II 

118TH CONGRESS 

2D SESSION S. 4037 

To amend title 18, United States Code, to modify delayed notice requirements, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 21, 2024 

Mr. COONS (for himself and Mr. LEE) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

A BILL 

To amend title 18, United States Code, to modify delayed 

notice requirements, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘NDO Fairness Act’’. 

5 SEC. 2. PRECLUSION OF NOTICE. 

6 Section 2705(b) of title 18, United States Code, is 

7 amended to read as follows: 

8 ‘‘(b) PRECLUSION OF NOTICE.— 

9 ‘‘(1) APPLICATION.— 


ssavage on LAPJG3WLY3PROD with BILLS
2 

•S 4037 IS

1 ‘‘(A) IN GENERAL.—A governmental entity 

2 that is seeking a warrant, order, or subpoena 

3 under section 2703, when it is not required to 

4 notify the customer or subscriber, or to the ex5 tent that it may delay such notice pursuant to 

6 subsection (a), may apply to a court for an 

7 order, subject to paragraph (6), directing a pro8 vider of electronic communications service or re9 mote computing service to which a warrant, 

10 order, or subpoena under section 2703 is di11 rected not to notify any other person of the ex12 istence of the warrant, order, or subpoena. 

13 ‘‘(B) LENGTH.— 

14 ‘‘(i) IN GENERAL.—Subject to clause 

15 (ii), an order granted under subparagraph 

16 (A) shall be in effect for a period of not 

17 more than 90 days. 

18 ‘‘(ii) EXCEPTION.—An order granted 

19 under subparagraph (A) shall be in effect 

20 for a period of not more than 1 year if the 

21 nature of the offense for which the govern22 mental entity is seeking a warrant, order, 

23 or subpoena pertains to child sexual abuse 

24 material under section 2256(8), sexual ex25 ploitation of children under section 2251, 


ssavage on LAPJG3WLY3PROD with BILLS
3 

•S 4037 IS

1 or any Federal, State, Tribal, or military 

2 offense that is the substantial equivalent. 

3 ‘‘(C) OTHER REQUIREMENTS.— 

4 ‘‘(i) IN GENERAL.—An application for 

5 an order under subparagraph (A) shall 

6 state, to the best of the applicant’s knowl7 edge, whether the named customer or sub8 scriber whose information is sought by the 

9 warrant, order, or subpoena under section 

10 2703— 

11 ‘‘(I) is aware of the warrant, 

12 order, subpoena, or underlying inves13 tigation; and 

14 ‘‘(II) is suspected of involvement 

15 in the commission of the crime under 

16 investigation. 

17 ‘‘(ii) ORDERS.—An order granted 

18 under subparagraph (A) may not direct, or 

19 otherwise require, a provider of electronic 

20 communications service or remote com21 puting service to provide notification of the 

22 expiration of the order to the court or to 

23 the government entity that sought the 

24 order. 

25 ‘‘(2) DETERMINATION.— 


ssavage on LAPJG3WLY3PROD with BILLS
4 

•S 4037 IS

1 ‘‘(A) IN GENERAL.—The court may not 

2 grant a request for an order made under para3 graph (1), or a request for an extension of such 

4 order made under paragraph (3), unless— 

5 ‘‘(i) subject to subparagraph (B)(ii), 

6 the court issues a written determination, 

7 based on specific and articulable facts and 

8 including written findings of fact and con9 clusions of law, that it is likely that not 

10 granting the request will result in— 

11 ‘‘(I) endangering the life or phys12 ical safety of an individual; 

13 ‘‘(II) flight from prosecution; 

14 ‘‘(III) destruction of or tam15 pering with evidence; 

16 ‘‘(IV) intimidation of potential 

17 witnesses; or 

18 ‘‘(V) otherwise seriously jeopard19 izing an investigation or unduly delay20 ing a trial; 

21 ‘‘(ii) the order is narrowly tailored 

22 and there is no less restrictive alternative, 

23 including notification to an individual or 

24 organization within or providing legal rep25 resentation to the named customer or subVerDate Sep 11 2014 15:42 Apr 06, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4037.IS S4037

ssavage on LAPJG3WLY3PROD with BILLS
5 

•S 4037 IS

1 scriber, that is not likely to result in an 

2 adverse result as described in subclauses 

3 (I) through (V) of clause (i); and 

4 ‘‘(iii) the court has reviewed the indi5 vidual warrant, order, or subpoena issued 

6 under section 2703 to which the order 

7 issued under paragraph (1) applies. 

8 ‘‘(B) NATURE OF THE OFFENSE.— 

9 ‘‘(i) IN GENERAL.—Subject to clause 

10 (ii), the court may consider the nature of 

11 the offense in issuing a determination 

12 under subparagraph (A). 

13 ‘‘(ii) PRESUMPTION.—If the court de14 termines there is a reasonable belief that 

15 the nature of the offense pertains to child 

16 sexual abuse material under section 

17 2256(8), sexual exploitation of children 

18 under section 2251, or any Federal, State, 

19 Tribal, or military offense that is the sub20 stantial equivalent, the court may presume 

21 that 1 or more of the factors described in 

22 subclauses (I) through (V) of subpara23 graph (A)(i) are met and may issue an 

24 order consistent with this subsection withVerDate Sep 11 2014 15:42 Apr 06, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4037.IS S4037

ssavage on LAPJG3WLY3PROD with BILLS
6 

•S 4037 IS

1 out a written decision under subparagraph 

2 (A)(i). 

