The non-disclosure order is where transparency policy meets legal obligation, and it is the instrument most often invoked informally when it has not actually been obtained.
What a non-disclosure order does
Under 18 U.S.C. § 2705(b), a court may order a provider not to notify anyone about the existence of a warrant, subpoena, or court order, where notification would result in one of the enumerated harms:
- Endangering the life or physical safety of an individual
- Flight from prosecution
- Destruction of or tampering with evidence
- Intimidation of potential witnesses
- Otherwise seriously jeopardising an investigation or unduly delaying a trial
The order compels silence. It compels nothing else, and it says nothing about what must be produced.
Why the separation matters
| Production instrument | Non-disclosure order | |
|---|---|---|
| What it compels | Handing over records | Not telling the user |
| Statutory basis | 2703(a)-(d), Rule 41 | 18 U.S.C. § 2705(b) |
| Required showing | Varies by tier | One of five enumerated harms |
| Has an expiry | Compliance date | Defined period |
| Arrives automatically with the other | No | No |
Many providers have a policy of notifying users about requests for their data unless legally barred. That policy only means something if the company distinguishes between an actual legal bar and an assertion of one. Prosecutors sometimes state that a matter is confidential, or cite grand jury secrecy, in circumstances where no order restricting the provider exists. Grand jury secrecy rules bind the government, not the witness.
What it means for a company receiving one
- Confirm an order actually exists. If notice is meant to be restricted, ask for the order.
- Record the expiry date and act on it. When an order lapses, the restriction lapses. A provider that never revisits expired orders is withholding notice it is no longer required to withhold.
- Notify when the bar lifts, if your policy is to notify. Delayed notice is still notice, and it is the only remedy the user gets.
- Count them for transparency reporting. Aggregate numbers of requests received under non-disclosure orders are ordinarily reportable even when individual matters are not.
The direction of travel
Indefinite gag orders were routine for years, and they were narrowed by litigation rather than legislation. Microsoft’s 2016 suit challenging indefinite secrecy orders led to a Department of Justice policy change limiting their duration and requiring specific justification. The practical lesson for providers is that the scope of these orders has historically been set by whoever was willing to contest it.