Reporters looking into the Schiff and McGhan investigations should be making sure that when they report about “subpoenas,” they actually mean subpoenas and not 18 U.S.C. § 2703(d) orders (which are served like subpoenas). The latter are a lot more invasive than the former.
To make a long ECPA short, subpoenas are largely unregulated but can’t (in the Internet context) get the govt much. An account name, IP addresses it was assigned, not much else. /1
But 2703(d) orders are more like warrants: a judge needs to sign off on it and its showing of cause. And it can get all non-content transactional records of the account, like who you contacted and when. /2
If you’re an investigator and you want to know who a suspect communicated with, a 2703(d) order tells you that for that account; a subpoena doesn’t. Pretty big difference. /3
If DOJ only got a subpoena for X, that plausibly means someone else was the suspect (the subject of a 2703d order), revealing contacts with X’s account, and then a subpoena just to see who X is. /4
But if DOJ got a 2703d order for X’s account, it plausibly means X was a suspect and DOJ went to a judge and made the case for why there may be evidence in X’s contacts. /5
Media accounts tend to assume that DOJ issuing a subpoena for X’s records means X was a suspect. But if it’s just a subpoena, not a 2703(d) order, that may not be the case. /end
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