CFJ Leads Coalition of 30+ in Urging Congress to Pass the NDO Fairness Act
The Committee for Justice led a coalition of three dozen in urging House and Senate leadership to pass the NDO Fairness Act (H.R. 6048 and S. 3663) and send it to President Trump for his signature. Introduced by Representatives Scott Fitzgerald (R-Wis.) and Jerrold Nadler (D-N.Y.) and Senators Mike Lee (R-Utah) and Chris Coons (D-Del.), the bipartisan bill would restore meaningful judicial review to non-disclosure orders (NDOs) issued under the Stored Communications Act, 18 U.S.C. § 2705(b).
Secret Orders Have Become the Rule
NDOs bar communications providers from telling customers that the federal government has obtained their emails, text messages, location data, and other private records. They were meant to be a narrow exception for the few investigations that genuinely require temporary secrecy. Instead, major providers now receive thousands of NDOs every year, most supported by boilerplate applications with no factual showing and routinely extended for years.
Because the targets never learn that their records were searched, they cannot challenge the search. That is a sharp break from the traditional practice of serving warrants and subpoenas on the people whose records are sought, which lets them assert their constitutional rights and privileges.
Arctic Frost Showed What Is at Stake
The coalition pointed to former Special Counsel Jack Smith’s “Arctic Frost” investigation, which obtained the telephone records of sitting Senators and Members of Congress and concealed those searches behind boilerplate NDOs. Smith issued 197 subpoenas seeking testimony, communications, and records concerning at least 430 named Republican individuals and entities. None of them was permitted to know their data had been taken, much less to challenge the seizure.
As the letter explains, a surveillance tool that can silently sweep up the communications of a separate branch of government is too easily abused against ordinary Americans, journalists, religious leaders, and anyone else the government finds inconvenient.
What the Bill Does
The NDO Fairness Act addresses these abuses without compromising legitimate law enforcement needs. The bill:
Requires written findings of fact that an NDO is necessary to prevent a specific harm, such as flight from prosecution, destruction of evidence, or witness intimidation, instead of boilerplate assertions;
Requires NDOs to be narrowly tailored and has the court review the underlying demand, ending “blanket” orders that cover unspecified future demands;
Limits NDOs to 90 days, with 90-day extensions only on a renewed showing of necessity (and longer periods in child sexual exploitation cases);
Provides notice to affected users when an NDO expires, modeled on the rules for delayed-notice search warrants; and
Requires the Attorney General to report annually on how many NDOs are sought, issued, and extended.
The reforms do not change the grounds on which law enforcement can obtain an NDO. Each provision tracks the standards courts already apply when an NDO is challenged, and the bill preserves a special accommodation for cases involving the sexual exploitation of children.
Broad Bipartisan Momentum
In the 118th Congress, the House passed an earlier version of the bill, H.R. 3089, by a vote of 412 to 0. The House Judiciary Committee approved H.R. 6048 unanimously in November 2025, Senators Lee and Coons introduced the Senate companion in January, and the Trump administration has signaled its support. What remains is a floor vote in each chamber and the President’s signature.
Read the full text of the coalition letter and its signers, or view the letter as a PDF:
