I 

117TH CONGRESS 

2D SESSION H. R. 7072 

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

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 15, 2022 

Mr. NADLER (for himself and Mr. FITZGERALD) introduced the following bill; 

which was 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(b) for a pe7 riod of not more than 30 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.— 

4 ‘‘(A) IN GENERAL.—The governmental en5 tity may request one or more extensions of the 

6 delay of notification granted under paragraph 

7 (2) for a period of not more than 30 days for 

8 each such extension. 

9 ‘‘(B) AUTHORIZATION.—An extension of 

10 the delay of notification granted under para11 graph (2), may be authorized by a court of 

12 competent jurisdiction. 

13 ‘‘(4) EXPIRATION OF DELAY OF NOTIFICA14 TION.—Upon expiration of the period of delay of no15 tification and all extensions thereof under para16 graphs (2) and (3) of this subsection, the govern17 mental entity shall deliver to the customer or sub18 scriber by personal service, registered or first-class 

19 mail, electronic mail, or other means approved by 

20 the court, as reasonably calculated to reach the cus21 tomer or subscriber within 72 hours of the expira22 tion of the delay— 

23 ‘‘(A) a copy of the warrant, order, or sub24 poena; and 


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

2 subscriber— 

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

4 by the governmental entity, with reason5 able specificity; 

6 ‘‘(ii) that information maintained for 

7 such customer or subscriber by the service 

8 provider named in such process or request 

9 was supplied to or requested by the gov10 ernmental 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, provide the customer or subscriber 

22 with a copy of the information that was 

23 disclosed in response to the warrant, order, 

24 or subpoena, or in the event that no inforVerDate Sep 11 2014 04:01 Mar 16, 2022 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7072.IH H7072

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1 mation was disclosed, a written certifi2 cation that no information was disclosed. 

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

4 Upon expiration of the period of delay of notification 

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

6 at the request of the customer or subscriber made 

7 within 180 days of receiving notification under para8 graph (4), the governmental entity shall promptly 

9 provide the customer or subscriber— 

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

11 disclosed and a copy of the information that 

12 was disclosed in response to the warrant, order, 

13 or subpoena; or 

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

15 disclosed, with a written certification that no in16 formation was disclosed.’’. 

17 SEC. 3. PRECLUSION OF NOTICE TO SUBJECT OF GOVERN18 MENTAL ACCESS. 

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

20 amended to read as follows: 

21 ‘‘(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV22 ERNMENTAL ACCESS.— 

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

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

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


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

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

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

4 (6), directing a provider of electronic communica5 tions service or remote computing service to which a 

6 warrant, order, or subpoena under section 2703 is 

7 directed not to notify any other person of the exist8 ence of the warrant, order, or subpoena for a period 

9 of not more than either 30 days or the period of 

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

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

12 grant a request for an order made under paragraph 

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

14 governmental entity pursuant to paragraph (3), un15 less— 

16 ‘‘(A) the court issues a written determina17 tion, based on specific and articulable facts, and 

18 including written findings of fact and conclu19 sions of law, that it is substantially likely that 

20 not granting the request will result in— 

21 ‘‘(i) endangering the life or physical 

22 safety of an individual; 

23 ‘‘(ii) flight from prosecution; 

24 ‘‘(iii) destruction of or tampering with 

25 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 clause (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 30 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 

25 the court within 72 hours of the changed cirVerDate Sep 11 2014 04:01 Mar 16, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7072.IH H7072

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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 applies, the court may modify or vacate the 

10 order if— 

11 ‘‘(i) the order does not meet require12 ments provided in paragraph (2); or 

13 ‘‘(ii) compliance with the order is un14 reasonable or otherwise unlawful. 

15 ‘‘(B) STAY OF DISCLOSURE.—A provider’s 

16 obligation to disclose the information requested 

17 in the warrant, order, or subpoena to which the 

18 order in paragraph (1) applies is stayed upon 

19 the filing of the application, petition, or motion 

20 under this paragraph pending resolution of the 

21 application, petition, or motion, unless the court 

22 with jurisdiction over the challenge determines 

23 based on a showing by the governmental entity 

24 that the stay should be lifted in whole or in 

25 part prior to resolution. 


