Senators Lee, Coons Introduce Bipartisan NDO Fairness Act

WASHINGTON - U.S. Senator Mike Lee (R-UT) introduced bipartisan legislation today with cosponsor Senator Chris Coons (D-DE) to safeguard Americans' privacy and constitutional rights in the digital era. The NDO Fairness Act protects Americans by restricting law enforcement from accessing individuals' private data without disclosure.

"Americans have the constitutional right to be free from unreasonable searches and seizures, including searches of private electronic communications," said Senator Mike Lee. "Our bipartisan bill protects Americans' privacy and provides needed transparency, while still allowing judges to grant nondisclosure orders when truly needed to protect others from harm or preserve an ongoing investigation."

"The Constitution protects Americans' right to privacy in their personal communications, but we can only assert that right if we know our privacy has been violated," said Senator Chris Coons. "It's too easy for law enforcement to access electronic records without informing the person they're under investigation. The NDO Fairness Act will bring the rules around electronic searches in line with physical ones, protecting Americans' rights and freedoms."

Background

In recent years, the use of Non-Disclosure Orders (NDOs) - commonly referred to as gag or secrecy orders - has surged, particularly in cases involving electronic data like emails, texts, and personal online information. These orders prevent service providers from informing individuals that law enforcement has accessed their data.

The NDO Fairness Act would require the government to adhere to established legal and constitutional standards before obtaining secrecy orders for electronic searches. This bill aims to align the criteria for electronic data searches more closely with those for physical searches, wherein the government generally must notify individuals unless a higher standard to delay such notice is met.

The NDO Fairness Act:

• Mandates meaningful judicial review to ensure that NDOs meet constitutional standards. Courts will be required to issue written findings justifying the lawfulness of NDO requests and to limit their duration to 90 days, with possible renewals if necessary.
• Protects fundamental rights by enforcing stricter criteria for the issuance of NDOs and ensuring that secrecy orders are only granted when truly necessary.
• Introduces a time-limited duration for NDOs, with a standard period of 90 days, mirroring the process for physical search warrants. Special provisions apply for cases involving severe offenses, such as child exploitation, where orders are limited to one year.
• Affords service providers the right to challenge unlawful NDOs, enhancing the protection of Americans' data from government overreach.

Read full text of the bill here.

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