WASHINGTON – Today, Sens. Mike Lee (R-UT) and Chris Coons (D-DE) introduced the bipartisan NDO Fairness Act, legislation to safeguard American citizens' privacy and constitutional rights in the digital era. 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 address these concerns by requiring the government to adhere to established legal and constitutional standards before obtaining secrecy orders for electronic searches. This move aims to align the criteria for electronic data searches more closely with those for physical searches, where the government generally must notify individuals unless a higher standard to delay such notice is met.

"The Fourth Amendment protects our right to be free from unreasonable searches and seizures, including the search of our private electronic communications,” said Sen. Lee. “Americans deserve to know when the government surveils these communications. This bill strikes the right balance between protecting Americans' privacy and providing needed transparency while allowing judges to grant nondisclosure orders when necessary to protect others from harm or preserve an ongoing investigation."

“The Fourth Amendment protects Americans from unreasonable searches and seizures, but individuals can only assert their rights if they are aware that their electronic records have been collected,” said Sen. Coons. “The current bar for granting non-disclosure orders is too low, and government requests for secrecy are often granted even when they’re not justified by the facts on the ground. The NDO Fairness Act will ensure that NDOs are only issued in circumstances requiring secrecy and will better protect the rights of Americans.”

Key Components of the NDO Fairness Act:

• The 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.

• By enforcing stricter criteria for the issuance of NDOs, the Act protects fundamental rights and ensures that secrecy orders are only granted when truly necessary.

• The Act 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.

• Service providers will have the right to challenge unlawful NDOs, enhancing the protection of Americans' data from government overreach.

For bill text, click HERE.