[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4037 Introduced in Senate (IS)]

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118th CONGRESS
  2d Session
                                S. 4037

    To amend title 18, United States Code, to modify delayed notice 
                 requirements, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 21, 2024

  Mr. Coons (for himself and Mr. Lee) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend title 18, United States Code, to modify delayed notice 
                 requirements, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``NDO Fairness Act''.

SEC. 2. PRECLUSION OF NOTICE.

    Section 2705(b) of title 18, United States Code, is amended to read 
as follows:
    ``(b) Preclusion of Notice.--
            ``(1) Application.--
                    ``(A) In general.--A governmental entity that is 
                seeking a warrant, order, or subpoena under section 
                2703, when it is not required to notify the customer or 
                subscriber, or to the extent that it may delay such 
                notice pursuant to subsection (a), may apply to a court 
                for an order, subject to paragraph (6), directing a 
                provider of electronic communications service or remote 
                computing service to which a warrant, order, or 
                subpoena under section 2703 is directed not to notify 
                any other person of the existence of the warrant, 
                order, or subpoena.
                    ``(B) Length.--
                            ``(i) In general.--Subject to clause (ii), 
                        an order granted under subparagraph (A) shall 
                        be in effect for a period of not more than 90 
                        days.
                            ``(ii) Exception.--An order granted under 
                        subparagraph (A) shall be in effect for a 
                        period of not more than 1 year if the nature of 
                        the offense for which the governmental entity 
                        is seeking a warrant, order, or subpoena 
                        pertains to child sexual abuse material under 
                        section 2256(8), sexual exploitation of 
                        children under section 2251, or any Federal, 
                        State, Tribal, or military offense that is the 
                        substantial equivalent.
                    ``(C) Other requirements.--
                            ``(i) In general.--An application for an 
                        order under subparagraph (A) shall state, to 
                        the best of the applicant's knowledge, whether 
                        the named customer or subscriber whose 
                        information is sought by the warrant, order, or 
                        subpoena under section 2703--
                                    ``(I) is aware of the warrant, 
                                order, subpoena, or underlying 
                                investigation; and
                                    ``(II) is suspected of involvement 
                                in the commission of the crime under 
                                investigation.
                            ``(ii) Orders.--An order granted under 
                        subparagraph (A) may not direct, or otherwise 
                        require, a provider of electronic 
                        communications service or remote computing 
                        service to provide notification of the 
                        expiration of the order to the court or to the 
                        government entity that sought the order.
            ``(2) Determination.--
                    ``(A) In general.--The court may not grant a 
                request for an order made under paragraph (1), or a 
                request for an extension of such order made under 
                paragraph (3), unless--
                            ``(i) subject to subparagraph (B)(ii), the 
                        court issues a written determination, based on 
                        specific and articulable facts and including 
                        written findings of fact and conclusions of 
                        law, that it is likely that not granting the 
                        request will result in--
                                    ``(I) endangering the life or 
                                physical safety of an individual;
                                    ``(II) flight from prosecution;
                                    ``(III) destruction of or tampering 
                                with evidence;
                                    ``(IV) intimidation of potential 
                                witnesses; or
                                    ``(V) otherwise seriously 
                                jeopardizing an investigation or unduly 
                                delaying a trial;
                            ``(ii) the order is narrowly tailored and 
                        there is no less restrictive alternative, 
                        including notification to an individual or 
                        organization within or providing legal 
                        representation to the named customer or 
                        subscriber, that is not likely to result in an 
                        adverse result as described in subclauses (I) 
                        through (V) of clause (i); and
                            ``(iii) the court has reviewed the 
                        individual warrant, order, or subpoena issued 
                        under section 2703 to which the order issued 
                        under paragraph (1) applies.
                    ``(B) Nature of the offense.--
                            ``(i) In general.--Subject to clause (ii), 
                        the court may consider the nature of the 
                        offense in issuing a determination under 
                        subparagraph (A).
                            ``(ii) Presumption.--If the court 
                        determines there is a reasonable belief that 
                        the nature of the offense pertains to child 
                        sexual abuse material under section 2256(8), 
                        sexual exploitation of children under section 
                        2251, or any Federal, State, Tribal, or 
                        military offense that is the substantial 
                        equivalent, the court may presume that 1 or 
                        more of the factors described in subclauses (I) 
                        through (V) of subparagraph (A)(i) are met and 
                        may issue an order consistent with this 
                        subsection without a written decision under 
                        subparagraph (A)(i).
            ``(3) Extension.--
                    ``(A) Request.--A governmental entity may request 1 
                or more extensions of an order granted under paragraph 
                (1) of not more than 90 days for each such extension.
                    ``(B) Written determination required.--The court 
                may grant a request under subparagraph (A) if the court 
                makes a written determination in accordance with 
                paragraph (2)(A).
            ``(4) Notification of changed circumstances.--If the need 
        for the order issued under paragraph (1) or an extension issued 
        under paragraph (3) changes materially, the governmental entity 
        that requested the order shall notify the court within a 
        reasonable period of time (not to exceed 14 days) of the 
        changed circumstances, and the court shall reassess the order 
        and modify or vacate the order as appropriate.
