EXCLUSIVE: Chairman Grassley calls for Congress to consider reforms against ‘weaponization’ of nondisclosure orders

Senate Judiciary Committee Chairman Chuck Grassley is calling for Congress to consider reforms to prevent the “weaponization” of nondisclosure orders following revelations about former special counsel Jack Smith’s Arctic Frost investigation.

Grassley (R., Iowa), who has led the Senate investigation into Arctic Frost, told the Washington Reporter in an exclusive statement that nondisclosure orders, or NDOs, remain an important law enforcement tool, but warned they can threaten Americans’ privacy when improperly used.

“When used properly, nondisclosure orders are an essential tool for federal, state and local law enforcement to catch child abusers, drug traffickers and other violent criminals. However, indefinite and unjustified nondisclosure orders can threaten Americans’ privacy,” Grassley told the Reporter.

“Jack Smith’s weaponized Arctic Frost investigation is a prime example: conservative organizations, private citizens and dozens of members of Congress had their personal records scooped up, while the federal government covered its tracks using nondisclosure orders,” Grassley continued.

“Congress should thoughtfully consider solutions to prevent the weaponization of nondisclosure orders, while preserving law enforcement’s ability to protect American communities.”

Grassley’s comments come as momentum builds on Capitol Hill for NDO reform following the House’s unanimous passage of the NDO Fairness Act earlier this month.

The legislation, sponsored in the House by Rep. Scott Fitzgerald (R., Wis.), strengthens the standards prosecutors must meet when seeking NDOs that prevent technology and communications companies from telling customers that the government has obtained their records.

The bill generally limits NDOs to 90 days, requires judges to make written determinations justifying the orders and strengthens protections surrounding government access to Americans’ electronic records. The legislation allows renewals when necessary and includes separate provisions for certain serious offenses, including child exploitation cases.

Grassley’s comments add the powerful Judiciary chairman’s voice to the growing congressional push to address concerns about the use of secret orders exposed by Arctic Frost.

Grassley has been one of the leading congressional investigators examining the scope of Arctic Frost, including the use of NDOs that prevented companies from informing Americans that the government was seeking certain records.

The Arctic Frost revelations have helped fuel a broader push for reform. Smith’s investigation issued 197 subpoenas seeking testimony, communications and records related to at least 430 Republican individuals and organizations, according to records released by Grassley’s committee.

Grassley’s investigation has separately found that Verizon, AT&T and T-Mobile received at least 84 subpoenas connected to Arctic Frost or Smith’s investigation. At least 10 of those sought tolling records for 20 current or former Republican members of Congress.

More recently, Grassley and Sen. Ron Johnson (R., Wis.) revealed that Smith’s investigative team obtained and reviewed text messages from 44 members of Congress during the investigation.

A senior Republican Senate source told the Reporter, “No Senator is more respected on law enforcement reform issues than Senator Chuck Grassley. He led the exposure of Arctic Frost. And he’s the dean of oversight. The fact that he is calling for Congress to consider reforms to NDOs is a signal that the Senate will take this seriously.”

Grassley’s comments come one day after Sen. Mike Lee (R., Utah), the lead Senate sponsor of the NDO Fairness Act, called on the Senate to pass the legislation.

“The 4th Amendment protects private communications, but political government spying can too easily hide behind an NDO and escape accountability,” Lee told the Reporter.

“I’m proud to have introduced the NDO Fairness Act in the Senate to reform this unacceptable situation. The House has done its job, now it is time to do ours, and protect the privacy of law-abiding Americans everywhere.”

Lee introduced the Senate legislation with Sen. Chris Coons (D., Del.), giving the reform effort bipartisan backing.

The debate over reform is likely to receive even more attention as Grassley’s Judiciary Committee continues its series of hearings and oversight examining Arctic Fros, with Jack Smith expected to attend a hearing later in September.