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

2 of the court resolving an application, petition, 

3 or motion under this paragraph shall constitute 

4 a final, appealable order. 

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

6 communications service or remote computing service 

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

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

9 information otherwise subject to any applicable non10 disclosure requirement to— 

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

12 necessary in order to comply with the warrant, 

13 order, or subpoena; 

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

15 advice or assistance regarding the warrant, 

16 order, or subpoena; and 

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

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

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

20 to whom disclosure is made under this subsection 

21 (other than the governmental entity) shall be subject 

22 to the nondisclosure requirements applicable to the 

23 person to whom the order is issued. Any recipient 

24 authorized under this subsection to disclose to a per25 son information otherwise subject to a nondisclosure 


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1 requirement shall notify the person of the applicable 

2 nondisclosure requirement. 

3 ‘‘(8) SUPPORTING DOCUMENTATION.—Upon 

4 serving a provider of electronic communications serv5 ice or remote computing service with an order grant6 ed under paragraph (2), or an extension of such 

7 order granted under paragraph (3), the govern8 mental entity shall include a copy of the warrant, 

9 order, or subpoena to which the nondisclosure order 

10 applies. 

11 ‘‘(9) EXPIRATION OF DELAY OF NOTIFICA12 TION.—Upon expiration of an order issued under 

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

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

15 governmental entity shall deliver to the customer or 

16 subscriber, by personal service, registered or first17 class mail, electronic mail, or other means approved 

18 by the court as reasonably calculated to reach the 

19 customer or subscriber within 72 hours of the expi20 ration of the order— 

21 ‘‘(A) a copy of the warrant, order, or sub22 poena; and 

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

24 subscriber— 


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1 ‘‘(i) of the nature of the law enforce2 ment inquiry with reasonable specificity; 

3 ‘‘(ii) that information maintained for 

4 such customer or subscriber by the service 

5 provider named in such process or request 

6 was supplied to or requested by the gov7 ernment entity; 

8 ‘‘(iii) that notification of such cus9 tomer or subscriber was delayed by court 

10 order; 

11 ‘‘(iv) of the identity of the court au12 thorizing the delay; 

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

14 under which the delay was authorized; and 

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

16 request by the customer or subscriber, pro17 vide the customer or subscriber with a 

18 copy of the information that was disclosed 

19 in response to the warrant, order or sub20 poena, or in the event that no information 

21 was disclosed, a written certification that 

22 no information was disclosed. 

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

24 Upon expiration of the period of delay of notification 

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


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1 at the request of the customer or subscriber made 

2 within 180 days of receiving notification under para3 graph (9), the governmental entity shall promptly 

4 provide the customer or subscriber— 

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

6 was disclosed in response to the warrant, order 

7 or subpoena; or 

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

9 disclosed, a written certification that no infor10 mation was disclosed.’’. 

11 SEC. 4. 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) AGGRIEVED PERSON.—For the purpose of this 

16 section, a subscriber or customer aggrieved by any viola17 tion of this section may seek remedy pursuant to section 

18 2707. 

19 ‘‘(d) ANNUAL REPORT.—On an annual basis, the At20 torney General shall provide to the Committees on the Ju21 diciary of the House of Representatives and the Senate, 

22 in a manner consistent with protection of national secu23 rity, a report setting forth with respect to the preceding 

24 calendar year— 


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

2 with respect to whom, in that calendar year, a war3 rant, subpoena, or court order was issued pursuant 

4 to section 2703; 

5 ‘‘(2) the aggregate number of applications re6 questing delay of notification pursuant to section 

7 2705; 

8 ‘‘(3) the aggregate number of such orders ei9 ther granted, extended, or denied; 

10 ‘‘(4) the aggregate number of such orders tar11 geting a member of the news media, including any 

12 conduct related to activities protected under the 

13 First Amendment; and 

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

15 and convictions resulting from such orders and the 

16 offenses for which they were obtained.’’. 

Æ 


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