            ``(5) Opportunity to be heard.--
                    ``(A) In general.--Upon an application, petition, 
                or motion by a provider of electronic communications 
                service or remote computing service or person acting on 
                behalf of the provider to which an order under 
                paragraph (1) or an extension under paragraph (3) has 
                been issued, the court may modify or vacate the order 
                if--
                            ``(i) the order does not meet requirements 
                        provided in paragraph (2) or (3); or
                            ``(ii) compliance with the order is 
                        unreasonable or otherwise unlawful.
                    ``(B) Stay of disclosure of named customer or 
                subscriber communications or records.--The obligation 
                of a provider of electronic communications service or 
                remote computing service to disclose the information 
                requested in the warrant, order, or subpoena to which 
                the order in paragraph (1) applies is stayed upon the 
                filing of the application, petition, or motion under 
                this paragraph pending resolution of the application, 
                petition, or motion, unless the court with jurisdiction 
                over the challenge determines, based on a showing by 
                the governmental entity, that the stay should be lifted 
                in whole or in part prior to resolution.
                    ``(C)  Finality of order.--The decision of the 
                court resolving an application, petition, or motion 
                under this paragraph shall constitute a final, 
                appealable order.
            ``(6) Exception.--
                    ``(A) In general.--A provider of electronic 
                communications service or remote computing service to 
                which an order under paragraph (1) applies, or an 
                officer, employee, or agent thereof, may disclose 
                information otherwise subject to any applicable 
                nondisclosure requirement to--
                            ``(i) those persons to whom disclosure is 
                        necessary in order to comply with the warrant, 
                        order, or subpoena;
                            ``(ii) an attorney, in order to obtain 
                        legal advice or assistance relating to the 
                        order issued under paragraph (1) or the 
                        warrant, order, or subpoena to which the order 
                        applies; and
                            ``(iii) any person the court determines can 
                        be notified of the warrant, order, or subpoena.
                    ``(B) Scope of nondisclosure.--
                            ``(i) Recipients of information.--Any 
                        person to whom disclosure is made under 
                        subparagraph (A), other than the governmental 
                        entity, shall be subject to the nondisclosure 
                        requirements applicable to the person to whom 
                        the order is issued.
                            ``(ii) Notification.--Any recipient 
                        authorized under this paragraph to disclose to 
                        a person information otherwise subject to a 
                        nondisclosure requirement shall notify the 
                        person of the applicable nondisclosure 
                        requirement.
            ``(7) Supporting documentation.--Upon serving a provider of 
        electronic communications service or remote computing service 
        with an order granted under paragraph (1), or an extension of 
        such order granted under paragraph (3), the governmental entity 
        shall include a copy of the warrant, order, or subpoena to 
        which the nondisclosure order applies.
            ``(8) Expiration of order precluding notice.--Upon 
        expiration of an order issued under paragraph (1) or, if an 
        extension has been granted under paragraph (3), expiration of 
        the extension, the governmental entity shall deliver to the 
        named customer or subscriber, by not less than 2 methods, which 
        shall be personal service, registered or first-class mail, 
        electronic mail, or other means approved by the court as 
        reasonably calculated to reach the named customer or subscriber 
        within 5 business days of the expiration of the order--
                    ``(A) a copy of the warrant, order, or subpoena; 
                and
                    ``(B) notice that informs the named customer or 
                subscriber--
                            ``(i) of the nature of the law enforcement 
                        inquiry with reasonable specificity;
                            ``(ii) that information maintained for such 
                        customer or subscriber by the provider of 
                        electronic communications service or remote 
                        computing service to which the warrant, order, 
                        or subpoena under section 2703, was directed, 
                        supplied to, or requested by the government 
                        entity;
                            ``(iii) that notification of such customer 
                        or subscriber was precluded by court order;
                            ``(iv) of the identity of the court 
                        authorizing the preclusion of notice;
                            ``(v) of the provision of this chapter 
                        under which the preclusion of notice was 
                        authorized; and
                            ``(vi) that the government will, upon 
                        request by the customer or subscriber made 
                        within 180 days after receiving notification 
                        under this paragraph, provide the named 
                        customer or subscriber with a copy of the 
                        information that was disclosed in response to 
                        the warrant, order or subpoena, or in the event 
                        that no information was disclosed, a written 
                        certification that no information was 
                        disclosed.
            ``(9) Copy of information disclosed.--Upon expiration of 
        the order precluding notice issued under paragraph (1) or (3), 
        and at the request of the named customer or subscriber made 
        within 180 days of receiving notification under paragraph (8), 
        the governmental entity shall promptly provide the named 
        customer or subscriber--
                    ``(A) with a copy of the information that was 
                disclosed in response to the warrant, order, or 
                subpoena, except for--
                            ``(i) illicit records;
                            ``(ii) records or materials pertaining to 
                        child sexual abuse material under section 
                        2256(8), sexual exploitation of children under 
                        section 2251, or any Federal, State, Tribal, or 
                        military offense that is the substantial 
                        equivalent; or
                            ``(iii) other illegal material; or
                    ``(B) in the event that no information was 
                disclosed, a written certification that no information 
                was disclosed.
            ``(10) Redactions.--Any information disclosed under 
        paragraph (8) or (9) may be redacted only if a court finds such 
        redactions necessary to preserve the secrecy or integrity of an 
        investigation.''.

