IB 

Union Calendar No. 273 

117TH CONGRESS 

2D SESSION H. R. 7072 

[Report No. 117–361] 

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 

JUNE 13, 2022 

Additional sponsors: Ms. ROSS, Mr. BUCK, Mr. CICILLINE, Mr. TIFFANY, Mr. 

STANTON, and Mr. MCCLINTOCK

JUNE 13, 2022 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on December 14, 2021] 


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•HR 7072 RH

A BILL 

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

notice requirements, and for other purposes. 


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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 that 

10 is seeking a warrant, order, or subpoena under sec11 tion 2703 may include in the application (or motion 

12 in the case of an administrative subpoena authorized 

13 by a Federal or State statute or a Federal or State 

14 grand jury or trial subpoena) a request to a court of 

15 competent jurisdiction for an order delaying the noti16 fication under section 2703 for a period of not more 

17 than 60 days. 

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

19 a request for delayed notification to a customer or 

20 subscriber made under paragraph (1), or an extension 

21 of such delayed notification requested by the govern22 mental entity pursuant to paragraph (3), unless the 

23 court issues a written determination, based on specific 

24 and articulable facts, and including written findings 

25 of fact and conclusions of law, that it is substantially 


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1 likely that the notification of the customer or sub2 scriber of the existence of the warrant, order, or sub3 poena will result in— 

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

5 of an individual; 

6 ‘‘(B) flight from prosecution; 

7 ‘‘(C) destruction of or tampering with evi8 dence; 

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

10 ‘‘(E) otherwise seriously jeopardizing an in11 vestigation or unduly delaying a trial. 

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

13 request one or more extensions of the delay of notifica14 tion granted under paragraph (2) for a period of not 

15 more than 60 days for each such extension. The court 

16 may only grant such an extension if the court makes 

17 a written determination required under paragraph 

18 (2) and the extension is in accordance with the re19 quirements of such paragraph. 

20 ‘‘(4) EXPIRATION OF DELAY OF NOTIFICATION.— 

21 Upon expiration of the period of delay of notification 

22 and all extensions thereof under paragraphs (2) and 

23 (3) of this subsection, the governmental entity shall 

24 deliver to the customer or subscriber by at least 2 

25 methods, which shall be personal service, registered or 


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1 first-class mail, electronic mail, or other means ap2 proved by the court, as reasonably calculated to reach 

3 the customer or subscriber within 72 hours of the ex4 piration of the delay— 

5 ‘‘(A) a copy of the warrant, order, or sub6 poena; and 

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

8 subscriber— 

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

10 by the governmental entity, with reasonable 

11 specificity; 

12 ‘‘(ii) that information maintained for 

13 such customer or subscriber by the provider 

14 of electronic communications service or re15 mote computing service to which the war16 rant, order, or subpoena under section 2703 

17 was directed, was supplied to or requested 

18 by the governmental entity; 

19 ‘‘(iii) that notification of such cus20 tomer or subscriber was delayed by court 

21 order; 

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

23 issued such order; 


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

2 the order delaying notification was author3 ized; and 

4 ‘‘(vi) that the governmental entity will, 

5 upon request by the customer or subscriber, 

6 provide the customer or subscriber with a 

7 copy of the information that was disclosed 

8 in response to the warrant, order, or sub9 poena, or in the event that no information 

10 was disclosed, a written certification that 

11 no information was disclosed. 

12 ‘‘(5) COPY OF INFORMATION DISCLOSED.—Upon 

13 expiration of the period of delay of notification under 

14 paragraph (2) or (3) of this subsection, and at the re15 quest of the customer or subscriber made within 180 

16 days of receiving notification under paragraph (4), 

17 the governmental entity shall promptly provide the 

18 customer or subscriber— 

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

20 disclosed and a copy of the information that was 

21 disclosed in response to the warrant, order, or 

22 subpoena; or 

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

24 disclosed, with a written certification that no in25 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 that 

6 is seeking a warrant, order, or subpoena under sec7 tion 2703, when it is not required to notify the cus8 tomer or subscriber, or to the extent that it may delay 

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

10 a court for an order, subject to paragraph (6), direct11 ing a provider of electronic communications service or 

12 remote computing service to which a warrant, order, 

13 or subpoena under section 2703 is directed not to no14 tify any other person of the existence of the warrant, 

15 order, or subpoena for a period of not more than ei16 ther 60 days or the period of delay of notice provided 

17 under subsection (a), if any. 

