18 U.S.C. § 2704 : US Code - Section 2704: Backup preservation

Search 18 U.S.C. § 2704 : US Code - Section 2704: Backup preservation

      (a) Backup Preservation. - (1) A governmental entity acting under
    section 2703(b)(2) may include in its subpoena or court order a
    requirement that the service provider to whom the request is
    directed create a backup copy of the contents of the electronic
    communications sought in order to preserve those communications.
    Without notifying the subscriber or customer of such subpoena or
    court order, such service provider shall create such backup copy as
    soon as practicable consistent with its regular business practices
    and shall confirm to the governmental entity that such backup copy
    has been made. Such backup copy shall be created within two
    business days after receipt by the service provider of the subpoena
    or court order.
      (2) Notice to the subscriber or customer shall be made by the
    governmental entity within three days after receipt of such
    confirmation, unless such notice is delayed pursuant to section
    2705(a).
      (3) The service provider shall not destroy such backup copy until
    the later of - 
        (A) the delivery of the information; or
        (B) the resolution of any proceedings (including appeals of any
      proceeding) concerning the government's subpoena or court order.

      (4) The service provider shall release such backup copy to the
    requesting governmental entity no sooner than fourteen days after
    the governmental entity's notice to the subscriber or customer if
    such service provider - 
        (A) has not received notice from the subscriber or customer
      that the subscriber or customer has challenged the governmental
      entity's request; and
        (B) has not initiated proceedings to challenge the request of
      the governmental entity.

      (5) A governmental entity may seek to require the creation of a
    backup copy under subsection (a)(1) of this section if in its sole
    discretion such entity determines that there is reason to believe
    that notification under section 2703 of this title of the existence
    of the subpoena or court order may result in destruction of or
    tampering with evidence. This determination is not subject to
    challenge by the subscriber or customer or service provider.
      (b) Customer Challenges. - (1) Within fourteen days after notice
    by the governmental entity to the subscriber or customer under
    subsection (a)(2) of this section, such subscriber or customer may
    file a motion to quash such subpoena or vacate such court order,
    with copies served upon the governmental entity and with written
    notice of such challenge to the service provider. A motion to
    vacate a court order shall be filed in the court which issued such
    order. A motion to quash a subpoena shall be filed in the
    appropriate United States district court or State court. Such
    motion or application shall contain an affidavit or sworn statement
    - 
        (A) stating that the applicant is a customer or subscriber to
      the service from which the contents of electronic communications
      maintained for him have been sought; and
        (B) stating the applicant's reasons for believing that the
      records sought are not relevant to a legitimate law enforcement
      inquiry or that there has not been substantial compliance with
      the provisions of this chapter in some other respect.

      (2) Service shall be made under this section upon a governmental
    entity by delivering or mailing by registered or certified mail a
    copy of the papers to the person, office, or department specified
    in the notice which the customer has received pursuant to this
    chapter. For the purposes of this section, the term "delivery" has
    the meaning given that term in the Federal Rules of Civil
    Procedure.
      (3) If the court finds that the customer has complied with
    paragraphs (1) and (2) of this subsection, the court shall order
    the governmental entity to file a sworn response, which may be
    filed in camera if the governmental entity includes in its response
    the reasons which make in camera review appropriate. If the court
    is unable to determine the motion or application on the basis of
    the parties' initial allegations and response, the court may
    conduct such additional proceedings as it deems appropriate. All
    such proceedings shall be completed and the motion or application
    decided as soon as practicable after the filing of the governmental
    entity's response.
      (4) If the court finds that the applicant is not the subscriber
    or customer for whom the communications sought by the governmental
    entity are maintained, or that there is a reason to believe that
    the law enforcement inquiry is legitimate and that the
    communications sought are relevant to that inquiry, it shall deny
    the motion or application and order such process enforced. If the
    court finds that the applicant is the subscriber or customer for
    whom the communications sought by the governmental entity are
    maintained, and that there is not a reason to believe that the
    communications sought are relevant to a legitimate law enforcement
    inquiry, or that there has not been substantial compliance with the
    provisions of this chapter, it shall order the process quashed.
      (5) A court order denying a motion or application under this
    section shall not be deemed a final order and no interlocutory
    appeal may be taken therefrom by the customer.