Today, the House of Representatives passed historic legislation that will protect our customers’ most fundamental privacy rights in the cloud. The bipartisan NDO Fairness Act (H.R.6048) would require that federal courts apply a rigorous standard when issuing non-disclosure orders (NDOs), or secrecy orders, that prevent technology providers from telling customers when law enforcement accesses their emails, texts, photos, and other personal information in the cloud. Microsoft has strongly supported these reforms, and they are consistent with our commitment to protect our customers and ensure trust in the digital services that are powering the global economy. The House’s passage of the NDO Fairness Act marks a significant step forward. We now look forward to working with the Senate to advance these important reforms.
The NDO Fairness Act would finally correct the glaring disparity between covert searches in the physical and digital worlds. Law enforcement must meet a strict standard for secret physical searches, but these restrictions do not apply to secret searches for data stored by technology providers. Instead, law enforcement can obtain boilerplate secrecy orders under a 40-year-old law, the Electronic Communications Privacy Act (ECPA), enacted before the cloud even existed. This represents a fundamental shift from historical law enforcement practices where secrecy was the exception, not the norm. Officers or agents would knock on your door with a warrant or serve your company with a subpoena. If you had an issue with that, you could go to court to object. But NDOs, often obtained without meaningful judicial review, allow law enforcement to skip going to you and instead go to your cloud provider for your data in secret.
This is a problem with far-reaching consequences. The overuse of secrecy orders erodes trust in and discourages adoption of the cloud, stifles transparency and accountability, and threatens our fundamental freedoms. Notice is perhaps the most foundational protection against government overreach. It is necessary to give meaning to nearly every other right we enjoy. This is because it is a lot more difficult to assert your rights when you don’t know they are at risk to begin with.
Two investigations, two administrations, one case for reform
In recent years, Congress has learned this lesson firsthand. Microsoft first testified and began working with Congress in support of the NDO Fairness Act following reports in 2021 that the first Trump Justice Department used NDOs in a leak investigation that prevented notice of legal demands to Members of Congress, their staff, and the press. In a subsequent review, the Justice Department’s Inspector General found that the NDOs used boilerplate justifications that did not include case-specific information and did not even inform the court that some accounts belonged to Members of Congress. The NDOs were then renewed for years—some even after the investigation was public and individuals were no longer targets.
This is despite the fact that, under our Constitution, Congress is a separate branch of government and has unique Speech or Debate privileges, and the press is entitled to heightened First Amendment protections.
Separately, a recent Senate investigation revealed that the Biden Justice Department’s “Arctic Frost” probe of the 2020 presidential election sought telephone records from more than a dozen Members of Congress. As first disclosed by Senator Grassley and recently reported in the New York Times, the subpoenas were accompanied by NDOs that, again, did not inform the judge of the fact that the phone numbers belonged to Members of Congress.
The NDOs in these two investigations illustrate a core problem with NDOs. And it’s a problem that spans administrations and extends well beyond investigations involving Members of Congress: Too often, courts are not aware of the most basic facts needed to evaluate whether total secrecy is necessary.
Microsoft’s record: Standing up for our customers
This is why Microsoft, for years, has fought to strengthen our customers’ rights and has challenged unlawful secret surveillance. We’ve stood up for our customers not just in the halls of Congress, but in courts across the country and in daily negotiations with law enforcement. We routinely challenge NDOs and convince the government to modify secrecy orders to permit notice to our customers. When we can’t reach a reasonable agreement with the government, we don’t hesitate to go to court. Microsoft is currently seeking to modify or vacate several NDOs in courts across the country. While the details of these challenges remain under seal, this includes a now-public appeal brought by LinkedIn, a Microsoft subsidiary, that is scheduled for oral argument before the US Court of Appeals for the Fourth Circuit on September 15.
Our efforts over the years have led to policy changes at the Department of Justice, including guidance limiting the duration of NDOs after Microsoft filed a lawsuit against the US government in 2016 challenging indefinite NDOs as unconstitutional.
Sometimes, challenges to secrecy orders are unsealed, and we’re able to share additional details; most often, we simply provide our customers with notice, allowing them to take steps to further protect their rights. But these efforts, no matter how successful, have not stopped the flow of overbroad NDOs.
The NDO Fairness Act
Challenges in court cannot do the work of Congress. We need the legislative reforms contained in the NDO Fairness Act. These would:
- End boilerplate secrecy orders by requiring judges to consider the full facts and circumstances of each order.
- Ensure that the NDO statute is consistent with the First Amendment by requiring courts to strictly scrutinize requests for secrecy.
- Codify restrictions to prevent indefinite secrecy orders and limit the length of extensions by requiring time-limited orders.
- Recognize technology providers’ statutory right to challenge an order to ensure providers can stand up for their rights and their customers’ rights.
- Increase transparency reporting around the government’s use of secrecy orders.
The NDO Fairness Act would not eliminate NDOs. Nor should it. Temporary secrecy is appropriate in some cases—particularly those involving child exploitation, terrorism or other violent crimes, nation-state cyberattacks, or cases where there is clear evidence that notice would jeopardize a sensitive investigation. Microsoft is a strong partner with law enforcement in its efforts to protect our nation and the most vulnerable members of society. But these reforms would ensure that NDOs are consistent with our most fundamental rights and freedoms.
The Senate must now seize the moment
Congress has made significant progress advancing these reforms. I want to thank Speaker Johnson and Majority Leader Scalise as well as Representatives Fitzgerald and Nadler for scheduling a vote and sponsoring this legislation. House Judiciary Committee Chairman Jordan and Ranking Member Raskin also deserve our appreciation for championing this legislation through the House committee process. As consideration moves to the Senate, we look forward to working with Senators Lee and Coons and supporting their leadership and efforts to enact this bill into law.
Microsoft has fought for the NDO Fairness Act because we stand up for our customers and will fight for their rights. I am thrilled to see bipartisan support for these reforms culminate in today’s House passage of this legislation. But the work is not yet finished. The Senate now has an opportunity to build on this momentum and help enact these critical reforms into law.