House Jan. 6 committee says Secret Service may have violated Federal Records Act

The House select committee investigating the Jan. 6 attack on the U.S. Capitol is asking for more records from the Secret Service, saying the security agency may have violated the Federal Records Act by failing to properly preserve text messages.

Staff for the House panel said they only received one text resulting from a July 15 subpoena to the agency requesting Secret Service text messages from Jan. 5 and Jan. 6, 2021. The Secret Service said the messages were erased due to an agency-wide migration, despite preservation requests from investigators and Congress. 

Democratic Rep. Stephanie Murphy, a member of the committee, said the agency allowed individual Secret Service agents to decide which records to keep and delete during a 2021 agency phone migration process. 

"We have concerns about a system migration that we have been told resulted in the erasure of Secret Service cell phone data," the committee tweeted Wednesday. "The U.S. Secret Service system migration process went forward on Jan. 27, 2021, just three weeks after the attack on the Capitol in which the vice president of the United States while under the protection of the Secret Service, was steps from a violent mob hunting for him."

"The procedure for preserving content prior to this purge appears to have been contrary to federal records retention requirements and may represent a possible violation of the Federal Records Act," the tweets continued. "The Select Committee is seeking additional Secret Service records as well."

The U.S. Secret Service has shared a text message conversation between former U.S. Capitol Police Chief Steven Sund and former Secret Service Uniformed Division Chief Thomas Sullivan with oversight committees, including the Jan. 6 committee according to a senior official with knowledge. In the text message exchange, dated Jan. 6, 2021, Sund requests resources and assistance from U.S. Secret Service.   

The Department of Homeland Security Inspector General and Jan. 6 committee have requested text messages sent and received by 24 U.S. Secret Service officials on Jan. 5th and 6th, two Secret Service officials confirmed to CBS News. 

In an effort to comply with the Homeland Security watchdog's office, officials from within U.S. Secret Service are using metadata to determine if any text messages sent by the two dozen U.S. Secret Service officials listed should have been deemed government records, according to a U.S. Secret Service official. Agency policy allows for "limited personal use" of U.S. government phones.  

In addition to handing over the relevant conversation between Sund and Sullivan, the agency has determined that 10 of those U.S. Secret Service officials listed did not send text messages on Jan. 5 and 6. In addition, three other officials sent messages deemed to be "personal" in nature and not rising to the threshold of a government record. Officials are working to determine if the 10 remaining individuals listed failed to preserve text messages that qualify as government records.  

"That is the crux of the investigation," the official told CBS News. "If there is material from Secret Service official to Secret Service official that is deemed a government record, then that should have been uploaded by the employee. That is what the Inspector General and the Secret Service are looking at." 

The Secret Service has turned over many records and documents, but the House panel is particularly interested in communications the day before and day of attack. 

Prior to the agency-wide migration, Secret Service employees were meant to manually back up text communications – including text messages – that rose to the threshold of "government record," three U.S. Secret Service officials tell CBS News. That instruction also pertained to messages sent on Jan. 6. But if any forgot to upload messages as directed, their texts were permanently deleted when their phones were reset to factory mode during the migration.   

In both the run-up and aftermath of Jan. 6 attack on the U.S. Capitol, U.S. Secret Service officials were instructed at least three times via official communications to record and preserve documents ahead of the agency's communications' migration.

One of the ways agency personnel were instructed to back up text messages was by caputring and uploading screen shots to the dedicated website provided, current and former U.S. Secret Service officials tell CBS News.   

On Dec. 9, 2020, all agency employees were sent an official communication with the subject line "Record and document preservation requirements," instructing them to preserve texts, emails and communications deemed to be government records ahead of the communications' migration.  

On Jan. 5, 2021, the Office of the Chief Information Officer sent a follow-up email instructing Secet Service personnel on how to preserve records by uploading them to a dedicated link for storage and archival prior to the migration.  

And on Feb.  4, 2021, the Office of Legal Affairs sent U.S. Secret Service employees a message called "Collection of records relating to events in and around White House Complex and U.S. Capitol on Jan. 6, 2021" formally instructing them to preserve their communications from that day due to its "enduring historical value."  

In the Feb. 4 message, Secret Service officials were instructed to preserve radio logs, alerts, transmissions, summaries of events, response timelines, photographs, press releases and media inquiries, as well as "written communications, including emails or text messages between USSS personnel and U.S. Capitol Police on Jan. 6." This message also referred employees back to the communication sent on Dec. 9, 2020.

The U.S. Secret Service has not yet found a way to recover any records that were lost during the phone migration, two officials said. But the agency is still attempting to retrieve the content of text messages sent on both Jan. 5 and 6 from phone service providers and manufacturers. The Secret Service has not disclosed what type of phones the agents used. 

A Verizon spokesperson told CBS News that while metadata and cell site location data may be retrieved for up to one year, the content of customers' text messages — even on government phones — are erased after one week, in keeping with company policy.  

An Apple spokesperson did not respond to a request from CBS News, but company guidelines state that "iMessage communications are end-to-end encrypted and Apple has no way to decrypt iMessage data when it is in transit between devices. Apple cannot intercept iMessage communications and Apple does not have iMessage communication logs."  

Andres Triay contributed reporting.