A bipartisan coalition of lawmakers has introduced legislation that would make it harder for federal investigators to obtain phone records and also would prevent the government from weaponizing a secretive legal instrument it has used to target critics.
The effort, led by Sen. Ron Wyden (D-Oregon) and Rep. Adriano Espaillat (D-New York), comes after The Washington Post investigated the Department of Homeland Security’s use of administrative subpoenas, which federal agencies can issue to collect Americans’ private personal information without an order from a judge or grand jury.
The Subpoena Abuse Prevention Act, co-sponsored by three Democrats and three Republicans, calls for sweeping reform to how the government deploys administrative, grand jury and trial subpoenas to obtain communications records. It would force government officials, under penalty of perjury, to certify that they won’t use subpoenas to monitor or retaliate against people exercising their right to free speech or other constitutionally protected activities.
“We’ve got a bipartisan group of senators and House members who share the view that we shouldn’t be sitting around and letting the Constitution be abused,” Wyden, the bill’s author, said in an interview. “We’re going to push hard.”
The bill also would sharply limit federal agencies’ ability to obtain phone records without a judge’s order, addressing a long-standing complaint among congressional Republicans whose basic call data — showing who they contacted and when — were collected as part of former special counsel Jack Smith’s investigation into 2020 election interference.
In addition, Wyden’s legislation would prohibit the government from using subpoenas to collect sensitive information in bulk (such as the names of every person who downloaded an app) and require the government to tell a subpoena’s recipient (often tech or phone companies) that, unless a court orders them not to, they can inform customers of whatever legal demand for data they receive.
In February, The Post told the story of a 67-year-old retiree named Jon who had emailed Homeland Security prosecutor Joseph Dernbach to urge mercy for an Afghan seeking asylum. Five hours later, Jon received a notice from Google that the agency had requested information from his account. The next month, a pair of Homeland Security investigators showed up at his suburban Philadelphia home to interview him about the email.
“‘This is not right. This is not fair,’” Wyden recalled thinking after he read the story. The senator had objected to the government’s use of administrative subpoenas during President Donald Trump’s first term, but said that in Jon’s saga, he saw a warning of how much worse the abuses could become if Congress failed to intervene.
“People are going to have their rights stripped right and left,” Wyden concluded.
For Sen. Cynthia Lummis (R-Wyoming), one of Wyden’s co-sponsors, the bill is personal. The senator was among the Republicans whose data Smith obtained.
“I can tell you firsthand that there is something deeply wrong with a system that allows the federal government to unjustly and secretly rifle through your phone records without ever going before a judge,” she told The Post in a statement. “Senator Wyden and I both wholeheartedly agree that unchecked government surveillance is a threat to every American regardless of party.”
In public testimony early this year, Smith defended the subpoenas, asserting that investigators needed to track calls made from the White House on Jan. 6, 2021, as the president tried to thwart certification of the 2020 election results. Smith noted to lawmakers that he only obtained logs with the times and lengths of their calls, not the content.
While the government’s acquisition of the Republicans’ phone records has drawn intense scrutiny, the overwhelming majority of people whom federal agencies target with secretive subpoenas are not public officials.
For Jon, who spoke to The Post on the condition that his last name be withheld out of fear for his family’s safety, the notice from Google in late October left him in a panic. The tech giant didn’t say what information the government wanted, but it did tell him that to keep them from getting it, he would have to file a motion in federal court and submit it to Google within seven days.
He initially assumed the subpoena had been approved by a judge or grand jury, because he didn’t know any other kind of subpoena existed. Google had notified him from a “noreply” address and directed him to request a copy from Homeland Security, which he tried and failed to do.
He eventually learned that Google did not fulfill Homeland Security’s request.
“We review all legal demands for legal validity, and we push back against those that are overbroad or improper, as we did in this instance,” a spokesperson later told The Post.
Homeland Security withdrew the subpoena in early February after the American Civil Liberties Union filed a motion to quash in federal court.
Proponents describe administrative subpoenas as critical tools that allow investigators to avoid protracted judicial reviews to obtain information that could, for example, help them identify someone sexually exploiting a child or track down a suspected drug trafficker.
Speed is what makes them so useful, former and current federal investigators have told The Post. With no external bureaucracy, the government can obtain phone, financial and internet records in days.
In recent months, Homeland Security has issued administrative subpoenas to try to identify Instagram users who posted about ICE raids in Los Angeles and to expose the people behind an Instagram and Facebook account that tracked ICE raids in Pennsylvania. The agency abandoned both cases after the ACLU intervened.
“Jon Doe’s ordeal and similar experiences of other ACLU clients have exposed how easy it is for the government to weaponize administrative subpoenas against people exercising their constitutional rights, while completely evading judicial oversight,” Kia Hamadanchy, senior policy counsel at the ACLU, said in a statement. “This bill would impose serious impediments to retaliation against people like Jon.”
Like other federal agencies, Homeland Security doesn’t have to share how many administrative subpoenas it issues each year, but tech experts and former agency staff estimate it’s well into the thousands, if not tens of thousands. Former staffers have told The Post that officials throughout the agency, even in mid-level roles, have been given the authority to approve the legal demands.
The bill would require federal agencies to tell the public how many administrative subpoenas they issued in the previous year and the number of people’s accounts for which they obtained information.
If the legislation passes, Jon said, he’d be thrilled.
“We want to live in a free society,” he said, ”and this would obviously be a huge step in the right direction.”
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