In late November, the House Select Committee investigating the January 6th attack on the U.S. Capitol subpoenaed Verizon Communications for records associated with specific individuals, including Mark Meadows. On Dec. 2, the company notified Meadows that “unless Verizon receives a court document challenging the subpoena by December 15, 2021, Verizon is compelled to comply with the subpoena.”
On Dec. 8, Meadows filed a complaint against House Speaker Nancy Pelosi, the Select Committee, and its members to try to block the subpoena. However, Meadows’ attorney did not name Verizon as a defendant.
At first, Meadows’ complaint stood out compared to other individuals who apparently received a similar notification from Verizon and who filed a lawsuit in response. In their complaints, they named Verizon as a defendant (John Eastman complaint; Justin Caporale et al complaint). However, a new complaint filed by Amy Harris late on Wednesday, like Meadows, does not name Verizon as a defendant.
Eastman’s complaint notes that Verizon’s deadline of Wednesday, Dec. 15 coincided with the deadline the company has as “a return date for production of the documents and electronic data demanded in the subpoena.”
I asked a leading expert in this field of law, professor Randal Milch, about how Verizon may respond, especially since Meadows’ attorney failed to name Verizon as a defendant.
Milch is a professor of law at New York University School of Law and Co-Chair of the NYU Center for Cybersecurity. He served as general counsel and head of public policy at Verizon Communications. His comment is based solely on publicly available information on how Verizon is handling these subpoenas and related matters. He told me in an email:
I don’t think that Meadows’ counsel has made a material error by not including Verizon as a defendant in the suit to quash the January 6 subpoena, assuming that the complaint actually has been sent to the carrier as requested in its “Dear Customer” letter. I’d be surprised if Verizon would ignore the lawsuit even if it isn’t named. This is for two reasons.
First, the Verizon letter by its terms does not require a “court document” directed at it in order to suspend the production of the requested non-content records. A carrier’s goal is to have contested third-party requests for records resolved by a court; it has little interest in attracting lawsuits in order to do so. And from a carrier perspective, if a court is going to pass on the validity or scope of a third-party production request, it makes sense to await that determination before production to a party. This makes all the more sense when the legal issues are potentially difficult, as they are here. While carriers are well-versed in the disclosure limitations imposed by the Stored Communications Act (which is likely not a bar to production of the requested non-content records), Meadows has argued that the Telecommunications Act’s protection of Customer Proprietary Network Information does bar the production of these records to Congress. As Elizabeth Goitein has recently discussed in these pages, that issue is unresolved.