[Congressional Record Volume 169, Number 81 (Monday, May 15, 2023)]
[House]
[Pages H2321-H2323]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                            NDO FAIRNESS ACT

  Mr. FITZGERALD. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3089) to amend title 18, United States Code, to modify 
delayed notice requirements, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3089

       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.--An order granted under subparagraph (A) 
     shall be in effect for a period of not more than 90 days.
       ``(C) Other requirements.--
       ``(i) In general.--A 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 this paragraph may 
     not direct, or otherwise require, a provider of electronic 
     communications service or remote computing service to provide 
     notification of the expiration of order to the court or 
     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 an extension of such order 
     requested by the governmental entity pursuant to paragraph 
     (3), unless--
       ``(i) 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; and

       ``(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 
     clauses (i) through (v) of subparagraph (A); and
       ``(iii) the court has reviewed the individual warrant, 
     order, or subpoena under section 2703 to which the order 
     issued under this paragraph applies.
       ``(B) Nature of the offense.--The court may consider the 
     nature of the offense in issuing a determination under 
     subparagraph (A).
       ``(3) Extension.--A governmental entity may request one or 
     more extensions of an order granted under paragraph (2) of 
     not more than 90 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 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 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 (3); or
       ``(ii) compliance with the order is unreasonable or 
     otherwise unlawful.
       ``(B) Stay of disclosure of named 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 order issued under paragraph (2) or 
     the warrant, order, or subpoena to which the order applies; 
     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 
     named 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 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 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 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.
       ``(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 named customer 
     or subscriber made within 180 days of receiving notification 
     under paragraph (9), 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 illicit 
     records, child sexual abuse material, and other illegal 
     material); or
       ``(B) in the event that no information was disclosed, a 
     written certification that no information was disclosed.
       ``(11) Redactions.--Any information disclosed pursuant to 
     paragraphs (9) and (10) 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.--On an annual basis, the Attorney 
     General shall provide to the Committee on the Judiciary of 
     the House of Representatives, the Committee on the Judiciary 
     of the Senate, and the Director of the Administrative Office 
     of the United States Courts, which the Director shall publish 
     on the website of the Administrative Office of the United 
     States Courts, 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 named customers or subscribers with 
     respect to whom, in that

[[Page H2322]]

     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 subsection (a)(1), preclusion of 
     notice pursuant to subsection (b)(1), and extensions pursuant 
     to subsection (b)(3);
       ``(3) the aggregate number of orders under this section 
     either granting, extending, or denying a request for delay of 
     notification or preclusion of notice;
       ``(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 
Wisconsin (Mr. Fitzgerald) and the gentlewoman from Texas (Ms. Jackson 
Lee) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin.


