H.R. 6048: NDO Fairness Act

The NDO Fairness Act aims to modify how law enforcement agencies can delay notifying individuals when their records are accessed through warrants, orders, or subpoenas. Here’s a breakdown of the bill’s provisions:

Key Provisions

1. **Delayed Notice Adjustments**: The bill alters the rules regarding the notification that law enforcement must provide when seeking access to electronic communications or data. Under the amended rules, law enforcement can request a court order to delay notifying the affected individual about the warrant, order, or subpoena. This is justified mainly in cases where there is a concern for safety or integrity of an investigation.

2. **Duration of Delays**: If granted, the duration of the notification delay can be:

• Up to **one year** for cases involving serious crimes such as child exploitation.
• Up to **90 days** for other investigations.

3. **Court Oversight**: Before a court grants such a delay, the law requires that:

• The requesting governmental entity must demonstrate specific facts showing that not delaying could result in threats to safety, risk of fleeing, evidence tampering, witness intimidation, or other significant investigatory delays.
• The request must be narrowly tailored, meaning there shouldn't be a less intrusive way to conduct the investigation.
• The court must review and approve the original warrant or order.

4. **Extensions of Delays**: Law enforcement can seek extensions of the notification delay, but each extension must similarly meet the court's criteria.

5. **Notification of Changed Circumstances**: If circumstances change and the need for the delay is no longer justified, law enforcement must notify the court within **14 days** and could potentially modify or lift the order.

6. **Opportunity to Contest Orders**: Internet service providers can request a court hearing to contest the order for delaying notice. If they file for a hearing, the government must demonstrate why the stay of disclosure should remain in place.

7. **Finality of Court Orders**: The resolution of any contest regarding these orders will be a final decision that can be appealed.

8. **Reporting Requirements**: The Attorney General is tasked with providing an annual report detailing the use of these delayed notification orders. This report will include statistics on how often such delays were requested, how many were granted, and their outcomes, including any implications for members of the news media.

9. **Notification upon Expiration**: After a delay order expires, law enforcement must inform the affected individual through various means about the government’s prior action, including details relating to the warrant, the nature of the inquiry, and the specifics of the communication or data accessed.

Implications

The adjustments made by this bill aim to balance the needs of law enforcement for timely intervention in investigations against the rights of individuals to be notified when their private electronic communications or data are examined by the government. It introduces additional checks and balances in the judicial approval of delays while also ensuring there is transparency and accountability in the use of such delays.

Relevant Companies

• GOOGL (Alphabet Inc.): As a major provider of electronic communications services, this bill could affect their compliance and reporting processes when handling warrants for customer data.
• AAPL (Apple Inc.): Given its emphasis on user privacy, this bill may influence how Apple handles law enforcement requests for user data under the delayed notification rules.
• FB (Meta Platforms, Inc.): As a significant social media platform, the legislation could alter the way Meta deals with requests for user information, potentially leading to additional legal processes.