[House Report 118-54]
[From the U.S. Government Publishing Office]
118th Congress } { REPORT
HOUSE OF REPRESENTATIVES
1st Session } { 118-54
======================================================================
NDO FAIRNESS ACT
_______
May 15, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Jordan, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3089]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3089) to amend title 18, United States Code, to
modify delayed notice requirements, and for other purposes,
having considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 9
New Budget Authority and Tax Expenditures........................ 9
Congressional Budget Office Cost Estimate........................ 9
Committee Estimate of Budgetary Effects.......................... 9
Duplication of Federal Programs.................................. 9
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 10
Federal Mandates Statement....................................... 10
Advisory Committee Statement..................................... 10
Applicability to Legislative Branch.............................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 12
Purpose and Summary
H.R. 3089, the NDO Fairness Act, introduced by Rep. Scott
Fitzgerald (R-WI), would amend Title II of the Electronic
Communications Privacy Act, known as the Stored Communications
Act. The bill sets limits on when a governmental entity may
delay notifying an individual after accessing the individual's
private electronic communications (e.g., email) and after a
governmental entity obtains a nondisclosure order for a service
provider to prevent the service provider from notifying the
individual that their data has been subpoenaed.
Background and Need for the Legislation
A. BACKGROUND
i. The Stored Communications Act
In 1986, Congress enacted the Electronic Communications
Privacy Act (ECPA) to prevent unauthorized government access to
private electronic communications (e.g., email). Title II of
the ECPA, the Stored Communications Act (SCA), focuses on the
privacy of, and government access to, stored electronic
communications--often in the possession of companies like
Google, Apple, Microsoft, or Verizon.\1\
---------------------------------------------------------------------------
\1\18 U.S.C. Sec. 2701-2712.
---------------------------------------------------------------------------
Two key parts of the SCA are now codified in sections 2703
and 2705 of title 18. Under section 2703, if the government
issues a subpoena, obtains a search warrant, or obtains a court
order, the government may access the contents of electronic
communications held by a service provider, in some cases
without providing notice to the person whose communications are
being seized and examined.\2\ Section 2703(d) authorizes a
court to order a service provider to produce electronic
communications to the government if the government has shown
specific and articulable facts sufficient to establish
reasonable grounds to believe that the contents it seeks are
relevant and material to an ongoing criminal investigation.\3\
However, some courts have held that this ``reasonable grounds''
standard is less strict than ``probable cause'' and may be
constitutionally insufficient in some circumstances.\4\ In
addition, subsection 2703(d) ``does not even require a
prosecutor to provide facts justifying the need for secrecy.
The template merely blindly asserts that any disclosure would
`seriously jeopardize' the investigation for a variety of
boilerplate reasons.''\5\
---------------------------------------------------------------------------
\2\18 U.S.C. Sec. 2703.
\3\18 U.S.C. Sec. 2703(d).
\4\Charles Doyle, Privacy: An Overview of the Electronic
Communications Privacy Act, at 42, Cong. Research Serv., (Oct. 9,
2012); United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).
\5\Secrecy Orders and Prosecuting Leaks: Potential Legislative
Responses to Deter Prosecutorial Abuse of Power: Hearing Before the H.
comm. on the Judiciary, 117th Cong. (2021) (written testimony of Tom
Burt, Corporate Vice President, Customer Security & Trust, Microsoft
Corp. at 3).
---------------------------------------------------------------------------
Section 2705 consists of two central parts. Subsection (a)
authorizes the government to delay providing notice to a
subscriber for up to 90 days, which may be extended repeatedly,
if the government shows that there is ``reason to believe''
that notification may have an adverse result (e.g., danger to
safety, or destruction of evidence).\6\ Orders signed by some
judges may only include ``a cursory assertion that the
government has satisfied any or all of the statutory factors
authorizing secrecy.''\7\ Subsection (b) allows for additional
secrecy by prohibiting the service provider from disclosing the
government's access to anyone and subsection (b) does not limit
the duration of a nondisclosure order. The nondisclosure order
may be issued for ``such period as the court deems
appropriate.''\8\ This open-endedness means that a service
provider could be indefinitely prohibited from notifying
affected customers about the government's access to private
user data.
---------------------------------------------------------------------------
\6\18 U.S.C. Sec. 2705(a).
