[House Report 117-361]
[From the U.S. Government Publishing Office]


117th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {      117-361

======================================================================



 
                            NDO FAIRNESS ACT

                                _______
                                

 June 13, 2022.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 7072]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 7072) to amend title 18, United States Code, to 
modify delayed notice requirements, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     5
Hearings.........................................................    11
Committee Consideration..........................................    11
Committee Votes..................................................    11
Committee Oversight Findings.....................................    11
Committee Estimate of Budgetary Effects..........................    11
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................    12
Duplication of Federal Programs..................................    12
Performance Goals and Objectives.................................    12
Advisory on Earmarks.............................................    12
Section-by-Section Analysis......................................    12
Changes in Existing Law Made by the Bill, as Reported............    14

    The amendment is as follows:
  Strike all that follows after the enacting clause and insert 
the following:

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, 
                        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).
          ``(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, 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 section 2705;
          ``(3) the aggregate number of such orders either granted, 
        extended, or denied;
          ``(4) the aggregate number of such orders targeting 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 such orders 
        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).''.

                          Purpose and Summary

    H.R. 7072, the ``NDO Fairness Act,'' increases transparency 
of the government's use of secrecy orders and ensures that non-
disclosure orders (NDOs) are granted only when there is 
sufficient need for secrecy. It specifically amends 18 U.S.C. 
Sec.  2705 to require that judges apply a strict scrutiny 
standard when they consider requests for delays of required 
government notification and when they consider requests for the 
imposition of non-disclosure orders on electronics 
communications services and remote computing services. The bill 
would also require an annual report by the Attorney General on 
the Department of Justice's (DOJ) use of searches under 18 
U.S.C Sec.  2703, requests for preclusion of notice under 18 
U.S.C. Sec.  2705, and related data.

                Background and Need for the Legislation


                             I. BACKGROUND

    NDOs, also known as ``gag orders'' and ``secrecy orders,'' 
prohibit service providers from informing a customer that they 
were subject to a search by federal law enforcement under the 
Stored Communications Act.\1\ Under this proposed legislation, 
courts considering a government entity's NDO request must use a 
strict scrutiny standard, limit any order granted to 60 days, 
and narrowly tailor the order to prevent the adverse event 
contemplated by the government. The bill also: (1) amends 18 
U.S.C. 2705(a), to ensure statutory uniformity and require that 
any application for delayed notice of a search under 18 U.S.C. 
2703 is required to meet the same standard as an application 
for an NDO and (2) requires annual reporting by the Attorney 
General.
---------------------------------------------------------------------------
    \1\18 U.S.C. Sec.  2703.
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A. The Fourth Amendment and the Stored Communications Act

