Washington, D.C. 20554 Brendan Carr Commissioner March 12, 2020 ‘The Honorable Adam Schiff Chairman Permanent Select Committee on Intelligence U.S. House of Representatives Washington, DC 20515 Dear Chairman Schiff, Federal law has long protected the privacy and confidentiality of Americans’ call records. Call records include the telephone numbers that Americans dial as well as the date, time, and duration of their calls. Given their nature, the Federal Communications Commission has determined that call records contain “highly-sensitive personal information.”* These important federal safeguards are top of mind for ‘me because the FCC just proposed over $200 million in fines for apparent violations of these provisions.* am writing to you because your Committee has collected—and may stil be collecting—the protected and confidential call records of private citizens and government officials alike through a secret and partisan process that deprives Americans of their legal right to maintain the privacy of this sensitive information, We know the Committee has been secretly obtaining call records because, in at least one {nstance—the Impeachment Report—the Committee published these protected call records.> And recent press reports indicate that the Committee may be continuing the same type of work that resulted in it obtaining and revealing those confidential call records. In the case of the Impeachment Report, the records you published revealed private details about calls involving numerous individuals and offices, including an investigative journalist, senior government officials (including at least one Member of Congress), multiple attomeys to the President of the United States, and several Executive Branch offices.” See, €.8.,47 US.C. § 222; see also 47 CER. § 64.2001 et seq. 2 See, €.8.,47 US.C. § 222(h)(1); see also 47 CER. § 64.2003(4). > Telecommunications Carriers’ Use of Customer Proprietary Network Information and other Customer Information, 21 FCC Red 1782, 1784, para. 3 (2006) ‘AT&T Inc., Notice of Apparent Liability, FOC 20-26 (Feb. 28, 2020); Sprint Corp., Notice of Apparent Liability, FCC 20-24 (Feb. 28, 2020); T-Mobile USA, Inc., Notice of Apparent Liability, FCC 20-27 (Feb. 28, 2020); Verizon ‘Comme'ns, Notice of Apparent Liability, FCC 20-25 (Feb. 28, 2020). 5 See Report of the House Permanent Select Committee on Intelligence, Pursuant to H. Res. 660 (Dec. 2019), btps:/go.usa.gov/xdgES (“Impeachment Report”). * See, ¢.g., Quinta Jurecic & Benjamin Wittes, The Oversight Wars Are Not Going Away, The Atlantic, Feb. 11, 2020, http:/bit Ly/39yFLSE. 7 See, e.g., Impeachment Report at 43-47, 54, 56, 64, 93, 115-18, 120-21 & notes 49, 52, 66, 69, 76-78, 82-85, 88 138-39, 144-45, 158-59, 255, 539, 730, 734-49, 7154-64, 766, 786, 793,In fact, the Impeachment Report alone indicates that the Intelligence Committee obtained nearly 4,000 pages of confidential call records by issuing one or more secret subpoenas to at least one telecommunications carrier.’ The process the Committee used (and may still be using) to obtain and then publicly release these previously confidential call records raises a number of serious questions—including whether Americans are comfortable with one political party in Congress having the power to secretly ‘obtain and expose the call records of any private citizen, journalist, or government official. First, why did the Committee pursue a secret subpoena process that deprived Americans of their right to challenge the publication of their protected call records? As indicated above, Section 222 of the ‘Communications Act prohibits any telecommunications carrier from releasing customer call records except as authorized by the customer or as required by law. The “as required by law” provision certainly contemplates that Congress could, in at least some circumstances, obtain call records consistent with the Section 222 protections on that data. At the same time, courts long ago established a process for Americans to seck judicial review before Congress obtains and then publishes documents in response to a congressional subpoena." Indeed, the U.S. Supreme Court recently followed this process to prevent Congress from obtaining information sought in congressional subpoenas pending further judicial review."" In those cases, Congress issued subpoenas to a financial institution and an accounting firm for records relating to persons working in the Executive Branch. While Congress undoubtedly has broad authority to obtain records by issuing subpoenas, the Supreme Court has been clear that this authority is not without limits.” And the individuals whose financial records Congress sought in those cases filed lawsuits arguing that the subpoenas exceeded those restrictions. AAs these recent Supreme Court decisions show, the right to seck this type of court review—either to prevent the release of any documents or simply to narrow the production to documents that courts ® The Impeachment Report references a telecommunications carrier's document production with Bates numbers (or page numbers) ranging up to 3,719, which suggests that this one carrier alone produced at Ieast 3,719 pages worth of call records to the Committe in response to a subpoena. 