[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.
____________________