NDO Fairness Act

IIB 118TH CONGRESS 1ST SESSION H. R. 3089 IN THE SENATE OF THE UNITED STATES MAY 16, 2023 Received; read twice and referred to the Committee on the Judiciary AN ACT 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 2 HR 3089 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘NDO Fairness Act’’. 2 SEC. 2. PRECLUSION OF NOTICE. 3 Section 2705(b) of title 18, United States Code, is 4 amended to read as follows: 5 ‘‘(b) PRECLUSION OF NOTICE.— 6 ‘‘(1) APPLICATION.— 7 ‘‘(A) IN GENERAL.—A governmental entity 8 that is seeking a warrant, order, or subpoena 9 under section 2703, when it is not required to 10 notify the customer or subscriber, or to the ex- 11 tent that it may delay such notice pursuant to 12 subsection (a), may apply to a court for an 13 order, subject to paragraph (6), directing a pro- 14 vider of electronic communications service or re- 15 mote computing service to which a warrant, 16 order, or subpoena under section 2703 is di- 17 rected not to notify any other person of the ex- 18 istence of the warrant, order, or subpoena. 19 ‘‘(B) LENGTH.—An order granted under 20 subparagraph (A) shall be in effect for a period 21 of not more than 90 days. 22 ‘‘(C) OTHER REQUIREMENTS.— 23 ‘‘(i) IN GENERAL.—A application for 24 an order under subparagraph (A) shall 25 state, to the best of the applicant’s knowl- 26 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 3 HR 3089 RFS edge, whether the named customer or sub- 1 scriber whose information is sought by the 2 warrant, order, or subpoena under section 3 2703— 4 ‘‘(I) is aware of the warrant, 5 order, subpoena, or underlying inves- 6 tigation; and 7 ‘‘(II) is suspected of involvement 8 in the commission of the crime under 9 investigation. 10 ‘‘(ii) ORDERS.—An order granted 11 under this paragraph may not direct, or 12 otherwise require, a provider of electronic 13 communications service or remote com- 14 puting service to provide notification of the 15 expiration of order to the court or govern- 16 ment entity that sought the order. 17 ‘‘(2) DETERMINATION.— 18 ‘‘(A) IN GENERAL.—The court may not 19 grant a request for an order made under para- 20 graph (1), or an extension of such order re- 21 quested by the governmental entity pursuant to 22 paragraph (3), unless— 23 ‘‘(i) the court issues a written deter- 24 mination, based on specific and articulable 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 4 HR 3089 RFS facts, and including written findings of 1 fact and conclusions of law, that it is likely 2 that not granting the request will result 3 in— 4 ‘‘(I) endangering the life or phys- 5 ical safety of an individual; 6 ‘‘(II) flight from prosecution; 7 ‘‘(III) destruction of or tam- 8 pering with evidence; 9 ‘‘(IV) intimidation of potential 10 witnesses; or 11 ‘‘(V) otherwise seriously jeopard- 12 izing an investigation or unduly delay- 13 ing a trial; and 14 ‘‘(ii) the order is narrowly tailored 15 and there is no less restrictive alternative, 16 including notification to an individual or 17 organization within or providing legal rep- 18 resentation to the named customer or sub- 19 scriber, that is not likely to result in an 20 adverse result as described in clauses (i) 21 through (v) of subparagraph (A); and 22 ‘‘(iii) the court has reviewed the indi- 23 vidual warrant, order, or subpoena under 24 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 5 HR 3089 RFS section 2703 to which the order issued 1 under this paragraph applies. 2 ‘‘(B) NATURE OF THE OFFENSE.—The 3 court may consider the nature of the offense in 4 issuing a determination under subparagraph 5 (A). 6 ‘‘(3) EXTENSION.—A governmental entity may 7 request one or more extensions of an order granted 8 under paragraph (2) of not more than 90 days for 9 each such extension. The court may only grant such 10 an extension if the court makes a written determina- 11 tion required under paragraph (2)(A) and the exten- 12 sion is in accordance with the requirements of 13 (2)(B). 14 ‘‘(4) NOTIFICATION OF CHANGED CIR- 15 CUMSTANCES.