[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.
____________________