[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3089 Referred in Senate (RFS)]
<DOC>
118th CONGRESS
1st Session
H. R. 3089
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 16, 2023
Received; read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
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. 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) In general.--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.
``(B) Length.--An order granted under subparagraph
(A) shall be in effect for a period of not more than 90
days.
``(C) Other requirements.--
``(i) In general.--A application for an
order under subparagraph (A) shall state, to
the best of the applicant's knowledge, whether
the named customer or subscriber whose
information is sought by the warrant, order, or
subpoena under section 2703--
``(I) is aware of the warrant,
order, subpoena, or underlying
investigation; and
``(II) is suspected of involvement
in the commission of the crime under
investigation.
``(ii) Orders.--An order granted under this
paragraph may not direct, or otherwise require,
a provider of electronic communications service
or remote computing service to provide
notification of the expiration of order to the
court or government entity that sought the
order.
``(2) Determination.--
``(A) In general.--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--
``(i) 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 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
``(ii) 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 named customer or
subscriber, that is not likely to result in an
adverse result as described in clauses (i)
through (v) of subparagraph (A); and
``(iii) the court has reviewed the
individual warrant, order, or subpoena under
section 2703 to which the order issued under
this paragraph applies.
``(B) Nature of the offense.--The court may
consider the nature of the offense in issuing a
determination under subparagraph (A).
``(3) Extension.--A governmental entity may request one or
more extensions of an order granted under paragraph (2) of not
more than 90 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 a reasonable period of time (not to exceed 14
days) 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 (3); or
``(ii) compliance with the order is
unreasonable or otherwise unlawful.
``(B) Stay of disclosure of named 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 order issued under
paragraph (2) or the warrant, order, or subpoena to
which the order applies; 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
named 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 named customer or subscriber
within 5 business days of the expiration of the order--
``(A) a copy of the warrant, order, or subpoena;
and
``(B) notice that informs the named 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 named
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 named customer or
subscriber made within 180 days of receiving notification under
paragraph (9), the governmental entity shall promptly provide
the named customer or subscriber--
``(A) with a copy of the information that was
disclosed in response to the warrant, order or subpoena
(except illicit records, child sexual abuse material,
and other illegal material); or
``(B) in the event that no information was
disclosed, a written certification that no information
was disclosed.
``(11) Redactions.--Any information disclosed pursuant to
paragraphs (9) and (10) may be redacted only if a court finds
such redactions necessary to preserve the secrecy or integrity
of an investigation.''.
SEC. 3. 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, the Committee on the Judiciary of the Senate, and the
Director of the Administrative Office of the United States Courts,
which the Director shall publish on the website of the Administrative
Office of the United States Courts, 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 named 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 subsection (a)(1), preclusion of
notice pursuant to subsection (b)(1), and extensions pursuant
to subsection (b)(3);
``(3) the aggregate number of orders under this section
either granting, extending, or denying a request for delay of
notification or preclusion of notice;
``(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).''.
Passed the House of Representatives May 15, 2023.
Attest:
CHERYL L. JOHNSON,
Clerk.