    As a general rule, the Fourth Amendment protects people 
from unreasonable searches and seizures by the government, 
unless authorized by a warrant.\2\ With a limited number of 
notable exceptions, searches and seizures inside a home without 
a warrant are presumptively unreasonable.\3\ A warrantless 
search of a home, and the contents, may be lawful if: (1) 
consent to search is granted;\4\ (2) the search is incident to 
a lawful arrest;\5\ (3) there is probable cause to search and 
exigent circumstances exist;\6\ or (4) if the items that are 
seized are in plain view.\7\ Where files are on a computer 
located in a suspect's home, DOJ must present a particularized 
description of the items to be seized.\8\
---------------------------------------------------------------------------
    \2\U.S. Const. amend. IV.
    \3\Payton v. New York, 445 U.S. 573 (1980).
    \4\Davis v. United States, 328 U.S. 582 (1946).
    \5\United States v. Robinson, 414 U.S. 218 (1973).
    \6\Payton v. New York, 445 U.S. 573 (1980).
    \7\Maryland v. Macon, 472 U.S. 463 (1985).
    \8\Marron v. United States, 275 U.S. 192, 196 (1927).
---------------------------------------------------------------------------
    For data that exists in the ``cloud'' rather than on a home 
computer, the Department has other authorities that authorize 
seizure in certain circumstances. In title II of the Electronic 
Communications Privacy Act of 1986, commonly known as the 
Stored Communications Act, Congress provided law enforcement 
agents the ability to compel a provider of electronic 
communication services to disclose the contents and records of 
electronic communications.\9\ A law enforcement agent may 
obtain records of stored electronic communications by either 
securing a warrant pursuant to the Federal Rules of Criminal 
Procedure or by a court order.\10\
---------------------------------------------------------------------------
    \9\18 U.S.C. Sec. Sec.  2701-2711.
    \10\18 U.S.C. Sec.  2703(d).
---------------------------------------------------------------------------
    A successful warrant application may be granted if DOJ 
``offers specific and articulable facts showing that there are 
reasonable grounds to believe that the contents of a wire or 
electronic communication, or the records or other information 
sought, are relevant and material to an ongoing criminal 
investigation.''\11\ Courts have interpreted this threshold to 
be equivalent to the reasonable suspicion standard.\12\
---------------------------------------------------------------------------
    \11\Id.
    \12\In re U.S. for an Ord. Pursuant to 18 U.S.C. Section 2703(D), 
707 F.3d 283, 287 (4th Cir. 2013).
---------------------------------------------------------------------------
    DOJ frequently uses court orders to prevent providers from 
alerting customers when the government seizes their personal 
email or records. These orders can be broad and can prevent 
companies from ever alerting customers that DOJ seized their 
information.\13\ Although the government has announced 
intentions to tighten guidelines for the use of secrecy orders, 
technology companies continue to report frequent use of such 
orders. For example, Microsoft has previously described, ``that 
in an 18-month period, 2,576 of the legal demands we received 
from the U.S. government included an obligation of secrecy, and 
68 percent of these appeared to be indefinite demands for 
secrecy. In short, we were prevented from ever telling a large 
number of customers that the government had sought to access 
their data.''\14\
---------------------------------------------------------------------------
    \13\DOJ acts to curb the overuse of secrecy orders. Now it's 
Congress' turn., Microsoft, Oct. 23,2017, available at: https://
blogs.microsoft.com/on-the-issues/2017/10/23/doj-acts-curb-overuse-
secrecy-orders-now-congress-turn/.
    \14\DOJ acts to curb the overuse of secrecy orders. Now it's 
Congress' turn., Microsoft, Oct. 23,2017, available at: https://
blogs.microsoft.com/on-the-issues/2017/10/23/doj-acts-curb-overuse-
secrecy-orders-now-congress-turn/.
---------------------------------------------------------------------------
            1. Non-disclosure Orders
    18 U.S.C Sec.  2705(b) allows for the government to request 
an NDO prohibiting the service provider of the subject of a 
search under 18 U.S.C. Sec.  2703 from informing its user or 
customer that the search is taking place.\15\ When the 
government applies for an order under section 2703, it can 
apply for a court order forbidding the service provider from 
notifying anyone of the compelled disclosure of their 
customer's electronic communications.\16\ The only guideline 
for the courts to follow in evaluating whether to grant a 
request under section 2705 is:
---------------------------------------------------------------------------
    \15\18 U.S.C. Sec.  2705(b).
    \16\Id.

          If it determines that there is reason to believe that 
        notification of the existence of the warrant, subpoena, 
        or court order will result in--(1) endangering the life 
        or physical safety of an individual; (2) flight from 
        prosecution; (3) destruction of or tampering with 
        evidence; (4) intimidation of potential witnesses; or 
        (5) otherwise seriously jeopardizing an investigation 
        or unduly delaying a trial.\17\
---------------------------------------------------------------------------
    \17\Id.

Experts note that this application procedure has evolved into a 
``rubber stamp'' process,\18\ where little consideration is 
given to the true necessity of the order.
---------------------------------------------------------------------------
    \18\Tom Burt, Written Testimony Before the House Judiciary 
Committee, House Cmte. on the Judiciary, Jun. 30, 2021.
---------------------------------------------------------------------------
            2. Delayed Notification
    Some searches permitted under the Stored Communications Act 
require the government to notify the subject prior to the 
search.\19\ 18 U.S.C. Sec.  2703(b) provides for searches with 
prior notice from the government in cases where it ``uses an 
administrative subpoena authorized by a Federal or State 
statute or a Federal or State grand jury or trial subpoena; or 
(ii) obtains a court order for such disclosure under subsection 
(d).''\20\ In those cases, the government may ask the court to 
grant a delay of the notification\21\ under 18 U.S.C. Sec.  
2705(a).
---------------------------------------------------------------------------
    \19\18 U.S.C. Sec.  2703(b).
    \20\Id.
    \21\18 U.S.C. Sec.  2705(a).
---------------------------------------------------------------------------
    Today, warrantless searches in which there is a presumption 
of notice are infrequently, if ever, used. The Sixth Circuit, 
in United States v. Warshak, found that email account holders 
in most cases had a reasonable expectation of privacy and thus, 
pursuant to the Supreme Court's decision in Katz v. United 
States,\22\ the government must establish probable cause to 
search email contents or provide prior notice to allow the 
subject of the search to obtain judicial review.\23\ While this 
decision has not been codified in legislation, the holding has 
chilled usage of section 2705(a) by the government.
---------------------------------------------------------------------------
    \22\Katz v. United States, 389 U.S. 347.
    \23\United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).
---------------------------------------------------------------------------

