NDO Fairness Act
Bill: S.4373 | Sponsor: Sen. Leahy, Patrick J. (D-VT)
Policy area: Crime and Law Enforcement

Summary:
NDO Fairness Act
This bill makes various changes to the procedures and requirements with respect to delayed notification orders.
Current law authorizes the government to compel providers of electronic communication services or remote computing services to disclose certain records and information pertaining to subscribers and customers. Further, a provider may notify subscribers or customers of the government's request for records and information unless the government obtains a delayed notification order.
With respect to delayed notification orders, the bill
Finally, the bill requires the Department of Justice to report annually on data related to delayed notification orders, including the number of customers targeted; the number of applications for orders; the number of orders granted, extended, or denied; and the number of orders targeting members of the media or conduct related to certain protected activities.

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. DELAY OF NOTIFICATION.

    Section 2705(a) of title 18, United States Code, is amended to read 
as follows:
    ``(a) Delay of Notification.--
            ``(1) Application.--A governmental entity that is seeking a 
        warrant, order, or subpoena under section 2703 may include in 
        the application (or motion in the case of an administrative 
        subpoena authorized by a Federal or State statute or a Federal 
        or State grand jury or trial subpoena) a request to a court of 
        competent jurisdiction for an order delaying the notification 
        under section 2703 for a period of not more than 60 days.
            ``(2) Determination.--The court may not grant a request for 
        delayed notification to a customer or subscriber made under 
        paragraph (1), or an extension of such delayed notification 
        requested by the governmental entity pursuant to paragraph (3), 
        unless 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 substantially likely 
        that the notification of the customer or subscriber of the 
        existence of the warrant, order, or subpoena will result in--
                    ``(A) endangering the life or physical safety of an 
                individual;
                    ``(B) flight from prosecution;
                    ``(C) destruction of or tampering with evidence;
                    ``(D) intimidation of potential witnesses; or
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
            ``(3) Extension.--The governmental entity may request one 
        or more extensions of the delay of notification granted under 
        paragraph (2) for a period of not more than 60 days for each 
        such extension. The court may only grant such an extension if 
        the court makes a written determination required under 
        paragraph (2) and the extension is in accordance with the 
        requirements of such paragraph.
            ``(4) Expiration of delay of notification.--Upon expiration 
        of the period of delay of notification and all extensions 
        thereof under paragraphs (2) and (3) of this subsection, the 
        governmental entity shall deliver to the 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 
        customer or subscriber within 72 hours of the expiration of the 
        delay--
                    ``(A) a copy of the warrant, order, or subpoena; 
                and
                    ``(B) notice that informs such customer or 
                subscriber--
                            ``(i) of the nature of the inquiry made by 
                        the governmental entity, 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 
                        governmental entity;
                            ``(iii) that notification of such customer 
                        or subscriber was delayed by court order;
                            ``(iv) the identity of the court that 
                        issued such order;
                            ``(v) the provision of law under which the 
                        order delaying notification was authorized; and
                            ``(vi) that the governmental entity will, 
                        upon request by the customer or subscriber made 
                        within 180 days after receiving notification 
                        under this paragraph, provide the 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.
            ``(5) Copy of information disclosed.--Upon expiration of 
        the period of delay of notification under paragraph (2) or (3) 
        of this subsection, and at the request of the customer or 
        subscriber made within 180 days of receiving notification under 
        paragraph (4), the governmental entity shall promptly provide 
        the customer or subscriber--
                    ``(A) with a description of the information 
                disclosed and a copy of the information that was 
                disclosed in response to the warrant, order, or 
                subpoena; or
                    ``(B) in the event that no information was 
                disclosed, with a written certification that no 
                information was disclosed.''.

SEC. 3. 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 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 for a 
        period of not more than either 60 days or the period of delay 
        of notice provided under subsection (a), if any.
            ``(2) Determination.--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--
                    ``(A) 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 substantially 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
                    ``(B) 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 customer or subscriber, to 
                avoid an adverse result as described in clauses (i) 
                through (v) of subparagraph (A).
            ``(3) Extension.--A governmental entity may request one or 
        more extensions of an order granted under paragraph (2) of not 
        more than 60 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 72 hours 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
                            ``(ii) compliance with the order is 
                        unreasonable or otherwise unlawful.
                    ``(B) Stay of disclosure of 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 warrant, order, or 
                subpoena; 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 
        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 customer or subscriber within 72 hours 
        of the expiration of the order--
                    ``(A) a copy of the warrant, order, or subpoena; 
                and
                    ``(B) notice that informs the 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 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 customer or 
        subscriber made within 180 days of receiving notification under 
        paragraph (9), the governmental entity shall promptly provide 
        the customer or subscriber--
                    ``(A) with a copy of the information that was 
                disclosed in response to the warrant, order or 
                subpoena; or
                    ``(B) in the event that no information was 
                disclosed, a written certification that no information 
                was disclosed.''.

SEC. 4. 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 and the Committee on the Judiciary of the Senate, 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 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 subsections (a)(1) and (b)(1);
            ``(3) the aggregate number of orders under this section 
        either granting, extending, or denying a request for delay of 
        notification;
            ``(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).''.
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