Leahy And Lee Introduce Bill To Curtail Secret Government Surveillance Of Americans’ Digital Data

WASHINGTON (THURSDAY, June 9, 2022) -- Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) Thursday introduced the Non-Disclosure Order Fairness Act.  House Judiciary Chairman Jerrold Nadler (D-NY) and Representative Brian Fitzpatrick (R-WI) introduced a companion bill in the House that passed by unanimous consent in the House Judiciary Committee on April 6.

Over the last decade, federal law enforcement agencies have increasingly taken advantage of an outdated provision in the 35-year-old Electronic Communications Privacy Act, which has allowed them to covertly obtain Americans’ electronic data without any meaningful judicial review.  Today, prosecutors can issue a non-disclosure order (NDO) alongside a request for a person’s electronic communications data from a service provider, such as Google.  NDOs can continue indefinitely, preventing the service provider from ever notifying the person being investigated their information was requested.

The NDO Fairness Act modernizes the Electronic Communication Privacy Act by extending Fourth Amendment protections to the digital data of everyday Americans.  This act ends rubber-stamping of NDO requests by requiring judges to rigorously review each case and defend their decisions based on the specific facts.  Under this legislation, NDOs would now be initially granted only for a reasonable time.  Further, increased transparency through a new reporting requirement means Congress can oversee the use of NDOs and guard Americans from abuses of the system.

Leahy said:  “Americans’ online footprints reflect intimate details of their lives — but the law does not reflect this reality.  I was horrified by reports last year that the Department of Justice, during the Trump administration, secretly surveilled members of Congress and members of the press using NDOs.  But the use of these NDOs is not limited to members of Congress and the press — they can affect every American.  We all deserve to know who is watching us online, especially when it’s our own government.  The NDO Fairness Act will prohibit the use of never-ending NDOs and will help Americans reclaim their online privacy.”

Lee said:  “The Fourth Amendment protects our right to be free from unreasonable searches and seizures, including the search of our private electronic communications.  Americans deserve to know when the government surveils these communications.  This bill strikes the right balance between protecting the privacy of Americans and providing needed transparency while allowing judges to grant 30-day nondisclosure orders when necessary to protect others from harm or preserve an ongoing investigation.”

The bill is supported by Advocacy for Principled Action in Government, American Civil Liberties Union, Americans for Prosperity, Brennan Center for Justice at NYU School of Law, Demand Progress, Due Process, Free Press Action, FreedomWorks, Government Information Watch, Muslim Justice League, Project for Privacy and Surveillance Accountability, Reform Government Surveillance, and Restore The Fourth.

Text of the bill is available here.


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