WASHINGTON – U.S. Senators Chris Coons (D-Del.) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee, introduced the NDO Fairness Act to limit the federal government’s ability to access electronic data without a customer’s knowledge. The bill would reform the process by which the federal government can obtain a non-disclosure order (NDO) when executing a warrant for personal records from companies like Apple, Microsoft, or Meta during a criminal investigation. Congressmen Jerrold Nadler (D-N.Y.) and Scott Fitzgerald (R-Wis.) introduced the bill in the House of Representatives, where it passed unanimously.

“The Fourth Amendment protects Americans from unreasonable searches and seizures, but individuals can only assert their rights if they are aware that their electronic records have been collected,” said Senator Coons. “The current bar for granting non-disclosure orders is too low, and government requests for secrecy are often granted even when they’re not justified by the facts on the ground. The NDO Fairness Act will ensure that NDOs are only issued in circumstances requiring secrecy and will better protect the rights of Americans.”

“The Fourth Amendment protects our right to be free from unreasonable searches and seizures, including the search of our private electronic communications,” said Senator Lee. “Americans deserve to know when the government surveils these communications. This bill strikes the right balance between protecting Americans’ privacy and providing needed transparency while allowing judges to grant non-disclosure orders when necessary to protect others from harm or preserve an ongoing investigation.”

“In the 21st century, federal prosecutors no longer need to show up to your office,” said Congressman Nadler. “They just need to raid your virtual office. They do not have to subpoena journalists directly. They just need to go to the cloud. And rather than providing Americans with meaningful notice that their private electronic records are being accessed in a criminal investigation, the Department hides behind its ability to ask third-party providers directly. They deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret. The House’s bipartisan passage of H.R. 7072 is a crucial step towards limiting the Department of Justice’s ability to abuse a little-known process that allows prosecutors to obtain gag orders when secretly trying to obtain a person’s electronic communications data.”

“As a member of the Judiciary Committee, protecting Americans’ right to privacy from their government has been one of my top priorities,” said Congressman Fitzgerald. “The NDO Fairness Act does precisely that – the bill bolsters privacy protections and provides a much-needed check on federal surveillance authority. I was proud to introduce this bill in the House and see it pass with overwhelming support, and I am grateful to my Senate colleagues for helping to push this legislation ahead!”

Under the Stored Communications Act, the U.S. government may obtain a warrant to compel electronic communications service providers to disclose customers’ personal records. The government can also obtain an NDO prohibiting the provider from notifying the customer of the government’s request if there is reason to believe that such notice might jeopardize the investigation. Although NDOs were originally intended to be used only in a small subset of investigations that require secrecy, large tech companies now receive thousands of NDOs per year. The current process for obtaining an NDO leaves little room for judicial review or opportunity for providers to contest the validity of an NDO.

The NDO Fairness Act would reform the process for granting NDO applications by:

  • Raising the standard of proof the government must satisfy before an NDO can be issued from the current “reason to believe” standard to a standard of more likely than not, under which the government must show that a denial of the request for an NDO will have a specific adverse result; 
  • Requiring the government to state in its application whether the target of the search is aware of the search or investigation and whether the target is suspected of the criminal activity under investigation;
  • Requiring the court to issue a written determination when granting an NDO application;
  • Requiring that the NDO be narrowly tailored;
  • Requiring that the NDO be issued initially for no more than 90 days with the option to request 90-day extensions, with exceptions for offenses involving child sexual abuse material or similar offenses;
  • Affording service providers an opportunity to file a motion to vacate or modify the NDO; and
  • Requiring the government to notify the court within 14 days if the need for the NDO changes materially.

The NDO Fairness Act has been endorsed by the Rape, Abuse & Incest National Network (RAINN), Reform Government Surveillance, and the Project for Privacy and Surveillance Accountability.

A one-pager on the bill is available here, and a section-by section summary is available here.

The text of the bill is available here.