Ndo Fairness Act of 2025
Floor Speech
Mr. Speaker, welcome back to you and to Mr. Fitzgerald. I am pleased we are working together to address a real flaw in government surveillance authorities and to safeguard Americans' privacy and civil liberties by moving the NDO Fairness Act today.
Under the Stored Communications Act, prosecutors can go to a judge to get a search warrant for the content of private communications and documents that Americans send over the internet and store in the cloud.
Third-party providers store our emails, our private chat messages, our work documents, and our phone records on their servers. Most of these can be searched if the government gets a warrant based on probable cause that the search will reveal evidence of criminal activity, but unlike the searches most Americans are familiar with from TV dramas where an officer shows up at a suspect's house with a warrant, the Stored Communications Act allows Federal investigators to request a nondisclosure order, also known as an NDO, from a Federal judge, preventing your service provider from ever telling you that your email account or phone records had been seized.
There is no statutory time limit. NDOs can exist in perpetuity, allowing the government to forever hide their searches from the searched.
There are good reasons why prosecutors might need or want a nondisclosure order, an NDO, for a brief period of time. In some cases, immediate notice might put an undercover agent in direct danger or risk the destruction of key evidence or compromise an ongoing investigation, but 40 years after passage of the Stored Communications Act, the government's use of nondisclosure orders has expanded well beyond these high exigency cases.
Under current law, the request has become little more than a simple box-checking exercise. The statute allows the government to maintain these nondisclosure orders indefinitely. DOJ's current policy limits the duration of the NDOs to 3 years, and that policy is itself totally voluntary and flexible. DOJ can rescind, suspend, or even just ignore it at will.
We need laws, not voluntary, dismissible DOJ policies, to protect our privacy under the Constitution. By limiting nondisclosure orders to 90 days with the possibility of renewal if there is an actual emergency still ongoing, the NDO Fairness Act ends the so-called forever NDOs where nondisclosure orders have no end date and no end in sight.
By requiring prosecutors to explain the rationale for their requests, we end the so-called rubberstamp NDOs in which applications for an NDO are submitted with boilerplate language and no evidence demonstrating any true or compelling need for nondisclosure.
By ensuring that judges apply the proper strict scrutiny standard to the requests, we limit nondisclosure orders to those where secrecy is actually necessary to the pursuit of the investigation.
In this way, the NDO Fairness Act will protect all Americans who keep an increasingly large percentage of their information online and should expect notice if the government is rifling through their records.
Most recently, we have heard about NDOs in the case of Special Counsel Jack Smith's investigation into President Trump's effort to interfere with the results of the 2020 election, an effort that culminated in an attack on this building, the U.S. Capitol, on January 6, 2021.
It has been well-known for years that in the days leading up to the attack and while the mob was still rampaging in the Capitol, President Trump and his enablers, like Rudy Giuliani, made a series of phone calls to Members of Congress trying to convince them not to certify the election, even as the insurrectionists were tearing through the building.
As part of his investigation into that attack, Special Counsel Smith asked a Federal grand jury to subpoena the phone companies for the records associated with individual Members of Congress known to have been in contact with the White House over a 4-day period running from around January 6, 2021. The subpoena sought call records, the kind of information that is on your phone bill, not the content of any calls or text messages, but a record of who called who when. He also asked a Federal judge to issue an NDO for those subpoenas. He did so after receiving permission to do so from the Public Integrity Section and in full compliance with both existing law and DOJ policy.
It is no secret that the President had made it a habit to pressure witnesses not to testify against him. In August 2023, while he was being prosecuted for these efforts to overturn the 2020 elections, he posted the message: ``If you go after me, I am coming after you.''
Senators were upset by these completely lawful subpoenas and well- justified nondisclosure orders under the law as it was understood. Their response was to pass a law giving them, and them alone, the right to collect $1 million apiece each time the government sought their communications records, in the past and in the future.
Instead of acting to protect all Americans, all of us, they sought a multimillion-dollar payday for themselves as U.S. Senators. They did not even include mere lowly Members of the U.S. House of Representatives in their legislation.
Fortunately, that selective, self-serving authority was short-lived, and we succeeded in overturning, I think unanimously in this body, that stunningly corrupt law. The proposal before us today addresses the problem at its root for all Americans and protects all of us, not just the 100 Americans who we get to serve with in the Chamber down the hall.
Prosecutors under Presidents of both parties have routinely sought NDOs in all kinds of probes. The number of orders accompanied by NDOs that electronic communication companies receive has only increased since this legislation was first introduced over 4 years ago.
This body has proudly already passed this bill twice. I am hopeful that our colleagues in the Senate may now realize and act on the fundamental importance of this legislation for everyone in America.
Our laws should protect the civil liberties of all 340 million Americans just as the Equal Protection Clause demands.
Mr. Speaker, I thank Mr. Nadler for leading the NDO Fairness Act since this legislation was first developed, and I thank Mr. Fitzgerald for ably leading the charge in this Congress. I look forward to voting ``yes'' on this important legislation.
Mr. Speaker, for the aforementioned reasons, I enthusiastically endorse this legislation and encourage all of my colleagues to support it.
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