3 ‘‘(3) EXTENSION.— 

4 ‘‘(A) REQUEST.—A governmental entity 

5 may request 1 or more extensions of an order 

6 granted under paragraph (1) of not more than 

7 90 days for each such extension. 

8 ‘‘(B) WRITTEN DETERMINATION RE9 QUIRED.—The court may grant a request under 

10 subparagraph (A) if the court makes a written 

11 determination in accordance with paragraph 

12 (2)(A). 

13 ‘‘(4) NOTIFICATION OF CHANGED CIR14 CUMSTANCES.—If the need for the order issued 

15 under paragraph (1) or an extension issued under 

16 paragraph (3) changes materially, the governmental 

17 entity that requested the order shall notify the court 

18 within a reasonable period of time (not to exceed 14 

19 days) of the changed circumstances, and the court 

20 shall reassess the order and modify or vacate the 

21 order as appropriate. 

22 ‘‘(5) OPPORTUNITY TO BE HEARD.— 

23 ‘‘(A) IN GENERAL.—Upon an application, 

24 petition, or motion by a provider of electronic 

25 communications service or remote computing 


ssavage on LAPJG3WLY3PROD with BILLS
7 

•S 4037 IS

1 service or person acting on behalf of the pro2 vider to which an order under paragraph (1) or 

3 an extension under paragraph (3) has been 

4 issued, the court may modify or vacate the 

5 order if— 

6 ‘‘(i) the order does not meet require7 ments provided in paragraph (2) or (3); or 

8 ‘‘(ii) compliance with the order is un9 reasonable or otherwise unlawful. 

10 ‘‘(B) STAY OF DISCLOSURE OF NAMED

11 CUSTOMER OR SUBSCRIBER COMMUNICATIONS

12 OR RECORDS.—The obligation of a provider of 

13 electronic communications service or remote 

14 computing service to disclose the information 

15 requested in the warrant, order, or subpoena to 

16 which the order in paragraph (1) applies is 

17 stayed upon the filing of the application, peti18 tion, or motion under this paragraph pending 

19 resolution of the application, petition, or mo20 tion, unless the court with jurisdiction over the 

21 challenge determines, based on a showing by 

22 the governmental entity, that the stay should be 

23 lifted in whole or in part prior to resolution. 

24 ‘‘(C) FINALITY OF ORDER.—The decision 

25 of the court resolving an application, petition, 


ssavage on LAPJG3WLY3PROD with BILLS
8 

•S 4037 IS

1 or motion under this paragraph shall constitute 

2 a final, appealable order. 

3 ‘‘(6) EXCEPTION.— 

4 ‘‘(A) IN GENERAL.—A provider of elec5 tronic communications service or remote com6 puting service to which an order under para7 graph (1) applies, or an officer, employee, or 

8 agent thereof, may disclose information other9 wise subject to any applicable nondisclosure re10 quirement to— 

11 ‘‘(i) those persons to whom disclosure 

12 is necessary in order to comply with the 

13 warrant, order, or subpoena; 

14 ‘‘(ii) an attorney, in order to obtain 

15 legal advice or assistance relating to the 

16 order issued under paragraph (1) or the 

17 warrant, order, or subpoena to which the 

18 order applies; and 

19 ‘‘(iii) any person the court determines 

20 can be notified of the warrant, order, or 

21 subpoena. 

22 ‘‘(B) SCOPE OF NONDISCLOSURE.— 

23 ‘‘(i) RECIPIENTS OF INFORMATION.— 

24 Any person to whom disclosure is made 

25 under subparagraph (A), other than the 


ssavage on LAPJG3WLY3PROD with BILLS
9 

•S 4037 IS

1 governmental entity, shall be subject to the 

2 nondisclosure requirements applicable to 

3 the person to whom the order is issued. 

4 ‘‘(ii) NOTIFICATION.—Any recipient 

5 authorized under this paragraph to disclose 

6 to a person information otherwise subject 

7 to a nondisclosure requirement shall notify 

8 the person of the applicable nondisclosure 

9 requirement. 

10 ‘‘(7) SUPPORTING DOCUMENTATION.—Upon 

11 serving a provider of electronic communications serv12 ice or remote computing service with an order grant13 ed under paragraph (1), or an extension of such 

14 order granted under paragraph (3), the govern15 mental entity shall include a copy of the warrant, 

16 order, or subpoena to which the nondisclosure order 

17 applies. 

