providers questioned whether Warn
er has the authority to make such a request, but
a number of them appear to have been preserving data
from the event anyway because of the large scale of
violence, the source said.
The FBI declined to comment on any of the
specific investigative tools it is using in the
January 6 investigation except to say that the
bureau has received more than 200,000 tips to
date from the public in response to its request
for help in identifying rioters. “As with all
our operations, the FBI conducts itself
according to our legal requirements and
established policies,” the bureau said in a
statement. The Justice Department also declined
to comment, referring any questions on
investigative methods to the FBI.