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

19 a request for an order made under paragraph (1), or 

20 an extension of such order requested by the govern21 mental entity pursuant to paragraph (3), unless— 

22 ‘‘(A) the court issues a written determina23 tion, based on specific and articulable facts, and 

24 including written findings of fact and conclu25 sions of law, that it is substantially likely that 

26 not granting the request will result in— 


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1 ‘‘(i) endangering the life or physical 

2 safety of an individual; 

3 ‘‘(ii) flight from prosecution; 

4 ‘‘(iii) destruction of or tampering with 

5 evidence; 

6 ‘‘(iv) intimidation of potential wit7 nesses; or 

8 ‘‘(v) otherwise seriously jeopardizing 

9 an investigation or unduly delaying a trial; 

10 and 

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

12 there is no less restrictive alternative, including 

13 notification to an individual or organization 

14 within or providing legal representation to the 

15 customer or subscriber, to avoid an adverse result 

16 as described in clause (i) through (v) of subpara17 graph (A). 

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

19 request one or more extensions of an order granted 

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

21 each such extension. The court may only grant such 

22 an extension if the court makes a written determina23 tion required under paragraph (2)(A) and the exten24 sion is in accordance with the requirements of (2)(B). 


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1 ‘‘(4) NOTIFICATION OF CHANGED CIR2 CUMSTANCES.—If the need for the order issued under 

3 paragraph (2) changes materially, the governmental 

4 entity that requested the order shall notify the court 

5 within 72 hours of the changed circumstances, and 

6 the court shall reassess the order and modify or vacate 

7 as appropriate. 

8 ‘‘(5) OPPORTUNITY TO BE HEARD.— 

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

10 petition, or motion by a provider of electronic 

11 communications service or remote computing 

12 service or person acting on behalf of the provider 

13 to which an order under paragraph (2) (or an 

14 extension under paragraph (3)) has been issued, 

15 the court may modify or vacate the order if— 

16 ‘‘(i) the order does not meet require17 ments provided in paragraph (2); or 

18 ‘‘(ii) compliance with the order is un19 reasonable or otherwise unlawful. 

20 ‘‘(B) STAY OF DISCLOSURE OF CUSTOMER

21 OR SUBSCRIBER COMMUNICATIONS OR

22 RECORDS.—A provider’s obligation to disclose 

23 the information requested in the warrant, order, 

24 or subpoena to which the order in paragraph (1) 

25 applies is stayed upon the filing of the applicaVerDate Sep 11 2014 01:03 Jun 14, 2022 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H7072.RH H7072

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1 tion, petition, or motion under this paragraph 

2 pending resolution of the application, petition, 

3 or motion, unless the court with jurisdiction over 

4 the challenge determines based on a showing by 

5 the governmental entity that the stay should be 

6 lifted in whole or in part prior to resolution. 

7 ‘‘(C) FINALITY OF ORDER.—The decision of 

8 the court resolving an application, petition, or 

9 motion under this paragraph shall constitute a 

10 final, appealable order. 

11 ‘‘(6) EXCEPTION.—A provider of electronic com12 munications service or remote computing service to 

13 which an order under paragraph (2) applies, or an 

14 officer, employee, or agent thereof, may disclose infor15 mation otherwise subject to any applicable nondisclo16 sure requirement to— 

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

18 necessary in order to comply with the warrant, 

19 order, or subpoena; 

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

21 advice or assistance regarding the warrant, 

22 order, or subpoena; and 

23 ‘‘(C) any person the court determines can be 

24 notified of the warrant, order, or subpoena. 


