The NDO Fairness Act Is a Much Needed Step to Building More Transparency and Trust Around Government Access to Data

Transparency around government access to datais a foundational issue to building trust for domestic and global data privacy and governance. While the U.S. Congress has not yet reached a compromise on comprehensive federal data privacy legislation, at least in the House, Congress has found bipartisan support for new oversight, transparency, and guardrails around the use of gag orders when the U.S. government requests people’s data. Just as U.S. policymakers want greater transparency over how private firms manage U.S. personal data, especially regarding foreign governments, so too do people need greater transparency from the U.S. government to trust that their privacy is truly respected.

On June 22, the U.S. House of Representatives passed the Non-Disclosure Order (NDO) Fairness Act, which would add transparency, oversight, and guardrails on the U.S. government’s use of NDOs as part of requests for a person’s electronic communications, such as their email and phone records. Currently, U.S authorities can use an NDO to block service providers (like email providers) from notifying customers about the search—without end, potentially forever. The NDO Act requires judges to review each case rigorously. Courts will need to explain in writing why notice of the collection would be substantially likely to result in harm before issuing an NDO and to narrowly tailor orders to limit the impact on free speech. It would also outlaw the potential for never-ending NDOs. NDOs would now be initially granted only for a reasonable time (30 days initially and extensions in 30-day increments). Furthermore, the legislation would also improve oversight and transparency through a new reporting requirement to Congress on the use of NDOs.

This legislation is thankfully bipartisan, led by House Judiciary Committee Chair Jerrold Nadler (D-NY) and Congressman Scott Fitzgerald (R-WI). Similarly, on June 9, 2022, Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) introduced the Senate companion to this bill (S. 4373). The bipartisan effort to address this issue was partly motivated by media reports that during the Trump Administration the Department of Justice used them in electronic searches of members of Congress and major news outlets. But their use is much broader, extending to many U.S. organizations and firms. Likewise, the NDO Act’s ramifications are much broader.

Transparency around government access to data and surveillance is still generally poor, but this is one step in the right direction to improving this. It’s an issue that needs greater attention globally. And while the United States needs to enact comprehensive data privacy and improve transparency and guardrails around government access to data for many reasons, one is to ensure it more clearly differentiates itself from China and other authoritarian governments building vast, unchecked digital surveillance systems. China has enacted a range of major data privacy and security-related laws, but none of them place any limits on the government. There is also a complete lack of transparency and redress. While it has always been false to equate the United States and China’s approach to data privacy and governance, enacting the NDO Act reinforces this point. Potential Chinese government access to data, on a potentially extraterritorial basis, is at the heart of concerns over China’s National Intelligence Law, Hong Kong’s National Security Law, and media reports over potential Chinese government access to U.S. user data from Chinese apps and digital services used in the United States, such as TikTok.

More by accident than intention, the NDO Act may well be just one of many steps the United States takes on the issue of government access to data. The new Transatlantic Data Privacy Framework will likely include an administrative court mechanism for individuals (from both America and European Union member states) to seek redress when they think their rights have been violated by U.S. surveillance activities. The United States is also working with G7 and other partners at the Organization for Economic Cooperation and Development to develop a framework for trusted government access to personal data held by the private sector. While there is much more the United States can do to enact new rules around data, the digital economy, cybersecurity, and myriad other digital issues, the NDO Fairness Act is hopefully just the first of many steps Congress and the Biden Administration takes in the near future to build a better data governance framework.