[Congressional Record Volume 168, Number 105 (Tuesday, June 21, 2022)]
[House]
[Pages H5698-H5700]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            NDO FAIRNESS ACT

  Mr. CICILLINE. Madam Speaker, I move to suspend the rules and pass 
the bill (H.R. 7072) to amend title 18, United States Code, to modify 
delayed notice requirements, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 7072

       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. DELAY OF NOTIFICATION.

       Section 2705(a) of title 18, United States Code, is amended 
     to read as follows:
       ``(a) Delay of Notification.--
       ``(1) Application.--A governmental entity that is seeking a 
     warrant, order, or subpoena under section 2703 may include in 
     the application (or motion in the case of an administrative 
     subpoena authorized by a Federal or State statute or a 
     Federal or State grand jury or trial subpoena) a request to a 
     court of competent jurisdiction for an order delaying the 
     notification under section 2703 for a period of not more than 
     60 days.
       ``(2) Determination.--The court may not grant a request for 
     delayed notification to a customer or subscriber made under 
     paragraph (1), or an extension of such delayed notification 
     requested by the governmental entity pursuant to paragraph 
     (3), unless 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 
     substantially likely that the notification of the customer or 
     subscriber of the existence of the warrant, order, or 
     subpoena will result in--
       ``(A) endangering the life or physical safety of an 
     individual;
       ``(B) flight from prosecution;
       ``(C) destruction of or tampering with evidence;
       ``(D) intimidation of potential witnesses; or
       ``(E) otherwise seriously jeopardizing an investigation or 
     unduly delaying a trial.
       ``(3) Extension.--The governmental entity may request one 
     or more extensions of the delay of notification granted under 
     paragraph (2) for a period of not more than 60 days for each 
     such extension. The court may only grant such an extension if 
     the court makes a written determination required under 
     paragraph (2) and the extension is in accordance with the 
     requirements of such paragraph.
       ``(4) Expiration of delay of notification.--Upon expiration 
     of the period of delay of notification and all extensions 
     thereof under paragraphs (2) and (3) of this subsection, the 
     governmental entity shall deliver to the customer or 
     subscriber by at least 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 customer or subscriber within 72 hours of the 
     expiration of the delay--
       ``(A) a copy of the warrant, order, or subpoena; and
       ``(B) notice that informs such customer or subscriber--
       ``(i) of the nature of the inquiry made by the governmental 
     entity, 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, was 
     supplied to or requested by the governmental entity;
       ``(iii) that notification of such customer or subscriber 
     was delayed by court order;
       ``(iv) the identity of the court that issued such order;
       ``(v) the provision of law under which the order delaying 
     notification was authorized; and
       ``(vi) that the governmental entity will, upon request by 
     the customer or subscriber made within 180 days after 
     receiving notification under this paragraph, provide the 
     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.
       ``(5) Copy of information disclosed.--Upon expiration of 
     the period of delay of notification under paragraph (2) or 
     (3) of this subsection, and at the request of the customer or 
     subscriber made within 180 days of receiving notification 
     under paragraph (4), the governmental entity shall promptly 
     provide the customer or subscriber--
       ``(A) with a description of the information disclosed and a 
     copy of the information that was disclosed in response to the 
     warrant, order, or subpoena; or
       ``(B) in the event that no information was disclosed, with 
     a written certification that no information was disclosed.''.

     SEC. 3. 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 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 for a period of not more than either 60 
     days or the period of delay of notice provided under 
     subsection (a), if any.
       ``(2) Determination.--The court may not grant a request for 
     an order made under paragraph (1), or an extension of such 
     order requested by the governmental entity pursuant to 
     paragraph (3), unless--
       ``(A) 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 
     substantially 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; and
       ``(B) 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 customer or subscriber, to avoid an 
     adverse result as described in clause (i) through (v) of 
     subparagraph (A).

