S 3663 — NDO Fairness Act of 2026

Summary

NDO Fairness Act of 2026 This bill increases the requirements the government must meet to obtain a nondisclosure order (NDO) under the Stored Communications Act (SCA).The SCA generally prohibits providers of remote computing services or electronic communication services (providers) from disclosing stored electronic communications or records (e.g., emails) or information pertaining to customers or subscribers. However, the SCA authorizes the government seek a warrant, order, or subpoena to compel providers to disclose electronic communications or records or information pertaining to customers or subscribers during an investigation. Providers may notify customers and subscribers of the warrant, order, or subpoena unless the government obtains a court order—an NDO—that delays the notification.This bill raises the standard the government must meet to obtain (or extend) an NDO. The bill also requires the court, before issuing an NDO, to issue a written determination that the standard was met based on specific and articulable facts, and to review the underlying warrant, order, or subpoena.The bill requires NDOs to be narrowly tailored. It also limits their duration to 90 days for most investigations, though it permits a duration of up to one year for investigations pertaining to an offense involving child pornography or sexual exploitation of children.Finally, the bill requires the Department of Justice to report annually on NDO-related data, including the number of customers or subscribers targeted; applications for orders; orders granted, extended, or denied; and orders targeting members of the media or conduct related to certain protected activities.

Bill Text

• Introduced Introduced in Senate Current html January 15, 2026

Compared against current U.S. Code AI-generated reading aid — verify against the official bill.

The bill modifies the procedures and conditions under which governmental entities can delay notification to customers or subscribers when accessing their electronic communications.

• 18 U.S.C. § 2705(b)

  the court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in— → the court may not grant a request for an order made under paragraph (1), or an extension of such order requested by the governmental entity pursuant to paragraph (3), unless—

  The bill imposes stricter conditions for the court to grant orders to preclude notice to subscribers.

• 18 U.S.C. § 2705(b)

  (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. → (I) endangering the life or physical safety of an individual; (II) flight from prosecution; (III) destruction of or tampering with evidence; (IV) intimidation of potential witnesses; or (V) otherwise seriously jeopardizing an investigation or unduly delaying a trial;

  The bill reformats the list of adverse results for consistency and clarity, though the substantive criteria remain unchanged.

• 18 U.S.C. § 2705(b)

  A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. → A governmental entity that is seeking a warrant, order, or subpoena under section 2703, when it is not required to notify the customer or subscriber, or to the extent that it may delay such notice pursuant to subsection (a), may apply to a court for an order, subject to paragraph (6), directing a provider of electronic communications service or remote computing service to which a warrant, order, or subpoena under section 2703 is directed not to notify any other person of the existence of the warrant, order, or subpoena.

  The bill clarifies that the application for an order must explicitly state its subject to additional requirements.

• 18 U.S.C. § 2705(b)

  if the nature of the offense for which the governmental entity is seeking the warrant, order, or subpoena pertains to child pornography under section 2256, sexual exploitation of children under section 2251, or any Federal, State, Tribal, or military offense that is the substantial equivalent; or → for a period of not more than 1 year if the nature of the offense for which the governmental entity is seeking the warrant, order, or subpoena pertains to child pornography under section 2256, sexual exploitation of children under section 2251, or any Federal, State, Tribal, or military offense that is the substantial equivalent; or

  The bill specifies the maximum duration of preclusion for cases related to child pornography and related offenses, extending it to a year, enhancing the duration for more severe offenses.

• 18 U.S.C. § 2705(b)

  The governmental entity shall maintain a true copy of certification under paragraph (1)(B).

  The requirement for maintaining a true copy of the certification is removed.

• 18 U.S.C. § 2705

  (c) Annual Report.-- (1) In general.--On an annual basis, the Attorney General shall provide to the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of Representatives, and the Director of the Administrative Office of the United States Courts, which the Attorney General shall publish on the website of the Department of Justice, in a manner consistent

  The bill introduces a requirement for the Attorney General to produce an annual report regarding delayed notice.

Action History

1. January 15, 2026

   Introduced in Senate

2. January 15, 2026

   Read twice and referred to the Committee on the Judiciary.

Sponsors

• Mike Lee · Cosponsor
• Marsha Blackburn · Cosponsor
• Ted Cruz · Cosponsor
• Peter Welch · Cosponsor
• Richard J. Durbin · Cosponsor
• Christopher A. Coons · Primary

Subjects