According to The Intercept, the FBI began securing phone and electronic records connected to people at the Capitol within hours of the insurrection on Jan. 6, including some pertaining to members of Congress, which the publication noted raises 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.
The Intercept noted that investigators also have “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.
According to that former official, the data “is also being used to map links between suspects,” the news outlet reported.
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.
Sen. Sheldon Whitehouse (D-RI) released a statement on Jan. 11, according to the report, warning against DOJ involvement in investigating the Capitol attack, particularly with regard to members of Congress.
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.”
He continued: “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.”
The news outlet said it remains unclear “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 non-content data.”
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.
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.
However, German said the wide collection of data in this 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.”
He added that “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.”
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.
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