\7\Secrecy Orders and Prosecuting Leaks: Potential Legislative
Responses to Deter Prosecutorial Abuse of Power: Hearing Before the H.
comm. on the Judiciary, 117th Cong. (2021) (written testimony of Tom
Burt, Corporate Vice President, Customer Security & Trust, Microsoft
Corp. at 3).
\8\18 U.S.C. Sec. 2705(b).
---------------------------------------------------------------------------
ii. Overview of Nondisclosure Orders and Department of Justice Policies
and Procedures
a. The Department of Justice's Use of Nondisclosure Orders
The Department of Justice's (DOJ) excessive use and
potential abuse of nondisclosure orders is rampant and an
ongoing issue. The DOJ often uses court orders to prohibit
service providers from notifying their customers that the
government has seized their emails and other private
information. Service providers are then left with little to no
recourse to contest the orders, because it is up to the court
as to when, if ever, to remove the order. At times, courts
grant orders ``even for routine investigations without any
meaningful analysis of either the need for secrecy or the
orders'' compliance with constitutional rights.''\9\ According
to Microsoft, ``federal law enforcement has consistently
presented [the company] with 2,400 to 3,500 secrecy orders each
year, or 7-10 per day, representing one-quarter to one-third of
all the legal demands [it] received.''\10\
---------------------------------------------------------------------------
\9\Secrecy Orders and Prosecuting Leaks: Potential Legislative
Responses to Deter Prosecutorial Abuse of Power: Hearing Before the H.
comm. on the Judiciary, 117th Cong. (2021) (written testimony of Tom
Burt, Corporate Vice President, Customer Security & Trust, Microsoft
Corp. at 2).
\10\Id. at 3-4.
---------------------------------------------------------------------------
b. DOJ Policies and Procedures
Under the Trump Administration, in October 2017, then-
Deputy Attorney General Rod Rosenstein issued a memorandum to
DOJ law enforcement components and prosecutors that outlined
the policies required to obtain nondisclosure orders pursuant
to section 2705(b).\11\
---------------------------------------------------------------------------
\11\Memorandum on Policy Regarding Applications for Protective
Orders Pursuant to 18 U.S.C. Sec. 2705(b), U.S. DEP'T OF JUSTICE (Oct.
2017).
---------------------------------------------------------------------------
According to the memorandum, prosecutors who apply for
nondisclosure orders must follow several steps:
1. conduct an individualized and meaningful
assessment of need;
2. tailor the application to include the factual
basis that identifies the need for a gag order,
including the potential for data destruction, risk of
flight, or risk of harm to the public;
3. prosecutors may seek a single order that covers
multiple grand jury subpoenas issued as part of the
same investigation;
4. unless justified by exigent circumstances,
prosecutors may only seek to delay notice for up to one
year;
5. the judge may direct abbreviated or lengthier
periods for orders; and
6. subsequent extensions may be sought if the factors
justifying protection remain.\12\
---------------------------------------------------------------------------
\12\Id.; DOJ Manual 9-13.700--Applications for Protective Orders
Pursuant to 18 U.S.C. Sec. 2705(b).
---------------------------------------------------------------------------
These policies were also added to the DOJ's current Justice
Manual.
iii. DOJ Subpoenas During Leak Investigations
On June 10, 2021, the New York Times reported that DOJ
prosecutors issued a grand jury subpoena on February 6, 2018,
to Apple for data from 73 phone numbers and 36 email addresses
as part of a wide-ranging investigation into the sources behind
leaks of classified information related to the debunked Russia
collusion investigation and other national security
matters.\13\ Twelve accounts included those connected to the
House Permanent Select Committee on Intelligence (HPSCI),
including the former Ranking Member and a former Committee
member, along with some of their staff, former aides, and
family members.\14\ The Times also reported that in 2017, DOJ
sent Microsoft a subpoena related to a personal email account
for a congressional staff member.\15\ In addition, on June 5,
2021, the New York Times revealed that it had been under a gag
order regarding a subpoena for Google to share data of four of
Times reporters.\16\
---------------------------------------------------------------------------
\13\Katie Benner, et al., Hunting Leaks, Trump Officials Focused on
Democrats in Congress, N.Y. Times (Jun. 10, 2021).
\14\Id.
\15\Jack Nicas, et al., In Leak Investigation, Tech Giants Are
Caught Between Courts and Customers, N.Y. Times (Jun. 11, 2021).
