Democratic lawmakers are calling for an investigation into the Trump administration’s Department of Justice (DOJ) and its use of subpoenas to obtain device metadata 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, judiciary and legislature generally separate from each other.
The calls for surveillance follow a New York Times report revealing that the DOJ asked Apple to turn over the files of several people associated with the House Intelligence Committee – including Rep. Adam Schiff, Rep. Eric Swalwell, their staff and their family, one of whom was a minor – amid an investigation into those who disclosed classified information. While this data entry took place in 2017 and 2018, a DOJ gag order prevented Apple from notifying representatives until last month, when they received an email notification from the company. Now members are would have run to gather more details from Apple on the scope of the DOJ subpoena.
That the Justice Department unwittingly searched for private telephone data of U.S. lawmakers is remarkable and disturbing. While details are still emerging, the exchange sets a worrying precedent for the executive’s ability to obtain digital records from lawmakers as well as the role of tech companies in enforcing those orders. Attention has now turned to both Apple and the DOJ, and this has raised concerns about how each is approaching the government’s controversial demands for sensitive data.
It is not known what data Apple actually transmitted. Apple did not respond to Recode’s request for comment.
Still, Democrats are outraged, calling for the entry of this data “an agressionOn the separation of powers. They say the subpoenas constituted dangerously broad government scrutiny in service of the political interests of then-President Donald Trump.
“President Trump has repeatedly and blatantly demanded that the Justice Department carry out its political will and tried to use the department as a stick against its political opponents and members of the media,” said Representative Schiff to Recode in a press release. “It is increasingly clear that these requests have not fallen on deaf ears.”
Justice Department Inspector General Michael Horowitz on Friday announced he would begin a review of the agency’s actions under the Trump administration and examine “whether such uses, or investigations, were based on considerations inappropriate “. Senator Ron Wyden also promised to introduce legislation aimed at “reforming[ing] abuse of gag orders ”and increased transparency in government oversight.
Companies like Apple frequently pass on user data when government agencies request it. Here’s how Recode’s Sara Morrison explained it last year.
Depending on what law enforcement is looking for, they may not need to physically own your device at all. A lot of information about 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 he needs to see which DMs you’ve slipped into, law enforcement can reach out to Twitter. As long as they go through the proper and established legal channels to get it, the police can get their hands on just about anything you have stored outside of your device.
You have rights here. The Fourth Amendment protects you from illegal searches and seizures, and a provision in the Electronic Communications Privacy Act of 1986 (ECPA) dictates what law enforcement must obtain to obtain the information. It could be a subpoena, court order or warrant, depending on what he is looking for. (WhatsApp explains this well in its FAQs.) A section of the ECPA, known as the Stored Communications Act, states that service providers must have these orders before they can provide the requested information to law enforcement.
But, assuming the government has the right documents, your information is very easy to obtain.
On Apple’s US-focused Transparency website, the company says it can receive requests from the government for a person’s device ID, financial IDs, related customer data account information and customer data requested in an emergency. In the case of the DOJ’s investigation into the leaks, Apple handed over metadata and account information, according to the Times.
“These requests for private data from lawmakers are all the more worrying as they threaten the separation of powers. But the problem is far bigger, ”ACLU senior lawyer Patrick Toomey told Recode in an email. “The government seizes sensitive information from a large number of people every year, often without any notice to the people concerned. “
Tech companies have some power when they receive these kinds 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% of the time when a government agency requested credentials on a particular device. Tech companies can also try to fight a gag order. In this case, a gag seemed to stay in place.
This is worrying. At the same time, entering this kind of data is a grim reminder that companies like Apple continue to hold large amounts of user data and may be legally required to hand it over to the government without a user. never know it.