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The House select committee investigating the Jan. 6 Capitol attack asked over 30 telecommunications and internet companies to retain their records on certain people.
House GOP leader Kevin McCarthy said companies would break federal law if they handed over the information, and risk losing their ability to do business in the U.S.
McCarthy did not name the law, and legal experts say they are unaware of one that would fit that description.
House Minority Leader Kevin McCarthy, R-Calif., warned telecommunication and internet companies not to hand over certain information sought by the House select committee investigating the Jan. 6 assault on the Capitol.
"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," McCarthy wrote on Twitter Aug. 31. "If companies still choose to violate a federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law."
The committee — which includes seven Democrats and two Republicans — has asked over 30 companies, including Google, AT&T and Verizon, to retain records for a list of individuals believed to be relevant to the assault investigation. There’s no indication that McCarthy’s name is on the list. That’s the first step toward issuing subpoenas that could include the communications of sitting lawmakers.
Republican leaders have railed against the committee since it was created, but our focus here is on McCarthy’s assertion that the companies would break a federal law if they complied with a committee subpoena.
PolitiFact and many other news organizations have asked McCarthy’s office multiple times to name the law he has in mind. So far, there has been no response.
Legal experts say they don’t know of any law that would do what McCarthy says.
The head of the House Republican Study Committee, the policy arm of House GOP leadership, laid out part of the GOP’s legal argument in a letter to the committee. We asked legal experts to assess the key points in that letter as well.
Study Committee chair Rep. Jim Banks, R-Ind., said that the Supreme Court has spelled out the limits of the congressional subpoena power. Banks cited the ruling in the case of Trump v. Mazars, when former President Donald Trump fought the release of his tax records by his accounting firm.
"A congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of Congress and must serve a valid legislative purpose,’" Banks wrote Aug. 27.
Banks said the committee is entitled only to information needed to pass laws and conduct oversight. He made other points, but the requirement for a legislative purpose was central to his case.
The resolution creating the select committee gave it a broad investigative scope, and the option to suggest new laws.
Under the resolution — which passed 220-190 on a party-line vote — the committee was told to look at how campaigns and online platforms, along with other entities, might have motivated the attackers. The resolution named several groups to put under the microscope, but in case it left any out, it expanded the committee’s reach to "other entities of the public and private sector as determined relevant by the Select Committee."
That last clause could sweep in members of Congress.
As for a legislative purpose, the resolution said the committee could offer "legislative recommendations as it may deem advisable."
So the committee’s mandate under the resolution appears to address some of Banks’ arguments about the limits of congressional subpoena authority.
But McCarthy’s argument is not about that. It’s about the legal risk companies would face if they agree to turn over records under subpoena. And according to experts we spoke with, his argument is wrong.
The law professors and a telecommunications lawyer we reached said someone could certainly challenge a committee subpoena in court, but there’s no guarantee they would win.
"I suspect a court would give Congress great leeway in deciding what information the body needs for its investigation into the Capitol riot," said University of Iowa law professor Andy Grewal. "But it’s certainly possible that the congressional subpoena could be narrowed" by the court.
As for the legal hazard faced by the telecommunication and social media companies, the experts drew a blank.
"I don’t see there being a penalty for compliance, even if the subpoena is later deemed unlawful," said Ellen Goodman at Rutgers University Law School.
David Alan Sklansky at Stanford Law School echoed that, saying, "I don't know what McCarthy is talking about."
There are, however, two sets of legal standards under privacy law for getting access to telecommunications records. A request for "metadata" — information about who sent a message or placed a call, and from where and when — is subject to less scrutiny than a request for "content," the emails and text messages themselves.
"Federal law does protect the privacy of non-content phone records in the hands of the carrier, but if the disclosure is ‘required by law’ there is no legal prohibition" against releasing it, said Albert Gidari, a retired lawyer who represented telecommunication companies on these legal matters for over two decades.
Gidari said the process is more demanding for the content. A court-issued warrant or the individual’s consent would be necessary for a company to be authorized to release the messages.
But federal law, Gidari said, expressly protects the companies "for complying with a subpoena or warrant compelling disclosure."
"I am not aware of any law under which a company would forfeit its ‘ability to operate in the United States’ for complying with a subpoena to turn over private information," he added.
We reached out to several companies that the committee contacted. Most did not respond, but Google and Reddit said they are working with the committee. Facebook told other news organizations the same.
The companies can’t simply ignore a congressional subpoena. They could face a misdemeanor charge if they did. But they can seek to quash a subpoena and leave it to a court to decide.
McCarthy said that telecommunications companies would violate federal law and risk "losing their ability to operate in the United States" if they handed over records sought by the Jan. 6 investigation committee.
McCarthy’s office has been silent on what law the companies would be breaking.
Law professors and a telecommunications lawyer who handled such matters said that there is no such law barring companies from turning over information sought through a proper subpoena or warrant, and that companies can’t be penalized for complying with a subpoena.
We rate this claim False.
Kevin McCarthy, tweet, Aug. 31, 2021
U.S. Congress, H.Res.503 - Establishing the Select Committee to Investigate the January 6th Attack on the United States Capitol, June 30, 2021
Jim Banks, Letter to Rep. Bennie Thompson, Aug. 27, 2021
Legal Information Institute, 18 U.S. Code § 2703 - Required disclosure of customer communications or records, accessed Sept. 2, 2021
Washington Post, House Jan. 6 committee asks telecom companies to retain phone records rthelated to Capitol attack as it ramps up investigation, Aug. 30, 2021
The Hill, Banks fights Jan. 6 committee effort to seek lawmaker records, Aug. 27, 2021
Politico, McCarthy threatens companies that comply with Jan. 6 probe’s phone records requests, Aug. 31. 2021
Email exchange, Albert Gidari, former director of privacy at Stanford Law School's Center for Internet and Society and retired telecommunications lawyer, Sept. 1, 2021
Email exchange, Ellen P. Goodman, professor of law, Rutgers University Law School, Sept. 1, 2021
Email exchange, Andy Grewal, professor of law, University of Iowa School of Law, Sept. 1, 2021
Email exchange, David Alan Sklansky, professor of law, Stanford University Law School, Sept. 2, 2021
Statement, press office, Google, Sept. 2, 2021
Statement, press office, Reddit, Sept. 2, 2021
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