Press Releases

Washington, D.C. - Today, the House of Representatives passed H.R. 7072, the NDO Fairness Act, which will protect the due process rights of all Americans in the face of excessive government surveillance and data collection. This bipartisan legislation, which passed by voice vote, was introduced by House Judiciary Committee Chair Jerrold Nadler (D-NY) and Congressman Scott Fitzgerald (R-WI). H.R. 7072 passed out of the House Judiciary Committee by unanimous voice vote on April 6, 2022. Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) introduced the senate companion, S. 4373, on June 9, 2022.

Under current law, prosecutors can request a person’s electronic communications data, such as their e-mail and phone records, even when the subject of the search is not suspected of wrongdoing. In these searches, prosecutors often request an accompanying non-disclosure order (NDO) to block service providers from notifying their customers about the search and preventing the person being investigated from challenging the order in court.

NDOs were subject to increased scrutiny after it was revealed last year that prosecutors used them in electronic searches of Members of Congress and major news outlets, but abuse of secrecy orders is not limited to Congress—schools, local governments, Fortune 500 companies, and countless others have had their data swept up by investigators looking to sidestep the basic protections afforded to Americans in criminal investigations. H.R. 7072 eliminates the rubber-stamp process that has governed email and phone records requests for far too long by requiring prosecutors demonstrate why there is a need to withhold information from American citizens.  

“In the 21st century, federal prosecutors no longer need to show up to your office. They just need to raid your virtual office. They do not have to subpoena journalists directly. They just need to go to the cloud,” said Chairman Nadler. “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.”

The NDO Fairness Act would insert necessary guardrails by amending 18 U.S.C. 2705 to:

• Require a written determination from the court finding a non-disclosure order necessary to prevent a substantially likely adverse result.
• Provide for strict scrutiny analysis to grant a gag order request under 18 U.S.C. 2705(b).
• Establish a 30-day limit for gag orders, with the opportunity for additional 30-day extensions.
• Require notice be given to the customer within 72 hours of the expiration of the delay, including what information was disclosed.
• Allow providers to contest gag orders in court.

Full text of the legislation is available here.