II 

117TH CONGRESS 

2D SESSION S. 4373 

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 9, 2022 

Mr. LEAHY (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. DELAY OF NOTIFICATION. 

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

7 amended to read as follows: 

8 ‘‘(a) DELAY OF NOTIFICATION.— 

9 ‘‘(1) APPLICATION.—A governmental entity 

10 that is seeking a warrant, order, or subpoena under 


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1 section 2703 may include in the application (or mo2 tion in the case of an administrative subpoena au3 thorized by a Federal or State statute or a Federal 

4 or State grand jury or trial subpoena) a request to 

5 a court of competent jurisdiction for an order delay6 ing the notification under section 2703 for a period 

7 of not more than 60 days. 

8 ‘‘(2) DETERMINATION.—The court may not 

9 grant a request for delayed notification to a cus10 tomer or subscriber made under paragraph (1), or 

11 an extension of such delayed notification requested 

12 by the governmental entity pursuant to paragraph 

13 (3), unless the court issues a written determination, 

14 based on specific and articulable facts, and including 

15 written findings of fact and conclusions of law, that 

16 it is substantially likely that the notification of the 

17 customer or subscriber of the existence of the war18 rant, order, or subpoena will result in— 

19 ‘‘(A) endangering the life or physical safety 

20 of an individual; 

21 ‘‘(B) flight from prosecution; 

22 ‘‘(C) destruction of or tampering with evi23 dence; 

24 ‘‘(D) intimidation of potential witnesses; or 


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1 ‘‘(E) otherwise seriously jeopardizing an 

2 investigation or unduly delaying a trial. 

3 ‘‘(3) EXTENSION.—The governmental entity 

4 may request one or more extensions of the delay of 

5 notification granted under paragraph (2) for a pe6 riod of not more than 60 days for each such exten7 sion. The court may only grant such an extension if 

8 the court makes a written determination required 

9 under paragraph (2) and the extension is in accord10 ance with the requirements of such paragraph. 

11 ‘‘(4) EXPIRATION OF DELAY OF NOTIFICA12 TION.—Upon expiration of the period of delay of no13 tification and all extensions thereof under para14 graphs (2) and (3) of this subsection, the govern15 mental entity shall deliver to the customer or sub16 scriber by at least 2 methods, which shall be per17 sonal service, registered or first-class mail, electronic 

18 mail, or other means approved by the court, as rea19 sonably calculated to reach the customer or sub20 scriber within 72 hours of the expiration of the 

21 delay— 

22 ‘‘(A) a copy of the warrant, order, or sub23 poena; and 

24 ‘‘(B) notice that informs such customer or 

25 subscriber— 


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1 ‘‘(i) of the nature of the inquiry made 

2 by the governmental entity, with reason3 able specificity; 

4 ‘‘(ii) that information maintained for 

5 such customer or subscriber by the pro6 vider of electronic communications service 

7 or remote computing service to which the 

8 warrant, order, or subpoena under section 

9 2703 was directed, was supplied to or re10 quested by the governmental entity; 

11 ‘‘(iii) that notification of such cus12 tomer or subscriber was delayed by court 

13 order; 

14 ‘‘(iv) the identity of the court that 

15 issued such order; 

16 ‘‘(v) the provision of law under which 

17 the order delaying notification was author18 ized; and 

19 ‘‘(vi) that the governmental entity 

20 will, upon request by the customer or sub21 scriber made within 180 days after receiv22 ing notification under this paragraph, pro23 vide the customer or subscriber with a 

24 copy of the information that was disclosed 

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1 poena, or in the event that no information 

2 was disclosed, a written certification that 

3 no information was disclosed. 

4 ‘‘(5) COPY OF INFORMATION DISCLOSED.— 

5 Upon expiration of the period of delay of notification 

6 under paragraph (2) or (3) of this subsection, and 

7 at the request of the customer or subscriber made 

8 within 180 days of receiving notification under para9 graph (4), the governmental entity shall promptly 

10 provide the customer or subscriber— 

11 ‘‘(A) with a description of the information 

12 disclosed and a copy of the information that 

13 was disclosed in response to the warrant, order, 

14 or subpoena; or 

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

16 disclosed, with a written certification that no in17 formation was disclosed.’’. 

