[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4373 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 4373
To amend title 18, United States Code, to modify delayed notice
requirements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 9, 2022
Mr. Leahy (for himself and Mr. Lee) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to modify delayed notice
requirements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``NDO Fairness Act''.
SEC. 2. DELAY OF NOTIFICATION.
Section 2705(a) of title 18, United States Code, is amended to read
as follows:
``(a) Delay of Notification.--
``(1) Application.--A governmental entity that is seeking a
warrant, order, or subpoena under section 2703 may include in
the application (or motion in the case of an administrative
subpoena authorized by a Federal or State statute or a Federal
or State grand jury or trial subpoena) a request to a court of
competent jurisdiction for an order delaying the notification
under section 2703 for a period of not more than 60 days.
``(2) Determination.--The court may not grant a request for
delayed notification to a customer or subscriber made under
paragraph (1), or an extension of such delayed notification
requested by the governmental entity pursuant to paragraph (3),
unless the court issues a written determination, based on
specific and articulable facts, and including written findings
of fact and conclusions of law, that it is substantially likely
that the notification of the customer or subscriber of the
existence of the warrant, order, or subpoena will result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses; or
``(E) otherwise seriously jeopardizing an
investigation or unduly delaying a trial.
``(3) Extension.--The governmental entity may request one
or more extensions of the delay of notification granted under
paragraph (2) for a period of not more than 60 days for each
such extension. The court may only grant such an extension if
the court makes a written determination required under
paragraph (2) and the extension is in accordance with the
requirements of such paragraph.
``(4) Expiration of delay of notification.--Upon expiration
of the period of delay of notification and all extensions
thereof under paragraphs (2) and (3) of this subsection, the
governmental entity shall deliver to the customer or subscriber
by at least 2 methods, which shall be personal service,
registered or first-class mail, electronic mail, or other means
approved by the court, as reasonably calculated to reach the
customer or subscriber within 72 hours of the expiration of the
delay--
``(A) a copy of the warrant, order, or subpoena;
and
``(B) notice that informs such customer or
subscriber--
``(i) of the nature of the inquiry made by
the governmental entity, with reasonable
specificity;
``(ii) that information maintained for such
customer or subscriber by the provider of
electronic communications service or remote
computing service to which the warrant, order,
or subpoena under section 2703 was directed,
was supplied to or requested by the
governmental entity;
``(iii) that notification of such customer
or subscriber was delayed by court order;
``(iv) the identity of the court that
issued such order;
``(v) the provision of law under which the
order delaying notification was authorized; and
``(vi) that the governmental entity will,
upon request by the customer or subscriber made
within 180 days after receiving notification
under this paragraph, provide the customer or
subscriber with a copy of the information that
was disclosed in response to the warrant,
order, or subpoena, or in the event that no
information was disclosed, a written
certification that no information was
disclosed.
``(5) Copy of information disclosed.--Upon expiration of
the period of delay of notification under paragraph (2) or (3)
of this subsection, and at the request of the customer or
subscriber made within 180 days of receiving notification under
paragraph (4), the governmental entity shall promptly provide
the customer or subscriber--
``(A) with a description of the information
disclosed and a copy of the information that was
disclosed in response to the warrant, order, or
subpoena; or
``(B) in the event that no information was
disclosed, with a written certification that no
information was disclosed.''.
SEC. 3. PRECLUSION OF NOTICE.
Section 2705(b) of title 18, United States Code, is amended to read
as follows:
``(b) Preclusion of Notice.--
``(1) Application.--A governmental entity that is seeking a
warrant, order, or subpoena under section 2703, when it is not
required to notify the customer or subscriber, or to the extent
that it may delay such notice pursuant to subsection (a), may
apply to a court for an order, subject to paragraph (6),
directing a provider of electronic communications service or
remote computing service to which a warrant, order, or subpoena
under section 2703 is directed not to notify any other person
of the existence of the warrant, order, or subpoena for a
period of not more than either 60 days or the period of delay
of notice provided under subsection (a), if any.
``(2) Determination.--The court may not grant a request for
an order made under paragraph (1), or an extension of such
order requested by the governmental entity pursuant to
paragraph (3), unless--
``(A) the court issues a written determination,
based on specific and articulable facts, and including
written findings of fact and conclusions of law, that
it is substantially likely that not granting the
request will result in--
``(i) endangering the life or physical
safety of an individual;
``(ii) flight from prosecution;
``(iii) destruction of or tampering with
evidence;
``(iv) intimidation of potential witnesses;
or
``(v) otherwise seriously jeopardizing an
investigation or unduly delaying a trial; and
``(B) the order is narrowly tailored and there is
no less restrictive alternative, including notification
to an individual or organization within or providing
legal representation to the customer or subscriber, to
avoid an adverse result as described in clauses (i)
through (v) of subparagraph (A).
``(3) Extension.--A governmental entity may request one or
more extensions of an order granted under paragraph (2) of not
more than 60 days for each such extension. The court may only
grant such an extension if the court makes a written
determination required under paragraph (2)(A) and the extension
is in accordance with the requirements of (2)(B).
