Washington, DC – Today, the House Judiciary Committee passed legislation led by Representative Scott Fitzgerald (WI-05). H.R. 7072, the NDO Fairness Act, will protect the due process rights of all Americans in the face of excessive government surveillance and data collection. The Committee passed the bill unanimously.
The legal protections currently available to Americans fail to provide a meaningful check against the government when it demands your data. Under current law, prosecutors can request a person’s electronic communications data, such as their e-mail and phone records, from a third-party service provider, even when the person being searched is not suspected of wrongdoing. There is very little opportunity for citizens to challenge such requests because prosecutors silence third-party service providers using non-disclosure orders (NDOs), also known as gag orders, that block them from notifying their customers.
NDOs were subject to increased scrutiny after it was revealed last year that prosecutors used them in electronic searches of Members of Congress and major news outlets, but abuse of secrecy orders is even more pervasive than that—schools, local governments, Fortune 500 companies, and countless others have had their data swept up by investigators looking to sidestep the basic protections afforded to Americans in criminal investigations. H.R. 7072 eliminates the rubber-stamp process that has governed email and phone records requests for far too long by requiring prosecutors demonstrate why there is a need to withhold information from American citizens.
“Protecting Americans from excessive government surveillance is vital in this day and age,” said Congressman Fitzgerald. “Without any safeguards in place, the government has had easy access to personal e-mail and phone records without adequate protections for the individual being investigated. With the Biden Administration’s politicized DOJ, this is a necessary piece of legislation to enforce guardrails and Constitutional protections for Americans who face federal surveillance.”
The NDO Fairness Act would insert necessary guardrails by amending 18 U.S.C. 2705 to:
• Require a written determination from the court finding a non-disclosure order necessary to prevent a substantially likely adverse result.
• Provide for strict scrutiny analysis to grant a gag order request under 18 U.S.C. 2705(b).
• Establish a 30-day limit for gag orders, with the opportunity for additional 30-day extensions.
• Require notice be given to the customer within 72 hours of the expiration of the delay, including what information was disclosed.
• Allow providers to contest gag orders in court.