HR-8966-119
Referred to the House Committee on the Judiciary.
Sponsored by Adriano Espaillat (D-NY)
What it does
This bill would amend the Stored Communications Act (18 U.S.C. § 2703) to restrict how the government uses administrative subpoenas to obtain customer communications and records from service providers. It would eliminate the current exception that allows administrative subpoenas to obtain phone and app-based call and text records, require that any subpoena identify a specific subscriber by name, address, or account identifier (banning bulk collection), prohibit subpoenas whose purpose is to investigate or retaliate against constitutionally protected activities such as speech, religion, or assembly, require government officials to certify under penalty of perjury that each subpoena has a legitimate purpose, and require federal agencies to publish annual public reports on their administrative subpoena usage.
Who benefits
Individuals whose phone and app-based call and text records are currently accessible to the government without a warrant or court order. Journalists, activists, religious organizations, and political dissidents whose communications records could be sought in connection with protected First Amendment activities. Service providers (telecom companies, app developers) who would gain clearer legal grounds to push back on overbroad subpoenas. Civil liberties organizations and defense attorneys who challenge government surveillance. Targets of politically motivated investigations who would gain a new statutory protection and a perjury deterrent against bad-faith subpoenas.
Who is hurt
Federal law enforcement agencies — including the FBI, DEA, and others — that currently rely on administrative subpoenas (which require no judicial approval) to quickly obtain subscriber records in investigations. Prosecutors who may face slower investigations if subpoenas require more specificity or are challenged under the new certification requirement. Victims of crimes whose cases depend on rapid access to communications records. National security investigators who use administrative subpoenas in counterterrorism and counterintelligence contexts. Courts and agencies that would bear new administrative burdens from certification requirements and annual reporting obligations.
Supporters argue
Supporters argue that administrative subpoenas — issued by executive agencies without any judicial oversight — allow the government to obtain sensitive communications records with far less scrutiny than a warrant requires, creating a significant loophole in Fourth Amendment protections. They point to Carpenter v. United States (2018), in which the Supreme Court held that comprehensive digital records reveal intimate details of a person's life and warrant heightened protection, as evidence that the legal framework has not kept pace with technology. They further contend that the bulk collection prohibition and First Amendment certification requirement are necessary safeguards against documented abuses, such as the use of subpoenas to identify confidential journalistic sources or monitor political and religious groups.
Opponents argue
Opponents argue that administrative subpoenas for basic subscriber records — such as a name or account identifier — are a well-established investigative tool that do not implicate the same privacy concerns as the comprehensive location tracking at issue in Carpenter, and that eliminating them would slow time-sensitive investigations into drug trafficking, child exploitation, and terrorism. They contend that the bill's prohibition on subpoenas with a "purpose" of investigating constitutionally protected activities is vague and could be weaponized to obstruct legitimate investigations simply because a suspect engaged in some protected conduct alongside criminal activity. They also argue that the perjury certification requirement adds bureaucratic process without meaningfully deterring bad actors, while creating new grounds to suppress evidence in criminal prosecutions.
Constitutional context
The Fourth Amendment's warrant requirement and the Supreme Court's decision in Carpenter v. United States (2018) are directly relevant — Carpenter held that the government must obtain a warrant for comprehensive digital location records, signaling that courts will scrutinize whether administrative subpoenas for digital communications records provide sufficient constitutional protection. The First Amendment provisions of the bill also implicate the doctrine against government surveillance of protected expressive and religious activity.
Checks and balances
The executive branch (federal agencies) would lose the ability to issue administrative subpoenas for certain records without judicial oversight or specific identification of a target; the judicial branch gains a role through the certification and nondisclosure order process, and Congress gains oversight visibility through the mandatory annual public reporting requirement.
Historical precedent
The USA FREEDOM Act of 2015 similarly restricted bulk collection of telephone metadata by the NSA under Section 215 of the PATRIOT Act, requiring the government to identify a specific selection term rather than collect records in bulk.