                             General Leave

  Mr. FITZGERALD. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and to include extraneous material on H.R. 3089, the bill now under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. FITZGERALD. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in strong support of this legislation, H.R. 3089, 
the NDO Fairness Act. This bill makes much-needed changes to the way 
law enforcement obtains and utilizes nondisclosure orders, also known 
as secrecy orders.
  Before modern advancements in cloud computing, when a law enforcement 
officer wanted to search someone's office, they would be required to 
obtain a search warrant based on probable cause, as we are all well 
aware of. When the officer executed the search, they would notify the 
individual, who would then have an opportunity to challenge the search 
in court. However, the era of cloud computing has ushered in a new 
method of storing sensitive information, whereby, as we know, 
individuals are replacing file cabinets with digital file folders.
  Unbeknownst to them, by surrendering this physical office in favor of 
a digital office, individuals are also surrendering their expectation 
of privacy. That is because a provision within the Electronic 
Communications Privacy Act allows law enforcement to access an 
individual's data by subpoenaing the third-party service provider, such 
as Microsoft, Google, or Apple, rather than the individual.
  The law enforcement officer then imposes a secrecy order on the 
company, preventing them from notifying the individual of the search. 
The secrecy order is often boilerplate in nature and without a time 
limit, leading to abuse and overuse.
  According to Microsoft, between January to June 2022, Federal 
authorities requested U.S. citizen data from more than 5,500 accounts, 
an average of 15 requests per day. Over the same time period, Google 
received more than 21,000 subpoenas for nearly 50,000 accounts. Apple, 
whose public data is only available through calendar year 2021, 
received more than 6,600 requests between July and December of that 
year.
  In nearly all the cases, a secrecy order was imposed on the company 
to prevent the disclosure of the search. The NDO Fairness Act would 
stop this abuse, which has allowed the circumvention of Fourth 
Amendment protections in favor of simple convenience.
  This legislation ends indefinite secrecy orders, instead requiring 
the court to certify that disclosing the search is likely to jeopardize 
an investigation, result in the destruction of evidence, or endanger 
the life of an individual.
  This legislation also imposes a 90-day limit on secrecy orders, with 
an extension available if and only if the need for secrecy is justified 
based on the facts and approval by a judge.
  Finally, this legislation gives the individual subject to searches a 
chance to be heard and a chance to request a copy of the information 
that was disclosed.
  Today's legislation, while not a major overhaul of ECPA, provides us 
with an opportunity to address the threat to our constitutional 
freedoms. These changes, I believe, will bring searches of the cloud 
more closely in line with Fourth Amendment searches.
  Mr. Speaker, I thank my colleague from New York (Mr. Nadler), the 
ranking member of the House Judiciary Committee, for co-leading this 
bill, and I thank the chairman of the committee, Chairman Jordan, for 
his leadership on this issue.
  Mr. Speaker, I urge swift passage of the bill, and I reserve the 
balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, let me, first of all, indicate that today is the 
National Fraternal Order of Police 42nd Annual National Peace Officers' 
Memorial Service, which I will make comments on throughout my 
discussion and debate of other bills. It is important to note the 
hundreds and hundreds of police officers that are here to honor those 
who have fallen in the line of duty and the many families who are here, 
as well, mourning and receiving recognition today.
  At the same time, I render my sympathy and concern for Congressman 
Gerry Connolly and two staff members who have been violently attacked 
in his congressional office in Virginia and indicate our prayers and 
best wishes for these particular staff persons' speedy recovery. I know 
that we all are stunned, but we also offer our concern to our colleague 
and wish him safety, along with his staff.
  Mr. Speaker, I now rise to offer strong support for H.R. 3089, the 
NDO Fairness Act, the crucial bipartisan surveillance reform 
legislation that passed out of the Judiciary Committee last week on a 
voice vote.
  I thank Mr. Fitzgerald. I thank Mr. Nadler, the ranking member, for 
his leadership in working together with Mr. Fitzgerald and, of course, 
all of us on the committee that saw the rightness and reason for this 
legislation.
  The NDO Fairness Act is a simple, straightforward bill that addresses 
a narrow problem by establishing essential guardrails for when the 
government seeks to assess someone's electronic communications without 
that person's knowledge.
  This legislation would insert balance into a system that, for too 
long, has been a free-for-all for government prosecutors.
  Let me be very clear: Nothing that we are doing is intending to 
undermine the fair prosecution of those who have done wrong, those who 
are criminals and otherwise who warrant the prosecution of the Federal 
Government.
  It is, as we debated right after 9/11, an attempt to uphold the 
values of this Nation. I remember the intense discussions we had on the 
PATRIOT Act when the inclination after the heinous, devastating murder 
of 3,000-plus Americans on 9/11 was that we needed to do everything to 
insist that no one had even an inch of freedom.
  I am glad that, in the Judiciary Committee, of which I was a member 
at that time, we saw the rhyme and reason, and we worked in a 
bipartisan way to establish a PATRIOT Act that could, in fact, fight 
terrorism, as it has done, but also protect the constitutional rights 
of Americans.
  I see this in this NDO Fairness Act today. Under current law, after 
the government obtains a court's permission to search the contents of a 
person's electronic communications, a wish they would not know, 
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, or NDO, colloquially referred to 
as a secrecy or gag order. You are gagging the American citizen.
  There is no time limit for these orders. There is no standard to 
meet. Today, all the government needs to do is cite one of five 
potential adverse results, without showing that it is necessary, and 
the court may grant the request.

[[Page H2323]]