18 ‘‘(8) EXPIRATION OF ORDER PRECLUDING NO19 TICE.—Upon expiration of an order issued under 

20 paragraph (1) or, if an extension has been granted 

21 under paragraph (3), expiration of the extension, the 

22 governmental entity shall deliver to the named cus23 tomer or subscriber, by not less than 2 methods, 

24 which shall be personal service, registered or first25 class mail, electronic mail, or other means approved 


ssavage on LAPJG3WLY3PROD with BILLS
10 

•S 4037 IS

1 by the court as reasonably calculated to reach the 

2 named customer or subscriber within 5 business 

3 days of the expiration of the order— 

4 ‘‘(A) a copy of the warrant, order, or sub5 poena; and 

6 ‘‘(B) notice that informs the named cus7 tomer or subscriber— 

8 ‘‘(i) of the nature of the law enforce9 ment inquiry with reasonable specificity; 

10 ‘‘(ii) that information maintained for 

11 such customer or subscriber by the pro12 vider of electronic communications service 

13 or remote computing service to which the 

14 warrant, order, or subpoena under section 

15 2703, was directed, supplied to, or re16 quested by the government entity; 

17 ‘‘(iii) that notification of such cus18 tomer or subscriber was precluded by court 

19 order; 

20 ‘‘(iv) of the identity of the court au21 thorizing the preclusion of notice; 

22 ‘‘(v) of the provision of this chapter 

23 under which the preclusion of notice was 

24 authorized; and 


ssavage on LAPJG3WLY3PROD with BILLS
11 

•S 4037 IS

1 ‘‘(vi) that the government will, upon 

2 request by the customer or subscriber 

3 made within 180 days after receiving noti4 fication under this paragraph, provide the 

5 named customer or subscriber with a copy 

6 of the information that was disclosed in re7 sponse to the warrant, order or subpoena, 

8 or in the event that no information was 

9 disclosed, a written certification that no in10 formation was disclosed. 

11 ‘‘(9) COPY OF INFORMATION DISCLOSED.— 

12 Upon expiration of the order precluding notice 

13 issued under paragraph (1) or (3), and at the re14 quest of the named customer or subscriber made 

15 within 180 days of receiving notification under para16 graph (8), the governmental entity shall promptly 

17 provide the named customer or subscriber— 

18 ‘‘(A) with a copy of the information that 

19 was disclosed in response to the warrant, order, 

20 or subpoena, except for— 

21 ‘‘(i) illicit records; 

22 ‘‘(ii) records or materials pertaining 

23 to child sexual abuse material under sec24 tion 2256(8), sexual exploitation of chil25 dren under section 2251, or any Federal, 


ssavage on LAPJG3WLY3PROD with BILLS
12 

•S 4037 IS

1 State, Tribal, or military offense that is 

2 the substantial equivalent; or 

3 ‘‘(iii) other illegal material; or 

4 ‘‘(B) in the event that no information was 

5 disclosed, a written certification that no infor6 mation was disclosed. 

7 ‘‘(10) REDACTIONS.—Any information disclosed 

8 under paragraph (8) or (9) may be redacted only if 

9 a court finds such redactions necessary to preserve 

10 the secrecy or integrity of an investigation.’’. 

11 SEC. 3. ADDITIONAL PROVISIONS REGARDING DELAYED 

12 NOTICE. 

13 Section 2705 of title 18, United States Code, is 

14 amended by adding at the end the following: 

15 ‘‘(c) ANNUAL REPORT.— 

16 ‘‘(1) IN GENERAL.—On an annual basis, the 

17 Attorney General shall provide to the Committee on 

18 the Judiciary of the Senate, the Committee on the 

19 Judiciary of the House of Representatives, and the 

20 Director of the Administrative Office of the United 

21 States Courts, which the Attorney General shall 

22 publish on the website of the Department of Justice, 

23 in a manner consistent with the protection of na24 tional security, a report setting forth, with respect to 


ssavage on LAPJG3WLY3PROD with BILLS
13 

•S 4037 IS

1 the preceding calendar year, for each Federal judi2 cial district— 

3 ‘‘(A) the number of named customers or 

4 subscribers with respect to whom, in that cal5 endar year, a warrant, subpoena, or court order 

6 was issued pursuant to section 2703; 

7 ‘‘(B) the aggregate number of applications 

8 requesting delay of notification pursuant to 

9 subsection (a)(1), preclusion of notice pursuant 

10 to subsection (b)(1), and extensions pursuant to 

11 subsection (b)(3); 

12 ‘‘(C) the aggregate number of orders under 

13 this section either granting, extending, or deny14 ing a request for delay of notification or pre15 clusion of notice; 

16 ‘‘(D) the aggregate number of orders 

17 under this section affecting a member of the 

18 news media, including any conduct related to 

19 activities protected under the First Amendment 

20 to the Constitution of the United States; and 

21 ‘‘(E) the aggregate number of arrests, 

22 trials, and convictions, resulting from investiga23 tions in which orders under this section were 

24 obtained, including the offenses for which indi25 viduals were arrested, tried, or convicted. 


ssavage on LAPJG3WLY3PROD with BILLS
14 

•S 4037 IS

1 ‘‘(2) INCLUSION.—The Attorney General shall 

2 include in the report under this subsection a descrip3 tion of the process and the information used to de4 termine the numbers for each of subparagraphs (A) 

5 through (E) of paragraph (1).’’. 

Æ 


ssavage on LAPJG3WLY3PROD with BILLS