                      II. NEED FOR THE LEGISLATION

A. Government Overuse of NDOs

    Experts agree that the government liberally requests non-
disclosure orders when it files for a warrant or order under 18 
U.S.C. Sec.  2703. While there is little data publicly 
available, and there is no requirement for the federal 
government to report on its use of sections 2703 and 2705, 
reports from service providers can provide some idea. Third 
party cloud and technology companies, such as Google, Apple, 
Microsoft, and Verizon, are the typical targets of gag orders 
under 18 U.S.C. Sec.  2705(b).\24\ When the government obtains 
one of these orders from a court, the company is unable to 
alert their customer or user that the government is accessing 
their emails. Microsoft, for example received 2,400 to 3,500 
secrecy orders each year between 2016 and 2021--an average of 
7-10 per day, ``representing one-quarter to one-third of all 
the legal demands''' it received.\25\
---------------------------------------------------------------------------
    \24\Eve Burton, Written Testimony Before the House Judiciary 
Committee, House Cmte. on the Judiciary, Jun. 30, 2021.
    \25\Tom Burt, Written Testimony Before the House Judiciary 
Committee, House Cmte. on the Judiciary, Jun. 30, 2021.
---------------------------------------------------------------------------
    Experts on the Department's use of the Stored 
Communications Act also generally agree that the process to 
obtain an NDO has become a box-checking exercise. As 
communication over technology increased, so has the 
government's reliance on searches under 18 U.S.C. Sec.  2703, 
with ``an increased aggressiveness by DOJ in more cases to 
pursue those records it believes will advance its 
investigations, notwithstanding the rights on the other side of 
the balance.''\26\ With those searches have come a flood of NDO 
requests. During a June 30, 2021 hearing on ``Secrecy Orders 
and Prosecuting Leaks: Potential Legislative Responses to Deter 
Prosecutorial Abuse of Power'' before the House Judiciary 
Committee, Congresswoman Jayapal (D-WA) asked the four 
witnesses to rate the process to obtain an NDO ``on a scale of 
one to 10, of one being a rubber stamp and 10 being a real 
process that protects our civil liberties.''\27\ Every witness 
responded two or below, including one witness who gave the 
process a zero.\28\
---------------------------------------------------------------------------
    \26\Eve Burton, Written Testimony Before the House Judiciary 
Committee, House Cmte. on the Judiciary, Jun. 30, 2021.
    \27\Hearing, ``Secrecy Orders and Prosecuting Leaks: Potential 
Legislative Responses to Deter Prosecutorial Abuse of Power,'' House 
Cmte. on the Judiciary, Jun. 30, 2021.
    \28\Id.
---------------------------------------------------------------------------
    On October 19, 2017, Deputy Attorney General Rod Rosenstein 
issued a memorandum regarding DOJ policy towards applications 
for orders under section 2705(b).\29\ In the document, the 
Department outlined the requirements for DOJ prosecutors to 
follow beyond the stated premise that ``each 2705 order should 
have an appropriate factual basis and each order should extend 
only as long as necessary to satisfy the government's 
interest.''\30\ These changes included: (1) that prosecutors 
``conduct an individual and meaningful assessment'' to 
determine the need for a protective order; (2) that 
applications are tailored to the specific facts of the case 
with written analysis applying the law; and (3) a one year time 
limit to any order sought under section 2705(b), among 
others.\31\
---------------------------------------------------------------------------
    \29\Rod Rosenstein, ``Policy Regarding Applications for Protective 
Orders Pursuant to 18 U.S.C. 2705(b).'' Dept. of Justice, Oct. 19, 
2017.
    \30\Id.
    \31\Id.
---------------------------------------------------------------------------
    The update was initially praised by service providers, such 
as Microsoft, which called the memorandum an ``important step'' 
that ensures ``secrecy orders are used only when necessary and 
for defined periods of time.''\32\ Federal magistrate courts 
had maintained that further orders from the court were 
necessary to end a secrecy order,\33\ so the change limiting 
prosecutorial NDO requests to one year was essential to time 
limiting these orders. Microsoft later dropped its lawsuit 
against the Department,\34\ which had alleged that the U.S. 
government had requested secrecy orders for ``2,576 legal 
demands''' over 18 months, 68 percent of which ``contained no 
fixed end date.''\35\ However, during the Committee's June 30, 
2021 hearing, Microsoft Corporate Vice President Tom Burt 
