§ 2704. — Backup preservation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC2704]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL
RECORDS ACCESS
Sec. 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.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1863.)
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.
Section Referred to in Other Sections
This section is referred to in sections 2701, 2706 of this title.
