I was wrong. Congress can just demand your phone records.

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Photo Gage Skidmore/Wikimedia Commons, White House Public Domain

Earlier this week I was outraged because House of Representatives, Rep. Adam Schiff, D-Calif., the chairman of the House Intelligence Committee, had accessed the phone records of President Trump’s personal attorney, Rudy Giuliani, Lev Parnas, who was reportedly assisting Giuliani in his Ukraine investigations into possible interference in the 2016 election. The records included calls allegedly with Devin Nunes, R-Calif., the ranking minority member on the Intelligence Committee, and John Solomon, a prominent journalist.

In reality, the government can obtain electronic communication records without taking any extraordinary measures. There are very few limitations on this congressional power.

Apparently, the government can obtain these records without taking any extraordinary measures — and no judge even need be involved for Congress to get them. It can simply send a subpoena to the carrier.

According to this article in the Federalist by a Constitutional lawyer, under current law, these records are not protected by any warrant requirement. First, based on Supreme Court precedent, obtaining these records is not a “search” under the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures by the government.

In Smith v. Maryland, 442 U.S. 735 (1979), the court said Americans did not have a reasonable expectation of privacy in the information showing who they spoke to on the telephone because the phone company possessed that information. With no reasonable expectation of privacy in that information, the court concluded police didn’t need a warrant to obtain it. Read more