alleged that in spite of the one-year limit, requests for 
secrecy orders have remained high since 2016, with use--and 
court approval--``even for routine investigations without any 
meaningful analysis of either the need for secrecy or the 
orders'' compliance with fundamental constitutional 
rights.''\36\
---------------------------------------------------------------------------
    \32\Brad Smith, ``DOJ acts to curb the overuse of secrecy orders. 
Now it's Congress' turn,'' Microsoft, Oct. 23, 2017. https://
blogs.microsoft.com/on-the-issues/2017/10/23/doj-acts-curb-overuse-
secrecy-orders-now-congress-turn/.
    \33\Hanley Chew, ``Federal Gag Orders Likely to Change,'' IP 
Watchdog, Feb. 18, 2017. https://www.ipwatchdog.com/2017/02/18/federal-
gag-orders-likely-change/id=78326/.
    \34\Lilianna Rembar, ``DOJ Tightens Requirements for Obtaining SCA 
Non-Disclosure Orders,'' Jolt Digest, Nov. 6, 2017. https://
jolt.law.harvard.edu/digest/doj-tightens-requirements-for-obtaining-
sca-non-disclosure-orders.
    \35\Brad Smith, ``Keeping secrecy the exception, not the rule: An 
issue for both consumers and businesses,'' Microsoft, Apr. 14, 2016. 
https://blogs.microsoft.com/on-the-issues/2016/04/14/keeping-secrecy-
exception-not-rule-issue-consumers-businesses/.
    \36\Tom Burt, Written Testimony Before the House Judiciary 
Committee, House Cmte. on the Judiciary, Jun. 30, 2021.
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    B. Use Against Journalists and Members of Congress
    Presidential administrations have attempted to crack down 
on classified leaks to media outlets since the Nixon era. Both 
Presidents George W. Bush and Barack Obama sought journalists' 
records through the Espionage Act to investigate leaks to the 
press. The Bush Administration, after the September 11, 2001 
terrorist attacks, used the National Security Agency (NSA) to 
surveil Americans without warrants. It is unclear to this day 
how far the Bush DOJ went to surveil journalists. The Obama 
Administration pursued more leaks through litigation than all 
of his predecessors combined.\37\ During that time period, DOJ 
used subpoenas and the court system to pursue journalists' 
records. Because DOJ policy did not prohibit prosecutors from 
asking for secrecy orders without an end date until 2017, it is 
unknown how many other cases of journalists searched under 18 
U.S.C Sec.  2703 might exist.
---------------------------------------------------------------------------
    \37\Calvin Woodward and Christopher Rugaber, AP FACT CHECK: Obama 
was harsh against leakers, AP, Sep. 11, 2018.
---------------------------------------------------------------------------
    The use of non-disclosure orders by the Trump 
Administration to prevent email service providers from alerting 
their clients of the government's search is the most recent 
example of NDO use against the press. On May 7, 2021, the 
Washington Post reported that the Justice Department seized 
three of its journalists' phone records during 2020 and 
attempted to obtain their emails.\38\ On May 20, 2021, CNN 
disclosed that DOJ also sought journalist Barbara Starr's phone 
and non-content email records in 2020.\39\ Attorneys for CNN 
challenged the subpoena before agreeing to a limited deal on 
January 26, 2021, which included a ``limited set of e-mail 
logs.''\40\ The court also granted the gag order request on the 
CNN executives.\41\
---------------------------------------------------------------------------
    \38\Devlin Barrett, Trump Justice Department secretly obtained Post 
reporters' phone records, WASH. POST, May 7, 2021.
    \39\Adam Goldman, Trump Justice Dept. Seized CNN Reporter's Email 
and Phone Records, N.Y. TIMES, May 20, 2021.
    \40\Katelyn Polantz and Evan Perez, Trump administration pursued 
CNN reporter's records in months-long secret court battle, CNN, Jun. 9, 
2021.
    \41\Id.
---------------------------------------------------------------------------
    On June 2, 2021, the New York Times reported that DOJ 
obtained a court order to seize four of its reporters' phone 
records.\42\ Google was placed under a gag order and unable to 
notify the Times.\43\ On June 10, 2021, it was then reported 
that DOJ subpoenaed Apple for phone and email records from 2017 
and early 2018.\44\ This request swept up the information of 
Rep. Adam Schiff (D-CA), Rep. Eric Swalwell (D-CA), 
congressional aides, and their family members.\45\ Apple's 
subpoena was issued on February 6, 2018 and requested 
information from 73 phone numbers and 36 email addresses.\46\ 
Finally, on June 13, 2021, the New York Times reported that DOJ 
subpoenaed Apple for information on accounts belonging to White 
House Counsel Don McGahn and his wife.\47\ The company was 
prevented from disclosing the subpoena to Mr. McGahn until May 