\16\Charlie Savage and Katie Benner, U.S. Waged Secret Legal Battle
to Obtain Emails of 4 Times Reporters, N.Y. Times (Jun. 5, 2021).
---------------------------------------------------------------------------
HPSCI apparently learned of the subpoena on May 5, 2021,
when after a three-year gag order expired (initially issued for
one year, then renewed twice), the company alerted the subjects
of the subpoena.\17\ HPSCI members were reportedly ``animated''
during a DOJ briefing and tried to uncover which official
initiated the investigation and subpoena.\18\ The former
Ranking Member and former Committee member called the subpoena
``an attack on the separation of powers.''\19\ The former
Committee member claimed that records of his family members
(including a minor) had been obtained.\20\
---------------------------------------------------------------------------
\17\Jack Nicas, et al., In Leak Investigation, Tech Giants Are
Caught Between Courts and Customers, N.Y. Times (Jun. 11, 2021); See
also, Clare Foran, et al., Justice Department watchdog to investigate
data seizure as House Democrats discuss impacts of leak probe, CNN
(Jun. 11, 2021).
\18\Id.; See also, Manu Raju, et al., Trump Justice Department
subpoenaed Apple for data from House Intelligence Committee Democrats,
sources say, CNN (Jun. 10, 2021).
\19\Rebecca Heilweil, The Trump administration forced Apple to turn
over lawmakers' data. Democrats are outraged, Vox (Jun. 14, 2021).
\20\Manu Raju, et al., Trump Justice Department subpoenaed Apple
for data from House Intelligence Committee Democrats, sources say, CNN
(Jun. 10, 2021).
---------------------------------------------------------------------------
The Wall Street Journal has since confirmed that DOJ
obtained the data as part of its fact-gathering investigation
into congressional staffers leaking classified information,
rather than the lawmakers themselves being targets of the
investigation.\21\ According to the reporting, ``current and
former Justice Department officials described the subpoena as
part of a fact-gathering effort and denied that it was
politically motivated.''\22\ The Journal further reported that
senior DOJ officials at the time the subpoena was issued,
including then-Attorney General Sessions and his deputy,
Rosenstein, have said that they had no knowledge of the
subpoena.\23\ It is unknown whether prosecutors had obtained
the necessary approval to issue the subpoena. In 2018, the DOJ
prosecuted Senate Intelligence Committee staffer James Wolfe
for leaking non-public information about Committee matters to
reporters.\24\
---------------------------------------------------------------------------
\21\Aruna Viswanatha and Sadie Gurman, Trump Justice Department's
Leak Probe Wasn't Aimed at Lawmakers, Wall St. J. (Jun. 23, 2021).
\22\Id.
\23\Id.
\24\Adam Goldman, et al., Ex-Senate Aide Charged in Leak Case Where
Times Reporter's Records Were Seized, N.Y. Times (Jun. 7, 2018).
---------------------------------------------------------------------------
a. Response from Trump-era DOJ officials
On June 11, 2021, during a Politico interview, former
Attorney General William Barr said that he was not aware that
any Members' records were obtained in a leak probe, pointing to
the fact that cases that the Attorney General weighs in on
would have been recommended by career officials in the Criminal
Division and elsewhere in the Department.\25\ He added that
President Trump never directed him to target lawmakers for
investigation, saying that President Trump ``was not aware of
who we were looking at in any of these cases. I never discussed
the leak cases with [President] Trump. He didn't really ask me
any of the specifics.''\26\ Likewise, according to Business
Insider, former Attorney General Sessions and his deputy Rod
Rosenstein have denied knowledge of the subpoena.\27\
---------------------------------------------------------------------------
\25\Id.
\26\Manu Raju, et al., Trump Justice Department subpoenaed Apple
for data from House Intelligence Committee Democrats, sources say, CNN
(Jun. 10, 2021).
\27\Tom Porter, Top Justice Department officials Sessions, Barr and
Rosenstein all deny knowledge of secret subpoenas targeting Democratic
lawmakers, Business Insider (Jun. 13, 2021).
