Prosecutors Could Not Have Gotten the Type of Metadata People are Most Worried About With Subpoenas to Apple

Here is a short guide to the complex issue of what kinds of communications-related metadata that prosecutors could have seized from Apple with grand jury subpoenas, including about Schiff, Swalwell and McGahn: /1

These are some types of metadata that can be subpoenaed: when one used apps like Facetime & iMessage, & one’s IP addresses & hardware identifiers like SIM and IMEI #s during those sessions (+ account info like name, address, credit card, & other phone # or email handles). /2

But here is a key type of metadata prosecutors could *not* have obtained with a subpoena to Apple: logs of one’s communications on Facetime or iMessage that would systematically reveal whom one had been confidentially speaking to. /3

That's bc to seize “to/from/when”-style info re electronic coms – like email headers or logs of Facetime calls & iMessage texts – prosecutors need a 2703d court order, not a subpoena. (The DOJ fight for NYT & CNN email data that led to gag orders involved such "d orders.") /4

The law in this area is messy and inconsistent, and to get traditional phone call logs, prosecutors *can* use a mere subpoena. That’s apparently how DOJ got NYT/CNN/WP reporters’ calling logs. But Apple isn’t the sort of company that compiles that category of records. /5

Did prosecutors send a similar subpoena to phone companies, which could have given them call logs of officials like Schiff, Swalwell and McGahn? We don’t know: Apple is more transparent than other companies in notifying customers about data seizures (when it is not gagged). /end

Originally tweeted by Charlie Savage (@charlie_savage) on June 15, 2021.