18 U.S.C. § 2704 — Backup preservation

Page 662 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2704 local and long distance telephone toll billing records, telephone number or other subscriber number or iden- tity, and length of service of a subscriber’’ in introduc- tory provisions, inserting subpars. (A) to (F), striking out ‘‘and the types of services the subscriber or cus- tomer utilized,’’ before ‘‘when the governmental entity uses an administrative subpoena’’, inserting ‘‘of a sub- scriber’’ at beginning of concluding provisions and des- ignating ‘‘to or customer of such service when the gov- ernmental entity uses an administrative subpoena au- thorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means avail- able under paragraph (1).’’ as remainder of concluding provisions. Pub. L. 107–56, § 212(b)(1)(C)(iii), (D), redesignated sub- par. (C) of par. (1) as par. (2) and temporarily sub- stituted ‘‘paragraph (1)’’ for ‘‘subparagraph (B)’’. Pub. L. 107–56, § 212(b)(1)(B), redesignated par. (2) as (3). Subsec. (c)(3). Pub. L. 107–56, § 212(b)(1)(B), redesig- nated par. (2) as (3). Subsec. (d). Pub. L. 107–56, § 220(b), struck out ‘‘de- scribed in section 3127(2)(A)’’ after ‘‘court of competent jurisdiction’’. 1998—Subsec. (c)(1)(B)(iv). Pub. L. 105–184 added cl. (iv). 1996—Subsec. (c)(1)(C). Pub. L. 104–293 inserted ‘‘local and long distance’’ after ‘‘address,’’. Subsec. (d). Pub. L. 104–294 substituted ‘‘in section 3127(2)(A)’’ for ‘‘in section 3126(2)(A)’’. Subsec. (f). Pub. L. 104–132 added subsec. (f). 1994—Subsec. (c)(1)(B). Pub. L. 103–414, § 207(a)(1)(A), redesignated cls. (ii) to (iv) as (i) to (iii), respectively, and struck out former cl. (i) which read as follows: ‘‘uses an administrative subpoena authorized by a Fed- eral or State statute, or a Federal or State grand jury or trial subpoena;’’. Subsec. (c)(1)(C). Pub. L. 103–414, § 207(a)(1)(B), added subpar. (C). Subsec. (d). Pub. L. 103–414, § 207(a)(2), amended first sentence generally. Prior to amendment, first sentence read as follows: ‘‘A court order for disclosure under subsection (b) or (c) of this section may be issued by any court that is a court of competent jurisdiction set forth in section 3127(2)(A) of this title and shall issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry.’’ Pub. L. 103–322 substituted ‘‘section 3127(2)(A)’’ for ‘‘section 3126(2)(A)’’. 1988—Subsecs. (b)(1)(B)(i), (c)(1)(B)(i). Pub. L. 100–690, § 7038, inserted ‘‘or trial’’ after ‘‘grand jury’’. Subsec. (d). Pub. L. 100–690, § 7039, inserted ‘‘may be issued by any court that is a court of competent juris- diction set forth in section 3126(2)(A) of this title and’’ before ‘‘shall issue’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on the date designated by the President [Jan. 1, 2019, with certain conditions and exceptions, see Ex. Ord. No. 13825, set out as a note under section 801 of Title 10, Armed Forces], not later than the first day of the first cal- endar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the Presi- dent not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various sit- uations, see section 5542 of Pub. L. 114–328, set out as a note under section 801 of Title 10, Armed Forces. EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Do- mestic Security. EFFECTIVE DATE Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or exten- sion, applicable only with respect to court orders or ex- tensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title. RULE OF CONSTRUCTION Pub. L. 115–141, div. V, § 103(c), Mar. 23, 2018, 132 Stat. 1216, provided that: ‘‘Nothing in this section [enacting section 2713 of this title and amending this section], or an amendment made by this section, shall be construed to modify or otherwise affect the common law stand- ards governing the availability or application of com- ity analysis to other types of compulsory process or to instances of compulsory process issued under section 2703 of title 18, United States Code, as amended by this section, and not covered under subsection (h)(2) of such section 2703.’’ § 2704. Backup preservation (a) BACKUP PRESERVATION.—(1) A govern- mental entity acting under section 2703(b)(2) may include in its subpoena or court order a re- quirement 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 communica- tions. Without notifying the subscriber or cus- tomer of such subpoena or court order, such service provider shall create such backup copy as soon as practicable consistent with its reg- ular 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 (in- cluding 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 en- tity no sooner than fourteen days after the gov- ernmental entity’s notice to the subscriber or customer if such service provider— (A) has not received notice from the sub- scriber or customer that the subscriber or cus- tomer has challenged the governmental enti- ty’s request; and (B) has not initiated proceedings to chal- lenge 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 serv- ice provider. (b) CUSTOMER CHALLENGES.—(1) Within four- teen days after notice by the governmental enti- Page 663 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2705 ty to the subscriber or customer under sub- section (a)(2) of this section, such subscriber or customer may file a motion to quash such sub- poena 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 main- tained for him have been sought; and (B) stating the applicant’s reasons for be- lieving that the records sought are not rel- evant to a legitimate law enforcement inquiry or that there has not been substantial compli- ance 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 pur- poses 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 sub- section, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity in- cludes in its response the reasons which make in camera review appropriate. If the court is un- able 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 re- sponse. (4) If the court finds that the applicant is not the subscriber or customer for whom the com- munications sought by the governmental entity are maintained, or that there is a reason to be- lieve that the law enforcement inquiry is legiti- mate and that the communications sought are relevant to that inquiry, it shall deny the mo- tion or application and order such process en- forced. If the court finds that the applicant is the subscriber or customer for whom the com- munications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are rel- evant to a legitimate law enforcement inquiry, or that there has not been substantial compli- ance with the provisions of this chapter, it shall order the process quashed. (5) A court order denying a motion or applica- tion under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1863.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or exten- sion, applicable only with respect to court orders or ex- tensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title. § 2705. Delayed notice (a) DELAY OF NOTIFICATION.—(1) A govern- mental entity acting under section 2703(b) of this title may— (A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notifica- tion required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to be- lieve that notification of the existence of the court order may have an adverse result de- scribed in paragraph (2) of this subsection; or (B) where an administrative subpoena au- thorized by a Federal or State statute or a Federal or State grand jury subpoena is ob- tained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notifica- tion of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection. (2) An adverse result for the purposes of para- graph (1) of this subsection is— (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evi- dence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an in- vestigation or unduly delaying a trial. (3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B). (4) Extensions of the delay of notification pro- vided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section. (5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that— (A) states with reasonable specificity the na- ture of the law enforcement inquiry; and (B) informs such customer or subscriber— (i) that information maintained for such customer or subscriber by the service pro-