2021.\48\ The legal battle for emails continued throughout the 
early months of the Biden Administration. CNN settled with DOJ 
on January 26th, 2021.\49\ DOJ, however, continued in its legal 
battle with Google and the New York Times well into the first 
quarter of the year.\50\ This included requested--and granted--
renewals of the secrecy orders preventing the public and 
affected journalists from being made aware of the seizure of 
their records.
---------------------------------------------------------------------------
    \42\Charlie Savage and Katie Benner, Trump Administration Secretly 
Seized Phone Records of Times Reporters, N.Y. TIMES, June 2, 2021.
    \43\Charlie Savage and Katie Benner, U.S. Waged Secret Legal Battle 
to Obtain Emails of 4 Times Reporters, N.Y. TIMES, Jun. 9, 2021.
    \44\Katie Benner, et al., Hunting Leaks, Trump Officials Focused on 
Democrats in Congress, N.Y. TIMES, June 10, 2021; Manu Raju, et al., 
Trump Justice Department subpoenaed Apple for data from House 
Intelligence Committee Democrats, sources say, CNN, June 10, 2021.
    \45\Id.
    \46\Id.
    \47\Michael S. Schmidt & Charlie Savage, Apple Is Said to Have 
Turned Over Data on Trump's White House Counsel in 2018, N.Y. TIMES, 
June 13, 2021.
    \48\Id.
    \49\Katelyn Polantz and Evan Perez, Trump administration pursued 
CNN reporter's records in months-long secret court battle, CNN, Jun. 9, 
2021.
    \50\Charlie Savage and Katie Benner, U.S. Waged Secret Legal Battle 
to Obtain Emails of 4 Times Reporters, N.Y. TIMES, Jun. 9, 2021.
---------------------------------------------------------------------------
    On June 5, 2021, the Biden Administration announced that it 
would not seek journalists' records.\51\ On June 11, 2021, the 
DOJ Inspector General announced it was ``initiating a review of 
DOJ's use of subpoenas and other legal authorities to obtain 
communication records of Members of Congress and affiliated 
persons, and the news media . . . The review will examine the 
Department's compliance with applicable DOJ policies and 
procedures, and whether any such uses, or the investigations, 
were based upon improper considerations.'' Attorney General 
Merrick Garland has asked the Deputy Attorney General to 
``evaluate and strengthen the department's existing policies 
and procedures for obtaining records of the Legislative 
branch.''\52\ Notably, this is not a commitment to evaluate the 
Department's policies and procedures for obtaining records from 
the press or its use of secrecy orders. Furthermore, any 
changes made by DOJ can be reversed by later administrations.
---------------------------------------------------------------------------
    \51\Veronica Stracqualursi, Biden's Justice Department says it will 
no longer seize reporters' records for leak investigations, CNN, Jun. 
5, 2021.
    \52\Statement from Attorney General Merrick B. Garland, Dept. of 
Justice, June 14, 2021. https://www.justice.gov/opa/pr/statements-
attorney-general-merrick-b-garland.
---------------------------------------------------------------------------
    Finally, Project Veritas--an organization run by CEO James 
O'Keefe and known for targeting journalists, politicians, and 
political organizations with undercover recordings and ambush 
interviews--revealed in a court filing on March 22, 2022 that 
it had been the subject of an electronic records search under 
18 U.S.C. Sec.  2703(d) between November 2020 and April 
2021.\53\ Project Veritas is under investigation by--and in a 
protracted legal battle with--DOJ into how it came into 
possession of the diary of the daughter of then-Presidential 
Candidate Joe Biden in October 2020.\54\ In conjunction with 
its requests to compel disclosure of the electronic records of 
Project Veritas-related emails, the government also requested 
and obtained so-called gag orders on Project Veritas' email 
service provider, Microsoft, under 18 U.S.C. 2705(b), 
preventing any disclosure of the search from Microsoft to 
Project Veritas.\55\ These secrecy orders were extended by DOJ 
prosecutors, ``after the government's diary investigation had 
long been a matter of public record such that any purported 
grounds for the nondisclosure orders became non-existent.''\56\
---------------------------------------------------------------------------
    \53\Letter, In re Search Warrant dated November 5, 2021, Case No. 
21-MC-00813 (AT), Mar. 22, 2022.
    \54\Michael S. Schmidt and Adam Goldman, ``Project Veritas Says 
Justice Dept. Secretly Seized Its Emails,'' N.Y. TIMES, Mar. 22, 2022.
    \55\Id.
    \56\Letter, In re Search Warrant dated November 5, 2021, Case No. 
21-MC-00813 (AT), Mar. 22, 2022.
---------------------------------------------------------------------------

