# What Is a Non-Disclosure Order (Gag Order)? | Kodex Source: https://www.kodexglobal.com/glossary/non-disclosure-order > A non-disclosure order bars notifying a user about a data request. Learn what justifies one, how long it lasts, and when notice can resume. Compliance & Regulation ## Non-Disclosure Order A non-disclosure order directs a company not to tell a user that their data was requested. It is a separate instrument from the process compelling production, is issued for a defined period, and requires the government to show that notice would cause a specific harm such as flight, evidence destruction, or danger to an individual. Also known as gag order, NDO, 2705(b) order 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 instrumentNon-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. FAQ ### Frequently asked questions Does compulsory process automatically prevent notifying the user? No, and assuming otherwise quietly costs users their notice rights. A subpoena, order, or warrant compels production. Restricting notice requires a separate order. Where the government wants silence, it should be asked to obtain one rather than simply asserting that secrecy applies. How long does a non-disclosure order last? For the period the order specifies. Indefinite orders were common until they were challenged as prior restraints on speech; US Department of Justice policy now generally limits them to a defined term, typically a year, with extensions requiring fresh justification. When an order expires, the restriction lifts. Can a non-disclosure order be challenged? Yes. Providers have successfully challenged both indefinite orders and orders issued without adequate factual justification, on First Amendment grounds. Whether to challenge is a policy decision, but the option exists and litigation has meaningfully narrowed the practice. Glossary ### Related terms #### Grand Jury Subpoena A grand jury subpoena is issued in the name of a grand jury investigating potential criminal conduct, and compels the production of documents or testimony. It is issued by prosecutors without prior judicial review, and grand jury secrecy rules restrict what the prosecution may disclose about the proceeding. #### Court Order A court order is any directive issued by a judge that compels a party to act. In data request work the term usually refers to an order compelling disclosure of records, but it also covers non-disclosure orders and preservation directives, so the label alone does not tell you what an order requires. #### National Security Letter (NSL) A national security letter is an administrative demand issued by the FBI, without prior judicial approval, for limited subscriber and transactional records in national security investigations. It can carry a non-disclosure requirement, and it cannot compel the contents of communications. Tracking gag order expiries is an operational obligation. See how Kodex manages it. Learn more