NDO Fairness Act

Subjects: Crime and Law Enforcement, Business records, Computers and information technology, Congressional oversight, Consumer affairs, Criminal investigation, prosecution, interrogation, Internet, web applications, social media, Judicial procedure and administration, Right of privacy, Telephone and wireless communication


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3089 Introduced in House (IH)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                H. R. 3089

    To amend title 18, United States Code, to modify delayed notice 
                 requirements, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 5, 2023

 Mr. Fitzgerald (for himself and Mr. Nadler) 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``NDO Fairness Act''.

SEC. 2. PRECLUSION OF NOTICE.

    Section 2705(b) of title 18, United States Code, is amended to read 
as follows:
    ``(b) Preclusion of Notice.--
            ``(1) Application.--
                    ``(A) In general.--A governmental entity that is 
                seeking a warrant, order, or subpoena under section 
                2703, when it is not required to notify the customer or 
                subscriber, or to the extent that it may delay such 
                notice pursuant to subsection (a), may apply to a court 
                for an order, subject to paragraph (6), directing a 
                provider of electronic communications service or remote 
                computing service to which a warrant, order, or 
                subpoena under section 2703 is directed not to notify 
                any other person of the existence of the warrant, 
                order, or subpoena.
                    ``(B) Length.--An order granted under subparagraph 
                (A) shall be in effect for a period of not more than 90 
                days.
                    ``(C) Other requirements.--
                            ``(i) In general.--A application for an 
                        order under subparagraph (A) shall state, to 
                        the best of the applicant's knowledge, whether 
                        the named customer or subscriber whose 
                        information is sought by the warrant, order, or 
                        subpoena under section 2703--
                                    ``(I) is aware of the warrant, 
                                order, subpoena, or underlying 
                                investigation; and
                                    ``(II) is suspected of involvement 
                                in the commission of the crime under 
                                investigation.
                            ``(ii) Orders.--An order granted under this 
                        paragraph may not direct, or otherwise require, 
                        a provider of electronic communications service 
                        or remote computing service to provide 
                        notification of the expiration of order to the 
                        court or government entity that sought the 
                        order.
            ``(2) Determination.--
                    ``(A) In general.--The court may not grant a 
                request for an order made under paragraph (1), or an 
                extension of such order requested by the governmental 
                entity pursuant to paragraph (3), unless--
                            ``(i) the court issues a written 
                        determination, based on specific and 
                        articulable facts, and including written 
                        findings of fact and conclusions of law, that 
                        it is likely that not granting the request will 
                        result in--
                                    ``(I) endangering the life or 
                                physical safety of an individual;
                                    ``(II) flight from prosecution;
                                    ``(III) destruction of or tampering 
                                with evidence;
                                    ``(IV) intimidation of potential 
                                witnesses; or
                                    ``(V) otherwise seriously 
                                jeopardizing an investigation or unduly 
                                delaying a trial; and
                            ``(ii) the order is narrowly tailored and 
                        there is no less restrictive alternative, 
                        including notification to an individual or 
                        organization within or providing legal 
                        representation to the named customer or 
                        subscriber, that is not likely to result in an 
                        adverse result as described in clauses (i) 
                        through (v) of subparagraph (A); and
                            ``(iii) the court has reviewed the 
                        individual warrant, order, or subpoena under 
                        section 2703 to which the order issued under 
                        this paragraph applies.
                    ``(B) Nature of the offense.--The court may 
                consider the nature of the offense in issuing a 
                determination under subparagraph (A).
            ``(3) Extension.--A governmental entity may request one or 
        more extensions of an order granted under paragraph (2) of not 
        more than 90 days for each such extension. The court may only 
        grant such an extension if the court makes a written 
        determination required under paragraph (2)(A) and the extension 
        is in accordance with the requirements of (2)(B).
            ``(4) Notification of changed circumstances.--If the need 
        for the order issued under paragraph (2) changes materially, 
        the governmental entity that requested the order shall notify 
        the court within a reasonable period of time (not to exceed 14 
        days) of the changed circumstances, and the court shall 
        reassess the order and modify or vacate as appropriate.
            ``(5) Opportunity to be heard.--
                    ``(A) In general.--Upon an application, petition, 
                or motion by a provider of electronic communications 
                service or remote computing service or person acting on 
                behalf of the provider to which an order under 
                paragraph (2) (or an extension under paragraph (3)) has 
                been issued, the court may modify or vacate the order 
                if--
                            ``(i) the order does not meet requirements 
                        provided in paragraph (2) or (3); or
                            ``(ii) compliance with the order is 
                        unreasonable or otherwise unlawful.
                    ``(B) Stay of disclosure of named customer or 
                subscriber communications or records.--A provider's 
                obligation to disclose the information requested in the 
                warrant, order, or subpoena to which the order in 
                paragraph (1) applies is stayed upon the filing of the 
                application, petition, or motion under this paragraph 
                pending resolution of the application, petition, or 
                motion, unless the court with jurisdiction over the 
                challenge determines based on a showing by the 
                governmental entity that the stay should be lifted in 
                whole or in part prior to resolution.
                    ``(C)  Finality of order.--The decision of the 
                court resolving an application, petition, or motion 
                under this paragraph shall constitute a final, 
                appealable order.
            ``(6) Exception.--A provider of electronic communications 
        service or remote computing service to which an order under 
        paragraph (2) applies, or an officer, employee, or agent 
        thereof, may disclose information otherwise subject to any 
        applicable nondisclosure requirement to--
                    ``(A) those persons to whom disclosure is necessary 
                in order to comply with the warrant, order, or 
                subpoena;
                    ``(B) an attorney in order to obtain legal advice 
                or assistance regarding the order issued under 
                paragraph (2) or the warrant, order, or subpoena to 
                which the order applies; and
                    ``(C) any person the court determines can be 
                notified of the warrant, order, or subpoena.
            ``(7) Scope of nondisclosure.--Any person to whom 
        disclosure is made under paragraph (6) (other than the 
        governmental entity) shall be subject to the nondisclosure 
        requirements applicable to the person to whom the order is 
        issued. Any recipient authorized under this subsection to 
        disclose to a person information otherwise subject to a 
        nondisclosure requirement shall notify the person of the 
        applicable nondisclosure requirement.
            ``(8) Supporting documentation.--Upon serving a provider of 
        electronic communications service or remote computing service 
        with an order granted under paragraph (2), or an extension of 
        such order granted under paragraph (3), the governmental entity 
        shall include a copy of the warrant, order, or subpoena to 
        which the nondisclosure order applies.
            ``(9) Expiration of order precluding notice.--Upon 
        expiration of an order issued under paragraph (2) or, if an 
        extension has been granted under paragraph (3), expiration of 
        the extension, the governmental entity shall deliver to the 
        named customer or subscriber, by at least 2 methods, which 
        shall be personal service, registered or first-class mail, 
        electronic mail, or other means approved by the court as 
        reasonably calculated to reach the named customer or subscriber 
        within 5 business days of the expiration of the order--
                    ``(A) a copy of the warrant, order, or subpoena; 
                and
                    ``(B) notice that informs the named customer or 
                subscriber--
                            ``(i) of the nature of the law enforcement 
                        inquiry with reasonable specificity;
                            ``(ii) that information maintained for such 
                        customer or subscriber by the provider of 
                        electronic communications service or remote 
                        computing service to which the warrant, order, 
                        or subpoena under section 2703, was directed 
                        was supplied to or requested by the government 
                        entity;
                            ``(iii) that notification of such customer 
                        or subscriber was precluded by court order;
                            ``(iv) of the identity of the court 
                        authorizing the preclusion of notice;
                            ``(v) of the provision of this chapter 
                        under which the preclusion of notice was 
                        authorized; and
                            ``(vi) that the government will, upon 
                        request by the customer or subscriber made 
                        within 180 days after receiving notification 
                        under this paragraph, provide the named 
                        customer or subscriber with a copy of the 
                        information that was disclosed in response to 
                        the warrant, order or subpoena, or in the event 
                        that no information was disclosed, a written 
                        certification that no information was 
                        disclosed.
            ``(10) Copy of information disclosed.--Upon expiration of 
        the order precluding notice issued under paragraph (2) or (3) 
        of this subsection, and at the request of the named customer or 
        subscriber made within 180 days of receiving notification under 
        paragraph (9), the governmental entity shall promptly provide 
        the named customer or subscriber--
                    ``(A) with a copy of the information that was 
                disclosed in response to the warrant, order or subpoena 
                (except illicit records, child sexual abuse material, 
                and other illegal material); or
                    ``(B) in the event that no information was 
                disclosed, a written certification that no information 
                was disclosed.
            ``(11) Redactions.--Any information disclosed pursuant to 
        paragraphs (9) and (10) may be redacted only if a court finds 
        such redactions necessary to preserve the secrecy or integrity 
        of an investigation.''.

