Lawmakers in both parties say they want to stop the federal government from secretly seizing Americans' phone records without notice. They passed a bill out of committee unanimously. They lined up bipartisan Senate sponsors. Even the ACLU signed on. And yet, months later, the NDO Fairness Act still has not reached the House floor, leaving the very abuse it targets unreformed and repeatable.
The bill's urgency traces directly to former special counsel Jack Smith and the Arctic Frost investigation. In 2023, under the Biden administration, Smith used nondisclosure orders to obtain phone records belonging to Republican lawmakers and officials, including Sens. Lindsey Graham and Josh Hawley and White House Chief of Staff Susie Wiles, all without notifying the targets. The purpose: investigating efforts to overturn the 2020 presidential election.
The targets did not learn what happened until long after the fact. The NDO Fairness Act, which would restrict such orders on American citizens and require notification unless a judge specifically approves a delay, passed the House Judiciary Committee with unanimous support in November 2025. A floor vote was scheduled for February 2026. Then a partial government shutdown intervened, and the vote was postponed. It has not been rescheduled.
A source familiar with House and Senate discussions told the Daily Caller News Foundation there is "no opposition" to the bill. That claim is striking, and makes the delay harder to explain. The DCNF asked House Speaker Mike Johnson's office for a timeline and the reasons the bill had not received a vote. Johnson's office did not respond.
On the Senate side, Republican Sen. Mike Lee of Utah and Democratic Sen. Chris Coons of Connecticut introduced a companion bill with bipartisan backing. Lee framed the stakes in constitutional terms. He told the DCNF:
"The government should not be able to hide domestic spying activities behind non-disclosure orders."
Lee said the legislation would "limit the use and duration of secrecy orders and help safeguard all Americans from unjustified secrecy." The Senate, however, is waiting for the House to act first, a familiar Capitol Hill standoff that risks turning broad agreement into indefinite inaction.
The pattern is worth noting. Smith's covert pursuit of records belonging to political figures extended well beyond what has been publicly discussed. As previously reported, subpoenas revealed Smith's quiet pursuit of Kash Patel's phone records over a two-year span, a timeline that underscores just how long these operations can run in the dark before anyone is the wiser.
Nondisclosure orders are not new. Federal prosecutors use them to prevent service providers, phone companies, email platforms, from telling a customer that the government has obtained their data. In theory, secrecy protects active investigations. In practice, the orders can last indefinitely under current law.
Rep. Jamie Raskin, the top Democrat on the House Judiciary Committee, released a statement in January making the point bluntly:
"As a matter of law, that nondisclosure order can last forever. As a matter of Department policy, nondisclosure orders now typically last one year. Even when our investigators can be trusted to be professional and good faith actors, many of these orders are unnecessarily and unfairly long. They prevent us from any recourse, or even routine oversight, until well after the period of discovery and surveillance."
When a Maryland progressive and a Utah conservative agree that a government power is being abused, the case for reform is not exactly ambiguous. Raskin's support also removes the standard Democratic objection that such legislation is partisan overreach. It isn't. The bill addresses a structural flaw that any administration, left or right, could exploit.
The broader pattern of DOJ weaponization makes the stakes even clearer. When prosecutors can obtain the phone records of sitting senators and senior political figures without those targets ever learning about it, the balance of power between the executive branch and Congress tilts sharply, and silently, in one direction.
Kia Hamadanchy, senior policy counsel at the ACLU, told the DCNF that the consequences of unchecked NDOs go beyond politics:
"When the government obtains your data and uses a nondisclosure order to block the service provider from telling you, you have effectively been stripped of any practical ability to hold the government accountable for unlawful surveillance."
Hamadanchy added: "Notice is the gateway to every other legal remedy. Without it, you can't hold the government accountable for overreach." That framing matters. Without notification, there is no standing to challenge the search, no opportunity to invoke Fourth Amendment protections, and no way to know whether the government's legal basis was sound.
The Supreme Court recognized privacy protections in digital data in its 2018 ruling in Carpenter v. United States, holding that accessing certain cell phone records constitutes a search under the Fourth Amendment. But that protection means little if the target never learns the search occurred.
And the fallout from Smith's investigation continues to surface. A federal judge permanently blocked the release of Jack Smith's report, adding another layer of opacity to an investigation already defined by secrecy.
Sen. Lindsey Graham raised the double-standard issue during a Senate Judiciary Subcommittee hearing in February. Graham, whose own phone records were accessed without his knowledge, did not mince words:
"If the shoe were on the other foot, it'd be front-page news all over the world that Republicans went after sitting Democratic senators' phone records."
Graham's point is difficult to refute. Imagine a Republican special counsel secretly pulling the phone records of Democratic senators during an active investigation. The media reaction would be immediate and deafening. In this case, the story has unfolded slowly, in fragments, with most of the attention coming from congressional hearings and conservative outlets rather than front-page coverage.
An administration official described Smith's conduct in harsher terms, saying Smith "used and abused NDOs in the worst way possible" and "knew that if it became public... there would be an outrage, so he used NDOs to keep it secret." The official added that such tools "should be used for going after real criminal or drug kingpins" and "shouldn't be used for political lawfare," calling it "the height of prosecutorial abuse."
Meanwhile, political fighting over Smith's legacy continues, with disputes over classified documents and the broader question of whether his office operated within appropriate bounds.
In August 2025, federal officials launched a probe into Jack Smith for alleged violations of the Hatch Act, the federal law that restricts executive branch employees from engaging in partisan political activity. The investigation's outcome has not been reported, but its existence signals that Smith's conduct during Arctic Frost raised concerns beyond Congress.
GOP strategist Alex deGrasse said the NDO abuse "proves why NDO reform is urgent" and "highlights the need for stronger safeguards to ensure transparency and due process." Rep. Chip Roy, according to a January 2026 social media post, discovered only weeks before that his phone records had also been targeted, a revelation that came long after the investigation itself had concluded.
The case of FBI Director Kash Patel's defamation lawsuit against The Atlantic reflects the same broader tension: officials and political figures pushing back against what they view as institutional overreach and media distortion tied to the Smith-era investigations.
The NDO Fairness Act has bipartisan sponsors in both chambers, unanimous committee support, backing from the ACLU, and no known opposition. Senate Bill 3663 sits in the 119th Congress. The House version awaits a floor date that has not been announced. Johnson's office has not explained the holdup. Graham's office did not immediately respond to a request for comment.
The facts are plain enough. A former special counsel secretly obtained the phone records of sitting U.S. senators, a White House chief of staff, and at least one House member, all under nondisclosure orders that kept the targets in the dark for years. Congress says it wants to make sure that never happens again. The question now is whether "never again" means passing a law or just saying the words.
In Washington, broad agreement and zero action is not a paradox. It is a habit, and the people whose records were pulled are still waiting for something more than speeches.
