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U.S. Code as of:
01/19/04
Section 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.
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