Democratic lawmakers are calling for an investigation into the Trump administration’s Department of Justice (DOJ) and its use of subpoenas to obtain metadata from devices belonging to at least two members of Congress. They say it is a disturbing attack on the separation of powers, the principle of keeping the operations of the executive, judicial and legislative branches generally separate from each other.
Calls for supervision follow a New York Times report revealing that the Department of Justice had Apple turn over records of various individuals associated with the House Intelligence Committee, including Representative Adam Schiff, Representative Eric Swalwell, their staff and family, one of whom was a minor, In the middle of an investigation on people leaking classified information. While the seizure of this data occurred in 2017 and 2018, a DOJ gag order prevented Apple from informing representatives until last month when they received an email notification from the company. Now the members are supposedly running to gather more details from Apple on the scope of the subpoena from the Department of Justice.
That the Justice Department searched the private phone numbers of US legislators without their knowledge is remarkable and disturbing. While details are still emerging, the exchange sets a troubling precedent for the executive branch’s ability to obtain digital records from lawmakers, as well as the roles of tech companies in enforcing such orders. Attention has now turned to both Apple and the Justice Department, and they have raised concerns about how each addresses controversial government demands for sensitive data.
It is unclear what data Apple provided. Apple did not respond to Recode’s request for comment.
Still, Democrats are outraged and call for the seizure of this data “assault“On the separation of powers. They say the subpoenas constituted dangerously broad government surveillance deployed in the service of then-President Donald Trump’s political interests.
“President Trump repeatedly and flagrantly demanded that the Justice Department abide by his political will and tried to use the Department as a club against his political opponents and members of the media,” Rep. Schiff told Recode in a statement. “It is increasingly clear that these demands did not fall on deaf ears.”
Justice Department Inspector General Michael Horowitz, Announced on Friday it will begin a review of the agency’s actions under the Trump administration and will analyze “whether such uses, or the investigations, were based on inappropriate considerations.” Senator Ron Wyden has also promised to introduce legislation to “reform[ing] the abuse of gag orders ”and greater transparency in government surveillance.
Companies like Apple frequently release user data when required by government agencies. This was explained by Recode’s Sara Morrison last year.
Depending on what the police are looking for, you may not need physical possession of your device at all. Much information on your phone is also stored elsewhere. For example, if you back up your iPhone to Apple’s iCloud, the government can get it from Apple. If you need to see which DM you slip into, law enforcement can contact Twitter. As long as they go through the proper and established legal channels to obtain it, the police can get their hands on practically anything you have stored outside of your device.
You have some rights here. The Fourth Amendment protects you from illegal searches and seizures, and commission of the Electronic Communications Privacy Act of 1986 (ECPA) dictates what the police must obtain to obtain the information. It can be a subpoena, court order, or court order, depending on what you are looking for. (WhatsApp really does a good job of explaining this in your frequently asked questions.) A section of the ECPA, known as the Stored Communications Act, says that service providers must have such orders before they can give the requested information to law enforcement.
But, assuming the government has the correct paperwork, your information is very easy to obtain.
On Apple’s U.S.-focused transparency website, the company says it may receive government requests related to a person’s device identifier, financial identifiers, customer data related to account information, and requested customer data on the middle of an emergency. In the case of the Justice Department investigation into the leaks, Apple provided metadata and account information, according to the Times.
“These private data demands from legislators are especially disturbing because they threaten the separation of powers. But the problem is much bigger, ”ACLU lead attorney Patrick Toomey told Recode in an email. “The government establishes the confidential information of large numbers of people each year, often without prior notice to the affected people.”
Tech companies have some power when they receive these types of requests. They may try to reject a government request as invalid, although they often do not. Apple says that between January and June 2020, the company provided data 82 percent of the time when a government agency requested identifying information about a particular device. Tech companies can also try fight a gag order. In this case, a gag order seemed to stay in place.
This is worrying. At the same time, the seizure of this type of data is a dark reminder that companies like Apple continue to retain large amounts of user data and that they may be legally obliged to hand it over to the government without a user knowing.