The House Select Committee investigating the January 6th attack on the U.S. Capitol (the January 6 Committee) is doing critically important work. But some of its information requests implicate privacy and free expression concerns, including its requests for information from two journalists, Sean Hannity of Fox News and independent photojournalist Amy Harris. The Committee’s conduct could set precedent for other politically-charged congressional investigations in the future, so it should proceed with appropriate restraint.
The Importance of the Committee’s Work
The investigation the January 6 Committee is conducting is vitally important. A mob, some carrying weapons, stormed the U.S. Capitol in an attempt to subvert the role of Congress in certifying the results of the 2020 presidential election. The mob grew out of a larger number of “Stop the Steal” protesters who had gathered in Washington to dispute the election results. The candidate who lost the election, then-President Donald Trump, urged the crowd to “fight like hell.” The insurrectionists smashed their way into the Capitol Building and occupied the floor of the House chamber as well as some congressional offices. An aggressive investigation of the instigation of this attack on democracy, of the funding for it, and of those who actually participated in it, is absolutely necessary and well within the power of Congress to launch. We look forward to the Committee’s report and recommendations.
The Scope of the Committee’s Information Demands
While the subject of the January 6 Committee’s investigation is important, how it conducts that investigation is also crucial. Statutory and case law give congressional committees the ability to compel the disclosure of some sensitive, personal information. For example, the Stored Communications Act (SCA) permits communication service providers such as Google and AT&T to disclose non-content information to entities such as congressional committees. It prohibits service providers from voluntarily disclosing any information to executive branch agencies and departments, but this bar does not extend to Congress (18 USC 2702 and 18 USC 2711(4)). Under the inherent authority Congress has to conduct investigations related to a legislative function, the January 6 Committee can use subpoenas to compel disclosure of some non-content information, and it has done so.
Particularly sensitive non-content, such as location information, is treated differently under Supreme Court precedent. Under the 2017 decision in Carpenter v. U.S., seven or more days of stored cell site location information can only be compelled with a warrant issued upon a showing of probable cause, and congressional committees have no authority to issue warrants. So far, there are no public reports or January 6 Committee statements indicating that the January 6 Committee is seeking to compel disclosure of location information from communication service providers.
Similarly, only a warrant can compel the disclosure of communications content from a communications service provider based on an influential 2010 Sixth Circuit Court decision in U.S. v. Warshak. That court found that, to the extent SCA permits the compelled disclosure of communications content without a warrant, it is unconstitutional. Because congressional committees cannot issue warrants, they may not be able to compel the disclosure of communications content. To be sure, some argue that the inherent power of Congress to conduct investigations includes the implied power to compel the disclosure of communications content with a mere subpoena. Others disagree, relying on the statutory language in the SCA. So far, there are no public reports or January 6 Committee statements indicating that the Committee is seeking to compel the disclosure of communications content from service providers.
Even apart from the legal arguments, attempting to compel the disclosure of communications content or location information from service providers would set a dangerous precedent. Other congressional committees might use that precedent to seek to compel disclosure of this very sensitive information in investigations of lesser importance, or investigations launched primarily to embarrass the political party in the minority. Or, they might even use it to harass or intimidate groups or individuals with which the majority disagreed. Indeed, one could imagine the launching of an investigation for the very purpose of obtaining sensitive communications content to score political points.
We urge the January 6 Committee to follow the lead of the Senate Select Committee on Intelligence in its investigation of interference by Russia in the 2016 elections. In its extensive report, the SSCI recognized the ambiguity in the law and exercised its discretion to conduct its investigation without demanding that communications service providers disclose content. (pp. 21-23). If the January 6 Committee is following this example, we urge it to continue to exercise such restraint.
The exercise of such restraint does not preclude the Committee from obtaining communications content information that is crucial to its investigation. It can use its subpoena authority to compel the disclosure of this information directly from a person who originated it or received it. This direct route has the added civil liberties benefit of automatic notice to the target of the subpoena, who can challenge the subpoena if it is overbroad, unduly burdensome, or seeks disclosure of privileged information.
Demands To Reporters
Despite its possible restraint in not seeking location information or content from service providers, the January 6 Committee has sought information concerning at least two reporters, using different means to try to obtain it. On November 24, the Committee subpoenaed the phone records of independent journalist Amy Harris, prompting Harris to sue the Committee on December 15 to block it from compelling her service provider, Verizon, from disclosing that information. On January 4, Committee Chair and Vice-Chair Reps. Bennie Thompson (D-MS) and Liz Cheney (R-WY) issued a letter to Sean Hannity of Fox News asking him to appear voluntarily to answer questions.
Harris is a well-published photojournalist who was reporting on the Proud Boys, one of the right-wing groups associated with 2020 election-related and racial justice protests and rallies. Her photographs of the January 6 assault on the Capitol Building appeared in national news outlets. The January 6 Committee demanded that Verizon disclose three months of subscriber information and call detail records relating to Harris’s cell phone number. This information would reveal with whom she was in contact during this period, including confidential sources on which she may have relied.
In Hannity’s case, the letter professed “immense respect” for the First Amendment to the U.S. Constitution and stated, “… we do not intend to seek information from you regarding your broadcasts on radio or television, your public reporting or commentary, or your political views regarding any candidate for office.” The January 6 Committee quoted text messages from Hannity to the White House Chief of Staff Mark Meadows that suggested Hannity was acting not as a reporter, but as part of “team Trump,” offering messaging advice and speaking to Meadows in the first person as “we.” But the contours of when a journalist is acting as a reporter rather than in some other role are difficult to define. And, although the Committee so far apparently has only sent a letter asking Hannity for voluntary cooperation, the threat of a subpoena seeking to compel information or testimony remains.
Journalists are, of course, not above the law, but congressional demands that journalists disclose information about whom they talked to and what they talked about raise profound constitutional concerns. They can chill the exercise of free expression through reporting, and make potential sources of information reluctant to talk to reporters, and thereby impede the role of the press in informing the public about matters of critical importance. The January 6 Committee should resort to such demands only when the information sought is critical to the investigation, when other sources for such information have been exhausted, and when such demands are as narrow as possible.
Self-restraint by the January 6 Committee is particularly important because rules and realities that constrain prosecutors in criminal investigations do not apply to a congressional committee conducting an investigation. Congressional committee disclosure demands can be broad because their investigations can be broad, rather than focusing on conduct that may violate a specific criminal law. A congressional subpoena for particularly sensitive information, disclosure of which would require a warrant based on probable cause in the criminal context, can be issued without ever meeting the probable cause standard. Mere relevance to what could be a very broad investigation would suffice. Finally, constraints that the U.S. Department of Justice has adopted by internal memorandum with respect to seeking information about or from reporters by means of subpoena, court order or warrant do not apply to congressional investigations (though ultimately it is the Department that go to court to enforce a Congressional subpoena, and it might choose not to do so if the subpoena violated those constraints).
The January 6 Committee’s investigation is critically important to democracy in the United States. Nonetheless, the Committee should refrain from seeking to compel disclosure of communications content or location information from communications service providers. Unfortunately, it has not exercised sufficient restraint with respect to the press. The Committee should curb its quest for information relating to its investigation in order to protect the First Amendment activities of reporters. It should ensure that like the investigation itself, the methods it uses to conduct the investigation are also designed to preserve democratic values.