SEC. 3. ADDITIONAL PROVISIONS REGARDING DELAYED NOTICE.

    Section 2705 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(c) Annual Report.--On an annual basis, the Attorney General 
shall provide to the Committee on the Judiciary of the House of 
Representatives, the Committee on the Judiciary of the Senate, and the 
Director of the Administrative Office of the United States Courts, 
which the Director shall publish on the website of the Administrative 
Office of the United States Courts, in a manner consistent with 
protection of national security, a report setting forth with respect to 
the preceding calendar year, for each Federal judicial district--
            ``(1) the number of named customers or subscribers with 
        respect to whom, in that calendar year, a warrant, subpoena, or 
        court order was issued pursuant to section 2703;
            ``(2) the aggregate number of applications requesting delay 
        of notification pursuant to subsection (a)(1), preclusion of 
        notice pursuant to subsection (b)(1), and extensions pursuant 
        to subsection (b)(3);
            ``(3) the aggregate number of orders under this section 
        either granting, extending, or denying a request for delay of 
        notification or preclusion of notice;
            ``(4) the aggregate number of orders under this section 
        affecting a member of the news media, including any conduct 
        related to activities protected under the First Amendment; and
            ``(5) the aggregate number of arrests, trials, and 
        convictions, resulting from investigations in which orders 
        under this section were obtained, including the offenses for 
        which individuals were arrested, tried, or convicted.
The Attorney General shall include in the report under this subsection 
a description of the process and the information used to determine the 
numbers for each of paragraphs (1) through (5).''.
                                 &lt;all&gt;
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