Wyden, Lummis, Espaillat, Massie, Kelly, and Burlison Introduce Bipartisan Bill to Rein in Government Abuse of Subpoenas, Protect Americans’ Rights

Wyden, Lummis, Espaillat, Massie, Kelly, and Burlison Introduce Bipartisan Bill to Rein in Government Abuse of Subpoenas, Protect Americans' Rights

Washington, D.C. - U.S. Senator Ron Wyden, D-Ore., Sen. Cynthia Lummis, R-Wyo., and Reps. Adriano Espaillat, D-N.Y., Thomas Massie, R-Ken., Robin Kelly, D-Ill., and Eric Burlison, R-Mo. released a bill today to reform the government's use of subpoenas, which are used to collect huge numbers of call records, and other personal information, without a warrant or other court oversight.

The Subpoena Abuse Prevention Act would require the government to go before a judge in order to get phone call records. It would also prevent the use of subpoenas to the phone and tech companies to spy on Americans' for their speech or other Constitutionally protected activities.

"The laws protecting Americans' rights aren't keeping up with advances in government surveillance. This bipartisan, bicameral bill rebalances the scales to protect our Constitutional rights against unnecessary intrusion by the federal authorities," Wyden said. "The Founding Fathers would roll over in their graves if they knew the government was able to demand a list of everyone a person called and texted, everyone who watches a YouTube video or visits a website, or uncover anonymous social media accounts, all without a warrant or court order of any kind."

"Americans' constitutional rights should not disappear just because they made a phone call or sent a text," said Lummis. "Yet today, federal agencies can secretly demand your phone records and personal data from tech companies as often as they want without ever stepping foot inside a courtroom. This kind of unchecked power is something you'd expect under the Chinese Communist Party, not in the U.S. I am proud to partner with Senator Wyden to protect Americans and hold the federal government to the constitutional standard Americans deserve."

"We have witnessed an unprecedented abuse of power utilizing the mechanisms of our governmental processes to undermine the rights of the American public," said Rep. Espaillat. "I'm proud to join my colleagues to introduce bipartisan legislation that would work to curb these abuses and rein in the overreach of subpoenas to gain access to an individual's personal data without warrant, just cause, or a directive from the courts."

"Administrative subpoenas should not be weaponized by the whims of whoever sits in the Oval Office to spy on Americans," said Rep. Kelly. "I led a letter to major technology and telecom companies inquiring how they respond to such subpoenas, and they unfortunately have to comply, often without giving people notice or a chance to respond. If the government needs to gain access to private communication of a US citizen, then they should take their case to a judge, not pressure private companies into compliance. This bipartisan bill installs guardrails to protect people's basic rights, like free speech, in this day and age of technology."

"Government investigators should not be able to compel phone companies to turn over the phone-call records of Americans or tech companies to disclose information related to Americans' exercise of constitutionally protected rights without going to a judge," Burlison said. "That is the kind of power the Constitution was designed to restrain. If the government wants access to your personal information, it should have to make its case in a courtroom, not by its own decree."

The Department of Homeland Security has recently abused subpoenas to demand information about hundreds of people for appearing at political protests and sending critical emails to government officials, both of which are protected by the First Amendment.

But subpoena abuses have been well-documented for years, by both Democratic and Republican administrations. During the Biden administration, Special Counsel Jack Smith obtained the phone records of 20 current or former Republican members of Congress, as well as Kash Patel and Susie Wiles, during the federal probe of Donald Trump. And during the first Trump administration, the Department of Justice obtained phone records of two Democratic members of Congress and 43 congressional staffers from both parties.

The Subpoena Abuse Prevention Act would reform subpoenas to the phone and tech companies, and:

• Make the government go to a judge before getting phone call records, a standard already required for email records.

• Require certification under penalty of perjury that subpoenas are for legitimate purposes, and not to monitor speech and other constitutionally protected activities

• Prevent the government from using subpoenas for bulk collection (like getting the name of everyone who downloads an app or watches a YouTube video).

• Require the government to tell the subpoena recipient that they can talk to lawyers and (unless prohibited by a court) tell their customers.

• Require every Federal agency to annually publish the number of accounts it surveilled with administrative subpoenas.

• Allow monetary damages against the government for violations.

The bill is endorsed by American Civil Liberties Union (ACLU), Center for Democracy & Technology, Demand Progress, Freedom of the Press Foundation, and Project for Privacy and Surveillance Accountability (PPSA).

Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor for the Project for Privacy and Surveillance Accountability: "Sen. Wyden, Sen. Lummis, Rep. Espaillat, Rep. Massie, Rep. Kelly, and Rep. Burlison are to be commended for pushing back on a growing practice that endangers our constitutional rights. The very term 'administrative subpoena' is an oxymoron that is offensive to the Fourth Amendment. It avoids judicial oversight and gives the executive branch the ability to make legitimate sounding demands to inspect our houses, papers, effects, and data, when it is in fact often just illicit government overreach. PPSA is proud to support this corrective legislation."

Kia Hamadanchy, Senior Policy Counsel at American Civil Liberties Union: "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. The Subpoena Abuse Prevention Act would impose serious impediments to retaliation against people like Jon by requiring agents to certify under penalty of perjury that a subpoena is not being used to retaliate against speech the government doesn't like, before records are ever turned over -- meaning protection is built into the process, not dependent on whether someone is brave and resourced enough to fight back in court."

Caitlin Vogus, Senior Adviser to Freedom of the Press Foundation: "The Subpoena Abuse Prevention Act would put in place much-needed guardrails to protect the privacy of Americans' phone records and ban abusive subpoenas that target or retaliate against the exercise of free speech rights. For journalists in particular, phone records can expose sensitive information about communications with confidential sources - information the government has sought in the past. This legislation would strengthen protections for those communications and help ensure that journalists cannot be targeted with subpoenas for doing their jobs. We thank Sens. Wyden and Lummis, and Reps. Espaillat, Massie, Robin Kelly, and Burlison for their leadership on this issue and urge every member of Congress to support this bipartisan bill."

Read the full bill text here.

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