18 U.S.C. § 2704

Backup preservation

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(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, § 201[(a)], Oct. 21, 1986, 100 Stat. 1863.)Editorial NotesReferences 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 SubsidiariesEffective Date

Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or extension, applicable only with respect to court orders or extensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title.

Notes of Decisions

Cited in 10 cases (2 in the last 5 years), 1993–2022 · leading case: Patrick Hately v. Dr. David Watts, 917 F.3d 770 (4th Cir. 2019).

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Patrick Hately v. Dr. David Watts, 917 F.3d 770 (4th Cir. 2019). “Watts' first argument-that the term "backup protection" encompasses only copies "made for the service provider's own administrative purposes"-principally rests on his contention, with which the district court agreed, that the meaning of "backup protection" in Subsection (B)…”

In re United States, 830 F. Supp. 2d 114 (E.D. Va. 2011). · cites it 5× “A subscriber or customer, by contrast, may bring a statutory challenge to a § 2703 order issued pursuant to 18 U.S.C. § 2704 or in a post-execution remedy set forth elsewhere in the chapter.”

Jennings v. Jennings, 736 S.E.2d 242 (S.C. 2012). · cites it 2× “I think the most obvious statutory signal is the text of 18 U.S.C. § 2704 , entitled “Backup Preservation.”

In Re Toft, 453 B.R. 186 (Bankr. S.D.N.Y. 2011). “A subscriber may challenge disclosure under 18 U.S.C. § 2704 (b) within fourteen days of receiving notice.”

In re § 2703(d) Order 10GJ3793, 787 F. Supp. 2d 430 (E.D. Va. 2011). · cites it 2× “*436 (1)Petitioners’ Standing Under 18 U.S.C. § 2704 (b) Pursuant to § 2704(b)(1)(A), a customer may challenge a § 2703(d) order only upon an affidavit “stating that the applicant is a customer or subscriber to the service from which the contents of electronic communications…”

Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1993). “See, 18 U.S.C. § 2704 . Agent Foley stated his concern was to prevent the destruction of the documents’ content and for the Secret Service to take the time necessary to carefully review all of the information seized.”

United States v. Christopher Sammons, 55 F.4th 1062 (6th Cir. 2022). “See 18 U.S.C. § 2704 (a)(2) (providing that “[n]otice to the subscriber or customer shall be made by the governmental entity” when a service provider is ordered to preserve the customer’s electronic communications (emphasis added)).”

Hately v. Watts, 309 F. Supp. 3d 407 (E.D. Va. 2018). “, 18 U.S.C. § 2704 (a "governmental entity acting under section 2703(b)(2) [regarding required disclosure of customer communications] 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…”

Quon v. Arch Wireless Operating Co., Inc., 309 F. Supp. 2d 1204 (C.D. Cal. 2004). “See 18 U.S.C. § 2704 ; see also S.Rep. No. 99-541, at 39; 1986 U.”

United States v. Bledsoe (D.D.C. 2022). “” 18 U.S.C. § 2704 (c)(4). According to the FBI agent who requested the information, “[b]ased on the nature of the conduct on January 6,” the government held an objectively reasonable belief that “those who perpetrated the intrusion of the Capitol that day would commit other…”

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