70 Am. U. L. Rev. 1799 (2021).

* Adjunct Professor of Law, Georgetown University Law Center. Special Counsel, Jenner & Block LLP. Thanks to Josh Chafetz, Jen Daskal, Gus Hurwitz, Katie Keith, Alan Rozenshtein, Jodi Short, Christopher Slobogin, and the University of Nebraska Law and Tech Virtual Workshop for helpful comments on drafts and to Greg Klass, Julie O’Sullivan, and Robin West for advice. Thanks also to the 2020 Minnesota Cybersecurity Law and Policy Scholars Conference for providing the impetus for this project. The views expressed herein are my own, and do not necessarily reflect the views of Jenner & Block LLP.

Abstract

In recent years, Congress has increasingly used electronic surveillance in high-profile investigations. Reactions to what this Article calls “congressional surveillance” indicate a deep unease among both legal scholars and the broader public about the nature of Congress’s surveillance authority and its normative implications. Despite our ongoing preoccupation with government surveillance, congressional surveillance remains largely unexplored. There is virtually no discussion of how congressional surveillance is treated under key statutory and Fourth Amendment constraints; no consideration of the process or political limits of congressional surveillance; and little scrutiny of congressional surveillance as a tool within the separation of powers.

This Article fills that gap by presenting the first scholarly treatment of congressional surveillance. It argues that to address congressional surveillance, we must first understand its hybrid features of both government surveillance and congressional political power.

Specifically, the Article makes two contributions. First, the Article argues that congressional surveillance operates under fundamentally different constraints than traditional government surveillance. Congressional processes and politics (“process limits”) constrain congressional surveillance more than established statutory and Fourth Amendment mechanisms (“external limits”) or the inherent constraints of congressional authority (“internal limits”).

Second, this Article argues that congressional surveillance is justified as an essential practice within the separation of powers. It offers legitimate benefits to Congress in inter-branch information disputes with the executive and in carrying out basic digital governance. The Article also argues that the Supreme Court’s decision in Trump v. Mazars USA, LLP mistakes a privacy concern that congressional surveillance poses as a threat to the separation of powers. At the same time, this Article rejects the traditional law enforcement approach to protecting individual privacy through judicial gatekeeping. Instead, the Article argues that the treatment of congressional surveillance must account for individual privacy interests while preserving Congress’s ability to assert itself as a co-equal branch—not the Mazars approach, and not a law enforcement approach, but something different.