A little known tool in the federal government’s arsenal allows federal agents to search Americans’ digital records without ever telling them it happened. Biden’s Department of Justice (DOJ) used this mechanism to subpoena hundreds of Republicans’ financial information while preventing the banks from notifying the individuals being targeted. In 2018, the Trump DOJ subpoenaed Apple for communications data on two Democratic members of Congress. Non-disclosure orders (NDO) kept it all secret until 2021.
The government can seek non-disclosure orders when subpoenaing not only financial information or communications like emails and text messages, but also user conversations with AI chatbots. Under current law, these orders can be indefinite, and they are routinely sought with boilerplate justifications. This marks a departure from the historical practice of law enforcement presenting suspects with a warrant. Recognizing that Americans must be aware of a search in order to challenge its legitimacy, a bipartisan group of lawmakers introduced the NDO Fairness Act. The legislation would limit the scope and duration of NDOs, codify the ability of electronic communications companies to challenge them, and require courts to find that no less-restrictive means than an NDO can be utilized.
