IIB 

117TH CONGRESS 

2D SESSION H. R. 7072 

IN THE SENATE OF THE UNITED STATES 

JUNE 22, 2022 

Received; read twice and referred to the Committee on the Judiciary 

AN ACT 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 SEC. 2. DELAY OF NOTIFICATION. 

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

5 amended to read as follows: 

6 ‘‘(a) DELAY OF NOTIFICATION.— 

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

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

9 section 2703 may include in the application (or mo10 tion in the case of an administrative subpoena au11 thorized by a Federal or State statute or a Federal 

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

13 a court of competent jurisdiction for an order delay14 ing the notification under section 2703 for a period 

15 of not more than 60 days. 

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

17 grant a request for delayed notification to a cus18 tomer or subscriber made under paragraph (1), or 

19 an extension of such delayed notification requested 

20 by the governmental entity pursuant to paragraph 

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

22 based on specific and articulable facts, and including 

23 written findings of fact and conclusions of law, that 

24 it is substantially likely that the notification of the 

25 customer or subscriber of the existence of the war26 rant, order, or subpoena will result in— 


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

2 of an individual; 

3 ‘‘(B) flight from prosecution; 

4 ‘‘(C) destruction of or tampering with evi5 dence; 

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

7 ‘‘(E) otherwise seriously jeopardizing an 

8 investigation or unduly delaying a trial. 

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

10 may request one or more extensions of the delay of 

11 notification granted under paragraph (2) for a pe12 riod of not more than 60 days for each such exten13 sion. The court may only grant such an extension if 

14 the court makes a written determination required 

15 under paragraph (2) and the extension is in accord16 ance with the requirements of such paragraph. 

17 ‘‘(4) EXPIRATION OF DELAY OF NOTIFICA18 TION.—Upon expiration of the period of delay of no19 tification and all extensions thereof under para20 graphs (2) and (3) of this subsection, the govern21 mental entity shall deliver to the customer or sub22 scriber by at least 2 methods, which shall be per23 sonal service, registered or first-class mail, electronic 

24 mail, or other means approved by the court, as rea25 sonably calculated to reach the customer or subVerDate Sep 11 2014 01:59 Jun 23, 2022 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7072.RFS H7072

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1 scriber within 72 hours of the expiration of the 

2 delay— 

3 ‘‘(A) a copy of the warrant, order, or sub4 poena; and 

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

6 subscriber— 

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

8 by the governmental entity, with reason9 able 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, was supplied to or re16 quested by the governmental entity; 

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

19 order; 

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

21 issued such order; 

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

23 the order delaying notification was author24 ized; and 


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1 ‘‘(vi) that the governmental entity 

2 will, upon request by the customer or sub3 scriber made within 180 days after receiv4 ing notification under this paragraph, pro5 vide the customer or subscriber with a 

6 copy of the information that was disclosed 

7 in response to the warrant, order, or sub8 poena, or in the event that no information 

9 was disclosed, a written certification that 

10 no information was disclosed. 

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

12 Upon expiration of the period of delay of notification 

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

14 at the request of the customer or subscriber made 

15 within 180 days of receiving notification under para16 graph (4), the governmental entity shall promptly 

17 provide the customer or subscriber— 

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

19 disclosed and a copy of the information that 

20 was disclosed in response to the warrant, order, 

21 or subpoena; or 

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

23 disclosed, with a written certification that no in24 formation was disclosed.’’. 


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1 SEC. 3. PRECLUSION OF NOTICE. 

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

3 amended to read as follows: 

4 ‘‘(b) PRECLUSION OF NOTICE.— 

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

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

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

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

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

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

11 (6), directing a provider of electronic communica12 tions service or remote computing service to which a 

13 warrant, order, or subpoena under section 2703 is 

14 directed not to notify any other person of the exist15 ence of the warrant, order, or subpoena for a period 

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

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

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

19 grant a request for an order made under paragraph 

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

21 governmental entity pursuant to paragraph (3), un22 less— 

23 ‘‘(A) the court issues a written determina24 tion, based on specific and articulable facts, and 

25 including written findings of fact and concluVerDate Sep 11 2014 01:59 Jun 23, 2022 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7072.RFS H7072

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1 sions of law, that it is substantially likely that 

2 not granting the request will result in— 

3 ‘‘(i) endangering the life or physical 

4 safety of an individual; 

5 ‘‘(ii) flight from prosecution; 

6 ‘‘(iii) destruction of or tampering with 

7 evidence; 

8 ‘‘(iv) intimidation of potential wit9 nesses; or 

10 ‘‘(v) otherwise seriously jeopardizing 

11 an investigation or unduly delaying a trial; 

12 and 

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

14 there is no less restrictive alternative, including 

15 notification to an individual or organization 

16 within or providing legal representation to the 

17 customer or subscriber, to avoid an adverse re18 sult as described in clause (i) through (v) of 

19 subparagraph (A). 

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

21 request one or more extensions of an order granted 

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

23 each such extension. The court may only grant such 

24 an extension if the court makes a written determina25 tion required under paragraph (2)(A) and the extenVerDate Sep 11 2014 01:59 Jun 23, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7072.RFS H7072

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1 sion is in accordance with the requirements of 

2 (2)(B). 

3 ‘‘(4) NOTIFICATION OF CHANGED CIR4 CUMSTANCES.—If the need for the order issued 

5 under paragraph (2) changes materially, the govern6 mental entity that requested the order shall notify 

7 the court within 72 hours of the changed cir8 cumstances, and the court shall reassess the order 

9 and modify or vacate as appropriate. 