                            III. CONCLUSION

    H.R. 7072 would restore constitutional protections into the 
non-disclosure order process. When the government obtains a 
search order under the Stored Communications Act, it often has 
no obligation to tell the subject that their email records will 
be searched, and the government can use 2705(b) to prohibit the 
subject's service provider from informing their customer of the 
search--even when it's legally required under a user contract. 
The provisions of H.R. 7072 would ensure that the government 
can only obtain secrecy orders prohibiting service providers 
from speaking freely to their customers when it is truly 
necessary. By amending 18 U.S.C. 2705(b) to require that the 
courts issue a written decision as to why an NDO is necessary, 
time-limit secrecy orders to 60 days, and allow service 
providers standing to challenge non-disclosure orders, H.R. 
7072 would ensure Americans' data is protected from government 
overreach.

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the following hearing was used to consider H.R. 7072:
    On June 30, 2021, the House Committee on the Judiciary held 
a hearing entitled, ``Secrecy Orders and Prosecuting Leaks: 
Potential Legislative Responses to Deter Prosecutorial Abuse of 
Power.'' The witnesses at the hearing were: Tom Burt, Corporate 
Vice President, Customer Security & Trust, Microsoft 
Corporation; Eve Burton, Executive Vice President & Chief Legal 
Officer, Hearst Corporation; Lynn Oberlander, Of Counsel, 
Ballard Spahr LLP; and Jonathan Turley, J.B. and Maurice C. 
Shapiro Professor of Public Interest Law, The George Washington 
University Law School. The hearing examined the applicable law 
and DOJ policies and procedures to determine what, if any, 
action Congress can or should take to address concerns over 
potential abuse of DOJ's authority to conduct investigations of 
unauthorized disclosures of classified information and its 
overuse of secrecy orders. The witnesses discussed overuse of 
non-disclosure orders by DOJ, including the effects of such 
overuse on the freedoms of the press.

                        Committee Consideration

    On April 6, 2022, the Committee met in open session and 
ordered the bill, H.R. 7072, favorably reported, as amended, by 
a voice vote, a quorum being present.

                            Committee Votes

    No roll call votes occurred during the Committee's 
consideration of H.R. 7072.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of House rule X, are incorporated in the descriptive portions 
of this report.