``(4) Notification of changed circumstances.--If the need
for the order issued under paragraph (2) changes materially,
the governmental entity that requested the order shall notify
the court within 72 hours of the changed circumstances, and the
court shall reassess the order and modify or vacate as
appropriate.
``(5) Opportunity to be heard.--
``(A) In general.--Upon an application, petition,
or motion by a provider of electronic communications
service or remote computing service or person acting on
behalf of the provider to which an order under
paragraph (2) (or an extension under paragraph (3)) has
been issued, the court may modify or vacate the order
if--
``(i) the order does not meet requirements
provided in paragraph (2); or
``(ii) compliance with the order is
unreasonable or otherwise unlawful.
``(B) Stay of disclosure of customer or subscriber
communications or records.--A provider's obligation to
disclose the information requested in the warrant,
order, or subpoena to which the order in paragraph (1)
applies is stayed upon the filing of the application,
petition, or motion under this paragraph pending
resolution of the application, petition, or motion,
unless the court with jurisdiction over the challenge
determines based on a showing by the governmental
entity that the stay should be lifted in whole or in
part prior to resolution.
``(C) Finality of order.--The decision of the
court resolving an application, petition, or motion
under this paragraph shall constitute a final,
appealable order.
``(6) Exception.--A provider of electronic communications
service or remote computing service to which an order under
paragraph (2) applies, or an officer, employee, or agent
thereof, may disclose information otherwise subject to any
applicable nondisclosure requirement to--
``(A) those persons to whom disclosure is necessary
in order to comply with the warrant, order, or
subpoena;
``(B) an attorney in order to obtain legal advice
or assistance regarding the warrant, order, or
subpoena; and
``(C) any person the court determines can be
notified of the warrant, order, or subpoena.
``(7) Scope of nondisclosure.--Any person to whom
disclosure is made under paragraph (6) (other than the
governmental entity) shall be subject to the nondisclosure
requirements applicable to the person to whom the order is
issued. Any recipient authorized under this subsection to
disclose to a person information otherwise subject to a
nondisclosure requirement shall notify the person of the
applicable nondisclosure requirement.
``(8) Supporting documentation.--Upon serving a provider of
electronic communications service or remote computing service
with an order granted under paragraph (2), or an extension of
such order granted under paragraph (3), the governmental entity
shall include a copy of the warrant, order, or subpoena to
which the nondisclosure order applies.
``(9) Expiration of order precluding notice.--Upon
expiration of an order issued under paragraph (2) or, if an
extension has been granted under paragraph (3), expiration of
the extension, the governmental entity shall deliver to the
customer or subscriber, by at least 2 methods, which shall be
personal service, registered or first-class mail, electronic
mail, or other means approved by the court as reasonably
calculated to reach the customer or subscriber within 72 hours
of the expiration of the order--
``(A) a copy of the warrant, order, or subpoena;
and
``(B) notice that informs the customer or
subscriber--
``(i) of the nature of the law enforcement
inquiry with reasonable specificity;
``(ii) that information maintained for such
customer or subscriber by the provider of
electronic communications service or remote
computing service to which the warrant, order,
or subpoena under section 2703, was directed
was supplied to or requested by the government
entity;
``(iii) that notification of such customer
or subscriber was precluded by court order;
``(iv) of the identity of the court
authorizing the preclusion of notice;
``(v) of the provision of this chapter
under which the preclusion of notice was
authorized; and
``(vi) that the government will, upon
request by the customer or subscriber made
within 180 days after receiving notification
under this paragraph, provide the customer or
subscriber with a copy of the information that
was disclosed in response to the warrant, order
or subpoena, or in the event that no
information was disclosed, a written
certification that no information was
disclosed.
``(10) Copy of information disclosed.--Upon expiration of
the order precluding notice issued under paragraph (2) or (3)
of this subsection, and at the request of the customer or
subscriber made within 180 days of receiving notification under
paragraph (9), the governmental entity shall promptly provide
the customer or subscriber--
``(A) with a copy of the information that was
disclosed in response to the warrant, order or
subpoena; or
``(B) in the event that no information was
disclosed, a written certification that no information
was disclosed.''.
SEC. 4. ADDITIONAL PROVISIONS REGARDING DELAYED NOTICE.
Section 2705 of title 18, United States Code, is amended by adding
at the end the following:
``(c) Annual Report.--On an annual basis, the Attorney General
shall provide to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate, in a
manner consistent with protection of national security, a report
setting forth with respect to the preceding calendar year, for each
Federal judicial district--
``(1) the number of customers or subscribers with respect
to whom, in that calendar year, a warrant, subpoena, or court
order was issued pursuant to section 2703;
``(2) the aggregate number of applications requesting delay
of notification pursuant to subsections (a)(1) and (b)(1);
``(3) the aggregate number of orders under this section
either granting, extending, or denying a request for delay of
notification;
``(4) the aggregate number of orders under this section
affecting a member of the news media, including any conduct
related to activities protected under the First Amendment; and
``(5) the aggregate number of arrests, trials, and
convictions, resulting from investigations in which orders
under this section were obtained, including the offenses for
which individuals were arrested, tried, or convicted.
The Attorney General shall include in the report under this subsection
a description of the process and the information used to determine the
numbers for each of paragraphs (1) through (5).''.
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