---------------------------------------------------------------------------
b. Congressional response to the news about DOJ's subpoenas
In response to the reporting, then-House Speaker Nancy
Pelosi denounced the investigation, saying, ``These actions
appear to be yet another egregious assault on our democracy
waged by the former president.''\28\ On June 14, 2021, Democrat
Members of the Senate Judiciary Committee wrote Attorney
General Garland for more information, including copies of the
subpoenas and more details on the Office of Legal Counsel's
approval.\29\ That day, Attorney General Garland said that he
directed his deputy Lisa Monaco to bolster the Department's
procedures for obtaining records from Members of Congress,
specifically ``to evaluate and strengthen the department's
existing policies and procedures for obtaining records of the
legislative branch.''\30\ However, actions by the DOJ and FBI
against Project Veritas have raised serious concerns about the
enforcement of the policy that Attorney General Garland
implemented--and President Biden endorsed--against federal law
enforcement seizing records from journalists.\31\
---------------------------------------------------------------------------
\28\Id.
\29\Letter from Richard Durbin, Chairman, S. Comm. on Judiciary, to
Merrick B. Garland, Attorney General (Jun. 14, 2021).
\30\Press Release, Dep't. of Justice, Statement from Attorney
General Merrick B. Garland, (June 14, 2021); See also, Matt Zapotosky,
Garland says Justice Department will strengthen policies for obtaining
lawmakers' records, W. Post (June 14, 2021); See also, Sadie Gurman,
After Apple Subpoenas, Justice Department Rethinks Policies on Getting
Lawmakers' Records, Wall St. J. (June 14, 2021).
\31\Memorandum from Atty Gen. Merrick Garland, U.S. Dep't of
Justice, Use of Compulsory Process to Obtain Information From, or
Records of, Members of the News Media (July 19, 2021); Eric Tucker,
Justice Dept. says it'll no longer seize reporters' records, AP News
(June 5, 2021); Alexandra Jaffe, Biden won't allow Justice Dept. to
seize reporters' records, AP News (May 21, 2021).
---------------------------------------------------------------------------
c. The DOJ's secret actions involving Project Veritas
In the course of Project Veritas' news-gathering activities
in late 2020, the organization obtained a diary purported to
belong to President Biden's daughter.\32\ Project Veritas could
not determine the legitimacy of the diary and chose not to
publish its contents.\33\ Instead, the organization reportedly
handed over the diary to law enforcement.\34\ Then, on November
6, 2021, FBI agents reportedly executed a search of the
residence of Project Veritas founder James O'Keefe in
connection with an investigation relating to the diary.\35\ Two
days prior to the raid of O'Keefe's residence, the FBI
reportedly also searched the homes of two former Project
Veritas associates in connection with an investigation relating
to the diary.\36\
---------------------------------------------------------------------------
\32\James O'Keefe, FBI and Southern District of New York Raid
Project Veritas Journalists' Homesk, Project Veritas (Nov. 5, 2021).
\33\Id.
\34\Id.
\35\Michael S. Schmidt, et al., F.B.I. Searches James O'Keefe's
Home in Ashley Biden Diary Theft Inquiry, N.Y. Times (Nov. 6, 2021).
\36\Amy B. Wang and Devlin Barrett, FBI searches Project Veritas
associates in probe over diary purportedly belonging to Biden's
daughter, Wash. Post (Nov. 5, 2021); Michael S. Schmidt and Adam
Goldman, Project Veritas Tells Judge It Was Assured Biden Diary Was
Legally Obtained, N.Y. Times (Nov. 12, 2021).
---------------------------------------------------------------------------
According to O'Keefe, the Department of Justice requested
that the Project Veritas journalists not disclose the existence
of the warrant.\37\ Yet, within an hour of the FBI's raid, the
New York Times published a story about the search, even though
the search warrant and the subject matter of the search warrant
were apparently part of a grand jury investigation and should
have been nonpublic.\38\ The Times later published information
from confidential and sensitive documents belonging to Project
Veritas, including legal advice obtained relating to its news
gathering activities.\39\ On the same day, a federal judge in
New York ordered the Department to stop extracting and
reviewing the contents of Project Veritas materials that the
FBI seized.\40\ The court's order and the Times's publishing of
nonpublic Project Veritas information has raised questions
about whether any Department employee leaked, or contributed to
the leak of, any nonpublic information as part of this
investigation.
---------------------------------------------------------------------------
\37\James O'Keefe, FBI and Southern District of New York Raid
Project Veritas Journalists' Homes, Project Veritas (Nov. 5, 2021).
\38\Id.
\39\Adam Goldman and Mark Mazzetti, Project Veritas and the Line
Between Journalism and Political Spying, N.Y. Times (Nov. 11, 2021).
\40\Order, In re Search Warrant dated November 5, 2021, 21 MAG
10685 (S.D.N.Y. Nov. 11, 2021).