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1 ‘‘(7) SCOPE OF NONDISCLOSURE.—Any person to 

2 whom disclosure is made under paragraph (6) (other 

3 than the governmental entity) shall be subject to the 

4 nondisclosure requirements applicable to the person to 

5 whom the order is issued. Any recipient authorized 

6 under this subsection to disclose to a person informa7 tion otherwise subject to a nondisclosure requirement 

8 shall notify the person of the applicable nondisclosure 

9 requirement. 

10 ‘‘(8) SUPPORTING DOCUMENTATION.—Upon serv11 ing a provider of electronic communications service or 

12 remote computing service with an order granted 

13 under paragraph (2), or an extension of such order 

14 granted under paragraph (3), the governmental entity 

15 shall include a copy of the warrant, order, or sub16 poena to which the nondisclosure order applies. 

17 ‘‘(9) EXPIRATION OF ORDER PRECLUDING NO18 TICE.—Upon expiration of an order issued under 

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

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

21 governmental entity shall deliver to the customer or 

22 subscriber, 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 reasonVerDate Sep 11 2014 01:03 Jun 14, 2022 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H7072.RH H7072

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1 ably calculated to reach the customer or subscriber 

2 within 72 hours of the expiration of the order— 

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

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

6 subscriber— 

7 ‘‘(i) of the nature of the law enforce8 ment inquiry with reasonable specificity; 

9 ‘‘(ii) that information maintained for 

10 such customer or subscriber by the provider 

11 of electronic communications service or re12 mote computing service to which the war13 rant, order, or subpoena under section 2703, 

14 was directed was supplied to or requested 

15 by the government entity; 

16 ‘‘(iii) that notification of such cus17 tomer or subscriber was precluded by court 

18 order; 

19 ‘‘(iv) of the identity of the court au20 thorizing the preclusion of notice; 

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

22 under which the preclusion of notice was 

23 authorized; and 

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

25 request by the customer or subscriber, proVerDate Sep 11 2014 01:03 Jun 14, 2022 Jkt 029200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H7072.RH H7072

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1 vide the customer or subscriber with a copy 

2 of the information that was disclosed in re3 sponse to the warrant, order or subpoena, or 

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

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

8 expiration of the order precluding notice issued under 

9 paragraph (2) or (3) of this subsection, and at the re10 quest of the customer or subscriber made within 180 

11 days of receiving notification under paragraph (9), 

12 the governmental entity shall promptly provide the 

13 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 amend23 ed by adding at the end the following: 

24 ‘‘(c) ANNUAL REPORT.—On an annual basis, the At25 torney General shall provide to the Committees on the JudiVerDate Sep 11 2014 01:03 Jun 14, 2022 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H7072.RH H7072

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1 ciary of the House of Representatives and the Senate, in 

2 a manner consistent with protection of national security, 

3 a report setting forth with respect to the preceding calendar 

4 year, for each Federal judicial district— 

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

6 respect to whom, in that calendar year, a warrant, 

7 subpoena, or court order was issued pursuant to sec8 tion 2703; 

9 ‘‘(2) the aggregate number of applications re10 questing delay of notification pursuant to section 

11 2705; 

12 ‘‘(3) the aggregate number of such orders either 

13 granted, extended, or denied; 

14 ‘‘(4) the aggregate number of such orders tar15 geting a member of the news media, including any 

16 conduct related to activities protected under the First 

17 Amendment; and 

18 ‘‘(5) the aggregate number of arrests, trials, and 

19 convictions, resulting from investigations in which 

20 such orders were obtained, including the offenses for 

21 which individuals were arrested, tried, or convicted. 

22 The Attorney General shall include in the report under this 

23 subsection a description of the process and the information 

24 used to determine the numbers for each of paragraphs (1) 

25 through (5).’’. 


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Union Calendar No. 273 

117TH CONGRESS 

2D SESSION H. R. 7072 

[Report No. 117–361] 

A BILL 

To amend title 18, United States Code, to modify 

poses. delayed notice requirements, and for other purJUNE 13, 2022 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


kjohnson on DSK79L0C42PROD with BILLS