9 See 47 US.C. § 222(b). The FCC's authority to bring an action for violations of Section 222 and the agency's implementing rules is limited to actions against providers of telecommunications services and providers of interconnected Voice over Internet Protocol services. This letter focuses on whether the secret process the Committee followed deprived Americans of their right to maintain the confidentiality of their call records. 9 See, e.g., United States v. AT&T, 567 F.2d 121, 129 (D.C. Cir. 1977) (citing Eastland v. U.S. Servicemen's Fund, 421 US. 491, 513 (1975) (Marshall, J., concurring) 4 See, eg., Donald J. Trump v. Deutsche Bank AG, 2019 WL 6797733 ((Dec. 13, 2019) issuing a stay, pending further review. that blocks Deutsche Bank from turning over financial records sought in a congressional subpoena); Donald J. Trump v. Mazars USA, LLP, 2019 WL 6797734 (Dec. 13, 2019) (issuing a stay, pending further review, that blocks an accounting firm from releasing financial records sought in a congressional subpoena). See, eg., Watkins v. United States, 354 U.S. 178, 200 (1957) (expressing “no doubt that there is no congressional power to expose forthe sake of exposure” and noting that Congress does not possess “a general power to expose ‘where the predominant result can only be an invasion ofthe private rights of individuals”); Quinn v. United States, 349 U.S. 155, 161 (1955) (stating that the “power [of Congress] to investigate, broad as it may be, is also subject to recognized limitations” and isting several such limitations); Kilbourn v. Thompson, 103 U.S. 168, 192 (1880) (Getermining that Congress’ power to compel testimony “exceeded the limit of its own authority”); see also Senate Select Committee on Presidential Campaign Activites v. Nixon, 498 F.24 725, 733 (D.C. Cir. 1974) (en banc) (Fefusing to enforce a legislative subpoena issued to the President by a congressional committee on the grounds that it “is too attenuated and too tangential to its functions").determine are in fact relevant to the lawful scope of a congressional inquiry—is not limited to the company (in this case, the telecommunications carrier) that receives a congressional subpoena. Rather, the individuals with legal interests in those documents (in this case, the Americans whose call records the Committee collected) have standing to petition the courts before Congress receives or publicly releases any records. This makes sense because, as one court has stated, “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.” Yet the secret process the Committee has followed appears designed specifically to immunize the subpoenas—and the Committee's authority—from the very review process established by the courts. After all, Americans cannot invoke the judicial process or otherwise take steps to protect and maintain the confidentiality of their sensitive call records if they only find out about the congressional subpoena after ‘Congress makes their confidential call records public. ‘The Committee has not always issued secret subpoenas that effectively evade even the potential for Americans to vindicate their legal rights. Indeed, Chairman Schiff, in at least one of the congressional subpoena cases now pending in the Supreme Court, you issued a press statement to the New York Times that put Americans on notice that the Committee had issued a subpoena.'* Your public statement helped provide the legal notice necessary for plaintiffs to commence the lawsuit that has resulted in the Supreme Court issuing an order prohibiting the production of any of the requested documents to Congress for the time being.'* By shifting course and proceeding in secret, the Committee is now depriving Americans of any chance to pursue their legal rights and test, in court, the scope of the Committee's subpoena authority. ‘The Committee created out of whole cloth a secret and effectively unreviewable and unchecked mechanism for obtaining call records on any and all Americans. ‘The Committee's secret process appears neither necessary nor tailored to advancing any legitimate legislative or investigative purpose. Afterall, in the instance we know about—the Impeachment Report—I assume the Committee did not seek real-time or forward-looking data, such that providing notice would have undermined the congressional inquiry or otherwise compromised the ‘Committee's access to the data. Rather, the Committee appears to have sought only historic, yet highly sensitive call record data If the Committee were to provide Americans with notice and an opportunity to resist a call records subpoena, there are now fresh questions about the Committee's authority to enforce compliance. Just recently, the U.S. Court of Appeals for the D.C. Circuit determined that the Judiciary Committee could not invoke the court's jurisdiction to enforce a subpoena against former White House Counsel, Don McGahn.'