---------------------------------------------------------------------------
These actions also raise concerns about the enforcement of
the policy that Attorney General Garland implemented just
months before concerning searching and seizing records from
journalists and media organizations. President Biden endorsed
Attorney General Garland's prohibition, saying that it is
``simply, simply wrong'' to confiscate journalists' records and
that he would not allow the Department to do so.\41\ Similarly,
then-Chairman Jerrold Nadler said he was ``genuinely
encouraged'' by Attorney General Garland's new policy and that
he ``look[s] forward to working with'' him ``to make certain
that these changes are codified [in law] and remain the policy
of the Department for years to come.''\42\
---------------------------------------------------------------------------
\41\Eric Tucker, Justice Dept. says it'll no longer seize
reporters' records, AP News (June 5, 2021); Alexandra Jaffe, Biden
won't allow Justice Dept. to seize reporters' records, AP News (May 21,
2021).
\42\Press Release, H. Comm. on the Judiciary, Chairman Nadler
Statement on DOJ Policy Restricting Use of Compulsory Process to Obtain
Journalists' Records, (July 19, 2021).
---------------------------------------------------------------------------
On November 18, 2021, then-Ranking Member Jim Jordan, then-
Ranking Member James Comer, and Senator Ron Johnson wrote to
Attorney General Garland requesting documents and information
about the FBI's raids on residences of individuals connected to
Project Veritas.\43\ To date, the DOJ has yet to respond with
documents. This silence is especially troubling considering new
legal documents that show DOJ secretly accessed emails,
contacts, and other information, to surveil a number of
associates of Project Veritas, while circumventing legal
processes and invading First Amendment protections.\44\
---------------------------------------------------------------------------
\43\Letter from Rep. Jim Jordan et al., Ranking Member, H. Comm. on
the Judiciary, to Merrick B. Garland, Atty Gen., U.S. Dep't of Justice
(Nov. 18, 2022).
\44\Letter from Paul A. Calli et. al., to the Hon. Analisa Torres,
(S.D.N.Y. Mar. 22, 2022); Josh Gerstein, Project Veritas says feds
secretly accessed its emails, Politico (Mar. 22, 2022).
---------------------------------------------------------------------------
On March 22, 2022, lawyers representing Project Veritas
sent a letter to United States District Court Judge Analisa
Torres, in which they noted that from November 2020 to April
2021--and to the FBI's raids in November 2021--prosecutors used
compulsory demands, including secret warrants and nondisclosure
orders, to obtain materials from Microsoft such as email
accounts and contacts of the group's associates.\45\ According
to the letter, the government ``gained unsupervised access to
as many as 150,000 emails and 1,000 contacts.''\46\ Prosecutors
also issued nondisclosure orders to prevent Microsoft from
disclosing that the government had accessed over a year's worth
of emails.\47\
---------------------------------------------------------------------------
\45\Letter from Paul A. Calli et. al., to the Hon. Analisa Torres,
(S.D.N.Y. Mar. 22, 2022).
\46\Id. at 5.
\47\Id. at 2.
---------------------------------------------------------------------------
This unsupervised access occurred after Judge Torres
approved a request to appoint a special master to review
whether materials seized by the November 2021 FBI's raids could
even be used by prosecutors as evidence.\48\ At the time the
DOJ's investigation was revealed publicly, Microsoft requested
that the DOJ lift its gag orders to notify the associates of
Project Veritas who were Microsoft's customers. But the DOJ
refused to do so until Microsoft threatened to file a lawsuit
against DOJ.\49\ The DOJ eventually went to court and requested
that the gag orders be lifted, and the court agreed.\50\
---------------------------------------------------------------------------
\48\Order, In re Search Warrant dated November 5, 2021, 21 MAG
10685 (S.D.N.Y. Nov. 11, 2021).
\49\Letter from Paul A. Calli et. al., to the Hon. Analisa Torres,
(S.D.N.Y. Mar. 22, 2022); Josh Gerstein, Project Veritas says feds
secretly accessed its emails, Politico (Mar. 22, 2022); Michael S.
Schmidt and Adam Goldman, Project Veritas Says Justice Dept. Secretly
Seized Its Emails, N.Y. Times (Mar. 22, 2022).
\50\Michael S. Schmidt and Adam Goldman, Project Veritas Says
Justice Dept. Secretly Seized Its Emails, N.Y. Times (Mar. 22, 2022).
