The First Amendment guarantees the right to speak your own involvement about court proceedings. Yet the Stored Communications Act currently allows the government to prevent electronic communications companies from notifying their users when they receive law enforcement orders for customer data. These gag orders can silence the companies for any period that a court deems appropriate—even indefinitely, sometimes with no fixed end date at all. This leaves the targets of the collection and the broader public unaware of the surveillance and unable to challenge it in court. EFF has long objected to the government’s use of indefinite gag orders to silence communications platforms. 

That’s why we recently sent a letter to the House Committee on the Judiciary in support of H.R. 7072, the Nondisclosure Order  (NDO) Fairness Act. This bill takes important steps toward bringing transparency and accountability to the federal government’s use of sweeping gag orders accompanying requests for user data, and we appreciate Chair Nadler and the other co-sponsors for addressing these important issues.The legislation does away with indefinite gag orders, limiting the duration of nondisclosure orders to a maximum of 30 days and allowing the government to seek extensions only in 30-day increments. The NDO Fairness Act also requires courts to explain in writing why notice of the collection would be substantially likely to result in harm before issuing nondisclosure orders and to narrowly tailor orders to avoid complete bans on speech wherever possible. This is a much more demanding standard than the current requirement that courts find there be “reason to believe” that such harm “may” occur. And the legislation puts in place important measures to ensure greater transparency around the government’s use of these secretive orders, both for targeted individuals and the larger public, including by requiring the government to notify targets of surveillance that their communications were intercepted and to publish an annual report that provides information about the use of surveillance under Section 2703. 

These reforms are a welcome step forward in reforming the secrecy surrounding electronic surveillance and bringing the Stored Communications Act closer in line with constitutional guarantees. The bill would be even stronger if it provided a more accessible path for individuals to seek remedies for government violations of this law, and we look forward to working with the Committee to enact these and other reforms.