Digital Sneak and Peek

Reigning in Undisclosed Government Surveillance

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.

The Mechanics of Non-Disclosure Orders

When the government obtains a warrant, subpoena, or court order to access electronic records under the Stored Communications Act (SCA), it can simultaneously request a non-disclosure order. An NDO directs the service provider (a cell carrier like Verizon or AT&T, an email provider like Google, a chatbot service like OpenAI or Anthropic, etc.) not to tell the customer that their data has been accessed.

Courts must grant an NDO at the government’s request when they have reason to believe that disclosure would cause one of five harms. These include harms such as evidence destruction, fleeing prosecution, or the general catch-all of “otherwise seriously jeopardizing an investigation.” Current law imposes no time limit on these orders so they can persist “for such period as the court deems appropriate.” Historically, many of them have been issued indefinitely.

NDOs were intended to be used sparingly but have quickly become a favored tactic of law enforcement. A Microsoft Vice President testified that the company received between 2,400 and 3,500 secrecy orders per year; that’s seven to ten orders per day. This represents roughly a third of all legal demands from federal law enforcement, and that is just one company. As for the content of the NDOs, Microsoft has said they are often “boilerplate secrecy orders unsupported by any meaningful legal or factual analysis.” Rep. Scott Fitzgerald similarly noted that these “boilerplate NDOs often face no judicial review.”

This is not how searches by law enforcement have historically been carried out. When police search your home, they typically must announce their authority, present a warrant, and leave a copy. Even when police conduct covert “sneak and peek” searches, entering without the occupant’s knowledge, the law places more restrictions on law enforcement than we currently do in the digital context. With “sneak and peek” searches of a home, police must notify the occupant within 30 days and they must present case-specific facts to convince a judge why the search cannot be conducted without notice. But these more restricted searches of physical spaces are being overtaken by secret investigations of our digital lives. In a single year, Microsoft alone received more NDOs than the number of physical sneak-and-peek warrants issued by all courts nationwide.

The Threat

Accountability requires notice. If you are never charged with a crime, you may never learn that the government accessed your records. Without awareness, you would never have the opportunity to challenge whether the search was lawful. The absence of notice doesn’t just affect individual targets. Secrecy helps law enforcement limit the public backlash against surveillance because Americans don’t know when it’s happening to them.

The Arctic Frost investigation illustrates the problem. In investigating an alleged scheme to submit fake electors after the 2020 election, Special Counsel Jack Smith subpoenaed the phone data of at least eleven members of Congress and the financial information of over 400 Republican groups and individuals. Smith obtained non-disclosure orders that kept targets from learning their data had been seized. The scope of these searches only became public through subsequent congressional oversight, not because the legal system allowed the information to surface.

The AI Factor

Disclosure is increasingly critical in the age of AI. Chatbot conversations are a new category of data that can be subject to NDOs. Americans increasingly use chatbots as if they were speaking with a lawyer, a therapist, or a financial advisor. One survey found that “50% of AI users were unaware that their ChatGPT conversations could be subpoenaed as evidence in court.” Americans may not realize it, but the government can read their chat logs and gag the AI company that turns them over. One cybersecurity expert described AI chat logs as “a treasure trove for law enforcement agencies,” and a federal court made sure that treasure trove is readily available: they ordered OpenAI to preserve all user chat logs—including conversations users believed they had deleted.

The significance of chatbot data goes beyond volume. Unlike a search query, a chatbot conversation is interactive. The model prompts users to provide context, explain their reasoning, and disclose background that they might never have articulated in a Google search. The result is a record of vulnerable information generated under a false assumption of privacy and accessible to law enforcement via the same NDO framework that already struggles to provide meaningful oversight of email and phone record searches.

Reform

The NDO Fairness Act would take several important steps in fixing that broken framework. Introduced by a bipartisan group of lawmakers, including Sens. Mike Lee and Chris Coons in the Senate and Rep. Scott Fitzgerald in the House, the bill would limit the breadth and duration of non-disclosure orders and require courts and the government to explain why they’re necessary with case-specific facts, not just boilerplate. While the legislation doesn’t address every issue at the intersection of NDOs and AI, such as chatbot providers turning over logs that users thought they deleted, the legislation takes many important steps in the right direction.

The bill would cap initial NDOs at 90 days. The government could request extensions, but each extension would also be limited to 90 days. Furthermore, a court would have to issue a new written determination based on case-specific facts each time. The bill would require a court to find that an NDO is narrowly tailored and that no less restrictive alternative exists, such as notifying the target’s attorney rather than the target directly. Courts would have to review the specific warrant or subpoena to which the NDO applies, addressing the problem of open-ended omnibus orders that cover entire categories of future subpoenas or warrants. The government would be required to notify the court of any change in the circumstances of the case that might mean secrecy should be reassessed. The legislation would codify that companies who receive subpoenas and NDOs can challenge them. When an NDO does expire, the government would be required to notify the target within five business days. Individuals targeted by the government could request a statement of what information was obtained.

The bill has bipartisan support and no organized opposition. The House version passed the Judiciary Committee unanimously in November 2025 and was scheduled for a floor vote in February 2026. It was postponed due to the government shutdown, and the Senate is reportedly waiting on the House to act first.

This legislation contains important and thoughtful reforms. It would not prevent the government from conducting legitimate investigations. Law enforcement could still obtain warrants and access digital records. What the NDO Fairness Act would do is ensure that secrecy is time-limited, defined in scope, and necessary. This bill would help ensure Americans can hold their government accountable when it searches their digital lives.