§2704 Backup Preservation

Summary

A government agency can order a company that stores electronic messages to make a backup copy of a person’s stored communications so the messages are preserved. The company must make the backup without telling the customer and must confirm to the agency that the copy was made. The copy must be made within 2 business days and the agency must notify the customer within 3 days after that confirmation, unless notice is lawfully delayed. The company cannot delete the backup until the records are delivered or any legal cases about the order (including appeals) are finished. The company will not turn the backup over to the agency any sooner than 14 days after the agency tells the customer, unless the customer or the company challenges the order. The agency may require the backup if it believes telling the customer could lead to tampering; that decision cannot be challenged. A customer has 14 days after being notified to ask a court to cancel the subpoena or order. The request must be filed in the right court, served on the agency, and the company must be told. The customer must include a sworn statement saying they are the account holder and why the records are not needed or rules were not followed. The court will order the agency to give a sworn response and may hold further proceedings. If the court finds the customer is not the account holder or the records are likely relevant, the court will deny the challenge. If the court finds the customer is the account holder and the records are not relevant or rules were not followed, the court will cancel the order. A denial is not a final order and cannot be appealed right away.