House Judiciary Committee Votes to Strengthen Protections for Citizens’ Electronic Communications in Prosecutorial Searches

According to a press release issued by the House of Representatives Judiciary Committee, the legislative body has unanimously approved the NDO Fairness Act, a bill set to restore protections to the current “gag order process.” The bipartisan bill, which the committee passed by voice vote, will now head to the House of Representatives for a full vote.

Wednesday’s announcement explains that presently, “prosecutors can request a person’s electronic communications data, such as their email and phone records, even when the subject of the search is not suspected of wrongdoing.” In such circumstances, prosecutors can reportedly seek a non-disclosure order (NDO) to prevent service providers from informing their customers about the search and blocking the person under investigation from challenging the order in court.

The NDO Fairness Act would eliminate the “rubber-stamp process” that has allegedly long-since governed email and phone records requests. Under the proposed law, prosecutors would have to demonstrate why there is a need to withhold information from citizens.

Specifically, the NDO Fairness Act would mandate a written determination from the court finding an NDO necessary to prevent a “substantially likely adverse result.” The bill would also instruct courts to analyze gag order requests on a “strict scrutiny” basis and would establish a 60-day limit on such orders, with possible extensions. Too, it would also permit wireless providers to challenge gag orders in court. 

Speaking about the bill, House Judiciary Chairman Jerrold Nadler (D-N.J.) expressed his hope that the law would inject balance and fairness into a system that has, for too long, been slanted towards government prosecutors.

“In the 21st century, federal prosecutors no longer need to show up to your office. They just need to raid your virtual office, which leaves American citizens and businesses at the whims of a secret process that is all too easy to abuse. I thank my colleagues for their support and I’m proud this important legislation is one step closer to becoming law,” Nadler said in a statement.