With Democrats controlling the executive branch and the US Senate and Republicans controlling the House of Representatives, there are deep divisions in the US government over issues that affect the technology industry. Consequently, Congress is spending less time legislating and more time investigating. Many of the investigations are aimed at specific companies operating in the technology space, with a recent trend of those companies being called out by name in the title of the congressional hearings. Morgan Lewis lawyers detail some of the trends in congressional inquiries and investigations in the technology industry and the practical considerations for companies faced with responding to Congressional requests.
Congressional authority is often questioned when a company or executive is served with a congressional request or subpoena. The answer to the question “Are they allowed to ask for this?” is unequivocally “Yes.” Congress’s power to investigate is implied in Article I of the Constitution, and the Supreme Court has affirmed Congress’s authority to investigate, hold hearings, and demand documents and testimony. Congress’s authority is coextensive with its authority to legislate—to create laws and oversee that the laws are administered effectively and efficiently. Congressional investigations and oversight have been exercised throughout the history of the US government.
It is important to seek out counsel when you receive such an inquiry to ensure that you are fully aware of any legal risks, including those collateral to the congressional investigative process—including criminal, civil, and administrative enforcement.
How best to cooperate:
How best to coordinate:
How best to prepare:
More information on congressional investigation trends in the tech industry can be found in the What To Expect During Congressional Testimony: A Guide for Preparation and Procedure part of the Technology Marathon.