[[Page H5699]]

       ``(3) Extension.--A governmental entity may request one or 
     more extensions of an order granted under paragraph (2) of 
     not more than 60 days for each such extension. The court may 
     only grant such an extension if the court makes a written 
     determination required under paragraph (2)(A) and the 
     extension is in accordance with the requirements of (2)(B).
       ``(4) Notification of changed circumstances.--If the need 
     for the order issued under paragraph (2) changes materially, 
     the governmental entity that requested the order shall notify 
     the court within 72 hours of the changed circumstances, and 
     the court shall reassess the order and modify or vacate 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 (2) (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
       ``(ii) compliance with the order is unreasonable or 
     otherwise unlawful.
       ``(B) Stay of disclosure of customer or subscriber 
     communications or records.--A provider's obligation 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 provider of electronic communications 
     service or remote computing service to which an order under 
     paragraph (2) applies, or an officer, employee, or agent 
     thereof, may disclose information otherwise subject to any 
     applicable nondisclosure requirement to--
       ``(A) those persons to whom disclosure is necessary in 
     order to comply with the warrant, order, or subpoena;
       ``(B) an attorney in order to obtain legal advice or 
     assistance regarding the warrant, order, or subpoena; and
       ``(C) any person the court determines can be notified of 
     the warrant, order, or subpoena.
       ``(7) Scope of nondisclosure.--Any person to whom 
     disclosure is made under paragraph (6) (other than the 
     governmental entity) shall be subject to the nondisclosure 
     requirements applicable to the person to whom the order is 
     issued. Any recipient authorized under this subsection to 
     disclose to a person information otherwise subject to a 
     nondisclosure requirement shall notify the person of the 
     applicable nondisclosure requirement.
       ``(8) Supporting documentation.--Upon serving a provider of 
     electronic communications service or remote computing service 
     with an order granted under paragraph (2), 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.
       ``(9) Expiration of order precluding notice.--Upon 
     expiration of an order issued under paragraph (2) or, if an 
     extension has been granted under paragraph (3), expiration of 
     the extension, the governmental entity shall deliver to the 
     customer or subscriber, by at least 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 customer or subscriber within 72 
     hours of the expiration of the order--
       ``(A) a copy of the warrant, order, or subpoena; and
       ``(B) notice that informs the 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 was 
     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 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.
       ``(10) Copy of information disclosed.--Upon expiration of 
     the order precluding notice issued under paragraph (2) or (3) 
     of this subsection, and at the request of the customer or 
     subscriber made within 180 days of receiving notification 
     under paragraph (9), the governmental entity shall promptly 
     provide the customer or subscriber--
       ``(A) with a copy of the information that was disclosed in 
     response to the warrant, order or subpoena; or
       ``(B) in the event that no information was disclosed, a 
     written certification that no information was disclosed.''.

     SEC. 4. 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.--On an annual basis, the Attorney 
     General shall provide to the Committees on the Judiciary of 
     the House of Representatives and the Senate, in a manner 
     consistent with protection of national security, a report 
     setting forth with respect to the preceding calendar year, 
     for each Federal judicial district--
       ``(1) the number of customers or subscribers with respect 
     to whom, in that calendar year, a warrant, subpoena, or court 
     order was issued pursuant to section 2703;
       ``(2) the aggregate number of applications requesting delay 
     of notification pursuant to subsections (a)(1) and (b)(1);
       ``(3) the aggregate number of orders under this section 
     either granting, extending, or denying a request for delay of 
     notification;
       ``(4) 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; 
     and
       ``(5) 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.
     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 paragraphs (1) 
     through (5).''.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Rhode Island (Mr. Cicilline) and the gentleman from Ohio (Mr. Jordan) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Rhode Island.