  Prosecutors frequently seek these secrecy orders in cases where there 
is clearly sometimes no need and in situations where the government 
alone benefits. In many instances, there is no need.
  Unlike when a physical search order 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 the court reverses the order.
  The NDO Fairness Act would do away with the rubberstamped process 
that governs gag order requests 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. 3089 inserts transparency, reason, and balance into a 
system and fairness and justice on both sides that far too long has 
been a free-for-all for government prosecutors simply by virtue of it 
being just too easy to overuse.
  In the 21st century, Federal prosecutors no longer need to show up to 
your office. They just need to raid your virtual office. Unlike 
physical searches, they can search an email in secret. The House 
surveillance laws have not kept pace with rapidly changing technology.
  Mr. Speaker, just wait on the march of AI. I think this bill is 
extremely timely because we have to be engaged with our constitutional 
values no matter what the level of technology is. It is imperative that 
the House of Representatives act to ensure that Americans are still 
protected as everyday life moves increasingly online.
  Mr. Speaker, I thank Congressman Fitzgerald for introducing this bill 
and Ranking Member Nadler, again, for his leadership on this issue. I 
also thank Chairman Jordan for moving this bill swiftly through the 
Judiciary Committee and Senator Lee for his leadership in the Senate. I 
was glad to serve as the ranking member of the subcommittee dealing 
with this bill, as well.
  Mr. Speaker, I encourage my colleagues to vote ``yes'' and to pass 
this important legislation today, and I reserve the balance of my time.
  Mr. FITZGERALD. Mr. Speaker, I have no further speakers, and I am 
prepared to close.
  Mr. Speaker, I reserve the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, let me cite an example that I think is worthy of my 
colleagues hearing. Between 2016 and 2021, Microsoft received between 7 
and 10 NDOs every day. That is, on average, from 2,400 to 3,500 secrecy 
orders a year.
  Apple has received roughly 13,200 requests with secrecy orders from 
Federal agencies over the past 5 years, which is approximately 2,600 
requests annually or the equivalent of 7 to 8 requests per day that are 
accompanied by a gag order.
  Just think of how many Americans that impacts. They are not the only 
service providers to feel the legal burden. Google has about 130,000 
secrecy orders right now. Meta averages more than 100,000 requests per 
year.
  For example, in the first half of 2021, 70 percent of the 63,657 
search requests Meta received included gag orders. That is an enormous 
tally. That is a lot of Americans.
  To be very clear, as I conclude my remarks, this is in no way 
attempting to thwart the important prosecution of individuals who are 
intending to do harm in any way to the United States by way of criminal 
acts. Certainly, we believe in justice for any person who is accused. 
They have a right to due process, a trial by their peers and otherwise, 
but we do believe that it is important to protect the vast number of 
Americans who would not know what is happening to their online searches 
or their online privacy.

                              {time}  1715

  Mr. Speaker, the NDO Fairness Act would insert process and 
deliberation into gag order requests and make it more likely that 
Americans whose electronic communications are searched can assert their 
rights in court.
  Mr. Speaker, I rise in strong support of H.R. 3089, the ``NDO 
Fairness Act,'' crucial bipartisan surveillance reform legislation that 
passed out of the Judiciary Committee last week on a voice vote.
  The NDO Fairness Act is a simple, straightforward bill that addresses 
a narrow problem. By establishing essential guardrails for when the 
government seeks to access someone's electronic communications without 
that person's knowledge, this legislation would insert balance into a 
system that for too long has been a free-for-all for government 
prosecutors.
  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, or NDO, colloquially referred to as a 
``secrecy'' or ``gag'' order.
  There is no time limit to these orders. There is no standard to meet. 
Today, all the government needs to do is cite one of five potential 
adverse results--without showing that it is necessary--and the court 
may grant the request.
  Prosecutors frequently seek these 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.
  The NDO Fairness Act would do away with the rubber stamp process that 
governs gag order requests 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. 3089 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.
  In the 21st century, federal prosecutors no longer need to show up to 
your office. They just need to raid your virtual office, but unlike 
physical searches, they can search an email in secret. Our surveillance 
laws have not kept pace with rapidly changing technology.
  It is imperative that the House of Representatives act to ensure that 
Americans are still protected as everyday life moves increasingly 
online.
  I thank Congressman Fitzgerald for introducing this bill, and Ranking 
Member Nadler for his leadership on this issue. I also want to thank 
Chairman Jordan for moving this bill swiftly through the Judiciary 
Committee and Senator Lee for his leadership in the Senate.
  I encourage my colleagues to vote ``yes'' and to pass this important 
legislation today.
  Mr. Speaker, the NDO Fairness Act would insert process and 
deliberation into gag order requests and make it more likely that 
Americans whose electronic communications are searched can assert their 
rights in court. This is good bipartisan legislation, I urge all 
Members to support it.
  Mr. Speaker, this is good bipartisan legislation, and I urge all of 
the Members to support it.
  Mr. Speaker, I yield back the balance of my time.
  Mr. FITZGERALD. Mr. Speaker, I reiterate my strong support for this 
bipartisan bill, H.R. 3089, which will provide much-needed safeguards 
on the secrecy order process.
  Mr. Speaker, I hope that all my colleagues will support this bill, I 
urge its passage, and I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Wisconsin (Mr. Fitzgerald) that the House suspend the 
rules and pass the bill (H.R. 3089).
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. FITZGERALD. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

                          ____________________