,,ii #aagth ,,congress #b;d ,session ,s4 #dcgc ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,june #i1 #bjbb,mr4 ,leahy 7for himself and ,mr4 ,lee7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ah1 ,united ,states ,code1 to modify delayed notice requirements1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,,ndo ,fairness ,act4 #b4 ,delay of notification ,section #bgje7;a7 of title #ah1 ,united ,states ,code1 is amended to read as follows3 7a7 ,delay of notification 7#a7 ,application ,a governmental entity that is seeking a warrant1 order1 or subpoena under section #bgjc may include in the application 7or motion in the case of an administrative subpoena authorized by a ,federal or ,state statute or a ,federal or ,state grand jury or trial subpoena7 a request to a court of competent jurisdiction for an order delaying the notification under section #bgjc for a period of not more than #fj days4 7#b7 ,determination ,the court may not grant a request for delayed notification to a customer or subscriber made under paragraph 7#a71 or an extension of such delayed notification requested by the governmental entity pursuant to paragraph 7#c71 unless the court issues a written determination1 based on specific and articulable facts1 and including written findings of fact and conclusions of law1 that it is substantially likely that the notification of the customer or subscriber of the existence of the warrant1 order1 or subpoena will result in-- 7,a7 endangering the life or physical safety of an individual2 7,b7 flight from prosecution2 7,c7 destruction of or tampering with evidence2 7,d7 intimidation of potential witnesses2 or 7,e7 otherwise seriously jeopardizing an investigation or unduly delaying a trial4 7#c7 ,extension ,the governmental entity may request one or more extensions of the delay of notification granted under paragraph 7#b7 for a period of not more than #fj days for each such extension4 ,the court may only grant such an extension if the court makes a written determination required under paragraph 7#b7 and the extension is in accordance with the requirements of such paragraph4 7#d7 ,expiration of delay of notification ,upon expiration of the period of delay of notification and all extensions thereof under paragraphs 7#b7 and 7#c7 of this subsection1 the governmental entity shall deliver to the customer or subscriber by at least #b methods1 which shall be personal service1 registered or first-class mail1 electronic mail1 or other means approved by the court1 as reasonably calculated to reach the customer or subscriber within #gb hours of the expiration of the delay-- 7,a7 a copy of the warrant1 order1 or subpoena2 and 7,b7 notice that informs such customer or subscriber-- 7i7 of the nature of the inquiry made by the governmental entity1 with reasonable specificity2 7ii7 that information maintained for such customer or subscriber by the provider of electronic communications service or remote computing service to which the warrant1 order1 or subpoena under section #bgjc was directed1 was supplied to or requested by the governmental entity2 7iii7 that notification of such customer or subscriber was delayed by court order2 7iv7 the identity of the court that issued such order2 7v7 the provision of law under which the order delaying notification was authorized2 and 7vi7 that the governmental entity will1 upon request by the customer or subscriber made within #ahj days after receiving notification under this paragraph1 provide the customer or subscriber with a copy of the information that was disclosed in response to the warrant1 order1 or subpoena1 or in the event that no information was disclosed1 a written certification that no information was disclosed4 7#e7 ,copy of information disclosed ,upon expiration of the period of delay of notification under paragraph 7#b7 or 7#c7 of this subsection1 and at the request of the customer or subscriber made within #ahj days of receiving notification under paragraph 7#d71 the governmental entity shall promptly provide the customer or subscriber-- 7,a7 with a description of the information disclosed and a copy of the information that was disclosed in response to the warrant1 order1 or subpoena2 or 7,b7 in the event that no information was disclosed1 with a written certification that no information was disclosed4 4 #c4 ,preclusion of notice ,section #bgje7;b7 of title #ah1 ,united ,states ,code1 is amended to read as follows3 7b7 ,preclusion of ,notice 7#a7 ,application ,a governmental entity that is seeking a warrant1 order1 or subpoena under section #bgjc1 when it is not required to notify the customer or subscriber1 or to the extent that it may delay such notice pursuant to subsection 7a71 may apply to a court for an order1 subject to paragraph 7#f71 directing a provider of electronic communications service or remote computing service to which a warrant1 order1 or subpoena under section #bgjc is directed not to notify any other person of the existence of the warrant1 order1 or subpoena for a period of not more than either #fj days or the period of delay of notice provided under subsection 7a71 if any4 7#b7 ,determination ,the court may not grant a request for an order made under paragraph 7#a71 or an extension of such order requested by the governmental entity pursuant to paragraph 7#c71 unless-- 7,a7 the court issues a written determination1 based on specific and articulable facts1 and including written findings of fact and conclusions of law1 that it is substantially likely that not granting the request will result in-- 7i7 endangering the life or physical safety of an individual2 7ii7 flight from prosecution2 7iii7 destruction of or tampering with evidence2 7iv7 intimidation of potential witnesses2 or 7v7 otherwise seriously jeopardizing an investigation or unduly delaying a trial2 and 7,b7 the order is narrowly tailored and there is no less restrictive alternative1 including notification to an individual or organization within or providing legal representation to the customer or subscriber1 to avoid an adverse result as described in clauses 7i7 through 7v7 of subparagraph 7,a74 7#c7 ,extension ,a governmental entity may request one or more extensions of an order granted under paragraph 7#b7 of not more than #fj days for each such extension4 ,the court may only grant such an extension if the court makes a written determination required under paragraph 7#b77;,a7 and the extension is in accordance with the requirements of 7#b77;,b74 7#d7 ,notification of changed circumstances ,if the need for the order issued under paragraph 7#b7 changes materially1 the governmental entity that requested the order shall notify the court within #gb hours of the changed circumstances1 and the court shall reassess the order and modify or vacate as appropriate4 7#e7 ,opportunity to be heard 7,a7 ,in general ,upon an application1 petition1 or motion by a provider of electronic communications service or remote computing service or person acting on behalf of the provider to which an order under paragraph 7#b7 7or an extension under paragraph 7#c77 has been issued1 the court may modify or vacate the order if-- 7i7 the order does not meet requirements provided in paragraph 7#b72 or 7ii7 compliance with the order is unreasonable or otherwise unlawful4 7,b7 ,stay of disclosure of customer or subscriber communications or records ,a provider's obligation to disclose the information requested in the warrant1 order1 or subpoena to which the order in paragraph 7#a7 applies is stayed upon the filing of the application1 petition1 or motion under this paragraph pending resolution of the application1 petition1 or motion1 unless the court with jurisdiction over the challenge determines based on a showing by the governmental entity that the stay should be lifted in whole or in part prior to resolution4 7,c7 ,finality of order ,the decision of the court resolving an application1 petition1 or motion under this paragraph shall constitute a final1 appealable order4 7#f7 ,exception ,a provider of electronic communications service or remote computing service to which an order under paragraph 7#b7 applies1 or an officer1 employee1 or agent thereof1 may disclose information otherwise subject to any applicable nondisclosure requirement to-- 7,a7 those persons to whom disclosure is necessary in order to comply with the warrant1 order1 or subpoena2 7,b7 an attorney in order to obtain legal advice or assistance regarding the warrant1 order1 or subpoena2 and 7,c7 any person the court determines can be notified of the warrant1 order1 or subpoena4 7#g7 ,scope of nondisclosure ,any person to whom disclosure is made under paragraph 7#f7 7other than the governmental entity7 shall be subject to the nondisclosure requirements applicable to the person to whom the order is issued4 ,any recipient authorized under this subsection to disclose to a person information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement4 7#h7 ,supporting documentation ,upon serving a provider of electronic communications service or remote computing service with an order granted under paragraph 7#b71 or an extension of such order granted under paragraph 7#c71 the governmental entity shall include a copy of the warrant1 order1 or subpoena to which the nondisclosure order applies4 7#i7 ,expiration of order precluding notice ,upon expiration of an order issued under paragraph 7#b7 or1 if an extension has been granted under paragraph 7#c71 expiration of the extension1 the governmental entity shall deliver to the customer or subscriber1 by at least #b methods1 which shall be personal service1 registered or first-class mail1 electronic mail1 or other means approved by the court as reasonably calculated to reach the customer or subscriber within #gb hours of the expiration of the order-- 7,a7 a copy of the warrant1 order1 or subpoena2 and 7,b7 notice that informs the customer or subscriber-- 7i7 of the nature of the law enforcement inquiry with reasonable specificity2 7ii7 that information maintained for such customer or subscriber by the provider of electronic communications service or remote computing service to which the warrant1 order1 or subpoena under section #bgjc1 was directed was supplied to or requested by the government entity2 7iii7 that notification of such customer or subscriber was precluded by court order2 7iv7 of the identity of the court authorizing the preclusion of notice2 7v7 of the provision of this chapter under which the preclusion of notice was authorized2 and 7vi7 that the government will1 upon request by the customer or subscriber made within #ahj days after receiving notification under this paragraph1 provide the customer or subscriber with a copy of the information that was disclosed in response to the warrant1 order or subpoena1 or in the event that no information was disclosed1 a written certification that no information was disclosed4 7#aj7 ,copy of information disclosed ,upon expiration of the order precluding notice issued under paragraph 7#b7 or 7#c7 of this subsection1 and at the request of the customer or subscriber made within #ahj days of receiving notification under paragraph 7#i71 the governmental entity shall promptly provide the customer or subscriber-- 7,a7 with a copy of the information that was disclosed in response to the warrant1 order or subpoena2 or 7,b7 in the event that no information was disclosed1 a written certification that no information was disclosed4 4 #d4 ,additional provisions regarding delayed notice ,section #bgje of title #ah1 ,united ,states ,code1 is amended by adding at the end the following3 7c7 ,annual report ,on an annual basis1 the ,attorney ,general shall provide to the ,committee on the ,judiciary of the ,house of ,representatives and the ,committee on the ,judiciary of the ,senate1 in a manner consistent with protection of national security1 a report setting forth with respect to the preceding calendar year1 for each ,federal judicial district-- 7#a7 the number of customers or subscribers with respect to whom1 in that calendar year1 a warrant1 subpoena1 or court order was issued pursuant to section #bgjc2 7#b7 the aggregate number of applications requesting delay of notification pursuant to subsections 7a77#a7 and 7b77#a72 7#c7 the aggregate number of orders under this section either granting1 extending1 or denying a request for delay of notification2 7#d7 the aggregate number of orders under this section affecting a member of the news media1 including any conduct related to activities protected under the ,first ,amendment2 and 7#e7 the aggregate number of arrests1 trials1 and convictions1 resulting from investigations in which orders under this section were obtained1 including the offenses for which individuals were arrested1 tried1 or convicted4 ,the ,attorney ,general shall include in the report under this subsection a description of the process and the information used to determine the numbers for each of paragraphs 7#a7 through 7#e74 4