18 SEC. 3. PRECLUSION OF NOTICE. 

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

20 amended to read as follows: 

21 ‘‘(b) PRECLUSION OF NOTICE.— 

22 ‘‘(1) APPLICATION.—A governmental entity 

23 that is seeking a warrant, order, or subpoena under 

24 section 2703, when it is not required to notify the 

25 customer or subscriber, or to the extent that it may 


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1 delay such notice pursuant to subsection (a), may 

2 apply to a court for an order, subject to paragraph 

3 (6), directing a provider of electronic communica4 tions service or remote computing service to which a 

5 warrant, order, or subpoena under section 2703 is 

6 directed not to notify any other person of the exist7 ence of the warrant, order, or subpoena for a period 

8 of not more than either 60 days or the period of 

9 delay of notice provided under subsection (a), if any. 

10 ‘‘(2) DETERMINATION.—The court may not 

11 grant a request for an order made under paragraph 

12 (1), or an extension of such order requested by the 

13 governmental entity pursuant to paragraph (3), un14 less— 

15 ‘‘(A) the court issues a written determina16 tion, based on specific and articulable facts, and 

17 including written findings of fact and conclu18 sions of law, that it is substantially likely that 

19 not granting the request will result in— 

20 ‘‘(i) endangering the life or physical 

21 safety of an individual; 

22 ‘‘(ii) flight from prosecution; 

23 ‘‘(iii) destruction of or tampering with 

24 evidence; 


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1 ‘‘(iv) intimidation of potential wit2 nesses; or 

3 ‘‘(v) otherwise seriously jeopardizing 

4 an investigation or unduly delaying a trial; 

5 and 

6 ‘‘(B) the order is narrowly tailored and 

7 there is no less restrictive alternative, including 

8 notification to an individual or organization 

9 within or providing legal representation to the 

10 customer or subscriber, to avoid an adverse re11 sult as described in clauses (i) through (v) of 

12 subparagraph (A). 

13 ‘‘(3) EXTENSION.—A governmental entity may 

14 request one or more extensions of an order granted 

15 under paragraph (2) of not more than 60 days for 

16 each such extension. The court may only grant such 

17 an extension if the court makes a written determina18 tion required under paragraph (2)(A) and the exten19 sion is in accordance with the requirements of 

20 (2)(B). 

21 ‘‘(4) NOTIFICATION OF CHANGED CIR22 CUMSTANCES.—If the need for the order issued 

23 under paragraph (2) changes materially, the govern24 mental entity that requested the order shall notify 

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1 cumstances, and the court shall reassess the order 

2 and modify or vacate as appropriate. 

3 ‘‘(5) OPPORTUNITY TO BE HEARD.— 

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

5 petition, or motion by a provider of electronic 

6 communications service or remote computing 

7 service or person acting on behalf of the pro8 vider to which an order under paragraph (2) 

9 (or an extension under paragraph (3)) has been 

10 issued, the court may modify or vacate the 

11 order if— 

12 ‘‘(i) the order does not meet require13 ments provided in paragraph (2); or 

14 ‘‘(ii) compliance with the order is un15 reasonable or otherwise unlawful. 

16 ‘‘(B) STAY OF DISCLOSURE OF CUSTOMER

17 OR SUBSCRIBER COMMUNICATIONS OR

18 RECORDS.—A provider’s obligation to disclose 

19 the information requested in the warrant, order, 

20 or subpoena to which the order in paragraph 

21 (1) applies is stayed upon the filing of the ap22 plication, petition, or motion under this para23 graph pending resolution of the application, pe24 tition, or motion, unless the court with jurisdic25 tion over the challenge determines based on a 


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1 showing by the governmental entity that the 

2 stay should be lifted in whole or in part prior 

3 to resolution. 

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

5 of the court resolving an application, petition, 

6 or motion under this paragraph shall constitute 

7 a final, appealable order. 

8 ‘‘(6) EXCEPTION.—A provider of electronic 

9 communications service or remote computing service 

10 to which an order under paragraph (2) applies, or 

11 an officer, employee, or agent thereof, may disclose 

12 information otherwise subject to any applicable non13 disclosure requirement to— 

14 ‘‘(A) those persons to whom disclosure is 

15 necessary in order to comply with the warrant, 

16 order, or subpoena; 

17 ‘‘(B) an attorney in order to obtain legal 

18 advice or assistance regarding the warrant, 

19 order, or subpoena; and 

20 ‘‘(C) any person the court determines can 

21 be notified of the warrant, order, or subpoena. 

