Lawmaker Urges Tech Companies to Save Posts, Metadata From Jan. 6 Insurrection

Supporters of President Donald Trump climb the west wall of the the U.S. Capitol in Washington Jan. 6.

Supporters of President Donald Trump climb the west wall of the the U.S. Capitol in Washington Jan. 6. Jose Luis Magana/AP

Sen. Mark Warner sent letters to 11 wireless communication and social media companies asking them to get ready to hand over content for legal proceedings.

The incoming chairman of the Senate Intelligence Committee is urging wireless communication and social media companies to preserve digital evidence including posts, messages and metadata related to the January 6 insurrection at the Capitol to aid law enforcement efforts to investigate the incident. 

Sen. Mark Warner, D-Va., a former tech and telecommunications executive, wrote letters to 11 companies—AT&T, T-Mobile, Verizon, Apple, Facebook, Gab, Google, Parler, Signal, Telegram, and Twitter—Friday urging them to save content in connection with or in anticipation of formal legal proceedings, according to a Saturday press release. At least one of the 11 companies has already responded. 

In the letters, Warner writes an “angry mob” incited by the president, Republican officials and media personalities raided the Capitol. 

“This mob was organized, coordinated, and in many cases broadcast via your communications services and products,” the letters read. “Efforts to bring the perpetrators to justice will inevitably involve digital evidence associated with those products and services.” 

Gab, a platform popular among the far-right that touts itself as a defender of free speech, posted its email response to Warner online Saturday. While Gab.com Chief Executive Officer Andrew Torba declined to comment on Warner's specific request to preserve documents related to the insurrection, he wrote that Gab is “routinely” in contact with federal law enforcement and has in the past reached out to the Federal Bureau of Investigations when it has discovered threatening content. 

“We will action promptly any document preservation request we receive from federal law enforcement as and when it arrives.” Torba wrote. “Per our policy we will not comment on specifics of what communications we may or may not have had in this regard. If you, your staff, and/or any other person are aware of specific content on our platform which is pertinent to this request, please contact federal law enforcement who will contact us.”

Torba used the rest of the letter to criticize Silicon Valley, accuse members of the media, without citing evidence, of seeking to “abolish American-style free speech,” and urge Warner to not take up reform measures like a repeal of Section 230 of the Communications Decency Act.

Gregory Nojeim, senior counsel and director of the Freedom, Security and Technology Project at the Center for Democracy and Technology, told Nextgov the U.S. has no law requiring companies to retain the data generated by the use of their services. While some countries require to retain several months of metadata, the U.S. doesn’t have such a law largely for privacy reasons, Nojeim said.

But companies can be required to preserve data that has been identified to them by law enforcement as information that may be subject to legal process. These data preservation requests aren’t generally known to the public, Nojeim said. 

“I would be concerned about a broad demand from law enforcement with legal impact to retain data of peaceful activities at the Capitol building, and that's what a broad data preservation request could include,” Nojeim said. “I'm not so concerned with a request from a lawmaker that has no legal effect to preserve evidence of criminal activity at the Capitol.”

Warner’s letters came after the FBI called for “tips and digital media depicting rioting or violence in and around the U.S. Capitol on January 6.” The acting U.S. attorney for D.C., Michael Sherwin, told NPR in an interview Saturday his team is reengineering the events of January 6 using cell site data, social media posts, witness statements and video camera footage. Law enforcement officials have already arrested several individuals featured in viral images from the riots, including a man whose photo was taken as he carried House Speaker Nancy Pelosi’s lectern through the Capitol. 

One of the companies that received a letter from Warner—Parler, where many of President Donald Trump’s supporters gather digitally—has gone dark this week as well. Amazon suspended Parler from its web hosting platform, Amazon Web Services, on Sunday just before midnight, reportedly because of “violent content” on the site. Apple and Google had already banned Parler from their respective app stores.