10 ‘‘(5) OPPORTUNITY TO BE HEARD.— 

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

12 petition, or motion by a provider of electronic 

13 communications service or remote computing 

14 service or person acting on behalf of the pro15 vider to which an order under paragraph (2) 

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

17 issued, the court may modify or vacate the 

18 order if— 

19 ‘‘(i) the order does not meet require20 ments provided in paragraph (2); or 

21 ‘‘(ii) compliance with the order is un22 reasonable or otherwise unlawful. 

23 ‘‘(B) STAY OF DISCLOSURE OF CUSTOMER

24 OR SUBSCRIBER COMMUNICATIONS OR

25 RECORDS.—A provider’s obligation to disclose 


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1 the information requested in the warrant, order, 

2 or subpoena to which the order in paragraph 

3 (1) applies is stayed upon the filing of the ap4 plication, petition, or motion under this para5 graph pending resolution of the application, pe6 tition, or motion, unless the court with jurisdic7 tion over the challenge determines based on a 

8 showing by the governmental entity that the 

9 stay should be lifted in whole or in part prior 

10 to resolution. 

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

12 of the court resolving an application, petition, 

13 or motion under this paragraph shall constitute 

14 a final, appealable order. 

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

16 communications service or remote computing service 

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

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

19 information otherwise subject to any applicable non20 disclosure requirement to— 

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

22 necessary in order to comply with the warrant, 

23 order, or subpoena; 


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

2 advice or assistance regarding the warrant, 

3 order, or subpoena; and 

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

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

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

7 to whom disclosure is made under paragraph (6) 

8 (other than the governmental entity) shall be subject 

9 to the nondisclosure requirements applicable to the 

10 person to whom the order is issued. Any recipient 

11 authorized under this subsection to disclose to a per12 son information otherwise subject to a nondisclosure 

13 requirement shall notify the person of the applicable 

14 nondisclosure requirement. 

15 ‘‘(8) SUPPORTING DOCUMENTATION.—Upon 

16 serving a provider of electronic communications serv17 ice or remote computing service with an order grant18 ed under paragraph (2), or an extension of such 

19 order granted under paragraph (3), the govern20 mental entity shall include a copy of the warrant, 

21 order, or subpoena to which the nondisclosure order 

22 applies. 

23 ‘‘(9) EXPIRATION OF ORDER PRECLUDING NO24 TICE.—Upon expiration of an order issued under 

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


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

2 governmental entity shall deliver to the customer or 

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

4 personal service, registered or first-class mail, elec5 tronic mail, or other means approved by the court as 

6 reasonably calculated to reach the customer or sub7 scriber within 72 hours of the expiration of the 

8 order— 

9 ‘‘(A) a copy of the warrant, order, or sub10 poena; and 

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

12 subscriber— 

13 ‘‘(i) of the nature of the law enforce14 ment inquiry with reasonable specificity; 

15 ‘‘(ii) that information maintained for 

16 such customer or subscriber by the pro17 vider of electronic communications service 

18 or remote computing service to which the 

19 warrant, order, or subpoena under section 

20 2703, was directed was supplied to or re21 quested by the government entity; 

22 ‘‘(iii) that notification of such cus23 tomer or subscriber was precluded by court 

24 order; 


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1 ‘‘(iv) of the identity of the court au2 thorizing the preclusion of notice; 

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

4 under which the preclusion of notice was 

5 authorized; and 

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

7 request by the customer or subscriber 

8 made within 180 days after receiving noti9 fication under this paragraph, provide the 

10 customer or subscriber with a copy of the 

11 information that was disclosed in response 

12 to the warrant, order or subpoena, or in 

13 the event that no information was dis14 closed, a written certification that no infor15 mation was disclosed. 

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

17 Upon expiration of the order precluding notice 

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

19 and at the request of the customer or subscriber 

20 made within 180 days of receiving notification under 

21 paragraph (9), the governmental entity shall 

22 promptly provide the customer or subscriber— 

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

24 was disclosed in response to the warrant, order 

25 or subpoena; or 


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

2 disclosed, a written certification that no infor3 mation was disclosed.’’. 

4 SEC. 4. ADDITIONAL PROVISIONS REGARDING DELAYED 

5 NOTICE. 

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

7 amended by adding at the end the following: 

8 ‘‘(c) ANNUAL REPORT.—On an annual basis, the At9 torney General shall provide to the Committees on the Ju10 diciary of the House of Representatives and the Senate, 

11 in a manner consistent with protection of national secu12 rity, a report setting forth with respect to the preceding 

13 calendar year, for each Federal judicial district— 

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

15 with respect to whom, in that calendar year, a war16 rant, subpoena, or court order was issued pursuant 

17 to section 2703; 

18 ‘‘(2) the aggregate number of applications re19 questing delay of notification pursuant to sub20 sections (a)(1) and (b)(1); 

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

22 section either granting, extending, or denying a re23 quest for delay of notification; 

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

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1 cluding any conduct related to activities protected 

2 under the First Amendment; and 

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

4 and convictions, resulting from investigations in 

5 which orders under this section were obtained, in6 cluding the offenses for which individuals were ar7 rested, tried, or convicted. 

8 The Attorney General shall include in the report under 

9 this subsection a description of the process and the infor10 mation used to determine the numbers for each of para11 graphs (1) through (5).’’. 

Passed the House of Representatives June 21, 2022. 

Attest: CHERYL L. JOHNSON, 

Clerk. 

By KEVIN MCCUMBER, 

Deputy Clerk. 


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