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House Judiciary Committee Unanimously Approves NDO Fairness Act

Bipartisan bill will restore protections to gag order process

Washington, D.C. - The House Judiciary Committee today unanimously passed bipartisan legislation that would establish important guardrails for when the federal government seeks to access someone’s electronic communications without that person’s knowledge. Under current law, prosecutors can request a person’s electronic communications data, such as their e-mail and phone records, even when the subject of the search is not suspected of wrongdoing. In these searches, prosecutors often request an accompanying non-disclosure order (NDO) to block service providers from notifying their customers about the search and preventing the person being investigated from challenging the order in court. The NDO Fairness Act (H.R. 7072) eliminates the rubber-stamp process that has governed email and phone records requests for too long by requiring prosecutors demonstrate why there is a need to withhold information from American citizens.

“The NDO Fairness Act is about just that: fairness. This important privacy legislation would insert balance and fairness into a system that for too long has been a free-for-all for government prosecutors,” said Chairman Nadler. “In the 21st century, federal prosecutors no longer need to show up to your office. They just need to raid your virtual office, which leaves American citizens and businesses at the whims of a secret process that is all too easy to abuse. I thank my colleagues for their support and I’m proud this important legislation is one step closer to becoming law.”

The NDO Fairness Act, which passed the committee by voice vote today, would:

  • 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 60-day limit for gag orders, with the opportunity for additional 60-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.
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