[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\
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    \1\18 U.S.C. Sec. 2701-2712.
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    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\
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    \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).
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    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.
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    \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).
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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\
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    \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.
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            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\
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    \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).
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    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\
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    \12\Id.; DOJ Manual 9-13.700--Applications for Protective Orders 
Pursuant to 18 U.S.C. Sec. 2705(b).
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    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\
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    \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).
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    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\
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    \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).
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    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\
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    \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).
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            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\
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    \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).
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            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\
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    \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).
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            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\
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    \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).
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    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.
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    \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).
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    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\
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    \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).
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    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\
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    \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).
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    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\
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    \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.
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    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\
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    \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).
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    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\
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    \51\Press Release, ACLU COMMENT ON ALLEGATIONS OF FEDERAL LAW 
ENFORCEMENT SECRETLY ACCESSING PROJECT VERITAS' EMAILS, ACLU (Mar. 22, 
2022).
    \52\Id.
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                        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\
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    \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).
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    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




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PART I--CRIMES

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

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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).

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