Ndo Fairness Act
Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, let me, first of all, indicate that today is the National Fraternal Order of Police 42nd Annual National Peace Officers' Memorial Service, which I will make comments on…
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, let me, first of all, indicate that today is the National Fraternal Order of Police 42nd Annual National Peace Officers' Memorial Service, which I will make comments on throughout my discussion and debate of other bills. It is important to note the hundreds and hundreds of police officers that are here to honor those who have fallen in the line of duty and the many families who are here, as well, mourning and receiving recognition today.
At the same time, I render my sympathy and concern for Congressman Gerry Connolly and two staff members who have been violently attacked in his congressional office in Virginia and indicate our prayers and best wishes for these particular staff persons' speedy recovery. I know that we all are stunned, but we also offer our concern to our colleague and wish him safety, along with his staff.
Mr. Speaker, I now rise to offer strong support for H.R. 3089, the NDO Fairness Act, the crucial bipartisan surveillance reform legislation that passed out of the Judiciary Committee last week on a voice vote.
I thank Mr. Fitzgerald. I thank Mr. Nadler, the ranking member, for his leadership in working together with Mr. Fitzgerald and, of course, all of us on the committee that saw the rightness and reason for this legislation.
The NDO Fairness Act is a simple, straightforward bill that addresses a narrow problem by establishing essential guardrails for when the government seeks to assess someone's electronic communications without that person's knowledge.
This legislation would insert balance into a system that, for too long, has been a free-for-all for government prosecutors.
Let me be very clear: Nothing that we are doing is intending to undermine the fair prosecution of those who have done wrong, those who are criminals and otherwise who warrant the prosecution of the Federal Government.
It is, as we debated right after 9/11, an attempt to uphold the values of this Nation. I remember the intense discussions we had on the PATRIOT Act when the inclination after the heinous, devastating murder of 3,000-plus Americans on 9/11 was that we needed to do everything to insist that no one had even an inch of freedom.
I am glad that, in the Judiciary Committee, of which I was a member at that time, we saw the rhyme and reason, and we worked in a bipartisan way to establish a PATRIOT Act that could, in fact, fight terrorism, as it has done, but also protect the constitutional rights of Americans.
I see this in this NDO Fairness Act today. Under current law, after the government obtains a court's permission to search the contents of a person's electronic communications, a wish they would not know, 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, or NDO, colloquially referred to as a secrecy or gag order. You are gagging the American citizen.
There is no time limit for these orders. There is no standard to meet. Today, all the government needs to do is cite one of five potential adverse results, without showing that it is necessary, and the court may grant the request.
Prosecutors frequently seek these secrecy orders in cases where there is clearly sometimes no need and in situations where the government alone benefits. In many instances, there is no need.
Unlike when a physical search order 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 the court reverses the order.
The NDO Fairness Act would do away with the rubberstamped process that governs gag order requests 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. 3089 inserts transparency, reason, and balance into a system and fairness and justice on both sides that far too long has been a free-for-all for government prosecutors simply by virtue of it being just too easy to overuse.
In the 21st century, Federal prosecutors no longer need to show up to your office. They just need to raid your virtual office. Unlike physical searches, they can search an email in secret. The House surveillance laws have not kept pace with rapidly changing technology.
Mr. Speaker, just wait on the march of AI. I think this bill is extremely timely because we have to be engaged with our constitutional values no matter what the level of technology is. It is imperative that the House of Representatives act to ensure that Americans are still protected as everyday life moves increasingly online.
Mr. Speaker, I thank Congressman Fitzgerald for introducing this bill and Ranking Member Nadler, again, for his leadership on this issue. I also thank Chairman Jordan for moving this bill swiftly through the Judiciary Committee and Senator Lee for his leadership in the Senate. I was glad to serve as the ranking member of the subcommittee dealing with this bill, as well.
Mr. Speaker, I encourage my colleagues to vote ``yes'' and to pass this important legislation today, and I reserve the balance of my time.
Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, let me cite an example that I think is worthy of my colleagues hearing. Between 2016 and 2021, Microsoft received between 7 and 10 NDOs every day. That is, on average, from 2,400 to 3,500 secrecy orders a year.
Apple has received roughly 13,200 requests with secrecy orders from Federal agencies over the past 5 years, which is approximately 2,600 requests annually or the equivalent of 7 to 8 requests per day that are accompanied by a gag order.
Just think of how many Americans that impacts. They are not the only service providers to feel the legal burden. Google has about 130,000 secrecy orders right now. Meta averages more than 100,000 requests per year.
For example, in the first half of 2021, 70 percent of the 63,657 search requests Meta received included gag orders. That is an enormous tally. That is a lot of Americans.
To be very clear, as I conclude my remarks, this is in no way attempting to thwart the important prosecution of individuals who are intending to do harm in any way to the United States by way of criminal acts. Certainly, we believe in justice for any person who is accused. They have a right to due process, a trial by their peers and otherwise, but we do believe that it is important to protect the vast number of Americans who would not know what is happening to their online searches or their online privacy.
Mr. Speaker, the NDO Fairness Act would insert process and deliberation into gag order requests and make it more likely that Americans whose electronic communications are searched can assert their rights in court.
Mr. Speaker, I rise in strong support of H.R. 3089, the ``NDO Fairness Act,'' crucial bipartisan surveillance reform legislation that passed out of the Judiciary Committee last week on a voice vote.
The NDO Fairness Act is a simple, straightforward bill that addresses a narrow problem. By establishing essential guardrails for when the government seeks to access someone's electronic communications without that person's knowledge, this legislation would insert balance into a system that for too long has been a free-for-all for government prosecutors.
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, or NDO, colloquially referred to as a ``secrecy'' or ``gag'' order.
There is no time limit to these orders. There is no standard to meet. Today, all the government needs to do is cite one of five potential adverse results--without showing that it is necessary--and the court may grant the request.
Prosecutors frequently seek these 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.
The NDO Fairness Act would do away with the rubber stamp process that governs gag order requests 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. 3089 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.
In the 21st century, federal prosecutors no longer need to show up to your office. They just need to raid your virtual office, but unlike physical searches, they can search an email in secret. Our surveillance laws have not kept pace with rapidly changing technology.
It is imperative that the House of Representatives act to ensure that Americans are still protected as everyday life moves increasingly online.
I thank Congressman Fitzgerald for introducing this bill, and Ranking Member Nadler for his leadership on this issue. I also want to thank Chairman Jordan for moving this bill swiftly through the Judiciary Committee and Senator Lee for his leadership in the Senate.
I encourage my colleagues to vote ``yes'' and to pass this important legislation today.
Mr. Speaker, the NDO Fairness Act would insert process and deliberation into gag order requests and make it more likely that Americans whose electronic communications are searched can assert their rights in court. This is good bipartisan legislation, I urge all Members to support it.
Mr. Speaker, this is good bipartisan legislation, and I urge all of the Members to support it.
Mr. Speaker, I yield back the balance of my time.