§2704 Backup Preservation

Summary

A government agency can require an internet or phone company to make a backup copy of stored electronic messages when it serves a subpoena or court order under section 2703(b)(2). The company must make the backup without telling the customer, follow its normal business practices, confirm to the government that it made the copy, and create it within two business days of getting the order. The government must tell the customer within three days after that confirmation unless notice is delayed under section 2705(a). The company must keep the backup until the information is delivered or any legal proceedings about the order are finished, including appeals. The company will not give the backup to the government sooner than fourteen days after the government notifies the customer if the company has not been told the customer is challenging the request and the company has not itself challenged it. The government may order a backup if it thinks telling the customer could lead to hiding or destroying evidence, and that decision cannot be challenged by the customer or the company. A customer who gets notice has fourteen days to ask a court to quash the subpoena or vacate the court order. The customer must file the motion in the court that issued the order or in the right district or state court, send copies to the government, and tell the provider. The motion must include a sworn statement saying the filer is the customer and explaining why the records are not relevant or why the legal process was not followed. The government must be served by registered or certified mail to the address in the notice. If the court accepts the filing, it will order the government to file a sworn response (which can be filed in private). The court may hold more hearings and must decide as soon as practicable. If the court finds the filer is not the customer or the records are relevant to a legitimate inquiry, it will deny the motion and enforce the order. If the court finds the filer is the customer and the records are not shown to be relevant or the process was not followed, it will quash the order. A denial is not a final order, and the customer cannot take an immediate appeal.