---------------------------------------------------------------------------
Concerned with DOJ's actions, even the American Civil
Liberties Union (ACLU) released a statement that said it was
``deeply troubled by reports that the Department of Justice
obtained secret electronic surveillance orders requiring
sweeping disclosure of `all content' of communications
associated with Project Veritas email accounts, including
attorney-client communications.''\51\ The ACLU's statement
further called for the government to ``immediately suspend its
review of the materials obtained pursuant to its electronic
surveillance orders and fully disclose the extent of its
actions, so that the court can consider appropriate
relief.''\52\
---------------------------------------------------------------------------
\51\Press Release, ACLU COMMENT ON ALLEGATIONS OF FEDERAL LAW
ENFORCEMENT SECRETLY ACCESSING PROJECT VERITAS' EMAILS, ACLU (Mar. 22,
2022).
\52\Id.
---------------------------------------------------------------------------
B. NEED FOR LEGISLATION
On June 29, 2021, in the 117th Congress, the Committee held
a hearing entitled ``Secrecy Orders and Prosecuting Leaks:
Potential Legislative Responses to Deter Prosecutorial Abuse of
Power.''\53\ The hearing covered relevant statutes and the
policies and procedures regarding excessive use of existing
authorities and abuses by the Department of Justice and Federal
Bureau of Investigation related to unwarranted surveillance,
gag orders, and leak investigations. During the hearing,
Professor Jonathan Turley advocated for ``legislative and
policy changes'' on nondisclosure orders saying that they can
``magnify abuses'' and ``allow[] the government to not only
conduct secret searches with little required showings but also
allow[] the government to then prevent others from challenging
its actions to halt possible abuses.''\54\ Other witnesses
similarly supported reforms, particularly to the ECPA, such as
eliminating indefinite secrecy orders or requiring notice to
the subject of a legal demand for data upon the expiration of a
nondisclosure order.\55\
---------------------------------------------------------------------------
\53\Secrecy Orders and Prosecuting Leaks: Potential Legislative
Responses to Deter Prosecutorial Abuse of Power: Hearing Before the H.
comm. on the Judiciary, 117th Cong. (2021).
\54\Id. (written testimony of Jonathan Turley, J.B. and Maurice C.
Shapiro Professor of Public Interest Law, George Washington University
Law School at 6).
\55\Id. (written testimony of Tom Burt, Corporate Vice President,
Customer Security & Trust, Microsoft Corp. at 6).
---------------------------------------------------------------------------
The government's rampant overuse of nondisclosure orders
violates fundamental constitutional rights of all Americans.
Some of these orders do not contain a time limit, creating the
possibility that a subject of a search may never know that the
government was spying on him or her. Courts often rubber stamp
these orders through a process that goes unchallenged.
H.R. 3089 would set important limits on these nondisclosure
orders. The bill requires meaningful judicial review of the
need for secrecy, protects important constitutional rights by
ensuring that courts may only grants nondisclosure orders when
necessary, limits a nondisclosure order to 90 days, only
allowing for an extension if necessary, requires the government
to notify the target of its nondisclosure order within five
business days of the expiration of the order and to provide
detailed information about the order, like the specific nature
of the government's investigation, and allows for a service
provider to challenge the nondisclosure order in court.
Committee Consideration
On May 10, 2023, the Committee met in open session and
ordered the bill, H.R. 3089, favorably reported, by voice vote,
a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
Committee states that no recorded votes were taken during
consideration of H.R. 3089.
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 rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
New Budget Authority and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to the requirements of clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of the Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. The Chairman of the Committee shall cause such
estimate and statement to be printed in the Congressional
Record upon its receipt by the Committee.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such estimate
to be printed in the Congressional Record upon its receipt by
the Committee.
Committee Estimate of Budgetary Effects
With respect to the requirements of clause 3(d)(1) of rule
XIII of the Rules of the House of Representatives, 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.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 3089 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. 3089 would establish new restrictions on
a governmental entity's ability to obtain a nondisclosure order
when obtaining communications from a service provider.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 3089
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House Rule XXI.
Federal Mandates Statement
Pursuant to section 423 of the Unfunded Mandates Reform
Act, the Committee has determined that the bill does not
contain federal mandates on the private sector. The Committee
has determined that the bill does not impose a federal
intergovernmental mandate on state, local, or tribal
governments.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).