22 ‘‘(7) SCOPE OF NONDISCLOSURE.—Any person 

23 to whom disclosure is made under paragraph (6) 

24 (other than the governmental entity) shall be subject 

25 to the nondisclosure requirements applicable to the 


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1 person to whom the order is issued. Any recipient 

2 authorized under this subsection to disclose to a per3 son information otherwise subject to a nondisclosure 

4 requirement shall notify the person of the applicable 

5 nondisclosure requirement. 

6 ‘‘(8) SUPPORTING DOCUMENTATION.—Upon 

7 serving a provider of electronic communications serv8 ice or remote computing service with an order grant9 ed under paragraph (2), or an extension of such 

10 order granted under paragraph (3), the govern11 mental entity shall include a copy of the warrant, 

12 order, or subpoena to which the nondisclosure order 

13 applies. 

14 ‘‘(9) EXPIRATION OF ORDER PRECLUDING NO15 TICE.—Upon expiration of an order issued under 

16 paragraph (2) or, if an extension has been granted 

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

18 governmental entity shall deliver to the customer or 

19 subscriber, by at least 2 methods, which shall be 

20 personal service, registered or first-class mail, elec21 tronic mail, or other means approved by the court as 

22 reasonably calculated to reach the customer or sub23 scriber within 72 hours of the expiration of the 

24 order— 


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1 ‘‘(A) a copy of the warrant, order, or sub2 poena; and 

3 ‘‘(B) notice that informs the customer or 

4 subscriber— 

5 ‘‘(i) of the nature of the law enforce6 ment inquiry with reasonable specificity; 

7 ‘‘(ii) that information maintained for 

8 such customer or subscriber by the pro9 vider of electronic communications service 

10 or remote computing service to which the 

11 warrant, order, or subpoena under section 

12 2703, was directed was supplied to or re13 quested by the government entity; 

14 ‘‘(iii) that notification of such cus15 tomer or subscriber was precluded by court 

16 order; 

17 ‘‘(iv) of the identity of the court au18 thorizing the preclusion of notice; 

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

20 under which the preclusion of notice was 

21 authorized; and 

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

23 request by the customer or subscriber 

24 made within 180 days after receiving noti25 fication under this paragraph, provide the 


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1 customer or subscriber with a copy of the 

2 information that was disclosed in response 

3 to the warrant, order or subpoena, or in 

4 the event that no information was dis5 closed, a written certification that no infor6 mation was disclosed. 

7 ‘‘(10) COPY OF INFORMATION DISCLOSED.— 

8 Upon expiration of the order precluding notice 

9 issued under paragraph (2) or (3) of this subsection, 

10 and at the request of the customer or subscriber 

11 made within 180 days of receiving notification under 

12 paragraph (9), the governmental entity shall 

13 promptly provide the customer or subscriber— 

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

15 was disclosed in response to the warrant, order 

16 or subpoena; or 

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

18 disclosed, a written certification that no infor19 mation was disclosed.’’. 

20 SEC. 4. ADDITIONAL PROVISIONS REGARDING DELAYED 

21 NOTICE. 

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

23 amended by adding at the end the following: 

24 ‘‘(c) ANNUAL REPORT.—On an annual basis, the At25 torney General shall provide to the Committee on the JuVerDate Sep 11 2014 03:01 Jun 12, 2022 Jkt 029200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4373.IS S4373

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1 diciary of the House of Representatives and the Com2 mittee on the Judiciary of the Senate, in a manner con3 sistent with protection of national security, a report set4 ting forth with respect to the preceding calendar year, for 

5 each Federal judicial district— 

6 ‘‘(1) the number of customers or subscribers 

7 with respect to whom, in that calendar year, a war8 rant, subpoena, or court order was issued pursuant 

9 to section 2703; 

10 ‘‘(2) the aggregate number of applications re11 questing delay of notification pursuant to sub12 sections (a)(1) and (b)(1); 

13 ‘‘(3) the aggregate number of orders under this 

14 section either granting, extending, or denying a re15 quest for delay of notification; 

16 ‘‘(4) the aggregate number of orders under this 

17 section affecting a member of the news media, in18 cluding any conduct related to activities protected 

19 under the First Amendment; and 

20 ‘‘(5) the aggregate number of arrests, trials, 

21 and convictions, resulting from investigations in 

22 which orders under this section were obtained, in23 cluding the offenses for which individuals were ar24 rested, tried, or convicted. 


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1 The Attorney General shall include in the report under 

2 this subsection a description of the process and the infor3 mation used to determine the numbers for each of para4 graphs (1) through (5).’’. 

Æ 


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