§2704 Backup preservation

Summary

A government agency can order a provider to make a backup copy of the electronic messages or files it is asking for. The provider must make that backup as soon as its normal business practices allow and must do so within two business days. The provider must tell the government the backup was made. The government must notify the subscriber or customer within three days after it gets that confirmation unless that notice is delayed under another law (section 2705(a)). The provider cannot delete the backup until the data is delivered or until any legal challenges, including appeals, are finished. The provider must wait at least 14 days after the government’s notice before giving the backup to the government, unless the provider has been told the subscriber is challenging the request or the provider itself has started a challenge. The government can require a backup without telling the subscriber first if it decides notice might lead to evidence being destroyed; that decision cannot be challenged by the subscriber or the provider. Within 14 days after the government notifies the subscriber, the subscriber may file a court motion to stop the subpoena or order and must send copies to the government and notify the provider. The motion must include a sworn statement saying the filer is the subscriber or customer and explaining why the records are not relevant or why the law was not followed. The papers must be delivered or mailed by registered or certified mail to the address named in the government’s notice. If the court accepts the filing, it will require the government to answer under oath, sometimes in private, and may hold further hearings and decide the matter as soon as practicable. If the court finds the filer is not the subscriber or that the records are likely relevant to a legitimate investigation, it will deny the motion and enforce the order. If the court finds the filer is the subscriber and the records are not relevant or the law was not followed, it will quash the process. If the court denies the motion, that denial is not a final decision and the subscriber cannot immediately appeal.