                Committee Estimate of Budgetary Effects

    Pursuant to clause 3(d)(1) of House rule XIII, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(2) of House rule XIII and section 
308(a) of the Congressional Budget Act of 1974, and pursuant to 
clause (3)(c)(3) of House rule XIII and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received from the Director of the Congressional Budget 
Office a budgetary analysis and a cost estimate of this bill.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 7072 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 7072 would amend section 2705 of United 
States Code title 18 to establish standards necessary for 
courts to: (1) grant a government request to delay their 
responsibility to notify the subject of an electronic 
communications search that their records were searched and (2) 
grant a government request for a non-disclosure order, 
prohibiting the search subject's service provider from 
informing the subject of the search. It would also add a third 
section, to require annual reports from the Attorney General to 
Congress on the use of searches under section 2703 of the 
United States Code title 18.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 7072 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clause 9(d), 
9, or 9(f) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short Title. This section sets forth the short 
title of the bill as the ``NDO Fairness Act.''
    Sec. 2. Delay of Notification. This section revises 18 
U.S.C. Sec.  2705(a) to raise the standard for courts to grant 
a government request to delay notification to the subject of a 
search. It stipulates that requests should only be granted in 
cases where there are specific and articulable facts supported 
by written findings of fact and conclusions of law that the 
notification will, by a substantial likelihood, result in 
endangering the safety of an individual, flight from 
prosecution, destruction of evidence, intimidation of 
witnesses, or otherwise jeopardize an investigation or unduly 
delay a trial. Under this section, a governmental entity may 
still request a notification delay, but it cannot exceed 60 
days, and extensions are similarly permitted but time-limited 
to not more than 60 days. It also stipulates the government's 
obligation to the subject of a search after the expiration of 
the delay, and requires the government to deliver a copy of the 
order to the customer by at least 2 methods of communication 
within 72 hours of the expiration of a delay, including notice 
of the specific nature of the inquiry, the information that was 
supplied to or requested by the governmental entity, the 
existence of the delay, the identity of the court authorizing 
the delay, and the legal basis for the delay. During the 
following 180 days after expiration of the delay period, the 
subject of the order can also request a copy of the disclosed 
information or a written certification that no information was 
disclosed.
    Sec. 3. Preclusion of Notice. Section 3 revises 18 U.S.C. 
Sec.  2705(b). It governs delays of notification for 
governmental entities seeking a warrant under 18 U.S.C. Sec.  
2703. In cases where a governmental entity is not required to 
notify the customer or subscriber, it may apply for a court 
order directing a provider not to notify another person of the 
existence of an order under section 2703 for a maximum of 60 
days. A court may only grant a request for a delay or extension 
in cases where there are specific and articulable facts 
supported by written findings of fact and conclusions of law, 
applying a strict scrutiny standard, that the notification 
will, by a substantial likelihood, result in endangering the 
safety of an individual, flight from prosecution, destruction 
of evidence, intimidation of witnesses, or otherwise jeopardize 
an investigation or unduly delay a trial. There must also be no 
less restrictive alternative, and the order must be narrowly 
tailored. Delays or extensions under section 3 must also meet 
the same standard and are time-limited to not more than 60 
days. The government must notify the court within 72 hours of 
any change in the need for the order.
    Under these changes, providers under section 3 have the 
capacity to challenge orders when they do not meet the 
requirements for a delay or where compliance would be 
unreasonable or unlawful. During appeal, any required 
disclosure is stayed pending the resolution of a filed 
challenge unless a court determines otherwise. A court's 
decision on a challenge is a final appealable order.
    Service providers are permitted to disclose the existence 
of an order to individuals necessary for compliance, attorneys 
for legal advice, and any other person determined by the court. 
Any person who receives disclosure is bound by the same non-
disclosure requirements as the entity that provided the 
information.
    Service of a provider shall include a copy of the warrant, 
order, or subpoena to which the non-disclosure order applies. 
Within 72 hours of the expiration of a delay, the government 
must deliver a copy of the order to the customer by at least 2 
methods of communication, including notice of the specific 
nature of the inquiry, the information that was supplied to or 
requested by the governmental entity, the existence of the 
delay, the identity of the court authorizing the delay, and the 
legal basis for the delay. The customer may also request, 
during the next 180 days, a copy of the disclosed information 
or a written certification that no information was disclosed.
    Sec. 4. Additional Provisions Regarding Delayed Notice. 
Section 4 creates a new section at the end of section 2705 that 
requires the Attorney General to report to the House and Senate 
Judiciary Committees on a yearly basis the number of customers 
targeted for a 2703 order, the number of applications for a 
delay of notification, the number of granted, extended, or 
denied orders, the number of orders targeting a member of the 
news media or conduct related to First Amendment protected 
activities, and the number of arrests, trials and convictions--
including the offenses--resulting from the orders.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE




           *       *       *       *       *       *       *
PART I--CRIMES

           *       *       *       *       *       *       *


      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *



Sec. 2705. Delayed notice

  [(a) Delay of Notification.--(1) A governmental entity acting 
under section 2703(b) of this title may--
          [(A) where a court order is sought, include in the 
        application a request, which the court shall grant, for 
        an order delaying the notification required under 
        section 2703(b) of this title for a period not to 
        exceed ninety days, if the court determines that there 
        is reason to believe that notification of the existence 
        of the court order may have an adverse result described 
        in paragraph (2) of this subsection; or
          [(B) where an administrative subpoena authorized by a 
        Federal or State statute or a Federal or State grand 
        jury subpoena is obtained, delay the notification 
        required under section 2703(b) of this title for a 
        period not to exceed ninety days upon the execution of 
        a written certification of a supervisory official that 
        there is reason to believe that notification of the 
        existence of the subpoena may have an adverse result 
        described in paragraph (2) of this subsection.
  [(2) An adverse result for the purposes of paragraph (1) of 
this subsection is--
          [(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) The governmental entity shall maintain a true copy of 
certification under paragraph (1)(B).
  [(4) Extensions of the delay of notification provided in 
section 2703 of up to ninety days each may be granted by the 
court upon application, or by certification by a governmental 
entity, but only in accordance with subsection (b) of this 
section.
  [(5) Upon expiration of the period of delay of notification 
under paragraph (1) or (4) of this subsection, the governmental 
entity shall serve upon, or deliver by registered or first-
class mail to, the customer or subscriber a copy of the process 
or request together with notice that--
          [(A) states with reasonable specificity the nature of 
        the law enforcement inquiry; and
          [(B) informs such customer or subscriber--
                  [(i) that information maintained for such 
                customer or subscriber by the service provider 
                named in such process or request was supplied 
                to or requested by that governmental authority 
                and the date on which the supplying or request 
                took place;
                  [(ii) that notification of such customer or 
                subscriber was delayed;
                  [(iii) what governmental entity or court made 
                the certification or determination pursuant to 
                which that delay was made; and
                  [(iv) which provision of this chapter allowed 
                such delay.
  [(6) As used in this subsection, the term ``supervisory 
official'' means the investigative agent in charge or assistant 
investigative agent in charge or an equivalent of an 
investigating agency's headquarters or regional office, or the 
chief prosecuting attorney or the first assistant prosecuting 
attorney or an equivalent of a prosecuting attorney's 
headquarters or regional office.
  [(b) Preclusion of Notice to Subject of Governmental 
Access.--A governmental entity acting under section 2703, when 
it is not required to notify the subscriber or customer under 
section 2703(b)(1), or to the extent that it may delay such 
notice pursuant to subsection (a) of this section, may apply to 
a court for an order commanding a provider of electronic 
communications service or remote computing service to whom a 
warrant, subpoena, or court order is directed, for such period 
as the court deems appropriate, not to notify any other person 
of the existence of the warrant, subpoena, or court order. The 
court shall enter such an order if it determines that there is 
reason to believe that notification of the existence of the 
warrant, subpoena, or court order will result in--
          [(1) endangering the life or physical safety of an 
        individual;
          [(2) flight from prosecution;
          [(3) destruction of or tampering with evidence;
          [(4) intimidation of potential witnesses; or
          [(5) otherwise seriously jeopardizing an 
        investigation or unduly delaying a trial.]
  (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, 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.
  (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).
          (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, 
                        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.
  (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 section 2705;
          (3) the aggregate number of such orders either 
        granted, extended, or denied;
          (4) the aggregate number of such orders targeting 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 
        such orders 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).

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