As Congress Revisits Section 702, the NDO Fairness Act Offers a Ready-Made Reform

​Lawmakers should consider that one of the worst aspects of modern surveillance is not just its sweeping intelligence collection, or its avoidance of Fourth Amendment probable cause warrants, but also the insidious nature of its secrecy. Every year tens of thousands of Americans have their communications records scrutinized by the government, without ever learning that their private records have been searched.
 
The bipartisan NDO Fairness Act – which passed the House unanimously in 2023 – offers a practical and overdue reform. The legislation would place meaningful limits on the government’s use of non-disclosure orders (NDOs), the gag orders often served alongside warrants compelling technology companies and cloud providers to secretly hand over customer data. These orders can prevent Americans from knowing that the government has accessed their emails, files, messages, or other digital records.
 
Former House Judiciary Committee Chairman Bob Goodlatte, now PPSA’s Senior Policy Advisor, and Richard Salgado, who teaches surveillance law at Stanford and Harvard Law Schools, write in The Washington Post:
 
“A physical search is cumbersome and expensive; it requires logistics, timing and staffing. And if a homeowner challenges it, the investigation could slow down.”
 
That is just as the Founders wanted it to be. By constitutional design, searches should not be easy. But James Madison could not have imagined the Department of Justice’s Legal Process Generator, which churns out demands and boilerplate NDOs.
 
“Once a warrant is approved, the government sends it to the service provider with the gag order and waits for the zip file to arrive.”
 
Presto, change-o, you’ve been searched. And that search will remain secret, likely forever.
 
As Goodlatte and Salgado explain, notice is essential to preserving Americans’ rights. When the government secretly searches records stored with third parties and then bars providers from informing customers, citizens are deprived of any realistic opportunity to challenge improper surveillance. In an age when Americans store much of their lives in the cloud, secrecy orders increasingly wreck the constitutional balance between citizens and the state.
 
As Congress weighs whether to renew the FISA Section 702 authority, lawmakers should seize the opportunity to enact reforms that reinforce constitutional accountability rather than weaken it. The NDO Fairness Act represents exactly the kind of bipartisan, common-sense safeguard that should accompany any extension of surveillance powers.
 
Americans deserve both security and transparency. Congress should deliver both.
 
Here’s The Washington Post piece in full (paywalled).

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