—If the need for the order issued 16 under paragraph (2) changes materially, the govern- 17 mental entity that requested the order shall notify 18 the court within a reasonable period of time (not to 19 exceed 14 days) of the changed circumstances, and 20 the court shall reassess the order and modify or va- 21 cate as appropriate. 22 ‘‘(5) OPPORTUNITY TO BE HEARD.— 23 ‘‘(A) IN GENERAL.—Upon an application, 24 petition, or motion by a provider of electronic 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 6 HR 3089 RFS communications service or remote computing 1 service or person acting on behalf of the pro- 2 vider to which an order under paragraph (2) 3 (or an extension under paragraph (3)) has been 4 issued, the court may modify or vacate the 5 order if— 6 ‘‘(i) the order does not meet require- 7 ments provided in paragraph (2) or (3); or 8 ‘‘(ii) compliance with the order is un- 9 reasonable or otherwise unlawful. 10 ‘‘(B) STAY OF DISCLOSURE OF NAMED 11 CUSTOMER OR SUBSCRIBER COMMUNICATIONS 12 OR RECORDS.—A provider’s obligation to dis- 13 close the information requested in the warrant, 14 order, or subpoena to which the order in para- 15 graph (1) applies is stayed upon the filing of 16 the application, petition, or motion under this 17 paragraph pending resolution of the application, 18 petition, or motion, unless the court with juris- 19 diction over the challenge determines based on 20 a showing by the governmental entity that the 21 stay should be lifted in whole or in part prior 22 to resolution. 23 ‘‘(C) FINALITY OF ORDER.—The decision 24 of the court resolving an application, petition, 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 7 HR 3089 RFS or motion under this paragraph shall constitute 1 a final, appealable order. 2 ‘‘(6) EXCEPTION.—A provider of electronic 3 communications service or remote computing service 4 to which an order under paragraph (2) applies, or 5 an officer, employee, or agent thereof, may disclose 6 information otherwise subject to any applicable non- 7 disclosure requirement to— 8 ‘‘(A) those persons to whom disclosure is 9 necessary in order to comply with the warrant, 10 order, or subpoena; 11 ‘‘(B) an attorney in order to obtain legal 12 advice or assistance regarding the order issued 13 under paragraph (2) or the warrant, order, or 14 subpoena to which the order applies; and 15 ‘‘(C) any person the court determines can 16 be notified of the warrant, order, or subpoena. 17 ‘‘(7) SCOPE OF NONDISCLOSURE.—Any person 18 to whom disclosure is made under paragraph (6) 19 (other than the governmental entity) shall be subject 20 to the nondisclosure requirements applicable to the 21 person to whom the order is issued. Any recipient 22 authorized under this subsection to disclose to a per- 23 son information otherwise subject to a nondisclosure 24 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 8 HR 3089 RFS requirement shall notify the person of the applicable 1 nondisclosure requirement. 2 ‘‘(8) SUPPORTING DOCUMENTATION.—Upon 3 serving a provider of electronic communications serv- 4 ice or remote computing service with an order grant- 5 ed under paragraph (2), or an extension of such 6 order granted under paragraph (3), the govern- 7 mental entity shall include a copy of the warrant, 8 order, or subpoena to which the nondisclosure order 9 applies. 10 ‘‘(9) EXPIRATION OF ORDER PRECLUDING NO- 11 TICE.—Upon expiration of an order issued under 12 paragraph (2) or, if an extension has been granted 13 under paragraph (3), expiration of the extension, the 14 governmental entity shall deliver to the named cus- 15 tomer or subscriber, by at least 2 methods, which 16 shall be personal service, registered or first-class 17 mail, electronic mail, or other means approved by 18 the court as reasonably calculated to reach the 19 named customer or subscriber within 5 business 20 days of the expiration of the order— 21 ‘‘(A) a copy of the warrant, order, or sub- 22 poena; and 23 ‘‘(B) notice that informs the named cus- 24 tomer or subscriber— 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 9 HR 3089 RFS ‘‘(i) of the nature of the law enforce- 1 ment inquiry with reasonable specificity; 2 ‘‘(ii) that information maintained for 3 such customer or subscriber by the pro- 4 vider of electronic