Section-by-Section Analysis
Sec. 1. Short Title. Section 1 sets forth the title of this
bill, the ``NDO Fairness Act.''
Sec. 2. Preclusion of Notice. Section 2 amends 18 U.S.C.
2705(b) to include the following paragraphs.
Paragraph (1) Application. Permits a
governmental entity, when seeking access to private
electronic communications, to seek a court order to
direct a service provider or remote computing service
not to disclose to any other person such access for a
period of not more than 90 days. The application shall
state whether the named customer or subscriber whose
information is sought is: (1) aware of the warrant,
order, subpoena, or underlying investigation; and (2)
is suspected of involvement in the commission of the
crime under investigation. An order may not direct, or
otherwise require, a service provider or remote
computing service to notify the court or government of
the expiration of the order.
Paragraph (2) Determination. Prohibits a
court from granting a request for an order or extension
unless the court: (1) determines, in writing, based on
specific and articulable facts, including written
findings of fact and conclusions of law, that the
notification is likely to result in endangering the
safety of an individual, flight from prosecution,
destruction of evidence, intimidation of possible
witnesses, or otherwise jeopardize an investigation or
unduly delay a trial; (2) the order is narrowly
tailored and there is no less restrictive alternative;
and (3) the court has reviewed the individual warrant,
order, or subpoena. The court may consider the nature
of the offense in issuing a determination.
Paragraph (3) Extension. Permits extension
requests by the governmental entity for not more than
90 days for each extension and requires a court make
the same paragraph (2) written determination.
Paragraph (4) Notification of Changed
Circumstances. Requires the governmental entity to
notify the court within a reasonable period of time,
not to exceed 14 days, of any material change in the
need for the court order and requires the court to
reexamine the order accordingly.
Paragraph (5) Opportunity to be Heard.
Permits a court to vacate an order upon petition by a
service provider if the order does not meet the
requirements under paragraph (2) or if compliance would
be unreasonable or otherwise unlawful. The required
disclosure would be stayed, unless the court determines
otherwise, until the court issues a decision, and such
decision would be a final, appealable order.
Paragraph (6) Exception. Permits providers
to disclose the existence of an order to those persons
who are necessary for compliance, attorneys, and any
other person determined by the court.
Paragraph (7) Scope of Nondisclosure. Makes
a person who received a disclosure subject to the same
nondisclosure requirements as the person who received
the order.
Paragraph (8) Supporting Documentation.
Requires the governmental entity to include in the
service of the order to a provider a copy of the
warrant, order, or subpoena to which the nondisclosure
order applies.
Paragraph (9) Expiration of Order Precluding
Notice. Requires the governmental entity to deliver a
copy of the warrant, order, or subpoena to the named
customer or subscriber within 5 business days of
expiration of an order or extension that precludes
notice, including information about the specific nature
of the government inquiry, that information was
requested or provided to the governmental entity, the
existence of the delay by court order, the identity of
the court that authorized the delay, the legal basis
for the delay, and that the governmental entity must
provide upon request by the customer or subscriber a
copy of the disclosed information or a written
certification that no information was disclosed.
Paragraph (10) Copy of Information
Disclosed. Requires the governmental entity, if
requested by the customer or subscriber within 180 days
after expiration of the order, to provide a copy of the
disclosed information (except illicit records, child
sexual abuse material, and other illegal material) or a
written certification that no information was
disclosed.
Paragraph (11) Redactions. Any information
disclosed under paragraphs (9) and (10) may be redacted
if a court finds it necessary to preserve the secrecy
or integrity of an investigation.
Sec. 3. Additional Provisions Regarding Delayed Notice.
Section 3 adds a new subsection (c) to section 2705, which
would require DOJ to submit an annual report to the House and
Senate Judiciary Committees and the Director of the
Administrative Office of the United States Courts providing
information relating to the use of section 2703 and 2705
authorities for each federal judicial district. This
information includes the number of customers or subscribers
targeted for a section 2703 warrant, subpoena, or order, the
number of applications for a delay of notification, preclusion
of notice, and extensions, the number of granted, extended, or
denied orders, the number of orders that target a member of the
news media, and the total number of resulting arrests, trials,
and convictions. The report would also include a description of
the process and the information used to gather the data. The
Administrative Office of the United States Courts is required
to publish the report on its website.
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.]
(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.
(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 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).
* * * * * * *
[all]