House Passes Landmark Reform of Government Surveillance Gag Orders

The U.S. House of Representatives today passed the NDO Fairness Act by voice vote, delivering a major victory for privacy, due process, and government accountability.

Credit goes to Rep. Scott Fitzgerald (R-WI), who sponsored this bipartisan reform with Rep. Jerry Nadler (D-NY), as well as with support from Judiciary Chairman Jim Jordan (R-OH) and Ranking Member Jamie Raskin (D-MD). Rep. Fitzgerald has persistently championed the bill through several Congresses, recognizing that Americans should not be kept forever in the dark when the government obtains their private digital records.

Under current law, prosecutors can secretly demand a person’s emails, messages, photographs, location history, and other sensitive information from a communications or cloud provider. They can then seek a nondisclosure order – really, a gag order – preventing the provider from notifying its customer. Such orders can continue indefinitely, leaving people with no opportunity to challenge improper surveillance.

The NDO Fairness Act brings this secretive process under meaningful judicial control.

Under the act, an initial gag order for most investigations could last no longer than 90 days. Any extension would be limited to another 90 days and would require a court to make renewed written findings based on “specific and articulable facts.” The court would also have to find that the gag is narrowly tailored and that no less restrictive alternative would protect the investigation, witnesses, evidence, or public safety.

Most importantly, once the gag expires, the government – not the communications provider – would generally have five business days to notify the person whose information was sought. That notice must describe the inquiry, identify the court that authorized the secrecy, and disclose that the government requested or received the person’s records. The individual could also request a copy of the information disclosed.

“As PPSA has long maintained, notice is essential to accountability,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA Senior Policy Advisor. “A right that can be violated forever in secret is almost impossible to defend.
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“The House has acted and the Senate should now take up the NDO Fairness Act and send it to the president’s desk,” he said. “Americans deserve and can have both security and transparency. This bill advances both.”

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