SEC. 3. ADDITIONAL PROVISIONS REGARDING DELAYED NOTICE.

    Section 2705 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(c) Annual Report.--
            ``(1) In general.--On an annual basis, the Attorney General 
        shall provide to the Committee on the Judiciary of the Senate, 
        the Committee on the Judiciary of the House of Representatives, 
        and the Director of the Administrative Office of the United 
        States Courts, which the Attorney General shall publish on the 
        website of the Department of Justice, in a manner consistent 
        with the protection of national security, a report setting 
        forth, with respect to the preceding calendar year, for each 
        Federal judicial district--
                    ``(A) the number of named customers or subscribers 
                with respect to whom, in that calendar year, a warrant, 
                subpoena, or court order was issued pursuant to section 
                2703;
                    ``(B) the aggregate number of applications 
                requesting delay of notification pursuant to subsection 
                (a)(1), preclusion of notice pursuant to subsection 
                (b)(1), and extensions pursuant to subsection (b)(3);
                    ``(C) the aggregate number of orders under this 
                section either granting, extending, or denying a 
                request for delay of notification or preclusion of 
                notice;
                    ``(D) the aggregate number of orders under this 
                section affecting a member of the news media, including 
                any conduct related to activities protected under the 
                First Amendment to the Constitution of the United 
                States; and
                    ``(E) the aggregate number of arrests, trials, and 
                convictions, resulting from investigations in which 
                orders under this section were obtained, including the 
                offenses for which individuals were arrested, tried, or 
                convicted.
            ``(2) Inclusion.--The Attorney General shall include in the 
        report under this subsection a description of the process and 
        the information used to determine the numbers for each of 
        subparagraphs (A) through (E) of paragraph (1).''.
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