® This recent decision, coupled with the pending Supreme Court cases regarding the scope of congressional subpoena authority, only underscore concerns about the Committee's decision to proceed without the possibility for any checks on an abuse of power. These considerations are heighted here 8 ATAT, 567 F.2d at 129. Emily Flitter & David Enrich, Deutsche Bank Is Subpoenaed for Trump Records by House Democrats, N.Y. ‘Times, Apr. 15, 2019, htps:/nyti ms/38k6QHI. "5 Complaint at paras. 3, 43, Donald J. Trump v. Deutsche Bank AG, No. 1:19-cv-03826 (S.D.N.Y. Apr. 29, 2019). \ Comm. on Judiciary of U.S. House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. Feb. 28, 2020). While the McGahn decision states thatthe federal courts may adjudicate cases concerning congressional subpoenas if they implicate the rights of private partes, the secret process the Committee has pursed prevents a determination now ‘about the manner in which the McGahn opinion may apply in these instances. 3because the secret subpoena process relates to a portentous and constitutional clash between the Executive Branch and Legislative Branch. Second, what is the full scope and extent of the call records sought through the secret subpoena process? As noted above, the Impeachment Report indicates that the Committee obtained nearly 4,000 pages of confidential call records from just one telecommunications carrier. It thus does not appear that the Impeachment Report or the Committee have disclosed the full extent of the call record data obtained through the secret subpoena process. Nor has the Committee indicated whether additional subpoenas hhave been sent. Did the Committee use the subpoena process to obtain data from more than one telecommunications carrier or is it now doing so? Did the Committee seek real-time or location data and, if 0, di it obtain a warrant for that type of protected information?” Third, did the Committee consider whether there are First Amendment implications that flow {from publishing a reporter's call records? As noted above, the Committee obtained call records for an investigative journalist that covered stories about Chairman Schiff and wrote articles that the Impeachment Report characterizes as a “smear campaign” against U.S. officials working in Ukraine."® ‘The Impeachment Report states that the Committee did not subpoena the call records of any journalist, but it nonetheless obtained those records because the journalist spoke with a person targeted by the ‘Committee, and the Committee subsequently made the decision to publish those records. Moreover, the ‘Committee"s apparent legal theory for obtaining call records through Section 222 has no carve out for journalists or anyone else. If the Committee can obtain and then expose the call records of a journalist pursuant to a secret process that evades judicial review, I am concemed about the chilling effect that could have on a free press. In fact, a good portion of the call records that the Committee chose to publicize in the Impeachment Report, including calls involving a Member of Congress, lack any apparent nexus to the Committee's legitimate work. If this is right, then the Committee's decision to nonetheless publish those private call records runs headlong into a longstanding limit on Congress's authority. Over sixty years ago, the Supreme Court made clear that “there is no congressional power to expose for the sake of exposure.” Congress has no “general power to expose where the predominant result can only be an invasion of the private rights of individuals.” ‘There are thus serious questions about the propriety of the Committee's decision to pursue a secret subpoena process—one that prevents Americans from even attempting to safeguard the privacy of their protected call records. These questions are even more pressing, from my perspective as an FCC Commissioner, in light of the FCC’s recent enforcement action and a new court decision regarding the scope of Congress’s subpoena authority. Addressing these questions could help inform the FCC’s own decisions regarding the protections that should apply to Americans’ call records, including whether the FCC should amend our rules. It may also be time for Congress to consider amending Section 222 of the Communications Act in light of the Committee's secret and partisan process—one that the Committee could use to obtain and then publish sensitive call records of any private citizen, journalist, government official, or political "” See Carpenter v. United States, 138 S.Ct. 2206 (2018) (holding that, under the Fourth Amendment, a warrant, rather than a subpoena, is required to obtain cell site location information). Impeachment Report at 43-44, Watkins, 354 U.S. at 200, "1, See, ‘opponent. It might even make sense for Congress to take up these issues as part of its ongoing consideration of a separate statutory scheme, FISA. As the DOJ Inspector General's recent report made clear,” there have been documented abuses of that system, and so it may be time to consider whether ‘Congress's exploitation of Section 222 of the Communications Act could suffer from a similar misapplication. I welcome your response. Sincerely, ee Brendan Carr