The uncertainty around how they will respond comes against the backdrop of what is expected to be a protracted legal battle once the committee begins the process of formally requesting records be turned over as part of their investigation. The likelihood of litigation increased when House Minority Leader Kevin McCarthy and several of his fellow Republican members cried foul over the committee’s request.
An official at one of the companies that received a request from the committee told CNN that McCarthy’s warning last week was interpreted as a “shot across the bow” for phone providers, in particular. Still, many of the companies have indicated they still intend to work with the committee but the responses were overwhelmingly vague as far as what that would entail.
In addition to the preservation of records requests, Thursday was also the deadline for 15 social media companies, many of which were also on the preservation of records request list, to turn over a range of records related to company policies dealing with extremism, misinformation and foreign influence. Thursday also marked the deadline for various government agencies to comply with the committee’s request.
A spokesperson for the select panel said in a statement Thursday night that “with several hours to go before today’s deadline, the Select Committee has received thousands of pages of documents in response to our first set of requests and our investigative team is actively engaged to keep that flow of information going.”
“These records supplement the material we’ve received from other House Committees related to their earlier probes of January 6th. The Select Committee is also aware that the National Archives has undertaken the process required by law for review of presidential records,” the statement continued.
A spokesperson from the National Archives told CNN it had received the request from the committee and “will respond to it in accordance with the Presidential Records Act.”
The preservation requests that were sent to 35 companies were not for these companies to turn over any of these records, but just to preserve them in the event the committee’s investigation leads them to ask for them to be handed over. In their letters to the companies, the committee went to great pains to point out that the request should not be interpreted as the subjects being the targets of the investigation or being accused of doing anything wrong.
“Inclusion of any individual name on the list should not be viewed as indicative of any wrongdoing by that person or others,” the letters reads. “The document identifies individuals who may have relevant information to aid the factfinding of the Select Committee.”
The committee had sent the request to the 35 companies asking them specifically to contact the panel if for some reason they were unable to comply with it.
The complex and extensive requests coupled with the unique nature of the committee’s work seems to have left many of these companies in a difficult position. CNN reached out to all 35 companies to see how they plan to respond. Most did not respond at all and the ones that did offered diplomatic responses that did not give much insight into how they plan to comply.
“We strongly condemn the violence that took place on Jan 6 at the U.S. Capitol,” said Clint Smith, Chief Legal Officer for Discord, in a statement. “We have been contacted by the House Select Committee and intend to cooperate fully as appropriate.”
While Smith makes it clear that Discord, an instant messaging and digital distribution platform, wants to cooperate with the investigation, the company could not describe at what level they plan to comply.
Discord was not alone. Much bigger tech giants like Facebook and Google chose not to go into detail about their work with the select committee.
“We have received the Select Committee’s letter and are committed to working with Congress on this. The events of January 6 were unprecedented and tragic, and Google and YouTube strongly condemn them,” said a spokesperson for the company. “We’re committed to protecting our platforms from abuse, including by rigorously enforcing our policies for content related to the events of January 6.”
Meanwhile, Facebook chose only to acknowledge they had received the committee’s request, but not how they planned to act. “We have received the request and look forward to continuing to work with the committee,” said a company spokesperson. The spokesperson referred CNN to the committee when asked what specifically the company turned over.
The same can be said for Zoho, an online office suite provider, which told CNN they had no comment beyond confirming they received the committee’s request.
While the companies that responded seemed reluctant to provide many specifics around their plans, few went out of their way to challenge the committee’s authority. Rocket.chat, an integrated messaging platform, told CNN they planned to do all they could to help the committee’s work.
“Rocket.Chat has always complied with such requests and has kept a close relationship with the authorities to communicate/share anything possible to help in these types of cases,” said Sana Javaid, a spokesperson for Rocket.Chat.
But there were some companies that took a more defiant tone, in part because their businesses are located overseas and because the services they provide make it impossible for them to supply the committee with all they are requesting. Proton, a Switzerland-based encrypted e-mail provider told CNN they won’t comply unless forced to by the Swiss government.
“Our use of zero-access encryption means that we do not have access to the message content being requested,” said a company spokesperson. “Proton only complies with legally binding orders that are initiated or approved by Swiss authorities and therefore meet Swiss legal standards.”
The social network Gab, which is known as a platform widely used by the alt-right and white supremacists, publicly posted a point by point response to the committee’s request for information. They claimed they did not have much of the information the committee had requested. Furthermore Gab told the committee they respond only requests from law enforcement, when compelled by subpoena. They argued that the “Stored Communications Act” prevented them from providing what the committee was asking for.
The major phone providers, like AT&T, Verizon and T-Mobile, which some consider to be among the most consequential for lawmakers who were named as part of the request, overwhelmingly did not respond to CNN’s questions about their plans to comply with the committee.
Part of why the companies seem unwilling to publicly reveal how they plan to respond is likely because the issue is almost certainly headed to court.
“I think it’s very unlikely that any of the companies are just going to produce the documents without somebody going to court,” said Justin Antonipillai, an expert on data privacy and the former Acting Undersecretary for Economic Affairs at the Commerce Department during the Obama Administration.
Republicans have already gone out of their way to suggest the requests are inappropriate. House Minority Leader Kevin McCarthy, whose name CNN has reported is on the list of people the committee is interested in, suggested that companies that comply could be in violation of the law.
Antonipillai said that he expects most companies will preserve the records to be safe, but won’t turn those records over until the matter is settled in a court of law.
“You can already see that the congressional Republicans are laying the foundation to say that the congressional committee has no authority to issue the subpoenas, and then they will argue that it’s overboard and that the amount of data that’s being collected is unnecessary,” Antonipillai said. However, he said the courts have historically given the committees like these wide latitude to execute their subpoena power.
“I think it’s going to have broad leeway and if history holds true, courts are going to give this congressional committee a pretty wide berth to go in and pull in the records that they’re asking for,” he added.
The committee has accused McCarthy of attempting to intimidate the companies so they will slow-walk their compliance because of fears of legal repercussions.
“The Select Committee is investigating the violent attack on the Capitol and attempt to overturn the results of last year’s election. We’ve asked companies not to destroy records that may help answer questions for the American people,” committee spokesman Tim Mulvey said in a statement to CNN. “The committee’s efforts won’t be deterred by those who want to whitewash or cover up the events of January 6th, or obstruct our investigation.”
Despite McCarthy’s interference, Antonipillai said the chances of the minority leader being charged with obstruction of any kind is unlikely.
“I think it’s really unlikely that it would rise to the level of an obstruction of justice or obstruction of an investigation, just to send a letter like this,” he said referring to McCarthy’s statement about the committee’s request to preserve records. “I think if it escalated or they did something outside of the normal channel maybe, but I don’t see this rising to the level of that.”
This story has been updated with a statement from the House select committee.
CORRECTION: An earlier version of this story misspelled Sana Javaid’s name.