IB 
Union Calendar No. 37 
118TH CONGRESS 
1ST SESSION H. R. 3089 
[Report No. 118–54] 
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 
MAY 15, 2023 
Reported from the Committee on the Judiciary; committed to the Committee 
of the Whole House on the State of the Union and ordered to be printed 
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A BILL 
To amend title 18, United States Code, to modify delayed 
notice requirements, and for other purposes. 
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Be it enacted by the Senate and House of Representa-
tives 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 ex-
tent that it may delay such notice pursuant to 
subsection (a), may apply to a court for an 
order, subject to paragraph (6), directing a pro-
vider of electronic communications service or re-
mote computing service to which a warrant, 
order, or subpoena under section 2703 is di-
rected not to notify any other person of the ex-
istence 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.— 
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‘‘(i) IN GENERAL.—A application for 
an order under subparagraph (A) shall 
state, to the best of the applicant’s knowl-
edge, whether the named customer or sub-
scriber whose information is sought by the 
warrant, order, or subpoena under section 
2703— 
‘‘(I) is aware of the warrant, 
order, subpoena, or underlying inves-
tigation; 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 com-
puting service to provide notification of the 
expiration of order to the court or govern-
ment entity that sought the order. 
‘‘(2) DETERMINATION.— 
‘‘(A) IN
GENERAL.—The court may not 
grant a request for an order made under para-
graph (1), or an extension of such order re-
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quested by the governmental entity pursuant to 
paragraph (3), unless— 
‘‘(i) the court issues a written deter-
mination, 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 phys-
ical safety of an individual; 
‘‘(II) flight from prosecution; 
‘‘(III) destruction of or tam-
pering with evidence; 
‘‘(IV) intimidation of potential 
witnesses; or 
‘‘(V) otherwise seriously jeopard-
izing an investigation or unduly delay-
ing 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 rep-
resentation to the named customer or sub-
scriber, that is not likely to result in an 
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adverse result as described in clauses (i) 
through (v) of subparagraph (A); and 
‘‘(iii) the court has reviewed the indi-
vidual 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 determina-
tion required under paragraph (2)(A) and the exten-
sion is in accordance with the requirements of 
(2)(B). 
‘‘(4) 
NOTIFICATION
OF
CHANGED
CIR-
CUMSTANCES.—If the need for the order issued 
under paragraph (2) changes materially, the govern-
mental 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 
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the court shall reassess the order and modify or va-
cate 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 pro-
vider 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 require-
ments provided in paragraph (2) or (3); or 
‘‘(ii) compliance with the order is un-
reasonable or otherwise unlawful. 
‘‘(B) STAY
OF
DISCLOSURE
OF
NAMED 
CUSTOMER
OR
SUBSCRIBER
COMMUNICATIONS 
OR RECORDS.—A provider’s obligation to dis-
close the information requested in the warrant, 
order, or subpoena to which the order in para-
graph (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 juris-
diction over the challenge determines based on 
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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 non-
disclosure 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 
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to the nondisclosure requirements applicable to the 
person to whom the order is issued. Any recipient 
authorized under this subsection to disclose to a per-
son 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 serv-
ice or remote computing service with an order grant-
ed under paragraph (2), or an extension of such 
order granted under paragraph (3), the govern-
mental entity shall include a copy of the warrant, 
order, or subpoena to which the nondisclosure order 
applies. 
‘‘(9) EXPIRATION OF ORDER PRECLUDING NO-
TICE.—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 cus-
tomer 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— 
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‘‘(A) a copy of the warrant, order, or sub-
poena; and 
‘‘(B) notice that informs the named cus-
tomer or subscriber— 
‘‘(i) of the nature of the law enforce-
ment inquiry with reasonable specificity; 
‘‘(ii) that information maintained for 
such customer or subscriber by the pro-
vider of electronic communications service 
or remote computing service to which the 
warrant, order, or subpoena under section 
2703, was directed was supplied to or re-
quested by the government entity; 
‘‘(iii) that notification of such cus-
tomer or subscriber was precluded by court 
order; 
‘‘(iv) of the identity of the court au-
thorizing 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 noti-
fication under this paragraph, provide the 
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named customer or subscriber with a copy 
of the information that was disclosed in re-
sponse to the warrant, order or subpoena, 
or in the event that no information was 
disclosed, a written certification that no in-
formation 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 sub-
scriber made within 180 days of receiving notifica-
tion under paragraph (9), the governmental entity 
shall promptly provide the named customer or sub-
scriber— 
‘‘(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 infor-
mation was disclosed. 
‘‘(11) REDACTIONS.—Any information disclosed 
pursuant to paragraphs (9) and (10) may be re-
dacted only if a court finds such redactions nec-
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essary to preserve the secrecy or integrity of an in-
vestigation.’’. 
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 At-
torney General shall provide to the Committee on the Ju-
diciary 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 Adminis-
trative 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 sub-
scribers with respect to whom, in that calendar year, 
a warrant, subpoena, or court order was issued pur-
suant to section 2703; 
‘‘(2) the aggregate number of applications re-
questing delay of notification pursuant to subsection 
(a)(1), preclusion of notice pursuant to subsection 
(b)(1), and extensions pursuant to subsection (b)(3); 
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‘‘(3) the aggregate number of orders under this 
section either granting, extending, or denying a re-
quest for delay of notification or preclusion of notice; 
‘‘(4) the aggregate number of orders under this 
section affecting a member of the news media, in-
cluding 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, in-
cluding the offenses for which individuals were ar-
rested, tried, or convicted. 
The Attorney General shall include in the report under 
this subsection a description of the process and the infor-
mation used to determine the numbers for each of para-
graphs (1) through (5).’’. 
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