NDO Fairness Act

The bill would amend the Stored Communications Act to tighten the standards for nondisclosure orders (NDOs), which are court orders that prevent electronic communications or remote computing service providers from telling customers that the government has compelled disclosure of their records. A court could only grant an NDO upon a written determination — based on specific and articulable facts, with findings of fact and conclusions of law — that withholding notice is necessary to prevent one of five enumerated harms: endangering a life, enabling flight from prosecution, destruction or tampering with evidence, intimidating witnesses, or seriously jeopardizing an investigation. Courts would also be required to review the underlying warrant or subpoena before issuing an NDO, and orders would have to be narrowly tailored with no less-restrictive alternative available.

NDOs would generally be limited to 90 days, extendable in 90-day increments by court order; a longer maximum of one year would apply to child sexual exploitation investigations. When an order expires, the government would be required to notify the targeted customer within five business days by at least two approved methods, and to provide a copy of the disclosed information upon the customer's request within 180 days. The Attorney General would be required to report annually to Congress on NDO applications, orders granted or denied, and orders targeting media members.

Electronic communications and remote computing service providers — including email, cloud, and telephone companies — that receive government data demands; customers and subscribers whose stored records are sought by law enforcement; journalists and media organizations potentially targeted by NDO-covered subpoenas; federal courts reviewing NDO applications; and the Department of Justice, which would face new annual reporting obligations.

If enacted, targeted customers would gain a new right to learn after the fact that their records were obtained, and to receive a copy of what was disclosed. Courts would face a higher procedural bar before approving government secrecy requests, and providers would gain an explicit statutory right to challenge NDOs. The annual public reporting requirement would give Congress and the public a new window into how often, and in what contexts, these orders are used — including against the press.

Courts would apply the new heightened standard on each NDO application, issuing written findings before granting an order and separately reviewing the underlying warrant or subpoena. If circumstances change materially, the government would have up to 14 days to notify the court, which would reassess the order. Providers could petition the court to modify or vacate an order; disclosure obligations would be stayed during that challenge. Upon NDO expiration, the government would deliver notice by at least two approved methods within five business days. The Attorney General would annually compile and publish a district-by-district report on the DOJ website, covering applications, orders granted or denied, and orders affecting media figures.