                             General Leave

  Mr. CICILLINE. Madam Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous material on H.R. 7072.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Rhode Island?
  There was no objection.
  Mr. CICILLINE. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, as a proud cosponsor, I rise in strong support of H.R. 
7072, the NDO Fairness Act, crucial bipartisan surveillance reform 
legislation that recently passed out of the Judiciary Committee on a 
voice vote.
  This legislation would establish important guardrails for when the 
government seeks to access someone's electronic communications without 
that person's knowledge. Under current law, after the government 
obtains a court's permission to search the contents of a person's 
electronic communications, prosecutors must then compel the email 
service provider to produce the relevant data. To avoid having the 
service provider turn around and tell its customer about the search, 
the government can also ask the court to grant a nondisclosure order, 
colloquially referred to as a secrecy or gag order.
  Right now, there is no time limit to these orders. There is no 
standard to meet. All the government needs to do is cite one of five 
potential adverse results, with no showing that it is necessary, and 
the court may grant the request.
  This bill requires the government to show and the courts to be 
convinced that the secrecy order is actually needed, rather than 
allowing both to treat this as a check-the-box activity. Gag orders 
would be granted for a much shorter period of time, with the 
opportunity for extensions only as necessary. When the orders expire or 
are no longer necessary, the government would need to provide to the 
customer the warrant, details regarding the search, and a copy of any 
information disclosed.
  Prosecutors frequently seek secrecy orders in cases where there is 
clearly no need and in situations where the government alone benefits. 
Unlike when a physical search occurs and a person has the right to go 
to court to dispute the warrant, NDOs can keep the subject of the 
search in the dark until a court reverses the order. In the 21st 
century, Federal prosecutors no longer need to show up to your office. 
They just need to raid your virtual office secretly.

[[Page H5700]]

  The NDO Fairness Act would do away with that rubber stamp by ensuring 
that courts apply a strict scrutiny standard to government requests 
with a written determination explaining their reasoning. By time-
limiting nondisclosure orders, raising the standard of review, and 
ensuring that service providers have standing when they object, H.R. 
7072 inserts transparency, reason, and balance into a system that for 
too long has been a free-for-all for government prosecutors simply by 
virtue of it being too easy to overuse.
  If history and recent reporting has taught us anything, it is that we 
cannot trust the Department of Justice--under any administration--to 
police itself. It is imperative that the House of Representatives 
fulfill its role and ensure our laws are keeping pace with rapidly 
changing technology.
  Madam Speaker, I thank Chairman Nadler and Congressman Fitzgerald for 
their leadership on this bill and our friends, Senator Leahy and 
Senator Lee, for their leadership in the Senate.
  Madam Speaker, I urge my colleagues to vote ``yes'' on the bill, and 
I reserve the balance of my time.
  Mr. JORDAN. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, the NDO Fairness Act is a significant step in 
addressing the government's overreach and abuse of nondisclosure 
orders, also known as gag orders.
  All too often, the government obtains a court order to secretly 
demand the communications of American citizens from third-party tech 
companies like Apple, Google, Microsoft, and Verizon. Through these 
orders, the government blocks these companies from alerting their 
customers or users that the government is looking through their emails 
and phone records. In other words, you don't get to know.
  The frequency with which the government uses these orders to demand 
information is shocking. One company received 2,400 to 3,500 orders 
every year between 2016 and 2021. That is 7 to 10 orders every day--
every single day. Some of those orders do not contain an expiration. 
That means the government is authorized to spy on Americans' private 
information indefinitely.
  Think about that, Madam Speaker. You may never know that the 
government accessed and snooped on your most intimate information.
  More astoundingly, these nondisclosure orders are often approved by a 
rubberstamp process for routine investigations without any real showing 
of the need for secrecy.
  This bipartisan bill ensures that our rights enshrined in the 
Constitution are protected from government overreach. The bill requires 
courts to issue written decisions as to why orders are necessary. It 
sets a 60-day limit for such orders and allows providers to challenge 
unjustified orders in a court of law.
  Madam Speaker, I reserve the balance of my time.

                              {time}  1515

  Mr. CICILLINE. Madam Speaker, I have no further speakers. I reserve 
the balance of my time.
  Mr. JORDAN. Madam Speaker, I urge a ``yes'' vote, and I yield back 
the balance of my time.
  Mr. CICILLINE. Madam Speaker, I yield myself the balance of my time.
  H.R. 7072 will insert due process protections into a system too often 
abused by Federal prosecutors.
  Under the Stored Communications Act, the government often has no 
obligation to tell you that they have requested access to your email 
records. It can prohibit your service provider from informing you of 
the search, even if your contract with the provider requires such 
notice.
  The NDO Fairness Act will require that the government show a need for 
a gag order. It installs commonsense protections to ensure that any 
such orders are time-limited and subject to scrutiny for renewal.
  Madam Speaker, I encourage my colleagues to vote ``yes'' and pass 
this important legislation today, and I yield back the balance of my 
time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Rhode Island (Mr. Cicilline) that the House suspend the 
rules and pass the bill, H.R. 7072, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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