Take the following with a grain of salt because I have not studied this in detail.
I don't think it's as draconian as it's being presented (that's not to say it's a good idea, of course).
It appears to me it is intended to prevent an "end run" on legislative immunity by getting a court order requiring a service provider to disclose data that would otherwise be subject to an assertion of legislative immunity. The definitions for this section start at page 236 of the following .pdf
https://legiscan.com/US/text/HB10445/2023
Here's the text of the CR in question:
>>>(d) MOTIONS TO QUASH OR MODIFY .—Upon a motion made promptly by a House office or provider for a
House office, a court of competent jurisdiction shall quash or modify any legal process
directed to the provider for
a House office if compliance with the legal process would require the disclosure of House data of the House office.<<< (emphasis added)
It does not say anything about a legal process
directed to the House office itself.
Huge difference.
From the definitions:
>>>the term ‘‘provider for a House office’’ means a provider of electronic communication service or remote computing service directly commissioned or used by a House office to provide such services<<<
Also, from the section following the definitions:
>>>A House office shall be deemed to retain possession of any House data of the House office,
without regard to the use by the House office of any individual or entity described in paragraph
(2) for the purposes of any function or service described in paragraph (2)<<<
In other words, if someone wants to get the data by way of a legal action, they have to get it from the House office, not a provider of services to the House office.
As I read it, it's similar to a law saying that an internet service provider can't disclose your private emails in a lawsuit unless the service provider has your permission.
The bill DOES NOT say that the House office has unlimited privilege permitting refusal to disclose data in all circumstances. It also does NOT provide substantive immunity.
Granted, there is a split in the Circuit Courts concerning privilege:
>>>The D.C. Circuit has established the documentary nondisclosure privilege.209 In a series of
opinions, the circuit court determined that the Clause bars any compelled disclosure—not just the
evidentiary use—of written materials that fall “within the sphere of legitimate legislative
activity.”210 According to the D.C. Circuit, this privilege is broad and “absolute,” and applies with
equal “vigor” as the other aspects of the Clause.
The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) and the Third Circuit have
rejected this documentary nondisclosure privilege, considering it an undue expansion of the
Clause. Instead, these courts have held, at least in criminal cases, that the Clause prohibits only
the evidentiary use of privileged documents, not their mere disclosure to the government for
review as part of an investigation. The disagreement has not been addressed by the Supreme
Court.<<<
Presumably, someone wanting access to House data would file in the 9th or 3rd circuit if possible, but they may not have jurisdiction in some cases. And, of course, circuit splits often lead to Supreme Court decisions to resolve the split, so the law is far from settled.
Again, take my initial impressions above with a large grain of salt. This is well outside of my area of practice, and I'd be interested in an evaluation by someone with more experience in this area of law. My take on this may be completely off wack.