communications service 5 or remote computing service to which the 6 warrant, order, or subpoena under section 7 2703, was directed was supplied to or re- 8 quested by the government entity; 9 ‘‘(iii) that notification of such cus- 10 tomer or subscriber was precluded by court 11 order; 12 ‘‘(iv) of the identity of the court au- 13 thorizing the preclusion of notice; 14 ‘‘(v) of the provision of this chapter 15 under which the preclusion of notice was 16 authorized; and 17 ‘‘(vi) that the government will, upon 18 request by the customer or subscriber 19 made within 180 days after receiving noti- 20 fication under this paragraph, provide the 21 named customer or subscriber with a copy 22 of the information that was disclosed in re- 23 sponse to the warrant, order or subpoena, 24 or in the event that no information was 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 10 HR 3089 RFS disclosed, a written certification that no in- 1 formation was disclosed. 2 ‘‘(10) COPY OF INFORMATION DISCLOSED.— 3 Upon expiration of the order precluding notice 4 issued under paragraph (2) or (3) of this subsection, 5 and at the request of the named customer or sub- 6 scriber made within 180 days of receiving notifica- 7 tion under paragraph (9), the governmental entity 8 shall promptly provide the named customer or sub- 9 scriber— 10 ‘‘(A) with a copy of the information that 11 was disclosed in response to the warrant, order 12 or subpoena (except illicit records, child sexual 13 abuse material, and other illegal material); or 14 ‘‘(B) in the event that no information was 15 disclosed, a written certification that no infor- 16 mation was disclosed. 17 ‘‘(11) REDACTIONS.—Any information disclosed 18 pursuant to paragraphs (9) and (10) may be re- 19 dacted only if a court finds such redactions nec- 20 essary to preserve the secrecy or integrity of an in- 21 vestigation.’’. 22 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 11 HR 3089 RFS SEC. 3. ADDITIONAL PROVISIONS REGARDING DELAYED 1 NOTICE. 2 Section 2705 of title 18, United States Code, is 3 amended by adding at the end the following: 4 ‘‘(c) ANNUAL REPORT.—On an annual basis, the At- 5 torney General shall provide to the Committee on the Ju- 6 diciary of the House of Representatives, the Committee 7 on the Judiciary of the Senate, and the Director of the 8 Administrative Office of the United States Courts, which 9 the Director shall publish on the website of the Adminis- 10 trative Office of the United States Courts, in a manner 11 consistent with protection of national security, a report 12 setting forth with respect to the preceding calendar year, 13 for each Federal judicial district— 14 ‘‘(1) the number of named customers or sub- 15 scribers with respect to whom, in that calendar year, 16 a warrant, subpoena, or court order was issued pur- 17 suant to section 2703; 18 ‘‘(2) the aggregate number of applications re- 19 questing delay of notification pursuant to subsection 20 (a)(1), preclusion of notice pursuant to subsection 21 (b)(1), and extensions pursuant to subsection (b)(3); 22 ‘‘(3) the aggregate number of orders under this 23 section either granting, extending, or denying a re- 24 quest for delay of notification or preclusion of notice; 25 VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB 12 HR 3089 RFS ‘‘(4) the aggregate number of orders under this 1 section affecting a member of the news media, in- 2 cluding any conduct related to activities protected 3 under the First Amendment; and 4 ‘‘(5) the aggregate number of arrests, trials, 5 and convictions, resulting from investigations in 6 which orders under this section were obtained, in- 7 cluding the offenses for which individuals were ar- 8 rested, tried, or convicted. 9 The Attorney General shall include in the report under 10 this subsection a description of the process and the infor- 11 mation used to determine the numbers for each of para- 12 graphs (1) through (5).’’. 13 Passed the House of Representatives May 15, 2023. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 01:47 May 17, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3089.RFS H3089 pbinns on DSKJLVW7X2PROD with $$_JOB