NDO Fairness Act

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 7072) to amend title 18, United States Code, to modify delayed notice requirements, and for other purposes, as amended.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on H.R. 7072.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, as a proud cosponsor, I rise in strong support of H.R. 7072, the NDO Fairness Act, crucial bipartisan surveillance reform legislation that recently passed out of the Judiciary Committee on a voice vote.

This legislation would establish important guardrails for when the government seeks to access someone's electronic communications without that person's knowledge. Under current law, after the government obtains a court's permission to search the contents of a person's electronic communications, prosecutors must then compel the email service provider to produce the relevant data. To avoid having the service provider turn around and tell its customer about the search, the government can also ask the court to grant a nondisclosure order, colloquially referred to as a secrecy or gag order.

Right now, there is no time limit to these orders. There is no standard to meet. All the government needs to do is cite one of five potential adverse results, with no showing that it is necessary, and the court may grant the request.

This bill requires the government to show and the courts to be convinced that the secrecy order is actually needed, rather than allowing both to treat this as a check-the-box activity. Gag orders would be granted for a much shorter period of time, with the opportunity for extensions only as necessary. When the orders expire or are no longer necessary, the government would need to provide to the customer the warrant, details regarding the search, and a copy of any information disclosed.

Prosecutors frequently seek secrecy orders in cases where there is clearly no need and in situations where the government alone benefits. Unlike when a physical search occurs and a person has the right to go to court to dispute the warrant, NDOs can keep the subject of the search in the dark until a court reverses the order. In the 21st century, Federal prosecutors no longer need to show up to your office. They just need to raid your virtual office secretly.

The NDO Fairness Act would do away with that rubber stamp by ensuring that courts apply a strict scrutiny standard to government requests with a written determination explaining their reasoning. By time- limiting nondisclosure orders, raising the standard of review, and ensuring that service providers have standing when they object, H.R. 7072 inserts transparency, reason, and balance into a system that for too long has been a free-for-all for government prosecutors simply by virtue of it being too easy to overuse.

If history and recent reporting has taught us anything, it is that we cannot trust the Department of Justice--under any administration--to police itself. It is imperative that the House of Representatives fulfill its role and ensure our laws are keeping pace with rapidly changing technology.

Madam Speaker, I thank Chairman Nadler and Congressman Fitzgerald for their leadership on this bill and our friends, Senator Leahy and Senator Lee, for their leadership in the Senate.

Madam Speaker, I urge my colleagues to vote ``yes'' on the bill, and I reserve the balance of my time.

Madam Speaker, I have no further speakers. I reserve the balance of my time.

Madam Speaker, I yield myself the balance of my time.

H.R. 7072 will insert due process protections into a system too often abused by Federal prosecutors.

Under the Stored Communications Act, the government often has no obligation to tell you that they have requested access to your email records. It can prohibit your service provider from informing you of the search, even if your contract with the provider requires such notice.

The NDO Fairness Act will require that the government show a need for a gag order. It installs commonsense protections to ensure that any such orders are time-limited and subject to scrutiny for renewal.

Madam Speaker, I encourage my colleagues to vote ``yes'' and pass this important legislation today, and I yield back the balance of my time.

Madam Speaker, I rise in defense of Americans' right to due process in support of the NDO Fairness Act.

This bill amends 18 U.S.C. 2705 to increase the federal regulation of law enforcement's use of non-disclosure orders or ``gag orders''.

H.R. 7072 requires federal prosecutors to have obtained a written determination from a court proving that their use of a non-disclosure order is necessary.

This bill also would establish a 30-day limit for gag orders, which can be extended for 30 days if deemed necessary.

After the gag-order expires, law enforcement must ensure that the person subject to the gag-order has been notified within 72 hours.

This bill also creates the historic and necessary right for cellular service providers to contest prosecutors' gag orders in court.

Under the status quo, the process for prosecutors to request and be granted access to an individual's personal electronic communication is streamlined, unregulated, and relatively unrestrained.

Prosecutors then petition for a non-disclosure order, stripping the subject's right to know their personal information is being searched.

The NDO also prohibits the subject's ability to block the search of their personal data.

If this intrusion were done in-person--meaning that the government shows up to a person's home, accesses their desktop, secures their personal data, and then refuses to tell that citizen--Americans would be outraged.

The searching of online data is just as egregious a violation of personal privacy.

Establishing transparency within our democracy, especially within our criminal justice system, is necessary to ensure the legitimacy of government and the preservation of our Union.

Just because the ecosystem for data has changed from analog to digital does not give the government the right to full access of whatever information they see as necessary for prosecution.

This legislation tips the scales of justice back toward the American citizen, protecting them from unwarranted, unconstitutional searches of their property.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, the NDO Fairness Act is a significant step in addressing the government's overreach and abuse of nondisclosure orders, also known as gag orders.

All too often, the government obtains a court order to secretly demand the communications of American citizens from third-party tech companies like Apple, Google, Microsoft, and Verizon. Through these orders, the government blocks these companies from alerting their customers or users that the government is looking through their emails and phone records. In other words, you don't get to know.

The frequency with which the government uses these orders to demand information is shocking. One company received 2,400 to 3,500 orders every year between 2016 and 2021. That is 7 to 10 orders every day-- every single day. Some of those orders do not contain an expiration. That means the government is authorized to spy on Americans' private information indefinitely.

Think about that, Madam Speaker. You may never know that the government accessed and snooped on your most intimate information.

More astoundingly, these nondisclosure orders are often approved by a rubberstamp process for routine investigations without any real showing of the need for secrecy.

This bipartisan bill ensures that our rights enshrined in the Constitution are protected from government overreach. The bill requires courts to issue written decisions as to why orders are necessary. It sets a 60-day limit for such orders and allows providers to challenge unjustified orders in a court of law.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I urge a ``yes'' vote, and I yield back the balance of my time.